EXHIBIT 23(h)
SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 23rd day of September, 1999 (the "Effective
Date") between INVESTORS CAPITAL FUNDS (the "Fund"), a Delaware Business Trust
having its principal place of business at 000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx , Xxxxxxxxxxxxx 00000 and FIRST DATA INVESTOR SERVICES GROUP, INC.
("Investor Services Group"), a Massachusetts corporation with principal offices
at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate series,
with each such series representing interests in a separate portfolio of
securities or other assets.
WHEREAS, the Fund initially intends to offer Shares in those Portfolios
identified in the attached Schedule A, each such Portfolio, together with all
other Portfolios subsequently established by the Fund shall be subject to this
Agreement in accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint
Investor Services Group as its administrator, fund accounting agent, transfer
agent, dividend disbursing agent and agent in connection with certain other
activities and Investor Services Group desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and Investor Services Group agree as follows:
Article 1. Definitions.
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended
from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not such
person is an officer or employee of the Fund, duly authorized to give
Oral Instructions or Written Instructions on behalf of the Fund as
indicated in writing to Investor Services Group from time to time.
(c) "Board Members" shall mean the Directors or Trustees of
the governing body of the Fund, as the case may be.
(d) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Fund, as the case may be.
(e) "Commencement Date" shall mean the date on which Investor
Services Group commences providing services to the Fund pursuant to
this Agreement.
(f) "Commission" shall mean the Securities and Exchange
Commission.
(g) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custodian Agreement.
(h) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(i) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(j) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by Investor Services Group from
a person reasonably believed by Investor Services Group to be an
Authorized Person;
(k) "Portfolio" shall mean each separate series of shares
offered by the Fund representing interests in a separate portfolio of
securities and other assets;
(l) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information, including any
supplements thereto if any, which has become effective under the
Securities Act of 1933 and the 1940 Act.
(m) "Shares" refers collectively to such shares of capital
stock or beneficial interest, as the case may be, or class thereof, of
each respective Portfolio of the Fund as may be issued from time to
time.
(n) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(o) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by Investor Services Group to be
an Authorized Person and actually received by Investor Services Group.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2. Appointment of Investor Services Group.
The Fund, on behalf of the Portfolios, hereby appoints and constitutes
Investor Services Group as its sole and exclusive transfer agent and dividend
disbursing agent for Shares of each respective Portfolio of the Fund and as
administrator, fund accounting agent, shareholder servicing agent for the Fund
and Investor Services Group hereby accepts such appointments and agrees to
perform the duties hereinafter set forth. This Agreement shall be effective as
of the Effective Date.
Article 3. Duties of Investor Services Group.
3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of
a transfer agent; acting as service agent in connection with dividend
and distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance,
transfer and redemption or repurchase (including coordination with the
Custodian) of Shares of each Portfolio, as more fully described in the
written schedule of Duties of Investor Services Group annexed hereto as
Schedule B and incorporated herein, and in accordance with the terms of
the Prospectus of the Fund on behalf of the applicable Portfolio,
applicable law and the procedures established from time to time between
Investor Services Group and the Fund.
(b) Recording the issuance of Shares and maintaining pursuant
to Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Portfolio which are authorized, based upon data provided
to it by the Fund, and issued and outstanding. Investor Services Group
shall provide the Fund on a regular basis with the total number of
Shares of each Portfolio which are authorized and issued and
outstanding and shall have no obligation, when recording the issuance
of Shares, to monitor the issuance of such Shares or to take cognizance
of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund.
(c) Investor Services Group shall be responsible for the
following: performing the customary services of an administrator,
including corporate secretarial, treasury and blue sky services, and
fund accounting agent for the Fund, as more fully described in the
written schedule of Duties of Investor Services Group annexed hereto as
Schedule B and incorporated herein, and subject to the supervision and
direction of the Board of Directors of the Fund.
(d) In addition to providing the foregoing services, the Fund
hereby engages Investor Services Group as its exclusive service
provider with respect to the Print/Mail Services as set forth in
Schedule C for the fees also identified in Schedule C. Investor
Services Group agrees to perform the services and its obligations
subject to the terms and conditions of this Agreement.
(e) Notwithstanding any of the foregoing provisions of this
Agreement, Investor Services Group shall be under no duty or obligation
to inquire into, and shall not be liable for: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the redemption of any Shares,
or the propriety of the amount to be paid therefor; (iii) the legality
of the declaration of any dividend by the Board of Directors, or the
legality of the issuance of any Shares in payment of any dividend; or
(iv) the legality of any recapitalization or readjustment of the
Shares.
3.2 In addition, the Fund shall (i) identify to Investor Services Group
in writing those transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of transactions for
each State on the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of Investor Services Group for the
Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
3.3 In performing its duties under this Agreement, Investor Services
Group: (a) will act in accordance with the Articles of Incorporation, By-Laws,
Prospectuses and with the Oral Instructions and Written Instructions of the Fund
and will conform to and comply with the requirements of the 1940 Act and all
other applicable federal or state laws and regulations; and (b) will consult
with legal counsel to the Fund, as necessary and appropriate. Furthermore,
Investor Services Group shall not have or be required to have any authority to
supervise the investment or reinvestment of the securities or other properties
which comprise the assets of the Fund or any of its Portfolios and shall not
provide any investment advisory services to the Fund or any of its Portfolios.
3.4 In addition to the duties set forth herein, Investor Services Group
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the Fund
and Investor Services Group.
Article 4. Recordkeeping and Other Information.
4.1 Investor Services Group shall create and maintain all records
required of it pursuant to its duties hereunder and as set forth in Schedule B
in accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Where applicable, such records shall
be maintained by Investor Services Group for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the services to be performed by Investor Services
Group hereunder are the property of the Fund and will be preserved, maintained
and made available in accordance with such section, and will be surrendered
promptly to the Fund on and in accordance with the Fund's request.
4.3 In case of any requests or demands for the inspection of
Shareholder records of the Fund, Investor Services Group will endeavor to notify
the Fund of such request and secure Written Instructions as to the handling of
such request. Investor Services Group 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 comply with such request.
Article 5. Fund Instructions.
5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Fund. Investor Services Group will also have no liability when
processing Share certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the officers of the Fund and the proper
countersignature of Investor Services Group.
5.2 At any time, Investor Services Group may request Written
Instructions from the Fund and may seek advice from legal counsel for the Fund,
or its own legal counsel, with respect to any matter arising in connection with
this Agreement, and it shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such Written Instructions or in
accordance with the opinion of counsel for the Fund or for Investor Services
Group. Written Instructions requested by Investor Services Group will be
provided by the Fund within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is an
Authorized Person. The Fund agrees that all Oral Instructions shall be followed
within one business day by confirming Written Instructions, and that the Fund's
failure to so confirm shall not impair in any respect Investor Services Group's
right to rely on Oral Instructions.
Article 6. Compensation.
6.1 The Fund on behalf of each of the Portfolios will compensate
Investor Services Group for the performance of its obligations hereunder in
accordance with the fees and other charges set forth in the written Fee Schedule
annexed hereto as Schedule C and incorporated herein.
6.2 In addition to those fees set forth in Section 6.1 above, the Fund
on behalf of each of the Portfolios agrees to pay, and will be billed separately
for, out-of-pocket expenses incurred by Investor Services Group in the
performance of its duties hereunder. Out-of-pocket expenses shall include, but
shall not be limited to, the items specified in the written schedule of
out-of-pocket charges annexed hereto as Schedule D and incorporated herein.
Schedule D may be modified by written agreement between the parties. Unspecified
out-of-pocket expenses shall be limited to those out-of-pocket expenses
reasonably incurred by Investor Services Group in the performance of its
obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to pay all
fees, charges and out-of-pocket expenses to Investor Services Group by Federal
Funds Wire within fifteen (15) business days following the receipt of the
respective invoice. In addition, with respect to all fees under this Agreement,
Investor Services Group may charge a service fee equal to the lesser of (i) one
and one half percent (1 1/2%) per month or (ii) the highest interest rate
legally permitted on any past due invoiced amounts, provided however, the
foregoing service fee shall not apply if the Fund in good faith legitimately
disputes any invoice amount in which case the Fund shall do the following within
thirty (30) days of the postmark date: (a) pay Investor Services Group the
undisputed amount of the invoice; and (b) provide Investor Services Group a
detailed written description of the disputed amount and the basis for the Fund's
dispute with such amount. In addition, the Fund shall cooperate with Investor
Services Group in resolving disputed invoice amounts and then promptly paying
such amounts determined to be due.
