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EXHIBIT 99.23(h)(7)
OMNIBUS FEE AGREEMENT
THIS AGREEMENT is made as of this 1st day of December, 1999 by and
between OLD KENT SECURITIES CORPORATION ("Old Kent"), a Michigan corporation,
and BISYS FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation.
WHEREAS, Old Kent has entered into an Administration Agreement, Fund
Accounting Agreement and Transfer Agency Agreement, each dated December 1, 1999,
with The Kent Funds (the "Company"), an open-end management investment company
registered under the Investment Company Act of 1940, as amended, concerning the
provision of administration, fund accounting, and transfer agency services
(collectively, the "Services");
WHEREAS, Old Kent and BISYS have entered into a Sub-Administration
Agreement, a Sub-Fund Accounting Agreement and a Sub-Transfer Agency Agreement
(collectively, the "Subcontracts"), each of which is dated as of December 1,
1999, pursuant to which BISYS has been retained to provide a portion of the
Services;
WHEREAS, the parties desire to set forth the compensation payable to
BISYS by Old Kent under the Subcontracts in a separate written document; and
WHEREAS, the parties desire to set forth the terms between BISYS and
Old Kent under the Subcontracts in a separate written documents.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. The amount of the compensation due and payable to BISYS for the
services set forth in the Subcontracts is set forth in Schedule A hereto. Such
compensation shall be payable during the term of the Subcontracts. In addition
to the foregoing, BISYS shall be reimbursed for certain out-of-pocket expenses,
as more fully set forth in Schedule A.
2. The term for the Subcontracts between BISYS and Old Kent shall be set forth
in the Schedule B.
3. This Agreement shall be governed by, and its provisions shall be construed in
accordance with, the laws of the State of Ohio.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be fully executed as of the day and year first written above.
OLD KENT SECURITIES CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Title: President
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BISYS FUND SERVICES OHIO, INC.
By: /s/
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Title: President
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SCHEDULE A
TO THE OMNIBUS AGREEMENT
BETWEEN
OLD KENT SECURITIES CORPORATION
AND
BISYS FUND SERVICES OHIO, INC.
CONTRACTUAL FEE SCHEDULE
SERVICE FEES
Old Kent shall pay to BISYS on the first business day of each month, or
at such time(s) as BISYS shall request and the parties hereto shall agree, a fee
computed daily at the annual rate set forth below:
Four and one-half one-hundredths of one percent
(.045%) of the average daily net assets of the
Company.
In addition to the asset-based fee set forth above, BISYS shall be
entitled to receive a $15 per account annual processing fee for all open Company
accounts on BISYS' transfer agency system in excess of 22,000.
REIMBURSEMENT OF EXPENSES
BISYS shall be reimbursed for the out-of-pocket expenses set forth in
Section 3 of the Sub-Transfer Agency Agreement and Section 3 of the Sub-Fund
Accounting Agreement up to $300,000 per year. To the extent such out-of-pocket
expenses exceed $300,000 in a given year, the excess shall not be subject to
reimbursement.
In addition, BISYS shall be reimbursed for the out-of-pocket expenses
set forth in Section 3, paragraph (A) of the Sub-Administration Agreement. Such
reimbursement shall include all expenses incurred, as described in that
paragraph, without limitation.
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XXXXXXXX X
TO THE OMNIBUS FEE AGREEMENT
BETWEEN
OLD KENT SECURITIES CORPORATION
AND
BISYS FUND SERVICES OHIO, INC.
TERM
Each Subcontract shall continue in effect, unless earlier
terminated by either party hereto as provided hereunder, until December
31, 2001 (the "Initial Term"). Thereafter, unless otherwise terminated
as provided herein, the Subcontracts shall be renewed automatically for
successive ninety (90) day periods ("Rollover Periods"). The
Subcontracts may be terminated without penalty (i) by provision of a
notice of nonrenewal 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 nonrenewal must be provided at least 60 days
prior to the expiration of the Initial Term or any Rollover Period, as
the case may be.
For purposes of the Subcontracts, "cause" shall mean (a)
willful misfeasance, bad faith, gross negligence or reckless disregard
on the part of the party to be terminated with respect to its
obligations and duties set forth herein; (b) multiple negligent acts on
the part of the party to be terminated which in the aggregate
constitute a serious failure to perform satisfactorily that party's
obligations hereunder; (c) a 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; (d) 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; or (e) a service standard deficiency, as defined
in each Subcontract.
After such termination, for so long as BISYS, with the written
consent of Old Kent, in fact continues to perform any one or more of
the services contemplated by the Subcontracts or any Schedule or
exhibit hereto, the provisions of the relevant Subcontract(s),
including without limitation the provisions dealing with
indemnification, shall continue in
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full force and effect. Fees and out-of-pocket expenses incurred by
BISYS but unpaid by Old Kent upon such termination shall be immediately
due and payable upon and notwithstanding such termination. BISYS shall
be entitled to collect from Old Kent, in addition to the fees and
disbursements provided in each Subcontract, the amount of all BISYS'
reasonable cash disbursements in connection with BISYS' activities in
effecting such termination, including without limitation, the delivery
to the Company and/or its distributor or investment adviser and/or
other parties, of the Company's property, records, instruments and
documents, or any copies thereof. Subsequent to such termination, BISYS
shall remain obligated to provide the Company with reasonable access to
any Company documents or records remaining in its possession. If
requested by the Company, BISYS shall deliver such documents or
records, or copies thereof, to the Company or its designee for a
reasonable fee.
If, for any reason other than nonrenewal, mutual agreement of
the parties or "cause," BISYS is replaced as the service provider under
any or all of the Subcontracts, or if a third party is added to perform
all or a part of the services provided by BISYS under the Subcontracts,
then the Company shall make a one-time cash payment, in consideration
of the fee structure and services to be provided under the
Subcontracts, and not as a penalty, to BISYS equal to the balance due
BISYS for the lesser of (A) the next 6 months or (B) the remainder of
the then-current term of the Subcontracts assuming for purposes of
calculation of the payment that such balance shall be based upon the
average amount of Company assets and the average number of Company
shareholder accounts for the twelve months prior to the date BISYS is
replaced or a third party is added.
In the event the Company is merged into another legal entity
in part or in whole pursuant to any form of business reorganization or
is liquidated in part or in whole prior to the expiration of the
then-current term of the Subcontracts, the parties acknowledge and
agree that the liquidated damages provision set forth above shall be
applicable in those instances in which BISYS is not retained to provide
services consistent with the Subcontracts, including the level of
assets subject to such services. The one-time cash payment referenced
above shall be due and payable on the day prior to the first day in
which 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.
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