SERVICES AGREEMENT
THIS AGREEMENT, dated as of this day of November 13, 1998 between
Tomorrow Funds Retirement Trust (the "Fund"), organized under the laws of
Delaware and having its principal place of business at Xxx Xxx Xxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and First Data Investor Services Group, Inc. (the "Investor
Services Group"), a Massachusetts corporation with principal offices at 0000
Xxxxxxxx Xxxxx Xxxxxxxxxxx, 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 and other assets ("Portfolio");
WHEREAS, the Fund initially intends to offer shares in those Portfolios
identified in the attached Exhibit 1, each such Portfolio, together with all
other Portfolios subsequently established by the Fund shall be subject to this
Agreement in accordance with Article 15;
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
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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 of Directors" shall mean the Board of Directors or
Board of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "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.
(f) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(g) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "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;
(i) "Portfolio" shall mean each separate series of shares
offered by the Fund representing interest in a separate portfolio of
securities and other assets;
(j) "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.
(k) "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.
(l) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(m) "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
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2.1 The Fund, on behalf of the Portfolios, hereby appoints and
constitutes Investor Services Group as administrator, fund accounting agent,
transfer agent and dividend disbursing agent for Shares of each respective
Portfolio of the Fund and as shareholder servicing agent for the Fund and
Investor Services Group hereby accepts such appointments and agrees to perform
the duties hereinafter set forth.
Article 3 DUTIES OF INVESTOR SERVICES GROUP
---------------------------------
3.1 As transfer agent Investor Services Group shall be responsible for:
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(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 A 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) 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 Investor Services Group shall be responsible for the following:
performing the administration/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 A and incorporated herein, and subject
to the supervision and direction of the Board of Directors of the Fund.
3.3 As the Fund's print/mail services provider, Investor Services Group
agrees to perform print/mail services with respect to those items listed in
Schedule B for the fees also identified in Schedule B.
3.4 Investor Services Group agrees to undertake certain development
efforts as more fully described in the written schedule of Related Services
annexed hereto as Schedule E and incorporated herein. The parties hereto
acknowledge that Investor Services Group shall be providing the foregoing with
respect to all of the Xxxxx, Xxxx & Xxxxx affiliated mutual funds for which
Investor Services Group provides transfer agent services and accounting and/or
administration services.
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3.5 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 A
in accordance with all applicable laws, rules and regulations, including without
limitation records required by Section 31(a) of the 1940 Act and by applicable
tax laws and regulations. All records shall be available during regular business
hours for inspection and use by the Fund. 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 and
notwithstanding Articles 8 and 16 of this Agreement, 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
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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.
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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
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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 set forth in the written Fee Schedule annexed hereto as
Schedule B 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, reasonable 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 C and incorporated herein.
Schedule C 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
and out-of-pocket expenses within fifteen (15) days following the receipt of the
respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule B, a revised Fee Schedule executed and dated by
the parties hereto.
Article 7 DOCUMENTS
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7.1 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 D. Investor Services Group acknowledges its receipt
of such documents.
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").
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8.2 Investor Services Group hereby grants to the Fund a limited license
to 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.
Article 9 REPRESENTATIONS AND WARRANTIES OF INVESTOR SERVICES GROUP
---------------------------------------------------------
9.1 Investor Services Group represents and warrants to the Fund that:
(a) It is a corporation duly organized an 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
authorized 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;
(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 YEAR 2000 COMPLIANCE. (a) For purposes of this Agreement,
--------------------
"Year 2000 Compliant" means:
(i) date data will process without error or interruption due
solely to the change in century, in any level of computer hardware or
software Investor Services Group provides/uses in performing its
services hereunder, including, but not limited to, microcode, firmware,
system and application programs, files and databases; and
(ii) there will be no loss of any functionality of the
Investor Services Group System due solely to the change in century,
with respect to the introduction, processing or output of date records.
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(b) Investor Services Group represents and warrants that:
(i) The Investor Services Group System will be Year 2000
Compliant by December 31, 1998; provided, however, that Investor
Services Group will be in a process of testing the Investor Services
Group System in regard to Year 2000 Compliance throughout calendar year
1999 and any temporary and immaterial loss of functionality occurring
during the ordinary course of this testing and fixing process shall not
be considered a failure of Investor Services Group to be Year 2000
Compliant.
