Exhibit No. EX-99.h.1
FORM OF
FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of the ___ day of August, 2008,
by and between Genworth Variable Insurance Trust, a Delaware statutory trust
(the "Trust") and U.S. Bancorp Fund Services, LLC, a Wisconsin limited liability
company ("USBFS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, USBFS is, among other things, in the business of providing fund
administration services for the benefit of its customers; and
WHEREAS, the Trust desires to retain USBFS to provide fund administration
services to each series of the Trust listed on Exhibit A hereto (as amended from
time to time) (each a "Fund" and collectively, the "Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of USBFS as Administrator
The Trust hereby appoints USBFS as administrator of the Trust on the terms
and conditions set forth in this Agreement, and USBFS hereby accepts such
appointment and agrees to perform the services and duties set forth in this
Agreement. The services and duties of USBFS shall be confined to those
matters expressly set forth herein, and no implied duties are assumed by or
may be asserted against USBFS hereunder.
2. Services and Duties of USBFS
USBFS shall provide the following administration services to the Fund:
A. General Fund Management:
(1) Act as liaison among Fund service providers
(2) Supply:
a. Corporate secretarial services.
b. Office facilities (which may be in USBFS', or an
affiliate's, own offices).
c. Non-investment-related statistical and research data as
needed.
(3) Coordinate the Trust's Board of Trustees (the "Board of Trustees
" or the "Trustees") communications, such as:
a. Prepare meeting agendas and resolutions, with the assistance
of Fund counsel.
b. Prepare reports for the Board of Trustees based on financial
and administrative data.
c. Evaluate independent auditor.
d. Secure and monitor fidelity bond and director and officer
liability coverage, and make the necessary Securities and
Exchange Commission (the "SEC") filings relating thereto.
e. Prepare minutes of meetings of the Board of Trustees and
Fund shareholders.
f. Recommend dividend declarations to the Board of Trustees and
prepare and distribute to appropriate parties notices
announcing declaration of dividends and other distributions
to shareholders.
g. Attend Board of Trustees meetings and present materials for
Trustees' review at such meetings.
(4) Audits:
a. Prepare appropriate schedules and assist independent
auditors.
b. Provide information to the SEC and facilitate audit process.
c. Provide office facilities.
(5) Assist in overall operations of the Fund.
(6) Pay Fund expenses upon written authorization from the Trust.
(7) Keep the Trust's governing documents, including its charter,
bylaws and minute books, but only to the extent such documents
are provided to USBFS by the Trust or its representatives for
safe keeping.
(8) Update trustee questionnaires.
(9) Prepare compliance calendar and/or manual.
(10) Monitor timely contract renewal and procedures review.
(11) Edgarization.
(12) Monitoring of expense caps and reimbursements and calculation of
advisory fee.
B. Compliance:
(1) Regulatory Compliance:
a. Monitor compliance with the 1940 Act requirements,
including:
(i) Asset diversification tests.
(ii) Total return and SEC yield calculations.
(iii) Maintenance of books and records under Rule 31a-3.
b. Monitor Funds' compliance with the policies and investment
limitations as set forth the Trust's prospectus (the
"Prospectus") and statement of additional information (the
"SAI").
c. Perform its duties hereunder in compliance with all
applicable laws and regulations and provide any
sub-certifications reasonably requested by the Trust in
connection with any certification required of the Trust
pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the "SOX" Act)
or any rules or regulations promulgated by the SEC
thereunder, provided the same shall not be deemed to change
USBFS' standard of care as set forth herein.
d. Monitor applicable regulatory and operational service
issues, and update Board of Trustees periodically.
e. In order to assist the Trust in satisfying the requirements
of Rule 38a-1 under the 1940 Act (the "Rule"), USBFS will
provide the Trust's Chief Compliance Officer with reasonable
access to USBFS' personnel and records relating to the
services provided by it under this Agreement, and will
provide quarterly compliance reports and related
certifications regarding any Material Compliance Matter (as
defined in the Rule) involving USBFS that affect or could
affect the Trust.
(2) Blue Sky Compliance:
a. Prepare and file with the appropriate state securities
authorities any and all required compliance filings relating
to the qualification of the securities of the Fund so as to
enable the Fund to make a continuous offering of its shares
in all states.
b. Monitor status and maintain registrations in each state.
c. Provide updates regarding material developments in state
securities regulation.
