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EXHIBIT (H)(17)
EXPEDITER
MUTUAL FUND
SERVICE AGREEMENT
This Agreement is entered into as of August 27, 1999 by and among
SunGard Investment Products Inc. ("SunGard"), Xxxxxxxx Xxxxx Funds (the
"Company") and, to the extent required by Section 6(b) hereof, SunGard
Institutional Brokerage Inc. ("SIBI").
WHEREAS, SunGard owns and maintains a proprietary computer router
system, the Expediter System, which provides for the automated transmission to
certain mutual funds of purchase and redemption orders generated by accounting
software systems connected electronically to the Expediter System; and
WHEREAS, the Company is the [distributor/transfer agent] for certain
registered investment companies (the "Funds"); and
WHEREAS, SunGard and the Company wish to provide those investment
advisers, employee benefit plans, banks, trust companies, broker-dealers,
insurance companies and other financial services entities that utilize
accounting software systems connected electronically to the Expediter System
(the "Participating Customers") with the opportunity to electronically transmit
their orders for the purchase or redemption of Fund shares to the Funds; and
WHEREAS, SunGard and the Company desire that the Participating
Customers' orders fro the purchase or redemption of Fund shares be transmitted
through the Expediter System either directly to the funds or indirectly to the
Funds via another router system; and
WHEREAS, the Company wishes to appoint SunGard to provide the automated
transmission services described above and to provide certain related
administrative and recordkeeping services to the Participating Customers which
purchase shares of the Funds, and SunGard wishes to accept such appointment.
NOW, THEREFORE, the parties hereto agree as follows:
1. Distribution. The Company agrees to make shares of the Funds
available to each Participating Customer that utilizes an accounting software
system connected electronically to the Expediter System in providing
recordkeeping and/or other administrative services with respect to the
following:
X ERISA Assets Reference Schedule A and Exhibit 1
X Banks and Trust Companies - Fiduciary Assets Reference Schedule B and Exhibit 2
X Investment Advisory Assets Reference Schedule B and Exhibit 2
X Trade Order Entry Terminal - All Assets Reference Schedule B and Exhibit 2
X Bank Capital Markets - Fixed Income Assets Reference Schedule B and Exhibit 2
X Bank Capital Markets - Equity Assets Reference Schedule B and Exhibit 2
State Governments and Municipalities - Fixed Income Reference Schedule B and Exhibit 2
X Assets
X Insurance Companies - Investment Management Assets Reference Schedule B and Exhibit 2
X Broker-Dealers - All Assets Reference Schedule B and Exhibit 2
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2. Accounts. Each Participating Customer that purchases shares of
the Funds for its own account or on an omnibus level on behalf of several
clients may establish a single shareholder account ("Account") in each Fund in
its own name as the record shareholder of such shares. In the alternative, each
Participating Customer that purchases shares of the Funds on behalf of its
clients may establish an Account in each Fund in the name of each client as the
record shareholder of the shares purchased on such client's behalf.
3. Recordkeeping and Administrative Services. SunGard shall
provide recordkeeping and administrative services which may include: (i)
providing necessary personnel and facilities to establish and maintain
sub-accounts and records on behalf of the beneficial owners of the Accounts,
(ii) recording beneficial owners' sub-account balances and changes thereto,
including debits and credits to such sub-accounts in the form of cash, dividends
and shares of the Funds, (iii) providing statements to the beneficial owners of
the Accounts, and (iv) transmitting through the Expediter System the
Participating Customers' orders for the purchase and redemption of Fund shares
to the Funds either directly or indirectly via another router system.
(a) SunGard may engage one or more third parties to act
as its agent or agents for the purpose of providing the recordkeeping
and administrative services described herein; provided, however, that
the appointment of any such agent shall not relieve SunGard of its
responsibilities or liabilities under this Agreement. Such agents shall
include banks or other service providers that provide recordkeeping and
administrative services. Unless otherwise indicated herein, all
references hereafter to "SunGard" shall include such agents.
(b) Certain of the recordkeeping and administrative
services described herein may be performed by one or more of SunGard's
affiliates in accordance with an agreement between such affiliate(s)
and a Participating Customer regarding the provision of automated
recordkeeping and accounting services or systems; provided, however,
that, except as otherwise provided herein, the provision of any such
services by SunGard's affiliates shall not relieve SunGard of its
responsibilities or liabilities under this Agreement, and, provided,
further, that the provision of such services pursuant to any agreement
between an affiliate and a Participant Customer shall be consistent
with the provision of such services hereunder. Unless otherwise
indicated herein, all references hereafter to "SunGard" shall include
such affiliates.
