Exhibit (9)(d)
CO-ADMINISTRATION AGREEMENT
AGREEMENT dated as of October 7, 1996 by and among THE XXXXXXXX
VARIABLE ANNUITY FUND, a Delaware business trust (the "Trust"), NBD BANK
("NBD"), a national banking association, and FIRST CHICAGO INVESTMENT
MANAGEMENT COMPANY ("FCIMCO"), a registered investment adviser, and BISYS
LIMITED PARTNERSHIP, d/b/a, BISYS FUND SERVICES (each an "Administrator" and
collectively, the "Administrators").
WHEREAS, the Trust is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Trust desires to retain the Administrators to
provide, as co-administrators, certain administration services for the
investment portfolios of the Trust set forth on Schedule 1 hereto (each a
"Fund" and collectively the "Funds") and the Administrators are willing to
furnish such administration services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained and intending to be legally bound, it is agreed
between the parties hereto as follows:
1. Appointment of Administrators. The Trust hereby appoints
each of the Administrators jointly to provide administration services for the
Funds on the terms and for the period set forth in this Agreement. The
Administrators each accept such respective appointments and agree to perform
the services and duties set forth in Section 3 below in return for the
compensation provided in Section 5 below.
2. Delivery of Documents. The Trust has furnished each of the
Administrators with copies, properly certified or authenticated, of each of
the following documents and will deliver to each Administrator all future
amendments and supplements, if any:
a. The Trust's Amended and Restated Declaration of Trust, as
filed with the Secretary of State of Delaware on May 1, 1992, as amended (the
"Declaration of Trust");
b. The Trust's By-Laws, as amended ("Bylaws");
c. Resolutions of the Trust's Board of Trustees ("Board of
Trustees") authorizing the execution and delivery of this Agreement;
d. The Trust's most recent amendment to its registration
statement under the Securities Act of 1933, as amended, and under the 1940 Act
on Form N-1A as filed with the Securities and Exchange Commission (the
"Commission") and supplements thereto, (such amendment as presently in effect
and as amended or supplemented from time to time, is herein called the
"Registration Statement"); and
e. The Trust's most recent prospectus(es) and statement(s)
of additional information and all amendments and supplements thereto (such
prospectus(es) and statement(s) of additional information and supplements
thereto, as presently in effect and as from time to time amended and
supplemented, are herein called the "Prospectus(es)" and the "Statement(s) of
Additional Information", respectively).
3. Services and Duties. The Administrators enter into the
following covenants jointly and severally with respect to their administration
and duties:
a. Subject to the supervision and control of the Trust's
Board of Trustees, the Administrators shall assist in supervising all aspects
of the Funds' operations, other than those investment advisory functions which
are to be performed by the Trust's investment advisers pursuant to the
Co-Advisory Agreement, those services to be performed by the custodian
pursuant to the Trust's Custodian Agreement, those services to be performed by
the distributor pursuant to the Trust's Distribution Agreement and those
services to be performed by the transfer agent pursuant to the Trust's
Transfer and Dividend Disbursing Agency Agreement. In this regard, the
Administrators' responsibilities include:
(1) Assisting in maintaining office facilities (which
may be in the offices of any of the Administrators or a corporate
affiliate but shall be in such location as the Trust shall reasonably
determine);
(2) Furnishing clerical services and stationary and
office supplies;
(3) Providing for the preparing, supervising and
mailing of confirmations for all purchase and redemption orders to
shareholders of record;
(4) Providing and supervising the operation of an
automated data processing system to process purchase and redemption
orders (the Administrators assume responsibility for the accuracy of
the data transmitted for processing or storage);
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(5) Maintaining a procedure external to the transfer
agent's system to reconstruct lost purchase and redemption data; and
(6) Providing information and distributing written
communications concerning the Funds to their shareholders of record;
handling shareholder problems and calls, including without limitation,
calls relating to shareholder purchases and redemptions and
shareholder inquiries, and maintaining a primary facility for such
telephone services.
b. The Administrators shall prepare or review all sales
literature (advertisements, brochures and shareholder communications) for the
Funds.
c. The Administrators shall participate to the extent
requested by the Trust and its counsel in the periodic updating of the Trust's
Registration Statement; compile data and accumulate information for and
prepare (i) reports to shareholders of record and the Commission (e.g., Annual
and SemiAnnual Reports on Form N-SAR) and (ii) notices pursuant to Rule 24f-2;
and timely file with the Commission and other federal and state agencies,
reports and documents including, without limitation, Annual and SemiAnnual
Reports on Form N-SAR, notices pursuant to Rule 24f-2 and federal and state
tax returns and required tax filings other than those required to be filed by
the Trust's custodian or transfer agent.
