RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
THIS AGREEMENT is made this 6th day of August, 1998, by and between The
Prudential Insurance Company of America, a New Jersey mutual life insurance
company ("Prudential"), and BISYS Plan Services, L.P., a Pennsylvania limited
partnership ("BISYS").
WHEREAS, Prudential provides certain recordkeeping and administrative
services, trust reporting and accounting services, and order placement and
processing services to certain defined contribution pension plans that qualify
or intend to qualify under Section 401(k) and/or Section 401(a) of the Internal
Revenue Code of 1986, as amended ("Code");
WHEREAS, Prudential desires to retain BISYS to provide those recordkeeping
and administrative services, or certain of such services, and to arrange for the
provision of those trust reporting and accounting services and those order
placement and processing services to selected Prudential plan clients meeting
certain size-related and other criteria established by Prudential and to provide
certain other related services to Prudential, in accordance with the terms and
conditions of this Agreement;
WHEREAS, BISYS is willing to provide such recordkeeping and administrative
services to the Plans and related services to Prudential and to arrange for the
provision of such trust reporting and accounting services and such order
placement and processing services, in accordance with the terms and conditions
of this Agreement;
THEREFORE, in consideration of the premises and mutual covenants contained
in this Agreement, Prudential and BISYS agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement:
(a) "Administrative Services Agreement" means: (1) for an agreement
executed on or after the Effective Date, either of the forms of
Administrative Services Agreement as set forth in Schedule A
attached hereto (as modified or substituted by Prudential from
time to time with the approval of BISYS to reflect its then
current form(s) of agreement); or (2) otherwise, the particular
administrative services agreement approved by Prudential for a
Plan or the particular services and operations that have been and
are anticipated to be provided by Prudential (or its designee).
(b) "Effective Date" means the date which is sixty (60) calendar days
after the date written above (or, if such sixtieth (60th) day is
not a business day, the first business day thereafter) but in no
event later than November 1, 1998.
(c) "Employer" means the employer who executes the Administrative
Services Agreement on behalf of a Plan.
(d) "Investment Option" means an investment in which the Plan is
authorized to invest, as described in Schedule B attached hereto
and as such Schedule may be modified by agreement of Prudential
and BISYS to reflect changes directed by the Plan pursuant to its
Administrative Services Agreement.
(e) "Participant" means a participant, or an eligible employee
enrolling as a participant, under a Plan and, where applicable,
includes the participant's beneficiary(ies) under the Plan or an
alternate payee under a qualified domestic relations order, as
defined in the Code and the Employee Retirement Income Security
Act of 1974, as amended ("ERISA").
(f) "Plan" means an employee benefit plan that: is qualified, or
seeks to qualify, under Section 401(a) of the Code as a plan
described in Section 401(k) of the Code or as a profit sharing or
money purchase plan pension plan; uses the Prudential PruArray
Prototype 401(k) Plan Document (or such other plan document as
Prudential may specify), as such document may be from time to
time amended; and at the time services are initially provided to
it by Prudential or BISYS, meets the criteria for Plans set forth
in Schedule C attached hereto.
(g) "Services" means those services BISYS is obligated to provide or
arrange for the provision of pursuant to Section 2(a), (b) and/or
(c) of this Agreement, depending on the Administrative Services
Agreement with each particular Plan.
(h) "Service Team" means those employees of BISYS dedicated to the
provision of services under this Agreement on a full- or
part-time basis, including but not limited to personnel who deal
directly with Plans or Participants and/or handle Plan records,
as set forth in Schedule D attached hereto.
2. SERVICES OF BISYS. BISYS shall enable Prudential to satisfy
Prudential's obligations to each Plan under the Administrative
Services Agreement with that Plan. Accordingly, and subject to the
further provisions of this Agreement, beginning on the Effective Date
and thereafter:
(a) BISYS shall provide, through the Service Team, the following
services with respect to Plans:
(1) The recordkeeping and administrative services as described
in the Administrative Services Agreements (except with
respect to the availability of Prudential Account Executives
and the design or maintenance of the Prudential Web site).
These services shall be
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performed in accordance with the standards, as applicable,
set forth in Schedule E attached hereto.
(2) The Plan documentation and disclosure services as described
in the Administrative Services Agreements.
(3) Plan testing as described in the Administrative Services
Agreements.
(4) The services relating to Discovery Select Group Retirement
Annuity as described in Schedule F attached hereto.
(5) Any additional services as shall be necessary to enable
Prudential to meet its obligations to each Plan under the
Administrative Services Agreement with that Plan. The
process for approving such additional services and changes
to the Administrative Services Agreement shall be as set
forth in Schedule G attached hereto.
(b) BISYS shall arrange for the provision of the following services
with respect to Plans:
(1) The trust and accounting services as described in Schedule H
attached hereto.
(2) The order placement, processing and related services as
described in Schedule I attached hereto.