(3) SEC Registration and Reporting:
a. Assist Fund counsel in annual update of the Prospectus and
SAI and in preparation of proxy statements as needed.
b. Prepare and file annual and semiannual shareholder reports,
Form N-SAR, Form N-CSR, and Form N-Q filings and Rule 24f-2
notices. As requested by the Trust, prepare and file Form
N-PX filings.
c. Coordinate the printing, filing and mailing of Prospectuses
and shareholder reports, and amendments and supplements
thereto.
d. File fidelity bond under Rule 17g-1.
e. Monitor sales of Fund shares and ensure that such shares are
properly registered or qualified, as applicable, with the
SEC and the appropriate state authorities.
(4) IRS Compliance:
a. Monitor the Trust's status as a regulated investment company
under Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"), including without limitation, review
of the following:
(i) Asset diversification requirements.
(ii) Qualifying income requirements.
(iii) Distribution requirements.
b. Monitor the Trust's compliance with Section 817 of the Code.
c. Calculate required distributions (including excise tax
distributions).
C. Financial Reporting:
(1) Provide financial data required by the Prospectus and SAI.
(2) Prepare financial reports for officers, shareholders, tax
authorities, performance reporting companies, the Board of
Trustees, the SEC, and independent accountants.
(3) Supervise the Fund's custodian and fund accountants in the
maintenance of the Fund's general ledger and in the preparation
of the Fund's financial statements, including oversight of
expense accruals and payments, the determination of net asset
value and the declaration and payment of dividends and other
distributions to shareholders.
(4) Compute the yield, total return, expense ratio and portfolio
turnover rate of each class of the Fund.
(5) Monitor the expense accruals and notify the Trust's management of
any proposed adjustments.
(6) Prepare monthly financial statements, which include, without
limitation, the following items:
a. Schedule of Investments.
b. Statement of Assets and Liabilities.
c. Statement of Operations.
d. Statement of Changes in Net Assets.
e. Cash Statement.
f. Schedule of Capital Gains and Losses.
(7) Prepare quarterly broker security transaction summaries.
D. Tax Reporting:
(1) Prepare and file on a timely basis appropriate federal and state
tax returns including, without limitation, Forms 1120/8613, with
any necessary schedules.
(2) Prepare state income breakdowns where relevant.
(3) File Form 1099 for payments to disinterested Trustees and other
service providers.
(4) Monitor wash sale losses.
(5) Calculate eligible dividend income for corporate shareholders.
E. Eagle Portal System:
USBFS shall provide the Trust access to the Eagle Portal System (the
"System") in accordance with Sections I and II of Exhibit B.
3. Compensation
USBFS shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit C hereto
(as amended from time to time). USBFS shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and
delivery charges, and reproduction charges) as are reasonably incurred by
USBFS in performing its duties hereunder. The Trust shall pay all such fees
and reimbursable expenses within 30 calendar days following receipt of the
billing notice, except for any fee or expense subject to a good faith
dispute. The Trust shall notify USBFS in writing within 30 calendar days
following receipt of each invoice if the Trust, or its designated affiliate
or agent, is disputing any amounts in good faith. The Trust shall pay such
disputed amounts within 10 calendar days of the day on which the parties
agree to the amount to be paid. With the exception of any fee or expense
the Trust is disputing in good faith as set forth above, unpaid invoices
shall accrue a finance charge of 1 1/2% per month after the due date.
Notwithstanding to the contrary, amounts owed by the Trust to USBFS shall
only be paid out of the assets and property of the particular Fund
involved.
4. Representations and Warranties
A. The Trust hereby represents and warrants to USBFS, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by the Trust in accordance with all requisite action and
constitutes a valid and legally binding obligation of the Trust,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and
secured parties; and
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or
performance of this Agreement.
B. USBFS hereby represents and warrants to the Trust, which
representations and warranties shall be deemed to be continuing
throughout the term of this Agreement, that:
(1) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(2) This Agreement has been duly authorized, executed and delivered
by USBFS in accordance with all requisite action and constitutes
a valid and legally binding obligation of USBFS, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured
parties; and
(3) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and
has obtained all regulatory approvals necessary to carry on its
business as now conducted; there is no statute, rule, regulation,
order or judgment binding on it and no provision of its charter,
bylaws or any contract binding it or affecting its property which
would prohibit its execution or performance of this Agreement.
