Exhibit 23(h)(1)
FORM OF TRANSFER AGENCY AGREEMENT
AMENDED AND RESTATED AGREEMENT made this 1st day of January, 2003, between
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST (the "Trust"), a Massachusetts business
trust, and BISYS FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation.
WHEREAS, the Trust and BISYS entered into a Transfer Agency Agreement dated
October 1, 2000 (the "2000 Agreement"), which agreement subsequently terminated,
whereby BISYS agreed to perform certain services for each series of the Trust,
as now in existence or as hereafter may be established from time to time
(individually referred to herein as a "Fund" and collectively as the "Funds");
WHEREAS, the Trust desires that BISYS perform such transfer agency services
for the Trust and each of the Funds;
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF BISYS.
The Trust hereby retains BISYS to act as the transfer agent for the
Funds to perform (i) the transfer agent services set forth in Schedule A hereto,
(ii) such special services incidental to the performance of such services as may
be agreed to by the parties from time to time (for such fees as the parties may
agree as aforesaid) and (iii) such additional services as may be agreed to by
the parties from time to time and set forth in an amendment to said Schedule A
(for such fees as the parties may agree as aforesaid). BISYS hereby accepts such
employment to perform the services described herein.
BISYS may, in its discretion, appoint in writing other parties
qualified to perform transfer agency services reasonably acceptable to the Trust
(individually, a "Sub-transfer Agent") to carry out some or all of its
responsibilities under this Agreement with respect to a Fund; provided, however,
that the Sub-transfer Agent shall be the agent of BISYS and not the agent of the
Trust or such Fund, and that BISYS shall be fully responsible for the acts of
such Sub-transfer Agent and shall not be relieved of any of its responsibilities
hereunder by the appointment of such Sub-transfer Agent.
2. FEES.
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The Trust shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in,
Schedule B hereto. Fees for any additional services to be provided by BISYS
pursuant to an amendment to Schedule A hereto shall be subject to mutual
agreement at the time such amendment to Schedule A is proposed.
3. REIMBURSEMENT OF EXPENSES.
In addition to paying BISYS the fees described in Section 2 hereof,
the Trust agrees to reimburse BISYS for BISYS's reasonable out-of-pocket
expenses in providing services hereunder, including without limitation, the
following:
(a) All freight and other delivery and bonding charges incurred by
BISYS in delivering materials to and from the Trust and in
delivering all materials to shareholders;
(b) All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by BISYS in
communication with the Trust, the Trust's investment adviser or
custodian, dealers, shareholders or others as required for BISYS
to perform the services to be provided hereunder;
(c) Costs of postage, couriers, stock computer paper, statements,
labels, envelopes, checks, reports, letters, tax forms, proxies,
notices or other form of printed material which shall be required
by BISYS for the performance of the services to be provided
hereunder;
(d) The cost of microfilm or microfiche of records or other
materials; and
(e) Any expenses BISYS shall reasonably incur at the written
direction of an officer of the Trust (other than an officer of
the Trust who is also an employee of BISYS or Xxxxxx Xxxx)
thereunto duly authorized.
4. EFFECTIVE DATE.
This Agreement shall become effective as of the date first written
above (the "Effective Date").
5. TERM.
The initial term of this Agreement (the "Initial Term") shall be for a
period commencing on the date first written above and ending on September 30,
2005. Thereafter, it shall be renewed automatically for successive three-year
terms unless written notice not to renew is given by the non-renewing party to
the other party at least 90 days prior to the expiration of the then-current
term. After such termination, for so long as BISYS, with the written consent of
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the Trust, in fact continues to perform any one or more of the services
contemplated by this Agreement or any Schedule or exhibit hereto, the provisions
of this Agreement, including without limitation the provisions dealing with
indemnification, shall continue in full force and effect. Fees and reasonable
out-of-pocket expenses incurred by BISYS but unpaid by the Trust upon
termination of this Agreement shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Trust, in addition to the fees and disbursements provided by Sections 2 and 3
hereof, the amount of all of BISYS's reasonable costs in connection with BISYS's
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its distributor or investment adviser and/or other
parties, of the Trust's property, records, instruments and documents, or any
copies thereof. To the extent that BISYS may retain in its possession copies of
any Trust documents or records subsequent to such termination which copies had
not been requested by or on behalf of the Trust in connection with the
termination process described above, BISYS will provide the Trust with
reasonable access to such copies; provided, that BISYS shall be reimbursed for
reasonable costs incurred in connection therewith.
