Exhibit (9)(a)
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 12th day of August, 1996 between The
Xxxxxxxx Variable Annuity Fund (the "Fund"), a Delaware business trust having
its principal place of business at First Chicago/NBD Investment Management
Company, 000 Xxxxx Xxxxx, 0xx Xxxxx, Xxxx Xxxxxxxx 00000 and FIRST DATA
INVESTOR SERVICES GROUP, INC. ("FDISG"), a Massachusetts corporation with
principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
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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 initially intends to offer shares in those Portfolios
identified in the attached Schedule of Portfolios, each such Portfolio, together
with all other Portfolios subsequently established by the Fund shall be subject
to this Agreement in accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint FDISG as
its transfer agent, dividend disbursing agent and agent in connection with
certain other activities and FDISG desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and FDISG agree as follows:
Article 1 Definitions.
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1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended from
time to time.
(b) "Authorized Person" shall be deemed to include (i) any authorized
officer of the Fund; or (ii) any person, whether or not such person is an
officer or employee of the Fund, duly authorized to give Oral Instructions
or Written Instructions on behalf of the Fund as indicated in writing to
FDISG 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 FDISG from a person reasonably believed
by FDISG 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 FDISG to be an Authorized Person and
actually received by FDISG. 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 FDISG.
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The Fund, on behalf of the Portfolios, hereby appoints and constitutes
FDISG as transfer agent and dividend disbursing agent for Shares of each
respective Portfolio of the Fund and as shareholder servicing agent for the Fund
and FDISG hereby accepts such appointments and agrees to perform the duties
hereinafter set forth.
Article 3 Duties of FDISG.
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3.1 FDISG 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 FDISG 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 FDISG 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. FDISG shall provide the Fund on a regular
basis with the total number of Shares of each Portfolio which are
authorized and issued and outstanding and shall have no obligation, when
recording the issuance of Shares, to monitor the issuance of such Shares or
to take cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of the Fund.
(c) Notwithstanding any of the foregoing provisions of this
Agreement, FDISG shall be under no duty or obligation to inquire into, and
shall not be liable for: (i) the legality of the issuance or sale of any
Shares or the sufficiency of the amount to be received therefor; (ii) the
legality of the redemption of any Shares, or the propriety of the amount to
be paid therefor; (iii) the legality of the declaration of any dividend by
the Board of Directors, or the legality of the issuance of any Shares in
payment of any dividend; or (iv) the legality of any recapitalization or
readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to FDISG in writing those
transactions and assets to be treated as exempt from blue sky reporting for each
State and (ii) verify the establishment of transactions for each State on the
system prior to activation and thereafter monitor the daily activity for each
State. The responsibility of FDISG 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 FDISG shall provide those print/mail services more fully described in
Schedule B for the fees also set forth in Schedule B.
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3.4 In addition to the duties set forth herein, FDISG 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 FDISG.
3.5 FDISG agrees to provide the services described herein in accordance
with the Performance Standards annexed hereto as Exhibit 1 of Schedule A and
incorporated herein. Such Performance Standards may be amended from time to
time upon written agreement by the parties.
Article 4 Recordkeeping and Other Information.
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4.1 FDISG 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
FDISG for the periods and in the places required by Rule 31a-2 under the 1940
Act.
4.2 To the extent required by Section 31 of the 1940 Act, FDISG agrees
that all such records prepared or maintained by FDISG relating to the services
to be performed by FDISG 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, FDISG will endeavor to notify the Fund of such request and
secure Written Instructions as to the handling of such request. FDISG reserves
the right, however, to exhibit the Shareholder records to any person whenever it
is advised by its counsel that it may be held liable for the failure to comply
with such request.
Article 5 Fund Instructions.
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5.1 Subject to FDISG meeting its standard of care herein, FDISG will have
no liability when acting upon Written or Oral Instructions believed to have been
executed or orally communicated by an Authorized Person and will not be held to
have any notice of any change of authority of any person until receipt of a
Written Instruction thereof from the Fund.
5.2 At any time, FDISG 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 subject to
FDISG meeting its standard of care herein, 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 FDISG. Written Instructions requested by FDISG will be provided by the
Fund within a reasonable period of time.