(c) Notwithstanding the foregoing provisions of Section 2(a) of this
Agreement, as to those Plans designated by Prudential in writing
to BISYS, BISYS shall provide only the administrative and
recordkeeping services required under the respective
Administrative Services Agreements for those Plans, which
services may be less than all of the services described in
Section 2(a) above. Prudential shall not provide for servicing,
and BISYS shall not be obligated to provide services to, any Plan
pursuant to this Section 2(c) until such date, and unless such
Plan meets such additional criteria, if any, as Prudential and
BISYS may agree.
(d) BISYS shall provide, to the extent reasonably practicable through
the appropriate members of the Service Team, training sessions
and/or marketing support, on-site or otherwise and which may
include Plan-related materials, as set forth in Schedule J
attached hereto or otherwise as Prudential may reasonably
request.
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(e) All services provided by BISYS and related materials and records
produced or maintained (in whatever form produced or maintained)
under this Agreement shall be performed, produced and/or
maintained, as applicable, in a manner that reflects that such
services, materials and records are so performed, produced and/or
maintained, as applicable, by Prudential through BISYS.
(f) BISYS shall furnish Prudential with the reports specified on
Schedule K attached hereto, at such times and in the manner
specified on such Schedule. In addition, BISYS shall promptly
notify Prudential of any action or matter relating to a Plan or
that may present a material legal or business issue, including
but not limited to the commencement (or anticipated commencement)
of any audit, examination or inspection by an Employer, the U.S.
Department of Labor, the Internal Revenue Service, the Securities
and Exchange Commission and/or a State insurance department
("Examination"), and shall promptly respond, as agreed to by
Prudential, to such Examination.
(g) BISYS shall promptly notify Prudential of any change it proposes
to make relating to Services or BISYS's other activities and
obligations under this Agreement to implement new statutory or
regulatory requirements and shall implement such change only with
the prior approval of Prudential, which approval shall not be
unreasonably withheld. Prudential shall promptly notify BISYS of
any change it intends to make in the prototype plan document used
or to be used by a Plan, which change(s) shall be subject to the
prior approval of BISYS.
3. NUMBER OF PLANS. During the initial twelve (12) months beginning on
the Effective Date, Prudential shall provide at least five hundred
(500) Plans for which BISYS shall provide Services. Prudential and
BISYS may agree that Prudential may provide, and BISYS shall accept,
more than five hundred (500) Plans during such period. If Prudential
fails to provide for servicing by BISYS at least five hundred (500)
Plans during the initial twelve (12)-month period beginning on the
Effective Date, Prudential shall pay BISYS an amount equal to Two
Thousand Dollars ($2,000) times the difference between five hundred
(500) and the number of Plans provided, which amount shall be paid
within thirty (30) days of the close of such period. However, in no
event shall the total amount payable by Prudential pursuant to this
Section 3 exceed: Five Hundred Thousand Dollars ($500,000) if
Prudential terminates this Agreement after the date written above and
prior to the thirtieth (30th) calendar day thereafter; Seven Hundred
and Fifty Thousand Dollars ($750,000) if Prudential terminates this
Agreement on or after the thirty-first (31st) day from the date
written above and prior to the Effective Date; and One Million Dollars
($1,000,000) if Prudential terminates this Agreement on or after the
Effective Date.
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4. LIMITATIONS ON ACCEPTANCE OF NON-PRUDENTIAL PLANS. BISYS shall not
accept for servicing more than fifteen hundred (1,500) net new defined
contribution pension plans or other retirement plans or accounts,
exclusive of the Plans provided by Prudential hereunder (collectively,
"New Plan Business"), during the initial twelve (12)-month period
commencing on the Effective Date, provided Prudential has provided
BISYS with at least five hundred (500) Plans during such initial
period. If, during the initial twelve (12)-month period commencing on
the Effective Date, BISYS's New Plan Business exceeds the limit
specified in the preceding sentence as a result of an acquisition by
BISYS or one of its affiliates of control, or the assets, of another
entity in the business of providing services comparable to those
provided by BISYS to Plans under this Agreement, BISYS shall promptly
so notify Prudential and BISYS shall consult with Prudential for
Prudential's consent to permit BISYS to exceed such New Plan Business
limit.
5. COMMITMENT TO COMPLETE CERTAIN SERVICE ENHANCEMENTS. BISYS shall
complete installation and implementation of an automated process
tracking system by September 17, 1998, according to specifications
provided to Prudential and attached hereto as Schedule L. BISYS shall
permit Prudential to review and test to its satisfaction the process
tracking system in operation prior to the Effective Date. If, in
Prudential's reasonable business judgment, BISYS fails to materially
comply with the requirements of this Section 5, Prudential may notify
BISYS of such failure, and if, within thirty (30) days after such
notice, BISYS has not cured such failure, Prudential shall have the
right to terminate this Agreement effective immediately upon notice to
BISYS.
