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FORM N-4, ITEM 24(b)(8.40)
FORM OF SERVICE AGREEMENT
BETWEEN BLACKROCK ADVISORS, LLC & AMERICAN UNITED LIFE INSURANCE COMPANY(R)
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DRAFT
075780-0178-10695-NY01.2547658
SERVICE AGREEMENT
SERVICE AGREEMENT ("Agreement") effective as of ______________ and executed
____________ by and among American United Life Insurance Company ("Service
Organization"), BlackRock Advisors, LLC ("BAL"), which serves as the advisor for
the Funds as defined below ("Fund Company"), and BlackRock Investments, Inc.
("BII," and collectively with BAL and Fund Company, "Fund Parties").
RECITALS
WHEREAS, BII serves as the principal underwriter or distributor of each of the
series or classes of shares of beneficial interest ("Shares") in the portfolios
of Fund Company (each such portfolio, a "Fund" and collectively, the "Funds");
WHEREAS, BAL is the investment adviser for the Funds and has the authority to
contract with certain persons or entities to facilitate transactions in Shares
of the Funds;
WHEREAS, Service Organization, with its affiliates, acts as recordkeeper and
administrator for various employee benefit plans, whether qualified or
non-qualified (collectively, the ("Plans");
WHEREAS, various participants of the Plans ("Plan Participants") may instruct
Service Organization, either directly or through an affiliate, to invest a
portion of their accounts in Shares of the Funds as agreed to by the parties
from time to time and identified on Attachment 1 to Exhibit A hereto;
WHEREAS, Service Organization provides various services to such Plan
Participants; and
WHEREAS, certain policies, procedures and information are necessary to enable
Service Organization to provide services to the Plans to assist them in the
purchase and redemption of the Fund's Shares.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
parties agree as follows:
AGREEMENT
1. The Services.
Service Organization, directly or through subcontractors ("Contractual TPA"),
shall provide the following administrative services for Fund accounts
established on behalf of the Plans, which may include the items listed here,
without limitation: performance of certain sub-accounting services;
establishment and maintenance of accounts and records; assistance in processing
purchase and redemption transactions; providing periodic statements with those
of other transactions and balances in other accounts serviced by Service
Organization, if any; and such other information and services as BAL or Fund
Company may reasonably request and are agreed to by Service Organization (the
"Operational Services"). Service Organization may utilize its affiliates in
performing its obligations hereunder. Service Organization and its employees
will, upon reasonable request, be available during normal business hours to
consult with the Fund Parties or their designees concerning the performance of
Service Organization's responsibilities under this Agreement.
2. The Accounts.
Funds will either recognize each Plan (a) as a single shareholder and as an
unallocated account or (b) as omnibus accounts in the name of distinct Plan
trustees (both "Accounts"), and will not in either case maintain separate
accounts for Plan Participants. In connection with such Accounts, Service
Organization represents and warrants that it has the authority to act on behalf
of the Plans. BAL or its designee shall designate each Account with an account
number. Account numbers will be the means of identification when transactions
and other activities are engaged in with respect to the Accounts.
3. Pricing Information.
Fund Company will compute the closing net asset value and any dividend, income
accrual, and capital gains information for the Funds as of the close of regular
trading on the New York Stock Exchange (normally 4:00 p.m. Eastern Time, the
"Close of Trading") on each day the New York Stock Exchange is open for business
(a "Business Day") as described in the applicable Fund's currently effective
prospectus. Fund Company or its designee will use its best efforts to
communicate to Service Organization such information by 7:00 p.m. Eastern Time
on each Business Day.
4. Price Adjustments.
In the event an adjustment is made to the computation of the net asset value of
Fund Shares as reported to Service Organization under Section 3, Fund Company or
its designee shall notify Service Organization immediately after discovering the
need for any such adjustment. Notification may be made in the following manner:
(i) Fund/SERV Transactions. If the parties choose to use the National Securities
Clearing Corporationls Mutual Fund Settlement, Entry and Registration
Verification ("Fund/SERV") system, any corrections to a Fund's prices for the
prior trade date will be submitted through the Mutual Fund Profile with the
correct prices and applicable date. If the corrections are dated later than
trade date plus one, a facsimile should be sent in addition to the Mutual Fund
Profile submission; or
(ii) Manual Transactions. If the parties choose not to use Fund/SERV, if there
are technical problems with Fund/SERV, or if the parties are not able to
transmit or receive information through Fund/SERV, any corrections to a Fund's
prices should be communicated by facsimile or by electronic transmission, and
will include for each day on which an adjustment has occurred the incorrect Fund
price, the correct price, and, to the extent communicated to Fund shareholders,
the reason for the adjustment. BII and BAL agree that Service Organization may
send this notification or a derivation thereof (so long as such derivation is
approved in advance by BII or BAL, as applicable) to Plan Participants whose
accounts are affected by the adjustment.
