EXHIBIT 10.57
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AGENCY AGREEMENT
(Collective Investment Trusts)
APRIL 1, 2001
THIS AGENCY AGREEMENT is entered into as of April 1, 2001, by and between
FTTrust Company ("Trustee"), a Florida chartered trust company with its
principal place of business in Ft. Lauderdale, Florida, and Franklin/Xxxxxxxxx
Investor Services, LLC ("FTIS") (FTIS and Trustee are collectively referred to
as "parties" and individually as the "party") with reference to the following
facts:
WHEREAS, Trustee acts as trustee for collective investment trusts designed
to be exempt from federal tax for certain qualified retirement plans and
excepted from registration under the Investment Company Act of 1940 (the "1940
Act") and the Securities Act of 1933 known as: the Xxxxxxxxx International
Foreign Fund; the Xxxxxxxxx International Emerging Markets Fund; the Xxxxxxxxx
International Smaller Companies Fund; and the Franklin Institutional Small Cap
Growth Fund (collectively referred to as the "Funds").
WHEREAS, Trustee desires that FTIS act as its agent for the purpose of
providing certain administrative services as set forth in this Agreement
("Administrative Services") in order to further enhance the Trustee's ability to
provide service to the retirement plans which transfer assets to one or more of
the Funds ("Participants"); and
WHEREAS, FTIS is willing to provide the Administrative Services pursuant to
the terms and conditions of this Agreement.
NOW, THEREFORE, Trustee and FTIS agree as follows:
1. DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall,
unless the context otherwise requires, have the following meanings:
"Account" shall mean the reference number under which a Participant's ownership
interest in the units of the Fund(s) is (are) recorded.
"Agreement" shall mean this Agency Agreement, including all exhibits attached
hereto.
"Declaration" shall mean the Declaration of Trust which established: the
Xxxxxxxxx International Foreign Fund, as amended and restated January 23, 2001;
the Xxxxxxxxx International Emerging Markets Fund, as amended and restated
January 23, 2001; the Xxxxxxxxx International Smaller Companies Fund, as amended
and restated August 9, 2000; and the Franklin Institutional Small Cap Growth
Fund, as amended and restated November 7, 2000.
"Participant" shall mean an owner of units in the Fund.
"Plan of Operation" shall mean the Plan of Operation of: the Xxxxxxxxx
International Foreign Fund, as amended and restated January 23, 2001; the
Xxxxxxxxx International Emerging Markets Fund, as amended and restated January
23, 2001; the Xxxxxxxxx International Smaller Companies Fund as amended and
restated August 9, 2000; and the Franklin Institutional Small Cap Growth Fund as
amended and restated November 7, 2000.
"Servicing Procedures" shall mean the procedures attached as Exhibit A and made
a part of this agreement by this reference.
2. ADMINISTRATIVE SERVICES
2.1. FTIS AGREES TO PROVIDE THE FOLLOWING SERVICES FOR ALL OF THE FUNDS AS AN
AGENT TO TRUSTEE:
2.1.1 SERVICING RESPONSIBILITIES
(a) FTIS shall perform all contribution and redemption procedures that
otherwise would be performed by Trustee, in accordance with the Servicing
Procedures, set forth in Exhibit X. Xxxxxxxx Xxxxxxxxx Institutional Service &
Operations ("ISO"), a division of FTIS, will be the point of contact for FTTrust
and will be responsible for processing daily account transactions and handling
of account statements.
(i) Publication and Amendments to the Servicing Procedures. The
Servicing Procedures may, at the discretion of Trustee, be amended from time to
time by written notice to FTIS. The delivery of each such written amendment to
FTIS shall constitute an amendment to Exhibit A of this Agreement.
(ii) FTIS's Performance under the Servicing Procedures. In order to
facilitate the performance of FTIS's Administrative Services under this
Agreement, Trustee will have access to FTIS's records and procedures, staff,
workflow systems, and other related records or activities as requested in order
to evaluate performance as often as required to ensure that FTIS is performing
its duties under this Agreement in accordance with the Servicing Procedures.
