Exhibit (h)
SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 31st day of May, 1999 between WILSHIRE
TARGET FUNDS, INC. (the "Fund"), a Maryland corporation having its principal
place of business at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx and FIRST DATA
INVESTOR SERVICES GROUP, INC. ("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;
WHEREAS, the Fund intends to offer shares in those Portfolios
identified in the attached Exhibit 1, as the same may be amended from time to
time 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 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.
The Fund, on behalf of the Portfolios, hereby appoints and constitutes
Investor Services Group as transfer agent and dividend disbursing agent for
Shares of each respective Portfolio of the Fund and as administrator, fund
accounting agent, and 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 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 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) 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) 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, Investor Services Group shall have no responsibility
under this Agreement to (i) identify those transactions and assets to be treated
as exempt from blue sky reporting for each State or (ii) verify the
establishment of transactions for each State on the system prior to activation
and thereafter monitor the daily activity for each State which shall be the
responsibility of the Fund's blue sky service agent (which may be Investor
Services Group under separate agreement). The responsibility of Investor
Services Group under this Agreement 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 A
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 31 a-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 reasonably 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 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, out-of-pocket expenses incurred by Investor Services Group in the
performance of its duties hereunder. Out-of-pocket expenses shall include 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 and authorized in advance
by an officer of the Fund who is not an affiliate of Investor Services Group.
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.
6.5 The Fund acknowledges that the fees 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 D.
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.
Article 9 Representations and Warranties.
9.1 Investor Services Group represents and warrants to the Fund that:
(a) it is a corporation duly organize and 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 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 authorize
it to enter into this Agreement;
(d) a registration statement under the Securities Act of 1933,
as amended, and the 1940 Act relating to 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;
and
(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.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, INVESTOR SERVICES GROUP DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARR~NTIES, EXPRESS OR IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING,
WITHOUT LIMITATION, ANY ~7AI~ANTIES 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, willful misfeasance 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 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;
(d) except to the extent that Investor Services Group serves
as the Fund's Administrator under separate agreement, 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 negligent
acts or omission to act, willful misfeasance or bad faith or the breach
of any representation or warranty of the Fund made herein.
10.2 Investor Services Group shall indemnify and hold harmless the Fund
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 the Fund or for which the Fund may be held
to be liable in connection with this Agreement or Investor Services Group's
performance hereunder (also a "Claim"), if such Claim arises by reason of
Investor Services Group's refusal to comply with the terms of this Agreement, or
any Claim which arises out of Investor Services Group's negligent acts or
omission to act, willful misfeasance or bad faith hereunder or the breach of any
representation or warranty of Investor Services Group made herein.
10.3 In any case in which the one party hereto may be asked to
indemnify or hold the other harmless pursuant to the provisions of Sections 10.1
or 10.2 hereof, the party seeking indemnification will notify the other party
promptly after identifying any situation which it believes presents or appears
likely to present a claim for indemnification hereunder, although the failure to
do so shall not prevent recovery by the party seeking indemnification except to
the extent that such failure prejudices the other party in its defense of any
such claim, and shall keep the other party advised with respect to all
developments concerning such situation. The party from whom indemnification is
sought shall have the option to defend the other party against any Claim which
may be the subject of this indemnification, and, in the event that the party
from whom the indemnification is sought so elects, such defense shall be
conducted by counsel chosen by the party from whom the indemnification is sought
and satisfactory to the other party, and thereupon the party from whom the
indemnification is sought shall take over complete defense of the Claim and the
other party shall sustain no further legal or other expenses in respect of such
Claim. The party seeking indemnification will not confess any Claim or make any
compromise in any case in which the other party will be asked to provide
indemnification, except with the other party's prior written consent. The
obligations of the parties hereto under this Article 10.3 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 party seeking indemnification 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 Claims
arising out of or related to this Agreement and regardless of the form of action
or legal theory shall not exceed one million ($1,000,000) dollars plus any and
all amounts available to Investor Services Group or the Fund in respect of such
Claims under Investor Services Group's liability insurance, which Investor
Services Group agrees continuously to maintain in principal coverage amounts of
at least five million dollars ($5,000,000)
at all times during the term of this Agreement and for at least one (1) year
thereafter. Investor Services Group agrees to furnish initial certification of
such insurance coverage upon the execution of this Agreement and subsequent
certification of such coverage upon the request of the Fund and immediately
notify the Fund of any modification or termination thereof. 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 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 EITHER PARTY, THEIR AFFILIATES OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY FOR EXEMPLARY,
PUNITIVE, SPECIAL, INDIRECT OR CONSEOUENTIAL 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 three (3) 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 Upon termination, for whatever reason, Investor Services Group
shall cooperate fully with the Fund and with any successor administrator,
transfer and dividend disbursing or shareholder services agent for the Fund in
connection with the administration of the Fund's business affairs or the
transfer of the transfer, dividend disbursing or shareholder services functions
to such successor agent, and shall act promptly and expeditiously in all matters
relating thereto, including the transfer of all records, data and information
reasonable necessary or appropriate to such transfer of functions, with a view
toward achieving an orderly, efficient and cost-effective transition on any
reasonable schedule which may be established therefor by the Fund, in good
faith, taking into account the circumstances of Investor Services Group,
including the time of year, other operational demands made on Investor Services
Group at the time and any other factors which Investor Services Group may
communicate to the Fund as being relevant to the establishment of such schedule.