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5.3 FDISG, 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 FDISG's right to rely on Oral
Instructions.
Article 6 Compensation.
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6.1 The Fund on behalf of each of the Portfolios will compensate FDISG
for the performance of its obligations hereunder in accordance with the fees set
forth in the written Fee Schedule annexed hereto as Schedule B and incorporated
herein.
6.2 In addition to those fees set forth in Section 6.1 above, the Fund on
behalf of each of the Portfolios agrees to pay, and will be billed separately
for, out-of-pocket expenses incurred by FDISG in the performance of its duties
hereunder. Out-of-pocket expenses shall include, but shall not be limited to,
the items specified in the written schedule of out-of-pocket charges annexed
hereto as Schedule C and incorporated herein. Schedule C may be modified by
written agreement between the parties. Unspecified out-of-pocket expenses shall
be limited to those out-of-pocket expenses reasonably incurred by FDISG in the
performance of its obligations hereunder. In the event that the cost of
unspecified out-of-pocket expenses exceed one-thousand dollars ($1,000) in any
given monthly period, FDISG shall receive prior approval from the Fund before
incurring such expenses.
6.3 The Fund on behalf of each of the Portfolios agrees to pay all fees
and out-of-pocket expenses within thirty (30) 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 FDISG 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 Article 12. Modifying the allocation of risk from
what is stated here would affect the fees that FDISG charges, and in
consideration of those fees, the Fund agrees to the stated allocation of risk.
Article 7 Documents.
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In connection with the appointment of FDISG, the Fund shall, on or before
the date this Agreement goes into effect, but in any case within a reasonable
period of time for FDISG to prepare to perform its duties hereunder, deliver or
caused to be delivered to FDISG the documents set forth in the written schedule
of Fund Documents annexed hereto as Schedule D.
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Article 8 Transfer Agent System.
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8.1 FDISG 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 FDISG in connection with the services
provided by FDISG to the Fund herein (the "FDISG System").
8.2 FDISG hereby grants to the Fund a limited license to the FDISG System
for the sole and limited purpose of having FDISG 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.
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9.1 FDISG represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in good standing
under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory agency as a
transfer agent and such registration will remain in effect for the duration
of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
9.2 The Fund represents and warrants to FDISG that:
(a) it is duly organized, existing and in good standing under the
laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its 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;
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(d) a registration statement under the Securities Act of 1933, as
amended, and the 1940 Act on behalf of each of the Portfolios is currently
effective and will remain effective, and all appropriate state securities
law filings have been made and will continue to be made, with respect to
all Shares of the Fund being offered for sale; 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, FDISG DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON.
Article 10 Indemnification.
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10.1 FDISG shall not be responsible for and the Fund on behalf of each
Portfolio shall indemnify and hold FDISG 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 FDISG or for which FDISG may be held to be liable (a "Claim") arising
out of or attributable to any of the following, unless such Claim resulted from
a negligent act or omission to act or bad faith by FDISG in the performance of
its duties hereunder:
(a) any actions of FDISG required to be taken pursuant to this
Agreement;
(b) FDISG'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 FDISG
from the Fund, or any authorized third party acting on behalf of the Fund,
including but not limited to the prior transfer agent for the Fund, in the
performance of FDISG's duties and obligations hereunder;
(c) the reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Fund on behalf of
the applicable Portfolio;
(d) the offer or sales of Shares in violation of any requirement
under the securities laws or regulations of any state that such Shares be
registered in such state or in violation of any stop order or other
determination or ruling by any state with respect to the offer or sale of
such Shares in such state; and
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(e) the Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the Fund's negligence or
misconduct or the breach of any representation or warranty of the Fund made
herein.
10.2 In any case in which the Fund may be asked to indemnify or hold FDISG
harmless, FDISG will notify the Fund promptly after identifying any situation
which it believes presents or appears likely to present a claim for
indemnification against the Fund although the failure to do so shall not prevent
recovery by FDISG and shall keep the Fund advised with respect to all
developments concerning such situation. The Fund shall have the option to
defend FDISG against any Claim which may be the subject of this indemnification,
and, in the event that the Fund so elects, such defense shall be conducted by
counsel chosen by the Fund and reasonably satisfactory to FDISG, and thereupon
the Fund shall take over complete defense of the Claim and FDISG shall sustain
no further legal or other expenses in respect of such Claim. FDISG will not
confess any Claim or make any compromise in any case in which the Fund will be
asked to provide indemnification, except with the Fund's prior written consent.
