EXECUTION COPY
SERVICES AGREEMENT
Agreement dated as of October 1, 2001 by and between State
Street Bank and Trust Company, a Massachusetts trust company ("State Street"),
and MEMBERS Capital Advisors, Inc. (the "Adviser").
WHEREAS, the series of Ultra Series Fund (the "Trust") listed
in Schedule A (the "Funds") are registered as management investment companies
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, each Fund listed on Schedule A has retained the
Adviser to furnish administrative services to it; and
WHEREAS, the Adviser desires to retain State Street to furnish
certain services to each Fund, and State Street is willing to furnish such
services, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. APPOINTMENT BY ADVISER
The Adviser hereby appoints State Street to provide certain
services for the Trust for the period and on the terms set forth in this
Agreement. State Street accepts such appointment and agrees to render the
services stated herein.
In the event that the Adviser wishes State Street to provide
services with respect to additional portfolios or funds ("Additional Funds")
hereinafter established by the Adviser or by other management investment
companies that have retained the Adviser, the Adviser shall notify State Street
in writing. Upon written acceptance by State Street, such Additional Funds shall
be listed on an amended Schedule A and the provisions of this Agreement
(including those relating to the compensation and expenses payable by the
Adviser) may be modified with respect to each Additional Fund in writing by the
Adviser and State Street at the time of the addition of the Additional Funds.
2. DELIVERY OF DOCUMENTS
The Adviser will promptly deliver to State Street copies of
each of the following documents and all future amendments and supplements, if
any:
a. The Declaration of Trust for the Trust;
b. The currently effective registration statement under
the Securities Act of 1933, as amended (the "1933
Act"), and the 1940 Act for each Fund, the
Prospectus(es) and Statement(s) of Additional
Information relating to each Fund and all amendments
and supplements thereto as in effect from time to time;
c. Certified copies of the resolutions of the Board of
Directors of the Adviser (the "Board") authorizing (1)
the Adviser to enter into this Agreement
and (2) certain individuals to give instructions to
State Street pursuant to this Agreement; and
d. Such other certificates, documents or opinions which
State Street may, in its reasonable discretion, deem
necessary or appropriate in the proper performance of
its duties.
3. REPRESENTATIONS AND WARRANTIES OF STATE STREET
State Street represents and warrants to the other parties
hereto that:
a. It is a Massachusetts trust company, duly organized
and existing under the laws of The Commonwealth of
Massachusetts;
b. It has the corporate power and authority to carry
on its business in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would materially impair
State Street's ability to perform its duties and
obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any
other agreement or obligation of State Street or any
law or regulation applicable to it.
4. REPRESENTATIONS AND WARRANTIES OF THE ADVISER
The Adviser represents and warrants to the other parties hereto
that:
a. It is a corporation, duly organized, existing and in
good standing under the laws of the State of Iowa;
b. It has the corporate power and authority under
applicable laws and by its charter and by-laws to
enter into and perform this Agreement;
c. All requisite proceedings have been taken to authorize
it to enter into and perform this Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would impair the
Adviser's ability to perform its duties and
obligations under this Agreement; and
e. Its entrance into this Agreement will not cause a
material breach or be in material conflict with any
other agreement or obligation of the Adviser or any
law or regulation applicable to it.
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f. With respect to the Trust and Funds:
(1) Each Fund is an investment company properly
registered under the 1940 Act;
(2) A registration statement under the 1940 Act
has been filed by the Trust with respect to
the Funds and will be effective and remain
effective during the term of this Agreement;
(3) As of the effective date of this agreement,
all necessary filings under the securities
laws of the states in which each Fund offers
or sells its shares have been made;
(4) As of the close of business on the date of
this Agreement, each Fund is authorized to
issue shares of beneficial interest; and
(5) The Trust is duly organized, existing and in
good standing under the laws of its state of
organization.
5. SUB-ADMINISTRATION SERVICES
State Street shall provide the services set forth on Schedule B
annexed hereto, in each case, subject to the control, supervision and direction
of the Adviser and the review and comment by each Fund's auditors and legal
counsel in accordance with procedures which may be established from time to time
between the Adviser and State Street.
State Street shall provide the office facilities and personnel
required by it to perform the services contemplated herein.