(ii) The Investor Services Group System will continue to be
interoperable, in the same manner as it is prior to January 1, 2000,
with software and hardware which may deliver records to, receive
records from or interact with the Investor Services Group System in the
course of processing data, provided that such other software and
hardware is Year 2000 Compliant as defined herein and complies with the
interface and format standards specified by Investor Services Group.
(c) The Fund agrees to cooperate fully with Investor Services
Group to ensure the interoperability of the Investor Services Group
System with hardware and software used by Fund. Investor Services Group
shall have the right, at its discretion, to reject any data file which
it in good faith believes will interfere with the ability of the
Investor Services Group System to be Year 2000 Compliant.
Article 10 REPRESENTATIONS AND WARRANTIES OF THE FUND
------------------------------------------
10.1 The Fund represents and warrants to Investor Services Group that:
(a) It is duly organized and 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 Article
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
authorized 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 with respect to all
Shares of the Fund being offered for sale;
(e) Except to the extent that Investor Services Group serves
as the Fund's Blue Sky Filing Agent, 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; and
(f) All outstanding Shares are validly issued, fully paid and
non-assessable. 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.
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Article 11 INDEMNIFICATION
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11.1 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 reasonably believed by Investor
Services Group to be genuine and to be signed, countersigned or
executed or orally communicated by an Authorized Person;
(d) The offer or sales of shares in violation of any
requirement under the federal securities laws or regulations or in
violation of any stop order or other determination or ruling by federal
regulators with respect to the offer or sale of such shares, unless
Investor Services Group is properly notified and has a reasonable
amount of time to act on such notification;
(e) Except to the extent that Investor Services Group serves
as the Fund's Blue Sky Filing Agent, 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
(f) 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.
11.2 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
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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 reasonably 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 11 shall survive the termination of
this Agreement.
Article 12 STANDARD OF CARE
----------------
12.1 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.
12.2 Notwithstanding the foregoing Section 12.1 or anything else
contained in this Agreement to the contrary, Investor Services Group's entire
liability to a Portfolio, to the extent not covered by Investor Services Group's
liability insurance and fidelity bond coverage and without giving effect to any
deductible, for any loss or damage, direct or indirect for any cause whatsoever
(including but not limited to those arising out of this Agreement), and
regardless of the form of action, shall be limited to the Portfolio's actual
direct out-of-pocket expenses which are reasonably incurred by the Portfolio,
but shall not under any circumstances exceed two-million dollars ($2,000,000)
over any three (3) year rolling period.
Article 13 CONSEQUENTIAL DAMAGES
---------------------
13.1 In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential or indirect loss of
profits, reputation or business or any other special damages under any provision
of this Agreement or for any act or failure to act hereunder.
Article 14 TERM AND TERMINATION
--------------------
14.1 This Agreement shall be effective on the date first written above
and shall continue through November 13, 2003 (the "Initial Term"), unless
earlier terminated pursuant to the terms of this Agreement. Thereafter, this
Agreement shall automatically be renewed for successive terms of three (3) years
("Renewal Terms") each.
14.2 Either party may terminate this Agreement at the end of the
Initial Term or any subsequent Renewal Term upon not less than thirty (30) days
or more than one-hundred eighty (180) days prior written notice to the other
party.
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14.3 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. Upon such
termination and payment by the Fund of all outstanding, undisputed fees owed to
Investor Services Group, Investor Services Group will deliver to such successor
transfer agent a certified list of shareholders of the Fund (with names and
addresses), and all other relevant books, records, correspondence and other Fund
records or data in the possession of Investor Services Group, and Investor
Services Group will cooperate with the Fund and any successor transfer agent in
the substitution process.
14.4 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 or 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. In addition to the foregoing, if the Board of Trustees of the Fund
instructs the Fund to terminate this Agreement in connection with and after a
material failure by Investor Services Group to perform its duties and
obligations hereunder, the Fund may terminate this Agreement by giving thirty
(30) days written notice of such termination to Investor Services Group
irrespective of whether the material breach has been remedied.