(iii) In the event adjustments are required to correct any error in the
computation of the net asset value of a Fund, Fund Company shall notify the
Service Organization as soon as practicable after discovering the need for those
adjustments. Notification may be made via facsimile or via direct or indirect
systems access. Any such notification shall be promptly followed by a letter
written on Fund's letterhead stating for each day for which an error occurred
the incorrect price, the correct price, and the reason for the price change. If
an adjustment is to be made to correct an error which has caused the Account to
receive an amount different from that to which it is entitled, Fund Company
shall make all necessary adjustments to shares owned in the Account.
Notwithstanding anything to the contrary in this Agreement, Fund Parties shall
not be liable for Service Organization's out-of-pocket expenses related to
adjustments made as a result of a pricing error.
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5. Purchases and Redemption Orders; Settlement of Transactions.
(a) Method of Communication.
(i) Fund/SERV Transactions. If the parties choose to use Fund/SERV, the
following provisions shall apply:
(A) Service Organization and BII or its designee will be bound by the terms of
the Fund/SERV Agreement filed by each with the NSCC. Without limiting the
generality of the following provisions of this section, Service Organization and
BII or its designee each will perform any and all duties, functions, procedures
and responsibilities assigned to it and as otherwise established by the NSCC
applicable to Fund/SERV and the Networking Matrix Level utilized.
(B) Any information transmitted through NSCC's networking system ("Networking")
by any party to the other and pursuant to this Agreement will be accurate,
complete, and in the format prescribed by the NSCC. Each party will adopt,
implement and maintain procedures reasonably designed to ensure the accuracy of
all transmissions through Networking and to limit the access to, and the
inputting of data into, Networking to persons specifically authorized by such
party.
(C) On each Business Day, Service Organization shall aggregate and calculate the
net purchase and redemption orders for each Account received by Service
Organization prior to the Close of Trading on each Business Day. Service
Organization shall communicate to BII or its designee for that Business Day, by
Fund/SERV, the net aggregate purchase or redemption orders (if any) for each
Account received by the Close of Trading on such Business Day (the "Trade Date")
no later than 5:00 a.m. Eastern Time on the Business Day following the Trade
Date. All orders received by Service Organization after the Close of Trading on
a Business Day shall not be transmitted to NSCC prior to the following Business
Day. BII or its designee shall treat all trades communicated to BII or its
designee in accordance with this provision as if received prior to the Close of
Trading on the Trade Date.
(D) All orders are subject to acceptance by BII or its designee and become
effective only upon confirmation by BII or its designee. Upon confirmation, BII
or its designee will verify total purchases and redemptions and the closing
share position for each Account. In the case of delayed settlement, BII or its
designee shall make arrangements for the settlement of redemptions by wire no
later than the time permitted for settlement of redemption orders by the
Investment Company Act of 1940, as amended (the "1940 Act"). Such wires should
be sent to:
[ ]
ABA#:
Account Title:
Account No.:
Reference:
(ii) Manual Transactions. If the parties choose not to use Fund/SERV, if there
are technical problems with Fund/SERV, or if the parties are not able to
transmit or receive information through Fund/SERV, the following provisions
shall apply:
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(A) Next Day Transmission of Orders. On each Business Day, Service Organization
shall aggregate and calculate the net purchase and redemption orders for each
Account received by Service Organization prior to the Close of Trading on such
Business Day. Prior to 8:30 a.m. Eastern Time (or such other time as may be
agreed by the parties from time to time) on the next following Business Day,
Service Organization shall communicate to BII or its designee by facsimile or,
in Service Organization's discretion, by telephone or any other method agreed
upon by the parties, the net aggregate purchase or redemption orders (if any)
for each Account received by the Close of Trading on the prior Business Day (the
"Trade Date"). All orders communicated to BII or its designee by the 8:30 a.m.
deadline (or such other time as may be agreed by the parties from time to time)
shall be treated by BII or its designee as if received prior to the Close of
Trading on the Trade Date.
(B) Purchases. Service Organization will use its best efforts to transmit each
purchase order to BII or its designee in accordance with written instructions
previously provided by BII or its designee to Service Organization. Service
Organization or the Plan trustee will use its best efforts to initiate by wire
transfer to BII or its designee purchase amounts prior to 1:00 p.m. Eastern Time
on the next Business Day following the Trade Date.
(C) Redemptions. With respect to redemption orders placed by Service
Organization by 8:30 a.m. Eastern Time (or such other time as may be agreed by
the parties from time to time) on the first Business Day following the Trade
Date, BII or its designee will use its best efforts to initiate by wire transfer
to Service Organization or the Plan trustee proceeds of such redemptions by 1:00
p.m. Eastern Time on the next Business Day following the Trade Date.
