EXHIBIT 99.8.64
SERVICE AGREEMENT
This Agreement is entered into as of June 5, 2017 between American United
Life Insurance Company, OneAmerica Securities, Inc. ("Service Provider") and
Virtus Fund Services, LLC ("VFS").
Service Provider is an agent for various individual investment accounts
(each, an "Investment Account" and collectively, the "Investment Accounts") and
provides various administrative services (the "Administrative Services") to such
Investment Accounts. Administrative Services for each Investment Account include
processing and transfer arrangements for the investment and reinvestment of
Investment Account assets in investment media specified by the Investment
Account's owner, investment adviser, trustee or sponsor (each an "Investment
Account Representative"). The Administrative Services are provided by Service
Provider under service agreements with the various Investment Accounts.
Service Provider and VFS desire to facilitate the purchase and redemption of
shares (the "Shares") of certain of the Virtus Mutual Funds (each, a "Fund" or
collectively the "Funds" as set forth in Schedule A hereof as it may be amended
from time to time in accordance with the terms of this Agreement) each of which
is a registered investment company distributed by VFS, on behalf of the
Investment Accounts through one or more accounts (not to exceed one per
Investment Account) in each Fund (individually "Fund Account" and collectively
the "Fund Accounts"), subject to the terms and conditions of this Agreement.
Accordingly, the parties hereto agree as follows:
1. PERFORMANCE OF SERVICES. Service Provider shall provide shareholder and
administration services for the Investment Accounts as shareholders of the
Funds. Such services may include, without limitation: (i) aggregating and
processing purchase, exchange and redemption orders; (ii) responding to
inquiries by Investment Account owners, and providing such owners with
statements showing their positions in the Funds; (iii) processing dividend
and distribution payments; (iv) providing subaccounting services for Shares
held beneficially by Investment Account owners; (v) forwarding shareholder
communications, such as proxies, shareholder reports, dividend and tax
notices, and updating prospectuses to Investment Account owners; (vi)
receiving, tabulating, and transmitting proxies executed by Investment
Account owners as beneficial owners; and (vii) such other services as VFS
may reasonably request, to the extent Service Provider is permitted by
applicable statute, rule or regulation to provide such information or
services (collectively, the "Services"). Service Provider shall provide all
personnel and facilities necessary for it to, and it shall, perform the
Services with respect to the Investment Accounts in a professional,
competent and timely manner.
2. PRICING INFORMATION. Each Fund or its designee will make available, through
the National Securities Clearing Corporation's ("NSCC") Mutual Fund Profile
Service, the Funds' voice response unit, or the Funds' website on each
business day that the New York Stock Exchange is open for business
("Business Day"), (i) net asset value information as at the close of regular
trading (currently 4:00 p.m. Eastern Time) on the New York Stock Exchange or
as at such other time(s) at which a Fund's net asset value is calculated as
specified in such Fund's prospectus ("Close of Trading"), (ii) dividend and
capital gains distribution information as it becomes available, and (iii) in
the case of
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income Funds, the daily accrual for interest rate factor (mil rate). Such
information shall be available by 7:00 p.m. Eastern Time on the same
Business Day.
3. ORDERS AND SETTLEMENT. Upon the receipt of instructions from Investment
Account Representatives, Service Provider will calculate order allocations
among designated investment media and transmit to VFS net orders to purchase
or redeem Shares for specified Fund Accounts on the basis of those
instructions. VFS hereby designates Service Provider as its limited agent,
solely for the purpose of assuring that the time of receipt by Service
Provider, of an order to purchase or redeem Shares, shall be controlling for
purposes of determining the net asset value per share to which such order is
entitled, and Service Provider agrees that only orders for net purchases or
net redemptions of Shares derived from instructions received in proper form
by Service Provider from Investment Account Representatives prior to the
Close of Trading on any given Business Day will be processed that same
evening and transmitted to VFS utilizing NSCC. Service Provider will
transmit order allocations received prior to the Close of Trading on a given
Business Day to VFS no later than 6:00 a.m. Eastern Time on the next
following Business Day. Service Provider agrees that it shall have in place,
maintain and comply with, at all times during the term of this Agreement,
internal controls reasonably designed to prevent Investment Account orders
received after the Close of Trading on a Business Day from being aggregated
with orders properly received before that time. Without limiting the
foregoing, Service Provider shall conduct these activities in a competent
manner and in compliance with (a) all applicable laws, rules and
regulations, and the rules and procedures of the NSCC relating to NETWORKING
- - Matrix Levels, and (b) the then-current prospectus(es) and statement(s)
of additional information of the Funds, as amended or supplemented from time
to time.
3.1 The parties agree that payment for net purchases of Shares executed by
Service Provider on a given Business Day will be wired by Service
Provider no later than the close of the Federal Bank on the next
Business Day to a custodial account designated by VFS, and payment for
redemptions of Shares executed by Service Provider on a given Business
Day will be wired by VFS or the Funds no later than the close of the
Federal Bank on the next Business Day to an account designated by
Service Provider.