Article 15 ADDITIONAL PORTFOLIOS
---------------------
15.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Exhibit 1, with respect to which the Fund
desires to have Investor Services Group render services 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 16 CONFIDENTIALITY
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16.1 In connection with the services provided by Investor Services
Group hereunder, certain confidential and proprietary information regarding
Investor Services Group and the Fund may be disclosed to the other. In
connection therewith, the parties agree as follows:
(a) Confidential Information disclosed under this Agreement
shall mean:
(i) any data or information that is competitively sensitive
material, and not generally known to the public, including,
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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 Investor Services Group or the
Fund, their respective parent corporation, their respective
subsidiaries and affiliated companies and the customers,
clients and suppliers of any of the foregoing;
(ii) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality
affords Investor Services Group or the Fund a competitive
advantage over its competitors; and
(iii) 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.
(b) 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 which now exist or come into the control or possession
of the party.
16.2 Except as expressly authorized by prior written consent of the
disclosing party ("Discloser"), the party receiving Confidential Information
("Recipient") shall:
(a) limit access to Discloser's Confidential Information to
Recipient's employees who have a need-to-know in connection with the
subject matter thereof;
(b) advise those employees who have access to the Confidential
Information of the proprietary nature thereof and of the obligations
set forth in this Confidentiality Agreement;
(c) take appropriate action by instruction or agreement with
the employees having access to Discloser's Confidential Information to
fulfill Recipient's obligations under this Confidentiality Agreement;
(d) safeguard all of Discloser's Confidential Information by
using a reasonable degree of care, but not less than that degree of
care used by Recipient in safeguarding its own similar information or
material;
(e) use all of Discloser's Confidential Information solely for
purposes that it was intended;
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(f) not disclose any of Discloser's Confidential Information
to third parties; and
(g) not disclose the existence of the discussions to any third
party.
16.3 Upon Discloser's request, Recipient shall surrender to Discloser
all memoranda, notes, records, drawings, manuals, records, and other documents
or materials (and all copies of same) relating to or containing Discloser's
Confidential Information. When Recipient returns the materials, Recipient shall
certify in writing that it has returned all materials containing or relating to
the Confidential Information.
16.4 The obligations of confidentiality and restriction on use in this
Article 16 shall not apply to any Confidential Information that Recipient
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 Recipient; or
(b) was lawfully received by Recipient from a third party free
of any obligation of confidence to the third party; or
(c) was already in Recipient's possession prior to receipt
from Discloser; 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 Discloser as much advance notice
as practical of the possibility of disclosure to allow Discloser to
stop such disclosure or obtain a protective order concerning such
disclosure; or
(e) is subsequently and independently developed by Recipient's
employees, consultants or agents without reference to Confidential
Information.
16.5 The Fund and Investor Services Group agree that money damages
would not be a sufficient remedy for breach of this Article 16. Accordingly, in
addition to all other remedies that either party may have, a party shall be
entitled to specific performance and injunctive or other equitable relief as a
remedy for any breach of this Agreement. The parties agree to waive any
requirement for a bond in connection with any such injunctive or other equitable
relief.
Article 17 FORCE MAJEURE
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17.1 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, or by circumstances
beyond its reasonable control, including strikes, labor difficulties, mechanical
breakdowns, equipment or transmission failure or damage, such party shall not be
liable for damages to the other for any damages resulting from such failure to
perform or otherwise from such causes.
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Article 18 AMENDMENTS
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18.1 This Agreement may only be amended or modified by a written
instrument executed by both parties.
Article 19 SUBCONTRACTING
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19.1 The Fund agrees that Investor Services Group may, in its
discretion, subcontract for certain of the services described under this
Agreement or the Schedules hereto; provided that the appointment of any such
Investor Services Group shall not relieve Investor Services Group of its
responsibilities hereunder.
Article 20 ARBITRATION
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20.1 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.
20.2 The parties hereby agree that judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction.
20.3 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 20.