Unless otherwise informed in writing, redemption wires should be sent to:
[ Huntington Bank ]
ABA#: 000000000
Account Title: American United Life Insurance
Account No.: 01400673890
Reference:
(D) Confirmation. By Trade Date plus two Business Days, purchase and redemption
trades can be confirmed through one of the following methods: Access through the
following website xxx.xxxxxxxxxxxxxx.xxx or direct calls to Fund, its transfer
agent or BAL.
(b) Contractual TPA Transactions. With respect to transactions executed pursuant
to a Contractual TPA arrangement described in Section 1, by 8:30 a.m. Eastern
Time (or such other time as may be agreed by the parties from time to time) on
the next Business Day following receipt of such instructions, Service
Organization will provide to BII or its designee one or more files detailing the
instructions received with respect to each Account prior to 4:00 p.m. Eastern
Time on the prior Business Day. If for any reason Service Organization is unable
to transmit the files(s) with respect to any Business Day, Service Organization
will notify BII or its designee by 8:30 a.m. Eastern Time (or such other time as
may be agreed by the parties from time to time) on the next following Business
Day.
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(c) Investor A Shares. All orders for the purchase of Investor A Shares of a
Fund shall be executed at the net asset value per share for Investor A Shares
and all orders for the redemption of Investor A Shares of a Fund shall be
executed at the net asset value per share for Investor A Shares.
(d) Purchase Orders. Service Organization agrees that purchase orders
transmitted by Service Organization will be made only for the purpose of
covering purchase orders already received from Plan Participants. Further,
Service Organization shall transmit purchase orders received from Plan
Participants immediately and shall not withhold the transmittal of such orders
so as to profit itself; provided, however, that the foregoing shall not prevent
the purchase of Shares by Service Organization for its own bona fide investment.
Service Organization agrees that it shall not effect any transactions
(including, without limitation, the transmission of any purchase and redemption
orders) in any Shares registered in the name of, or beneficially owned by, any
Plan participant unless such participant has granted Service Organization full
right, power and authority to effect such transactions on the participant's
behalf.
6. Agency.
(a) BII shall appoint Service Organization as its agent to accept purchase and
redemption orders for an Account prior to the Close of Trading on each Business
Day. Plan Participants will receive that day's net asset value for orders
accepted by Contractual TPAs from Plan Participants by the Close of Trading on
that day, provided that Service Organization provides such trades to BII prior
to 8:30 a.m. Eastern Time on the next Business Day. Service Organization shall
provide adequate controls and procedures to ensure that all orders provided to
BII prior to 8:30 a.m. Eastern Time on each Business Day shall include only
purchase and redemption orders for each Account received by Service
Organization, or a Contractual TPA, by the Close of Trading on the prior
Business Day.
(b) To the extent Service Organization transmits any purchase or redemption
order for an Account, such purchase or redemption order will be transmitted by
Service Organization (a) as agent of each of the Plans whose Shares are the
subject of such purchase or redemption order and (b) pursuant to instructions
from the Account owner, participant, named fiduciary, entity or any other person
with investment discretion and authority for the assets that are the subject of
the transaction.
7. Recordkeeping; Maintenance of Records.
(a) Recordkeeping and other administrative services to Plan Participants
shall be the responsibility of Service Organization and shall not be the
responsibility of BAL, BII or Fund Company. Fund Parties will not maintain
separate accounts for Plan Participants. Upon the request of one party to
another, the party that the request is being made of shall provide copies
of all records that it maintains relating to Accounts of the Fund as may
reasonably be requested by each party to enable each party or their
representatives to comply with any request of a governmental body or
self-regulatory organization.
(b) Each party will maintain and preserve all records as required by law to be
maintained and preserved by it in connection with the performance of its
obligations under this Agreement. Upon the reasonable request of another party,
a party will provide copies of historical records relating to transactions
between the Funds and the Plans, written communications regarding the Funds to
or from the Plans and other materials that enable the requesting party to
monitor and review the other party's or parties' performance or perform general
customer supervision.
8. Account Activity and Distribution Information.
(a) BAL or its designee shall mail to Service Organization (i) confirmations of
Account activity within five Business Days after each Business Day on which a
purchase or redemption of Shares is effected, (ii) statements detailing activity
in each Account no less frequently than quarterly, and (iii) such other
information as may reasonably be requested by Service Organization.
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(b) BAL or its designee shall provide Service Organization with all distribution
information as soon as it is announced by Fund Company. The distribution
information shall include the applicable ex-date, record date, payable date,
distribution rate per share, record date share balances, cash and reinvested
payment amounts and all other information reasonably requested by Service
Organization.