6.4 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule C, a revised Fee Schedule executed and dated by
the parties hereto.
6.5 The Fund acknowledges that the fees and charges that Investor
Services Group charges the Fund under this Agreement reflect the allocation of
risk between the parties, including the disclaimer of warranties in Section 9.3
and the limitations on liability and exclusion of remedies in Section 11.2 and
Article 12. Modifying the allocation of risk from what is stated here would
affect the fees that Investor Services Group charges, and in consideration of
those fees, the Fund agrees to the stated allocation of risk.
6.6 Investor Services Group will from time to time employ or associate
with itself such person or persons as Investor Services Group may believe to be
particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
Investor Services Group and the Fund. The compensation of such person or persons
shall be paid by Investor Services Group and no obligation shall be incurred on
behalf of the Fund in such respect.
6.7 Investor Services Group shall not be required to pay any of the
following expenses incurred by the Fund: membership dues in the Investment
Company Institute or any similar organization; investment advisory expenses;
costs of printing and mailing stock certificates, prospectuses, reports and
notices; interest on borrowed money; brokerage commissions; stock exchange
listing fees; taxes and fees payable to Federal, state and other governmental
agencies; fees of Board Members of the Fund who are not affiliated with Investor
Services Group; outside auditing expenses; outside legal expenses; Blue Sky
registration or filing fees; or other expenses not specified in this Section 6.7
which may be properly payable by the Fund. Investor Services Group shall not be
required to pay any Blue Sky registration or filing fees unless and until it has
received the amount of such fees from the Fund.
Article 7. Documents.
In connection with the appointment of Investor Services Group, the Fund
shall, on or before the date this Agreement goes into effect, but in any case
within a reasonable period of time for Investor Services Group to prepare to
perform its duties hereunder, deliver or caused to be delivered to Investor
Services Group the documents set forth in the written schedule of Fund Documents
annexed hereto as Schedule E.
Article 8. Investor Services Group System.
8.1 Investor Services Group shall retain title to and ownership of any
and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by Investor Services
Group in connection with the services provided by Investor Services Group to the
Fund herein (the "Investor Services Group System").
8.2 Investor Services Group hereby grants to the Fund a limited license
to the Investor Services Group System for the sole and limited purpose of having
Investor Services Group provide the services contemplated hereunder and nothing
contained in this Agreement shall be construed or interpreted otherwise and such
license shall immediately terminate with the termination of this Agreement.
8.3 In the event that the Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the Investor Services Group System for either account inquiry or to
transmit transaction information, including but not limited to maintenance,
exchanges, purchases and redemptions, such direct access capability shall be
limited to direct entry to the Investor Services Group System by means of
on-line mainframe terminal entry or PC emulation of such mainframe terminal
entry and any other non-conforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the prior written
consent of Investor Services Group.
Article 9. Representations and Warranties.
9.1 Investor Services Group represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will remain in effect
for the duration of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.2 The Fund represents and warrants to Investor Services Group that:
(a) it is duly organized, existing and in good standing under
the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize
it to enter into this Agreement;
(d) a registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of each of the Portfolios is
currently effective and will remain effective, and all 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;
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with
the terms of the Fund's Articles of Incorporation and its Prospectus
with respect to each Portfolio, such Shares shall be validly issued,
fully paid and non-assessable; and
(f) as of the date hereof, each Portfolio is duly registered
and lawfully eligible for sale in each jurisdiction indicated for such
Portfolio on the list furnished to Investor Services Group pursuant to
Article 7 of this Agreement and that it will notify Investor Services
Group immediately of any changes to the aforementioned list.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, INVESTOR SERVICES GROUP DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF
ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS
PROVIDED INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT. INVESTOR SERVICES
GROUP DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE
SET FORTH IN THIS AGREEMENT.
Article 10. Indemnification.
10.1 Investor Services Group shall not be responsible for and the Fund
on behalf of each Portfolio shall indemnify and hold Investor Services Group
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against Investor Services Group or for
which Investor Services Group may be held to be liable (a "Claim") arising out
of or attributable to any of the following:
(a) any actions of Investor Services Group required to be
taken pursuant to this Agreement unless such Claim resulted from a
negligent act or omission to act or bad faith by Investor Services
Group in the performance of its duties hereunder;
(b) Investor Services Group's reasonable reliance on, or
reasonable use of information, data, records and documents (including
but not limited to magnetic tapes, computer printouts, hard copies and
microfilm copies) received by Investor Services Group from the Fund, or
any authorized third party acting on behalf of the Fund, including but
not limited to the prior transfer agent for the Fund, in the
performance of Investor Services Group's duties and obligations
hereunder;
(c) the reliance on, or the implementation of, any Written or
Oral Instructions or any other instructions or requests of the Fund on
behalf of the applicable Portfolio;
(d) the offer or sales of shares in violation of any
requirement under 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 state with respect to the
offer or sale of such shares in such state; and
(e) the Fund's refusal or failure to comply with the terms of
this Agreement, or any Claim which arises out of the Fund's negligence
or misconduct or the breach of any representation or warranty of the
Fund made herein.
10.2 The Fund agrees and acknowledges that Investor Services Group has
not prior to the date hereof assumed, and will not assume, any obligations or
liabilities arising out of the conduct by the Company prior to the date hereof
of those duties which Investor Services Group has agreed to perform pursuant to
this Agreement. The Fund further agrees to indemnify Investor Services Group
against any losses, claims, damages or liabilities to which Investor Services
Group may become subject in connection with the conduct by the Fund or its agent
of such duties prior to the date hereof.
10.3 In any case in which the Fund may be asked to indemnify or hold
Investor Services Group harmless, Investor Services Group will notify the Fund
promptly after identifying any situation which it believes presents or appears
likely to present a claim for indemnification against the Fund although the
failure to do so shall not prevent recovery by Investor Services Group and shall
keep the Fund advised with respect to all developments concerning such
situation. The Fund shall have the option to defend Investor Services Group
against any Claim which may be the subject of this indemnification, and, in the
event that the Fund so elects, such defense shall be conducted by counsel chosen
by the Fund and satisfactory to Investor Services Group, and thereupon the Fund
shall take over complete defense of the Claim and Investor Services Group shall
sustain no further legal or other expenses in respect of such Claim. Investor
Services Group will not confess any Claim or make any compromise in any case in
which the Fund will be asked to provide indemnification, except with the Fund's
prior written consent. The obligations of the parties hereto under this Article
10 shall survive the termination of this Agreement.
10.4 Any claim for indemnification under this Agreement must be made
prior to the earlier of:
(a) one year after the Investor Services Group becomes aware
of the event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
Investor Services Group's sole and exclusive remedy for claims or other actions
or proceedings to which the Fund's indemnification obligations pursuant to this
Article 10 may apply.
Article 11. Standard of Care.
11.1 Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Fund unless said errors are caused by
Investor Services Group's own negligence, bad faith or willful misconduct or
that of its employees.
11.2 Notwithstanding any provision in this Agreement to the contrary,
Investor Services Group's cumulative liability (to the Fund) for all losses,
claims, suits, controversies, breaches, or damages for any cause whatsoever
(including but not limited to those arising out of or related to this Agreement)
and regardless of the form of action or legal theory shall not exceed the lesser
of (i) $500,000 or (ii) the fees received by Investor Services Group for
services provided under this Agreement during the twelve months immediately
prior to the date of such loss or damage. Fund understands the limitation on
Investor Services Group's damages to be a reasonable allocation of risk and Fund
expressly consents with respect to such allocation of risk. In allocating risk
under the Agreement, the parties agree that the damage limitation set forth
above shall apply to any alternative remedy ordered by a court in the event such
court determines that sole and exclusive remedy provided for in the Agreement
fails of its essential purpose.