The obligations of the parties hereto under this Article 10 shall survive the
termination of this Agreement.
10.3 Any claim for indemnification under this Agreement must be made prior
to the earlier of:
(a) one year after the Fund 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.
10.4 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
FDISG'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.
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11.1 FDISG 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 FDISG's own negligence,
bad faith or willful misconduct or that of its employees, agents or
representatives.
11.2 Each party shall have the duty to use commercially reasonable
efforts to mitigate damages for which the other party may become responsible.
Article 12 Consequential Damages.
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NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL
DAMAGES.
Article 13 Term and Termination.
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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 FDISG provides written notice to the other of its
intent not to renew. Such notice must be received not less than ninety (90)
days prior to the expiration of the Initial Term or the then current Renewal
Term.
13.3 In the event that any of the Performance Standards listed in Exhibit
1 of Schedule A are not met by FDISG for two consecutive months the Fund may
provide FDISG with written notice of its intent to terminate this Agreement.
Such termination shall become effective unless FDISG corrects such failure to
meet the identified standards within thirty (30) days of receipt of such notice.
Unless the Fund provides FDISG with written notice of the Fund's intent to
exercise this option under this Section 13.3 within 30 days after the Fund
becomes aware of the occurrence, the Fund shall have waived its option to
terminate under this provision. Notwithstanding the foregoing, the Fund's right
to terminate the Agreement under this Section 13.3, shall not be effective until
after the expiration of two months from the time FDISG begins providing services
hereunder.
13.4 The Fund may terminate this Agreement in the event that the negligent
action or negligent omission to act on the part of FDISG causes damages to the
Fund in excess of one-hundred thousand dollars ($100,000). "Damages to the
Fund" are defined as damages caused by a single event, or cummulative series of
events related to the same matter which generates a monetary loss. The Fund's
right to terminate under this Section 13.4 shall remain effective in the event
FDISG has made the Fund whole with respect to the damages caused. Unless the
Fund provides FDISG with written notice of the Fund's intent to exercise this
option under this Section 13.4 within 30 days after the Fund becomes aware of
the occurrence, the Fund shall have waived its option to terminate under this
provision.
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
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Defaulting Party. If FDISG is the Non-Defaulting Party, its termination of this
Agreement shall not constitute a waiver of any other rights or remedies of FDISG
with respect to services performed prior to such termination or rights of FDISG
to be reimbursed for out-of-pocket expenses. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting Party
of any other rights it might have under this Agreement or otherwise against the
Defaulting Party.
13.6 In the event this Agreement is terminated by the Fund pursuant to
Section 13.3, 13.4 or 13.5, all reasonable expenses associated with the movement
of records and materials to a successor transfer agent will be borne by FDISG
and the Fund shall not be responsible for the Unamortized Costs as defined in
Section 13.7 or FDISG's costs associated with such termination. In the event of
a termination pursuant to any other sections, all expenses associated with
conversion will be borne by the Fund.
13.7 The Fund shall have the right to terminate this Agreement at any
time if the Fund reorganizes into another entity, liquidates or otherwise ceases
to exist. In the event the Fund terminates the Agreement pursuant to this
Section 13.7, the Fund shall reimburse FDISG (a) for all unamortized costs
incurred by FDISG associated with the conversion of the Fund to FDISG as
transfer agent (the "Unamortized Costs") and (b) all reasonable costs associated
with such termination. In order to facilitate the calculation of the payment
described in Section 13.7(a), FDISG shall document the total cost of the Fund's
conversion to FDISG (the "Conversion Cost") within sixty (60) days of
conversion. The "Unamortized Costs" shall be defined as the Conversion Cost
minus any reimbursements made by the Fund, or any other entity, to FDISG to off-
set such Conversion Costs. Such amortization shall be straight-line over three
years.