3.2 Service Provider understands and agrees that it is solely responsible
for the accuracy of any orders for purchases and redemptions transmitted
to VFS or the Funds, and the transmission of any order shall constitute
Service Provider's representation to VFS and the Funds that the order is
accurate, complete and duly authorized by the Investment Account
Representatives whose Shares are the subject of the order. Service
Provider hereby agrees to indemnify and hold harmless VFS, its
affiliates, the Funds, the Funds' investment advisers, the Funds'
administrators, and each of their trustees/directors, officers,
employees, agents and each person, if any, who controls them within the
meaning of the Securities Act of 1933, as amended (the "1933 Act"),
against any losses, claims, damages, liabilities or expenses arising out
of information or instructions from Service Provider concerning any
purchase, redemption, exchange or other transaction in Shares that VFS
or a Fund reasonably believes to be valid.
4. ACCOUNT INFORMATION. Service Provider will maintain either one Fund Account
for each Investment Account or one Fund Account for multiple Investment
Accounts. Each Fund Account will be opened through either FundSERV or
Networking systems when possible or upon completion of
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the application/legal documents then applicable to the desired Fund. In
connection with such Fund Account, Service Provider represents and warrants
that: (i) it has the authority to act on behalf of the Investment Accounts;
(ii) either it or its agent has examined any relevant trust instruments,
corporate authorizations or other authorizing documentation applicable to
such Investment Accounts; and (iii) it is satisfied that the person or
persons who signed Service Provider's or Service Provider's affiliates'
contracts with the Investment Accounts were themselves properly authorized
by the Investment Accounts and the entities which they represent. The assets
in the Fund Accounts shall be the property of the Investment Accounts, and
shall be segregated from Service Provider's own assets and carried free of
any lien or payment.
VFS will provide Service Provider: (a) confirmations of Fund Account
activity within five (5) Business Days after each day on which a purchase or
redemption of Shares is effected for the particular Fund Account; (b) if
requested by Service Provider, quarterly statements detailing activity in
each Fund Account within fifteen (15) Business Days after the end of each
quarter; and (c) such other reports as may be reasonably requested by
Service Provider, in such time as is mutually agreed by the parties.
5. MAINTENANCE OF RECORDS. Each party shall maintain and preserve all records
as are required by law, rule or regulation to be maintained and preserved in
connection with providing the Services and in making Shares available to the
Investment Accounts. Upon the request of VFS, Service Provider shall provide
copies of all the historical records relating to transactions between the
Funds and the Investment Accounts, written communication regarding the Funds
to or from such Investment Accounts and other materials, in each case (i) as
are maintained by Service Provider in the ordinary course of its business
and in compliance with applicable law or regulation; and (ii) as may
reasonably be requested to enable VFS or its representatives, including,
without limitation, its auditors or legal counsel, to (a) monitor and review
the Services, (b) comply with any request of a governmental body or
self-regulatory organization or an Investment Account Representative, (c)
verify compliance by Service Provider with the terms of this Agreement, (d)
make required regulatory reports, or (e) perform general supervision. Upon
request of Service Provider, VFS shall provide copies of all the historical
records relating to transactions in the Fund Accounts, written
communications regarding the Fund Accounts and other materials, in each case
(i) as are maintained by VFS in the ordinary course of its business and in
compliance with applicable law or regulation; and (ii) as may reasonably be
requested to enable Service Provider or its representatives, including,
without limitation, its auditors or legal counsel, to (a) comply with any
request of a governmental body or self-regulatory organization or an
Investment Account Representative, (b) verify compliance by VFS with the
terms of this Agreement, or (c) make required regulatory reports. The
parties agree to cooperate in good faith in providing records to one another
pursuant to this Section 5.
6. COMPLIANCE WITH LAWS. At all times, Service Provider shall comply with all
Federal and state laws, rules and regulations applicable to it by virtue of
entering into this Agreement. Upon reasonable request, Service Provider
shall (a) permit VFS or its representatives to have reasonable access to
Service Provider's personnel and records in order to facilitate the
monitoring of the provision of the Services hereunder, and (b) execute and
deliver to VFS and/or the Funds reports and/or certificates indicating that
Service Provider has complied and/or will comply with: (i) all applicable
requirements of laws, rules and regulations of governmental or
self-regulatory authorities having jurisdiction over Service Provider; (ii)
the terms of the Funds' prospectus(es)
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and statement(s) of additional information; and (iii) this Agreement.
Whether or not required by applicable law, Service Provider shall deliver or
arrange for the delivery of prospectuses to Investment Account owners. At
all times, VFS shall comply in all material respects with all laws, rules
and regulations applicable to it by virtue of entering into this Agreement.