d. The Administrators, after consultation with the
distributor and counsel for the Trust, shall determine the jurisdictions in
which the Trust's shares shall be registered or qualified for sale. The
Administrators shall be responsible registering or qualifying shares for sale
under the securities laws of any state, maintaining such registrations or
qualifications, and for preparing compliance filings pursuant to state
securities laws with the advice of the Trust's counsel. Payment of share
registration fees and any fees for qualifying or continuing the qualification
of the Trust or the Funds as a dealer or broker shall be made by the Trust or
the Funds.
e. The Administrators shall monitor, and assist in
developing compliance procedures for the Funds, which will include without
limitation, procedures to monitor compliance with the Funds' investment
objectives, policies and limitations, tax matters, and applicable laws and
regulations.
f. The Administrators shall assist in monitoring the
regulatory and legislative developments which may affect the Trust; assist in
counseling the Trust with respect to regulatory examinations or investigations
of the Trust; and work with the Trust's counsel in connection with regulatory
matters or litigation.
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g. The Administrators agree to maintain all financial
accounts, records, journals, ledgers and schedules for the Trust (other than
those maintained by the Trust's custodian and its transfer agent), and to
install and maintain a system of internal controls appropriate for entities of
the size and complexity of the Trust, and to provide reports, financial
statements and other statistical data as requested from time to time by the
Administrators or by the Trust. In addition, the Administrators shall compute
the Trust's net asset value, net income and net capital gain (loss) in
accordance with the Trust's Prospectus and resolutions of its Board of
Trustees. The Administrators shall act as liaison with the Trust's independent
public accountants and shall provide account analyses, fiscal year summaries
and other audit related schedules. The Administrators shall take all
reasonable action in the performance of its obligations under this Agreement
to assure that the necessary information is made available to such accountants
for the expression of their opinion, as such may be required by the Trust from
time to time.
h. The Administrators shall monitor each Fund's expenses,
including, but not limited to, fund accounting, and shall pay all expenses on
proper authorization from each Fund.
i. The Administrators shall monitor each Fund's status as a
regulated investment company under Subchapter M of the Internal Revenue Code
of 1986, as amended from time to time.
j. The Administrators shall maintain each Fund's fidelity
bond as required by the 1940 Act.
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Administrators agree that all records which they maintain for
the Trust are the property of the Trust and further agree to surrender
promptly to the Trust any of such records upon the Trust's request. The
Administrators agree to maintain a back-up set of accounts and records of the
Trust (which back-up shall be updated on at least a weekly basis) at a
location other than that where the original accounts and records are stored.
The Administrators shall assist the Trust, the Trust's independent auditors,
or, upon approval of the Trust, any regulatory body, in any requested review
of the Trust's accounts and records, and reports by the Administrators or
their independent accountants concerning their accounting system and internal
auditing controls will be open to such entities for audit or inspection upon
reasonable request. There shall be no additional fee for these services.
The Administrators further agree to preserve for the periods prescribed
by Rule 31a-2 under the 1940 Act the records required to be maintained by
Rule 31a-1 under the 1940 Act.
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If the expenses borne by any Fund in any fiscal year exceed the
applicable expense limitations imposed by the securities regulations of any
state in which the Fund's shares are registered or qualified for sale to the
public, the Administrators agree to reimburse such Fund for a portion of any
such excess expense in an amount equal to the portion that the administration
fees otherwise payable by the Fund to the Administrators bear to the total
amount of the investment advisory and administration fees otherwise payable by
the Fund. The expense reimbursement obligation of the Administrators is
limited to the amount of their fees hereunder for such fiscal year, provided,
however, that notwithstanding the foregoing, the Administrators shall
reimburse such Fund for a portion of any such excess expenses in an amount
equal to the proportion that the fees otherwise payable to the Administrators
bear to the total amount of investment advisory and administration fees
otherwise payable by the Fund regardless of the amount of fees paid to the
Administrators during such fiscal year to the extent that the securities
regulations of any state having jurisdiction over the Fund so require. Such
expense reimbursement, if any, will be estimated, reconciled and paid on a
monthly basis.
In performing all of their services and duties as
co-administrators, the Administrators will act in conformity with the
Declaration of Trust, Bylaws, Prospectuses and resolutions and other
instructions of the Trust's Board of Trustees and will comply with the
requirements of the 1940 Act and other applicable federal or state laws.