In the event of a material breach of this Agreement by either party,
the non-breaching party shall notify the breaching party in writing of such
breach and, upon receipt of such notice, the breaching party shall have 45 days
to remedy the breach. In the event the breach is not remedied within such time
period, the nonbreaching party may immediately terminate this Agreement.
The Service Standards set forth in Schedule D hereof are not intended
and shall not be construed to impair, limit or affect in any way the Trust's
right to terminate this Agreement for material breach as set forth above.
6. UNCONTROLLABLE EVENTS.
BISYS assumes no responsibility hereunder, and shall not be liable for
any damage, loss of data, delay or any other loss whatsoever caused by events
beyond its reasonable control.
7. LEGAL ADVICE.
BISYS shall notify the Trust at any time BISYS believes that it is in
need of the advice of counsel (other than counsel in the regular employ of BISYS
or any affiliated companies) with regard to BISYS's responsibilities and duties
pursuant to this Agreement; and after so notifying the Trust, BISYS, at its
discretion, shall be entitled to seek, receive and act upon advice of legal
counsel of its choosing (which counsel shall be reasonably acceptable to the
Trust) and BISYS shall in no event be liable to the Trust or any Fund or any
shareholder or beneficial owner of the Trust for any action reasonably taken
pursuant to such advice.
8. INSTRUCTIONS.
Whenever BISYS is requested or authorized to take action hereunder
pursuant to
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instructions from a shareholder, or a properly authorized agent of a shareholder
("shareholder's agent"), concerning an account in a Fund, BISYS shall be
entitled to rely upon any certificate, letter or other instrument or
communication, reasonably believed by BISYS to be genuine and to have been
properly made, signed or authorized by an officer or other authorized agent of
the Trust or by the shareholder or shareholder's agent, as the case may be, and
shall be entitled to receive as conclusive proof of any fact or matter required
to be ascertained by it hereunder a certificate signed by an officer of the
Trust or any other person authorized by the Trust's Board of Trustees or by the
shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the Funds to the extent that such services
are described therein unless BISYS receives written instructions to the contrary
in a timely manner from the Trust.
The Trust acknowledges receipt of a copy of BISYS's policy related to
the acceptance of trades for prior day processing (the "BISYS As-of Trading
Policy"). BISYS may amend the BISYS As-of Trading Policy from time to time in
its sole discretion. A copy of each such amendment that is material to the
services BISYS performs for any Fund shall be delivered to the Trust promptly
after the adoption thereof. BISYS may apply the BISYS As-Of Trading Policy
whenever applicable, unless BISYS agrees in writing to process trades according
to such other as-of trading policy as may be adopted by the Trust and furnished
to BISYS by the Trust.
The parties may amend any procedures adopted, approved or set forth
under this Agreement by mutual written agreement. BISYS may conclusively assume
that any special procedure which has been approved by an executive officer of
the Trust (other than an officer or employee of BISYS) does not conflict with or
violate any requirements of the Trust's Declaration of Trust, By-Laws or
then-current prospectuses, or any rule, regulation or requirement of any
regulatory body to the extent such rule, regulation or requirement is applicable
to the Trust. The Trust may conclusively assume that any special procedure which
has been approved by an executive officer of BISYS (other than an officer or
employee of the Trust) does not conflict with or violate any rule, regulation or
requirement of any regulatory body to the extent such rule, regulation or
requirement is applicable to BISYS.
9. STANDARD OF CARE; RELIANCE ON RECORDS AND INSTRUCTIONS;
INDEMNIFICATION.
BISYS shall use its best efforts to ensure the accuracy of all
services performed under this Agreement, but shall not be liable to the Trust
for any action taken or omitted by BISYS in the absence of bad faith, willful
misfeasance, negligence or reckless disregard by it of its obligations and
duties. The Trust agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, whether groundless or otherwise, and from and
against any and all judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other reasonable expenses of every nature and
character (collectively, "Losses") arising out of or in any way relating to
BISYS's actions taken or nonactions with respect to the performance of
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services under this Agreement or based, if applicable, upon reasonable reliance
on information, records, instructions or requests given or made to BISYS by a
duly authorized representative of the Trust or the investment adviser and on any
records provided by any fund accountant or custodian thereof; provided that this
indemnification shall not apply to actions or omissions of BISYS, its employees,
agents, directors, officers and nominees in cases of their own bad faith,
willful misfeasance, negligence or reckless disregard by any or all of them of
BISYS's obligations and duties; and further provided that prior to confessing
any claim against it which may be the subject of this indemnification, BISYS
shall give the Trust written notice of and a reasonable opportunity to defend
against said claim in its own name or in the name of BISYS.
