Exhibit (h)(iv)
SUB-TRANSFER AGENCY AGREEMENT
AGREEMENT made this 29th day of October, 2001, between FIFTH THIRD
BANK("Fifth Third") an Ohio State chartered bank, and BISYS FUND SERVICES OHIO,
INC. ("BISYS"), an Ohio corporation.
WHEREAS, Fifth Third has entered into a Transfer Agency and Accounting
Services Agreement, dated December 12, 1989 as emended (the "Services
Agreement"), with Fifth Third Funds (the "Company"), a Massachusetts business
trust registered with the Securities and Exchange Commission (the "Commission"),
concerning the provision of various services, including but not limited to
transfer agency services, for the investment portfolios of the Company, all as
now or hereafter may be established from time to time (individually referred to
herein as a "Fund" and collectively as the "Funds");
WHEREAS, Fifth Third desires to retain BISYS to assist it in performing
certain transfer agency services for the Funds; and
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as the Sub-Transfer Agent.
----------------------------------
BISYS shall perform the transfer agency services set forth in Schedule
A hereto. BISYS agrees to perform such services in accordance with the
service standards set forth in Schedule B hereto. BISYS also agrees to
perform such special services incidental to the performance of the
services enumerated herein as agreed to by the parties from time to
time. BISYS shall perform such additional services as are provided on
an amendment to this Agreement, in consideration of such fees as the
parties hereto may agree.. In performing its duties under this
Agreement, BISYS will act in conformity with the Company's Declaration
of Trust, By-Laws, Prospectuses and Statements of Additional
Information as in effect from time to time and will conform to and
comply with the requirements of the Investment Company Act of 1940 (the
"1940 Act") and all other applicable federal and state laws and
regulations. BISYS shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or
authorized, shall have no authority to act for or represent Fifth Third
or the Company in any way and shall not be deemed an agent of Fifth
Third or the Company.
BISYS may, in its discretion, appoint in writing other parties
qualified to perform transfer agency services reasonably acceptable to
Fifth Third (individually, a "Sub-transfer Agent") to carry out some or
all of BISYS' responsibilities under this Agreement with respect to a
Fund; provided, however, that the Sub-transfer Agent shall be the agent
of BISYS and not the agent of Fifth Third or such Fund, and that BISYS
shall be fully responsible for the acts of such Sub-transfer Agent and
shall not be relieved of any of BISYS' responsibilities hereunder by
the appointment of such Sub-transfer Agent.
2. Fees.
-----
Fifth Third shall pay BISYS for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth
inSchedule C hereto.
3. Reimbursement of Expenses and Miscellaneous Service Fees.
---------------------------------------------------------
(A) In addition to paying BISYS the fees referred to in Section 2
hereof, Fifth Third agrees to reimburse BISYS for the following out-of-pocket
expenses:
(a) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from
Fifth Third and/or the Company and in delivering all
materials to shareholders;
71
(b) All direct telephone, telephone transmission and telecopy
or other electronic transmission expenses incurred by
BISYS in communication with Fifth Third and/or the
Company, the Company's investment advisor or custodian,
dealers, shareholders or others as required for BISYS to
perform the services to be provided hereunder;
(c) Sales taxes paid on behalf of the Company;
(d) Expenses associated with the tracking of "as-of" trades;
(e) The cost of microfilm or microfiche of records or other
materials;
(f) Costs of NSCC processing;
(g) Costs of ▇▇▇ custody and tax reporting; and
(h) Any expenses BISYS shall incur at the direction of Fifth
Third or an officer of the Company thereunto duly
authorized.
(B) In addition, BISYS shall be entitled to receive the following fees:
(a) A fee for managing and overseeing the report, print and
mail functions performed by BISYS using third-party vendors;
(b) System development fees, billed at the rate of $150 per
hour, as approved by Fifth Third, and all systems-related
expenses, agreed in advance, associated with the provision of
special reports and services;
(c) Costs of postage, couriers, stock computer paper,
statements, labels, envelopes, checks, reports, letters, tax
forms, proxies, notices or other forms of printed material
(including the costs of preparing and printing all printed
materials) which shall be required by BISYS for the performance
of the services to be provided hereunder; and
(d) Ad hoc reporting fees, billed at an agreed upon rate.