13.8 In the event that the Fund's Co-advisors, First Chicago Investment
Management Company and NBD Bank, or any affiliate of either of them, acquire a
mutual fund complex which includes an in-house-transfer agent, the Fund shall
have the option of terminating this Agreement upon the following conditions:
(a) such option may only be exercised after expiration of the first
twelve months of this Agreement; and
(b) the Fund must provide FDISG with one-hundred twenty (120) days
prior written notice of its intent to terminate this Agreement under this
Section 13.8; and
(c) prior to such termination, the Fund shall pay to FDISG an
amount equal to twenty-five percent (25%) of FDISG's anticipated "lost
revenue" on the remainder of this Agreement resulting from such
termination. "Lost Revenue" shall mean the total FDISG fee run-rate
(excluding out-of-pocket expenses) representing the average of the last
three months prior to termination times the number of months then remaining
in the Initial Term or the then current Renewal Term; and
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(d) prior to such termination, the Fund shall pay to FDISG the
payment described in Section 13.7 of this Agreement.
Article 14 Additional Portfolios.
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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
FDISG render services as transfer agent under the terms hereof, the Fund shall
so notify FDISG in writing. Upon such notification the parties shall amend
Exhibit 1 to include such additional Portfolios and FDISG shall provide the
services to such Portfolios under the same terms as set forth herein.
Article 15 Confidentiality.
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15.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The
Fund and FDISG shall exercise at least the same degree of care, but not less
than reasonable care, to safeguard the confidentiality of the Confidential
Information of the other as it would exercise to protect its own confidential
information of a similar nature. The Fund and FDISG may use the Confidential
Information only to exercise its rights under this Agreement. Except as
required by law and except as disclosed in the Fund's registration statement or
filed as an exhibit thereto, the Fund and FDISG 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
FDISG 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 FDISG 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 FDISG 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 FDISG, their
respective subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them;
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(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 FDISG 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.
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16.1 No party shall be liable for any default or delay in the performance
of its obligations under this Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i) fire, flood, elements of nature
or other acts of God; (ii) any outbreak or escalation of hostilities, war, riots
or civil disorders in any country, (iii) any act or omission of the other party
or any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In 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.
16.2 During the term of this Agreement, at no additional cost to the Fund,
FDISG shall provide a facility capable of being utilized by FDISG to provide the
services covered by this Agreement in case of damage to the primary facility
providing those services (the "Back-Up Facility"). Utilization of the Back-Up
Facility by FDISG, including without limitation, transferring of transfer agency
and dividend records of the Fund, shall commence as soon as practically possible
after damage to the primary facility results in an inability to provide the
services described in this Agreement. Any additional costs in connection with
utilizing the Back-Up Facility shall be at FDISG's expense. After the primary
facility has recovered, FDISG shall again utilize it to provide the services
discussed in this Agreement to the Fund at no additional cost to the Fund.
16.3 In the case of damage to the Fund's primary facility providing
telephone service for the Fund's Shareholders, the Fund, at its own expense,
shall re-route Shareholder telephone calls
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to FDISG and FDISG agrees to handle such calls on behalf of the Fund. FDISG
shall provide this service for a period of three (3) days at no charge to the
Fund, however, the Fund shall assume responsibility for and pay FDISG for any
direct expenses incurred by FDISG. In the event that the Fund desires to
continue such service for a period in excess thereof, the Fund and FDISG shall
mutually agree on the fees to be paid by the Fund to FDISG for such service.
Article 17 Assignment and Subcontracting.
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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 FDISG
may assign all its right, title and interest in this Agreement to an affiliate,
parent or subsidiary, provided that in the reasonable judgment of the Board of
Directors of the Fund, acting in its sole discretion, (i) the financial capacity
of such assignee is not materially less than FDISG's; (ii) the nature and
quality of the services to be provided hereunder, including the Performance
Standards set forth in Exhibit 1 of Schedule A, 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 FDISG's.
FDISG may, in its sole discretion, engage subcontractors to perform any non-
material or non-subtanative obligations contained in this Agreement that it is
otherwise required to perform hereunder, provided however, that FDISG shall
remain responsible for the acts and omissions of such sub-contractors to the
same extent as it is hereunder.
Article 18 Notice.