(c) SunGard shall perform the recordkeeping and
administrative services described herein in accordance with any
applicable conditions set forth in each Fund's prospectus and shall
bear all expenses of maintaining the facilities and personnel necessary
to perform such services; provided, however, that the Company shall (i)
ensure that each Fund maintains federal registration of the Funds'
shares and complies with all other applicable federal and state
securities laws, rules and regulations, including, without limitation,
all state filing, notice and fee provisions, and (ii) provide to each
shareholder of record, at the Company's expense, proxy statements,
shareholder reports, prospectuses and all other such materials as are
required by the Company, the Funds or applicable law to be distributed
to either the record or the beneficial owners of shares of the Funds.
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(d) The Company shall notify SunGard in writing at least
ninety (90) days in advance of any termination of this Agreement with
respect to any particular Fund. Furthermore, the Company shall notify
SunGard as soon as practicable if the offer or sale of shares of a Fund
in any state or other jurisdiction within the United States of America
is suspended or restricted, or if the Company wishes to prevent SunGard
from transmitting, or continuing to transmit, purchase orders on behalf
of Participating Customers who reside in a particular state or other
jurisdiction.
4. Use of Expediter System. SunGard shall utilize the Expediter
System to transmit to the Funds, either directly or indirectly via another
router system, orders from the Participating Customers for the purchase and
redemption of shares of the Funds per Account in each fund. In this regard,
SunGard shall (i) provide and maintain the Expediter System and all related
software in order to link the Participating Customers' accounting software with
the Company; (ii) train representatives of the Company in the use of the
Expediter System and any related software; (iii) make all upgrades of the
software available to the Company; and (iv) monitor the use of the Expediter
System and any related software to ensure accurate and timely transmission of
data. Orders for the purchase or redemption of shares of the Funds shall be
processed in accordance with the Operating Procedures attached hereto as
follows:
Source of Orders Exhibit
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ERISA Assets 1
Non-ERISA Assets 2
The Operating Procedures may be amended or modified from time to time
by delivery of revised Exhibit(s) 1 and/or 2 to the Company. SunGard shall make
a good faith effort to give the Company not less than thirty (30) days' prior
written notice of any changes in the Operating Procedures.
5. Records. Each party or its designee shall maintain and
preserve all records as required by law to be maintained and preserved in
connection with the provision by SunGard of services pursuant to this Agreement
and in making shares of the Funds available to the Participating Customers.
6. Fees. In consideration of the services and facilities to be
provided by SunGard pursuant to this Agreement, SunGard Investment Products Inc.
shall be entitled to receive the fees identified on the Schedules attached
hereto as follows:
Source of Orders Schedule
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ERISA Assets A
Non-ERISA Assets B
All parties agree that the payments referred to herein are for
recordkeeping and administrative services only and are not for legal, investment
advisory or distribution services.
(a) The parties hereto agree and understand that, to the
extent the fees payable to SunGard Investment Products Inc. hereunder
are to be paid solely through a plan (a "12b-1 Plan") adopted by a Fund
pursuant to Rule 12b-1 under the Investment Company
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Act of 1940, as amended (the "1940 Act"), such fees shall be paid only
so long as that Fund's 12b-1 Plan and this Agreement are in effect. The
rate of fees indicated on Schedules A and/or B may change at any time
with respect to a particular Fund or Funds at the discretion of the
Funds or the Funds' boards of directors or trustees, as is consistent
with the terms of, and the law governing, 12b-1 Plans; provided,
however, that the Company shall provide SunGard Investment Products
Inc. with reasonable advance notice of any change in the rate of fees,
and provided, further, that SunGard Investment Products Inc. may, at
its option, terminate this Agreement with respect to a Fund or Funds as
of the effective date of such change in the rate of fees.
(b) The parties hereto further understand and agree that,
to the extent the fees payable to SunGard Investment Products Inc.
hereunder are to be paid solely through a 12b-1 Plan that permits
payments for shareholder servicing to be made only to registered
broker-dealers, then all fees payable to SunGard Investment Products
Inc. hereunder shall be paid instead to SIBI, a registered
broker-dealer affiliate of SunGard Investment Products Inc. In such
case, SIBI shall be made a party to this Agreement and shall assume
primary responsibility and liability under this Agreement for all
services rendered with respect to the particular Fund or Funds which
have adopted such restrictive 12b-1 Plans, provided, however, that it
is understood that SunGard shall continue to perform the services
assigned to it under this Agreement and the Exhibits attached hereto.