The parties agree that any transition schedule allowing for a period of sixty
(60) days or more to complete the transition shall be deemed a "reasonable
schedule" for purposes of this Section 13.3. The Fund agrees to reimburse
Investor Services Group for all reasonable costs and expenses incurred in
connection with the aforementioned transfer to a successor agent.
13.4 A party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the other party in the event that the
other party has become insolvent or made a general assignment for the benefit of
creditors, or a petition under the Bankruptcy Code is filed by or against the
other party and the other party has not discharged said petition within thirty
(30) days after such filing.
13.5 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. The termination of this Agreement by a non-defaulting
party shall not constitute a waiver of any other rights or remedies of such
party with respect to services performed prior to such termination or rights of
such party to be reimbursed for out-of-pocket expenses hereunder. 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.
13.6 Notwithstanding anything contained in this Agreement to the
contrary and except as provided in Sections 13.4 and 13.5 hereof, 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.
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 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)
(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 it's own confidential information of a
similar nature. The Fund and Investor Services Group may use the Confidential
Information only to exercise its rights under this Agreement. 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 its employees who have a need to
know the Confidential Information to perform work for the other, provided that
each shall use reasonable efforts to ensure that the Confidential Information is
not duplicated or disclosed by its employees 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.
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 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, provided
that (i) the financial capacity of such assignee is not materially less than
Investor Services Group's; (ii) the nature and quality of the services to be
provided hereunder are not materially adversely affected by such assignment; and
(iii) the quality and capabilities of the personnel and facilities of the
assignee are not materially less than Investor Services Group's. 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, provided, however, that Investor Services Group shall at all
times remain fully responsible for the acts or omissions of such sub-contractors
as if it were providing such services directly.
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
suff1ciently 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:
Wilshire Target Funds, Inc.
c/o Wilshire Associates Incorporated
0000 Xxxxx Xxxxxx - Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Vice President and General Counsel
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, 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 Client 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.
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 25 Entire Agreement: Severability.
25.1 This Agreement, including Schedules, Addenda1 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
an 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 warranties, shall remain
fully effective.
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.
WILSHIRE TARGET FUNDS, INC.
By:/s/ Xxxxxx X. Xxxxxxx
Title: President
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
Title: Senior Vice President
Exhibit 1
List of Portfolios
Large Company Growth Portfolio
Large Company Value Portfolio Small
Company Growth Portfolio Small Company
Value Portfolio Wilshire 5000 Index
Portfolio
Schedule A
DUTIES OF INVESTOR SERVICES GROUP
TRANSFER AGENCY 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 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.
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 ri8ht 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.
(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 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. 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.
9. 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 (or other investments with at least a AA, or
similar rating). With respect to funds maintained in money market fund accounts
and other investments, 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.
10. 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.
11. DCXchange Services. Investor Services Group agrees to perform
recordkeeping and related services for the benefit of participants in employee
benefit plans under Section 401 (k) of the Internal Revenue Code ("Plans")
("Plan Participants") that maintain Shares of the Fund through Plans
administered by certain benefit plan consultants ("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 Share positions for each Participant. Fund
positions of the Participants shall constitute open accounts for which the Fund
shall pay to Investor Services Group the annual fee specified in the schedule of
fees attached hereto as Schedule B.
12. Miscellaneous. In addition to and neither in lieu nor in
contravention of the services set forth above, Investor Services Group shall:
(i) 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 as at the date
of this Agreement. 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.