BISYS agrees to indemnify and hold harmless the Trust, its employees,
agents, Trustees, officers and nominees from and against any and all Losses
arising out of or in any way relating to BISYS's or its employees', agents',
directors', officers' and nominees' bad faith, willful misfeasance, negligence
or reckless disregard by any or all of them of BISYS's obligations and duties
with respect to the performance of services under this Agreement; provided,
that, prior to confessing any claim against it which may be the subject of this
indemnification, the Trust shall give BISYS written notice of and a reasonable
opportunity to defend against said claim in its own name or in the name of the
Trust.
The rights hereunder shall include the right to reasonable advances of
defense expenses in the event of any pending or threatened litigation with
respect to which indemnification hereunder may ultimately be merited. In order
that the indemnification provision contained herein shall apply, however, it is
understood that if in any case the indemnifying party may be asked to indemnify
or hold the other party harmless, the indemnifying party shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnified party will use all reasonable
care to identify and notify the indemnifying party promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification against the indemnifying party, but failure to do so
in good faith shall not affect the rights hereunder.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnity provision. If the indemnifying
party elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by the indemnifying party and satisfactory to the
other party, whose approval shall not be unreasonably withheld. In the event
that the indemnifying party elects to assume the defense of any suit and retain
counsel, the indemnified party shall bear the fees and expenses of any
additional counsel retained by it. If the indemnifying party does not elect to
assume the defense of a suit, it will reimburse the indemnified party for the
reasonable fees and expenses of any counsel retained by the other party.
10. RECORD RETENTION AND CONFIDENTIALITY.
BISYS shall keep and maintain on behalf of the Trust all books and
records which
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the Trust or BISYS is, or may be, required to keep and maintain pursuant to any
applicable statutes, rules and regulations, including without limitation Rules
31a-1 and 31a-2 under the Investment Company Act of 1940, as amended (the "1940
Act"), relating to the maintenance of books and records in connection with the
services to be provided hereunder. BISYS further agrees that all such books and
records shall be the property of the Trust and to make such books and records
available for inspection by the Trust or by the Securities and Exchange
Commission (the "Commission") at reasonable times and otherwise to keep
confidential all books and records and other information relative to the Trust
and its shareholders, except when requested to divulge such information by
duly-constituted authorities or court process, or requested by a shareholder or
shareholder's agent with respect to information concerning an account as to
which such shareholder has either a legal or beneficial interest or when
requested by the Trust, the shareholder, or shareholder's agent, or the dealer
of record as to such account.
11. REPORTS.
BISYS will furnish to the Trust and to its properly authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Trust in writing,
such reports at such times as are prescribed in Schedule C attached hereto, or
as subsequently agreed upon by the parties pursuant to an amendment to Schedule
C.
12. RIGHTS OF OWNERSHIP.
All computer programs and procedures developed to perform services
required to be provided by BISYS under this Agreement are the property of BISYS.
All records and other data except such computer programs and procedures are the
exclusive property of the Trust and all such other records and data will be
furnished to the Trust in appropriate form as soon as practicable after
termination of this Agreement for any reason.
13. RETURN OF RECORDS.
BISYS may at its option at any time, and shall promptly upon the
Trust's demand, turn over to the Trust and cease to retain BISYS's files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS in the performance of its services or for
its legal protection. If not so turned over to the Trust, such documents and
records will be retained by BISYS for six years from the year of creation. At
the end of such six-year period, such records and documents will be turned over
to the Trust unless the Trust authorizes in writing the destruction of such
records and documents.