4. Effective Date.
---------------
This Agreement shall become effective as of the effective date
of the consolidation of the Old Kent Funds into the Fifth Third Funds (the
"Effective Date").
5. Term.
-----
This Agreement shall continue in effect with respect to a Fund,
unless earlier terminated by either party hereto as provided hereunder, until
October 31, 2004 (the "Initial Term"). Thereafter, unless otherwise terminated
as provided herein, this Agreement shall be renewed automatically for successive
one-year periods ("Rollover Periods"). This Agreement may be terminated without
penalty (i) by provision of a notice of non-renewal in the manner set forth
below, (ii) by mutual agreement of the parties or (iii) for "cause," as defined
below, upon the provision of 60 days advance written notice by the party
alleging cause. Written notice of non-renewal must be provided at least 60 days
prior to the end of the Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a
material breach of this Agreement that has not been remedied for thirty (30)
days following written notice of such breach from the non-breaching party; (b) a
72
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; (c) financial difficulties on the part
of the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors; (d) any failure on the part of the Company or Fifth Third to pay an
amount that is due and payable to BISYS or any of its affiliates under this
Agreement or any other agreement to which the Company or Fifth Third is a party
within 60 days following the due date; or (e) pursuant to an exercise of Fifth
Third's right to terminate for a "service standard deficiency" as outlined in
Schedule B. For purposes of this definition of "cause" a material breach shall
include, but not be limited to, any failure on the part of the Company or Fifth
Third to pay fees due and payable to BISYS pursuant to Section 2 and 3 hereunder
within 60 days following the due date.
After such termination for so long as BISYS, with the written
consent of Fifth Third, in fact continues to perform any one or more of the
services contemplated by this Agreement or any schedule or exhibit hereto, the
provisions of this Agreement, including without limitation the provision dealing
with indemnification, shall continue in full force and effect. Compensation due
BISYS and unpaid by Fifth Third upon such termination shall be immediately due
and payable upon and notwithstanding such termination. With the approval of
Fifth Third (which approval shall not be unreasonably withheld), BISYS shall be
entitled to collect from Fifth Third, in addition to the compensation described
under Sections 2 and 3 hereof, the amount of all of BISYS' reasonable cash
disbursements for services in connection with BISYS' activities in effecting
such termination, including without limitation, the delivery to the Company,
Fifth Third, and/or their respective designees of the Company's and Fifth
Third's property, records, instruments and documents.
If, for any reason other than non-renewal, mutual agreement of
the parties or "cause", as defined above, BISYS is replaced as service provider,
or if a third party is added to perform all or a part of the services provided
by BISYS under this Agreement (excluding any Sub-Transfer Agent appointed by
BISYS as provided in Section 1 hereof), then Fifth Third shall make a one-time
cash payment, in consideration of the fee structure and services to be provided
under this Agreement, and not as a penalty, to BISYS equal to fifty percent
(50%) of the lesser of (A) the balance due BISYS for the next two years of the
then-current term of this Agreement or (B) the balance due BISYS for the
remainder of the then-current term of this Agreement, assuming for purposes of
calculation of the payment that such balance shall be based upon the average
amount of the Company's assets for the twelve months prior to the date BISYS is
replaced or a third party is added.
The parties further acknowledge and agree that, in the event
BISYS is replaced, or a third party is added, as set forth above, (i) a
determination of actual damages incurred by BISYS would be extremely difficult,
and (ii) the liquidated damages provision contained herein is intended to
adequately compensate BISYS for damages incurred and is not intended to
constitute any form of penalty.
6. Uncontrollable Events.
----------------------
BISYS assumes no responsibility hereunder, and shall not be
liable for any damage, loss of data, delay or any other loss whatsoever caused
by events beyond its reasonable control. BISYS shall, however, be obligated to
design and institute reasonable procedures to prevent or limit any such damages,
loss of data, delay or other loss.