6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
State Street shall receive from the Adviser the compensation
for State Street's services provided pursuant to this Agreement set forth in
Schedule C attached to this Agreement. The fee schedule may be amended from time
to time as agreed to and approved by the parties and as set forth in an amended
Schedule C executed by both parties. The fees are calculated based on the
average daily net assets of the Funds and billed monthly and shall be due and
payable upon receipt of the invoice. Upon the termination of this Agreement
before the end of any month, the fee for the part of the month before such
termination shall be prorated according to the proportion which such part bears
to the full monthly period and shall be payable upon the date of termination of
this Agreement. In addition, the Adviser shall reimburse State Street for its
reasonable out-of-pocket costs incurred in connection with this Agreement.
The Adviser agrees to reimburse State Street for any other
expenses not contemplated by this Agreement as mutually agreed upon in writing
by the Adviser and State Street from time to time.
State Street is authorized to and may employ or associate with
such person or persons as State Street may deem desirable to assist it in
performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by State Street and that
State Street shall be as fully responsible to the Adviser for the acts and
omissions of any such person or persons as it is for its own acts and omissions.
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7. INSTRUCTIONS AND ADVICE
At any time, State Street may apply to any officer of the Trust
for instructions and may consult with outside counsel for the Trust or the
independent auditors for the Trust at the expense of the Adviser, or other
individuals designated in writing by the Adviser, for instructions with respect
to any matter arising in connection with the services to be performed by State
Street under this Agreement. State Street shall not be liable, and shall be
indemnified by the Adviser, for any action taken or omitted by it in good faith
in reliance upon any such instructions or advice or upon any paper or document
believed by it to be genuine and to have been signed by such officers or
individuals. State Street shall not be held to have notice of any change of
authority of any officer or individual until receipt of written notice thereof
from the Adviser. Nothing in this Section shall be construed as imposing upon
State Street any obligation to seek such instructions.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
State Street shall be responsible for the performance of only
such duties as are set forth in this Agreement, including those set forth on
Schedule B annexed hereto which forms a part hereof, as such Schedule B may be
amended from time to time, and, except as otherwise provided under Section 6,
shall have no responsibility for the actions or activities of any other party,
including other service providers. State Street shall have no liability in
respect for any loss, damage or expense suffered by the Trust insofar as such
loss, damage or expense arises from the performance of State Street's duties
hereunder in reliance upon records that were maintained for the Trust by
entities other than State Street prior to State Street's performance of duties
for the Trust. State Street shall have no liability for any error of judgment or
mistake of law or for any loss or damage resulting from the performance or
nonperformance of its duties hereunder unless solely caused by or resulting from
the gross negligence or willful misconduct of State Street, its officers or
employees. State Street shall not be liable for any special, indirect,
incidental, or consequential damages of any kind whatsoever (including, without
limitation, attorneys' fees) under any provision of this Agreement or for any
such damages arising out of any act or failure to act hereunder. In any event,
State Street's cumulative liability for each calendar year in which the
aforesaid (i) errors of judgment, (ii) mistakes of law, or (iii) performance or
non-performance of its duties have occurred, which are caused by or resulting
from the gross negligence or willful misconduct of State Street, its officers or
employees (a "Liability Period") with respect to the Funds under this Agreement,
regardless of the form of action or legal theory, shall be limited to the total
annual compensation earned by State Street with respect to the Funds and fees
payable hereunder during the preceding Compensation Period, as defined herein,
for any liability or loss suffered by the Funds including, but not limited to,
any liability relating to qualification of a Fund as a regulated investment
company or any liability relating to a Fund's compliance with any federal or
state tax or securities statute, regulation or ruling. "Compensation Period"
shall mean the calendar year ending immediately prior to each Liability Period
in which the event(s) giving rise to the Adviser's liability for that period
have occurred. Notwithstanding the foregoing, the Compensation Period for
purposes of calculating the annual cumulative liability of State Street for the
Liability Period commencing on the date of this Agreement and terminating on
December 31, 2001 shall be the date of this Agreement through December 31, 2001,
and the Compensation Period for the Liability Period commencing January 1, 2002
and terminating on December 31, 2002 shall be the date of this Agreement through
December 31, 2001. For purposes of the Liability Period commencing as of the
date of this Agreement as well as the Liability Period commencing as of January
1, 2002, the amount representing the fees payable during the applicable
Compensation Period shall be annualized.
