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FORM N-4, ITEM 24(b)
8.51 Form OF ADMINISTRATIVE SERVICES AGREEMENT BETWEEN American United Life
Insurance Company and OneAmerica Securities, Inc. and Xxxxxx
& Rygel Distributors
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ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement (the "Agreement") is entered into as of
this 15th day of September, 2010, by and among American United Life Insurance
Company and OneAmerica Securities, Inc., both corporations organized and
existing under the laws of the state of Indiana ("Service Provider") and Xxxxxx
& Rygel Distributors, a California corporation ("Distributor").
WITNESSETH:
WHEREAS, Service Provider desires to provide administrative services comprised
of certain recordkeeping, trustee, reporting and processing services to certain
qualified employee benefit plans, 403(b) plans, 457 plans and other group
employee retirement plans (each a "Benefit Plan" and, collectively, the "Benefit
Plans"), which services include processing and transfer arrangements for the
investment and reinvestment of Benefit Plan assets in investment funds specified
by an entity not related to Service Provider such as a sponsor of a Benefit Plan
("Benefit Plan Sponsor"), an investment adviser, or administrative committee of
the Benefit Plan, generaJly upon the direction of participants of such Benefit
Plans or their beneficiaries (the "Participants");
WHEREAS, Service Provider desires to make shares ("Fund Shares") of the mutual
funds of each of The Xxxxxx & Rygel Investment Group and The Xxxxxxx/Xxxxxx
Investment Group listed on Appendix A hereto, as Appendix A shall be amended and
supplemented from time to time (each a "Fund" and collectively, the "Funds"),
available for purchase by Benefit Plans and their Participants; and
WHEREAS, DistributQr and Service Provider desire to facilitate the purchase,
exchange and redemption of Fund Shares by Benefit Plans on behalf of their
Participants, through one or more accounts maintained by Service Provider in
each Fund, as described in Section 3 below ("Benefit Plan Accounts).
NOW THEREFORE, the parties hereto agree as follows:
1.Performance of Services. Service Provider agrees to perform the
administrative functions and services set forth below in this Section 1 or as
requested by the Benefit Plans with respect to Fund Shares owned by the Benefit
Plans and included in the Benefit Plan Accounts (the "Services"). The Services
to be performed by Service Provider under this Agreement shall include, without
limitation:
(a)Maintaining account records for each Participant, including (i) a daily
record of the number of shares of a Fund owned by the Benefit Plan on behalf of
each Participant, (ii) the value of each Participant's account ("Participant
Account"), (iii) the dividends accrued on such accounts, and (iv) a record of
all exchanges, purchases, and redemptions for each Participant Account
(b) Processing trade corrections and exceptions for Participant records when
required;
(c) Returning Participant phone calls;
(d) Responding to written correspondence or other communications from
Participants or beneficiaries;
(e) Mailing account statements and notices to Participants;
(f) Receiving orders, in accordance with the procedures outlined in Section 9
hereof, for the purchase, exchange and redemption by Benefit Plans of Fund
Shares; and
(g) Reporting tax-related information to governmental authorities and
Participants as required by federal and state laws, rules and regulations
as in effect from time to time and calculating and processing applicable
withholding of all taxes.
Neither Distributor nor any Fund shall have any responsibility with respect to
the provision of administrative or recordkeeping services for Benefit Plans,
including tax reporting or tax withholding for the individual Participants. With
respect to all services provided under this Agreement, Service Provider shall
comply with all relevant practices, policies and procedures as set forth in each
applicable Fund's then-current prospectus (including any supplements thereto)
("Prospectus") and then-current statement of additional information (including
any supplements thereto) ("SAI"), and with all applicable federal and state
laws, rules and regulations.
2.Purchase of Fund Shares. Distributor shall make Fund Shares available for
purchase by Benefit Plans in accordance with the terms of each Fund's Prospectus
and SA!. Alternatively, if the broker-dealer of record so requests, or if there
is no broker-dealer of record on the Benefit Plan Account and Service Provider
specifically requests, Distributor may make such Fund Shares available for
purchase by Benefit Plans and their Participants through the broker-dealer of
record, if any, at net asset value ("NA V") without sales charge (and without
the payment of a sales commission) in accordance with the terms of each Fund's
Prospectus and SA!. The Fund Shares shall be available for purchase for so long
as such Fund Shares remain generally available for purchase by the public or for
so long as this Agreement has not been terminated pursuant to Section .18
hereof. It is acknowledged and agreed that the availability of the Fund Shares
shall be subject to such Fund's Prospectus and SAI, federal and state securities
laws and applicable rules and regulations of the Financial Industry Regulatory
Authority ("FINRA").
3. Pricing Information. Distributor orits designee shall furnish Service
Provider, with respect to each Fund,
(a) net asset value information as of the close of regular trading on the New
York Stock Exchange (currently 4:00 p.m. Eastern Time) or as of such earlier
times at which a Fund's net asset value is calculated as specified in such
Fund's prospectus ("Close of Trading") on each business day that the New York
Stock Exchange is open for business ("Business Day");
(b) dividend and capital gains information as it becomes available; and
( c) in the case of income funds, the daily accrual for interest rate factor
(mil rate). Distributor shall use its best efforts to provide such information
to Service Provider by means of efectronic transmission or other mutually
acceptable means by 6:00 p.m. Central time on each Business Day.
4.Benefit Plan Accounts. Unless otherwise agreed to by Distributor and Service
Provider, the transfer agent ("Transfer Agent") for the Funds shall maintain one
omnibus account per Benefit Plan in each Fund registered in the name of the
Benefit Plan.