7. Legal Advice.
-------------
BISYS shall notify Fifth Third at any time BISYS believes that
it is in need of the advice of counsel (other than counsel in the regular employ
of BISYS or any affiliated companies) with regard to BISYS' responsibilities and
duties pursuant to this Agreement; and after so notifying Fifth Third, BISYS, at
its discretion, shall be entitled to seek, receive and act upon advice of
qualified legal counsel of its choosing, reasonably acceptable to Fifth Third
and BISYS shall in no event be liable to the Company, or any Fund, or any
shareholder or beneficial owner of the Company for any action reasonably taken
pursuant to such advice.
73
8. Instructions.
-------------
Whenever BISYS is requested or authorized to take action
hereunder pursuant to instructions from a shareholder, or a properly authorized
agent of a shareholder ("shareholder's agent"), concerning an account in a Fund,
BISYS shall be entitled to rely upon any certificate, letter or other instrument
or communication, believed by BISYS to be genuine and to have been properly
made, signed or authorized by an officer or other authorized agent of the
Company or by the shareholder or shareholder's agent, as the case may be, and
shall be entitled to receive as conclusive proof of any fact or matter required
to be ascertained by it hereunder a certificate signed by an officer of the
Company or any other person authorized by the Company's Board of Trustees or by
the shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Company relating to the Funds to the extent that such
services are described therein unless BISYS receives written instructions to the
contrary in a timely manner from Fifth Third or the Company.
9. Standard of Care; Reliance on Records and Instructions;
Indemnification.
-------------------------------------------------------
BISYS shall use its best efforts to ensure the accuracy of all
services performed under this Agreement, but shall not be liable to Fifth Third
or the Company for any action taken or omitted by BISYS in the absence of bad
faith, willful misfeasance, negligence or from reckless disregard by it of its
obligations and duties. Fifth Third agrees to indemnify and hold harmless BISYS,
its employees, agents, directors, officers and nominees from and against any and
all claims, demands, actions and suits, whether groundless or otherwise, and
from and against any and all judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character arising out of or in any way relating to BISYS' actions taken or
nonactions with respect to the performance of services under this Agreement or
based, if applicable, upon reasonable reliance on information, records,
instructions or requests given or made to BISYS by a duly authorized
representative of the Company or Fifth Third; provided that this indemnification
shall not apply to actions or omissions of BISYS in cases of its own bad faith,
willful misfeasance, negligence or from reckless disregard by it of its
obligations and duties; and further provided that prior to confessing any claim
against it which may be the subject of this indemnification, BISYS shall give
Fifth Third written notice of and reasonable opportunity to defend against said
claim in its own name or in the name of BISYS.
Any person, even though also an officer, director, employee or
agent of BISYS who may be or become an officer, Trustee, employee or agent of
the Company, shall be deemed, when rendering services to the Company or to any
Fund, or acting on any business of the Company or of any Fund (other than
services or business in connection with BISYS' duties hereunder) to be rendering
such services to or acting solely for the Company or the Fund and not as an
officer, director, employee or agent or one under the control or direction of
BISYS even though paid by BISYS.
10. Record Retention and Confidentiality.
-------------------------------------
BISYS shall keep and maintain on behalf of the Company all books
and records that it is, or may be, required to keep and maintain in connection
with the services provided hereunder pursuant to all applicable statutes, rules
and regulations, including without limitation Rules 31a-1 and 31a-2 under the
1940 Act. BISYS further agrees that all such books and records shall be the
property of the Company and to make such books and records available for
inspection by Fifth Third or the Company or by the Securities and Exchange
Commission (the "Commission") at reasonable times and otherwise to keep
confidential all books and records and other information relative to the Company
and its shareholders, except when requested to divulge such information by
duly-constituted authorities or court process, or requested by a shareholder or
shareholder's agent with respect to information concerning an account as to
which such shareholder has either a legal or beneficial interest or when
requested by Fifth Third or the Company, the shareholder, or shareholder's
agent, or the dealer of record as to such account. BISYS agrees to surrender
promptly such books and records upon request by Fifth Third or the Company.