Trustee, in turn, shall consult directly with FTIS's management with respect to
all matters pertaining to this Agreement.
2.1.2 OTHER SERVICES
(a) FTIS shall identify, investigate, and resolve issues or problems, such
as those arising from incomplete investment or distribution instructions that
arise from the performance of its duties under this Agreement.
(b) FTIS shall accept and process on behalf of Trustee all forms of legal
process received at FTIS's offices, including, without limitation, subpoenas,
levies and garnishments.
(c) FTIS shall perform any other services as agent for Trustee as are
mutually agreed upon by the parties.
2.2 STANDARD OF CARE. In performing the Administrative Services under this
Agreement, FTIS will exercise that degree of skill and care consistent with the
highest degree of skill and care that a prudent financial institution exercising
its trust powers (as granted and regulated by the Florida Department of Banking)
customarily exercises in the State of Florida in accordance with the laws,
regulations and customs as they are in effect from time to time during the term
hereof when servicing group trusts, and shall perform all services under this
Agreement in accordance with the Declaration and Plan of Operation.
2.3 RECORDS. FTIS shall, during the term of this Agreement, maintain such books
and other records as will enable Trustee to determine FTIS's compliance with the
requirements of this Agreement.
2.4 INSPECTION. At all times during the term hereof, FTIS shall afford Trustee
and its authorized agents reasonable access during normal business hours to
FTIS's records relating to the Funds and will cause its personnel to assist in
any examination of such records by Trustee. The examination referred to in this
section will be conducted in a manner which does not unreasonably interfere with
FTIS's normal operations or customer or employee relations.
3. ASSIGNMENT. This Agreement shall be binding on and shall inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that FTIS may not assign any interest herein without Trustee's
written consent.
4. RECORD RETENTION. FTIS agrees to retain all records pertaining to the
performance of its Administrative Duties for a period of not less than six (6)
years, the first two (2) years in an accessible place. At all times during the
term hereof, FTIS shall afford Trustee and its authorized agents reasonable
access during normal business hours to FTIS's records relating to the Funds and
will cause its personnel to assist in any examination of such records by
Trustee. The examination referred to in this section will be conducted in a
manner which does not unreasonably interfere with FTIS's normal operations or
customer or employee relations.
5. NOTICES. All notices, requests and demands to or upon the respective
parties hereto shall be deemed to have been given or made when deposited in the
mail, first class, postage prepaid, addressed as set forth below or to such
other address as may be hereafter designated in writing by the respective
parties hereto.
6. INDEMNIFICATION. FTIS agrees to indemnify, defend and hold Trustee and its
officers, directors, employees, agents and controlling persons (collectively,
the "Trust Company Indemnitees") harmless from and against any and all expenses,
losses, claims, damages and liabilities which are incurred by or threatened
against the Trust Company Indemnitees or any of them, including without
limitation attorneys' fees and expenses, caused by, or in any way resulting from
or relating to FTIS's breach of any of the representations, warranties,
covenants or agreements of FTIS set forth in this Agreement.
7. AMENDMENT AND TERMINATION. This Agreement shall be effective as of the date
first stated above. This Agreement may be amended in writing at anytime by
mutual agreement of the parties. Either party may terminate this Agreement by
giving thirty (30) days advance notice, in writing, to the other party. Upon
such termination, FTIS shall cause Fund and Participant records and assets to be
delivered to Trustee.
8. REPRESENTATION. FTIS hereby represents and warrants to Trustee, and its
respective successors and assigns, that it has full power and authority to
execute and deliver this Agreement and to consummate the transaction
contemplated hereby, and has obtained all consents and approvals, and, to the
best of its knowledge, made all registrations and notifications required in
connection herewith.