5. Payments for Services. In consideration of the Services provided by Service
Provider pursuant hereto and subject to Service Provider's compliance with all
of the provisions of this Agreement, Distributor shall pay to Service Provider
the Shareholder Service Fee amount set forth in Appendix A hereto. Such
obligation to pay Service Provider hereunder shall be suspended if Service
Provider transmits trade information for Participant Accounts to a third-party
intermediary with which Distributor has established similar paYment
arrangements. Additionally, Distributor may, in its discretion, withhold all or
a portion of any Shareholder Service Fee paYment otherwise due to Service
Provider if Service Provider is in breach of any . representation, warranty or
covenant set forth in Section 19 hereof. The. payment of the Shareholder Service
Fee amount set forth in Appendix A hereto to Service Provider shall be in return
for Service Provider's performance of the Services only, and is not intended to,
and shall not, constitute payment in any manner for the provision of investment
advisory or distributionrelated services by Service Provider.
6. l2b-l Service Fees. Distributor may compensate dealers, brokers, banks and
other financial institutions, including Service Provider, under the terms set
forth in each applicable Fund's Prospectus and distribution plan ("Rule 12b-l
plan") pursuant to Rule 12b-l under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), for providing personal service and
maintenance of accounts as described below of Participants with Benefit Plan
Accounts that hold Fund Shares. Such compensation is referred to herein as a
"12b1 Fee," and the 12b-l Fee for each applicable Fund is set forth in Appendix
A hereto. The services to be provided in return for payment of a l2b-l Fee
include, among others:
(a) Answering customer inquiries about the Fund and providing other personal
service;
(b) Assisting in establishing and maintaining accounts in the Fund;
(c) Making the Funds available and providing other services at the
request of the Fund or Distributor; and
(d) The Services described in Section 1, above.
If there is a broker-dealer of record on the Benefit Plan Account, it shall be
presumed that the broker-dealer is providing those services and is eligible to
receive paYment of the 12b-l Fee. If, however, Service Provider is providing
those services to the Benefit Plan Account and Service Provider acknowledges
that fact in writing to Distributor, and if the broker-dealer of record agrees
in writing to the payment ofthe 12b-l Fee to Service Provider, Distributor may,
in its discretion, pay the 12b-l Fee to Service Provider. If there is no
broker-dealer ofrecord on any
Benefit Plan Account that is subject to this Agreement and Service Provider
certifies in writing to Distributor that it is providing the services described
above, Distributor may, in its sole discretion, pay the 12b-l Fee to Service
Provider. Service Provider shall cause such certifications to be submitted to
Distributor in substantially the form set forth in Appendix B hereto. The amount
of the 12b-l Fee, the calculation of the 12b-l Fee and the payment of the 12b-l
Fee shall be consistent with the terms set forth in each applicable Fund's
Prospectus and SA! and Rule 12b-l Plan. The payment of the 12b-l Fee to Service
Provider by or on behalf of a Fund is subject to the limitations set forth in
the applicable Rule 12b-l Plan and may be reduced, revised or terminated
altogether at any time at the discretion of that Fund's board of trustees.
7. Maintenance of Records and Procedures.
(a)Recordkeeping and other administrative services to Participants shall be the
responsibility of Service Provider and shall not be the responsibility of
Distributor, Transfer Agent or the Funds. Neither Distributor, Transfer Agent
nor the Funds shall maintain separate accounts or records for Participants.
Service Provider shall maintain and preserve all records as required by
applicable law, rules, regulations and/or this Agreement in connection with
providing the services described herein, and shall otherwise comply with all
laws, rules and regulations applicable thereto. Service Provider acknowledges
that, to the extent records are required to be maintained and preserved by the
Service Provider with respect to a Fund pursuant to the provisions of Rule 31
a-I and Rule 31a-2 under the Investment Company Act, the records are the
property of such Fund. Notwithstanding the foregoing, upon request of
Distributor, Transfer Agent or any Fund, Service Provider shall provide to each
requesting party copies of the historical records relating to transactions
between the Fund and the Benefit Plan, written or electronic communications
regarding the Fund to and from the Benefit Plan and other material, in each case
(i) as are maintained by Service Provider in the ordinary course of business and
(ii) as may reasonably be requested to enable the Fund and its representatives,
including without limitation such Fund's auditors or legal counsel, to (A)
monitor and review the Services; (B) comply with any request of a governmental
body, self regulatory organization or the Benefit Plan; (C) verify compliance by
Service Provider with the terms of this Agreement and with all applicable laws,
rules and regulations; or (D) make required. regulatory reports, as further
described in Section 8 below.
(b)Service Provider further agrees that it shall permit Distributor (or its
designated agent) and each Fund (or its designated agent) to have access to
Service Provider's procedures, personnel and records during normal business
hours upon reasonable notice to Service Provider in order to facilitate the
monitoring of: (i) the quality of Services provided under this Agreement; (ii)
Service Provider's compliance with the terms of this Agreement, including,
without limitation, Service Provider's compliance with the terms of this
Agreement and any other agreement between the parties; (iii) the accuracy and
functionality of Service Provider's recordkeeping system (including, without
limitation, Service Provider's disaster readiness and recovery systems); and
(iv) the accuracy of the invoices submitted to Distributor for payment. The
parties to the Agreement agree to cooperate in good faith in providing records
to one another pursuant to this Section 7.
8. Reporting. Service Provider and Distributor agree that, with respect to any
Fund, Service Provider shall report to Distributor, Transfer Agent, or a
designated third party, in any manner consistent with applicable state Blue Sky
requirements, the number of the Fund's Shares.. purchased by any omnibus account
in the Fund registered in the name of Service Provider. At Distributor's
request, Service Provider shall provide Distributor or Transfer Agent with any
and all information about any Benefit Plans or its Participants maintained by
Service Provider, as may be reasonably necessary to permit Distributor, Transfer
Agent or any Fund to comply with any request received from the Fund's Board of
Trustees, any governmental body, any self-regulatory organization, any internal
audit or other compliance personnel of Distributor, Transfer Agent or a Fund, or
a trustee, plan administrator or sponsor of, or a Participant in, a Benefit
Plan.