C. USBFS MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED,
WITH RESPECT TO THE SUITABILITY AND ACCURACY OF FUND DATA, SYSTEMS,
INDUSTRY INFORMATION AND PROCESSES ACCESSED THROUGH THE SYSTEM.
5. Standard of Care; Indemnification; Limitation of Liability
A. USBFS shall exercise reasonable care in the performance of its duties
under this Agreement. USBFS shall not be liable to the Trust for any
error of judgment, any mistake of law or any loss or damage suffered
by it in connection with USBFS' duties under this Agreement, including
any loss resulting from (i) any fraudulent, unauthorized or otherwise
improper use by the Trust of any identification, security codes or
systems, or access mechanisms assigned by USBFS in connection with
access to the System, (ii) mechanical breakdowns, the failure of
communication or power
supplies or USBFS' failure or delay in delivering the System to the
extent such breakdown, failure or delay is beyond USBFS' control,
except those losses or damages arising out of or relating to USBFS'
refusal or failure to comply with the terms of this Agreement or from
USBFS' bad faith, negligence, or willful misconduct in the performance
of its duties under this Agreement.
B. Notwithstanding any other provision of this Agreement, if USBFS has
exercised reasonable care in the performance of its duties under this
Agreement, the Trust shall indemnify and hold harmless USBFS from and
against any and all claims, demands, losses, expenses, and liabilities
of any and every nature (including reasonable attorneys' fees) that
USBFS may sustain or incur or that may be asserted against USBFS by
any person arising out of any action taken or omitted to be taken by
it in performing the services hereunder (i) in accordance with the
foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to USBFS by any duly authorized officer of the
Trust, as approved by the Board of Trustees, except for any and all
claims, demands, losses, expenses, and liabilities arising out of or
relating to USBFS' refusal or failure to comply with the terms of this
Agreement or from its bad faith, negligence or willful misconduct in
the performance of its duties under this Agreement. This indemnity
shall be a continuing obligation of the Trust, its successors and
assigns, notwithstanding the termination of this Agreement. As used in
this paragraph, the term "USBFS" shall include USBFS' directors,
officers and employees.
USBFS shall indemnify and hold the Trust harmless from and against any
and all claims, demands, losses, expenses, and liabilities of any and
every nature (including reasonable attorneys' fees) that the Trust may
sustain or incur or that may be asserted against the Trust by any
person arising out of any action taken or omitted to be taken by USBFS
as a result of USBFS' refusal or failure to comply with the terms of
this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement. This
indemnity shall be a continuing obligation of USBFS, its successors
and assigns, notwithstanding the termination of this Agreement. As
used in this paragraph, the term "Trust" shall include the Trust's
directors, officers and employees.
Without limiting the generality of the foregoing, USBFS agrees to
indemnify the Trust with respect to any and all of the following: (1)
failure of USBFS to observe or perform any duty or obligation under
any third party software license agreement or third party service
contract; (2) any claim by a third party of violation of a duty of
confidentiality or other similar duty in respect of information in the
possession of USBFS which information was provided to the Trust; (3)
any claims arising out of or related to occurrences which USBFS is
required to insure against pursuant
to this Agreement or applicable law; (4) any claim of unlawful
harassment or discrimination resulting from an action of USBFS or its
employees, agents or representatives; (5) any claim or action arising
out of or relating to any illness, other injury or death of a person,
or damage to property, attributable to the negligence or misconduct of
USBFS or its employees, agents or representatives.
Neither party to this Agreement shall be liable to the other party for
consequential, special or punitive damages under any provision of this
Agreement.
In the event of a mechanical breakdown, failure of communication or
power supplies or its failure or delay in delivering the System due to
an event beyond its control, USBFS shall take all reasonable steps to
minimize service interruptions for any period that such interruption
continues. USBFS will make every reasonable effort to restore any lost
or damaged data and correct any errors resulting from such a breakdown
at the expense of USBFS. USBFS agrees that it shall, at all times,
have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing
equipment to the extent appropriate equipment is available.
Representatives of the Trust shall be entitled to inspect USBFS'
premises and operating capabilities at any time during regular
business hours of USBFS, upon reasonable notice to USBFS. Moreover,
USBFS shall provide the Trust, at such times as the Trust may
reasonably require, copies of reports rendered by independent
accountants on the internal controls and procedures of USBFS relating
to the services provided by USBFS under this Agreement.
