EXHIBIT (h)10
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 7th of August 2003 by and
between BenefitsCorp Equities, Inc. ("BCE"), a Delaware corporation having its
principal office and place of business at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxx
Xxxxxxx, Xxxxxxxx, 00000, Northwestern Mutual Investment Services, LLC ("NMIS"),
a Wisconsin limited liability company having its principal office and place of
business at Suite 300, 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 and
Xxxxx Street Funds, Inc., a Maryland corporation having its principal office and
place of business at 000 X. Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 (the
"Fund").
WHEREAS, NMIS, a registered broker/dealer, is the principal underwriter,
to the Fund, an open-end investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the separate series of the
Fund listed on Exhibit A (the "Portfolios"); and
WHEREAS, through a separate agreement, BCE, a registered broker/dealer and
member of the National Association of Securities Dealers ("NASD"), has
contractually agreed to provide recordkeeping and administrative services to
retirement plans that participate in American Funds Distributors, Inc.'s ("AFD")
full service recordkeeping program (the "Program") for such plans; and
WHEREAS, through a separate agreement, AFD has agreed to permit plan
sponsors of retirement plans that participate in the Program and for which a
registered representative of NMIS is the designated representative ("Plans" or
"Account Holders") to include as investment options within such Plans the
Portfolios; and
WHEREAS, BCE desires to provide the Fund the administrative and
recordkeeping services specified herein (the "Services") with respect to Account
Holders which have allocated assets to one or more Portfolios; and
WHEREAS, the Fund recognizes that the Services provided by BCE would
otherwise have to be provided by the Fund, its transfer agent or other Fund
agent.
NOW THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties agree as follows:
Article 1 TERMS OF APPOINTMENT
Section 1.1. Subject to the terms and conditions set forth in this
Agreement, and any Exhibits attached hereto, BCE agrees to perform the Services
contemplated by this Agreement solely with respect to Account Holders which may
from time to time purchase or sell Portfolio shares.
Section 1.2. The parties hereto agree that the Services are
administrative/recordkeeping services but are not distribution related services
or investment advisory services.
Section 1.3. BCE agrees that it shall maintain and preserve all records
required by this Agreement to be maintained and preserved in connection with
providing the Services, and shall otherwise comply with all laws, rules and
regulations applicable to the Services. Upon written request of NMIS or the
Fund, BCE agrees to provide copies of: all historical records relating to
Account Holder transactions, any data relating to written communication
regarding the Fund or the Portfolios to or from the Account Holders, and any
other materials, as may reasonably be requested to enable NMIS or the Fund or
their representatives and agents to monitor and review the Services, or to
comply with any request of the board of directors (collectively, the
"Directors") of the Fund or NMIS or of a governmental body, self-regulatory
organization or a shareholder. Such copies will be provided at the expense of
NMIS. BCE agrees that it shall permit NMIS or the Fund or their representatives
and agents, upon 72 hours prior notice and during regular business hours, to
have reasonable access to BCE's personnel and records to monitor the performance
of the Services.
Section 1.4. The provisions of this Agreement shall in no way limit the
authority of the Fund to take such action as it may deem appropriate or
advisable in connection with all matters relating to the operations of the Fund
and/or the sale of the Portfolios' shares.
Section 1.5. The parties hereto agree that: the Services provided by BCE
are not in the capacity of a sub-transfer agent for NMIS or the Fund as that
term is defined pursuant to Rule 17A et. seq. of the 1934 Act; the Fund will not
list BCE as a sub-transfer agent on any required filings made by its transfer
agent or in any Fund prospectus; and BCE shall not be responsible for filing any
reports with respect to information that pertains to the Fund.
Section 1.6. In no event shall BCE be required or authorized to
countersign any securities, monitor the issuance of securities with a view to
preventing unauthorized issuance, register the transfer of any securities,
exchange or convert any securities or transfer record ownership of such
securities by book entry or otherwise, except as stated herein.