9.Representations by Service Provider About Distributor and the Funds. Service
Provider is not authorized to make any representation to anyone concerning
Distributor, any Fund or any Fund Shares that is not contained in the
Prospectus, SAI, or in other written marketing materials prepared and
distributed by Distributor for such use. Service Provider shall not use any
written marketing materials or other sales literature concerning Distributor or
any Fund without the express written pre-approval of Distributor in each
instance.
10. Limited Appointment as agent (a)Service Provider is hereby appointed to act
as Distributor's agent solely for the purpose of receiving orders, in ac~ordance
with the procedures outlined herein, for the purchase, exchange and redemption
by Benefit Plans of Fund Shares. Except as provided in the foregoing sentence,
Service Provider shall not be, nor shall it hold itself out to the public or
engage in any activity as, an agent or distributor for any Fund, Distributor,
Transfer Agent, or any of their affiliates. Neither Service Provider nor any of
Service Provider's personnel shall provide investment advice in connection with
the performance of Service Provider's duties under this Agreement. Nothing in
this Agreement shall be construed to cause Distributor to have any supervisory
obligations with respect to. Service Provider or any of Service Provider's
personnel, and Service Provider sh~l not make any representations to the
contrary. Service Provider also acknowledges that Service Provider shall be
responsible for satisfaction of its supervisory obligations with respect to
Service Provider's personnel. Nothing herein shall be construed to cause Service
Provider or any of Service Provider's personnel to be employees of Distributor.
Service Provider's maintenance of Participant Account level records for Benefit
Plans is undertaken as agent for such Benefit Plans and not as agent for any
Fund, Distributor, or any of their affiliates. Distributor agrees that Service
Provider may designate and authorize such intermediaries as it deems necessary,
appropriate or desirable to receive orders, in accordance with the procedures
outlined herein, for the purchase, exchange and redemption by Benefit Plans of
Fund Shares.
(b)Service Provider acknowledges that: (i) instructions in proper form for the
purchase, exchange and redemption of Fund Shares from Benefit Plans (or from
Participants) as provided herein must be received by Service Provider at or
before the close of trading on the New York Stock Exchange (generally, 4:00 p.m.
Eastern Time) ("Close of Trading") on a Business Day ("Instructions"); and (ii)
Service Provider Orders that are
derived from Instructions received by Service Provider after the Close of
Trading on a Business Day shall receive the NA V that is calculated for the
Business Day next succeeding the Business Day on which Service Provider received
such Instructions from Benefit Plans (or from Participants) provided such
Service Provider orders are transmitted to Transfer Agent by the applicable
deadline for such next succeeding Business Day. For purposes of this Agreement,
"Business Day" means each day that the New York Stock Exchange is open for
business.
11. Provision of Materials. Distributor shall provide via hard copy or
electronic document delivery without charge to the Benefit Plan, as the Fund
shareholder of record, one copy of each applicable Fund's Prospectus, SAI,
relevant proxy material, and periodic reports to shareholders. Distributor may
provide to Service Provider such other reports, documents or information as
Service Provider may reasonably request. Service Provider shall forward, at its
own cost, any of the above-described materials to each Benefit Plan or
Participants therein.
12. NSCC Fund/SERV.
(a)If transactions in Fund Shares are to be processed through the National
Securities Clearing Corporation's (''NSCC'') Mutual Fund Settlement, Entry and
Registration Verification (Fund/SERV) system, then both Service Provider, or its
designee, and Distributor shall be bound by the terms of the FundiSERV Agreement
filed by each with the NSCC. Without limiting the generality of the following
provisions of this Section, Service Provider, or its designee, and Distributor
each shall perform any and all duties, functions, procedures and
responsibilities assigned to it and as otherwise established by the NSCC
applicable to FundiSERV and the Networking Matrix Level (as described in the
Fund/SERV Agreement) utilized.
(a)If transactions in Fund Shares are to be processed through the National
Securities Clearing Corporation's (''NSCC'') Mutual Fund Settlement, Entry and
Registration Verification (Fund/SERV) system, then both Service Provider, or its
designee, and Distributor shall be bound by the terms of the FundiSERV Agreement
filed by each with the NSCC. Without limiting the generality of the following
provisions of this Section, Service Provider, or its designee, and Distributor
each shall perform any and all duties, functions, procedures and
responsibilities assigned to it and as otherwise established by the NSCC
applicable to FundiSERV and the Networking Matrix Level (as described in the
Fund/SERV Agreement) utilized.
(b)Any information transmitted through the applicable Networking Matrix Level by
any party to the other party and pursuant to this Agreement must be accurate,
complete, and in the format prescribed by the NSCC. Each party, or its designee,
shall adopt, implement and maintain procedures reasonably designed to ensure
compliance with this Section 12 and to limit the access to, and the inputting of
data into, Networking to persons specifically authorized by such party.
(c)Service Provider, or its designee, shall provide Transfer Agent with all
information (and any subsequent changes to such information) necessary or
appropriate to establish and maintain each Benefit Plan Account.
(d) All information that is received by Service Provider from Transfer Agent for
inclusion in tax statements relating to an account must be reported by Service
Provider to the Benefit Plan trustee, Benefit Plan Sponsor or other entity
responsible for tax reporting in an accurate, complete and timely manner.