74
11. Reports.
--------
BISYS will furnish to Fifth Third and/or the Company and to the
Company's properly- authorized auditors, investment advisors, examiners,
distributors, dealers, underwriters, salesmen, insurance companies and others
designated by the Company or Fifth Third in writing, such reports at such times
as are prescribed in Schedule D attached hereto, or as subsequently agreed upon
by the parties pursuant to an amendment to Schedule D. Fifth Third agrees to
examine each such report or copy promptly and will report or cause to be
reported any errors or discrepancies therein.
12. Rights of Ownership.
--------------------
All computer programs and procedures developed to perform
services required to be provided by BISYS under this Agreement are the property
of BISYS. All records and other data except such computer programs and
procedures are the exclusive property of the Company and all such other records
and data will be furnished to the Company in appropriate form as soon as
practicable after termination of this Agreement for any reason.
13 Bank Accounts.
Pursuant to the Services Agreement, the Company and the Funds
have agreed to establish and maintain such bank accounts with such bank or banks
as are selected by the Company, as are necessary in order that BISYS may perform
the services required to be performed hereunder. To the extent that the
performance of such services shall require BISYS directly to disburse amounts
for payment of dividends, redemption proceeds or other purposes, the Company and
Funds have agreed to provide such bank or banks with all instructions and
authorizations necessary for BISYS to effect such disbursements.
14. Representations of Fifth Third.
-------------------------------
Fifth Third certifies to BISYS that: (a) as of the close of
business on the Effective Date, each Fund which is in existence as of the
Effective Date has authorized unlimited shares, and (b) this Agreement has been
duly authorized by Fifth Third and, when executed and delivered by Fifth Third,
will constitute a legal, valid and binding obligation of Fifth Third,
enforceable against Fifth Third in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
15. Representations of BISYS.
-------------------------
BISYS represents and warrants that: (a) BISYS has been in, and
shall continue to be in, substantial compliance with all provisions of law,
including Section 17A(c) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), required in connection with the performance of its duties under
this Agreement; (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other data of the
Company and BISYS' records, data, equipment, facilities and other property used
in the performance of its obligations hereunder are adequate and that it will
make such changes therein from time to time as are required for the secure
performance of its obligations hereunder; and (c) this Agreement has been duly
authorized by BISYS and, when executed and delivered by BISYS, will constitute a
legal, valid and binding obligation of BISYS enforceable against BISYS in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
16. Insurance.
----------
BISYS shall notify Fifth Third should its insurance coverage
with respect to professional liability or errors and omissions coverage be
canceled or reduced. Such notification shall include the date of change and the
reasons therefor. BISYS shall notify Fifth Third of any material claims against
it with respect to services performed under this Agreement, whether or not they
may be covered by insurance, and shall notify Fifth Third from time to time as
may be appropriate of the total outstanding claims made by BISYS under its
insurance coverage.
75
17. Information Furnished by Fifth Third.
-------------------------------------
Fifth Third has furnished to BISYS the following:
(a) Copies of the Declaration of Trust of the Company and any
amendments thereto, certified by the proper official of
the state in which each such document has been filed.
(b) Copies of the following documents:
1. The Company's Bylaws and any amendments thereto;
2. Certified copies of the following resolutions:
Resolutions of the Board of Trustees of the
Company authorizing (i) Fifth Third to
provide transfer agency services for the
Company and (ii) specified officers of the
Company to instruct Fifth Third pursuant to
the Services Agreement.
(c) A list of all officers of the Company and Fifth Third,
together with specimen signatures of those officers, who
are authorized to instruct BISYS in all matters.