6.1 USA PATRIOT ACT. Service Provider shall implement appropriate policies
and procedures to comply with, and monitor and periodically report to
VFS regarding its compliance with, rules and regulations promulgated
from time to time by the Office of Foreign Assets Control (including
those relating to transactions involving embargoed countries or
Specifically Designated Nationals and Blocked Persons) and applicable
money laundering restrictions, including, without limitation, such
restrictions as may be adopted pursuant to the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, as it may be amended
from time to time (the "USA PATRIOT Act"), with respect to similarly
situated financial institutions as VFS. Service Provider agrees that
it will perform the Customer Identification Program requirements of
the USA PATRIOT Act, as applicable, with respect to Accounts
established and transactions made pursuant to this Agreement.
6.2 XXXXXXXX-XXXXX ACT. Service Provider agrees to cooperate with VFS
and/or the Funds to facilitate the filing by VFS, each Fund and/or
their respective officers and auditors of any and all certifications
or attestations as required by the Xxxxxxxx-Xxxxx Act of 2002,
including, without limitation, by furnishing such sub-certifications
from relevant officers of Service Provider with respect to the
Services and recordkeeping performed by Service Provider under this
Agreement as are reasonably requested from time to time.
6.3 RULE 38A-1. Upon request, Service Provider agrees to provide its
written policies and procedures reasonably designed to prevent
violations by the Funds of the "Federal Securities Laws" (as such term
is defined in Rule 38a-1 under the Investment Company Act of 1940, as
amended (the "1940 Act")) in connection with the Service Provider's
provision of the Services, to the Funds' chief compliance officer for
review and/or the Funds' board of trustees' approval. Service Provider
further agrees to cooperate with VFS and/or the Funds in their review
of such written policies and procedures, including, without
limitation, furnishing such certifications and sub-certifications as
VFS and/or the Funds shall reasonably request from time to time.
Service Provider agrees that it shall promptly notify VFS and the
Funds in the event that a "material compliance matter" (as such term
is defined pursuant to Rule 38a-1 under the 0000 Xxx) arises with
respect to the Services it provides under this Agreement.
6.4 REGULATION S-P. Service Provider shall not, directly or indirectly,
disclose or use any nonpublic personal information regarding the
consumers or customers of VFS and/or the Funds (as the terms
"consumer" and "customer" are defined in Regulation S-P), other than
to carry out the functions contemplated by the Agreement or as
otherwise permitted by Regulation S-P and other applicable law or
regulation, and Service Provider shall establish appropriate
administrative, technical and physical safeguards to protect the
security, confidentiality and integrity of any such nonpublic personal
information.
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6.5 MARKET TIMING. VFS and/or each board of trustees of the Funds (the
"Board") may, in its discretion and without notice, refuse to sell
Shares of any Fund to any person, or suspend or terminate the offering
of Shares of any Fund, if such action is required by law or by
regulatory authorities having jurisdiction with respect to VFS or the
Fund, as the case may be, or is, in the reasonable discretion of VFS
or the Board, reasonably necessary in order to protect the best
interests of the Fund's investors. Service Provider shall establish
and maintain policies and procedures reasonably designed to detect,
monitor and deter (including, without limitation, rejecting specific
purchase orders) Investment Account owners (or their agents) whose
purchase and redemption activity follows a market timing pattern or
otherwise contravenes the restrictions or prohibitions on market
timing, if any, as found in the Fund's then-current Registration
Statement, and to take such other actions as it deems necessary to
discourage or reduce such market timing activity. For the purposes
hereof, "market timing activity" shall mean and refer to any
discernable pattern of excessive trading in and out of a Fund by one
or more Investment Account owners (or their agents), including,
without limitation, any purchase and sale (round trip) in and out of a
Fund within any thirty calendar day (30-day) period.
6.6 PROTECTION OF PERSONAL INFORMATION OF RESIDENTS OF MASSACHUSETTS. To
the extent that Service Provider has access to personal information
about any residents of the Commonwealth of Massachusetts in connection
with this Agreement and providing Services hereunder, Service Provider
shall develop, implement, maintain and monitor a comprehensive,
written information security program applicable to any records
containing such personal information in compliance with 201 CMR 17.00
et seq. Service Provider further agrees to provide VFS and/or the
Funds such certifications with respect to such information security
program as VFS and/or the Funds shall reasonably request from time to
time.
7. SHAREHOLDER INFORMATION AND RULE 22C-2. If Service Provider is trading as an
Intermediary (a broker, dealer, bank or other entity that holds securities
of record issued by the Funds in nominee name; and in the case of a
participant-directed employee benefit plan that owns Shares issued by the
Funds, a retirement plan administrator under ERISA or any entity that
maintains the plan's participant records (collectively "Intermediary")),
such Intermediary hereby agrees as follows:
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7.1 AGREEMENT TO PROVIDE INFORMATION. Intermediary agrees to provide the
Funds, upon written request, the taxpayer information number ("TIN"),
if known, of any or all Shareholder(s) of the Fund Account(s) and the
amount, date, name or other identifier of any investment
professional(s) associated with the Shareholder(s) or Fund Account(s)
(if known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of
Shares held through a Fund Account maintained by the Intermediary
during the period covered by the request.