7. Representations and Warranties. Each party represents that it
is free to enter into this Agreement and that by doing so it will not breach or
otherwise impair any other agreement or understanding with any other person,
corporation or other entity.
(a) SunGard Investment Products Inc. further represents,
warrants and covenants to the Company that:
(i) it has full power and authority under
applicable law, and has taken all action
necessary, to enter into and perform this
Agreement;
(ii) it is registered as a transfer agent
pursuant to Section 17A of the Securities
Exchange Act of 1934, as amended (the "1934
Act");
(iii) it owns, or has the right to offer, the
Expediter System as described in this
Agreement;
(iv) the execution, delivery and performance by
SunGard Investment Products Inc. of this
Agreement will not violate any provision of
current law, including, without limitation,
the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), the Internal
Revenue Code of 1986, as amended (the
"Code") and federal and state securities
laws, or any order, rule or regulation of
any court or governmental or regulatory
body; and
(v) it shall adhere at all times to the
Operating Procedures set forth in Exhibits 1
and 2 attached hereto (as the same may be
amended
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from time to time in accordance with Section
4 above) in performing its duties and
obligations hereunder.
(b) If made a party to this Agreement for the reasons,
and to the extent, set forth in Section 6(b) above, SIBI hereby further
represents, warrants and covenants to the Company that:
(i) it has full power and authority under
applicable law, and has taken all action
necessary, to enter into and perform this
Agreement;
(ii) it is registered as a broker-dealer pursuant
to Section 15 of the 1934 Act; and
(iii) the execution, delivery and performance by
SIBI of this Agreement will not violate any
provision of current law, including, without
limitation, ERISA, the Code and federal and
state securities laws, or any order, rule or
regulation of any court or governmental or
regulatory body.
(c) The Company further represents, warrants and
covenants to SunGard and, if appropriate, SIBI that:
(i) it has full power and authority under
applicable law, and has taken all action
necessary, to enter into and perform this
Agreement;
(ii) each Fund is registered as an investment
company under the 1940 Act, and its shares
are registered under the Securities Act of
1933, as amended (the "Securities Act");
(iii) it shall comply on behalf of the Funds, or
shall ensure that each Fund complies, with
all state law requirements, including,
without limitation, all filing, notice and
fee provisions, applicable to the offer and
sale of shares of the Funds;
(iv) the execution, delivery and performance by
the Company of this Agreement will not
violate any provision of current federal and
state securities laws, or any order, rule or
regulation of any court or governmental or
regulatory body;
(v) the board of directors or trustees of each
Fund has approved (or shall ratify within a
reasonable period of time following the
execution of this Agreement) and shall
periodically review throughout the term of
this Agreement the authorization hereunder
of SunGard to receive purchase and
redemption orders on the Funds' behalf for
purposes of Rule 22c-1 under the 1940 Act.
(vi) each Fund shall include the following or
equivalent disclosure in its prospectus(es):
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(a) that the Fund has authorized
SunGard to receive purchase and
redemption orders on the Fund's
behalf;
(b) that SunGard is authorized to
designate its agents and affiliates
as intermediaries to receive
purchase and redemption orders on
the Fund's behalf;
(c) that the Fund will be deemed to
have received a purchase or
redemption order when SunGard or
its designated agent or affiliate
receives the order; and
(d) that orders will be priced at the
Fund's net asset value next
computed after the orders are
received by SunGard or its
designated agent or affiliate; and
(vii) it shall adhere at all times to the
Operating Procedures set forth in the
Exhibits 1 and 2 attached hereto (as the
same may be amended from time to time in
accordance with Section 4 above) in
performing its duties and obligations
hereunder.
8. Representations Concerning the Company and the Funds. SunGard
shall not make any representations about the Company or the Funds except to the
extent such representations are contained in a Fund's current prospectus,
statement of additional information or sales literature, or as is otherwise
authorized by the Company in writing. The Company hereby authorizes SunGard to
include the names of the Funds on a list of representative investment choices
provided to potential and existing Participating Customers.
