SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
ADVANTUS MORTGAGE SECURITIES FUND, INC.
AND
THE MINNESOTA MUTUAL LIFE INSURANCE COMPANY
SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 23rd of July, 1998, by and between
Advantus Mortgage Securities Fund, Inc., a Minnesota corporation, having its
principal office and place of business at 000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxx,
Xxxxxxxxx, 00000, (the "Fund"), The Minnesota Mutual Life Insurance Company,
a Minnesota corporation having its principal office and place of business at
000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxx, Xxxxxxxxx, 00000, ("MML") and Advantus
Capital Management, Inc., a Minnesota corporation, having its principal
office and place of business at 000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxx, Xxxxxxxxx
00000, (the "Adviser").
WHEREAS, the Fund is in the process of contracting with First Data
Investor Services Group, Inc., a Massachusetts corporation (the "Transfer
Agent"), to provide customary transfer agent services to the Fund; and
WHEREAS, the Fund has reserved certain shareholder servicing tasks
and responsibilities ("Shareholder Services") which are to be performed by
MML rather than the Transfer Agent; and
WHEREAS, the Fund has further reserved certain accounting,
auditing, legal and other administrative tasks and responsibilities
("Administrative Services") to be performed by MML; and
WHEREAS, the Fund desires to appoint MML as its Shareholder
Services agent and agent in connection with certain other Administrative
Services, and MML desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT AND DUTIES OF MML
1.01 Subject to the terms and conditions set forth in this
Agreement, and in accordance with procedures established from time to time by
agreement between the Fund and MML, MML hereby agrees to provide the
following Administrative Services:
(a) Register or qualify, and maintain the registrations or
qualifications, of the Fund and its common stock ("Shares") under
state or other securities laws;
(b) Calculate the Fund's net asset value per Share at such times and
in such manner as specified in the Fund's current prospectus and
statement of additional information and at such other times as
the parties hereto may from time to time agree upon;
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(c) Upon the Fund's distribution of dividends and capital gains,
calculate the amount of such dividends and capital gains to be
received per Share and calculate the number of additional Shares
to be received by each Shareholder, other than any shareholder
who has elected to receive such dividends and capital gains in
cash;
(d) Prepare and maintain all accounting records required by the Fund,
including a general ledger;
(e) Prepare the Fund's annual and semi-annual financial statements;
(f) Prepare and file the Fund's income, excise and other tax returns;
(g) Provide audit assistance in conjunction with the Fund's
independent auditors;
(h) Provide such legal services as the parties hereto may from time
to time agree upon, including without limitation preparation and
filing with the Securities and Exchange Commission of the annual
or more frequent post-effective amendments to the Fund's
registration statement and the Fund's proxy materials; and
(i) Provide such other Administrative Services as the parties hereto
may from time to time agree upon.
1.02 As Shareholder Services agent, MML agrees to provide or perform
the following Shareholder Services in accordance with procedures established
from time to time by agreement between the Fund and MML:
(a) Receive telephone redemption requests, telephone redemption
directions, wire order purchase requests and telephone transfer
instructions, and deliver such requests, directions and
instructions together with other appropriate information, to the
Transfer Agent;
(b) Provide customer service representatives to respond to telephone
inquiries relating to the Fund from customers, shareholders
and/or registered representatives and forward any pertinent
information, including without limitation instructions pertaining
to any periodic investment plan, periodic withdrawal plan or
other plan set out in the currently effective prospectus, or
requests to the Transfer Agent. MML shall transmit
electronically, via U.S. mail or any other delivery means MML
determines to be suitable, any Shareholder or account transaction
instructions received, to the Transfer Agent in a timely fashion;
and
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(c) MML will calculate any minimum required distribution amounts for
plans qualified under Section 401(a) or 408 of the Internal
Revenue Code, as that term is defined under the Code or delegate
such responsibility to a suitable agent, with the Fund's
approval.
Article 2 ADDITIONAL DUTIES
2.01 MML shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940, as amended,
and the Rules thereunder, MML agrees that all such records prepared or
maintained by MML relating to the services to be performed by MML hereunder are
the property of the Fund and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to the
Fund on and in accordance with its request.
2.02 MML and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required be law.
2.03 MML will endeavor to notify the Fund and to secure
instructions from an authorized officer of the Fund in case of any requests or
demands for the inspection of Shareholder records. MML reserves the right,
however, to exhibit the Shareholder records to any person whenever it is advised
by its counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
Article 3 FEES AND EXPENSES
3.01 For Shareholder Services performed by MML pursuant to this
agreement, the Adviser will pay MML an annual account servicing fee as agreed by
Adviser and MML. In addition to the fees the Adviser will reimburse MML for
out-of-pocket expenses or advances incurred by MML. Such fees, out-of-pocket
expenses and advances may be changed from time to time subject to mutual
agreement between the Adviser and MML.
3.02 For Administrative Services performed by MML pursuant to
this agreement, the Fund will pay MML a monthly Administrative Services Fee
as set forth in Schedule A. In addition to the fees the Fund will reimburse
MML for out-of-pocket expenses or advances incurred by MML. Such fees,
out-of-pocket expenses and advances may be changed from time to time subject
to mutual written agreement between the Fund and MML.
Article 4 REPRESENTATIONS AND WARRANTIES OF MML
MML represents and warrants to the Fund that:
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4.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Minnesota.