Section 1.7. NMIS, the Fund and BCE agree that each intends to clear
trades through, and make use of, the National Securities Clearing Corporation's
Defined Contribution Clearing & Settlement Service or FundSERV (collectively the
"NSCC"). Therefore, effective at such time as the parties are operating under
the NSCC, all information shall be passed through the NSCC. This Agreement shall
incorporate by reference the terms and responsibilities of the Trading and NSCC
Fund/SERV Networking Agreement (the "NSCC Agreement") between BCE, the Fund and
NMIS, dated as of even date herewith.
Article 2 FEES AND EXPENSES
Section 2.1. For performance of the Services, as further defined in
Article 5, by BCE, or its affiliates, on behalf of the Account Holders, the Fund
agrees to pay BCE an annual asset based maintenance fee, as set out in the fee
schedule attached hereto as Exhibit B. Such fee will not be payable from any
distribution fees set aside by the Fund.
Section 2.2. Upon termination of this Agreement, the fee described in
Section 2.1 shall remain payable and due so long as there remain any assets
invested in the Fund in any manner by the Account Holders as contemplated by the
Agreement. The Fund may modify the rate of the fee described above only upon 120
days' written notice to BCE prior to the end of any calendar year, with such
revised rate becoming effective as of the 1st of January following any such
calendar year.
Section 2.3. Such fee shall be due and payable automatically within
forty-five (45) days after the last day of the quarter to which such payment
relates. In the event such fee is not paid by such time, interest, in addition
to the amount due, at the rate of six (6)% annually (or 1/2 of one (1) percent
per month outstanding pro rated for any applicable period if less than one year)
shall be payable and owed until payment is made.
Section 2.4. The Fund will calculate the asset balance for each day on
which the fees are to be paid pursuant to this Agreement with respect to each
applicable Portfolio. BCE shall have the right, upon request, to reasonably
audit the preparation of such calculation.
Article 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF BCE
Section 3.1. BCE represents and warrants and covenants to NMIS and the
Fund that:
(a) BCE is a corporation duly organized and existing and in good
standing under the laws of the state of Delaware.
(b) BCE is duly qualified and has all requisite licenses and authority
to carry on its business in Delaware and in all other jurisdictions
in which it conducts business; and it is a member in good standing
of the NASD.
(c) BCE is authorized to enter into and perform this Agreement, and the
performance of its obligations hereunder will not violate or
conflict with any governing documents or agreements of BCE or any
applicable law, rule, or regulation.
(d) BCE has and will continue to have access to the necessary
facilities, equipment and personnel to perform the Services in
accordance with the best industry practice.
(e) BCE shall promptly notify NMIS and the Fund in the event that it is,
for any reason, unable to perform any of its obligations under this
Agreement.
(f) the Account Holder records to be made and maintained by BCE will be
made, maintained and made available in accordance with applicable
law.
(g) BCE has in place and will maintain an anti-money laundering program
which is reasonably designed to comply with applicable laws on
anti-money laundering.
Article 4 REPRESENTATIONS, WARRANTIES AND COVENANTS OF NMIS AND THE FUND
Section 4.1. NMIS represents and warrants to BCE that:
(a) NMIS is a limited liability company duly organized and existing and
in good standing under the laws of the State of Wisconsin.
(b) NMIS is duly authorized by all necessary action, approval or
authorization to enter into this Agreement and the performance of
its obligations hereunder will not violate or conflict with any
governing documents or agreements of NMIS or any applicable law,
rule, or regulation.
(c) NMIS is duly qualified and has all requisite licenses and authority
to carry on its business in Wisconsin and in all other jurisdictions
in which it conducts business.
(d) NMIS has and will continue to have access to the necessary
facilities, equipment and personnel to perform its obligations under
this Agreement.
(e) NMIS shall promptly notify BCE in the event that it is for any
reason, unable to perform any of its obligations under this
Agreement.
Section 4.2.The Fund represents and warrants to BCE that:
(a) The Fund is a corporation duly organized and existing and in good
standing under the laws of the State of Maryland.
(b) The Fund is duly authorized by all necessary action, approval or
authorization to enter into this Agreement and the performance of
its obligations hereunder will not violate or conflict with any
governing documents or agreements of the Fund or any applicable law,
rule, or regulation.
(c) The Fund is duly qualified and has all requisite authority to carry
on its business in Maryland and in all other jurisdictions in which
Portfolio shares are sold.