Notwithstanding the above, USBFS reserves the right to reprocess and
correct administrative errors at its own expense. The Trust shall hold
harmless USBFS from and against any and all claims, demands, losses,
expenses and liabilities of any and every nature (including reasonable
attorneys' fees) to which the Trust may become subject (collectively,
"Liabilities") arising from or by reason of its use of the equipment,
software or other related services provided by vendors to USBFS,
except those Liabilities arising out of or relating to the USBFS'
refusal or failure to comply with the terms of the Agreement or the
terms of its agreement with the applicable vendor or from USBFS' bad
faith, negligence, or willful misconduct in the performance or USBFS'
duties under the Agreement.
C. In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may
be asked to indemnify or hold the indemnitee harmless, the indemnitor
shall be fully and promptly advised of all pertinent facts concerning
the situation in question, and it is further understood that the
indemnitee will use all
reasonable care to notify the indemnitor promptly concerning any
situation that presents or appears likely to present the probability
of a claim for indemnification. The indemnitor shall have the option
to defend the indemnitee against any claim that may be the subject of
this indemnification. In the event that the indemnitor so elects, it
will so notify the indemnitee and thereupon the indemnitor shall take
over complete defense of the claim with counsel reasonably
satisfactory to indemnitee, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
D. The indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement.
E. If USBFS is acting in another capacity for the Trust pursuant to a
separate agreement, nothing herein shall be deemed to relieve USBFS of
any of its obligations in such other capacity.
6. Duties and Obligations of the Trust
A. The Trust shall furnish to USBFS the data necessary to perform the
services described herein at such times and in such form as mutually
agreed upon by the parties.
B. In connection with its use of the System, the Trust shall comply with
the terms of Section III of Exhibit B.
7. Proprietary and Confidential Information
USBFS 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 of the Trust (and clients of said shareholders), and
not to use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder, except (i) after
prior notification to and approval in writing by the Trust, which approval
shall not be unreasonably withheld and may not be withheld where USBFS may
be exposed to civil or criminal contempt proceedings for failure to comply,
(ii) when requested to divulge such information by duly constituted
authorities provided that the Custodian will provide the Trust written
notice of such request to the extent such notice is permitted by applicable
law or regulation, or (iii) when so requested by the Trust. Records and
other information which have become known to the public through no wrongful
act of USBFS or
any of its employees, agents or representatives, and information that was
already in the possession of USBFS prior to receipt thereof from the Trust,
shall not be subject to this paragraph.
Further, USBFS will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time. In this regard, USBFS shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating to the
Trust and its shareholders.
8. Records
USBFS shall keep records relating to the services to be performed hereunder
in the form and manner, and for such period, as it may deem advisable and
is agreeable to the Trust, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section
31 of the 1940 Act and the rules thereunder. USBFS agrees that all such
records prepared or maintained by USBFS relating to the services to be
performed by USBFS hereunder are the property of the Trust and will be
preserved, maintained, and made available in accordance with such
applicable sections and rules of the 1940 Act and will be promptly
surrendered to the Trust or its designee on and in accordance with its
request.
USBFS and its agents shall employ commercially reasonable security
procedures to ensure that unauthorized third-parties do not have access to
the Trust's databases, files, and other information provided by the Trust
to USBFS for use with the System, the names of end users or end user
transaction or account data (collectively, "Trust Files"). USBFS shall
notify the Trust promptly in the event USBFS receives a request for the
Trust Files from a securities regulator with jurisdiction over the Trust.
9. Compliance with Laws
The Trust has and retains primary responsibility for all compliance matters
relating to the Fund, including but not limited to compliance with the 1940
Act, the Code, the SOX Act, the USA Patriot Act of 2002 and the policies
and limitations of the Fund relating to its portfolio investments as set
forth in its Prospectus and SAI. USBFS' services hereunder shall not
relieve the Trust of its responsibilities for assuring such compliance or
the Board of Trustees' oversight responsibility with respect thereto.
10. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written above
and will continue in effect for a period of two (2) years. Subsequent to
the initial two-year term, this Agreement may be terminated by either party
upon giving 90 days prior written notice to the other party or such shorter
period as is mutually agreed upon by the parties
Notwithstanding the foregoing, this Agreement may be terminated by any
party upon the breach of the other party of any material term of this
Agreement if such breach is not cured within 15 days of notice of such
breach to the breaching party
This Agreement may not be amended or modified in any manner except by
written agreement executed by USBFS and the Trust, and authorized or
approved by the Board of Trustees.
11. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
USBFS' duties or responsibilities hereunder is designated by the Trust by
written notice to USBFS, USBFS will promptly, upon such termination and at
the expense of the Trust, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by USBFS
under this Agreement in a form reasonably acceptable to the Trust (if such
form differs from the form in which USBFS has maintained the same, the
Trust shall pay any expenses associated with transferring the data to such
form), and will cooperate in the transfer of such duties and
responsibilities, including provision for assistance from USBFS' personnel
in the establishment of books, records, and other data by such successor.
If no such successor is designated, then such books, records and other data
shall be returned to the Trust.
In the event of termination of the Agreement, the Trust shall immediately
end its access to the System and return all codes, system access
mechanisms, programs, manuals and other written information to USBFS, and
shall destroy or erase all such information on any diskettes or other
storage medium, unless such access continues to be permitted pursuant to a
separate agreement between the Trust and USBFS that is in effect.
In the event that USBFS terminates this agreement by written notice to the
Trust, USBFS will promptly, upon such termination and at the expense
mutually agreed upon by the parties, transfer to the successor(s) to the
duties assigned to USBFS herein, all relevant books, records,
correspondence, and other data established or maintained by USBFS under
this Agreement in a form reasonably acceptable to the Trust and will
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from USBFS' personnel in the establishment of
books, records, and other data by such successor.
12. Assignment
This Agreement shall extend to and be binding upon the parties hereto and
their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Trust without the written consent
of USBFS, or by USBFS without the written consent of the Trust accompanied
by the authorization or approval of the Trust's Board of Trustees.
13. Governing Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of Wisconsin, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the SEC thereunder.
14. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower either
party to act as agent for the other party to this Agreement, or to conduct
business in the name, or for the account, of the other party to this
Agreement.
15. Services Not Exclusive
Nothing in this Agreement shall limit or restrict USBFS from providing
services to other parties that are similar or identical to some or all of
the services provided hereunder.
16. Invalidity
Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties.
17. Legal-Related Services
Nothing in this Agreement shall be deemed to appoint USBFS and its
officers, directors and employees as the Fund attorneys, form
attorney-client relationships or require the provision of legal advice. The
Fund acknowledges that in-house USBFS attorneys exclusively represent USBFS
and rely on outside counsel retained by the Fund to review all services
provided by in-house USBFS attorneys and to provide independent judgment on
the Fund's behalf. Because no attorney-
client relationship exists between in-house USBFS attorneys and the Fund,
any information provided to USBFS attorneys may not be privileged and may
be subject to compulsory disclosure under certain circumstances. USBFS
represents that it will maintain the confidentiality of information
disclosed to its in-house attorneys on a best efforts basis.
18. Notices
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given on the date
delivered personally or by courier service, or three days after sent by
registered or certified mail, postage prepaid, return receipt requested, or
on the date sent and confirmed received by facsimile transmission to the
other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Notice to the Trust shall be sent to:
Genworth Variable Insurance Trust
c/o Genworth Financial Wealth Management, Inc.
0000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Fax: (000) 000-0000
19. Multiple Originals
This Agreement may be executed on two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
20. Proprietary Rights
A. The Trust acknowledges and agrees that by virtue of accessing the
System, it shall not obtain any rights in or to any of the software,
templates, screen and file formats, interface protocols, formats and
development tools and instructions, hardware, processes, trade
secrets, instruction manuals, enrollment authorization, authentication
and other business processes, proprietary information or distribution
and communication networks used to allow access to the System owned by
or licensed to USBFS. Any interface and other software or programs
provided to the Trust in order to provide connectivity to the System
shall be used by the Trust only for the period during which this
Agreement is in effect and only in accordance with the terms of this
Agreement, and shall not be used by the Trust to
provide connectivity to or through any other system or person without
USBFS' prior written approval. The Trust shall not copy, decompile or
reverse engineer any software or programs provided to the Trust
hereunder. The Trust also agrees not to take any action which would
mask, delete or otherwise alter any on-screen disclaimers and
copyright, trademark and service xxxx notifications, or any "point and
click" features relating to acknowledgment and acceptance of such
disclaimers and notifications.