11.3 Neither party may assert any cause of action against the other
party under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings) alleging such
cause of action.
11.4 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
Article 12. Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL INVESTOR SERVICES GROUP, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF
TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST
PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 13. Term and Termination.
13.1 This Agreement shall be effective on the date first written above
and shall continue for a period of five (5) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless the Fund or Investor Services Group provides written notice to the
other of its intent not to renew. Such notice must be received not less than
ninety (90) days and not more than one-hundred eighty (180) days prior to the
expiration of the Initial Term or the then current Renewal Term.
13.3 In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and conversion
thereof to a successor transfer agent will be borne by the Fund.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination of rights of Investor Services Group to be reimbursed
for out-of-pocket expenses. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the Defaulting
Party.
13.5 Notwithstanding anything contained in this Agreement to the
contrary, should the Fund desire to move any of the services provided by
Investor Services Group hereunder to a successor service provider prior to the
expiration of the then current Initial or Renewal Term, or should the Fund or
any of its affiliates take any action which would result in Investor Services
Group ceasing to provide transfer agency, administration or fund accounting
services to the Fund prior to the expiration of the Initial or any Renewal Term,
Investor Services Group shall make a good faith effort to facilitate the
conversion on such prior date, however, there can be no guarantee that Investor
Services Group will be able to facilitate a conversion of services on such prior
date. In connection with the foregoing, should services be converted to a
successor service provider or should the Fund or any of its affiliates take any
action which would result in Investor Services Group ceasing to provide transfer
agency, administration or fund accounting services to the Fund prior to the
expiration of the Initial or any Renewal Term, the payment of fees to Investor
Services Group as set forth herein shall be accelerated to a date prior to the
conversion or termination of services and calculated as if the services had
remained with Investor Services Group until the expiration of the then current
Initial or Renewal Term and calculated at the asset and/or Shareholder account
levels, as the case may be, on the date notice of termination was given to
Investor Services Group.
Article 14. Additional Portfolios
14.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Schedule A, with respect to which the Fund
desires to have Investor Services Group render services as transfer agent under
the terms hereof, the Fund shall so notify Investor Services Group in writing,
and if Investor Services Group agrees in writing to provide such services,
Exhibit 1 shall be amended to include such additional Portfolios.
Article 15. Confidentiality.
15.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The Fund
and Investor Services Group shall exercise at least the same degree of care, but
not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its own
confidential information of a similar nature. The Fund and Investor Services
Group shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior written
permission of the other party. The Fund and Investor Services Group may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Fund and Investor Services Group may also disclose
the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating to
the past, present or future business activities of the Fund or Investor
Services Group, their respective subsidiaries and affiliated companies
and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or
Investor Services Group a competitive advantage over its competitors;
and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
15.4 The obligations of confidentiality and restriction on use herein
shall not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this
Agreement or subsequently came into the public domain through no fault
of such party; or
(b) Was lawfully received by the party from a third party free
of any obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to
receipt thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal remedies for
maintaining such information in confidence have been exhausted
including, but not limited to, giving the other party as much advance
notice of the possibility of such disclosure as practical so the other
party may attempt to stop such disclosure or obtain a protective order
concerning such disclosure; or
(f) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
Article 16. Force Majeure; Excused Non-Performance.
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by (i) fire, flood, elements of nature or
other acts of God; (ii) any outbreak or escalation of hostilities, war, riots or
civil disorders in any country, (iii) any act or omission of the other party or
any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In addition, no party shall be liable for
any default or delay in the performance of its obligations under this Agreement
if and to the extent that such default or delay is caused, directly or
indirectly, by the actions or inactions of the other party. In any such event,
the non-performing party shall be excused from any further performance and
observance of the obligations so affected only for as long as such circumstances
prevail and such party continues to use commercially reasonable efforts to
recommence performance or observance as soon as practicable.
Article 17. Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Investor Services Group may, in its sole discretion, assign all its right, title
and interest in this Agreement to an affiliate, parent or subsidiary, or to the
purchaser of substantially all of its business. Investor Services Group may, in
its sole discretion, engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by Investor Services Group.
Article 18. Arbitration.
18.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of Evidence and the Federal
Rules of Civil Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
18.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article 18.
Article 19. Notice.
Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Fund or Investor Services Group, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Fund:
Attention: __________________
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
Article 20. Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this agreement. All actions arising from or related to this Agreement shall be
brought in the state and federal courts sitting in the City of Boston, and
Investor Services Group and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts.
Article 21. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 22. Captions.
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 23. Publicity.
Neither Investor Services Group nor the Fund shall release or publish
news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without the prior
review and written approval of the other party; provided, however, that either
party may make such disclosures as are required by legal, accounting or
regulatory requirements after making reasonable efforts in the circumstances to
consult in advance with the other party.
Article 24. Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
24.2 During the term of this Agreement and for one (1) year afterward,
the Fund shall not recruit, solicit, employ or engage, for the Fund or others,
Investor Services Group's employees.
Article 25. Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
25.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
Article 26. Miscellaneous.
The Fund and Investor Services Group agree that the obligations of the
Fund under the Agreement shall not be binding upon any of the Board Members,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Fund individually, but are binding only upon the assets and
property of the Fund, as provided in the Articles of Incorporation. The
execution and delivery of this Agreement have been authorized by the Board
Members of the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such Board Members nor such execution
and delivery by such officer shall be deemed to have been made by any of them or
any shareholder of the Fund individually or to impose any liability on any of
them or any shareholder of the Fund personally, but shall bind only the assets
and property of the Fund as provided in the Articles of Incorporation.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
INVESTORS CAPITAL FUNDS
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------
Title: President
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Title: Senior Vice President
SCHEDULE A
Investors Capital Funds
Investors Capital Net Fund Class A Shares
Investors Capital Net Fund Class C Shares
Investors Capital Twenty Fund Class A Shares
Investors Capital Twenty Fund Class C Shares
SCHEDULE B
DUTIES OF INVESTOR SERVICES GROUP
I. FUND ACCOUNTING SERVICES
Daily Accounting Services
1) Calculate Net Asset Value Per Share:
o Update the daily market value of securities held by the Fund using
Investor Services Group's standard agents for pricing domestic
equity and bond securities as approved y the Fund's Board of
Directors.
o If necessary, enter limited number of manual prices supplied by the
Fund.
o Prepare NAV proof sheet. Review components of change in NAV for
reasonableness.
o Review variance reporting on-line and in hard copy for price changes
in individual securities using variance levels established by the
Fund. Verify U.S. dollar security prices exceeding variance levels
by notifying the Fund and pricing sources of noted variance.
o Review for ex-dividend items indicated by pricing sources; trace to
general ledger for agreement.
o Communicate required pricing information (NAV) to the Fund, Transfer
Agent and, electronically, to NASDAQ.
2) Determine and Report Cash Availability to Trust by Approximately
9:30 AM Eastern Time:
o Receive daily cash and transaction statements from the Custodian by
8:30 AM Eastern time.
o Receive previous day shareholder activity reports from the Fund's
Transfer Agent by 8:30 AM Eastern time.
o Fax hard copy Cash Availability calculations with all details to
Trust.
o Supply Fund with 5-day cash projection report.
o Prepare and complete daily bank cash reconciliation's including
documentation of any reconciling items and notify the Custodian and
the Fund.
3) Reconcile and Record All Daily Expense Accruals:
o Accrue expenses based on Fund supplied budget either as percentage
of Fund's net assets or specific dollar amounts.
o If applicable, monitor expense limitations established by Fund.
o If applicable, accrue daily amortization of Organizational Expense.
o If applicable, complete daily accrual of 12b-1 expenses.
4) Verify and Record All Daily Income Accruals for Debt Issues:
o Review and verify all system generated Interest and Amortization
reports.
o Establish unique security codes for bond issues to permit segregated
Trial Balance income reporting.
5) Monitor Securities Held for Cash Dividends, corporate actions and
capital changes such as splits, mergers, spin-offs, etc. and process
appropriately.
o Monitor electronically received information from pricing vendors for
all domestic securities.
o Review current daily security trades for dividend activity.
o Interface with custodian to monitor timely collection and postings
of corporate actions, dividends and interest.