Article 21 NOTICE
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21.1 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:
Tomorrow Funds Retirement Trust
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
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To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: President
with a copy to Investor Services Group's General Counsel
Article 22 SUCCESSORS
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22.1 This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns, provided, however,
that this Agreement shall not be assigned to any person other than a person
controlling, controlled by or under common control with the assignor without the
written consent of the other party, which consent shall not be unreasonably
withheld.
Article 23 GOVERNING LAW
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23.1 This Agreement shall be governed exclusively by the laws of the
Commonwealth of Massachusetts without reference to the choice of law provisions
thereof. Each party hereto hereby (i) consents to the personal jurisdiction of
the Commonwealth of Massachusetts courts over the parties hereto, hereby waiving
any defense of lack of personal jurisdiction; and (ii) appoints the person to
whom notices hereunder are to be sent as agent for service of process.
Article 24 COUNTERPARTS
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24.1 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 25 CAPTIONS
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25.1 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 26 USE OF INVESTOR SERVICES GROUP/FUND NAME
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26.1 The Fund shall not use the name of Investor Services Group in any
Prospectus, Statement of Additional Information, Shareholders' report, sales
literature or other material relating to the Fund in a manner not approved prior
thereto; provided, that Investor Services Group need not receive notice of all
reasonable uses of its name which merely refer in accurate terms to its
appointment hereunder or which are required by any government agency or
applicable law or rule.
14
26.2 Investor Services Group shall not use the name of the Fund or
material relating to the Fund on any documents or forms for other than internal
use in a manner not approved prior thereto; provided, that the Fund need not
receive notice of all reasonable uses of its name which merely refer in accurate
terms to the appointment of Investor Services Group or which are required by any
government agency or applicable law or rule.
Article 27 RELATIONSHIP OF PARTIES
-----------------------
27.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
Article 28 ENTIRE AGREEMENT; SEVERABILITY
------------------------------
28.1 This Agreement and the Exhibits and Schedules attached hereto
constitute the entire agreement of the parties hereto relating to the matters
covered hereby and supersede any previous agreements. If any provision is held
to be illegal, unenforceable or invalid for any reason, the remaining provisions
shall not be affected or impaired thereby.
28.2 This Agreement relates only to the subject matter hereof. Nothing
in this Agreement shall effect the relationship, rights, duties or other
obligations of the parties hereto governed by any other agreement.
Article 29 LIMITATION OF LIABILITY
-----------------------
29.1 It is understood and expressly stipulated that neither the
Shareholders nor the Trustees or officers of the Fund shall be personally liable
hereunder. No Portfolio shall be liable for the liabilities of any other
Portfolio. All persons dealing with the Fund or a Portfolio must look solely to
the property of the Fund or such Portfolio, as the case may be, for enforcement
of any claims against the Fund or such Portfolio. It is also understood that
each Portfolio shall be deemed to be entering into a separate Agreement with
Investor Services Group so that it is as if each Portfolio had signed a separate
agreement with Investor Services Group with Investor Services Group and that a
single document is being signed simply to facilitate the execution and
administration of the Agreement.
15
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.
TOMORROW FUNDS RETIREMENT TRUST
On behalf of each Portfolio set forth on Exhibit I
By:________________________________
Title:_____________________________
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:________________________________
Title:_____________________________
EXHIBIT I
Tomorrow Funds Retirement Trust
LIST OF PORTFOLIOS
as of
Tomorrow Long - Term Retirement Fund (Institutional Class and Adviser Class)
Tomorrow Medium - Term Retirement Fund (Institutional Class and Adviser Class)
Tomorrow Short - Term Retirement Fund (Institutional Class and Adviser Class)
Tomorrow Post Retirement Fund (Institutional Class and Adviser Class)
17
Schedule A
DUTIES OF INVESTOR SERVICES GROUP
A. TRANSFER AGENT SERVICES
-----------------------
1. 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.
2. 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 such other
correspondence as may be from time to time mutually agreed upon between Investor
Services Group and the Fund.
3. SHARE CERTIFICATES.
------------------
(a) 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.
(b) 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.
(c) 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.