II. ADMINISTRATION SERVICES
(a) Maintaining office facilities (which may be in the offices of
Investor Services Group or a corporate affiliate) and furnishing corporate
officers for the Fund;
(b) Furnishing data processing services, clerical services, and
executive and administrative services and standard stationery and office
supplies;
(c) Performing all functions ordinarily performed by the office of a
corporate treasurer, and furnishing the services and facilities ordinarily
incident thereto, as follows:
o Expense Accrual Monitoring
o Determination of Dividends
o Preparation materials for review by the Board, e.g., Rules2a-7,10f-3,
17a-7, 17e-1 and 144A
o Tax and Financial Counsel
o Creation of expense pro formas for new Portfolios/classes
o Reporting to investment company reporting agencies (i.e., Lipper)
o Compliance Testing including Section 81 7(h) (daily, weekly or
monthly)
(d) Preparing reports to the Fund's Shareholders and the SEC including,
but not necessarily limited to, Annual Reports and Semi-Annual Reports on Form
N-SAR;
(e) Preparing and filing the Fund's tax returns and providing
shareholder tax information to the Fund's transfer agent;
(f) Assisting the Adviser, at the Adviser's request, in monitoring and
developing compliance procedures for the Fund which will include, among other
matters, procedures to assist the Adviser in monitoring compliance with each
Portfolio's investment objective, policies, restrictions, tax matters and
applicable laws and regulations;
(g) Performing "Blue Sky" compliance functions, as follows:
o 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.
o 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.
o 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.
o 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.
o 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.
(h) Performing corporate secretarial services including the following:
o Assist in maintaining corporate records and good standing status of
Fund in its state of organization
o Develop and maintain calendar of annual and quarterly board approvals
and regulatory filings
o Prepare notice, agenda, memoranda, resolutions and background materials
for legal approvals at quarterly board meetings and committee meetings;
attend meetings; make presentations where appropriate; prepare minutes;
follow up on issues
o Provide support for one special in person board meeting per year and
written consent votes where needed
(i) Performing the following legal services:
o Prepare and file annual Post-Effective Amendment
o Prepare and file Rule 24f-2 Notice
o Review and file Form N-SAR
o Review, Edgarize and file Annual and Semi-Annual Financial Reports
o Communicate significant regulatory or legislative developments to Fund
management and directors and provide related planning assistance where
needed
o Consult with Fund management regarding portfolio compliance and Fund
corporate and regulatory issues as needed
o Maintain effective communication with outside counsel and review legal
bills of outside counsel
o Coordinate the printing and mailing process with outside printers for
all shareholder publications
o Arrange D&O/E&O insurance and fidelity bond coverage for Fund
o Assist in monitoring Fund Code of Ethics reporting and provide such
reports to the person designated under the Fund's Code
(j) Performing, in accordance with the Written Instructions of the
Fund, the following Special Legal Services in accordance with the pricing
structure listed on the Fee Schedule attached to this Agreement as Schedule C:
o Assist in managing SEC audit of the Fund at the Adviser's principal
place of business
o Review sales material and advertising for Fund Prospectus compliance
o Assist in new Portfolio start-up (to the extent requested)
Coordinate time and responsibility schedules Prepare Fund
corporate documents (MTA/by-laws)
Draft/file registration statement (including investment
objectives/policies and prospectuses) Respond to and negotiate
SEC comments Draft notice, agenda and resolutions for
organizational meeting; attend board meeting; make
presentations where appropriate; prepare minutes and follow up
on issues
o Assist in developing compliance guidelines and procedures to improve
overall compliance by Fund and service providers
o Prepare notice, agenda, memoranda and background materials for special
board meetings, make presentations where appropriate, prepare minutes
and follow up on issues
o Prepare proxy material for special meetings (including fund merger
documents)
o Prepare Post-Effective Amendments for special purposes (e.g., new funds
or classes, changes in advisory relationships, mergers, restructurings)
o Prepare special Prospectus supplements where needed
o Assist in extraordinary non-recurring projects,
including providing consultative legal services,
e.g., Arrange CDSC financial programs Prospectus
simplification Profile prospectuses Exemptive order
applications
III. 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:
o Daily, Weekly, and Monthly Reporting
o Portfolio and General Ledger Accounting
o Daily Valuation of all Portfolio Securities
o Daily Valuation and NAV Calculation
o Comparison of NAV to market movement
o Review research of price tolerance/fluctuation report to market
movements and events
o Research of items appearing on the price exception report