7.1.1 PERIOD COVERED BY REQUEST. Requests must set forth a specific
period, generally not to exceed one-hundred eighty (180)
calendar days from the date of the request, for which
transaction information is sought. The Funds may request
transaction information older than 180 days from the date of the
request as they deem necessary to investigate compliance with
policies established by the Funds for the purposes of
eliminating or reducing any dilution of the value of the
outstanding shares issued by the Funds. If requested by the
Funds, Intermediary agrees to provide the information specified
in Section 7.1 for each trading day.
7.1.2 FORM AND TIMING OF RESPONSE. Intermediary agrees to transmit the
requested information that is on its books and records to the
Funds or their designee promptly, but in any event not later
than ten (10) Business Days after receipt of a request. If the
requested information is not on the Intermediary's books and
records, Intermediary agrees to use reasonable efforts to: (i)
promptly obtain and transmit the requested information; (ii)
obtain assurances from the Investment Account owner(s) that the
requested information will be provided directly to the Funds or
their designee promptly; or (iii) if directed by the Funds or
their designee, block further purchases of Shares from such
Investment Account(s). In such instance, Intermediary agrees to
inform the Funds or their designee whether Intermediary plans to
perform (i), (ii) or (iii). Responses required by this paragraph
must be communicated in writing and in a format mutually agreed
upon by the parties. To the extent practicable, the format for
any transaction information provided to the Funds should be
consistent with the NSCC Standardized Data Reporting Format.
7.1.3 LIMITATIONS ON USE OF INFORMATION. VFS, on behalf of itself and
the Funds, agrees not to use the information received for
marketing or any other similar purpose without the prior written
consent of the Intermediary.
7.2. AGREEMENT TO RESTRICT TRADING. Intermediary agrees to execute written
instructions from the Funds to restrict or prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by
the Funds as having engaged in transactions of Shares (directly or
indirectly through the Intermediary's Fund Account(s)) that violate
policies established by the Funds for the purposes of eliminating or
reducing any dilution of the value of the outstanding shares issued by
the Funds.
7.2.1 FORM OF INSTRUCTIONS. Instructions must include the TIN, if
known, and the specific restriction(s) to be executed. If the
TIN is not known, the instructions must include any equivalent
identifying number of the Shareholder(s) or Fund Account(s) or
other agreed-upon information to which the instruction relates.
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7.2.2 TIMING OF RESPONSE. Intermediary agrees to execute instructions
as soon as reasonably practicable, but not later than five (5)
Business Days after receipt of the instructions by the
Intermediary.
7.2.3 CONFIRMATION BY INTERMEDIARY. Intermediary must provide written
confirmation to the Funds that instructions have been executed.
Intermediary agrees to provide confirmation as soon as
reasonably practicable, but not later than ten (10) Business
Days after the instructions have been executed.
7.3 DEFINITIONS. For purposes of this Section 7:
7.3.1 The term "Funds" includes the Funds' principal underwriter and
transfer agent, VFS. The term does not include any "excepted
funds" as defined in Rule 22c-2(b) under the 0000 Xxx.
7.3.2 The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by a
Fund under the 1940 Act that are held by the Intermediary.
7.3.3 The term "Shareholder" means the beneficial owner of Shares,
whether the Shares are held directly or by the Intermediary in
nominee name or, if applicable, the plan participant
notwithstanding that the relevant employee benefit plan may be
deemed to be the beneficial owner of such Shares.
8. INCORPORATION OF THE RULES OF THE NSCC. The Rules & Procedures Manual of the
NSCC, as amended from time to time (the "Procedures"), are hereby made a
part of this Agreement as if fully set forth herein and shall be a part of
each trade cleared by Service Provider on behalf of or at the request of
VFS. The Procedures applicable to the transmission of information and
instructions, and the settlement of transactions, shall be followed in all
instances unless the NSCC is unavailable for whatever reason. In the event
that the NSCC is unavailable, the parties will mutually agree on manual
procedures for the processing of transactions and other necessary
activities.