4. 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.
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5. SALES OF SHARES
---------------
(a) 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.
(b) 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.
6. TRANSFER AND REPURCHASE
-----------------------
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) Investor Services Group, upon receipt of the monies paid
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.
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(f) 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.
7. DIVIDENDS
---------
(a) 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 to Investor Services Group on the payment
date and whether such dividend or distribution is to be paid in Shares at net
asset value.
(b) On or before the payment date specified in such resolution
of the Board of Directors, the Fund will pay to Investor Services Group
sufficient cash to make payment to the Shareholders of record as of such payment
date.
(c) 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.
8. CASH MANAGEMENT SERVICES. Investor Services Group shall establish
------------------------
and maintain various demand deposit accounts ("DDA's") with a third party cash
management services provider in order to facilitate the services being provided
by Investor Services Group hereunder. Investor Services Group shall retain any
and all interest income and/or related earnings credits which may be derived
from maintaining such DDA's.
9. 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.
(a) documentation of electronic search policies and procedures;
(b) execution of required searches;
(c) creation and mailing of confirmation letters;
(d) taking receipt of returned verification forms;
(e) providing confirmed address corrections in batch via electronic media;;
(f) tracking results and maintaining data sufficient to comply with the
Lost Shareholder Rules; and
(g) preparation and submission of data required under the Lost Shareholder
Rules.
20
10. In addition to and neither in lieu nor in contravention of the
services set forth above, Investor Services Group shall perform all the
customary services of a transfer agent, registrar, dividend disbursing agent and
agent of the dividend reinvestment and cash purchase plan as described herein
consistent with those requirements in effect at the date of the performance of
such services. The detailed definition, frequency, limitations and associated
costs (if any) set out in the attached fee schedule, include but are not limited
to: maintaining all Shareholder accounts, preparing Shareholder meeting lists,
mailing proxies, tabulating proxies, mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident and non-resident alien accounts
where applicable, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders.
B. ADMINISTRATION SERVICES
-----------------------
(1) Performing "Blue Sky" compliance functions, as follows:
-- 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.
-- 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.
-- 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.
-- 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.
-- If Investor Services Group is instructed by the Fund not to register
Shares in a particular jurisdiction, Investor Services Group will use
21
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. FUND ACCOUNTING SERVICES
------------------------
Performing fund accounting and bookkeeping services (including the
maintenance of such accounts, books and records of the Fund as may be required
by Section 31(a) of the 0000 Xxx) as follows:
-- Daily, Weekly, and Monthly Reporting
-- Portfolio and General Ledger Accounting
-- Daily Valuation of all Portfolio Securities
-- Daily Valuation and NAV Calculation
-- Comparison of NAV to market movement
-- Review research of price tolerance/fluctuation report to market
movements and events
-- Research of items appearing on the price exception report
-- Weekly cost monitoring along with market-to-market valuations in
accordance with Rule 2a-7
-- Security trade processing
-- Daily cash and position reconciliation with the custodian bank
-- Daily updating of price and distribution rate information to the
Transfer Agent/Insurance Agent
-- Daily support and report delivery to Portfolio Management
-- Daily calculation of Portfolio adviser fees and waivers
-- Daily calculation of distribution rates
-- Daily investable cash call
-- Monitor and research aged receivables
22
-- Collect aged income items and perform reclaims
-- Update NASDAQ reporting
-- Daily maintenance of each Portfolio's general ledger including
expense accruals
-- Daily NAV per share notification to other vendors as required
-- Calculation of 30-day SEC yields and total returns
-- Preparation of month-end reconciliation package
-- Monthly reconciliation of Portfolio expense records
-- Application of monthly pay down gain/loss
-- Preparation of all annual and semi-annual audit work papers
D. DCXCHANGESM SERVICES
--------------------
1. Investor Services Group has developed a recordkeeping service link
("DCXCHANGEsm") between investment companies and benefit plan consultants (the
"Recordkeepers") which administer employee benefit plans under Section 401(a) of
the Internal Revenue Code (the "Plans").