6) Enter All Security Trades based on written instructions from the Fund.
o Review system verification of trade and interest calculations.
o Verify settlement through the Custodian statements.
o Maintain security ledger transaction reporting.
o Maintain tax lot holdings.
o Determine realized gains or losses on security trades.
o Provide complete broker commission reporting.
7) Enter All Trust Share Transactions:
o Process activity identified on the Transfer Agent reports.
o Verify settlement through the Custodian statements.
o Reconcile to the Investor Services Group Transfer Agent report
balances.
8) Prepare and Reconcile/Prove Accuracy of the Daily Trial Balance
(listing all asset, liability, equity, income and expense accounts)
o Post manual entries to the general ledger.
o Post custodian bank activity.
o Post shareholder and security transactions.
o Post and verify system-generated activity, i.e., income and expense
accruals.
o Prepare general ledger net cash proof used in NAV calculation
9) Review and Reconcile With Custodian Statements:
o Verify all posted interest, dividends, expenses, and shareholder and
security payments/receipts, etc. (Discrepancies will be reported to
and resolved by the Custodian.)
o Post all cash settlement activity to the Trial Balance.
o Reconcile to ending cash balance accounts.
o Clear subsidiary reports with settled amounts.
o Track status of past due items and failed trades handled by the
Custodian.
10) Submission of Daily Accounting Reports to the Fund: (Additional reports
readily available.)
- Trial Balance.
- Portfolio Valuation (listing inclusive of holdings, costs, market
values, unrealized appreciation/depreciation and percentage of
portfolio comprised of each security).
- NAV Calculation Report.
- Cash Availability and 5 day Cash Projection Report.
MONTHLY ACCOUNTING SERVICES
1) Full Financial Statement Preparation (automated Statements of Assets
and Liabilities, of Operations and of Changes in Net Assets) and
submission to the Fund by 10th business day.
2) Submission of Monthly Reports to the Fund:
o Security Purchase/Sales Journal.
o Interest and Maturity Report.
o Brokers Ledger (Commission Report).
o Security Ledger Transaction Report with Realized Gains/Losses.
o Security Ledger Tax Lot Holdings Report.
o Additional reports available upon request.
3) Reconcile Accounting Asset Listing to Custodian Asset Listing:
o Report any security balance discrepancies to the Custodian and the
Fund.
4) Provide Monthly Analysis and Reconciliation of Additional Trial Balance
Accounts, such as:
o Security cost and realized gains/losses.
o Interest/dividend receivable and income.
o Payable/receivable for securities purchased and sold.
o Payable/receivable for fund shares; issued and redeemed.
o Expense payments and accruals analysis.
5) If Appropriate, Prepare and Submit to the Fund: o SEC yield reporting
(non-money market funds).
o Income by state reporting.
o Standard Industry Code Valuation Report.
o Alternative Minimum Tax Income segregation schedule.
ANNUAL (AND SEMI-ANNUAL) ACCOUNTING SERVICES
1) Assist and supply auditors with schedules supporting securities and
shareholder transactions, income and expense accruals, etc. during the
year in accordance with standard audit assistance requirements.
2) Provide NSAR Reporting (Accounting Questions):
If applicable, answer the following items:
2, 12B, 20, 21, 22, 23, 28, 30A, 31, 32, 35, 36, 37, 43, 53, 55, 62,
63, 64B, 71, 72, 73, 74, 75, 76
NOTE: Complete NSAR reporting is provided by Investor Services Groups'
Administration Group.
II FUND ADMINISTRATION SERVICES
REGULATORY COMPLIANCE
A. Compliance - Investment Company Act of 1940
1. Review, report and renew
a. investment advisory contracts
b. fidelity bond
c. underwriting contracts
d. distribution (12(b)-1) plans - includes NASD
Rule 26 calculations
e administration contracts
f. accounting contracts
g. custody contracts
h. transfer agent and shareholder services
2. Filings.
a. N-SAR (semi-annual report)
b. N-1A (prospectus), post-effective amendments
and supplements ("stickers")
c. 24f-2 indefinite registration of shares
d. filing fidelity bond under 17g-1
e. filing shareholder reports under 30b2-1
B. Performing "Blue Sky" compliance functions, as follows:
1. Effecting and maintaining, as the case may be, the
registration of Shares of the Fund for sale under
the securities laws of the jurisdictions listed in
the Written Instructions of the Fund, which
instructions will include the amount of Shares to
be registered as well as the warning threshold to
be maintained. Any Written Instructions not
received at least 45 days prior to the date the
Fund intends to offer or sell its Shares cannot be
guaranteed a timely notification to the states. In
addition, Investor Services Group shall not be
responsible for providing to any other service
provider of the Fund a list of the states in which
the Fund may offer and sell its Shares.
2. Filing with each appropriate jurisdiction the
appropriate materials relating to the Fund. The
Fund shall be responsible for providing such
materials to Investor Services Group, and Investor
Services Group shall make such filings promptly
after receiving such materials.
3. Providing to the Fund quarterly reports of sales
activity in each jurisdiction in accordance with
the Written Instructions of the Fund. Sales will be
reported by shareholder residence. NSCC trades and
order clearance will be reported by the state
provided by the dealer at the point of sale. Trades
by omnibus accounts will be reported by trustee
state of residence in accordance with the Written
Instructions of the Fund outlining the entities
which are permitted to maintain omnibus positions
with the Fund.
4. In the event sales of Shares in a particular
jurisdiction reach or exceed the warning levels
provided in the Written Instructions of the Fund,
Investor Services Group will promptly notify the
Fund with a recommendation of the amount of Shares
to be registered in such jurisdiction and the fee
for such registration. Investor Services Group will
not register additional Shares in such jurisdiction
unless and until Investor Services Group shall have
received written instructions from the Fund to do
so.
5. If Investor Services Group is instructed by the
Fund not to register Shares in a particular
jurisdiction, Investor Services Group will use its
best efforts to cause any sales in such
jurisdictions to be blocked, and such sales will
not be reported to Investor Services Group as sales
of Shares of the Fund.
C. Compliance - Other
1. applicable stock exchange rules
2. applicable state tax laws
Corporate Business and Shareholder/Public Information
A. Trustees/Management
1. Preparation of meetings
a. agendas - all necessary items of compliance
b. keep attendance records
c. maintain corporate records/minute book
B. Maintain Corporate Calendars and Files
1. General
2. Blue sky
C. Release Corporate Information
1. To shareholders
2. To financial and general press
3. To industry publications
a. distributions (dividends and capital gains)
b. tax information
c. changes to prospectus
d. letters from management
e. funds' performance
4. Respond to:
a. financial press
b. miscellaneous shareholders inquiries
c. industry questionnaires
FINANCIAL AND MANAGEMENT REPORTING
A. Income and Expenses
1. preparation of budgets
2. expense figures calculated and accrual levels set
3. monitoring of expenses
4. approve and authorize payment of expenses
5. projection of income
6. checking account reconciliation
B. Distributions to Shareholders
1. Projections of distribution amounts
a. compliance with income tax provisions
b. compliance with excise tax provisions
c. compliance with Investment Company Act of 1940
2. Compilation and reclassification of distributions,
where applicable, for year end tax reporting to
shareholders
C. Financial Reporting
1. preparation of unaudited and audited reports to
shareholders
2. 60 day delivery to SEC and shareholders
3. preparation of semi-annual and annual N-SAR's
4. liaison between fund management and printers for
financial reports
D. Subchapter M Compliance
1. Asset diversification test
2. Income qualification test
E. Other Financial Analyses
1. Sales information, portfolio turnover (monthly)
2. Work closely with independent auditors on return of
capital presentation, excise tax calculation
3. Performance (total return) calculation (monthly)
4. 1099 Miscellaneous - prepared and filed for
Directors/Trustees (annual)
5 Analysis of interest derived from various
Government obligations (annual) (if interest income
was distributed in a calendar year)
6. Review and characterize 1099-Dividend Forms
7. Prepare and coordinate with printer and the
printing and mailing of 1099-Dividend Insert Cards
F. Review and Monitoring Functions
1. Review NAV calculations
2. Coordinate and review transfer agent, accounting
and custody functions
3. Review accruals, expenditures and payment trail
commissions where applicable
G. Preparation and distribution of periodic operation
reports to management
H. Monitor money market funds under Rule 2a-7
III TRANSFER AGENT/SHAREHOLDER SERVICES
(a) Shareholder Information. Investor Services Group shall maintain a
record of the number of Shares held by each Shareholder of record which shall
include name, address, taxpayer identification and which shall indicate whether
such Shares are held in certificates or uncertificated form.