9. Protection of Proprietary Information.
(a) The term "Proprietary Information" shall mean any
software, and all parts, copies and modifications thereof, and any
other information, documentation, source codes or proprietary data
relating to the Expediter System or any related software, in whatever
form, received by the Company or the Funds from SunGard. "Proprietary
Information" does not include information or data which is rightfully
in the possession of the Company or the Funds prior to its receipt from
SunGard without any obligation of confidentiality or which, without any
fault of the Company or the Funds is or becomes available in the public
domain.
(b) The Company agrees that any Proprietary Information
provided to the Company or the Funds by Sun Gard is proprietary to
SunGard and shall at all times remain the sole property of Sungard.
Sungard shall retain all title, copyright, patent and other proprietary
rights to all Proprietary Information and to all copies thereof.
(c) The Company acknowledges that the Proprietary
Information is confidential and constitutes a valuable asset of
SunGard. The Company shall hold the Proprietary Information strictly
confidential. The Company shall limit the use of, and access to, all
Proprietary Information to its employees whose use of or access to the
Proprietary Information is necessary for the Company's business and the
performance of
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the Company's duties and obligations under this Agreement. The Company
shall, by all appropriate means, prevent unauthorized disclosure,
publication, display or use of any Proprietary Information. The Company
shall not remove any copyright, proprietary rights or confidentiality
notice included in or affixed to any Proprietary Information and shall
reproduce all such notices on any copies of Proprietary Information
which the Company shall make. The Company shall use all reasonable
efforts to ensure that the Funds comply with this Section 9(c) with
respect to any Proprietary Information they may receive directly or
indirectly from SunGard.
(d) Within five (5) business days after the termination
of this Agreement for any reason, the Company shall return to SunGard
all Proprietary Information and all copies thereof in the possession,
custody or control of the Company or the Funds, and shall destroy or
render unusable all other Proprietary Information and copies thereof
which for any reason cannot be delivered to SunGard. In such event, an
executive officer or other authorized representative of the Company
shall certify in writing that all Proprietary Information has been
delivered to SunGard or destroyed and that the use of the Proprietary
Information has been discontinued by the Company and the Funds.
(e) SunGard shall treat any trade secret, technical,
business or confidential information or material received by SunGard
from the Company ("Confidential Information"), including, without
limitation, financial information, proposed new products, business or
marketing strategies, plans or techniques, new communication methods,
sales or volume reports, shareholder or customer lists, dealer lists,
or prospective investor lists pertaining to or owned by the Company or
the Funds, in the same manner as the Proprietary Information is to be
treated by the Company under this Agreement. "Confidential Information"
does not include information or data which is rightfully in SunGard's
possession prior to its receipt from the Company without any obligation
of confidentiality or which, without any fault of Sungard, is or
becomes available in the public domain.
10. Absence of Agency Relationship. Except as otherwise
specifically provided in the Exhibits hereto in connection with SunGard's status
as agent of the Funds for the purpose of receiving, on the Funds' behalf, orders
for the purchase or redemption of Fund shares in accordance with Rule 22c-1
under the 1940 Act, SunGard shall not hold itself out to the public or engage in
any activity as an agent for the Company or the Funds, or as a distributor of
the Funds.
11. Liability.
(a) No party to this Agreement shall be liable for any
error of judgment or for any loss suffered by another party or any
other person in connection with the matters to which this Agreement
relates, except a loss resulting from (i) intentional misconduct, bad
faith or negligence on the part of such party in performing its duties
and obligations hereunder, or (ii) any material breach by such party of
any provision of this Agreement, including, without limitation, any
representation, warranty or covenant made in this Agreement; provided,
however, that except with respect to breaches of Sections 6 or 9 hereof
as to which no limit shall apply, the total liability of either the
Company or SunGard, jointly and severally with SIBI (if SIBI is made a
party to this Agreement for
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the reasons set forth in Section 6(b) above), with respect to claims
for damages arising under this Agreement, whether at law or in equity,
during any calendar year shall be limited to direct damages, and shall
not, during any calendar year, exceed an amount equal to the greater of
(i) $100,000, or (ii) the aggregate fees actually paid by the Company
to SunGard Investment Products Inc. and/or SIBI, if appropriate, during
the calendar year preceding such claims.
(b) Under no circumstances shall any party to this
Agreement be liable to another party or any other person, regardless of
the form of action, for lost revenues or profits, loss of business or
goodwill, investment or market losses, or any indirect or consequential
damages of any nature, whether or not foreseeable.