9. REPORTS. Service Provider will provide VFS and/or the Funds or their
designees such information as such party may reasonably request (including,
without limitation, periodic certifications confirming the provision to the
Services to Investment Accounts and the beneficial owners of Shares through
the Investment Accounts), and will otherwise cooperate with VFS, the Funds
and their designees (including, without limitation, any auditors designated
by the Funds), in connection with the preparation of reports concerning this
Agreement and the monies paid or payable under this Agreement, as well as
any other reports or filings that may be required by law. Service Provider
shall cooperate fully with any and all efforts by VFS and/or the Funds or
their designees to assure such party that Service Provider has implemented
effective compliance policies and procedures administered by qualified
personnel including, without limitation: (i) permitting such party to become
familiar with Service Provider's operations and understand those aspects of
Service Provider's operations that expose VFS and/or the Funds to compliance
risks; (ii) permitting such party to maintain an active working relationship
with Service Provider's compliance personnel; (iii) providing such party
with periodic and special reports in the event of compliance problems; (iv)
providing such party with such certifications as such party may require on a
periodic or special basis; and (v) making Service Provider's personnel and
applicable books, records, policies and procedures available to such audit
personnel as VFS or the Funds may designate to audit the effectiveness of
Service Provider's compliance controls or to respond to
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requests and inquiries from governmental bodies and self regulatory
organizations. Service Provider agrees to promptly notify VFS with respect
to (a) the initiation and disposition of any formal disciplinary action by
any agency or instrumentality having jurisdiction with respect to the
subject matter hereof against Service Provider or any of its employees or
agents; (b) the issuance of any form of deficiency notice by any such agency
regarding Service Provider's training, supervision or sales practices; and
(c) the effectuation of any consensual order with respect thereto.
10. OPERATIONS OF FUNDS. In no way shall the provisions of this Agreement limit
the authority of any Fund or VFS to take such lawful action as it may deem
appropriate or advisable in connection with all matters relating to the
operation of such Fund and the sale of its Shares. Without limiting the
foregoing, each Fund reserves the right to delay, suspend or terminate the
offering and/or right of redemption of its Shares in accordance with the
provisions of applicable law or regulation, including the 1940 Act and the
rules promulgated thereunder, and in accordance with the procedures and
policies of such Fund, as described in its then-current Registration
Statement.
11. REPRESENTATIONS WITH RESPECT TO VIRTUS MUTUAL FUNDS. Service Provider and
its agents shall not make representations concerning a Fund, Shares or any
other fund in the Virtus Mutual Funds, except those contained in the
then-current Registration Statement applicable to such Fund, Shares or other
fund, in current sales literature furnished by VFS to Service Provider, and
in current sales literature created by Service Provider and submitted to and
approved in writing by VFS prior to its use. Any materials created by
Service Provider that identify or describe VFS, any Fund or any other fund
in the Virtus Mutual Funds and which are to be generally circulated or
disseminated by Service Provider or Investment Account Representatives,
shall be provided by Service Provider to VFS at least ten (10) Business Days
prior to such circulation or dissemination (unless VFS consents in writing
to a shorter period), and such materials shall not be circulated or
disseminated, or further circulated or disseminated, at any time after VFS
shall have given written notice to Service Provider of any objection
thereto. Service Provider will include in all materials that it creates any
disclosures that may be required by law or regulation, as well as any
material comments reasonably made by VFS or the Funds on the materials.
Nothing in this Section 11 shall be construed to make VFS, the Funds or any
other fund in the Virtus Mutual Funds liable for the use of any information
about a Fund, Shares or any other fund in the Virtus Mutual Funds, which is
disseminated by the Service Provider.
12. USE OF NAMES. Except as otherwise expressly provided for in this Agreement,
Service Provider shall not use, nor shall it allow its employees or agents
to use, the name or logo of VFS, any affiliate of VFS, or any products or
services sponsored, managed, advised, administered, or distributed by VFS or
any of its affiliates, including without limitation the Funds and any other
funds in the Virtus Mutual Funds, for advertising, trade, or other
commercial or noncommercial purposes without the express prior written
consent of VFS. Except as otherwise expressly provided for in this
Agreement, neither VFS nor the Funds shall allow its employees or agents to
use the name or logo of Service Provider, any affiliate of Service Provider,
or any products or services sponsored or offered by Service Provider or any
of its affiliates, for advertising, trade, or other commercial or
noncommercial purposes without the express prior written consent of Service
Provider.
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13. RELATIONSHIP OF PARTIES; NON-EXCLUSIVITY. Except for the limited agency
relationship described in Section 3, it is understood and agreed that all
Services performed hereunder by Service Provider shall be as an independent
contractor and not as an employee or agent of VFS or any of the Funds, and
none of the parties shall hold itself out as an agent of any other party
with the authority to bind such party. Each of the parties acknowledges and
agrees that this Agreement and the arrangements described herein are
intended to be non-exclusive and that each of the parties is free to enter
into similar agreements and arrangements with other entities.
14. INSURANCE AND BONDING. Service Provider and VFS agree to maintain adequate
errors and omissions (or equivalent) insurance coverage with limits of not
less than five million dollars. Upon request, Service Provider shall furnish
to VFS a certificate of insurance evidencing such coverage.
15. EXPENSES.
15.1 Except as otherwise expressly provided herein, each party shall bear
all expenses incidental to the performance of its obligations under
this Agreement.
15.2 VFS agrees, on behalf of the Funds, that (except as otherwise agreed
between the Funds and their investment adviser(s) or others with
respect to any expense limitation agreements) each Fund shall pay the
cost of registration of its shares with the SEC and in states where
required. VFS further agrees that VFS or the applicable Fund shall
distribute or cause to be distributed to Service Provider each Fund's
proxy material, periodic Fund reports to shareholders and other
material as such Fund may be required by law to be sent to Investment
Accounts as shareholders of the Fund. The cost of preparing and
printing such material shall be paid by the applicable Fund or VFS,
and the cost of distributing such items to the Investment Accounts
shall be borne by Service Provider.