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Xxxxx Xxxxxx shall not be responsible or liable for any failure
or delay in performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, work stoppage, power or other mechanical failure,
computer virus, natural disaster, governmental action or communication
disruption.
The Adviser shall indemnify and hold State Street harmless from
all loss, cost, damage and expense, including reasonable fees and expenses for
counsel, incurred by State Street resulting from any claim, demand, action or
suit in connection with State Street's acceptance of this Agreement, any action
or omission by State Street in the performance of its duties hereunder, or as a
result of State Street's acting upon any instructions reasonably believed by it
to have been duly authorized by the Fund or the Adviser, provided that this
indemnification shall not apply to actions or omissions of State Street, its
officers or employees in cases of its or their own gross negligence or willful
misconduct.
The indemnification contained herein shall survive the termination of this
Agreement.
9. CONFIDENTIALITY
State Street agrees that, except as otherwise required by law
or in connection with any required disclosure to a banking or other regulatory
authority, it will keep confidential all records and information in its
possession relating to the Adviser, each Fund or each Fund's shareholders or
shareholder accounts and will not disclose the same to any person except at the
written request or with the written consent of the Adviser.
If State Street (or anyone to whom it delegates its duties
under Section 6 hereof) becomes compelled by applicable law or regulation or by
regulators who have oversight jurisdiction to disclose any of the records or
information relating to the Trust, it will provide the Trust with prompt notice
of such requirement so that the Trust may, if it deems appropriate, seek a
protective order or other appropriate remedy or waive compliance with the
provisions of this Section. In the event that such protective order or other
remedy is not obtained, or that the Trust waives compliance with the provisions
of this Section, State Street will furnish only that portion of the records and
information that it is advised by legal counsel to State Street necessary to
respond to the request. State Street will request that confidential treatment be
accorded any such records or information that is disclosed.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
Each Fund assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it.
In compliance with the requirements of Rule 31a-3 under the
0000 Xxx, Xxxxx Xxxxxx agrees that all records which it maintains for each Fund
shall at all times remain the property of the Fund, shall be readily accessible
during normal business hours, and shall be promptly surrendered upon the
termination of the Agreement or otherwise on written request. State Street
further agrees that all records which it maintains for each Fund pursuant to
Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed by
Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as
provided above. Records shall be surrendered in usable machine-readable form.
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11. SERVICES NOT EXCLUSIVE
The services of State Street to each Fund are not to be deemed
exclusive, and State Street shall be free to render similar services to others.
State Street shall be deemed to be an independent contractor and, unless
otherwise expressly provided herein or authorized by a Fund from time to time,
shall have no authority to act or represent the Adviser or the Fund in any way
or otherwise be deemed an agent of the Adviser or the Fund.
12. TERM, TERMINATION AND AMENDMENT
(a) This Agreement shall become effective on the date of its
execution and shall remain in full force and effect until
December 31, 2002 and shall automatically continue in full
force and effect after such initial term on an annual
basis thereafter unless either party terminates this
Agreement by written notice to the other party at least
sixty (60) days prior to the expiration of the initial
term.
(b) Either party may terminate this Agreement at any time
after the initial term upon at least sixty (60) days'
prior written notice to the other party. Termination of
this Agreement with respect to a Fund shall in no way
affect the continued validity of this Agreement with
respect to any other Fund. Upon termination of this
Agreement with respect to a Fund, Schedule A shall be
amended to reflect the Funds subject to the terms of this
Agreement.
(c) Upon termination of this Agreement, the Adviser shall pay
to State Street such compensation and any reimbursable
expenses as may be due under the terms hereof as of the
date of such termination, including reasonable
out-of-pocket expenses associated with such termination.
(d) This Agreement may be modified or amended from time to
time by mutual written agreement of the parties hereto.