(c) No party to this Agreement shall be liable for, nor
shall any party be considered in breach of this Agreement due to, any
failure to perform its obligations hereunder as a result of a cause
beyond its control, including an action by any military, civil or
regulatory authority, a change in any law or regulation, a fire, blood,
earthquake, storm or similar act of God, a disruption or outage of
communications, power or other utility, a labor problem, the
unavailability of supplies, an equipment malfunction, or any other
cause, whether similar or dissimilar to any of the foregoing, which
could not have been prevented by such party with reasonable care.
12. Indemnification.
(a) Except as provided in Section 12(b) below and subject
to the limitations on liability set forth in Section 11 above, SunGard
Investment Products Inc. agrees to indemnify and hold harmless the
Company and the Funds and their respective directors or trustees,
officers, employees, agents and each person, if any, who controls them
within the meaning of the Securities Act, against any losses, claims,
damages, liabilities or expenses ("Losses") to which an indemnitee may
become subject insofar as those Losses (or actions in respect thereof)
arise out of or are based upon (i) SunGard's intentional misconduct,
bad faith or negligence in performing its duties and obligations under
this Agreement, or (ii) any material breach by SunGard of any material
provision of this Agreement, including, without limitation, any
representation, warranty or covenant made in this Agreement; and shall
reimburse the indemnities for any legal or other expenses reasonably
incurred, as incurred, by them in connection with investigating or
defending such loss, claim or action.
(b) If made a party to this Agreement for the reasons set
forth in Section 6(b) above and only with respect to transactions
involving the Funds described therein, SIBI, in lieu of SunGard
Investment Products Inc., agrees, subject to the limitations on
liability set forth in Section 11 above, to indemnify and hold harmless
the Company and such funds and their respective directors or trustees,
officers, employees, agents and each person, if any, who controls them
within the meaning of the Securities Act against any Losses to which an
indemnitee may become subject insofar as those Losses (or actions in
respect thereof) arise out of or are based upon (i) SunGard's
intentional misconduct, bad faith or negligence in performing its
duties and obligations under this Agreement, or (ii) any material
breach by SunGard of any material provision of this Agreement,
including,
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without limitation, any representation, warranty or covenant made in
this Agreement; and shall reimburse the indemnities for any legal or
other expenses reasonably incurred, as incurred, by them in connection
with investigating or defending such loss, claim or action.
(c) Notwithstanding anything herein to the contrary and
without regard to the limitations on liability set forth in Section 11
above, SunGard Investment Products Inc. shall defined, indemnify and/or
settle, at its own expense, any action brought against the Company or
the Funds to the extent it is based on a claim that the Expediter
System infringes in a material respect any United States patent or
copyright or any trade secret or other proprietary right of any third
party, provided that: (i) the Company or the Funds give written notice
to SunGard within ten (10) days after any applicable infringement claim
is initiated against the Company or the Funds; (ii) SunGard has sole
control of the defense and of any negotiations for settlement of any
such claim; (iii) the Company or the Funds provide SunGard with
reasonable non-monetary assistance, information and authority necessary
to perform the above; and (iv) such claim does not arise from an
unauthorized or improper use of the Expediter System, or from the use
of a superseded or modified release of the Expediter System, or by the
use, operation or combination of the Expediter System as provided by
SunGard with programs, data, equipment or materials not provided by
SunGard, if such infringement would have been avoided by the proper use
of the Expediter System for the purpose and in the manner specifically
authorized by this Agreement, or by the use of the current or
unmodified release of the Expediter System, or from the use of the
Expediter System without such programs, data, equipment or other
materials. If any applicable infringement claim is initiated, or in
SunGard's sole opinion is likely to be initiated, then SunGard shall
have the option, at its expense, to modify or replace all or the
infringing part of the Expediter System so that it is no longer
infringing, provided that the System functionality does not change in
any material adverse respect, or procure for the Company and the Funds
the right to continue using the infringing part of the Expediter
System. The foregoing states the entire liability of SunGard with
respect to any claim of infringement regarding the Expediter System.
(d) Subject to the limitations on liability contained in
Section 11 above, the Company agrees to indemnify and hold harmless
SunGard and each of its directors, officers, employees, agents and each
person, if any, who controls SunGard within the meaning of the
Securities Act against any Losses to which an indemnitee may become
subject insofar as those Losses (or actions in respect thereof) arise
out of or are based upon (i) the Company's intentional misconduct, bad
faith or negligence in performing its duties and obligations under this
Agreement, or (ii) any material breach by the Company of any material
provision of this Agreement, including, without limitation, any
representation, warranty or covenant made in this Agreement; and shall
reimburse the indemnities for any legal or other expenses reasonably
incurred, as incurred, by them in connection with investigating or
defending such loss, claim or action.