B. The Trust agrees that USBFS, without prejudice to any rights to
judicial relief it may have, shall be entitled to see equitable relief
including injunction, in the event of a breach by the Trust of this
Section 20 and that the Trust will not resist such application for
relief on the basis that USBFS has an adequate remedy at law.
C. Each party acknowledges and agrees that it obtains no rights in or to
any of the software, hardware, processes, trade secrets, and
proprietary information or distribution and communication networks of
the other hereunder. Except in the normal course of business and in
conformity with Federal copyright law or with the other party's
consent, neither party nor any of its affiliates shall disclose, use,
copy, decompile or reverse engineer any software or other programs
provided to such party by the other in connection herewith.
D. Notwithstanding any other provision of the Agreement, each party
hereto agrees that it shall not knowingly insert into any interface,
other software, or other program provided by the other party
hereunder, any "back door," "time bomb," "Trojan Horse," "worm," "drop
dead device," "virus" or other computer software code or routines or
hardware components designed to disable, damage or impair the
operation of the System, program or operation hereunder. For its
failure to comply with the foregoing, the non-complying party shall
immediately replace all copies of the affected work product, System or
software. All costs incurred with replacement including, but not
limited to, cost of media, shipping, deliveries and installation,
shall be borne by such non-complying party.
21. Insurance
USBFS, through its corporate affiliate, shall maintain a fidelity bond
covering larceny and embezzlement and an insurance policy with respect to
directors and officers errors and omissions coverage, in amounts that are
appropriate in light of its duties and responsibilities hereunder. Upon the
request of the Trust, USBFS shall provide evidence that coverage is in
place. USBFS shall notify the Trust should its insurance coverage with
respect to professional liability or errors and omissions coverage be
reduced or canceled. Such notification shall include the date of
cancellation or reduction and the reasons therefore. USBFS shall notify the
Trust promptly of any material claims against it with respect to services
performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Trust promptly should the total outstanding
claims made by USBFS under its insurance coverage materially impair, or
threaten to materially impair, the adequacy of its coverage.
22. Trust Limitations
This Agreement is executed by the Trust with respect to each of the Funds
and the obligations hereunder are not binding on any of the trustees,
officers or shareholders of the Trust individually but are binding only
upon the Fund to which such obligations pertain and the assets and property
of such Fund. All obligations of the Trust under this Agreement shall apply
only on a Fund-by-Fund basis, and the assets of one Fund shall not be
liable for the obligations of another Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
Genworth Variable Insurance Trust U.S. Bancorp Fund Services, LLC
By:__________________________ By:______________________________
Name:________________________ Name:____________________________
Title:_______________________ Title:___________________________
Exhibit A
to the
Fund Administration Servicing Agreement
Fund Names
Separate Series of Genworth Variable Insurance Trust
Name of Series Date Added
Genworth Calamos Growth Fund ___________, 0000
Xxxxxxxx Xxxxxxxx Mid Cap Value Fund ___________, 0000
Xxxxxxxx Xxxxx XX Venture Fund ___________, 2008
Genworth Xxxxx Xxxxx Large Cap Value Fund ___________, 2008
Genworth Xxxx Xxxxx Partners Aggressive Growth Fund ___________, 2008
Genworth PIMCO StocksPLUS Fund ___________, 2008
Genworth Xxxxxx International Capital Opportunities Fund ___________, 2008
Genworth Xxxxxxxxx International Value Fund ___________, 2008
Genworth Western Asset Management Core Plus Fixed Income Fund ___________, 2008
Exhibit B
to the
Fund Administration Servicing Agreement
I. Eagle Portal System (a.k.a. the "System", "Advisor Information Source" or
"AIS")
The Eagle Portal is a web-based report delivery system that generates
holdings, position, and tax reports. Data from IDC, CPORT, S&P, and GICs
populate the data warehouse from which reports are generated. Reports can
be customer run or scheduled for automatic delivery to a portal inbox. This
is an internal software application which is maintained and monitored by
internal staff.
II. Duties and Responsibilities of USBFS in connection with the System:
USBFS shall:
A. Provide access to the System 24 hours a day, 7 days a week, subject to
scheduled maintenance and events outside of USBFS' reasonable control.