9. FEES. FTIS's annual fees for its services under this Agreement are set
forth in Exhibit B. Any service not specified herein shall be performed at a fee
that is agreed upon in advance by the parties. Fees shall be paid quarterly in
arrears. These fees will be reviewed on the second anniversary of this agreement
and every two years thereafter and may be amended at agreement of both parties.
10. MISCELLANEOUS.
10.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each party agrees to keep
confidential and not to disclose to any person without the written consent of
the other party, which shall not be unreasonable withheld, information as to the
identity of participants except to the extent necessary or appropriate to do so
to facilitate the activities of legal counsel, auditors, taxing authorities or
other governmental agencies, including courts and enforcement personnel.
10.2 SEVERABILITY CLAUSE. Any provision, representation, or warranty of
this Agreement which is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability but shall not invalidate or
render unenforceable any other provision hereof. To the extent permitted by
applicable law, the parties hereto waive any provisions of law that prohibit or
render any provision hereof.
10.3 GOVERNING LAW. This Agreement shall be construed in accordance with
the laws of the State of Florida, and the obligations, rights, and remedies of
the parties hereunder shall be determined in accordance with such laws.
10.4 ASSURANCES. Trustee and FTIS agree to execute and deliver such
instruments and take such actions as either may, from time to time, reasonably
request of the other in order to effectuate the purpose and to carry out the
terms of this Agreement.
10.5 HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
10.6 ENTIRE AGREEMENT. This Agreement, including any document explicitly
incorporated herein by reference and any written supplemental agreement between
the parties, shall contain the full understanding of the parties with respect to
the subject matter hereof and shall supersede any other previous agreement or
understanding of the parties relating thereto. No waiver, alteration or
modification of any of the provisions hereof shall be binding unless in writing
and signed by duly authorized representatives of the respective party. Neither
the course of conduct between the parties nor trade usage shall act to modify or
alter the provisions of this Agreement.
10.7 SEVERABILITY. If any provision of this Agreement is held to be
invalid, the remaining provisions of the Agreement shall continue to be valid
and enforceable.
10.8 WAIVER. The failure of a party to insist upon strict adherence to any
provision 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 provision or any other provision of this Agreement. Any waiver
must be in writing and signed by the waiving party.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed as of the date first above written.
FTTRUST COMPANY
BY:/s/ Xxxxxxx X. Xxxxxxx
______________________________
Xxxxxxx X. Xxxxxxx, President
FRANKLIN/XXXXXXXXX INVESTOR SERVICES, LLC
BY:/s/ Xxxxx Xxx
______________________________
Xxxxx Xxx, President
Exhibit A - Servicing Procedures
Exhibit B- Fee Schedule
EXHIBIT A
SERVICING PROCEDURES
FRANKLIN/XXXXXXXXX INVESTOR SERVICES, LLC (FTIS) PROCEDURES:
1. GENERAL
a. FTIS will perform all transactional processing functions pertaining to
the assets of the Funds and Participants' interests. This includes the
money movements relating to contributions and liquidations/redemptions
as directed by Participants.
b. Contributions to the Funds must be wired on the valuation date,
utilizing the following wire instructions:
Chase Manhattan Bank
New York, NY
ABA: 000000000
Account: 323117694
For credit: Franklin Xxxxxxxxx Incoming Wire Account
Further credit:(name of the commingled trust)
FBO: (name of client plan)
c. FTIS will process purchases/contributions and liquidations/redemptions
on the next valuation date. All of the Funds may be valued no less
often than monthly and as frequently as daily.
d. All investment related questions will be referred to the respective
Institutional Relationship Managers in Fort Lauderdale at
000-000-0000. Xxxxxx Xxxx, Relationship Manager for Xxxxxxxxx
International Emerging Markets Fund, can be reached at (000) 000-0000.