(b) Shareholder Services. Investor Services Group shall respond as
appropriate to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as may be from
time to time mutually agreed upon between Investor Services Group and the Fund.
(c) Share Certificates.
o At the expense of the Fund, the Fund shall supply Investor Services
Group with an adequate supply of blank share certificates to meet
Investor Services Group requirements therefor. Such Share
certificates shall be properly signed by facsimile. The Fund agrees
that, notwithstanding the death, resignation, or removal of any
officer of the Fund whose signature appears on such certificates,
Investor Services Group or its agent may continue to countersign
certificates which bear such signatures until otherwise directed by
Written Instructions.
o Investor Services Group shall issue replacement Share certificates
in lieu of certificates which have been lost, stolen or destroyed,
upon receipt by Investor Services Group of properly executed
affidavits and lost certificate bonds, in form satisfactory to
Investor Services Group, with the Fund and Investor Services Group
as obligees under the bond.
o Investor Services Group shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open accounts
or uncertificated form (i.e., no certificate being issued with
respect thereto) Investor Services Group shall maintain comparable
records of the Shareholders thereof, including their names,
addresses and taxpayer identification. Investor Services Group shall
further maintain a stop transfer record on lost and/or replaced
certificates.
(d) Mailing Communications to Shareholders; Proxy Materials. Investor
Services Group will address and mail to Shareholders of the Fund, all reports to
Shareholders, dividend and distribution notices and proxy material for the
Fund's meetings of Shareholders. In connection with meetings of Shareholders,
Investor Services Group will prepare Shareholder lists, mail and certify as to
the mailing of proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
(e) Sales of Shares.
o Investor Services Group shall not be required to issue any Shares of
the Fund where it has received a Written Instruction from the Fund
or official notice from any appropriate authority that the sale of
the Shares of the Fund has been suspended or discontinued. The
existence of such Written Instructions or such official notice shall
be conclusive evidence of the right of Investor Services Group to
rely on such Written Instructions or official notice.
o In the event that any check or other order for the payment of money
is returned unpaid for any reason, Investor Services Group will
endeavor to: (i) give prompt notice of such return to the Fund or
its designee; (ii) place a stop transfer order against all Shares
issued as a result of such check or order; and (iii) take such
actions as Investor Services Group may from time to time deem
appropriate.
(f) Transfer and Repurchase.
o Investor Services Group shall process all requests to transfer or
redeem Shares in accordance with the transfer or repurchase
procedures set forth in the Fund's Prospectus.
o Investor Services Group will transfer or repurchase Shares upon
receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed for
transfer or redemption, accompanied by such documents as Investor
Services Group reasonably may deem necessary.
o Investor Services Group reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. Investor Services Group also
reserves the right to refuse to transfer or repurchase Shares until
it is satisfied that the requested transfer or repurchase is legally
authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or repurchases which Investor Services
Group, in its good judgement, deems improper or unauthorized, or
until it is reasonably satisfied that there is no basis to any
claims adverse to such transfer or repurchase.
o When Shares are redeemed, Investor Services Group shall, upon
receipt of the instructions and documents in proper form, deliver to
the Custodian and the Fund or its designee a notification setting
forth the number of Shares to be repurchased. Such repurchased
shares shall be reflected on appropriate accounts maintained by
Investor Services Group reflecting outstanding Shares of the Fund
and Shares attributed to individual accounts.
o Investor Services Group shall upon receipt of the monies provided to
it by the Custodian for the repurchase of Shares, pay such monies as
are received from the Custodian, all in accordance with the
procedures described in the written instruction received by Investor
Services Group from the Fund.
o Investor Services Group shall not process or effect any repurchase
with respect to Shares of the Fund after receipt by Investor
Services Group or its agent of notification of the suspension of the
determination of the net asset value of the Fund.
(g) Dividends.
o Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to
Shares of the Fund, the Fund shall furnish or cause to be furnished
to Investor Services Group Written Instructions setting forth the
date of the declaration of such dividend or distribution, the
ex-dividend date, the date of payment thereof, the record date as of
which Shareholders entitled to payment shall be determined, the
amount payable per Share to the Shareholders of record as of that
date, the total amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at net asset value.
o On or before the payment date specified in such resolution of the
Board of Directors, the Fund will provide Investor Services Group
with sufficient cash to make payment to the Shareholders of record
as of such payment date.
o If Investor Services Group does not receive sufficient cash from the
Fund to make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, Investor Services
Group will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until sufficient cash
is provided to Investor Services Group.
(h) Retirement Plans. In connection with the individual retirement
account, simplified employee pension plan, rollover individual retirement plan,
educational XXX and XXXX individual retirement account (each hereinafter
referred to as an "XXX" and, collectively, the "IRAs") within the meaning of
Section 408 of the Internal Revenue Code of 1986, as amended (the "Code")
offered by the Fund for which contributions of the Funds' shareholders (the
"Participants") in the IRA's are invested in shares of the Fund, Investor
Services Group shall provide the following administrative services in addition
to those services described herein:
o Establish a record of types and reasons for distributions (i.e.,
attainment of age 59-1/2, disability, death, return of excess
contributions, etc.);
o Record method of distribution requested and/or made;
o Receive and process designation of the beneficiary forms;
o Examine and process requests for direct transfers between
custodians/trustees, transfer and pay over to the successor assets
in the account and records pertaining thereto as requested;
o Prepare any annual reports or returns required to be prepared and/or
filed by a custodian of an XXX, including, but not limited to, an
annual fair market value report, Forms 1099R and 5498 and file with
the IRS and provide to Participant/Beneficiary; and
o Perform applicable federal withholding and send
Participants/Beneficiaries an annual TEFRA notice regarding required
federal tax withholding.
(i) Cash Management Services. Funds received by Investor Services Group
in the course of performing its services hereunder will be held in bank accounts
and/or money market fund accounts. With respect to funds maintained in money
market fund accounts, Investor Services Group shall retain any interest
generated or earned. With respect to funds maintained in bank accounts, Investor
Services Group shall retain any excess balance credits or excess benefits earned
or generated by or associated with such bank accounts or made available by the
institution at which such bank accounts are maintained after such balance
credits or benefits are first applied towards banking service fees charged by
such institution in connection with banking services provided on behalf of the
Fund.
(j) Lost Shareholders. Investor Services Group shall perform such
services as are required in order to comply with Rules 17a-24 and 17Ad-17 of the
34 Act (the Lost Shareholder Rules"), including, but not limited to those set
forth below. Investor Services Group may, in its sole discretion, use the
services of a third party to perform the some or all such services.
o documentation of electronic search policies and procedures;
o execution of required searches;
o creation and mailing of confirmation letters;
o taking receipt of returned verification forms;
o providing confirmed address corrections in batch via electronic
media;;
o tracking results and maintaining data sufficient to comply with the
Lost Shareholder Rules; and
o preparation and submission of data required under the Lost
Shareholder Rules.
* Separate fees will apply for these services.