(e)The official Fund records of each Benefit Plan Account shall be determined by
Transfer Agent. Service Provider and Transfer Agent shall reconcile any
differences between their records. In the event of any discrepancy between the
records of
Service Provider and Transfer Agent regarding a Benefit Plan Account, the
records of Transfer Agent shall control pending resolution of the discrepancy.
(f)The purchase, sale, redemption and settlement of Funds Units will normally
follow NSCC's Fund/SERV Processing Procedures, as described above. In the event
that such procedures are not followed as described, the Manual Processing
Procedures defined in Appendix C will apply.
13. Indemnity.(a) Distributor shall indemnify and hold harmless Service
Provider, its affiliates, officers, directors, and employees against any losses,
claims, damages, reasonable legal fees, expenses or liabilities that arise out
of or are based upon (i) violation by Distributor of any applicable law, rule or
regulation relating to the subject matter of this Agreement; (ii) any material
breach of its representations or warranties contained in this Agreement; (iii)
any untrue statement of a material fact contained in the Prospectus or sales
literature of a Fund prepared by Distributor or the failure to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case relating to the subject matter of this
Agreement; or (iv) any action or omission to act or failure to comply with the
applicable terms of this Agreement as a result of Distributor's bad faith, gross
negligence or willful misconduct.
(b) Service Provider shall indemnify and hold harmless Distributor, the Funds,
their affiliates, and their respective officers, directors, trustees, and
employees against any losses, claims, damages, reasonable legal fees, expenses,
or liabilities that arise out of or are based upon Service Provider's: (i)
violation of any law, rule, or regulation relating to the subject matter of this
Agreement; (ii) any breach of the representations or warranties contained in
this Agreement; (iii) any action or omission to act, or failure to comply with
the terms of this Agreement as a result of Service Provider's bad faith, gross
negligence or willful misconduct; or (iv) a cancellation or correction made
subsequent to the date as of which an order has been placed, and Service
Provider shall promptly pay such loss to Distributor or such Fund upon
notification.
(iv) a cancellation or correction made subsequent to the date as of which an
order has been placed, and Service Provider shall promptly pay such loss to
Distributor or such Fund upon notification. ( c) Upon receiving notice of a
claim, an indemnitee under this Section 13 shall give prompt written notice to
the indemnitor, provided that the obligation of the indemnitor shall not be
reduced on account of any failure or delay by the indemnitee in giving such
notice to the indemnitor except to the extent that the indemnitor has been
prejudiced in any material respect by such failure. The indemnitor may
participate in or assume the defense against such a claim at its own expense. An
indemnitee shall not compromise or settle any claim relating to the subject
matter of this Agreement without the prior written consent of the indemnitor,
which consent shall not be unreasonably withheld.
14. Expenses. Except as otherwise expressly provided by this Agreement, each
party shall bear its own expenses relating to the discharge of its duties
hereunder. No party to this Agreement shall be responsible for any expenses of
the other party incident to this Agreement. No party shall charge the other
parties any fee for bank wires executed pursuant to this Agreement.
15. Agreements With Other Parties. Service Provider may enter into agreements
and arrangements similar to this Agreement with organizations other than
Distributor. Distributor may enter into agreements and arrangements similar to
this one with organizations other than Service Provider and may enter into
arrangements with Benefit Plans for services similar to those to be provided
under this Agreement.
16. Disclosure to Other Parties. Distributor may disclose to third parties that
they have entered into this arrangement with Service Provider and Service
Provider may disclose to third parties that it has entered into this arrangement
with Distributor. No party shall disclose the compensation terms included herein
to any other parties, except as may be required by applicable law, rules,
regulations, Benefit Plan Sponsors, Participants, any governmental or regulatory
authority (including, without limitation, the Securities and Exchange
Commission, the FINRA, or any applicable national securities exchange), or any
court of competent jurisdiction. Service Provider covenants to, and shall comply
with all laws, rules, or regulations in effect from time that apply to Service
Provider and/or the performance of services similar to the Services, including,
without limitation, making any required disclosures to Benefit Plan Sponsors,
Participants or Distributor concerning the amount or nature of fees charged by
Service Provider, revenue sharing arrangements involving Service Provider, or
other related financial or compensatory arrangements. Service Provider shall
only make references to any Fund or, if applicable, to the availability of Fund
Shares to be purchased at NAV, to current or prospective Benefit Plans.
17. Notices. Notices with respect to this Agreement shall be sent as follows:
If to Service Provider: American United Life Insurance Company
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
ATTN: Retirement Services Marketing VP
If to Distributor, to: Xxxxxx & Rygel Distributors
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
18. Effectiveness: Termination.
(a) This Agreement shall become effective as of the date set forth above
(b) Any party to this Agreement may terminate this Agreement upon thirty days'
written notice to the other parties; provided, however, that Distributor
reserves the right, without notice, to suspend sales or to withdraw the offering
of Fund Shares of any Food, in whole or in part, or to make a limited offering
of Fund Shares of any Fund or to redeem Fund Shares of any Fund or take such
other action as Distributor or the Fund's Board of Trustees determines is
appropriate.
(c)The provisions of Sections 7,8,9, 13, 14, 16, 19,20 and 25 of this Agreement
shall survive the termination of this Agreement.
(d)In the event a Benefit Plan terminates its arrangements with Service
Provider, and is permitted by Distributor to assign its rights and
responsibilities as provided in Section 21 of this Agreement and another entity
succeeds Service Provider in providing services to that Benefit Plan that are
substantially similar to the services provided by Service Provider hereunder, as
part of its standard de conversion process, Service Provider shall transfer the
records and data to such successor service provider.
19. Additional Representations, Warranties and Covenants. By signing this
Agreement, each party represents to the others that it has full power and
authority under applicable law, and has taken all action necessary, to enter
into and perform this Agreement and that by doing so it shall not breach or
otherwise impair any other agreement or understanding with any other person,
corporation or other entity.