(d) The Fund has and will continue to have access to the necessary
facilities, equipment and personnel to perform its obligations under
this Agreement.
(e) The Fund shall promptly notify BCE in the event that it is for any
reason, unable to perform any of its obligations under this
Agreement.
Article 5 RECORDKEEPING/ADMINISTRATIVE DUTIES OF BCE
Section 5.1. Shareholder Information.
(a) Omnibus Accounts. BCE shall establish and maintain one or more
omnibus accounts ("Omnibus Accounts") with each Portfolio or its
designated transfer agent. Omnibus Accounts shall be held in the
name of BCE, the Plans or a nominee and all transactions for Account
Holders shall be processed through such Omnibus Accounts.
(b) Plan Records. BCE shall maintain a record of the number of Portfolio
shares held by each Account Holder.
(c) Participant Records. BCE will perform the required sub-accounting
necessary to record interests by Plan participants ("Participants"),
which shall include the name, address and taxpayer identification
number of each such Participant and any other records required by a
Plan or by law.
Section 5.2. Shareholder Services.
(a) BCE shall investigate all inquiries from authorized Plan
representatives or other Account Holders relating to the shares
held.
(b) BCE shall forward to Account Holders and Plan representatives, for
distribution to Participants, as applicable, all reports to
shareholders, dividend and distribution notices, prospectuses, proxy
materials and any other related documents as provided by NMIS.
Provided however, NMIS, or its designee shall be responsible for
shipping the requested materials to BCE branch offices as instructed
by BCE.
(c) BCE shall receive purchase, sale and exchange orders on behalf of
Account Holders and their authorized representatives and aggregate,
process and transmit such instructions to the Fund's transfer agent.
(d) BCE agrees to transmit purchase, redemption and exchange orders in
good order, according to the terms of this Agreement and each
Portfolio's then-current Prospectus and SAI, and in the manner
agreed upon by the parties, and acknowledges that the Fund or the
Portfolio's designated transfer agent reserves the right to reject
any orders not received in good order or any conditional orders.
(e) BCE shall answer Participant inquiries concerning the Fund or its
Portfolios and assist Participants in completing applications or
other transactions involving the purchase, redemption or exchange of
Portfolio shares; provided, however, that any information supplied
by BCE shall either be previously approved by NMIS or the Fund or
derived from the current prospectus issued by the Fund.
Section 5.3. Record Keeping.
(a) Recordation of the Issuance of Shares. BCE shall record all purchase
and sale instructions of Account Holders with respect to Portfolio
shares and maintain a record of the total number of shares which are
so issued to the Account Holders, based upon data provided to BCE by
the Fund or its designee.
(b) Maintenance of Records. On a bi-monthly basis, BCE will reconcile
the records that BCE maintains for the Account Holders with the
information BCE is provided by the Fund or NMIS. BCE will notify
NMIS and the Fund, or their designees, if discrepancies arise
between such records. The Fund, NMIS or their designee and BCE
will cooperate to resolve any such discrepancies. In all cases,
the Fund's, or its designee's records will be determinative of
the official records of the Fund.
Section 5.4. Designation of Affiliates.
Notwithstanding anything stated herein to the contrary, BCE may
designate one or more of its affiliates or its parent company, Great-West Life &
Annuity Insurance Company, for any performance required under this Article 5.
Article 6 REPORTING
Section 6.1. BCE shall provide monthly, a Fund totals report broken down
by Portfolio that includes the total number of Participants who own shares of
each Portfolio participating in the Program.
Section 6.2. BCE agrees that it shall provide such other reports as
reasonably requested by NMIS or the Fund to the extent BCE makes such reports
available to other clients of BCE that have a contractual relationship with BCE
similar to that of NMIS and the Fund.
Article 7 INDEMNIFICATION
Section 7.1. BCE agrees to indemnify and hold harmless NMIS, the Fund,
their affiliates and their Directors, officers, employees, agents and each
person, if any, who controls NMIS or the Fund within the meaning of the
Securities Act of 1933, as amended (the "Securities Act") against any losses,
claims, damages or liabilities to which any such indemnitee may become subject
insofar as those losses, claims, damages or liabilities (or actions in respect
thereof) arise out of any actions or failure or omission to act by BCE or its
affiliates under this Agreement, or occur in connection with or are based upon
their representations, warranties, and obligations under this Agreement and BCE
will reimburse the indemnitees for any legal or other expenses incurred by them
in connection with investigating or defending such claim or action; provided,
however, that BCE will not be liable for indemnification hereunder to the extent
that any such loss, claim, damage or liability results from the negligence or
willful misconduct of the Fund, NMIS, or their Directors, officers, employees,
agents, or successors or assigns, as permitted hereunder.