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Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Fund or FDISG, shall be sufficiently given if
addressed to that party and received by it at its office set forth below or at
such other place as it may from time to time designate in writing.
To the Fund:
c/o NBD Bank
000 Xxxxx Xxxxx
X.X. Xxx 0000
Xxxx, Xxxxxxxx 00000-0000
(000) 000-0000
ATTN: President
With a copy to:
Xx. Xxxxx Xxxxx
13
Managing Director
First Chicago Investment Management Company
Three First National Plaza, Mail Stop 0334
Xxxxxxx, XX 00000
and to
W. Xxxxx XxXxxxxx, III
Drinker Xxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 19 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 FDISG
and Client hereby submit themselves to the exclusive jurisdiction of those
courts.
Article 20 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 21 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 22 Publicity.
---------
Neither FDISG nor the Fund shall release or publish news releases, public
announcements, advertising or other publicity relating to this Agreement or to
the transactions
14
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 23 Relationship of Parties/Non-Solicitation.
----------------------------------------
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 24 Entire Agreement; Severability.
------------------------------
24.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against FDISG unless said writing is executed by an Executive Vice
President, or President of FDISG. 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.
24.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
24.3 The names "The Xxxxxxxx Variable Annuity Fund" and "Trustees of the
Fund" refer, respectively, to the trust created and the trustees, as trustees
but not individually or personally, acting from time to time under a Declaration
of Trust dated November 7, 1994, which is hereby referred to and a copy of which
is on file at the office of the State Secretary of the State of Delaware and at
the principal office of the Fund. The obligations of the Fund entered into in
the name or on behalf thereof by any of the trustees, representatives or agents
are made not individually, but in such capacities, and are not binding upon any
of the trustees, shareholders or representatives of the Fund personally, but
bind only the trust property, and all persons dealing with any portfolio of the
Fund must look solely to the trust property belonging to such portfolio for the
enforcement of any claims against the Fund.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
THE XXXXXXXX VARIABLE ANNUITY FUND
By: [SIGNATURE APPEARS HERE]
-----------------------------------
Title: Its Chairman
--------------------------------
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: [SIGNATURE APPEARS HERE]
-----------------------------------
Title: Executive VP
--------------------------------
16
SCHEDULE OF PORTFOLIOS
The Xxxxxxxx Variable Annuity Fund
Transfer Agency and Services Agreement
Managed Assets Balanced Fund (Balanced Fund*)
Growth and Value Fund (Growth/Value Fund*)
Mid-Cap Opportunity Fund (Opportunity Fund*)
Growth Fund (Capital Growth Fund*)
Money Market Fund
------------------------
* This is the pre-reorganization name of the Fund.
17
Schedule A
DUTIES OF FDISG
---------------
1. Shareholder Information. FDISG 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 and shall include historical information
regarding the account of each Shareholder, including dividends and distributions
paid and the date and price for all transactions on a Shareholder's account; any
stop or restraining order placed against a Shareholder's account; information
with respect to withholdings; any information required in order for FDISG to
perform any calculations contemplated or required by the Agreement to which this
is a Schedule (the "Agreement"); FDISG shall keep a record of all redemption
checks and dividend checks returned by the postal authorities, and shall
maintain such records as are required by the Fund.
2. Shareholder Services. FDISG 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 FDISG and the Fund. Shareholder communication services
shall include a voice response unit ("VRU") capability providing inquiry based
options. Effective on or before January 1, 1997, the VRU capabilities shall be
enhanced to allow for selected transaction processing.
3. Mailing Communications to Shareholders. At the expense of the Fund, as
--------------------------------------
set forth in Schedule C, FDISG will address and mail to Shareholders of the
Fund, all reports to Shareholders, dividend and distribution notices.
Shareholder communication services shall include a voice response unit ("VRU")
capability providing inquiry based options. Effective on or before January 1,
1997, the VRU capabilities shall be enhanced to allow for selected transaction
processing.
4. Sales of Shares
---------------
(a) FDISG 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 FDISG 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, FDISG 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 FDISG may from time to time deem appropriate.
5. Transfer and Repurchase
-----------------------
18
(a) FDISG 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) FDISG 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 FDISG reasonably may deem necessary.