Service Provider further represents, warrants and covenants to Distributor that:
(a) The arrangement provided for in this Agreement shall be disclosed to the
Benefit Plan Sponsor and/or its Participants;
(b)Service Provider is not and shall not be a "fiduciary" of any Benefit Plan as
such term is defined in Section 3 (21) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code");
( c) The receipt by Service Provider of the fees described in Section 4 and, if
applicable, Section 5 hereof shall not constitute a "non-exempt prohibited
transaction" as such term is defined in Section 406 of ERISA and Section 4975 of
the Code;
(d)Service Provider shall cause a restorable back-up copy of all Participant
level records to be maintained at a secure off-site location and shall cause
those records to be updated daily. In addition, Service Provider shall maintain
a reasonable disaster readiness and recovery program;
(e)Service Provider is not required to be registered as a broker-dealer under
applicable law, including as a result of entering into this Agreement,
performing the Services as contemplated by this Agreement and receiving orders
for the purchase, exchange and redemption by Benefit Plans of Fund Shares as set
forth in Section 10 hereof; provided, however, Service Provider must comply with
all applicable rules and regulations of the FINRA in connection with the
performance of Services under this Agreement;
(f)Service Provider and Distributor agree to the terms of the Information
Sharing Agreement required pursuant to SEC Rule 22c-2, as contained in Appendix
D, attached hereto and made a part hereof;
(g)In connection with Service Provider's limited appointment as Distributor's
agent hereunder: (i) Service Provider has and shall maintain internal controls
and procedures in place that are reasonably designed to ensure that orders
submitted by Benefit Plans for the purchase, exchange and redemption of Fund
Shares are properly time stamped and otherwise processed in accordance with the
terms of each Fund's Prospectus and all applicable laws, rules and regulations
regarding the handling of mutual fund orders on a timely basis, including,
without limitation, Section 22 of the Investment Company Act; (ii) Service
Provider acknowledges that Instructions must be received by Service Provider at
or before the Close of Trading on a Business Day in order to receive the NA V
that is calculated for the Business Day on which Service Provider received such
Instructions from Benefit Plans (or from Participants); (iii) Service Provider
acknowledges that Service Provider Orders that are derived from Instructions
received by Service Provider after the Close of Trading on a Business Day shall
receive the NA V that is calculated for the Business Day next succeeding the
Business Day on which Service Provider received such Instructions from Benefit
Plans (or from Participants), provided such Service Provider Orders are
transmitted to Transfer Agent by the applicable deadline for such next
succeeding Business Day; and (iv) Service Provider shall notify Transfer Agent
immediately (within one (1) Business Day) of any late-day trading activity of
which Service Provider becomes aware;
(h)Service Provider shall provide, upon request of Distributor or Transfer Agent
and consistent with applicable law, any policies and procedures, or summaries
thereof, that Service Provider has in place to prevent or detect late-day
trading with respect to Fund Shares and short-term transactions or arbitrage
activity in contravention of each Fund's policy as disclosed in its Prospectus
or that may harmful to each Fund and its shareholders or that may dilute the
value of Fund Shares;
(i) Service Provider represents and warrants that it has, and will maintain, in
place policies, procedures and internal controls in place that are reasonably
designed to comply with all applicable anti-money laundering laws and
regulations, including provisions of the USA PATRIOT Act of2001 and the
regulations administered by the U.S. Department of the Treasury's Office of
Foreign Assets Control. Service Provider also certifies that it has implemented
a Customer Identification Program ("CIP") and agrees to perform the specific
requirements of its CIP for all accounts not subject to ERISA;
G) Service Provider represents and warrants that it shall maintain the
confidentiality and privacy of certain information it may receive in connection
with fulfilling its obligations under this Agreement to the extent required by
law. In furtherance of and without limiting the foregoing sentence, Service
Provider agrees that it shall comply with all applicable provisions of (i)
Section 504 of the Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act
("GLB") (ii) requirements adopted by the Securities and Exchange Commission
pursuant to GLB ("Regulation S-P"), (iii) any applicable state laws or
regulations permitted by Section 507 of GLB, or (iv) any amendments or revisions
of any of the foregoing (collectively, the "Privacy Requirements"). Service
Provider shall not disclose any such information, except to the extent such
disclosure is expressly permitted by the Privacy Requirements, and agrees to
provide Transfer Agent, Distributor and any
affected Benefit Plan not less than five (5) business days advance written
notification of any such disclosure (subject to reduction required by applicable
legal or regulatory requirements). Service Provider further agrees that it shall
not use non-public personal information except as expressly permitted by the
Privacy Requirements and this Agreement, taking into consideration the purposes
for which such information has been provided to the Service Provider. In the
event of any conflict between the provisions of this paragraph and any other
provisions of this Agreement, the provisions of this paragraph shall control.
Service Provider's obligations under this paragraph shall survive termination of
this Agreement and shall continue until Service Provider has returned or
destroyed all copies of the information covered by this paragraph.
(k) Service Provider represents and warrants that it will otherwise comply with
all applicable federal and state laws, regulations, and rules in connection with
this Agreement.
(l) Services shall be performed by qualified and appropriately licensed
personnel of Service Provider in accordance with the terms of this Agreement and
highest industry standards.
(m) Service Provider shall reconcile on each Business Day: (i) all transactions
by each Benefit Plan involving Fund Shares (including purchases, exchanges,
redemptions and reinvestments of dividends and capital gains distributions) with
the corresponding Participant level transactions on its recordkeeping system,
and (ii) the aggregate position for each Benefit Plan of all Participants on its
recordkeeping system with the corresponding balance in the account as reflected
on the Transfer Agent's recordkeeping system. Service Provider shall immediately
advise Transfer Agent in writing of any discrepancies between its records and
the balances as reflected on Transfer Agent's records. It shall be presumed that
the account balances reflected on Transfer Agent's records are correct.