Unless an emergency is encountered, no routine maintenance will occur
during the hours of 8:00 a.m to 3:00 p.m. Central Time.
B. Supply necessary software to access the System, if necessary.
C. Provide training and connectivity support as outlined in the pricing
model agreed upon by the parties.
D. Maintain and support the System, which shall include providing error
corrections, minor enhancements and interim upgrades to the System and
providing help desk support to provide assistance to the Trust's
employees and agents with their use of the System. Maintenance and
support, as used herein, shall not include (i) access to or use of any
substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made
generally available by USBFS to System customers, as determined solely
by USBFS or (ii) maintenance of customized features. To the extent
possible, USBFS shall notify the Trust of all planned outages and will
perform any necessary maintenance during non-business hours.
E. Provide monthly invoices of fees as stated in the fee schedule in
Exhibit C.
F. Establish systems to guide assist and permit End Users (as defined
below) who access the System from the Trust's web site(s) to
electronically perform inquiries and create and transmit transaction
requests to USBFS.
G. Address and mail, at the Trust's expense, notification and promotional
mailings and other communications provided by the Trust to
shareholders regarding the availability of the System.
H. Issue to each shareholder, financial adviser or other person or entity
who desires to make inquiries concerning the Trust or perform
transactions in accounts with the Trust using the System (the "End
User") a unique user ID and password for authentication purposes,
which may be changed upon an End User's reasonable request in
accordance with policies to be determined by USBFS and the Trust.
USBFS will require the End User to use his/her user ID and password in
order to access the System.
I. Utilize encryption and secure transport protocols intended to prevent
fraud and ensure confidentiality of End User accounts and
transactions. In no event shall USBFS use encryption weaker than a
40-bit RC4 Stream. USBFS will take reasonable actions, including
periodic scans of Internet interfaces and the System, to protect the
Internet web site that provides the System and related network,
against viruses, worms and other data corruption or disabling devices,
and unauthorized, fraudulent or illegal use, by using appropriate
virus detection and destructive software and by adopting such other
security procedures as may be necessary.
J. Establish and provide to the Trust written procedures, which may be
amended from time to time by USBFS with the written consent of the
Trust, regarding End User access to the System. Such written
procedures shall establish security standards for the System,
including, without limitation:
(1) Encryption/secure transport protocols.
(2) End User lockout standards (e.g., lockout after three
unsuccessful attempts to gain access to the System).
(3) User ID and password issuance and reissuance standards.
(4) Access standards, including limits on access to End Users
whose accounts are coded for privilege.
(5) Automatic logoff standards (e.g., if the session is inactive
for longer than 15 minutes).
K. Ensure that the HTTPS Server is accessible via the Internet.
III. Duties and Responsibilities of the Trust in connection with the System:
The Trust shall:
A. Provide and maintain, at its own expense, one or more personal
computers for accessing the System that will accommodate and be
compatible with the software provided by USBFS.
B. Follow any and all procedures necessary to access the System as may be
set forth in any user guide or instruction manual provided and which
may be amended or supplemented from time to time.
C. Provide for the security of all codes and system access mechanisms
relating to the System and implement such security procedures and/or
devices to ensure the integrity of the System when accessed by the
Trust from its principal place of business.
D. Acknowledge that all programs, software, manuals and other written
information relating to the System shall remain the exclusive property
of USBFS at all times.
E. Acknowledge that it is responsible for determining the suitability and
accuracy of the information obtained through its access to the System.
The Trust assumes exclusive responsibility for the consequences of any
instructions it may give to USBFS or the Trust's or End Users' failure
to properly access the System in the manner prescribed by USBFS, and
for the Trust's failure to supply accurate information to USBFS.
G. Promptly notify USBFS of any problems or errors with the System of
which the Trust becomes aware or any changes in policies or procedures
of the Trust requiring changes to the System.
H. Comply, and instruct End Users to comply, with all the End User
enrollment and authorization procedures.
I. Obtain and pay for connectivity to the HTTPS Server.
J. Have the proper equipment and software to enable End Users to access
the HTTPS Server and download the files and obtain all related
maintenance, including support in the event of download problems.
Exhibit C
to the
Fund Administration Servicing Agreement
TO BE INSERTED