(e) If SIBI is made a party to this Agreement for the
reasons, and to the extent, set forth in Section 6(b) above, then the
Company further agrees, subject to the limitations on liability
contained in Section 11 above, to indemnify and hold harmless SIBI and
each of its directors, officers, employees, agents and each person, if
any, who
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controls SIBI within the meaning of the Securities Act against any
Losses to which an indemnitee may become subject insofar as those
Losses (or actions in respect thereof) arise out of or are based upon
(i) the Company's intentional misconduct, bad faith or negligence in
performing its duties and obligations under this Agreement, or (ii) any
material breach by the Company of any material provision of this
Agreement, including, without limitation, any representation, warranty
or covenant made in this Agreement; and shall reimburse the indemnities
for any legal or other expenses reasonably incurred, as incurred, by
them in connection with investigating or defending such loss, claim or
action.
(f) Without regard to the limitations on liability set
forth in Section 11 above, the Company agrees to indemnify and hold
harmless SunGard, SIBI and their respective directors, officers,
employees, agents and each person, if any, who controls them within the
meaning of the Securities Act against any Losses to which an indemnitee
may become subject insofar as those Losses (or actions in respect
thereof) arise out of or are based upon (i) any error in the pricing
information provided by the Company, electronically or otherwise, to
SunGard pursuant to the Operating Procedures, which erroneous pricing
information SunGard, acting in good faith, in fact transmitted through
the Expediter System precisely as received from the Company; or (ii)
any misstatement or alleged misstatement of a material fact contained
in a prospectus relating to any fund, the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading, or any other violation
of federal or state securities laws; and shall reimburse the
indemnities for any legal or other expenses reasonably incurred, as
incurred, by them in connection with investigating or defending such
loss, claim or action.
(g) If any third party threatens to commence or commences
any action for which one party (the "Indemnifying Party") may be
required to indemnify another person hereunder (the "Indemnified
Party"), the Indemnified Party shall promptly give notice thereof to
the Indemnifying Party. The Indemnifying Party shall be entitled, at
its own expense and without limiting its obligations to indemnify the
Indemnified Party, to assume control of the defense of such action with
counsel selected by the Indemnifying Party which counsel shall be
reasonably satisfactory to the Indemnified Party. If the Indemnifying
Party assumes the control of the defense, the Indemnified Party may
participate in the defense of such claim at its own expense. Without
the prior written consent of the Indemnified Party, which consent shall
not be unreasonably withheld, the Indemnifying Party may not settle or
compromise the liability of the Indemnified Party in such action or
consent to or permit the entry of any judgment in respect thereof
unless in connection with such settlement, compromise or consent each
Indemnified Party receives from such claimant an unconditional release
from all liability in respect of such claim.
13. Termination. Each party may terminate this Agreement on ninety
(90) days' prior written notice to the other parties; provided, however, that
(i) any such termination shall not affect the Company's obligation to ensure
that the Accounts are maintained in each Fund in the names of each record owner
as originally designated and (ii) after termination by the Company, no fee shall
be due with respect to any shares of the Funds that are purchased and held by
the Accounts after the date of termination, except that the Company shall be
obligated to continue to
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pay SunGard Investment Products Inc. and, as appropriate, SIBI, the fees as set
forth in the Schedules hereto as to shares of the Funds held by the Accounts as
of the date of termination for so long as such shares continue to be held by the
Accounts and SunGard continues to provide services to such Accounts as
contemplated by this Agreement. This Agreement shall remain in effect to the
extent necessary for each party to perform its obligations with respect to
shares of the Funds for which a fee continues to be due subsequent to such
termination. It is understood that the Company may terminate this Agreement with
respect to any particular Fund only upon ninety (90) days prior written notice
to SunGard. It is further understood that if a Participating Customer states in
writing that SunGard may no longer perform the services contemplated by this
Agreement, then this Agreement shall terminate with respect to such
Participating Customer, and its related Accounts, ninety (90) days after receipt
of such notice by SunGard.
14. Miscellaneous.
(a) It is understood that the parties hereto may perform
similar or identical services for others, and may enter into other
agreements with third parties governing similar arrangements without
first obtaining the consent of the other parties hereto.