2. Investor Services Group has entered into agreements with various
Recordkeepers relating to the recordkeeping and related services performed on
behalf of such Plans in connection with daily valuation and processing of orders
for investment and reinvestment of assets of the Plans in various investment
options available to the participants under such Plans (the "Participants").
3. The Fund desires to participate in the DCXCHANGEsm Program and
retain Investor Services Group to perform such services with respect to shares
of the Funds ("Shares") held by or on behalf of the Participants as further
described herein and Investor Services Group is willing and able to furnish such
services on the terms and conditions hereinafter set forth.
4. Investor Services Group agrees to perform recordkeeping and related
services for the benefit of the Plan Participants that maintain shares of the
Fund through Plans administered by certain Recordkeepers. Investor Services
Group shall subcontract with Recordkeepers to link the Investor Services Group
recordkeeping system with the Recordkeepers, in order for the Recordkeepers to
maintain Fund shares positions for each Participant.
23
Schedule B
FEE SCHEDULE
------------
1. Transfer Agent Fees:
(a) Open Account Fees: Annual Monthly
Minimum
$18.50 $2,000 per Portfolio
(b) Closed Accounts: $3 per account per year
(c) Retirement Plan Accounts (In addition to open/closed account fees):
Setup fee: $10 per account
Maintenance Fee: $15 per plan account/per year
Premature Distribution: $10 per transaction
(d) NSCC: $.15 per transaction
$.10 per same day confirm
(e) Voice Response Usage: $.23 per minute
$.10 per call
$500 per month /line charge
(f) In-Bound Teleservicing: $.08 per call/digital recording
$100,000 annual ($8,333.33 per
month) total charge for all
WP&G affiliated funds for which
Investor Services Group provides
TA services.
(g) Transmission Fees: $500 per month total charge for all
WP&G affiliated funds for which
Investor Services Group provides
TA services.
(h) 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.
2. Fund Accounting Fees: 4bp per year/$30,000 annual minimum
per active portfolio year one,
$40,000 annual minimum thereafter
24
3. Administration/Blue Sky Services:
$6,000 per annum per Portfolio
$3,000 per annum per additional
class in excess of one class per
Portfolio
4. DCXCHANGE(sm) : The Fund shall pay Investor
Services Group annualized fees of 25
basis points for each Plan
Participant account in the
respective Portfolio that is open
during any monthly period.
5. Print Mail Fees:
(a) Standards Fees:
TESTING APPLICATION OR DATA REQUIREMENTS: $3.00/fax to client or
Record Keeper
DAILY WORK (CONFIRMS):
HAND: $55/K with $50.00 minimum (includes 1
insert)
$0.06/each additional insert
MACHINE: $32/K with $50.00 minimum (includes 1
insert)
$0.02/each additional insert
DAILY CHECKS:
HAND: $55/K with $100.00 minimum daily (includes 1
insert)
$0.07/each additional insert
MACHINE: $32/K with $75.00 minimum (includes 1
insert)
$0.02/each additional insert
* There is a $3.00 charge for each 3606 Form sent.
STATEMENTS:
HAND: $60/K with $75.00 minimum (includes 1
insert)
$0.06/each additional insert
$125/K for intelligent inserting
MACHINE: $40/K with $75.00 minimum (includes 1
insert)
$0.02 each additional insert
$45/K for intelligent inserting
PERIODIC CHECKS:
HAND: $91/K with $100.00 minimum (includes 1
insert)
$0.08/each additional insert
MACHINE: $52/K with $100.00 minimum (includes 1
insert)
$0.01/each additional insert
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
25
PRESORT CHARGE: $0.277 postage rate
$0.035 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 $0.70 each
Oversized Envelopes $0.35 each
FORMS DEVELOPMENT/PROGRAMMING FEE: $100/hr
CUTTING CHARGES: $8.00/K
(b) Special Mailing Fees:
This 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 maximum premium of 50% based on turn around
requirements.