Section 7.2. NMIS agrees to indemnify and hold harmless BCE and its
affiliates and their directors, officers, employees, agents and each person, if
any, who controls BCE within the meaning of the Securities Act, against any
losses, claims, damages or liabilities to which any such indemnitee may become
subject insofar as those losses, claims, damages or liabilities (or actions in
respect thereof) arise out of any actions or failure or omission to act by the
Fund or NMIS, or their affiliates, under this Agreement, or occur in connection
with or are based upon their representations, warranties, and obligations under
this Agreement and NMIS will reimburse the indemnitees for any legal or other
expenses incurred by them in connection with investigating or defending such
claim or action; provided, however, that NMIS will not be liable for
indemnification hereunder to the extent that any such loss, claim, damage or
liability results from the negligence or willful misconduct of BCE, its
directors, officers, employees, agents, or successors or assigns, as permitted
hereunder.
Section 7.3. NMIS agrees to indemnify and hold harmless BCE for any loss
incurred by BCE due to errors or delays made or caused by the Fund or its
designee in the calculation of a Portfolio's daily net asset value or made by
the Fund, or its designee, when transmitting such information to BCE. NMIS also
agrees to compensate BCE for any reasonable cost of any adjustments made to
Account Holders and/or Participant sub-accounts arising from such information
errors.
Section 7.4. BCE agrees to indemnify and hold harmless NMIS and the Fund
for any loss incurred by NMIS or the Fund due to errors or delays made or caused
by BCE or its designee in aggregating or processing purchase, sale and exchange
orders on behalf of Account Holders or made by BCE, or its designee, when
transmitting such information to NMIS or the Fund. BCE also agrees to compensate
NMIS, the Fund or the Fund's transfer agent, as the case may be, for any
reasonable cost of any adjustments made to the Omnibus Accounts arising from
such information errors.
Section 7.5. Promptly after receipt by an indemnitee under this Article 7
of notice of the commencement of a claim or action that may be covered hereunder
("Claim"), the indemnitee shall notify the indemnitor of the commencement
thereof; provided, however, that the failure to provide such prompt notice to
the indemnitor shall not relieve the indemnitor of any liability it may have to
an indemnitee unless such failure has prejudiced the defense of such claim. As a
condition to indemnification hereunder, the indemnitee shall provide the
indemnitor with complete details, documents and pleadings concerning any Claim.
The indemnitor will be entitled to participate in any Claim and may assume the
defense thereof with counsel reasonably satisfactory to the indemnitee. However,
if the indemnitee reasonably determines that defenses may be available to it
which are not available to the indemnitor, and which may be inconsistent with
the interests of the indemnitor, then the indemnitee shall have the right to
assume its own defense, with counsel reasonably satisfactory to the indemnitor.
Should this situation arise, the indemnitee will promptly notify the indemnitor
in writing of its decision and the reasons therefor. The indemnitor shall remain
responsible for the cost of reasonable legal or other expenses incurred as they
pertain to the additional or inconsistent defenses of indemnitee. After notice
from the indemnitor to the indemnitee of the indemnitor's election to assume the
defense of any Claim, the indemnitor will not be liable to any indemnitee under
this Article 7 for any legal or other expenses subsequently incurred by the
indemnitee in connection with the defense of such Claim, except as stated
herein. No party shall unilaterally agree to a compromise or settlement of any
such claim without the written consent of the other party. Such consent shall
not be unreasonably withheld.
Article 8 INSURANCE
Section 8.1. BCE shall maintain insurance in commercially reasonable
amounts as required by the NASD. No provision of this Agreement shall be
construed to relieve an insurer of any obligation to pay claims to NMIS, the
Fund, BCE or any other insured party which would otherwise be covered by a claim
in the absence of any provision of this Agreement.