(c) FDISG reserves the right to refuse to transfer or repurchase Shares
until it is satisfied that the endorsement on the instructions is valid and
genuine. FDISG also reserves the right to refuse to transfer or repurchase
Shares until it is satisfied that the requested transfer or repurchase is
legally authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or repurchases which FDISG, 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, FDISG 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 FDISG reflecting outstanding Shares of the Fund and Shares
attributed to individual accounts.
(e) FDISG, 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
FDISG from the Fund.
(f) FDISG shall not process or effect any repurchase with respect to
Shares of the Fund after receipt by FDISG or its agent of notification of the
suspension of the determination of the net asset value of the Fund.
6. 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 FDISG 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 the disbursement account sufficient
cash to make payment to the Shareholders of record as of such payment date.
19
(c) If the disbursement account 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 payable date, FDISG will notify the Fund. The Fund hereby
instructs FDISG to process dividend and/or distribution payments to all
Shareholders of record as of the payable date regardless of whether sufficient
cash is available in the disbursement accounts. Subject to FDISG meeting its
standard of care herein, the Fund shall be responsible for and shall indemnify
and hold FDISG harmless from all costs asserted by others with respect to the
actions of FDISG in complying with the instruction of the Fund under the
foregoing sentence.
7. Reports.
-------
(a) FDISG shall furnish daily reports of transactions in Shares; furnish
monthly reports of transactions in Shares by type (custodial, trust, Xxxxx, XXX,
other) including number of accounts; furnish sales data for blue sky reporting
to the Fund via daily transmission; calculate sales load or compensation
payment, if applicable, and provide such information to the Fund; calculate
dealer commissions for the Fund; mail duplicate confirmations to dealers of
their clients' activity, whether executed through the dealer or directly with
FDISG; provide detail for underwriter or broker confirmations and other
participating dealer shareholder accounting, in accordance with such procedures
as may be agreed upon between the Fund and FDISG; provide Shareholder lists and
statistical information concerning accounts to the Fund; provide to the Fund or
the custodian with timely notification of Fund activity and such other
information as may be agreed upon from time to time between FDISG and custodian;
and at the expense of the Fund in accordance with Schedule C, provide toll free
lines for direct shareholder use, plus customer liaison staff with on-line
inquiry capacity.
(b) In connection with FDISG's obligation to provide detail for
underwriter or broker confirmations and other participating dealer shareholder
accounting, FDISG shall modify and enhance the FDISG System to allow for the
timely transmission of such detail to the Pershing Division of Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation ("Pershing"). Such transmission capability
shall be available on or before September 13, 1996, subject to successful
testing with Pershing.
8. Independent Public Accountants. FDISG shall cooperate with the Fund's
------------------------------
independent public accountants and shall take all reasonable action in the
performance of its obligations under the Agreement to assure that the necessary
information is made available to such accountants for the expression of their
opinion as such may be required by the Fund from time to time.
9. In addition to and neither in lieu nor in contravention of the
services set forth above, FDISG 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
20
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.
21
Exhibit 1 of Schedule A
PERFORMANCE STANDARDS
FDISG will use a statistical sampling defined below as a percentage of
transactions processed through the Transaction Processing and Quality Control
units of FDISG providing services to the Fund and will track and report to the
Fund on the accuracy of the transactions processed. Examining the sample
against predetermined FDISG criteria for accuracy, FDISG will provide an
accuracy rate as represented by a "percent", measured to the last Friday of each
month from the last Friday of the previous month. The Fund reserves the right
to inspect, or have a third party inspect, the Quality Assurance Procedures and
documentation and all documents reviewed and considered in determining the
accuracy of processing.