(c) All Account dividends and capital gains distributions will automatically be
reinvested in the applicable Account on the payable date at net asset value in
accordance with the Fund's then current prospectuses.
9. Shareholder Communications.
BAL or its designee shall provide or cause to be provided to Service
Organization or its authorized representative, at no expense to Service
Organization, the following shareholder communication materials prepared for
circulation to shareholders of record of the Funds in quantities requested by
Service Organization which are sufficient to allow mailing thereof by Service
Organization to all Plan Participants who have an interest in the Shares through
Accounts, as applicable: proxy or information statements, annual reports,
semi-annual reports, and all updated prospectuses, supplements and amendments
thereof. Notwithstanding the above, Service Organization is not obligated to
distribute any proxy or information statements, annual reports, semi-annual
reports, and prospectuses, supplements and amendments thereof, except as
required by law. The cost of distribution of these shareholder communication
materials to shareholders of record of the Funds will be borne by Fund Company.
Fund Company or its designee will, to the extent permitted by law and the Fund's
internal policies and procedures, provide Service Organization on a timely basis
with investment performance information for the Funds, including (a) on a
monthly basis, the top ten portfolio holdings; and (b) on a quarterly basis, the
average annual total return for the prior year, three-year, five-year, ten-year
and life of the Fund periods.
All such information shall be accurate and complete. BAL or its designee will,
to the extent permitted by law and the Fund's internal policies and procedures,
provide the top ten portfolio holdings information to Service Organization
twenty calendar days after month end and the average annual total return for the
prior year, three-year, five-year, ten-year and life of the Fund periods five
Business Days after the end of each quarter. In addition, BAL will use its
reasonable efforts to assist in preparing any "requests for proposals" relating
to Plans which may offer the Fund as an investment alternative. Service
Organization may, based on the Securities and Exchange Commission ("SEC")
-mandated information supplied by the Fund or its designee, prepare
communications for Plan Participants ("Participant Materials"). In addition,
Service Organization may, based on performance information supplied by third
party information providers (e.g., Lipper, Morningstar), prepare Participant
Materials. Service Organization and its agents will not make representations
concerning the Fund or shares of the Fund except those contained in the
then-current prospectuses or statements of additional information of the Fund,
sales literature furnished by BAL to Service Organization and Participant
Materials and other sales literature created by Service Organization and
submitted to and approved in writing by BAL prior to their first use.
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10. Fund Expenses.
Service Organization shall not bear any of the expenses for the cost of
registration of Fund Shares, preparation of Fund prospectuses, proxy materials
and reports, or the preparation of other related statements and notices required
by law.
11. Compensation and Expenses.
(a) With respect to the Operational Services provided pursuant to this
Agreement, BAL will pay Service Organization fees as set forth in Exhibit A
hereto, as may be amended from time to time pursuant to Section 16. For the
purpose of computing payments to Service Organization under this Section 11 with
respect to any Plan, the average daily amount invested by the Plan in a Fund for
any calendar month will be computed by totaling the Plan's aggregate investment
(share net asset value multiplied by total number of Shares of the Fund held by
the Plan) on each Business Day during the month and dividing by the total number
of Business Days during each month.
(b) The parties hereto agree that compensation to Service Organization under
this Section 11 is not in consideration for services which are primarily
intended to result in the sale of Fund Shares.
(c) Notwithstanding anything herein to the contrary, BAL shall not be obligated
to make any payments under this Agreement that exceed the maximum amounts
permitted under any applicable rule or regulation, including any rule
promulgated by the Financial Industry Regulatory Authority ("FINRA") (the
"Applicable Limitations"). Service Organization agrees that any amount due under
this Agreement that BAL determines to be in excess of the Applicable Limitations
may be paid by another entity designated by BAL (an "Alternative Payer"). Any
decision to designate an Alternative Payer shall be within the sole discretion
of BAL, subject to the consent of Service Organization, which consent will not
be unreasonably withheld. BAL agrees that: (i) Service Organization may submit a
single xxxx for monies owed under this Agreement; (ii) BAL shall be solely
responsible to ensure that any Applicable Limitations are not exceeded; and
(iii) BAL shall be responsible to ensure that any Alternative Payer discharges
its obligations consistent with the provisions of this Agreement.
(d) Service Organization will furnish Fund Parties or their designees with such
information as they may reasonably request (including, without limitation,
periodic certifications confirming the provision of the Operational Services),
and will otherwise cooperate with Fund Parties and their designees (including,
without limitation, any auditors designated by Fund Company), in connection with
the preparation of reports to the Board of Trustees concerning this Agreement
and the monies paid or payable pursuant hereto, as well as any other reports or
filings that may be required by law.