14. BANK ACCOUNTS.
BISYS is hereby granted such power and authority as may be necessary
to establish one or more bank accounts for the Trust with such bank or banks as
are selected or approved by the Trust, as may be necessary or appropriate from
time to time in connection with the services
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performed by BISYS. The Trust shall be deemed to be the customer of such Bank or
Banks for all purposes in connection with such accounts. To the extent that the
performance of services hereunder shall require BISYS to disburse amounts from
such accounts in payment of dividends, redemption proceeds or for other
purposes, the Trust shall provide such bank or banks with all instructions and
authorizations necessary for BISYS to effect such disbursements.
15. REPRESENTATIONS OF THE TRUST.
The Trust certifies to BISYS that: (a) as of the close of business on
the Effective Date, each Fund which is in existence as of the Effective Date has
authorized unlimited shares, and (b) by virtue of its Agreement and Declaration
of Trust, as amended, shares of each Fund which are redeemed by the Trust may be
sold by the Trust from its treasury, and (c) this Agreement has been duly
authorized by the Trust and, when executed and delivered by the Trust, will
constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust 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 general
principles of equity.
The Trust also certifies to BISYS that (a) the Trust has adopted a
written anti-money laundering program (the "AML Program") that has been
submitted to BISYS pursuant to Section 18, and has appointed an anti-money
laundering compliance officer (the "AML Compliance Officer") who is an officer
of the Trust, (b) the AML Program and the designation of the AML Compliance
Officer have been approved by the Board, (c) the delegation of certain services
(the "AML Services") thereunder to BISYS, as provided in Section 22, has been
approved by the Board, and (d) the Trust will submit any material amendments to
the AML Program to BISYS for BISYS's review prior to adoption in accordance
with, and subject to BISYS's consent pursuant to, Section 20.
16. REPRESENTATIONS OF BISYS.
BISYS represents and warrants that: (a) BISYS has been in, and shall
continue to be in, substantial compliance with all provisions of law, including
Section 17A(c) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), required in connection with the performance of its duties under this
Agreement; and (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other data of the
Trust and BISYS's records, data, equipment, facilities and other property used
in the performance of its obligations hereunder are adequate and that it will
make such changes therein from time to time as are required for the secure
performance of its obligations hereunder.
BISYS also represents and warrants that it has adopted and will
maintain a written program concerning the anti-money laundering services it
provides to various clients, and that its policies and procedures are reasonably
adequate for it to provide the AML Services to be performed by it for the Trust.
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17. INSURANCE.
BISYS shall notify the Trust should its insurance coverage with
respect to professional liability or errors and omissions coverage be canceled
or reduced. Such notification shall include the date of change and the reasons
therefor. BISYS shall notify the Trust 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 from time to time as may be
appropriate of the total outstanding claims made by BISYS under its insurance
coverage.
18. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS.
The Trust has furnished to BISYS, or will furnish to BISYS within 90
days following the Effective Date, the following:
(a) Copies of the Agreement and Declaration of Trust of the Trust and
of any amendments thereto, certified by the proper official of
the state in which such Declaration has been filed.
(b) Copies of the following documents:
1. The Trust's By-Laws and any amendments thereto.
2. Certified copies of resolutions of the Board of Trustees
covering the following matters:
A. Approval of this Agreement and authorization of a
specified officer of the Trust to execute and deliver
this Agreement and authorization for specified officers
of the Trust to instruct BISYS hereunder; and
B. Authorization of BISYS to act as Transfer Agent for the
Trust on behalf of the Funds.
(c) A list of all officers of the Trust, with the Trust's AML
Compliance Officer included among the officers therein, and any
other persons (who may be associated with the Trust or its
investment advisor), together with specimen signatures of those
officers and other persons who (except as otherwise provided
herein to the contrary) shall be authorized to instruct BISYS in
all matters.
(d) Two copies of the following (if such documents are employed by
the Trust):
1. Prospectuses and Statement of Additional Information;
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2. Distribution Agreement; and
3. All other forms commonly used by the Trust or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(e) A certificate as to shares of beneficial interest of the Trust
authorized, issued, and outstanding as of the Effective Date of
BISYS's appointment as Transfer Agent (or as of the date on which
BISYS's services are commenced, whichever is the later date) and
as to receipt of full consideration by the Trust for all shares
outstanding, such statement to be certified by the Treasurer of
the Trust.
(f) A copy of the Trust's written AML Program, including related
policies and procedures.
19. INFORMATION FURNISHED BY BISYS.
BISYS has furnished to the Trust the following:
(a) BISYS's Articles of Incorporation.
(b) BISYS's By-Laws and any amendments thereto.