16. FEES.
16.1 In consideration of Service Provider's performance of the Services,
VFS agrees to pay Service Provider, or cause the Funds to pay Service
Provider, the fees described in Schedule A ("Service Fees").
16.2 The parties agree that the Service Fees are for the Services only and
do not constitute payment in any manner for investment advisory or
distribution services.
16.3 Service Fees will be paid on a quarterly basis within thirty (30)
calendar days after Service Provider provides to VFS an invoice
setting forth the Service Fees due for that quarter, the basis of the
calculation thereof and the number of Investment Accounts invested in
Shares of each Fund during the quarter.
16.4 The parties acknowledge and agree that although the Funds referenced
on Schedule A may include the Class R6 shares for those Funds offering
them, Service Provider will not receive a fee under this Agreement for
providing Services to the shareholders of Class R6 shares but will
instead be compensated, if at all, under separate arrangements with
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the applicable retirement plans holding such Class R6 shares or
others not party to this Agreement.
17. TERMINATION. This Agreement may be terminated, with respect to a Fund or the
Funds, as follows:
17.1 At the option of VFS, immediately upon written notice to Service
Provider upon the adoption of any legislation, regulation, ruling or
opinion which has the effect of limiting, or the operation of which
serves to limit, VFS or VFS's affiliate's investment advisory or
administration fee with respect to such Fund(s) to an amount that is
less than the administrative fee otherwise payable with respect to
such Fund(s).
17.2 At the option of either party, immediately upon written notice to the
other party:
(a) in the event that formal proceedings are initiated against a
Fund or VFS, or against Service Provider, as the case may be, by
the Financial Industry Regulatory Authority, the SEC, or any
other regulatory body, and the terminating party has a
reasonable belief that the institution of such formal
proceedings is not without foundation and will have a material
adverse impact on the terminating party;
(b) if (i) in the judgment of a Fund's officers, the Fund's
declining to accept any additional orders for, or to make any
sales of, Shares is warranted by market, economic or political
conditions, or by abnormal circumstances of any kind; (ii) the
SEC has issued and there remains in effect any stop order
suspending the effectiveness of such Fund's Registration
Statement or prospectus; (iii) a current prospectus as required
by Section 10 of the 1933 Act is not on file with the SEC; or
(iv) the distribution agreement between a Fund and VFS has been
terminated;
(c) upon an assignment of this Agreement by the other party in a
manner that is not permitted under the terms of Section 27
hereof; and
(d) if the other party is in material breach of this Agreement
unless the party in breach cures the breach, to the reasonable
satisfaction of the party alleging the breach, within ten (10)
calendar days following the expiration of the Conciliation
Period described in Section 19.1 hereof.
17.3 At the election of either party upon ninety (90) calendar days advance
written notice to the other party hereto or at such time following
such notice as no Investment Account subject to this Agreement has
monies invested in such Fund(s), if earlier.
18. LIABILITY; ACTS BEYOND CONTROL Each party shall be entitled to conclusively
rely on the authenticity of any notice or other communication received from
the other party so long as such party reasonably believes the notice or
other communication to be genuine. Further, neither party shall be
responsible hereunder for losses caused directly or indirectly by conditions
beyond its reasonable control, including but not limited to war, natural
disaster, government or NSCC restrictions or changes, exchange, market or
NSCC rulings, strikes, interruptions of communications or data processing
services, or disruptions in orderly trading on any exchange or market. The
parties acknowledge that unforeseen circumstances may temporarily prohibit
each of them from performing its duties hereunder on the NSCC system.
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Without limiting the generality of the foregoing, and notwithstanding
anything herein to the contrary, other than with respect to any indemnity
owing hereunder, neither party shall be liable hereunder to the other party
for (a) any act or omission provided that such party acted in good faith,
unless such party's conduct is found to constitute gross negligence or
willful misconduct (b) undertaking any act on instructions from the other
party or for failing to act in the absence of such instructions if
instructions are warranted, or (c) for (i) any losses or unrealized gains
resulting from the failure to comply with instructions that were not
authorized on a timely basis, or (ii) any indirect, incidental, special,
consequential or punitive damages, including without limitation any damages
claimed as a result of lost profits.
19. DISPUTES. In order to attempt to promptly resolve disputes arising under
this Agreement, the parties agree that the conciliation procedures set forth
below shall be utilized prior to either party instituting legal proceedings
against the other, except as described in Section 19.2.