13. NOTICES
Any notice or other communication authorized or required by
this Agreement to be given to either party shall be in writing and deemed to
have been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Adviser: MEMBERS Capital Advisors, Inc., 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx,
XX 00000, Attn: Xxxx Xxxxxxx, Fax: (000) 000-0000; if to State Street: State
Street Bank and Trust Company, Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attn: Fund Administration Department, Fax: 000-000-0000.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto
without the prior consent in writing of the other party, except that the Adviser
or State Street may assign this Agreement to a successor of all or a substantial
portion of its business, or to a party controlling, controlled by or under
common control with the Adviser or State Street.
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15. SUCCESSORS
This Agreement shall be binding on and shall inure to the
benefit of the Adviser and State Street and their respective successors and
permitted assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
previous representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. WAIVER
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
18. SEVERABILITY
If any provision of this Agreement is invalid or unenforceable,
the balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
19. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
20. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below as of the date first
written above.
MEMBERS CAPITAL ADVISORS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: AVP Finance & Operations, Treasurer
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STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
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SCHEDULE A
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LIST OF FUNDS
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Ultra Series Fund
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MONEY MARKET FUND
BOND FUND
BALANCED FUND
HIGH INCOME FUND
GROWTH AND INCOME STOCK FUND
CAPITAL APPRECIATION STOCK FUND
MID-CAP STOCK FUND
EMERGING GROWTH FUND
INTERNATIONAL STOCK FUND
GLOBAL SECURITIES FUND
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SCHEDULE B
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LIST OF SERVICES
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a. Prepare the Trust's semi-annual and annual reports;
b. Prepare for review by an officer of and legal counsel for the Trust the
Trust's periodic financial reports required to be filed with the
Securities and Exchange Commission ("SEC") on Form N-SAR and financial
information required by Form N-1A and such other reports, forms or
filings as may be mutually agreed upon;
c. Prepare reports relating to the business and affairs of the Trust as
may be mutually agreed upon and not otherwise prepared by the Trust's
investment adviser, custodian, legal counsel or independent
accountants;
d. Prepare for inclusion in amendments to the Trust's registration
statement certain numerical presentations that may be required by law
to the extent State Street has the appropriate information at its
disposal;
e. Prepare the Trust's SEC Rule 24f-2 notices;
f. Oversee audit processes; coordinate audit schedule request list and
provide reports, schedules and documentation as required; facilitate
and respond to auditor questions and inquiries, and serve as liaison
between auditors and all outside parties;
g. Prepare external surveys of Fund information on a periodic basis, as
required, but only to the extent the State Street has such information
at its disposal;
h. Calculate total returns/Fund performance for required reporting
periods, to be completed monthly no later than the second business day
following month end; and provide non-routine performance information as
mutually agreed upon provided that the delivery of such information
shall be on a best-efforts basis depending on the complexity of the
request;
i. Calculate monthly average net assets;
Serve as a resource for various issues related to accounting, tax,
compliance or other similar matters related to the Funds;
k. Review on a monthly basis proof packages prepared by State Street's
Fund Accounting; and
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l. Prepare the following schedules and documentation for presentation to
the Trust's Board of Trustees on a quarterly basis: bar graph charts
for Fund performance (benchmark indices used for comparison are
expected to be provided by the Adviser); performance summary chart;
portfolio composition charts for prior quarters; Fund distributions
reports on a per-share basis for agreed upon time periods; and such
other schedules and documentations as the parties shall mutually agree
upon.
m. Perform, on a next day basis, a review of net asset value per share for
each Fund, which includes a review of the components of net asset value
for reasonableness according to established tolerance levels.
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SCHEDULE C
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FEE SCHEDULE
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I. ANNUAL FEE
The Adviser shall pay to State Street as compensation for the services
provided in this agreement an annual fee on behalf of the Ultra Series
Funds equal to $17,000 per Fund and $7,500 per each class of shares,
excluding the first class of shares, if more than one class of shares is
operational in a Fund.
II. OUT OF POCKET EXPENSES - INCLUDE BUT MAY NOT BE LIMITED TO:
Postage
o Legal fees, audit fees and other professional fees
o Supplies related to Fund records
o Travel and Lodging for Board and Operations Meetings
o Preparation of financials, other than Annual and Semi-Annual
Reports -$3,000 per financial report
III. SPECIAL ARRANGEMENTS
Fees for activities of a non-recurring nature such as reorganizations,
and/or preparation of special reports will be subject to negotiation.
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