(d) Two copies of the following (if such documents are
employed by the Company):
1. Prospectuses and Statement of Additional
Information;
2. Distribution Agreement; and
3. All other forms commonly used by the Company or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(e) A certificate as to shares of beneficial interest of the
Company authorized, issued, and outstanding as of the
Effective Date of this Agreement and as to receipt of full
consideration by the Company for all shares outstanding,
such statement to be certified by the Treasurer of the
Company.
18. Information Furnished by BISYS.
-------------------------------
BISYS has furnished to Fifth Third the following:
(a) BISYS' Articles of Incorporation.
(b) BISYS' Bylaws and any amendments thereto.
(c) Certified copies of actions of BISYS covering the
following matters:
1. Approval of this Agreement, and authorization of a
specified officer of BISYS to execute and deliver
this Agreement;
2. Authorization of BISYS to act as Sub-Transfer Agent
for the Company.
(d) A copy of the most recent independent accountants' report
relating to BISYS' internal accounting control systems as
filed with the Commission pursuant to Rule 17Ad-13 under
the Exchange Act.
19. Amendments to Documents.
------------------------
76
Fifth Third shall furnish BISYS written copies of any amendments
to, or changes in, any of the items referred to in Section 17 hereof forthwith
upon such amendments or changes becoming effective. In addition, Fifth Third
agrees that no amendments will be made to the Prospectuses or Statement of
Additional Information of the Company which might have the effect of changing
the procedures employed by BISYS in providing the services agreed to hereunder
or which amendment might affect the duties of BISYS hereunder unless Fifth Third
first obtains BISYS' approval of such amendments or changes.
20. Reliance on Amendments.
-----------------------
BISYS may rely on any amendments to or changes in any of the
documents and other items to be provided by Fifth Third pursuant to Sections 17
and 19 of this Agreement and Fifth Third hereby indemnifies and holds harmless
BISYS from and against any and all claims, demands, actions, suits, judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character which may result from actions or omissions on the
part of BISYS in reasonable reliance upon such amendments and/or changes.
Although BISYS is authorized to rely on the above-mentioned amendments to and
changes in the documents and other items to be provided pursuant to Sections
17and 19 hereof, BISYS shall be under no duty to comply with or take any action
as a result of any of such amendments or changes unless Fifth Third first
obtains BISYS' written consent to and approval of such amendments or changes.
21. Compliance with Law.
--------------------
Fifth Third represents and warrants that the Company has assumed
full responsibility for the preparation, contents, and distribution of each
prospectus of the Company as to compliance with all applicable requirements of
the Securities Act of 1933, as amended (the "1933 Act"), the 1940 Act, and any
other laws, rules and regulations of governmental authorities having
jurisdiction except for any noncompliance caused by the actions of Fifth Third
and its affiliates and agents or based upon information provided by Fifth Third
and its affiliates and agents. BISYS shall have no obligation to take cognizance
of any laws relating to the sale of the Company's shares. Fifth Third further
represents and warrants that no shares of the Company will be offered to the
public until the Company's registration statement under the 1933 Act and the
1940 Act has been declared or becomes effective.
22. Notices.
--------
Any notice required or permitted to be given by either party to
the other shall be deemed sufficient if sent by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at the
following address: if to Fifth Third, at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ Drop
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇; and if to
BISYS, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: President; with a
copy to The BISYS Group, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel; or at such other address as such party may from time
to time specify in writing to the other party pursuant to this Section.
23. Headings.
---------
Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
24. Assignment.
----------
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective successors and
permitted assigns.
25. Governing Law.
-------------
77
This Agreement shall be construed and enforced in accordance
with the laws of the State of Ohio and the applicable provisions of the 1940
Act. To the extent that applicable laws of the State of Ohio or any of the
provisions herein, conflict with applicable provisions of the 1940 Act, the
latter shall control.
26. Proprietary and Confidential Information.
----------------------------------------
BISYS agrees on behalf of itself and its officers and employees
to treat confidentially and as proprietary information of the Company all
records and other information relative to the Company and prior, present, or
potential shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by Fifth Third, which
approval shall not be unreasonably withheld and may not be withheld where BISYS
may be exposed to civil or criminal contempt proceedings for failure to comply,
when requested to divulge such information by duly constituted authorities, or
when so requested by Fifth Third.