Turnaround QC% QA% Accuracy
R = receipt date Standard
I. Transaction Processing
----------------------
New Accounts
Purchases R 100% 15% 98%
Exchanges R 100% 15% 98%
Transfers R+3 100% 15% 98%
Purchases
Directs R 100% 10% 98%
Wire Orders R 100% 10% 98%
Redemptions
Directs R 100% 10% 98%
Wire Orders R 100% 10% 98%
Exchanges R 100% 10% 98%
Transfers R+3 100% 10% 98%
Adjustments
Priority R+1 100% 10% 98%
Non-Priority R+4 100% 10% 98%
OCF Cancel/Rebill R+1 100% 15% 98%
II. Shareholder Services
--------------------
Research
Priority R+1 100% 95%
Non-Priority R+4 100% 95%
Transcripts R+9 100% 95%
Correspondence
Priority (Financial) R+3 100% 10% 98%
Non-Priority (Other) R+5 100% 10% 98%
III. Control Deadlines
-----------------
22
Fund Accounting Times
Variable Funds Supersheets 10:00am daily
Tax Exempt Money Market Funds Supersheets 12:30pm daily
Taxable Money Market Funds Supersheets 3:30pm daily
Custody Settlements
Net Settlement for Variable Funds 11:00am daily
Net Settlement for Money Market Funds 4:00pm daily
Outgoing Wires 4:30pm daily
Commissions
12B-1 Data to Bisys R+1
Funding to FDISG TBD (to be discussed with Bisys)
Checks Mailed TBD+3
Front End Load Checks R+3
IV. Administration
--------------
Duplicate Confirmation R+2 2% 98%
Mailed
Daily Checks Mailed R+1 2% 98%
Periodic Checks Mailed R+2 2% 98%
Daily Confirmations R+2 2% 98%
Mailed
Periodic Statements
Mailed Pre-sort
50% minimum R+3 2% 98%
Remaining R+4 2% 98%
V. Systems
-------
Availability
Monday - Friday 8:00am to 9:00pm* EST 98%
Saturday 11:00am to 10:00pm EST 98%
Sunday 8:00am to 5:00pm EST 98%
* At month-end and periodically for predetermined business reasons, FSR
will come down at 8:00pm.
Transmissions
ACH for NBD Bank DDA cycle - 11:00pm EST 98%
List out remaining transmissions and determine client standards 98%
FDISG will use a statistical sampling defined categorically in Section I - III
of transactions processed through the Transaction Processing and Quality Control
units of FDISG providing services to the Fund and will track and report to the
Fund on the accuracy of the transaction processed. Examining the sampling
against predetermined FDISG criteria for accuracy, FDISG
23
will provide a 98% accuracy rate, measured monthly by their independent Quality
Assurance Department and reported to the Fund by the 20th of the following
month.
This document will be modified by the business areas if conditions are such that
changes are deemed necessary by the Fund and by FDISG.
24
Schedule B
Fee Schedule
I. TRANSFER AGENT FEES:
Open Account Sliding Fee Scale
Accounts Annual Fee
-------- ----------
0 - 80,000 $18.00 per account
80,001 - 100,000 $16.00 per account
100,001 - 150,000 $14.00 per account
150,001+ $13.00 per account
Closed Account Fee: $2.00 per account per annum
IMPRESS Software Fees: $3,200 per workstation per annum
Note: IMPRESS Software Fees will be included in IMPRESS License Software
Agreement
Variable Annuity Fees: A flat fee of $1,000 per month will be charged to
support up to 5 variable annuity funds. The monthly fee
will increase by $500 for each additional fund.
XXX Maintenance Fees: Retirement account shareholders will be assessed an
annual fee of $10.00 per fund/account position with a
cap of $25 per account number.
New Portfolio Fees: $25,000 per annum minimum for all new portfolios
introduced over the 3 year contract period. (Initial 6
have no minimums.)
II. VALUE ADDED SERVICES
Remote Trade Entry: $10,000 per annum for up to 10 workstations
III. SET UP CHARGES
Voice Response Unit, Cost Basis Accounting, and Remote Trade Entry
25
$50,000 set up charge
IV. CONVERSION EXPENSE
First Data and First Chicago/NBD Bank have agreed to split the conversion cost
with First Chicago/NBD paying a maximum of $250,000.