20. Use of Name. Except as otherwise provided for in this Agreement, neither
party shall use the name or any trademark or service xxxx of the other party
without their prior written consent. In the event this Agreement is terminated,
Service Provider shall not use Distributor's name or the Xxxxxx & Rygel name or
any other words that may be reasonably construed to imply a continuing
relationship. Notwithstanding the foregoing, Service Provider shall be able to
use the name of the Distributor for the purposes of identifying the Distributor
and its funds as investment options available to customers of Service Provider
without the prior approval of Distributor.
21. Assignment: Integration. Neither this Agreement nor any of the rights and
obligations hereunder may be assigned by any party hereto without the written
consent of the other parties hereto. Notwithstanding the foregoing or anything
to the contrary set forth in this Agreement, either party may transfer or
assign, without the consent of the other party, its rights, duties and
obligations hereunder or interest herein to any entity owned, directly or
indirectly, by said party or to a successor in interest pursuant to a merger,
reorganization, stock sale, asset sale or other transaction. This Agreement
contains the full and complete understanding among the parties with respect to
the transactions covered and contemplated hereunder and supersedes all
prior agreements or understandings between the parties relating to the subject
matter hereof, whether oral or written, express or implied.
22. Amendment. This Agreement and any amendments thereto shall not be amended or
modified except by written instrument executed by the party against which
enforcement is sought.
23. Governing Law: Severability. This Agreement and all the rights and
obligations of the parties shall be governed by and construed under the laws of
the State of California without giving effect to conflicts of laws principles.
In the event that any provision of this Agreement, or the application of any
such provision to any person or set of circumstances, shall be determined to be
invalid, unlawful, void or unenforceable to any extent, the remainder of this
Agreement, and the application of such provision to persons or circumstances
other than those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue to
be valid and enforceable to the fullest extent permitted by law.
24. Force Majeure. No party shall be liable, nor shall any party be considered
in breach of this Agreement, whether or not due to any failure or delay in
performance of its obligations under this Agreement, as a result of a cause
beyond its reasonable control including but not limited to any act of God or
public enemy, act of any military, civil or regulatory authority, terrorist act,
change in any law or regulation, fire, flood, tornado, earthquake, storm, or
o~er like event, disruption or outage of computers or communications, equipment
failure, power or other utility failure, labor strikes, exchange action, action
or inaction on the part of pricing services utilized by the Funds to price any
Fund's Shares, unusual trading activity or the suspension or disruption of
trading on any exchange or another other cause, whether similar or dissimilar to
any of the foregoing, which could not have been prevented with reasonable care.
25. Confidentiality. Each party acknowledges and understands that any and all
technical, trade secrets, or business information of the other party, including,
without limitation, financial information, business or marketing strategies or
plans, product development or customer information, which IS disclosed to it by
the other party or is otherwise obtained by such party, its affiliates, agents
or representatives during the term of this Agreement ("Proprietary Information")
constitutes trade secrets of the other party. Each party agrees to safeguard
Proprietary Information and to prevent the unauthorized, negligent or
inadvertent use or disclosure thereof, using at least the same degree of care as
it employs with respect to protecting its own Proprietary Information. No party
shall, without the prior written approval of an authorized officer of the other
nonaffiliated party or parties hereto, directly or indirectly, disclose the
Proprietary Information of the other nonaffiliated party or parties hereto to
any person or business entity except for a limited number of employees,
attorneys, accountants and other advisors of such party on a need to know basis
or as may be required by law, rule, regulation, or court of competent
jurisdiction. Each party shall promptly notify the other nonaffiliated party or
parties hereto in writing of any unauthorized, negligent or inadvertent use or
disclosure of Proprietary Information by or on behalf of such party. Each party
shall be liable under this Agreement to the other nonaffiliated party or parties
hereto for any use or disclosure of Proprietary Information in violation of this
Agreement by its employees, attorneys, accountants,
or other advisors or agents. This Section shall continue in full force and
effect notwithstanding the termination of this Agreement.
26. Section Headings. The section headings in this Agreement are for reference
and convenience only and shall not be construed to limit or otherwise affect the
meaning of this Agreement.
27. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their duly
authorized officers as of the date first written above.
/s/
XXXXXX & RYGEL DISTRIBUTORS
/s/ Xxxxx X. Xxxxx
AMERICAN UNITED LIFE INSURANCE COMPANY
/s/ Xxxxxxx X. Xxxxxx
ONEAMERICA SECURITIES, INC.
Appendix A
September 15, 2010
LIST OF FUNDS ELIGBLE TO PARTICIPATE UNDER THE ADMINISTRATIVE SERVICES AGREEMENT
The following is a list of the Funds eligible to participate under the Agreement
and the compensation, calculated as set forth below*, to be paid to Service
Provider.