19.1 In the event a disagreement or dispute shall arise between the
parties, the aggrieved party shall provide the other with written
notice setting forth the nature of the problem. Within ten (10)
calendar days after receipt of that notice, each party will promptly
appoint a designated officer or other authorized representative to
meet for the purpose of endeavoring to resolve the disagreement or
dispute as promptly as possible. They shall continue to meet in
accordance with a schedule they determine until the problem shall be
resolved; provided, however, that if the problem is not resolved
within fifteen (15) calendar days after the first meeting (the
"Conciliation Period"), either party shall be free to pursue its
remedies at law or in equity, consistent with the terms of this
Agreement, unless both parties shall agree in writing to extend the
Conciliation Period.
19.2 Either party, before, during or following the Conciliation Period, may
(i) institute legal proceedings to the extent such institution is
necessary to preserve the timeliness of an action, or (ii) apply to a
court having jurisdiction for a temporary restraining order,
preliminary injunction or other equitable relief, where such relief is
necessary to protect its interests notwithstanding the conciliation
described in this Section 19.
19.3 Neither party may disclose the existence, proceedings or results of
any conciliation hereunder without the prior written consent of the
other party.
20. INDEMNIFICATION.
20.1 In addition to indemnifications contained elsewhere in this Agreement,
Service Provider agrees to indemnify and hold harmless VFS, its
affiliates, the Funds, the Funds' investment advisers, the Funds'
administrators, and each of their trustees/directors, officers,
employees, agents and each person, if any, who controls them within
the meaning of the 1933 Act, against any losses, claims, damages,
liabilities or expenses to which an indemnitee may become subject
insofar as those losses, claims, damages, liabilities or expenses or
actions in respect thereof, arise out of or are based upon (i) the
provision of Services by Service Provider; (ii) Service Provider's
gross negligence or willful misconduct in performing the Services;
(iii) any breach by Service Provider of any material provision of this
Agreement; (iv) any breach by Service Provider of a
11
representation, warranty or covenant made in this Agreement; or (v)
any material misstatements or omissions of material facts that Service
Provider or its agents make concerning any Fund that are inconsistent
with the Fund's current prospectus, statement of additional
information, periodic reports to shareholders, proxy statements, or
any other material VFS or the Fund has provided in writing to Service
Provider; and Service Provider will reimburse the indemnitees for any
legal or other expenses reasonably incurred, as incurred, by them in
connection with investigating or defending such loss, claim or action.
This agreement to indemnify and hold harmless will be in addition to
any liability which Service Provider may otherwise have.
20.2 VFS agrees to indemnify and hold harmless Service Provider and its
affiliates, and each of its trustees/directors, officers, employees,
agents and each person, if any, who controls Service Provider within
the meaning of the 1933 Act against any losses, claims, damages,
liabilities or expenses to which an indemnitee may become subject
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in the prospectus or statement of additional information of
a Fund, or the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make
statements therein not misleading; (ii) any breach by VFS of any
material provision of this Agreement; (iii) VFS's gross negligence or
willful misconduct in carrying out its duties and responsibilities
under this Agreement; or (iv) any breach by VFS of a representation,
warranty or covenant made in this Agreement; and VFS will reimburse
the indemnitees for any legal or other expenses reasonably incurred,
as incurred, by them in connection with investigating or defending any
such loss, claim or action. This agreement to indemnify and hold
harmless will be in addition to any liability which VFS may otherwise
have.
20.3 Promptly after receipt by an indemnitee under this Section 20 of
notice of the commencement of an action, the indemnitee will, if a
claim in respect thereof is to be made against the indemnitor, notify
the indemnitor of the commencement thereof in accordance with the
provisions of Section 21 hereof within seven (7) calendar days after
the summons or other first legal process shall have been served,
unless within such 7 days the indemnitor shall have been served in the
same action, in which case such notification may be given within sixty
(60) calendar days, provided that the failure to so notify the
indemnitor will not relieve it from any liability that it may have to
any indemnitee under this Section 20 or otherwise except to the extent
that the indemnitor has been prejudiced in any material respect by
such failure , and then only to the extent of any such actual
prejudice. If any such action is brought against any indemnitee and it
notifies the indemnitor of the commencement thereof, the indemnitor
will be entitled to assume the defense thereof with counsel reasonably
satisfactory to the indemnitee, and the defendant or defendants in
such action entitled to indemnification hereunder shall have the right
to participate in the defense or preparation of the defense of any
such action. In the event the indemnitor does elect to assume the
defense of any such action, and to retain counsel of good standing,
the defendant or defendants in such action shall bear the fees and
expenses of any additional counsel retained by any of them; but in
case the indemnitor does not elect to assume the defense of any such
action, the indemnitor will reimburse the indemnitee(s) named a
defendant or
12
defendants in such action for the fees and expenses of one single
additional counsel agreed upon by them. If the indemnitor assumes the
defense of any such action, the indemnitor shall not, without the
prior written consent of the indemnitee(s), settle or compromise the
liability of the indemnitee(s) in such action, or permit a default or
consent to the entry of any judgment in respect thereof, unless in
connection with such settlement, compromise or consent each indemnitee
receives from such claimant an unconditional release from all
liability in respect of such claim.