(c) Certified copies of actions of BISYS covering the following
matters:
1. Approval of this Agreement, and authorization of a specified
officer of BISYS to execute and deliver this Agreement;
2. Authorization of BISYS to act as Transfer Agent for the
Trust.
(d) A copy of the most recent independent accountants' report
relating to internal accounting control systems as filed with the
Commission pursuant to Rule 17Ad-13 under the Exchange Act.
(e) The current BISYS "As-of" Trading Policy.
20. AMENDMENTS TO DOCUMENTS.
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 18 hereof forthwith upon
such amendments or changes becoming effective. Notwithstanding anything in this
Agreement to the contrary, if amendments are made to such documents that might
affect the services provided by BISYS hereunder, the
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procedures employed in providing such services or might otherwise affect the
duties of BISYS hereunder BISYS shall not be obligated to comply with such
amendment or change unless it consents to do so, which consent will not be
unreasonably withheld, and provided that such consent may be contingent on the
parties negotiating additional fees and/or expenses to be paid to BISYS.
21. RELIANCE ON AMENDMENTS.
(a) BISYS may rely on any amendments to or changes in any of the
documents and other items to be provided by the Trust pursuant to Sections 18
and 20 of this Agreement, and the Trust hereby agrees to indemnify and hold
harmless BISYS from and against any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees
and other reasonable expenses of every nature and character which may result
from actions or omissions on the part of BISYS in reasonable reliance upon such
amendments and/or changes, provided that BISYS shall remain subject to the
applicable standards of care as set forth in this Agreement regarding its
actions taken or nonactions in complying properly with such amendment or change.
(b) In the event such amendments or changes relate to services
provided by BISYS hereunder or might affect the duties of BISYS hereunder, BISYS
shall have no liability for failure to comply with or take any action in
conformity with such amendments or changes unless the Trust first obtains
BISYS's written consent in accordance with Section 20 above.
22. COMPLIANCE WITH LAW.
Except for the obligations of BISYS set forth in Section 10 hereof,
the Trust assumes full responsibility for the preparation, contents, and
distribution of each prospectus of the Trust as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, and any other laws, rules and regulations of governmental
authorities having jurisdiction. BISYS shall have no obligation to take
cognizance of any laws relating to the sale of the Trust's shares. The Trust
represents and warrants that no shares of the Trust will be offered to the
public until the Trust's registration statement under the 1933 Act and the 1940
Act has been declared or becomes effective.
The Trust acknowledges that it is a financial institution subject to
the law entitled United and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of 2001 and
the Bank Secrecy Act (collectively, the "AML Acts") and shall comply with the
AML Acts and applicable regulations adopted thereunder (collectively, the
"Applicable AML Laws") in all relevant respects, subject to the delegation of
certain responsibilities to BISYS, as provided in the next paragraph below.
The Trust hereby delegates to BISYS the performance, on behalf of the
Trust, of the AML Services set forth under Item 6 of Schedule A as concerns the
shareholder accounts maintained by BISYS pursuant to this Agreement. BISYS
agrees to the foregoing delegation
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and agrees to perform such services in accordance with the Trust's AML Program.
In connection therewith, BISYS agrees to maintain policies and procedures, and
related internal controls, that are consistent with the Trust's AML Program and
the requirement that the Trust employ procedures reasonably designed to achieve
compliance with the Applicable AML Laws, including the requirement to have
policies and procedures that can be reasonably expected to detect and cause the
reporting of transactions under Section 5318 of the Bank Secrecy Act.
The parties acknowledge and agree that Xxxx Xxxxxxxxx Funds
Distributor, Inc., an affiliate of BISYS, has obligations under Applicable AML
Laws in connection with its registration as a broker-dealer that are independent
and separate from those of BISYS hereunder, and further, that this Agreement is
unrelated to and shall have no effect on any such obligations of Xxxx Xxxxxxxxx
Funds Distributor, Inc.
23. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to it at AXA Xxxxxxxxx Investment
Management LLC, 0 Xxxxxx Xxx, Xxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxxx X. Xxxxx,
Esq., with a copy to X.X. Xxxxxxxxx, Esq., Ropes & Xxxx, Xxx Xxxxxxxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000; if to BISYS, to it at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000, Attn: President, or at such other address as such
party may from time to time specify in writing to the other party pursuant to
this Section.