IV CUSTODY ADMINISTRATION SERVICES
o Assign an experienced Custody Administrator to accept, control and
process the Fund's daily portfolio transactions.
o Match and review DTC eligible ID's and trade information with the
Fund's instructions for accuracy and coordinating with the Custodian
and the Accounting Agent for recording and affirmation processing
with the depository.
o Settle all depository eligible issues in a totally automated
environment. Transactions requiring physical delivery will be
settled through the Custodian's New York office.
o Assist the Fund in placing cash management trades through the
Custodian, such as commercial paper, CDs and repurchase agreements.
o Provide the Fund's fund accounting agent and investment Adviser with
daily custodian statements reflecting all prior day cash activity on
behalf of each portfolio by 8:30 a.m. eastern time. Complete
descriptions of any posting, inclusive of Sedol/CUSIP numbers,
interest/dividend payment date, capital stock details, expense
authorizations, beginning/ending cash balances, etc., will be
provided by the Custodian's reports or system.
o Provide monthly activity statements combining both cash changes and
security trades, and a full portfolio listing.
o Communicate to the Fund and the Fund's fund accounting agent on any
corporate actions, capital changes and interest rate changes
supported by appropriate supplemental reports received from the
Custodian. Follow-up will be made with the Custodian to ensure all
necessary actions and/or paperwork is completed.
o Work with fund accounting and the Custodian Bank on monthly asset
reconciliation's.
o Coordinate and resolve unsettled dividends, interest, and paydowns
and capital changes. Assist in resolution of failed transactions and
any settlement problems.
o Provide a comprehensive program that audits transactions, monitors
and evaluates the Custodian's service and recommends changes that
may improve performance.
o Arrange for Securities Lending, Lines of Credit, and/or Letters of
Credit through the Custodian.
o Monitor Fund cash positions.
o Provide Automated Mortgage-Backed processing through the Custodian.
o Provide the Fund's auditors with trade documentation to help
expedite the fund's audit.
o Investor Services Group shall be entitled to retain any excess
balance credits or fee reductions or other concessions or benefits
earned or generated by or associated with the Fund's custodial
accounts or made available by the institution at which such accounts
are maintained after such benefits are first applied towards banking
service fees charged to the Trust by such institution.
SCHEDULE C
FEE SCHEDULE
(All fees will be for a term of five (5) years from effective date, discount
fees specified below will be offered for the first two years with full fees
effective for year 3)
I. Fees related to Portfolio Valuation and Mutual Fund Accounting
A. Annual Fee Schedule Per Domestic Portfolio: **U.S. Dollar Denominated
Securities only (1/12th payable monthly)
$25,000 Minimum to $ 20 Million of Average Daily Net Assets(1)
.0003 On Next $ 30 Million of Average Daily Net Assets(1)
.0002 On Next $ 50 Million of Average Daily Net Assets(1)
.0001 Over $100 Million of Average Daily Net Assets(1)
Each additional class is $12,000 minimum per year.
(1) For multiple class Portfolios, fees are based on Combined Classes'
Average Daily Net Assets.
(2) Should a Portfolio hold any non-U.S.D. securities, Section "B" below
will apply in lieu of Section A.
(3) Should a Portfolio hold more than 5% of its assets in complex domestic
securities ( defined as Short Sales, Pay-in-Kind and Step Bonds,
Strips, Zero Coupon, Swaps, Floors ,ARMS, Dollar Rolls, Collars,
Index-Linked Securities, Interest Only or Principal Only Bonds),
Section "B" below will apply in lieu of Section A.
Should a portfolio require the use of multiple Custodians with
separate statements and accounts, resulting in additional
reconciliation's and money movements, Section "B" below will apply in
lieu of Section A.
B. Annual Fee Schedule per Complex Domestic Portfolio: **(1/12th payable
monthly)
$30,000 Minimum to $ 20 Million of Average Daily Net Assets (1)
.0003 On Next $ 30 Million of Average Daily Net Assets (1)
.0002 On Next $ 50 Million of Average Daily Net Assets (1)
.0001 Over $100 Million of Average Daily Net Assets (1)
Each additional class is $7,500 minimum per year.
(1) For multiple class portfolios, fees are based on Combined Classes'
Average Daily Net Assets.
(2) Should a portfolio hold more than 10% of its assets in non-U.S.D.
currency, futures and or securities, Section "C" below will apply in
lieu of Section A or B.
(3) Should a Portfolio hold more than 80% of its assets in complex
domestic securities ( defined as Short Sales, Pay-in-Kind and Step
Bonds, Strips, Zero Coupon, Swaps, Floors ,ARMS, Dollar Rolls,
Collars, Index-Linked Securities, Interest Only or Principal Only
Bonds), Section "C" below will apply in lieu of Section A or B.
C. Annual Fee Schedule Per Global Portfolio: (1/12th payable monthly)
$40,000 Minimum to $ 20 Million of Average Daily Net Assets (1)
.0003 On Next $ 30 Million of Average Daily Net Assets (1)
.0002 On Next $ 50 Million of Average Daily Net Assets (1)
.0001 Over $100 Million of Average Daily Net Assets (1)
Each additional class is $7,500 minimum per year.
(1) For multiple class portfolios, fees are based on Combined Classes'
Average Daily Net Assets.
D. Pricing Services Quotation Fee
Specific costs will be identified based upon options selected by the
Trust and will be billed monthly.
----------------- ---------------- ----------------
XXXXXX DATA INTERACTIVE X.X. XXXXX
SECURITY TYPES CORP.* DATA CORP.* CO., INC.*
----------------------------------------------------------------------------------------------------
Government Bonds $ .50 $ .50 $ .25 (a)
----------------------------------------------------------------------------------------------------
Mortgage-Backed (evaluated, seasoned, closing) .50 .50 .25 (a)
----------------------------------------------------------------------------------------------------
Corporate Bonds (short and long term) .50 .50 .25 (a)
----------------------------------------------------------------------------------------------------
U.S. Municipal Bonds (short and long term) .55 .80 .50 (b)
----------------------------------------------------------------------------------------------------
CMO's/ARM's/ABS 1.00 .80 1.00 (a)
----------------------------------------------------------------------------------------------------
Convertible Bonds .50 .50 1.00 (a)
----------------------------------------------------------------------------------------------------
High Yield Bonds .50 .50 1.00 (a)
----------------------------------------------------------------------------------------------------
Mortgage-Backed Factors (per Issue per Month) 1.00 N/A N/A
----------------------------------------------------------------------------------------------------
U.S. Equities .15 .15 N/A
----------------------------------------------------------------------------------------------------
U.S. Options .15 .15 N/A
----------------------------------------------------------------------------------------------------
Domestic Dividends & Capital Changes
(per Issue per Month) N/A 3.50 N/A
----------------------------------------------------------------------------------------------------
Foreign Securities .50 .50 N/A
----------------------------------------------------------------------------------------------------
Foreign Securities Dividends & Capital Changes
(per Issue per Month) 2.00 4.00 N/A
----------------------------------------------------------------------------------------------------
Set-up Fees (one-time) N/A N/A (e) .25 (c)
----------------------------------------------------------------------------------------------------
All Added Items N/A N/A .25 (c)
----------------------------------------------------------------------------------------------------
* Based on current Vendor costs, subject to change. Costs are quoted based on individual security
CUSIP/identifiers and are per issue per day except as noted.
(a) $35.00 per day minimum
(b) $25.00 per day minimum
(c) $ 1.00, if no CUSIP
(d) Interactive Data also charges monthly transmission costs and disk storage charges.
1) Futures and Currency Forward Contracts 2.00 per Issue per Day
2) Dow Xxxxx Markets (formerly Telerate Systems, Inc.)*
(if applicable)
*Based on current vendor costs, subject to change.
Specific costs will be identified based upon options selected by
the Trust and will be billed monthly.
3) Reuters, Inc.*
*Based on current vendor costs, subject to change.
Specific costs will be identified based upon options selected by
the Trust and will be billed monthly.
4) Municipal Market Data* (if applicable)
*Based on current vendor costs, subject to change.
Specific costs will be identified based upon options selected by
the Trust and will be billed monthly.
E. SEC Yield Calculation - For Domestic Funds Only: (if applicable)
Provide up to 12 reports per year to reflect the yield calculations
for non-money market Funds required by the SEC, $1,000 per year per
Fund. For multiple class Funds, $1,000 per year per class. Daily SEC
yield reporting is available at $3,000 per year per Fund (US dollar
denominated securities only).
F. Additional Services
To the extent the Funds commence using investment techniques such as
security lending, Swaps, Leveraging, Short Sales, Derivatives,
Previous Metals or Foreign Currency Futures and Options additional
fees may apply. Activities of a non-recurring nature such as
shareholder in-kinds, fund consolidations, mergers or reorganizations
will be subject to negotiation. Any additional/enhanced services,
programming requests or reports will be quoted upon request.