(b) This Agreement and the Schedules and Exhibits
attached hereto contain the entire Agreement between the parties with
respect to the services contemplated, and no provision may be waived,
changed or amended except in a writing signed by the parties hereto.
(c) The duties or obligations specified herein may not be
assigned by any party hereto without the prior written consent of the
other parties to this Agreement.
(d) This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
(e) The terms of Sections 5, 9, 11 and 12 hereof shall
survive the termination of this Agreement.
(f) This Agreement shall be governed by, and construed
and enforced in accordance with, the substantive laws of the state of
Illinois, without regard to its principles of conflicts of laws.
(g) All notices, consents, and other communications
provided for in this Agreement to be given by one party to the other
parties will be deemed validly given, if in writing and delivered
personally or sent by express delivery or certified mail, return
receipt requested, or confirmed facsimile transmission, to the address
or facsimile numbers provided below.
(h) This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which
together shall be deemed one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
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[COMPANY] SUNGARD INVESTMENT PRODUCTS, INC.
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Name: Xxxxxx X. Xxxxx Xxxxx X. Xxxxxxx
Title: President President
Xxxxxxxx Xxxxx Funds, Inc. 00 Xxxx Xxxxx Xxxx
1200 Xxxx X. Xxxxxxx Hinsdale, IL 60521
Xxxxxxx, XX 00000 Phone: (000) 000-0000
Phone: (000) 000-0000 Fax: (000) 000-0000
Home: (000) 000-0000
If required by Section 6(b) thereof:
SUNGARD INSTITUTIONAL BROKERAGE INC.
------------------------------------
Xxxxxx Xxxxxxx-Xxxxxx
President
00 Xxxxx Xxxxxx, 00(xx) Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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SCHEDULE A
Fees payable in connection with the transmission of orders on behalf of
ERISA assets
Orders for the purchase or redemption of shares may be transmitted on behalf of
ERISA assets with respect to each Fund listed below in exchange for the
following fees:
1. Service Fee. With respect to the average daily net asset value of all
Account balances in each fund for the preceding month, the fee payable
to SunGard Investment Products Inc. shall equal:
The Administrative Fee Factor (as defined below for each Fund)
multiplied by
the number of days in the current month / 365
multiplied by
the total average net asset value of the Account balances in the Fund
for the preceding month.
The Company shall calculate the amount of each monthly payment and
shall deliver to SunGard Investment Products, Inc. a monthly statement
showing the calculation of the amount payable to SunGard Investment
products Inc. for the preceding month. Payment to SunGard Investment
Products Inc. shall occur within thirty (30) days following the end of
each month.
DIVIDEND
ADMINISTRATIVE SCHEDULE
FUND TICKER CUSIP CLASS FEE FACTOR (M.Q.A.O.)*
---- ------ ----- ----- -------------- -----------
Xxxxxxxx Xxxxx THPGX 884891300 0.25% Quarterly
Growth Fund
Xxxxxxxx Plumb THPBX 884891102 0.25% Quarterly
Balanced Fund
* Monthly, Quarterly, Annually, Other
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2. Sub-Accounting Fee. The fee payable to SunGard Investment products Inc.
shall equal ____ per month per each beneficial owner of an Account in
each Fund listed in Item I above for any part of the subject month.
SunGard shall calculate the amount of the aggregate monthly payment and
shall deliver to the Company a monthly statement showing the
calculation of the monthly amounts payable to SunGard Investment
Products Inc. Payment to SunGard Investment Products Inc. shall occur
within thirty (30) days following the end of each month.
OR
2. Sub-Accounting Fee. With respect to the average daily net asset value
of all Account balances in each Fund for the preceding month, the fee
payable to SunGard Investment Products Inc. shall equal:
------------
multiplied by
the number of days in the current month / 365
multiplied by
the total average net asset value of Account balances in the Fund
for the preceding month.
The company shall calculate the amount of each monthly payment and
shall deliver to SunGard Investment Products Inc. a monthly statement
showing the calculation of the amount payable to SunGard Investment
Products Inc. for the preceding month. Payment to SunGard Investment
Products Inc. shall occur within thirty (30) days following the end of
each month.