24. HEADINGS.
Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
25. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Section 25 shall not limit or in any way affect
BISYS's right to appoint a Sub-transfer Agent pursuant to Section 1 hereof. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
26. GOVERNING LAW AND MATTERS RELATING TO THE TRUST AS A MASSACHUSETTS
BUSINESS TRUST.
This Agreement shall be governed by and its provisions shall be
construed in accordance with the laws of the State of Ohio. It is expressly
agreed that the obligations of the Trust hereunder shall not be binding upon any
of the Trustees, shareholders, nominees, officers, agents or employees of the
Trust personally, but shall bind only the property of the Trust. The execution
and delivery of this Agreement have been authorized by the Trustees, and this
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Agreement has been signed and delivered by an authorized officer of the Trust,
acting as such, and neither such authorization by the Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the property of the Trust as provided in the Trust's Agreement
and Declaration of Trust, which is on file with the Secretary of The
Commonwealth of Massachusetts.
27. PRIVACY.
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS in the course of performing its duties as
transfer agent, shall be considered confidential information. BISYS shall not
give, sell or in any way transfer such confidential information to any person or
entity, other than affiliates of BISYS except as (i) required by law (including
Applicable AML Laws) or (ii) permitted by law and necessary or desirable for
BISYS to perform its duties hereunder. BISYS represents, warrants and agrees
that it has in place and will 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 consumers or customers of the Trust. The Trust
represents to BISYS that it has adopted a Statement of its privacy policies and
practices as required by Regulation S-P and agrees to provide BISYS with a copy
of that Statement upon request or if there is any change thereto.
28. CONFIDENTIAL INFORMATION.
Each party acknowledges that it may acquire knowledge and information
relating to the other party and its affiliates which is not generally known by
others including, but not limited to, information pertaining to business plans,
prior, present or potential shareholders, employees, customers and/or suppliers,
and that all such knowledge and information acquired or developed is and shall
be confidential and proprietary information (all such confidential and
proprietary information is herein collectively referred to as the "Confidential
Information"). Each party agrees to hold the Confidential Information in strict
confidence, to refrain from directly or indirectly disclosing it to others or
using it in any way except for purposes of performing services hereunder, and to
prevent any unauthorized person access to it either before or after termination
of this Agreement, without the prior written consent of the other party. Both
parties further agree to take all action reasonable and necessary to protect the
confidentiality of the Confidential Information. The parties shall use their
best efforts to have their officers, partners, employees and agents agree to the
terms of this Section. The obligations of the parties contained in this section
shall survive termination of this Agreement. Neither party's confidentiality
obligations under this provision shall apply to such information that (i) was in
the public domain or available to a third party without restrictions at or prior
to the time such information was made known to such party, (ii) had been
independently known to such party at the time of disclosure from persons who
were not subject to similar confidentiality obligations, or (iii) is required to
be disclosed by law (except that each party will use best efforts to give the
other party written notice prior to any such disclosure).
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
By:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
----------------------------
Title:
-------------------------
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Dated: January 1, 2003
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
AND
BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENCY SERVICES
1. SHAREHOLDER TRANSACTIONS
a. Process shareholder purchase and redemption orders.
b. Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions.
c. Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
d. Issue periodic statements for shareholders.
e. Process transfers and exchanges.
f. Process dividend payments, including the purchase of new shares,
through dividend reimbursement.
2. SHAREHOLDER INFORMATION SERVICES
a. Make information available to shareholder servicing unit and other
remote access units regarding trade date, share price, current
holdings, yields, and dividend information.
b. Produce detailed history of transactions through duplicate or special
order statements upon request.
c. Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders.
d. Provide toll-free lines for direct shareholder use, plus customer
liaison staff with on-line inquiry capacity.
A-1
3. COMPLIANCE REPORTING
a. Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers and the States in which the
Fund is registered.
b. Prepare and distribute appropriate Internal Revenue Service forms for
corresponding Fund and shareholder income and capital gains.
c. Issue tax withholding reports to the Internal Revenue Service.
4. DEALER/LOAD PROCESSING (IF APPLICABLE)
a. Calculate fees due under 12b-1 plans for distribution and marketing
expenses and any shareholder servicing fees.