27. Limitation of Liability
-----------------------
BISYS WILL NOT BE LIABLE TO FIFTH THIRD, THE COMPANY, ANY FUND OR ANY
THIRD PARTY FOR ANY PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE OF DATA,
ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF
SERVICES HEREUNDER, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN ADDITION, DESPITE ANY CONTRARY PROVISION IN THIS AGREEMENT,
UNDER NO CIRCUMSTANCES WILL BISYS' AGGREGATE LIABILITY TO FIFTH THIRD, THE FUND,
THE COMPANY OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF COMPENSATION PAID TO
BISYS DURING THE 6 MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE ALLEGED
DAMAGES WERE CLAIMED TO HAVE BEEN INCURRED, REGARDLESS OF THE CAUSE OR FORM OF
ACTION.
28. Privacy
-------
Nonpublic personal financial information relating to consumers
or customers of the Funds provided by, or at the direction of Fifth Third or the
Company to BISYS, or collected or retained by BISYS in the course of performing
its duties as sub-transfer agent shall be considered confidential information.
BISYS shall not give, sell or in any way transfer such confidential information
to any person or entity, other than affiliates of BISYS except at the direction
of Fifth Third or the Company or as required or permitted by law. BISYS shall
have in place and shall maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of records and information relating
to consumers or customers of the Funds. Fifth Third represents to BISYS that
Fifth Third has adopted a Statement of its privacy policies and practices as
required by Securities and Exchange Commission Regulation S-P and agrees to
provide BISYS with a copy of such statement annually. In addition, Fifth Third
has been advised that the Company has adopted a Statement of its privacy
policies and practices as required by Securities and Exchange Commission
Regulation S-P, and Fifth Third agrees that BISYS will be provided with a copy
of such statement annually by Fifth Third or the Company.
29. Amendments.
-----------
No provision of this Agreement may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the
parties hereto.
30. Multiple Originals.
-------------------
This Agreement may be executed in two or more counterparts,
each of which when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
78
31. Matters Relating to the Trust as a Massachusetts Business
Trust.
---------------------------------------------------------
The names "Fifth Third" and "Trustees of the Fifth Third"
refer respectively to the business trust created and the Trustees, as trustees
but not individually or personally, acting from time to time under a Declaration
of Trust dated as of September 15, 1988 to which reference is hereby made and a
copy of which is on file at the office of the Secretary of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of "Fifth Third" 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 Trust
personally, but bind only the assets of the Trust, and all persons dealing with
any Fund must look solely to the assets of the Trust, belonging to such Fund for
the enforcement of any claims against the Trust.
79
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above written.
FIFTH THIRD BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Title: SVP/CIO
BISYS FUND SERVICES OHIO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: President
80
SCHEDULE A
TO THE
SUB-TRANSFER AGENCY AGREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
ARTICLE I. SERVICES
TRANSFER AGENT
------------ -----
BISYS 5/3 RECORDKEEPING
------------ -----
X 1. Produce monthly shareholder statements by the fifth
business day
------------ -----
X 2. Post shareholder transactions
------------ -----
X 3. Produce and mail daily confirmations to shareholders
------------ -----
X 4. Produce and mail dividend and redemption checks
------------ -----
X 5. Balance daily transaction activity
------------ -----
X 6. Disburse dividends and capital gains
------------ -----
X 7. Maintain shareholder information files
------------ -----
X 8. Manage daily ACH transmissions
------------ -----
X 9. Monitor NSCC activity
------------ -----
X 10. Complete cash settlement between funds, custodians,
NSCC and shareholders
------------ -----
X 11. Reconcile deposit, redemption, wire, check writing,
dividend and DDA's
------------ -----
X 12. Microfiche and/or Imaging of all source documentation
------------ -----
X 13. Prepare daily open items report
------------ -----
X 14. Distribute new account welcome kits
------------ -----
X 15. Calculate and produce shareholder tax records