4. Services Not Exclusive. The services rendered by the
Administrators hereunder are not to be deemed exclusive, and the
Administrators shall be free to render similar services to others so long as
their services under this Agreement are not impaired thereby.
5. Expenses Assumed as Administrators. The Administrators will
bear all expenses incurred by them in performing their services and duties as
co-administrators, except as otherwise expressly provided herein. Other
expenses to be incurred in the operation of the Funds, including taxes,
interest, brokerage fees and commissions, if any, salaries and fees of
officers and trustees who are not officers, directors, shareholders, or
employees of the Administrators, or the Trust's investment advisers or
distributor for the Funds, Commission fees and state blue sky qualification
fees, advisory, fund accounting and administration fees, charges of custodians
and transfer agents, certain insurance premiums, outside auditing and legal
expenses, costs of maintaining corporate existence, typesetting and printing
of Prospectuses for regulatory purposes and for distribution to current
shareholders of the Fund, costs of shareholders' reports and corporate
meetings, out-of-pocket expenses of obtaining price quotations from third
party pricing
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services, and any extraordinary expenses, will be borne by the Trust,
provided, however, that the Trust will not bear, directly or indirectly, the
cost of any activity which is primarily intended to result in the sale of
shares of the Funds, other than the costs associated with the sale of Class B
shares of the Fund pursuant to a distribution agreement and distribution plan.
6. Compensation.
In consideration of services rendered pursuant to this
Agreement, the Trust will pay to NBD and FCIMCO, as agent for the
Administrators, a fee, computed daily and payable monthly, at the annual rate
of 0.15% of the average daily net assets of each Fund. Net asset value shall
be computed in accordance with the Funds' Prospectuses and resolutions of the
Trust's Board of Trustees. The fee for the period from the day of the month
this Agreement is entered into until the end of that month shall be prorated
according to the proportion which such period bears to the full monthly
period. Upon any termination of this Agreement before the end of any month,
the fee for such part of a month shall be pro-rated according to the
proportion which such period bears to the full monthly period and shall be
payable upon the date of termination of this Agreement. Such fee as is
attributable to each Fund shall be a separate charge to such Fund and shall be
the several (and not joint or joint and several) obligation of each such Fund.
The Administrators may from time to time employ or associate
with themselves such person or persons as they may believe to be fitted to
assist them in the performance of this Agreement ("Subcontractors"). The
compensation of such Subcontractors shall be paid by the Administrators, and
no obligation shall be incurred on behalf of the Trust in such respect. The
Administrators shall provide oversight over any Subcontractor(s) who shall in
turn provide services pursuant to an agreement with the Administrators. Any
agreement entered into between the Administrators and a Subcontractor shall
acknowledge that the agreement is for the benefit of the Trust, that the
Subcontractor shall be directly liable and responsible to the Trust for the
performance of its obligations thereunder, and that the Trust may therefore
enforce its rights directly against the Subcontractor. Notwithstanding such
delegation, the Administrators shall continue to be directly liable to the
Trust for the performance of any subcontractor's obligations under such
agreement. In addition to employing Subcontractors, the Administrators may
compensate parties who provide shareholder services or other services pursuant
to contracts entered into directly between such parties and the Trust.
7. Proprietary and Confidential Information. The Administrators
will treat confidentially and as proprietary information of the Trust all
records and other information
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relative to the Trust and prior or present shareholders of the Funds or those
persons or entities who respond to inquiries of the Trust's principal
underwriter concerning investment in the Funds and will not use such records
and information for any purpose other than performance of their
responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where the Administrators 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.
8. Limitations of Liability. No Administrator shall 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 gross 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, Board member, partner, director, employee or agent of an
Administrator, who may be or become an officer, Board member, partner,
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 Administrators' duties as co-administrators
hereunder) to be rendering such services to or acting solely for the Trust and
not as an officer, Board member, partner, director, employee or agent or one
under the control or direction of the Administrators even though paid by
either of them. The Administrators agree that their liability under this
Agreement, as set forth herein, shall be joint and several.
Whenever, in the course of performing their duties under this
Agreement, the Administrators determine, on the basis of information supplied
to the Administrators by the Trust or its authorized agents, that a violation
of applicable law has occurred or that, to their knowledge, a possible
violation of applicable law may have occurred or, with the passage of time,
would occur, the Administrators shall promptly notify the Trust and its
counsel. Liability arising pursuant to this section shall survive termination
of this agreement.