DAILY WORK (CONFIRMS):
HAND: $125.00 to create an admark tape
$8.00/K to zip + 4 data enhance with $125.00
minimum
$75.00/hr for any data manipulation
$6.00/K combo charge
ADMARK & MACHINE INSERT
#10, #11, 6x9: $44/K to admark envelope and machine insert
1 piece, with $125.00 min
$2.50/K for each additional insert
$34/K to admark only with $75.00 minimum
$25.00/X xxxx sort
9x12: $100/K to admark envelope and machine insert
1 piece, with $125.00 min
$5.00/K for each additional insert $38/K to
admark only with $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
$25.00/X xxxx sort
26
PRESSURE/SENSITIVE LABELS:
$0.26 each to create, affix and hand insert 1 piece, with a
$75.00 minimum $0.06 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: $0.30 per entry with $50.00 minimum
PRESORT FEE: $0.035 per piece
6. Fee Adjustments:
After the one year anniversary of the effective date of this Agreement,
Investor Services Group may adjust the above fees 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). Notwithstanding the
foregoing, Investor Services Group agrees that there shall be no
increase to the above referenced Transfer Agent Fees or Fund Accounting
Fees during the Initial Term.
27
Schedule C
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:
-- Microfiche/microfilm production
-- Magnetic media tapes and freight
-- Printing costs, including certificates, envelopes, checks and
stationery
-- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
-- Due diligence mailings
-- Telephone and telecommunication costs, including all lease,
maintenance and line costs
-- Ad hoc reports
-- Proxy solicitations, mailings and tabulations
-- Daily & Distribution advice mailings
-- Shipping, Certified and Overnight mail and insurance
-- Year-end form production and mailings
-- Terminals, communication lines, printers and other equipment and
any expenses incurred in connection with such terminals and lines,
as approved by the Fund
-- Duplicating services
-- Courier services
-- Incoming and outgoing wire charges Federal Reserve charges for
check clearance and other fund related banking charges
-- Overtime, as approved by the Fund
-- Temporary staff, as approved by the Fund
-- Travel and entertainment, as approved by the Fund
-- Record retention, retrieval and destruction costs, including,
but not limited to exit fees charged by third party record
keeping vendors
-- Third party audit reviews
-- All conversion costs: including System start up costs
-- All Systems enhancements after the conversion at the rate of
$150.00 per hour (except as otherwise stated)
-- Insurance
-- Pricing services (or services used to determine Fund NAV)
-- Forms and supplies for the preparation of Board meetings and
other materials for the Fund
-- SAS 70
-- Cold Storage
-- Vendor pricing comparison
-- Manual pricing
28
-- Such other miscellaneous expenses reasonably incurred by Investor
Services Group in performing its duties and responsibilities under
this Agreement.
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.
29
Schedule D
Fund Documents
-- Certified copy of the Articles of Incorporation of the Fund, as
amended
-- Certified copy of the By-laws of the Fund, as amended,
-- Copy of the resolution of the Board of Directors authorizing the
execution and delivery of this Agreement
-- 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
-- All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by
the Fund
-- 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
-- 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.
30
Schedule E
Systems Development
DEVELOPMENT EFFORTS
-------------------
Investor Services Group agrees to undertake the development efforts listed
below. All programming will be completed in accordance with Xxxxx, Xxxx and
Xxxxx'x documented and approved business requirements. All such
documentation and business requirement shall be mutually agree to in
writing prior to the start of any development work. Investor Services Group
agrees to provide a total of 1700 programming hours for the automation
projects listed below at no cost to the Fund and to use all commercially
reasonable efforts to ensure that such development work shall be completed
within twelve months of the execution of the Agreement. The expense of any
programming required to be undertaken in excess of the 1700 hours will be
borne by Xxxxx, Xxxx & Xxxxx.
-- Dividend sweep to another mutual fund as defined in the WPG
Transmission Enhancement Referral Business Requirements dated July
21, 1998 Section III, Issue VII.
-- Transmission enhancement from WPG Margin Department according to
the WPG Transmission Enhancement Referral Business Requirements
dated July 21, 1998.
-- PC link to PC link for transmission enhancement.
-- Permit sweep accounts to reinvest dividends into accounts that
have a zero balance.
-- Full automation of the Trust's December position file.\
-- Suppression of all December statements except for December 31st
statements.
31