II Fees Related to Fund Administration
.0015 on the first $ 50 million of average Net Assets
.0010 on the next $ 50 million of average Net Assets
.0005 over $ 100 million of average Net Assets
Minimum of $55,000 per year for the first portfolio.
$12,000 for each additional domestic portfolio or class.
III. Fees related to Shareholder Servicing
A. Transfer Agent and Shareholder Services:
$20.00 per account per year per portfolio
Minimum monthly fee - $2,000 per portfolio Each additional class
minimum monthly fee is $1,250.
IV. Fees related to Custody Administration
A. The Bank of New York
1. Domestic Securities and ADRs, Per Portfolio: (1/12th payable monthly)
U.S. Dollar Denominated Securities only
.000200 On First $50 Million of Combined Average Daily Net Assets
.000150 On Next $150 Million of Combined Average Daily Net Assets
.000125 Over $200 Million of Combined Average Daily Net Assets
Minimum monthly fee is $500 per portfolio
2. Custody Domestic Securities Transactions Charge: (billed monthly)
Book Entry DTC, Federal Book Entry, GMNA PTC $12.00
Options/Futures $20.00
Physical Securities, RIC's, GNMA's $20.00
P & I Paydowns per pool $7.00
RIC's $24.50
Check Request $6.00
Wires $7.00
Savings Account $3.00
Eurodollar C/D's $45.00
Euro T/D's $15.00
A transaction includes buys, sells, maturities or free security
movements.
3. Custody of Foreign Securities per Global Portfolio
(Bank of New York Custody Schedule)
Countries *Safekeeping Charges Transaction Fee
(BASIS POINTS) (USD)
-------------------------------
Argentina 22 75
-----------------------------------------------------------------
Australia 5 65
-----------------------------------------------------------------
Austria 6 90
-----------------------------------------------------------------
Bangladesh 49 180
-----------------------------------------------------------------
Belgium (reg bds) 3.5 80
-----------------------------------------------------------------
Belgium (equities and Cpn bds) 6 80
-----------------------------------------------------------------
Brazil 34 40
-----------------------------------------------------------------
Canada 3 20
-----------------------------------------------------------------
Chile 34 65
-----------------------------------------------------------------
China 24 20
-----------------------------------------------------------------
Colombia 54 165
-----------------------------------------------------------------
Xxxxx Xxxxxxxx 00 00
-----------------------------------------------------------------
Xxxxxxx 4 110
-----------------------------------------------------------------
Euromarket (Cedel/Euroclear) 4 20
-----------------------------------------------------------------
Finland 16 75
-----------------------------------------------------------------
France 5 75
-----------------------------------------------------------------
Germany 3 40
-----------------------------------------------------------------
Greece 34 150
-----------------------------------------------------------------
Hong Kong 10 70
-----------------------------------------------------------------
Hungary 69 205
-----------------------------------------------------------------
India 54 180**
-----------------------------------------------------------------
Indonesia 15 105
-----------------------------------------------------------------
Ireland 4.5 55
-----------------------------------------------------------------
Israel 79 60
-----------------------------------------------------------------
Italy 5 95
-----------------------------------------------------------------
Japan (bonds) 5 15
-----------------------------------------------------------------
Japan (equities) 4 15
-----------------------------------------------------------------
Luxembourg 9.50 85
-----------------------------------------------------------------
Malaysia 11 95
-----------------------------------------------------------------
Mexico 15 30
-----------------------------------------------------------------
Morocco 39 115
-----------------------------------------------------------------
Netherlands 8 17
-----------------------------------------------------------------
New Zealand 4.5 90
-----------------------------------------------------------------
Norway 4 90
-----------------------------------------------------------------
Pakistan 44 170
-----------------------------------------------------------------
Peru 79 195
-----------------------------------------------------------------
Philippines 15 145
-----------------------------------------------------------------
Poland 59 155
-----------------------------------------------------------------
Portugal 34 145
-----------------------------------------------------------------
Russia 31 170
-----------------------------------------------------------------
Singapore 7 45
-----------------------------------------------------------------
South Africa 3 40
-----------------------------------------------------------------
South Korea 16 30
-----------------------------------------------------------------
Spain 6 55
-----------------------------------------------------------------
Sri Lanka 21 75
-----------------------------------------------------------------
Sweden 4 65
-----------------------------------------------------------------
Switzerland 4 105
-----------------------------------------------------------------
Taiwan 20 105
-----------------------------------------------------------------
Thailand 6 50
-----------------------------------------------------------------
Turkey 34 105
-----------------------------------------------------------------
United Kingdom 4 40
-----------------------------------------------------------------
United Kingdom (gilts) 4 55
-----------------------------------------------------------------
Uruguay (Equities) 64 90
-----------------------------------------------------------------
Uruguay (bonds) 44 90
-----------------------------------------------------------------
Venezuela 54 180
-----------------------------------------------------------------
CHART NOTES:
* Fee expressed in basis points per annum is calculated based
upon month-end market value.
** Transaction charge is per 10,000 shares or part thereof.
A transaction includes buys, sells, maturities or Free Security
movements.
GLOBAL NETWORK USAGE FEE:
$350 per portfolio per month.
If trades in foreign assets denominated in foreign currencies held in
the local country, the above fee will apply. The $350 fee is waived
on Euroclear/Cedel transactions.
Minimum charges imposed by Agent Banks/Local Administrators
Chile - USD 5,000 per annum.
Columbia - USD 600 per month.
Peru - USD 6,000 per annum per account.
Brazil - USD 15 basis points for annual administrative charge.
Taiwan - USD 3,000 account opening charge.
C. When Issued, Securities Lending, Index Futures, etc:
Should any investment vehicle require a separate segregated custody
account, a fee of $250 per account per month will apply.
D. Custody Miscellaneous Fees
Administrative fees incurred in certain local markets will be passed onto
the customer with a detailed description of the fees. Fees include income
collection, corporate action handling, overdraft charges, funds transfer,
special local taxes, stamp duties, registration fees, messenger and courier
services and other out-of-pocket expenses.
V. Lost Shareholder Search/Reporting: $2.75 per account search*
* The per account search fee shall be waived until June 2000
so long as the Fund retains Xxxxx Tracers, Inc. ("KTI") to
provide the Fund with KTI's "In-Depth Research Program"
services.
VI Print/Mail Fees.
(a) Standard Pricing:
Implementation Fee $5,000
Testing Application or Data Requirements: $3.00/fax
Work Order: $15.00 per workorder
Daily Work (Confirms):
Hand: $71/K with $20.00 minimum (includes BRE or CRE)
$0.07/each additional insert
Machine: $42/K with $15.00 minimum (includes BRE or CRE)
$0.01/each additional insert
Daily Checks*:
Hand: $91/K with $30.00 minimum daily (includes 1 insert)
$0.08/each additional insert
Machine: $52/K with $20.00 minimum (includes 1 insert)
$0.01/each additional insert
* There is a $3.00 charge for each 3606 Form sent.
Statements:
Hand: $78/K with $20.00 minimum (includes BRE or CRE)
$0.08/each additional insert
$125/K for intelligent inserting
Machine: $52/K with $20.00 minimum (includes BRE or CRE)
$0.01 each additional insert
$58/K for intelligent inserting
Periodic Checks:
Hand: $91/K with $30.00 minimum (includes 1 insert)
$0.08/each additional insert
Machine: $52/K with $30.00 minimum (includes 1 insert)
$0.01/each additional insert
12B1/Dealer Commission Checks/Statements: $0.78/each envelope with
$30.00 minimum
Spac Reports/Group Statements: $78/K with $20.00 minimum
------------------------------
Listbills: $0.78 per envelope with $20.00 minimum
Printing Charges: (price ranges dependent on volumes)
$0.08/per confirm/statement/page
$0.10/per check
Folding (Machine): $18/K
Folding (Hand): $.12 each
Presort Charge: postage rate
$0.035 per piece
Fast Forward: $0.15 per piece
Courier Charge: $15.00 for each on call courier trip/or
actual cost for on demand
---------------
Overnight Charge: $3.50 per package service charge plus Federal
Express/Airborne charge
Inventory Storage: $20.00 for each inventory location as of
the 15th of the month
Inventory Receipt: $20.00 for each SKU / Shipment
Hourly work; special projects, opening envelopes, etc...: $24.00
per hour
Special Pulls: $2.50 per account pull
Boxes/Envelopes: Shipping boxes $0.85 each
Oversized Envelopes $0.45 each
Forms Development/Programming Fee: $100/hr
Systems Testing: $85/hr
Cutting Charges: $10.00/K
(b) Special Mailings:
Special mailing pricing is based on appropriate notification
(standard of 30-day notification) and scheduling for special
mailings. Scheduling requirements include having collateral
arrive at agreed upon times in advance of deadlines. Mailings
which arise with shorter time frames and turns will be billed
at a premium based on turn around requirements.