o Weekly cost monitoring along with market-to-market valuations in
accordance with Rule 2a-7
o Security trade processing
o Daily cash and position reconciliation with the custodian bank
o Daily updating of price and distribution rate information to the
Transfer Agent/Insurance Agent
o Daily support and report delivery to Portfolio Management
o Daily calculation of Portfolio adviser fees and waivers
o Daily calculation of distribution rates
o Daily investable cash call
o Monitor and research aged receivables
o Collect aged income items and perform reclaims
o Update NASDAQ reporting
o Daily maintenance of each Portfolio's general ledger including expense
accruals
o Daily NAV per share notification to other vendors as required
o Calculation of 30-day SEC yields and total returns
o Preparation of month-end reconciliation package
o Monthly reconciliation of Portfolio expense records
o Application of monthly pay down gain/loss
o Preparation of all annual and semi-annual audit work papers
Schedule B
Fee Schedule
TRANSFER AGENCY FEES:
Annual Fees:
Open Account Fees: $17.50 Per Open Account
Closed Account Fees: $3.60 Per Closed Account
Fund Minimums: $24,000 Per Portfolio Per Year
Each Additional Class: $18,000 Per Portfolio Per Year
Conversion Costs: Free Set-Up Fee
Value Added Services:
Cost Basis Accounting: Free Set-up Fee
$.35 Per Eligible
Account Per Month
AVR Solution: $7,500 Set-Up Fee
$300.00 Monthly
Minimum Or
--
$.2125 Per Minute
Charge
$.0775 Per Minute
Telecom Charge
$.10 per Call
FundServ: $5,000 Set-Up Fee
$.15 Per Trade
Plus $.10 Same
Day Trades
Asset Allocation/Reallocation: Free Set-Up Fee
$.25 Per Trade
Via NSCC
Direct Access Zip Link: $5,000 Set-Up Fee
$1,000 Per Month
$.03/Record Plus
$.015/Price Record
DCXchange Program: 25 bp based on
the assets for all
Plan Participant
Accounts in the
Fund
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.
Print/Mail Fees.
(a) Standard Pricing:
Testing Application or Data Requirements: $3.00/fax
Work Order: $15.00 per work order
Daily Work (Confirms):
Hand: $71/K with $20.00 minimum (includes BRE or CRE)
$0.07/each additional insert
Machine: $42/K with S15.00 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
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 $75S.00 minimum
$25.00/X xxxx sort
9xl2: $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
FUND ACCOUNIING AND ADMINISTRATION FEES:
Annual Fees:
Administration Fees:
First $1 billion in aggregate assets 0.15% of monthly average net
assets Next $4 billion in aggregate assets 0.10% of monthly average net
assets Aggregate assets in excess of $4 billion 0.08% of monthly
average net assets Minimum fee: $125,000 per annum (assuming five
Portfolios)
Fund Accounting Fees:
Flat Fee: $25,000 per Portfolio
Additional charge: $2,000 per additional class
FEE WAIVERS: (Applicable to the Wilshire 5000 Index Portfolio only)
Transfer Agency Fee Waivers:
$24,000 per Investment Class per annum
$18,000 per Institutional Class per annum
$42,000 Total Waiver per annum
Once the per account fees exceed the waiver amount, the Fund will receive a
credit equal to the foregoing waiver.
Fund Accounting Fee Waivers:
$25,000 per Portfolio per annum
$ 2,000 per additional class per annum
$27,000 Total Waiver per annum
Administration Fee Waivers:
Assets less than $500 MM 100% of annual administration fee
Assets equal to or greater than $500 MM
But less than $1,000 MM 85% of annual administration fee
Assets equal to or greater than $1,000 MM
But less than $2,000 MM 75% of annual administration fee
Assets equal to or greater than $2,000 MM 50% of annual administration fee
In addition, the amount of the Transfer Agency Fee Waiver (or corresponding
credit) and Fund Accounting Fee Waiver will be determined in accordance with the
foregoing schedule. For example, if the assets of the Wilshire 5000 Index
Portfolio are $750 MM, the Portfolio shall be entitled to a Transfer Agency Fee
Waiver (or credit) equal to $35,700 (85% of $42,000), a Fund Accounting Fee
Waiver equal to $22,950 (85% of $27,000) and an Administration Fee Waiver equal
to $956,250 (85% of $1,125,000).
GENERAL:
1.1 First Data may charge a service fee equal to the lesser of (1) one and
one-half percent (1 1/2%) per month of (ii) the highest interest rate
legally permitted on any unpaid amounts, unless such amounts are
ultimately determined not due in accordance with the Payment Dispute
Procedure. Client shall also reimburse First Data for all reasonable
expenses to collect delinquent amounts, including reasonable attorneys'
fees and court costs.
1.2 First Data may adjust any annual or monthly 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).
1.3 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
1.4 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
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:
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 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 b 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.
- Copies of all agreements between the Fund and its service
providers
- 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
- Each Fund's most recent post-effective amendment to its
Registration Statement
- Each Fund's most recent prospectus and statement of additional
information, if applicable, and all amendments and
supplements thereto