2. FTIS TRUST ADMINISTRATION
a. FTIS will be responsible for the administration of the Funds on behalf
of the Trustee. They will also respond to all questions relating to
transaction processing (contributions/redemptions).
b. Points of contact are the following:
Institutional Response Team ("IRT")-point of contact for the
client:
Phone: 000-000-0000
Fax: 000-000-0000
Institutional Services & Operations - internal operational
contact for FTTrust:
Xxxxxx Xxxx, AVP/Manager - Ext. 23567
Xxxxxxx Xxxxx, Supervisor - Ext. 23608
c. The telephone number for ISO 000-000-0000. The fax number is
000-000-0000. All contacts have email capability.
d. The FTIS mailing address is:
Franklin Xxxxxxxxx Institutional Services
000 Xxxxxxxx Xxxxxx Xxxx.
Xxx Xxxxx, XX 00000
e. CONTRIBUTIONS. FTTrust should receive written notification of
contribution amounts from client. The notification may be made by
either correspondence, fax, or email. It must bear an authorized
signature. Requests received in good order will be forwarded to ISO
for processing.
f. REDEMPTIONS/DISTRIBUTIONS. FTTrust should receive letters of
instruction, with appropriate wiring instructions, for
redemptions/distributions. A fax bearing an authorized signature is
acceptable for expediency. However, the letter signed by an authorized
signatory must follow immediately and be received prior to wiring
proceeds.
NOTE: The Institutional Response Team may forward client requests to
ISO via fax (000-000-0000). Please advise one of the ISO contacts via
telephone of incoming fax.
g. FTIS will also provide a NO CHANGE or final consolidation report to
all interested parties after the valuation date.
h. FTIS will:
1) develop and document its internal processing procedures
regarding the Funds.
2) maintain a continuous line of communication with its
contact(s) at FTTrust Company, Xxxxxxxxx Investment Counsel,
LLC, Xxxxxxxxx Asset Management, Ltd. and Franklin Advisers,
Inc., providing updates of all contribution and liquidation
notifications when received (see appendix).
3) annually, obtain a current list of authorized signers in the
form of a corporate resolution, a specimen signature list,
or a certificate of incumbency form each participating plan.
3. FTIS will:
a. Prepare and process purchases and redemptions to the shareholder
accounting system as instructions are received from the client and
forwarded from FTTrust.
b. Establish accounts on the shareholder accounting system for all new
plans participating in the Funds, utilizing the New Account Form (See
enclosure 1).
c. Develop and document its internal processing procedures for the Funds.
4. FTIS will:
a. Confirm receipt of funds and post purchase transactions to client
account.
b. Quality control new accounts established on the shareholder accounting
system for accuracy and completeness.
c. Quality control all entries posted to each plan on the shareholder
accounting system.
APPENDIX
DISTRIBUTION LIST: COMMINGLED TRUSTS
Khan, Xxxxxx Xxxxxxxx, Xxxx
Xxxxx, Xxxxxxx Xxxxxxxxx, Xxxxx X.
Mobius, Xxxx X'Xxxxxx, Xxxxx
Xxxxxxx, Xxxxx Xxxxx Xxxxxxx
Xxxxxxxx, Xxxxx Xxxx, Xxxx
Xxxxxxx, Xxxxxxxx Xxxx, Xxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxx, Xxxx
Xxxxxx, Xxx XxXxxxxx, Xxxxx
Xxxxxxx, Xxx Xxxxx, Xxxxx
Xxxxx, Xxxx X. Xxxxx, Xxxxxxxx
Xxxxx, Xxxx X'Xxxxx, Xxxxx
Xxxxx, Xxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxx, Xxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxx Xxxx, Xxx
Xxxxx, Xxxxxxxxxx
EXHIBIT B
FEES
For services provided under this Agreement, Trustee shall pay FTIS a
quarterly fee equal to an amount computed by multiplying the quarter end value
of the Funds' assets, computed on the last business day of each calendar
quarter, by 3 basis points (0.03%) and dividing the result by four (4).