(e) All expenses incident to the performance by each party of its respective
duties under this Agreement shall be paid by the party, except as otherwise
provided in this Agreement.
(f) BAL shall only be responsible under this Section 11 for fees accrued and
payable prior to termination of this Agreement.
(g) Where services under this Agreement are provided by a Contractual TPA,
Service Organization will ensure that such Contractual TPA will not charge any
of the Fund Parties for services provided under this Agreement in any invoices
submitted pursuant to any other agreements that Contractual TPA has with the
Fund Parties.
12. Indemnification.
(a) Service Organization shall indemnify, defend and hold harmless Fund Parties
and each of their respective trustees, directors, officers, employees, and
agents, and each person who controls each of them within the meaning of the
Securities Act of 1933, as amended (the "1933 Act"), from and against any and
all losses, claims, damages, liabilities and expenses, including reasonable
attorneys' fees ("Losses") they may incur, insofar as such Losses arise out of
or are
7
based upon (i) Service Organization's negligence or willful misconduct in the
performance of its duties and obligations under this Agreement, (ii) Service
Organization's violation of Applicable Law in connection with the performance of
its duties and obligations under this Agreement and (iii) any breach by Service
Organization of any provision of this Agreement, including any representation,
warranty or covenant made in this Agreement and (iv) any action or inaction by a
Contractual TPA in connection with transactions contemplated by this Agreement,
including but not limited to fees or costs charged directly to Fund Parties by
Contractual TPAs through any direct contracts with Fund Parties. Service
Organization shall also reimburse the above named persons for any legal or other
expenses reasonably incurred by any of them in connection with investigating or
defending against such Losses. This indemnity provision is in addition to any
other liability that Service Organization may otherwise have to BAL, BII or Fund
Company.
(b) BII shall indemnify, defend and hold harmless Service Organization and its
directors, officers, employees, agents and each person who controls Service
Organization within the meaning of the 1933 Act from and against any and all
Losses they may incur, insofar as such Losses arise out of or are based upon (i)
BII's negligence or willful misconduct in the performance of its duties and
obligations under this Agreement, (ii) BII's violation of Applicable Law in
connection with the performance of the duties and obligations under this
Agreement and (iii) any breach by BII of any provision of this Agreement,
including any representation, warranty or covenant made in this Agreement. BII
shall also reimburse the above named persons for any legal or other expenses
reasonably incurred by any of them in connection with investigating or defending
against such Losses. BII, and any other Fund Party, shall not be responsible for
indemnification or reimbursement of any out of pocket costs or overhead expenses
incurred by Service Organization or Contractual TPAs related to pricing error or
late reporting of Fund Share prices. This indemnity provision is in addition to
any other liability that BII may otherwise have to Service Organization.
(c) Promptly after receipt by a party entitled to indemnification under this
Section 12 (an "Indemnified Party") of notice of the commencement of an
investigation, action, claim or proceeding, such Indemnified Party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 12, notify the indemnifying party of the commencement thereof. The
indemnifying party will be entitled to assume the defense thereof, with counsel
reasonably satisfactory to the Indemnified Party. After notice from the
indemnifying party of its intention to assume the defense of an action and the
appointment of satisfactory counsel, Indemnified Party shall bear the expenses
of any additional counsel obtained by it, and the indemnifying party shall not
be liable to such Indemnified Party under this Section for any legal expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation. The indemnifying party
shall not, without the prior written consent of the Indemnified Party, settle or
compromise the liability of the Indemnified Party; provided however, that in the
event that the Indemnified Party fails to provide its written consent, the
indemnifying party shall thereafter be liable only to the extent of the amount
for which the action could otherwise have been settled or compromised.
13. Representations and Warranties.
(a) Each of BII and BAL, severally, hereby represents and warrants to Service
Organization that:
(i) It has the corporate power and the authority to enter into and perform all
of its duties and obligations under this Agreement;
(ii) This Agreement constitutes a legal, valid and binding obligation,
enforceable against each above-named party in accordance with its terms;
(iii) No consent or authorization of, filing with, or other act by or in respect
of any governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement; and
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(iv) The execution, performance and delivery of this Agreement by each of BII or
BAL, as applicable, will not result in it violating any Applicable Law or
breaching or otherwise impairing any of its contractual obligations;
(b) BAL hereby represents and warrants to Service Organization that:
(i) Prospectuses or other materials concerning the Fund are complete and
accurate in all material respects and do not contain any material omission or
misstatement of a material fact necessary to make the information not
misleading.