Shareholder Rule 12b-l Total
Fund Name Ticker Cusip Service Fee Fee Fee
Payden Funds
Payden California PYCRX 704329-515 0.25% 0.25%
Municipal Income Fund
Payden Core PYCBX 704329-408 0.25% 0.25%
Bond Fund
Payden Core PYCBX 704329-408 0.25% 0.25% 0.25%
Bond Fund Advisor
Payden Corporate PYACX 704329-66 0.25% 0.25%
Bond Fund
Payden Emerging PYEMX 704329-531 0.25% 0.25%
Markets Bond Fund
Payden Emerging PYEWX 704329-325 0.25% 0.25% 0.50%
Markets Bond Fund - Adviser
Payden Global PYGEX 704329-374 0.35% 0.35%
Equity Fund
Payden Global PYGFX 704329-101 0.25% 0.25%
Fixed Income Fund
Payden Global PYGSX 704329-697 0.25% 0.25%
Short Bond Fund
Xxxxxx GNMA Fund PYGNX 704329-473 0.25% 0.25%
Xxxxxx GNMA Fund PYGWX 704329-317 0.25% 0.25% 0.50%
- Adviser
Payden High PYHRX 704329-572 0.25% 0.25%
Income Fund
Payden High PYHWX 704329-291 0.25% 0.25% 0.50%
Income Fund - Adviser
Payden Limited PYLMX 704329-606 0.25% 0.25%
Maturity Fund
Payden Short PYSBX 704329-200 0.25% 0.25%
Bond Fund
Payden Tax PYTEX 704329-507 0.25% 0.25%
Exempt Bond Fund
Payden U.S. PYUSX 704329-796 0.25% 0.25%
Government Fund
Payden U.S. PYUWX 704329-341 0.25% 0.25% 0.50%
Government Fund - Adviser
Payden U.S. PUGLX 704329-481 0.35% 0.35%
Growth Leaders Fund
Payden Value PYVLX 704329-739 0.35% 0.35%
Leaders Fund
PaydenlKravitz Funds
Xxxxxx/Xxxxxxx Xxxx XXXXX 00000X-X0x 0.10% 0.25% 0.35%
Balance Plan Fund - Adviser
Xxxxxx/Kravitz Cash PKBIX 70432R-200 0.10% 0.10%
Balance Plan Fund - Institutional
Xxxxxx/Xxxxxxx Cash PKCRX 704329-358 0.10% 0.50% 0.60%
Balance Plan Fund - Retirement
Xxxxxxx/Xxxxxx Funds
Xxxxxxx/Xxxxxx MPYMX 59276Q-402 0.35% 0.35%
European Emerging Markets Fund
*CALCULATION OF SERVICE PROVIDER COMPENSATION
Distributor agrees to pay Service Provider in accordance with the terms of
Sections 4 and 5 thereof, compensation as set forth in the chart above per
Benefit Plan Account. Such fee(s) shall be calculated quarterly based on the
average daily net assets in each such Benefit Plan Account for the quarter.
Service Provider shall provide Distributor an invoice after the end of each
quarter, identifying the broker-dealer of record and certifying the number of
actively funded sub-accounts subject to the aforementioned fee(s), and
Distributor shall make such payment to
the Service Provider within 30 business days of receipt of the invoice. Invoices
submitted in excess of 60 days ofth~ time period to which the invoice relates
are subject to non-payment. Such fee is subject to periodic review of services
provided by Service Provider and cost savings to Distributor and may be revised
by Distributor at any time upon notice to Service Provider.
Appendix B
FORM OF CERTIFICATION AUTHORIZING SERVICE PROVIDER TO RECEIVE
RULE 12b-l SERVICE FEES
I, [Insert Name], a [Insert Title] of [Insert Name of Service Provider]
("Service Provider"), in accordance with an Administrative Services Agreement by
and among Service Provider and Xxxxxx & Rygel Distributors ("Agreement"), do
hereby certify that:
1. I am the duly [appointed/elected], qualified and presently incumbent [Insert
Title] of Service Provider, am familiar with the facts herein certified, and am
duly authorized to execute and deliver this Certificate of Service Provider.
2. Service Provider provides certain administrative, recordkeeping and
other services for the shareholder accounts in the mutual funds of The
Xxxxxx & Rygel Investment Group and The Xxxxxxx/Xxxxxx Investment Group
(each a "Fund" and collectively, the "Funds").
3. Service Provider provides personal service and/or maintains the
shareholder accounts of in the Fund(s) as contemplated by FINRA Rule
2830(b)(9) and the Agreement.
4. Service Provider has not provided and does not intend to provide any
services intended to result in the distribution of Fund Shares or the
promotion of the Fund(s).
5. Terms not otherwise defined herein shall have the meaning set forth in
the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this 22nd day of September,
2010
By: /s/ Xxxxxxx X. Xxxxxx
Chief Counsel
Appendix C
The purchase, sale, redemption and settlement of Funds will normally follow
NSCC's processing procedures, as described above in Section 12, NSCC Fund/SERV.
In the event that such procedures are not followed as described, the Manual
Processing Procedures defined herein will apply.
1. On each business day that the New York Stock Exchange (the "Exchange") is
open for business and on which Funds determines its net asset value ("Business
Day"), Service Provider or its designee may transmit orders for the purchase,
sale, exchange or transfer of Funds based solely upon the receipt of
instructions from its customers prior to the close of trading (generally 3:00
p.m. Central time on the Exchange ("Close of Trading")) on such Business Day.
Instructions from customers of Service Provider received by Service Provider or
its agent prior to the Close of Trading on any given Business Day ("Day 1
")(such orders are referred to as "Day 1 Trades") and transmitted to Funds or
its designated agent via facsimile, electronic transmission or by a method
mutually acceptable to both parties, by no later than 7:30 a.m. Central time the
next Business Day ("Day 2"), will be executed at the net asset value (''NA V")
of each applicable Fund, determined as of the Close of Trading on Day 1.
2. Immediately following the completion of the transmission of any customer
orders by Service Provider to Funds, Service Provider will verify that such
instructions were received by Funds by a method mutually acceptable to both
parties.
3. Day 1 Trades shall settle on Day 2 ("Settlement Date"). Settlements will be
through net Federal Funds wire transfers to an account designated"by Funds or
its agent. In the case of instructions which constitute a net purchase order,
Service Provider shall initiate a wire transfer of Federal Funds for the dollar
amount of the net purchase order by 1:00 p.m. Central time on the Settlement
Date to Fund's transfer agent. In the event the instructions constitute a net
redemption order, Funds shall initiate a wire transfer of Federal Funds for the
dollar amount of the net redemption order by 1 :00 p.m. Central time on the
Settlement Date. Settlement will be in U.S. dollars.