9. Duration and Termination. This Agreement shall become
effective as to each Fund upon the date first above written. Unless sooner
terminated as provided herein, it shall continue with respect to each Fund
until June 30, 1998 ("Initial Term"). Thereafter, if not terminated, this
Agreement shall continue automatically as to the Funds for successive terms of
one year (each a "Renewal Term"), provided such continuance is specifically
approved at least annually (i) by the Trust's Board of Trustees or (ii) by a
vote of a majority of the outstanding voting securities of the Funds, and
provided further that in
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either event such continuance is also approved by a majority of the Trust's
trustees who are not "interested persons" of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting on such
approval. (As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested person" and "assignment" shall have the same
meaning as such terms have in the 1940 Act.) On or after the Initial Term,
either party hereto may terminate this Agreement by sixty (60) days prior
written notice to the other party hereto.
The Trust shall have the right to terminate this Agreement
during the Initial Term or any Renewal Term upon forty-five (45) days written
notice if the Administrators materially breach this Agreement. A material
breach means the failure to perform the terms of this Agreement, whether in
one act or omission or a series of acts or omissions, whether or not related,
which (i) results or reasonably could be expected to result in loss or damage,
including expenses, to the Funds exceeding $50,000 in the aggregate, (ii)
results in the institution of civil or criminal proceedings by the Commission
or other regulator, other than a regular audit or examination, (iii)
constitutes gross negligence, bad faith or willful misconduct, (iv)
constitutes a violation of any law, rule or regulation applicable to the
Funds, or the Administrators or any of their affiliates as to which the
Administrators were required to comply under the terms of the Agreement where
the consequences of such violation could reasonably be expected to result in
the institution of civil or criminal proceedings by the Commission or other
governmental authorities against the Funds, or (v) evidences a quantifiable
and material decline in the overall quality of services, provided that the
Administrators shall have the right to cure the breach set forth in this
clause (v) within thirty (30) days after a written notice setting forth in
detail the nature of the breach, has been delivered to the Administrators;
provided the Administrators shall have the right to cure a breach set forth in
this clause (v) if and only if no more than two other quantifiable and
material breaches under this clause (v) have occurred within the twelve (12)
months prior to the delivery of such notice of the breach of this clause.
In the event of the termination of this Agreement, the
Administrators shall use their best efforts to assist in the transfer of their
responsibilities hereunder to any successor administrator and the
Administrators without additional compensation (it being understood that they
would be reimbursed for their reasonable out-of-pocket expenses) shall remain
responsible, which responsibility shall survive termination of this Agreement,
for all regulatory filings, tax returns and other reports which relate to
periods which concluded prior to the termination.
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10. Amendment of this Agreement. No provision of this Agreement
may be changed, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, discharge
or termination is sought. If a change or discharge is sought against the
Trust, the instrument must be signed by all three (3) Administrators.
11. Assignment. This Agreement will automatically and
immediately terminate in the event of its "assignment." As used in this
Agreement, the term "assignment" shall have the same meaning as such term has
in the 1940 Act.
12. Notices. All notices and other communications hereunder
shall be in writing, shall be deemed to have been given when received or when
sent by telex or facsimile, and shall be given to the following addresses (or
such other addresses as to which notice is given):
To the Administrators:
NBD Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx
First Chicago Investment Management Company
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
BISYS Fund Services
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
To the Fund:
The Xxxxxxxx Variable Annuity Fund
c/o W. Xxxxx XxXxxxxx, III, Esq.
Drinker Xxxxxx & Xxxxx
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
13. Governing Law.
This Agreement shall be construed in accordance with the laws
of the State of Michigan, without reference to principles of conflicts of law,
and with the applicable provisions of the Investment Company Act. To the
extent the applicable law of the State of Michigan or any of the provisions
herein conflict with the applicable provisions of the 1940 Act, the latter
shall control.
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14. Miscellaneous.
a. 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 decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
b. The obligations of the Trust entered into in the name or
on behalf thereof by any of the trustees, representatives or agents are made
not individually, but in such capacities, and are not binding upon any of the
trustees, shareholders or representatives of the Trust personally, but bind
only the Trust property, and all persons dealing with any series of shares in
the Trust must look solely to the Trust property belonging to such series for
the enforcement of any claims against the Trust.
15. Counterparts. This Agreement may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
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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 XXXXXXXX VARIABLE ANNUITY FUND
By:
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NBD BANK
By:
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FIRST CHICAGO INVESTMENT MANAGEMENT COMPANY
By:
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BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc., general partner
By:
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SCHEDULE 1
LIST OF PORTFOLIOS
MANAGED ASSETS BALANCED FUND
GROWTH AND VALUE FUND
MID CAP OPPORTUNITY FUND
GROWTH FUND
MONEY MARKET FUND
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