5. SHAREHOLDER ACCOUNT MAINTENANCE
a. Maintain all shareholder records for each account in the Trust.
b. Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
c. Record shareholder account information changes.
d. Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
a. Verify shareholder identity upon opening new accounts.
b. Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Trust's AML Program, and make the same
available for inspection by (i) the Trust's AML Compliance Officer,
(ii) any auditor of the Trust's AML Program or related procedures,
policies or controls that has been designated by the Trust in writing,
or (iii) regulatory or law enforcement authorities, and otherwise make
said records or other documents available at the direction of the
Trust's AML Compliance Officer.
A-2
SCHEDULE B
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
AND
BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENT FEES
BISYS shall be entitled to receive an annual account maintenance fee of
$18.00 per shareholder account which is in existence at any time during the
month for which payment is made, such fee to be paid in equal monthly
installments. BISYS shall be entitled to receive an annual closed account fee of
$5.00 for each closed shareholder account maintained in its records during the
year, including those shareholder accounts which have a zero balance during any
portion of the year. The annual account maintenance an closed account fees set
forth above shall be subject to a minimum annual aggregate fee of $12,000 per
Fund.
In addition, BISYS shall be entitled to receive an annual fee of $4,000 per
Fund for each additional class of such Fund in excess of 4 classes.
ADDITIONAL SERVICES:
Additional services such as XXX processing, development of interface
capabilities, servicing of 403(b) and 408(c) accounts, management of cash sweeps
between DDAs and mutual fund accounts are subject to additional fees which will
be quoted upon request. Programming costs or database management fees for
special reports or specialized processing will be quoted upon request.
OUT-OF-POCKET EXPENSES:
BISYS shall be entitled to be reimbursed for the out-of-pocket expenses set
forth in Section 3 of the Transfer Agency Agreement to which this Schedule B is
attached.
B-1
SCHEDULE C
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
AND
BISYS FUND SERVICES OHIO, INC.
REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
a. Beginning Balance
b. Dealer Transactions
c. Shareholder Transactions
d. Reinvested Dividends
e. Exchanges
f. Adjustments
g. Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants describing
control structure policies and procedures relating to transfer agency
operations pursuant to AICPA Statement on Auditing Standards Number 70.
8. Such special reports and additional information that the parties may agree
upon, from time to time.
C-1
SCHEDULE D
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
AND
BISYS FUND SERVICES OHIO, INC.
SERVICE STANDARDS
Pursuant to Section 1 of this Agreement, BISYS has agreed to perform the
services described in this Agreement in accordance with the service standards
set forth on page D-2 of this Schedule D. The parties agree that such service
standards may be revised, from time to time, by mutual agreement.
Each of the service standards will be monitored by a Quality Assurance team. In
the event BISYS fails to meet a service standard in any particular month, BISYS
agrees to take appropriate corrective measures within the following month in
order to be in compliance with the appropriate standard at the end of such
month; provided, however, that the foregoing requirement shall not apply in
those instances in which BISYS's failure to meet a service standard was due to
circumstances beyond its control.
In the event BISYS fails to meet any one "Tier 1" item or any three "Tier 2"
items, as identified within the service standards set forth on page D-2 of this
Schedule D, (except for any failure due to circumstances beyond its control) in
three consecutive months, the fee payable to BISYS hereunder shall be reduced
retroactively by five percent (5%) or such lower amount as the parties shall
agree upon for the third of those three months. If such failure occurs in four
or more consecutive months, the fee payable to BISYS hereunder shall be reduced
retroactively by ten percent (10%) or such lower amount as the parties shall
agree upon for the fourth of those months and each successive month until such
failure is satisfactorily remedied.
D-1
BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENCY SERVICE STANDARDS
FOR
XXXX XXXXXXXXX VARIABLE INSURANCE TRUST
TIER 1
ITEM STANDARD
------------------------------------- ---------------------------------------
New Account Quality 95% accuracy rate
Financial Transactions Quality 98% accuracy rate
Incoming Calls 85% answered in twenty (20) seconds
Abandon Rate Under 3%
TIER 2
ITEM STANDARD
------------------------------------- ---------------------------------------
Non-Financial Transaction Quality 98% accuracy rate
Correspondence - financial impact 100% responded to in one (1) business day
Correspondence - non-financial impact 100% responded to in three (3) business days
Average Answer Speed 12 seconds
Confirmations 100% mailed in three (3) business days
Statements 100% mailed in five (5) business days
D-2