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SCHEDULE B
Fees payable in connection with the transmission of orders on behalf of
non-ERISA assets
Orders for the purchase of redemption of shares may be transmitted on behalf of
non-ERISA assets with respect to each Fund listed below in exchange for the
following fees:
With respect to the average daily net asset value of all Account
balances in each Fund for the preceding month, the fee payable to
SunGard Investment Products Inc. shall equal:
The Administrative Fee Factor (as defined below for each Fund)
multiplied by
the number of days in the current month / 365
multiplied by
the total average net asset value of Account Balances in the Fund
for the preceding month.
The Company shall calculate the amount of each monthly payment and
shall deliver to Sungard Investment Products Inc. a monthly statement
showing the calculation of the amount payable to SunGard Investment
Products Inc. for the preceding month. Payment to SunGard Investment
Products Inc. shall occur within thirty (30) days following the end of
each month.
DIVIDEND
ADMINISTRATIVE SCHEDULE
FUND TICKER CUSIP CLASS FEE FACTOR (M.Q.A.O.)*
---- ------ ----- ----- -------------- -----------
Xxxxxxxx Xxxxx THPGX 884891300 0.25% Quarterly
Growth Fund
Xxxxxxxx Plumb THPBX 884891102 0.25% Quarterly
Balanced Fund
* Monthly, Quarterly, Annually, Other
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EXHIBIT 1
Operating procedures with respect to ERISA assets
1. The Company or its designee shall furnish to SunGard with respect to
each Fund (a) net asset value information (determined in accordance with all
applicable securities laws, rules and regulations) as of the close of regular
trading on the New York Stock Exchange (usually 4:00 p.m. Eastern Time) or as of
such other time as set forth in each Fund's prospectus ("Close of Trading") on
each business day that the New York Stock Exchange is open for business
("Business Day"), (b) dividend and capital gains information as it arises, and
9c) in the case of income Funds, the daily accrual for interest rate factor (mil
rate). The Company or its designee shall provide such information for each Fund
to SunGard by means of computer file transmission by 7:00 p.m. Eastern Time on
each Business Day.
2. SunGard shall, on behalf of the Funds, receive from Participating
Customers for processing prior to the Close of Trading on each Business Day: (1)
orders for the purchase of shares of the Funds, and (2) redemption requests with
respect to shares of the Funds held in the Accounts ("Instructions"). SunGard
shall, upon its receipt of any such Instructions, confirm such receipt with the
Participating Customers.
3. SunGard shall communicate to the Company or its designee by 9:00
a.m. Eastern Time on each Business Day, by means of computer file transmission,
a report of the trading activity for the most recent Business Day for each
Account in any of the Funds. The number of shares to be purchased or redeemed
shall be determined based upon the net asset value at the Close of Trading on
the most recent Business Day.
4. In the event that the Company or its designee receives the trading
information described in the preceding paragraph after 9:00 a.m. Eastern Time on
a Business Day, the Company shall use its best efforts to enter Account orders
at the net asset value at the Close of Trading on the most recent Business Day,
but if the Company is unable to do so, the transaction shall be entered at the
net asset value next determined after the Company or its designee receives the
trading information.
5. (a) The Company or its designee shall send to SunGard via computer
file transmission a verification of each Business Day's (1) net purchase or net
redemption transactions, as the case may be, (2) income transactions generated
by the Fund(s), and (3) current investment positions per Account for each
affected Fund by the Close of Trading on the next Business Day.
(b) The Company or its designee shall send to SunGard via computer
file transmission a statement indicating the investment positions of each
Account in each Fund as of the last Business Day of each month within two (2)
Business Days thereafter.
6. In the event there is a net purchase or a net redemption for an
Account in any Fund on any Business Day, SunGard shall provide such information
to the affected Participating Customers for purposes of effecting wire payments
to, or receive wire payments from, the Funds,
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as the case may be.
7. Subject to SunGard's compliance with these Operating Procedures,
SunGard shall be considered a limited agent of the Funds for the purpose of
receiving, on the Funds' behalf, orders for the purchase and redemption of Fund
shares. The Business Day on which Instructions are received in proper form by
SunGard from Participating Customers by the Close of Trading shall be the date
as of which shares of the Funds shall be purchased and redeemed as a result of
such Instructions, provided that the Company or its designee receives the
trading information relating thereto in accordance with paragraph 3 of these
Operating Procedures. Instructions received in proper form by SunGard from
Participating Customers after the Close of Trading on any given Business Day
shall be treated as if received on the next following Business Day. Dividends
and capital gains distributions shall be issued in additional shares of the
applicable Fund at net asset value in accordance with each Fund's then current
prospectus.
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