(c) Service Organization hereby represents and warrants to BII and BAL that:
(i) It has the corporate power and the authority to enter into and perform all
of its duties and obligations under this Agreement;
(ii) This Agreement constitutes its legal, valid and binding obligation, and is
enforceable against it in accordance with its terms;
(iii) No consent or authorization of, filing with, or other act by or in respect
of any governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement;
(iv) The fees paid to it pursuant to this Agreement are reasonable in relation
to the Services it provides and reasonably similar to fees it receives for
equivalent services provided to other parties;
(v) The execution, performance and delivery of this Agreement by Service
Organization will not result in it violating any Applicable Law or breaching or
otherwise impairing any of its contractual obligations; and
14. Termination.
Any party may terminate this Agreement: (a) by providing 90 days' written notice
to the other parties; (b) at any time by giving 30 days' written notice to the
other parties in the event of a material breach of this Agreement by another
party that is not cured during such 30-day period; (c) upon institution of
formal proceedings relating to the legality of the terms and conditions of this
Agreement by FINRA, the SEC, or any other regulatory body; (d) upon assignment
of this Agreement in contravention of the terms hereof; (e) in the event Shares
of the Fund are not registered, issued or sold in conformity with federal law or
such law precludes the use of Fund Shares as an underlying investment medium for
the Plans; prompt notice shall be given by a party to the others in the event
the conditions of this provision occur; and (f) upon such shorter notice as is
required by law, order, or instruction by a court of competent jurisdiction or a
regulatory body or self-regulatory organization with jurisdiction over the
terminating party. Upon termination and upon request (and, if requested, at the
expense of the requesting party), the other parties to this Agreement shall
deliver to the requesting party any Account and Fund records which the
requesting party may be required by law or regulation to have access to or to
maintain.
15. Governing Law.
This Agreement shall be governed by and interpreted in accordance with the
internal laws of the State of New York, exclusive of conflict of law provisions.
16. Amendment and Waiver.
The Agreement may be amended by Fund Company, BAL or BII at any time upon
written notice to the Service Organization, and the Service Organization's
placing of a transaction regarding Shares of the Fund after notice of such
amendment has been sent shall constitute the Service Organization's agreement to
such amendment. No modification of any provision of this
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Agreement requested otherwise will be binding unless in writing and executed by
all parties to the Agreement. No waiver of any provision of this Agreement will
be binding unless in writing and executed by the party granting such waiver. Any
valid waiver of a provision set forth herein shall not constitute a waiver of
any other provision of this Agreement. In addition, any such waiver shall
constitute a present waiver of such provision and shall not constitute a
permanent future waiver of such provision.
17. Assignment.
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective successors and assigns; provided, however, that
neither this Agreement nor any rights, privileges, duties or obligations of the
parties may be assigned by a party without the written consent of the other
parties or as expressly contemplated by this Agreement.
18. Entire Agreement.
This Agreement, including all exhibits, contains the entire agreement between
the parties with respect to the transactions covered and contemplated hereunder,
and supersedes all prior agreements and understandings between the parties
relating to the subject matter hereof, including without limitation any
agreements between Service Organization or its affiliates and (i) State Street
Research & Management Company, its affiliates and/or the State Street Research
mutual funds or (ii) FAM Distributors, Inc. and/or the mutual funds previously
advised by Xxxxxxx Xxxxx Investment Managers or one of its affiliates.
19. No Joint Venture, Etc.
Neither the execution nor performance of this Agreement shall be deemed to
create a partnership or joint venture by and among Service Organization, BAL,
BII and Fund Company. Service Organization shall have no authority to act as
agent for the Fund Parties in any matter or in any respect, except as described
herein.
20. Notices.
All notices hereunder shall be given in writing (and shall be deemed to have
been duly given upon receipt) and delivered in person, by telecopy, by
registered or certified mail or by overnight delivery (postage prepaid, return
receipt requested) to the persons listed below at the following addresses:
To Service Organization:
American United Life Insurance Company
Xxx Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxxxx, XX 00000-0000
To Fund Company and BAL:
BlackRock Advisors, LLC
00 Xxxx 00xx Xxxxxx
00
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxxx
General Counsel
BlackRock, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
To BII:
BlackRock Investments, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Xxxxxx Xxxxxxx
Chief Compliance Officer
BlackRock Investments, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
21. 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.
22. Survival.
The provisions of Sections 5, 7(a), 11, 12, 13, 27 and 28 shall survive
termination of this Agreement.
23. Non-Exclusivity.
Each of the parties acknowledges and agrees that this Agreement and the
arrangements described herein are intended to be non-exclusive and that each of
the parties is free to enter into similar agreements and arrangements with other
entities.
24. Severability.
If any provision of this Agreement shall be held or made invalid by court
decision, statute, rule or otherwise, the remainder of the Agreement shall not
be affected thereby.