4.02 It is duly qualified to carry on its business in the State
of Minnesota
4.03 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
4.04 It agrees to obtain and maintain, all regulatory licensing
as may be required of it, if any, under this Agreement.
Article 5 REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to MML that:
5.01 It is a corporation duly organized and existing and in good
standing under the laws of Minnesota.
5.02 It is empowered under applicable laws and by its Articles
of Incorporation and Bylaws to enter into and perform this Agreement.
5.03 All corporate proceedings required by said Articles of
Incorporation and Bylaws have been taken to authorize it to enter into and
perform this Agreement.
5.04 It is an open-end and diversified management investment
company registered under the Investment Company Act of 1940.
5.05 A registration statement under the Securities Act of 1933
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares of the Fund being offered for sale.
Article 6 INDEMNIFICATION
6.01 MML shall not be responsible for, and the Fund shall
indemnify and hold MML harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of MML or its agent or subcontractors required
to be taken pursuant to this Agreement, provided that such actions are taken in
good faith without negligence or willful misconduct.
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(b) The Fund's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Fund's lack of good faith,
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund hereunder.
(c) The reliance on or use by MML or its agents or
subcontractors of information, records and documents which (i) are received
by MML or is agents or subcontractors and furnished to it by or on behalf of
the Fund, and (ii) have been prepared and/or maintained by the Fund or any
other person or firm on behalf of the Fund.
(d) The reliance on, or the carrying out by MML or its agents
or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state that such Shares be registered in
such state or in violation of any stop order or other determination or ruling
by any federal agency or any state with respect to the offer or sale of such
Shares in such state.
6.02 MML shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or
failure or omission to act by MML as a result of MML's lack of good faith,
negligence or willful misconduct, or MML's refusal or failure to comply with
the terms of this Agreement, or which arise out of the breach of any
representation or warranty of MML hereunder.
6.03 At any time MML may apply to any officer of the Fund for
instructions, and may consult with legal counsel to the Fund with respect to
any matter arising in connection with the services to be performed by MML
under this Agreement, and MML and its agents or subcontractors shall not be
liable and shall be indemnified by the Fund for any action taken or omitted
by it in good-faith reliance upon such instructions or upon the opinion of
such counsel. MML, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf of
the Fund, reasonably believed to be genuine and to have been signed by the
proper person or persons, or upon any instruction, information, data, records
or documents provided MML or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the Fund,
and shall not be held to have notice of any change or authority of any
person, until receipt of written notice thereof from the Fund. MML, its
agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the
proper manual or facsimile signatures of the officers of the Fund, and the
proper countersignature of any transfer agent or registrar, or of a
co-transfer agent or co-registrar.
6.04 In the event any party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, the party shall not
be liable for damages to the other parties for any damages resulting from
such failure to perform or otherwise from such causes.
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6.05 No party to this Agreement shall be liable to any other
party for consequential damages, whether under any provision of this
Agreement or for any act or failure to act hereunder.
6.06 In order that the indemnification provisions contained
in this Article 6 shall apply, upon the assertion of a claim for which either
party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify shall have
the option to participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in which the other party
may be required to indemnify it except with the other party's prior written
consent.
Article 7 TERMINATION OF AGREEMENT
7.01 This Agreement may be terminated by either party upon
sixty (60) days written notice to the other party.
Article 8 ASSIGNMENT
8.01 Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the written consent of the
other party.
8.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
Article 9 AMENDMENT
9.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution
of the Board of Directors of the Fund.
Article 10 GOVERNING LAW
10.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of
Minnesota.
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Article 11 ENTIRE AGREEMENT
11.01 This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with respect to the
subject matter hereof whether oral or written.
Article 12 EFFECTIVE DATE
12.01 This Agreement shall be effective as of the date agreed to
by MML and First Data Investor Services Group, Inc. ("First Data") for the
conversion of transfer agent services from MML to First Data, or such other date
as selected by management of the Fund.
IT WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed in their names and on their behalf under their seals by and
through their duly authorized officers, as of the day and year first above
written.
ADVANTUS MORTGAGE SECURITIES
FUND, INC.
By
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Xxxxxxx X. Xxxxxxxx, President
Attest
---------------------------------------------
Xxxxxxxxx X. Xxxxxxxxx, Treasurer
THE MINNESOTA MUTUAL LIFE
INSURANCE COMPANY
By
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Xxxxxx X. Xxxxxxx, Executive Vice President
Attest
---------------------------------------------
Xxxxxx X. Xxxxxxxxx, Senior Vice
President, General Counsel and Secretary
ADVANTUS CAPITAL MANAGEMENT, INC.
By
-------------------------------------------------
Xxxxxxx X. Xxxxxxxx, President
Attest
---------------------------------------------
Xxxxxxx X. Xxxxxxxx,
Second Vice President - Equity Investments
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SCHEDULE A
TO THE
SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
for
ADVANTUS MORTGAGE SECURITIES FUND, INC.
(As amended July 21, 1999 and effective August 1, 1999)
Minnesota Life shall receive, as compensation for its accounting,
auditing, legal and other administrative services pursuant to this Agreement, a
monthly fee determined in accordance with the following table:
Monthly Administrative
Services Fee
------------
$6,200.00
The above monthly fees shall be paid to Minnesota Life not later
than five days following the end of each calendar quarter in which said services
were rendered.
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