Article 9 ASSIGNMENT
Section 9.1. Neither this Agreement nor any rights or obligations
hereunder may be assigned by any party without the prior written consent of the
other parties, provided however, that the Fund may add Portfolios without
written consent.
Section 9.2. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and permitted
assigns.
Article 10 TERM AND TERMINATION OF AGREEMENT
Section 10.1. This Agreement shall become effective on the date first set
forth above and shall continue in effect until terminated as set forth below.
Section 10.2. This Agreement may be terminated in its entirety or with
respect to an individual Portfolio at any time by any party upon sixty (60)
days' written notice to the other parties. Notwithstanding the foregoing, this
Agreement shall be terminated immediately (i) upon a material breach by any
party not cured within thirty days after notice from any other party, (ii) upon
termination of services from any party to the Account Holders, or (iii) with
respect to a particular Portfolio, upon the provision of notice to BCE that the
Fund has terminated NMIS' authority to serve as principal underwriter for such
Portfolio, such notice to be provided to BCE promptly after the Fund terminates
NMIS' underwriting agreement.
Section 10.3. The Article on Indemnification shall continue in full force
and effect after termination of this Agreement. In addition, the parties rights
and obligations under this Agreement shall continue in full force and effect
after termination of this Agreement with respect to Account Holders with assets
allocated to the Portfolio(s) at the time of termination.
Article 11 CONFIDENTIALITY
Section 11.1. Parties agree to keep confidential, and to treat as
proprietary, all information obtained regarding the other party, its products,
clients, employees operations, and any other information obtained during this
relationship ("Confidential Information"). Each party agrees not to use any such
Confidential Information except as may be required herein. The parties hereto
specifically understand that, except as may be required by law or legal process
or as requested by regulators having jurisdiction over the party, they must
maintain this Confidential Information in such a manner that no third party can
access it or that it will not be disclosed to such third party without prior
consent of the respective party, provided that the parties may disclose
Confidential Information without prior consent of the other parties to any
affiliate whose services are necessary to the performance of the disclosing
party's obligations under this Agreement.
Section 11.2. Confidential Information does not include the information
which (i) was publicly known and/or was in the possession of the party receiving
Confidential Information (the "Receiving Party") from other sources prior to its
receipt from the party disclosing Confidential Information (the "Disclosing
Party"), or (ii) is or becomes publicly available other than as a result of a
disclosure by the Receiving Party or its representatives, or (iii) is or becomes
available to the Receiving Party on a nonconfidential basis from a source (other
than the Disclosing Party) which, to the best of the Receiving Party's
knowledge, and after due inquiry, is not prohibited from disclosing such
information to the Receiving Party by a legal, contractual or fiduciary
obligation to the Disclosing Party.
Section 11.3. The parties hereto acknowledge that any nonpublic personal
information (as defined by applicable law or regulation promulgated under Title
V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the "Act")) of Account Holders,
including customers (both as defined by the Act or other applicable law or
regulation including, but not limited to, Xxxxxxxxxx X-X, 00 XXX xx.xx.
248.1-248.30), will be disclosed or utilized solely to carry out the terms of
the Agreement, including pursuant to an exception contained in any applicable
law or regulation promulgated under the Act in the ordinary course of business
to carry out the terms of the Agreement. This section shall survive termination
of the Agreement.
Article 12 ENTIRE AGREEMENT
Section 12.1. This Agreement and any Exhibits attached hereto and the NSCC
Agreement set forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersede all differing terms of
prior agreements, arrangements and understandings, written or oral, among the
parties.
Article 13 AMENDMENTS; WAIVERS
Section 13.1. This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms or covenants hereof may be waived
only by a written instrument executed by all of the parties hereto, or in the
case of a waiver, by the party waiving compliance.
Section 13.2. The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
party at a later time to enforce the same. No waiver by any party of the breach
of any term or covenant contained in this Agreement, whether by conduct or
otherwise in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
Article 14 NOTICES
Section 14.1. Unless otherwise specified, all notices and other
communications required hereunder shall be in writing and shall be hand
delivered, sent by express delivery or mailed by certified mail to the other
party at the following address or such other address as each party may give
notice to the other:
(a) If to NMIS:
Northwestern Mutual Investment Services, LLC
Suite 300
000 X. Xxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxxxxx
(b) If to the Fund:
Mason Street Funds, Inc.