Work Order: $30.00 per Workorder
Daily Work (Confirms):
Hand: $135.00 to create an admark tape
$10.00/K to zip + 4 data enhance/$125.00 minimum
$80.00/hr for any data manipulation
$10.00/K combo charge
Admark & Machine Insert
#10, #11, 6x9: $62/K to admark envelope and machine insert
1 piece/$125.00 min
$2.50/K for each additional insert
$38/K to admark only with $75.00 minimum
$25.00/X xxxx sort
9x12: $135/K to admark envelope and machine insert
1 piece/$125.00 min
$5.00/K for each additional insert
$38/K to admark only/$75.00 minimum
$0.08 for each hand insert
Admark & Hand Insert:
#10, #11, 6x9: $0.08 for each hand insert
$25.00/X xxxx sort
9x12: $0.09 for each hand insert
$35.00/X xxxx sort
Pressure/Sensitive Labels:
$0.32 each to create, affix and hand insert 1 piece/$75.00 minimum
$0.08 for each hand insert
$0.10 to affix labels only
$0.10 to create labels only
Legal Drop: $150.00 / compliant legal drop per job and processing fees
Create Mailing List: $0.40 per entry with $75.00 minimum
Presort Fee: $0.035 per piece
VII Miscellaneous Charges. The Fund shall be charged for the following
products and services as applicable:
o Ad hoc reports
o Ad hoc SQL time
o COLD Storage
o Digital Recording
o Banking Services, including incoming and outgoing wire charges
o Microfiche/microfilm production
o Magnetic media tapes and freight
o Manual Pricing
o Materials for Rule 15c-3 Presentations
o Pre-Printed Stock, including business forms, certificates,
envelopes, checks and stationary
VIII Fee Adjustments. After the one year anniversary of the effective date of
this Agreement, Investor Services Group may adjust the fees described in the
above sections once per calendar year, upon thirty (30) days prior written
notice in an amount not to exceed the cumulative percentage increase in the
Consumer Price Index for All Urban Consumers (CPI-U) U.S. City Average, All
items (unadjusted) - (1982-84=100), published by the U.S. Department of Labor
since the last such adjustment in the Client's monthly fees (or the Effective
Date absent a prior such adjustment).
IX Programming Costs. The following programming rates are subject to an annual
5% increase after the one-year anniversary of the effective date of this
Agreement.
(a) Dedicated Team: Programmer: $100,000 per annum
BSA: $ 85,000 per annum
Tester: $ 65,000 per annum
(b) System Enhancements (Non Dedicated Team): $150.00 per/hr per
programmer
X IMPRESSNet Fees Fees are charged across entire Fund Complex
--------------------------------------------------------------------------------------------------------------------------------
Number of Accounts Less than 20,000 20,001-50,000 50,001-100,000 100,001-500,000 500,001-1 million More than $1 Million
--------------------------------------------------------------------------------------------------------------------------------
Set-Up Fee $15,000 $20,000 $25,000 $30,000 $40,000 $50,000
--------------------------------------------------------------------------------------------------------------------------------
Annual fee $10,500 $14,000 $17,500 $21,000 $28,000 $35,000
--------------------------------------------------------------------------------------------------------------------------------
Inquiry Usage Fee $.10 $.10 $.10 $.10 $.10 $.10
--------------------------------------------------------------------------------------------------------------------------------
Minimum Inquiry $1,200.00 $1,600.00 $2,000.00 $2,600.00 $3,200.00 $4,000.00
Fee/Month
--------------------------------------------------------------------------------------------------------------------------------
Transaction Fee $.50 $.50 $.50 $.50 $.50 $.50
--------------------------------------------------------------------------------------------------------------------------------
Minimum $120.00 $160.00 $200.00 $260.00 $320.00 $400
Transaction
Fee/Month
--------------------------------------------------------------------------------------------------------------------------------
PIN Registration $2.50 $2.50 $2.50 $2.50 $2.50 $2.50
Fee
--------------------------------------------------------------------------------------------------------------------------------
Billable Custom $150 per hour $150 per hour $150 per hour $150 per hour $150 per hour $150 per hour
Development
--------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------
Inquiry Cumulative Less than 100,0001-200,000 200,001-300,000 More than
Volume Discount 100,000 300,000
--------------------------------------------------------------------------------------------------------------------------------
$.10 $.08 $.05 $.03
--------------------------------------------------------------------------------------------------------------------------------
XI Voice Response Unit Charges Fees are charged across entire Fund Complex
$10,000.00 set up fee $1,000.00 per month maintenance fee $0.23 per
minute (Time in VRU) $0.10 per call
SCHEDULE D
OUT-OF-POCKET EXPENSES
The Fund shall reimburse Investor Services Group monthly for applicable
out-of-pocket expenses, including, but not limited to the following items:
o Postage - direct pass through to the Fund
o Telephone and telecommunication costs, including all lease,
maintenance and line costs
o Proxy solicitations, mailings and tabulations
o Shipping, Certified and Overnight mail and insurance
o Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
o Duplicating services
o Distribution and Redemption Check Issuance
o Courier services
o Federal Reserve charges for check clearance
o Overtime, as approved by the Fund
o Temporary staff, as approved by the Fund
o Travel and entertainment, as approved by the Fund
o Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record keeping
vendors
o Third party audit reviews
o Insurance
o Pricing services (or services used to determine Fund NAV) o Vendor
set-up charges for Blue Sky and other services
o Blue Sky filing or registration fees
o XXXXX filing fees
o Vendor pricing comparison
o Such other expenses as are agreed to by Investor Services Group and
the Fund
The Fund agrees that postage and mailing expenses will be paid on the
day of or prior to mailing as agreed with Investor Services Group. In addition,
the Fund will promptly reimburse Investor Services Group for any other
unscheduled expenses incurred by Investor Services Group whenever the Fund and
Investor Services Group mutually agree that such expenses are not otherwise
properly borne by Investor Services Group as part of its duties and obligations
under the Agreement.
SCHEDULE E
FUND DOCUMENTS
o Certified copy of the Articles of Incorporation of the Fund, as amended
o Certified copy of the By-laws of the Fund, as amended
o Copy of the resolution of the Board of Directors authorizing the execution
and delivery of this Agreement
o Copies of all agreements between the Fund and its service providers
o Specimens of the certificates for Shares of the Fund, if applicable, in the
form approved by the Board of Directors of the Fund, with a certificate of
the Secretary of the Fund as to such approval
o All account application forms and other documents relating to Shareholder
accounts or to any plan, program or service offered by the Fund
o Certified list of Shareholders of the Fund with the name, address and
taxpayer identification number of each Shareholder, and the number of Shares
of the Fund held by each, certificate numbers and denominations (if any
certificates have been issued), lists of any accounts against which stop
transfer orders have been placed, together with the reasons therefore, and
the number of Shares redeemed by the Fund
o All notices issued by the Fund with respect to the Shares in accordance with
and pursuant to the Articles of Incorporation or By-laws of the Fund or as
required by law and shall perform such other specific duties as are set
forth in the Articles of Incorporation including the giving of notice of any
special or annual meetings of shareholders and any other notices required
thereby.
o A listing of all jurisdictions in which each Portfolio is registered and
lawfully available for sale as of the date of this Agreement and all
information relative to the monitoring of sales and registrations of Fund
shares in such jurisdictions
o Each Fund's most recent post-effective amendment to its Registration
Statement
o Each Fund's most recent prospectus and statement of additional information,
if applicable, and all amendments and supplements thereto