Appendix D
INFORMATION SHARING AGREEMENT
The provisions set forth below are included in and made a part of the
Administrative Service Agreement between Distributor and Service Provider.
WHEREAS, Distributor is the principal distributor of the Funds and desires that
Service Provider provide certain customer transaction information to the Funds
to restrict or prohibit purchases or exchanges of Fund Shares that violate the
Funds' market timing policies;
WHEREAS Service Provider is a "fmancial intermediary" as defmed in SEC Rule
22c-2, and is willing to provide certain customer transaction information to the
Funds upon request and follow certain instructions from the Funds to curtail
transactions in Fund Shares that violate the Funds' market timing policies.
WHEREAS pursuant to SEC Rule 22c-2, the Funds are required to enter into a
written agreement with Service Provider under which Service Provider agrees to
(i) provide, at a Fund's request, identity and transaction information about the
Shareholders who hold shares through an account with the Service Provider; and
(ii) execute instructions from a Fund to restrict or prohibit future purchases
or exchanges.
NOW THEREFORE, in consideration of the mutual covenants herein contained, the
sufficiency of which is hereby acknowledged, Distributor and Service Provider
hereby agree as follows:
a. 1. Definitions.
For purposes of this Exhibit E:
1.1. The term "Fund" includes the Funds' principal underwriter, distributor and
transfer agent.
1.2. The term "Shares" means the interests of Shareholders corresponding to the
redeemable securities of record issued by a Fund under the Investment Company
Act of 1940 that are held by Service Provider.
1.3. The term "Shareholder" means (i) the beneficial owner of Shares, whether
the Shares are held directly or by Service Provider in nominee name or (ii) in
the case of a retirement plan ("Plan") held at Service Provider on an omnibus
basis, a Plan participant notwithstanding that the Plan may be deemed to be the
beneficial owner of the Shares.
1.4. The term "written" includes electronic writings and facsimile
transmissions.
1.5. The term "purchase" does not include the automatic reinvestment of
dividends.
1.6. The term "promptly" as used in Section 2.1.2 shall mean as soon as
practicable but in no event later than ten (10) business days from Service
Provider's receipt of the request for information from a Fund or its designee.
b. 2. Shareholder Information.
2.1 Agreement to Provide Information Regarding Shareholders. Service Provider
agrees to provide a Fund, upon written request, the taxpayer identification
number ("TIN"), the Individual Taxpayer Identification Number ("ITIN") or other
government issued identifier ("GII"), if known, of any or all Shareholder(s) of
the account and the amount, date, name or other identifier of any investment
professional(s) associated with the Shareholder(s) or account (if known), and
transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an account
maintained by Service Provider during the period covered by the request.
2.1.1 Period Covered by Request. Requests must set forth a specific period, not
to exceed ninety (90) days from the date of the request, for which transaction
information is sought. A Fund may request transaction information older than
ninety (90) days from the date of the request as it deems necessary to
investigate compliance with policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.1.2 Form and Timing of Response. (a) Service Provider agrees to provide,
promptly upon request of a Fund or its designee, the requested information
specified in Section 2.1. If requested by a Fund or its designee, Service
Provider agrees to use best efforts to determine promptly whether any specific
person about whom it has received the identification and transaction information
specified in Section 2.1 is itself a fmancial intermediary ("Indirect
Intermediary") and, upon further request of the Fund or its designee, promptly
either (i) provide (or arrange to have provided) the information set forth in
Section 2.1 for those Shareholders who hold an account with an Indirect
Intermediary or (ii) restrict or prohibit the Indirect Intermediary from
purchasing, in nominee name on behalf of other persons, securities issued by the
Fund. Service Provider additionally agrees to inform the Fund whether it plans
to perform (i) or (ii). (b) Responses required by this Section 2.1.2 must be
communicated in writing and in a format mutually agreed upon by the parties; and
(c) to the extent practicable, the format for any transaction information
provided to the Fund will be consistent with the NSCC Standardized Data
Reporting Format.
2.1.3 Limitations on Use of Information. The Funds agree not to use the
information received for marketing or any other similar purpose without the
prior written consent of Service Provider or in violation of any selling
agreement between Service Provider and the Funds.
2.2 Agreement to Restrict Trading. Service Provider agrees to execute written
instructions from a Fund to restrict or prohibit further purchases or exchanges
of Shares by a Shareholder who has been identified by the Fund as having engaged
in transactions of the Fund's Shares (directly or indirectly through Service
Provider's account) that violate policies established or utilized by the Fund
for the purpose of eliminating or reducing any dilution of the value of the
outstanding Shares issued by the Fund.
2.2.1 Form of Instructions. Instructions to restrict or prohibit trading must
include the TIN, ITIN, or GU, if known, and the specific restriction(s) to be
executed. If the TIN, ITIN, or GII is not known, the instructions must include
an equivalent identifying number of the Shareholder(s) or account(s) or other
agreed upon information to which the instruction relates.
2.2.2 Timing of Response. Service Provider agrees to execute instructions from a
Fund to restrict or prohibit trading as soon as reasonably practicable, but not
later than five (5) business days after receipt of the instructions by Service
Provider.
2.2.3 Confirmation by Service Provider. Service Provider must provide written
confirmation to a Fund that instructions from the Fund to restrict or prohibit
trading have been executed. Service Provider agrees to provide confirmation as
soon as reasonably practicable, but not later than ten (10) business days after
the instructions have been executed.