000 X. Xxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
(c) If to BCE:
BenefitsCorp Equities, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTENTION: Xxxxxxx X. Xxxxxx, President
cc: Xxxxxxx X. Xxxxx, Secretary and Compliance Officer
Section 14.2. Such addresses may be changed from time to time by any party
by providing written notice in the manner set forth above. All notices shall be
effective upon delivery as set forth in Section 14.1 above.
Article 15 GOVERNING LAW
Section 15.1. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, without giving
effect to conflicts of law principles thereof which might refer such
interpretations to the laws of a different state or jurisdiction.
Article 16 LEGAL RELATIONSHIP OF PARTIES
Section 16.1. The parties hereto agree that they are independent
contractors and not partners or co-venturers, except that the parties
acknowledge and agree that BCE shall act as agent for the Fund for the limited
purpose of receiving purchase and sale orders from Account Holders.
Article 17 CAPTIONS
Section 17.1. The paragraph headings contained herein are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
Article 18 SEVERABILITY
Section 18.1. If any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining
provisions and portions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
Article 19 COUNTERPARTS
Section 19.1. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same Agreement.
Article 20 FORCE MAJEURE
Section 20.1. None of the parties hereto shall be liable to the other for
any and all losses, damages, costs, charges, counsel fees, payments, expenses or
liability due to any failure, delay or interruption in performing its
obligations hereunder due to causes or conditions beyond its control including,
without limitation, labor disputes, strikes (whether legal or illegal), lock
outs (whether legal or illegal), civil commotion, riots, war and war-like
operations including acts of terrorism, invasion, rebellion, hostilities,
military power, sabotage, governmental regulations or controls, failure of
power, fire or other casualty, accidents, national or local emergencies,
boycotts, picketing, slow-downs, work stoppages, inability to obtain materials
or services, natural disasters, acts of God, or disruptions in orderly trading
on any relevant exchange or market.
Article 21 OVER/UNDER PAYMENTS
Section 21.1. If an adjustment is necessary to correct an error caused by
NMIS or the Fund which has caused Account Holders to receive less than the
amount to which they are entitled, the number of shares of the applicable
account of such Account Holder will be adjusted and the amount of any
underpayments shall be credited by NMIS to BCE for crediting of such amounts to
the applicable Account Holder accounts. Upon notification by NMIS or the Fund of
any overpayment due to an error, BCE shall promptly remit to NMIS or the Fund
any overpayment that has not been paid to Account Holders; however, NMIS and the
Fund acknowledge that BCE does not intend to seek, and is under no obligation to
remit to NMIS or the Fund, overpayments forwarded to any Account Holder. In no
event shall BCE be liable to Account Holders for any such adjustments or
underpayment amounts. In no event shall such over or under payments be offset
against the fees payable as set forth in Article 2 of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the previously specified date.
BenefitsCorp Equities, Inc.
By: /s/XXXXXXX X. XXXXXX
--------------------
Title: President
Northwestern Mutual Investment
Services, LLC
By: /s/XXXXXXX X. XXXXXXXXX
-----------------------
Title: Senior Vice President -
Variable Annuities
Xxxxx Street Funds, Inc.
By: /s/XXXX X. XXXX
---------------
Title: President
EXHIBIT A
PORTFOLIOS
NAME OF PORTFOLIO SHARE CLASS OFFERED
----------------- -------------------
Xxxxx Street Aggressive Growth Stock Fund A
Xxxxx Street Growth Stock Fund A
Xxxxx Street Small Cap Growth Stock Fund A
Xxxxx Street Asset Allocation Fund A
Xxxxx Street High Yield Bond Fund A
Xxxxx Street Select Bond Fund A
EXHIBIT B
FEES
The Fund agrees to pay BCE an annual fee of 0.15% of the average aggregate
daily net asset value of shares of the Portfolios held in Omnibus Accounts for
the benefit of the Account Holders. Such fee shall be paid in arrears,
quarterly. Each quarterly fee will be independent of every other quarterly fee.