25. Rule 22c-2 Compliance.
26. Compliance with Laws; Reliance on Instructions.
(a) BAL and BII acknowledge and agree that Service Organization is not
responsible for: (i) any information contained in any prospectus, registration
statement, annual or semi-annual report, proxy statement, or item of advertising
or marketing material prepared by BAL, BII or Fund
11
Company which relates to Fund Company or the Funds; (ii) registration or
qualification of any Fund Shares under any federal or state laws; or (iii)
compliance by BAL, BII and Fund Company with all applicable federal and state
laws, rules and regulations, the rules and regulations of any self-regulatory
organization with jurisdiction over the above-named parties, and the provisions
of the Funds' prospectuses and statements of additional information (the
foregoing laws, rules and regulations are collectively referred to herein as
"Applicable Law").
(b) Service Organization shall, and shall use its best efforts to ensure that
each Contractual TPA will, comply with all Applicable Law, specifically
including but not limited to Rule 22c-1(a) under the 1940 Act and all
requirements to provide specific disclosures to Plan Participants regarding fees
paid under this Agreement. Service Organization has policies and procedures in
place in order to comply with all such requirements as applicable and effective,
including its obligations under the provisions of the International Money
Laundering Abatement Act, the USA PATRIOT Act, the Bank Secrecy Act ("BSA") and
any other anti-money laundering law, rule or regulation applicable to Service
Organization as a financial institution under the BSA, or otherwise. Subject to
legal restrictions, Service Organization will, upon request, promptly provide to
Fund Company, BII or BAL evidence of those policies and procedures and Service
Organization's compliance therewith and/or evidence establishing the identities
and sources of funds for each purchase of Shares of the Fund. Service
Organization acknowledges and agrees that the Fund Parties are not responsible
for Service Organization's compliance with Applicable Law.
(c) Service Organization agrees that any orders transmitted to the Fund or its
designees, by itself or a Contractual TPA, are subject to the terms and
conditions of the Fund's prospectuses (including, without limitation, those
provisions regarding the purchase, exchange and redemption of Fund shares and
policies to deter market timing and other inappropriate trading activity such as
any redemption/exchange fee ("Redemption Fee") and any limitations on exchanges)
and this Agreement and are subject to acceptance or rejection by the Fund in its
sole discretion. Service Organization's or a Contractual TPA's handling of
orders for transactions of Shares shall also comply with Service Organization's
internal policies and procedures, which Service Organization believes to be
appropriate and sufficient with regard to the handling of Fund orders on a
timely basis and which Service Organization believes provide adequate controls
and procedures to ensure ongoing compliance with all Applicable Law and the
Fund's prospectuses. Service Organization and Contractual TPAs shall monitor all
Plan Participants for inappropriate trading activity such as market timing,
excessive short-term trading and such other activity described in the Fund's
prospectuses as being inappropriate or impermissible and shall inform the Fund
of any such activity that Service Organization or a Contractual TPA identifies.
Service Organization and Contractual TPAs will promptly provide the Fund with
information it reasonably requests regarding transactions in Shares by Plan
Participants and will assist the Fund in taking appropriate action against any
Plan Participants identified as engaging in inappropriate trading activity,
including freezing all further purchases of Shares by those Plan Participants.
(d) Each party hereto is entitled to rely on any written records or instructions
provided to it by a responsible person(s) of the other party(ies).
(e) Each party shall notify the other of any errors or omissions in any
information, including the net asset value and distribution information set
forth above, and interruptions in, or delay or unavailability of the means of
transmittal or any such information as promptly as possible.
27. Confidentiality.
(a) All confidential information of a party and of the third parties with which
it does business, including without limitation information relating to computer
systems, participant data, customer lists and business plans, is collectively
referred to as its "Confidential Information."
12
Except as expressly permitted by this Agreement and except for information
provided pursuant to Section 25 which is governed by Section 25(a)(iii), each
party hereto will: (i) keep and maintain all Confidential Information of the
other parties in strict confidence, using such degree of care as is appropriate
to avoid unauthorized use or disclosure; (ii) not, directly or indirectly,
disclose any Confidential Information of the other party or parties to any third
party, except with the other party's or parties' prior written consent; and
(iii) not make use of the other party's or parties' Confidential Information for
its own purposes or the benefit of any party except the other.
(b) Each party will be permitted to disclose the others' Confidential
Information only to its employees, legal counsel, auditors and agents
(collectively, "Employees") having a need to know the Confidential Information
in connection with the performance of its obligations under this Agreement. The
parties will instruct their respective Employees as to their obligations under
this Agreement. Despite any contrary provision in this Agreement, any party may
disclose the others' Confidential Information to the extent required to comply
with law, regulatory request or a court order; provided, however, that each
party must promptly notify the other parties of receipt of a request for
Confidential Information made pursuant to law, regulatory request or court
order, give the other parties a reasonable opportunity to prevent the disclosure
of the Confidential Information, and reasonably cooperate with the other parties
in any efforts they make to prevent the disclosure of the Confidential
Information.