------------ -----
X 16. Coordinate development of systematic enhancements
------------ -----
X 17. Communicate and coordinate corporate action events
------------ -----
X 18. Generate user defined reports from the shareholder
system
------------ -----
X 19. Perform legal review on all incoming transactions
------------ -----
X 20. Complete quality assurance review of transactions
------------ -----
X 21. Calculate and distribute sales commissions
------------ -----
X 22. Track and report sales activity
------------ -----
X 23. Accept and track incoming retirement rollover
subscriptions
------------ -----
------------ -----
BISYS 5/3 I) RETAIL FEATURES
------------ -----
X 24. Process previously-authorized purchases
------------ -----
X 25. Process systematic withdrawals
------------ -----
X 26. Complete gross dividend reinvestment
------------ -----
X 27. Process Payments to multiple payees
------------ -----
X 28. Develop and utilize interface capabilities
------------ -----
X 29. Manage FundServ linkage
------------ -----
X 30. Support full NSCC networking
------------ -----
X 31. Establish account relationship linking
------------ -----
X 32. Maintain 401(k) interface
------------ -----
81
------------ -----
X 33. Service 403(b) and 408(c) accounts
------------ -----
X 34. Manage cash sweeps between DDA's and mutual fund
accounts
------------ -----
X 35. Average cost accounting
------------ -----
------------ -----
BISYS 5/3 SHAREHOLDER SERVICING
------------ -----
X X 36. Staff toll-free telephone lines from 8 a.m. to 9 p.m.
EST (BISYS to handle overflow calls only)
------------ -----
X 37. Answer general investment related questions
------------ -----
X 38. Process and verify telephone transactions
------------ -----
X X 39. Research and resolve account documentation issues
------------ -----
X 40. Handle shareholder correspondence including registered
complaints
------------ -----
X 41. Provide voice-response system account balances, Fund
yields, Fund NAVs and offering prices, and Fund total rates
of returns
------------ -----
X X 42. Assist shareholder and tax form questions
------------ -----
X X 43. Assist sales representatives with establishing accounts
------------ -----
X 44. Send duplicate confirm, when required
------------ -----
X 45. Advise shareholders of procedures for changing account
options
------------ -----
X X 46. Provide phone support for marketing ▇▇ ▇▇▇▇▇▇▇▇▇ and
track effectiveness by assets and account size for Fund
direct accounts
------------ -----
X X 47. Support dedicated lines for institutional accounts
------------ -----
X 48. Provide agreements for corporation and partnerships to
establish accounts
------------ -----
X 49. Provide voice-response system which is available 24
hours per day
------------ -----
X X 50. Provide voice-mail for weekends and after business
hours
------------ -----
X X 51. Assist with management/implementation of DDA Sweep
------------ -----
X X 52. Institutional trade facilitation
------------ -----
X X 53. Conversion/implementation management
------------ -----
------------ -----
BISYS 5/3 OTHER
------------ -----
X 54. 24-hour toll-free systems technical support desk
------------ -----
X X 55. Coordinate use of outside vendors by Fund
------------ -----
X X 56. Literature fulfillment services (priced separately)
------------ -----
X 57. Report production unit
------------ -----
X 58. Dedicated programming and testing resources
------------ -----
X X 59. New product and services development team
------------ -----
X 60. Assigned client advocates
------------ -----
82
SCHEDULE B
TO THE SUB-TRANSFER AGENCY AGREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
Pursuant to Section 1 of this Agreement, BISYS has agreed to perform
the services described in this Agreement in accordance with the service
standards set forth in this Schedule B. Such standards are contained on the page
attached hereto. The parties agree that such service standards may be revised,
from time to time, by mutual agreement.
Each of the service standards will be monitored by a Quality Assurance
team. In the event BISYS fails to meet a service standard in any particular
month, BISYS agrees to take appropriate corrective measures within the following
thirty-day period in order to be in compliance with the appropriate standard at
the end of such thirty-day period; provided, however, that the foregoing
requirement shall not apply in those instances in which BISYS's failure to meet
a service standard was due to circumstances beyond its control.