21. NOTICE. Each notice required by this Agreement shall be given in writing and
delivered personally or mailed by certified mail or courier service to the
other party at the following address or such other address as each party may
give notice to the other:
If to Service Provider, to:
One America
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xx 00000
Attention: Xxxx Quick
If to VFS, to:
Virtus Fund Services, LLC
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
With a copy to:
Virtus Investment Partners
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Counsel
A notice given pursuant to this Section 21 shall be deemed given immediately
when delivered personally, three (3) calendar days after the date of
certified mailing, and one (1) calendar day after the date of mailing for
delivery by courier service.
22. GOVERNING LAW. To the extent that state law is not preempted by the
provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time, this Agreement shall be
governed by and construed in accordance with the laws of the State of
Massachusetts without giving effect to the principles of conflicts of laws
thereof.
23. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Each party represents
that it is has full power and authority under applicable law, and has taken
all action necessary, to enter into and perform this Agreement and that by
doing so it will not breach or otherwise impair any other agreement or
understanding with any other person, corporation or other entity. Service
Provider
13
further represents, warrants and covenants that (a) to the extent required
by law or regulation, the arrangements provided for in this Agreement will
be disclosed to any customers, and (b) it is either (i) properly registered
as a transfer agent or broker-dealer pursuant to applicable laws, rules and
regulations, or (ii) not required by applicable laws, rules and regulations
to be registered as a transfer agent or broker-dealer as a result of
entering into, and performing the Services as set forth in, this Agreement.
24. SEVERABILITY; FURTHER ASSURANCES. Should any provision of this Agreement be
held invalid or unenforceable by any arbitrator, statute, rule or otherwise,
the remaining provisions of this Agreement will continue in full force and
effect. Upon such determination that any provision is invalid or
unenforceable, the parties shall negotiate in good faith to modify this
Agreement so as to effectuate the original intent of the parties as closely
as possible in a mutually acceptable manner in order that the transactions
contemplated hereby may be consummated as originally contemplated to the
greatest extent possible. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
25. COMPLETE AGREEMENT; COUNTERPARTS. This Agreement contains the full and
complete understanding of the parties with respect to the subject matter
hereof, and supersedes all prior representations, promises, statements,
arrangements, agreements, warranties and understandings between the parties
with respect to the subject matter hereof, whether oral or written, express
or implied. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same Agreement.
26. THIRD PARTY BENEFICIARIES. The parties hereto acknowledge and agree that the
Funds, along with any non-party indemnitees listed in Section 20, are
intended third party beneficiaries of this Agreement and may enforce their
rights hereunder even though they are not parties to this Agreement.
27. MODIFICATION, WAIVER AND ASSIGNMENT. This Agreement may be modified or
amended, and the terms of this Agreement may be waived, only by a writing
signed by each of the parties. This Agreement shall not be assigned by a
party hereto, without the prior written consent of the other party hereto,
except that VFS may assign this Agreement to an affiliate having the same
ultimate ownership as VFS without such consent.
28. SURVIVAL. The provisions of Sections 5, 6, 7, 12, 13, 18, 19, 20, 22 and 26
shall survive termination of this Agreement.
[Signature page follows.]
14
IN WITNESS WHEREOF, the undersigned have executed this Agreement by
their duly authorized officers as of the date first set forth in this Agreement
----------------------------------------------------------
AMERICAN UNITED LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------------------------
Title: Assistant Vice President
-------------------------------------------------
ONEAMERICA SECURITIES, INC
By: /s/ Xxxxxxx X Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X Xxxxxxxxx
-------------------------------------------------
Title: President
-------------------------------------------------
VIRTUS FUND SERVICES, LLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------------------------
Title: Vice President, Mutual Fund Services
-------------------------------------------------
15
SCHEDULE A
FUNDS
The "Funds" referenced in this Agreement shall be all classes of all registered
open-end funds for which VFS serves as the transfer agent.
FEES
The "Fees" referenced in this Agreement shall be 20 basis points for all Class
A, Class I and Class T shares of the Funds. The Fee payable each month with
respect to a Fund shall be an amount equal to the average daily net assets
invested in such Fund during the month MULTIPLIED by the applicable per annum
rate described above MULTIPLIED by a fraction the numerator of which is the
number of days in the month and the denominator of which is 365.
All funds are load waived, and finder fees are not applicable. To the extent
there is a broker-dealer listed on an account and that broker-dealer has a
selling agreement with the Funds' distributor, any 12b-1 fees applicable to that
account will be paid to the broker-dealer listed on the account in accordance
with the selling agreement. The Fees applicable to this Agreement do not include
such 12b-1 fees.
No fees will be payable under this Agreement for services provided to the
shareholders of Class R6 and/or Class IS; fees for such services will instead be
paid, if at all, under separate arrangements with the applicable plans holding
such Class R6 and/or Class IS shares or others not party to this Agreement.
16