(c) Despite any contrary provision in this Agreement, Confidential Information
of a party will not include information that: (i) is or becomes generally known
to the public not as a result of a disclosure by the other parties, (ii) is
rightfully in the possession of the other parties before disclosure by the first
party, (iii) is independently developed by the other parties without reliance on
the Confidential Information, or (iv) is received by the other parties in good
faith and without restriction from a third party not under a confidentiality
obligation to the first party and having the right to make such disclosure. The
parties each acknowledge that the disclosure of the others' Confidential
Information may cause irreparable injury to the others and damages which may be
difficult to ascertain. Therefore, each party will be entitled to injunctive
relief upon a disclosure or threatened disclosure of any of its Confidential
Information that would violate the terms of this Agreement. Without limitation
of the foregoing, each party will advise the others immediately in the event
that it learns or has reason to believe that any person or entity which has had
access to Confidential Information has violated or intends to violate the terms
of this Agreement.
28. Intellectual Property.
Except to the extent required by applicable law, no party shall use any other
party's names, logos, trademarks or service marks, whether registered or
unregistered, without the prior consent of the other party.
[Signature page follows]
13
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
written above.
American United Life Insurance Company
By:__________________________________
Print Name:___________________________
Title:_________________________________
Address:
Xxx Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxxxx, XX 00000-0000
BLACKROCK ADVISORS, LLC BLACKROCK INVESTMENTS, INC.
By:__________________________________ By:________________________________
Print Name:____________________________ Print Name:_________________________
Title:_________________________________ Title:______________________________
Address: 00 Xxxx 00xx Xxxxxx Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
14
EXHIBIT A
Part I.
Fee for Operational Services
(a) For the Operational Services described in Section 1 of the Agreement that
Service Organization or its designee provides to the accounts of Plan
Participants in Plans that are eligible to purchase Shares of the fixed income
portfolios (except index portfolios) of Fund Company, BAL or its designee shall
pay to Service Organization an annual amount equal to the product of_____ basis
points (___%) and the average daily amount invested by such Plans in Shares of
the fixed income portfolios of Fund Company.
(b) For the Operational Services described in Section 1 of the Agreement that
Service Organization or its designee provides to the accounts of Plan
Participants in Plans that are eligible to purchase Shares of the equity
portfolios (except index portfolios) of Fund Company, BAL or its designee shall
pay to Service Organization an annual amount equal to the product of_____ basis
points (___%) and the average daily amount invested by such Plans in Shares of
the equity portfolios of Fund Company.
(c) For the Operational Services described in Section 1 of the Agreement that
Service Organization or its designee provides to the accounts of Plan
Participants in Plans that are eligible to purchase Shares of the index
portfolios of Fund Company, BAL or its designee shall pay to Service
Organization an annual amount equal to the product of_____ basis points (___%)
and the average daily amount invested by such Plans in Shares of the index
portfolios of Fund Company.
(d) For the Operational Services described in Section 1 of the Agreement that
Service Organization or its designee provides to the accounts of Plan
Participants in Plans that are eligible to purchase K Shares of Large Cap Series
Funds Inc. of Fund Company, BAL or its designee shall pay to Service
Organization an annual amount equal to the product of_____ basis points (___%)
and the average daily amount invested by such Plans in K Shares of Large Cap
Series Funds Inc. of Fund Company included in Exhibit B.
Part II.
BAL acknowledges that Service Organization intends to implement the following
policies and procedures relating to the Funds:
1. Front-end sales charges shall be waived.
2. Contingent deferred sales charges shall be waived.
3. Redemption Fees shall be collected in accordance with the terms of the
prospectuses and statement of additional information.
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Part III.
Invoices will be provided by Service Organization to BAL. Payment shall be made
by BAL or its designee quarterly following receipt of such invoice. The invoice
will be submitted on a quarterly basis in a Microsoft Excel format and include
the following information:
1. The total average daily net assets during the period covered by the invoice
for each Fund and Share Class (ticker/CUSIP).
2. The basis point rate that applies to each Account.
3. The subtotal amount due by Fund and Share Class (ticker/cusip).
4. The total amount due.
5. Payment instructions (Wire/Check/ACH).
6. Contact information for the Service Organization.
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EXHIBIT B
Due to fund launches, reorganizations, liquidations, and fund or individual
share class closings, not all the funds listed in this Exhibit may be available
as of the execution date of this agreement or in the future.
Please see the current applicable Prospectus for additional information on
availability of individual funds.
Fund list TBD
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