In the event BISYS fails to meet a particular service standard (except
for any failure due to circumstances beyond its control) in two consecutive
months, the fee payable to BISYS hereunder shall be reduced by one percent (1%)
or such lower amount as the parties shall agree upon for the second of those two
months. If such failure occurs in three consecutive months, the fee payable to
BISYS hereunder shall be reduced by a total of one and one-half percent (1.5%)
or such lower amount as the parties shall agree upon for the third of those
three months.
In the event BISYS fails to meet a particular service standard (except
for any failure due to circumstances beyond its control) for any three months
within a six-month period, such failure shall be deemed to be a service standard
deficiency for purposes of the "cause" definition set forth in Schedule B to the
Fee Agreement.
83
SERVICING STANDARDS
ITEM STANDARD
TRANSFER AGENCY (PROCESSING)
NEW ACCOUNT SET-UP
Timeliness 100% processed same day
Accuracy 95%
FINANCIAL QUALITY RATE
Timeliness 100% processed same day
Accuracy 95%
MAINTENANCE ITEMS
Non-financial 5 business days
NOT IN GOOD ORDER ITEMS Call out next business day
TRANSFER AGENCY (PRINT/MAIL)
QUARTERLY STATEMENTS Five business days
DAILY CONFIRMS Three business days
TRANSFER AGENCY (PHONES)
Abandonment Rate 2.5% or less
Average speed of answer 20 seconds or less
Service level 85% of calls will be answered in 20
seconds or less
84
SCHEDULE C
TO THE SUB-TRANSFER AGENCY AGREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
FEES
In consideration of the services rendered and the expenses incurred pursuant to
this Agreement, and subject to the annual minimum fees set forth below, BISYS
shall be paid by Fifth Third on the first business day of each month, or at such
other time(s) as the parties hereto shall agree, fees computed daily at the
annual rate set forth below:
One one-hundredths of one percent (.01%) of the Company's average daily net
assets.
In addition, BISYS shall be paid per account fees as follows:
ACCOUNTS ANNUAL FEE
-------------------------------------------- -----------------------------------
0-100,000 Included within the asset-based fee
-------------------------------------------- -----------------------------------
100,001-150,000 $5.00 per account
-------------------------------------------- -----------------------------------
Over 150,000 $7.50 per account
-------------------------------------------- -----------------------------------
Closed accounts $2.50 per account
-------------------------------------------- -----------------------------------
In the event that fund direct accounts exceed 100,000, the per account fee
payable to BISYS shall be increased to reflect a mutually acceptable industry
average per account fee for such accounts.
In addition to the above fees, BISYS shall be paid a multi-class annual fee of
$5,000 for each additional class within each Fund.
BISYS shall be paid fifty one-thousandths of one percent (.005%.) of the
company's average daily net assets for providing shareholder servicing until
such time as Fifth Third internalize such shareholder servicing. All fixed and
minimum fees set forth in this schedule shall be increased annually commencing
on the one-year anniversary date of the Effective Date by the percentage
increase since the Effective Date in consumer prices for services as measured by
the United States Consumer Price Index entitled "All Services Less Rent of
Shelter" or a similar index should such index no longer be published.
In addition, BISYS shall be entitled to be reimbursed for out-of-pocket expenses
and to receive miscellaneous service fees as set forth in this Agreement.
85
SCHEDULE D
TO THE
SUB-TRANSFER AGENCY AGREEMENT
BETWEEN
FIFTH THIRD BANK
AND
BISYS FUND SERVICES OHIO, INC.
REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
a. Beginning Balance
b. Dealer Transactions
c. Shareholder Transactions
d. Reinvested Dividends
e. Exchanges
f. Adjustments
g. Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. Annual report by independent public accountants concerning BISYS'
shareholder system and internal accounting control systems to be filed
with the Securities and Exchange Commission pursuant to Rule 17Ad-13 of
the Securities Exchange Act of 1934, as amended.
86