V. PRINT/MAIL CHARGES
1. Daily Output
------------
(a) Shareholder Statements:
Base stock, laser printing, folding, inserting and mailing, (excluding
postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
Set up Fee: $15.00 per work order
(b) Combined Statements (Householding multiple statements in one envelope):
Base stock, laser printing, folding, inserting and mailing, (excluding
postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
Set up Fee: $15.00 per work order
(c) Combined Exchange Statements (To and from exchange on one confirm):
Base stock, laser printing, folding, inserting and mailing (excluding
postage and envelopes)
26
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
2. Dividend Output
---------------
(a) Shareholder Statements:
Base stock, laser printing, folding, inserting and mailing, (excluding
postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
(b) Dividend Checks:
Base stock, laser printing, folding, inserting and mailing, (excluding
postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.179 per image
3,500 - 10,000 $.169 per image
10,001 and above $.16 per image
Minimum Charge $25.00 per work order
3. Consolidated Statements
-----------------------
Shareholder & Dealer Statements:
Base stock, laser printing, folding, inserting and mailing (excluding postage
and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
27
Selective Inserting Charges $.03 per envelope
(minimum $250)
4. On-Request `Super Select* Statements
------------------------------------
Shareholder Statements:
Base stock, laser printing, folding inserting and mailing, (excluding postage
and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
Set up Fee: $15.00 per work order
5. New Account Letters
-------------------
Base stock, laser printing, folding, inserting and mailing, (excluding postage
and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
Set up Fee: $15.00 per work order
6. T.I.N. Solicitations
--------------------
Daily Statements, Educational TIN, B-Notice, Second B-notice:
Base stock, laser printing, folding, inserting and mailing
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
28
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
(excluding postage and envelopes) $15.00 per work order
7. Wire Order Invoice Statements
-----------------------------
Base stock, laser printing, folding, inserting and mailing
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per image
10,001 - and above $.12 per image
Minimum Charge $25.00 per work order
(excluding postage and envelopes) $15.00 per work order
8. Label List Mailings
-------------------
Cheshire labeling and mail first class $29.00/thousand
Labeling, inserting and mailing $50.00 set up charge
(excludes postage and envelopes)
9. Miscellaneous Services Charge Per Unit
---------------------- ------ --------
1 Additional Insert $20 1,000
2 Additional Inserts $40 1,000
3 Additional Inserts $60 1,000
4 Additional Inserts $80 1,000
5 Additional Inserts $100 1,000
6 Additional Inserts $120 1,000
7 Additional Inserts $140 1,000
8 Additional Inserts $160 1,000
Folding $20 1,000
Manual Processing $25 Per Hour
NOTE: Costs of all materials used are in addition to all prices. Postage is in
addition, (50-50 split of postal savings).
29
Schedule C
OUT-OF-POCKET EXPENSES
----------------------
The Fund shall reimburse FDISG monthly for the following applicable out-of-
pocket expenses:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including envelopes, checks and stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including all lease, maintenance
and line costs
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end forms and mailings
- Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
- Duplicating services
- Courier services
- Incoming and outgoing wire charges
- Federal Reserve charges for check clearance
- Overtime, as approved by the Fund
- Temporary staff, as approved by the Fund
- Travel and entertainment, as approved by the Fund
- Record retention as required by the Fund, retrieval and destruction costs,
including, but not limited to exit fees charged by third party record
keeping vendors
- All Systems enhancements after the conversion at the rate of $100.00 per
hour
The Fund agrees that postage and mailing expenses will be paid on the day of
or prior to mailing as agreed with FDISG. In addition, the Fund will promptly
reimburse FDISG for any other unscheduled expenses incurred by FDISG whenever
the Fund and FDISG mutually agree that such expenses are not otherwise properly
borne by FDISG as part of its duties and obligations under the Agreement.
30
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
- All account application forms and other documents relating to Shareholder
accounts or to any plan, program or service offered by the Fund
- Certified list of Shareholders of the Fund with the name, address and
taxpayer identification number of each Shareholder, and the number of
Shares of the Fund held by each, certificate numbers and denominations (if
any certificates have been issued), lists of any accounts against which
stop transfer orders have been placed, together with the reasons
therefore, and the number of Shares redeemed by the Fund
- All notices issued by the Fund with respect to the Shares in accordance
with and pursuant to the Articles of Incorporation or By-laws of the Fund
or as required by law and shall perform such other specific duties as are
set forth in the Articles of Incorporation including the giving of notice
of any special or annual meetings of shareholders and any other notices
required thereby.
31