6. COMMITMENT TO IMPROVE PIN SECURITY. BISYS shall enhance the security
relating to personal identification numbers ("PINs") by October 6,
1998, as specified in Schedule M attached hereto. BISYS shall permit
Prudential to review and test to its satisfaction the use of PINs, as
enhanced, prior to the Effective Date. If, in Prudential's reasonable
business judgment, BISYS fails to materially comply with the
requirements of this Section 6, Prudential may notify BISYS of such
failure, and if, within thirty (30) days after such notice, BISYS has
not cured such failure, Prudential shall have the right to terminate
this Agreement effective immediately upon notice to BISYS.
7. CONVERSION AND YEAR-END PROCESSING.
(a) BISYS shall complete the conversion of its computer systems, as
planned ("Conversion"), by the Effective Date and shall also
complete the systems enhancements as described and within the
time period(s) specified in Schedule N attached hereto
("Enhancements"). If the Conversion is not substantially
completed, in Prudential's reasonable business judgment, by the
Effective Date or the Enhancements are not materially completed,
in Prudential's reasonable business judgment, as and within the
time period(s) specified in Schedule N, Prudential may notify
BISYS of such
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failure, and if, within thirty (30) days after such notice, BISYS
has not cured such failure, Prudential shall have the right to
terminate this Agreement immediately upon notice to BISYS.
(b) After the Conversion, Prudential shall have the right to select a
representative Plan and use it to test, to the extent determined
by Prudential, BISYS's computer systems and related operations
with respect to the services required to be provided by BISYS
under this Agreement. If the results of this test are not
satisfactory to Prudential in its reasonable business judgment,
Prudential may notify BISYS of such failure, and if, within
thirty (30) days after such notice, BISYS has not cured such
failure, Prudential shall have the right to terminate this
Agreement effective immediately upon notice to BISYS.
(c) BISYS represents and warrants that no later than the Effective
Date it shall have, and thereafter maintain, sufficient capacity
(in terms of both systems and personnel), including prudent
excess capacity, to accommodate the Conversion and the Plans
without any adverse effect upon BISYS's ability to perform
properly and in a timely manner the year-end processing required
for the Plans.
(d) BISYS shall demonstrate to Prudential, at such time(s) in
October, November and/or December of 1998 as Prudential and BISYS
shall agree, the effective operation of BISYS's 1998 year-end
processing for Plans.
8. DUE DILIGENCE.
(a) BISYS shall cooperate with Prudential to enable Prudential to
complete, prior to the Effective Date, such due diligence with
respect to BISYS as Prudential shall reasonably deem necessary,
and if the results of such due diligence are not satisfactory, in
Prudential's reasonable business judgment, Prudential may notify
BISYS of such failure, and if, within thirty (30) days after such
notice, BISYS has not cured such failure, Prudential shall have
the right to terminate this Agreement immediately upon notice to
BISYS.
(b) BISYS shall cooperate with Prudential to enable Prudential to
complete, prior to the Effective Date, such due diligence with
respect to Frontier Trust Company as Prudential shall reasonably
deem necessary, and if the results of such due diligence are not
satisfactory, in Prudential's reasonable business judgment,
Prudential may notify BISYS of such failure, and if, within
thirty (30) days after such notice, BISYS has not cured such
failure or provided another party acceptable to Prudential in
lieu of Frontier Trust Company, Prudential shall have the right
to terminate this Agreement immediately upon notice to BISYS.
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9. CHANGE OF CONTROL OR SENIOR MANAGEMENT OF BISYS.
(a) In the event of a change of control of BISYS or a transfer of
substantially all of its business to another entity or entities
not under common control with BISYS, BISYS shall promptly notify
Prudential of such change or transfer, and at any time within one
hundred and eighty (180) days after receipt of such notice,
Prudential shall have the right to terminate this Agreement
immediately upon notice to BISYS. For this purpose, control
means fifty percent (50%) or more of the outstanding voting
interests of BISYS.
(b) In the event of a change or planned change in any of the senior
management positions of BISYS, BISYS shall promptly notify
Prudential of such change or planned change. BISYS shall, within
a reasonable period of time which shall not exceed one hundred
and eighty (180) days, fill any vacancy resulting from such
change with a person of at least comparable industry experience
and at least the same level of competence. However, if any
senior management position is eliminated or substantially
modified as a result of a reorganization of BISYS, BISYS will
promptly so notify Prudential and consult with Prudential for
Prudential's consent to the elimination or modification of such
position. If BISYS fails, in Prudential's reasonable business
judgment, to satisfy its obligations under this subsection (b),
Prudential may notify BISYS of such failure, and if, within
thirty (30) days after such notice, BISYS has not cured such
failure, Prudential shall have the right to terminate this
Agreement immediately upon notice to BISYS. For this purpose,
the senior management positions of BISYS are the following:
president, vice president for marketing, director of business
development, senior vice president for plan services, director of
client services, head of operations, and head of systems
development; or their respective equivalents, however named.
10. OTHER PLAN SERVICE PROVIDERS. Prudential and BISYS agree that:
(a) Either Prudential Bank & Trust Company or Prudential Trust
Company (or other person approved by Prudential) shall serve as
the trustee for each Plan under the terms of the Plan's trust
agreement.
(b) BISYS shall make such arrangements with one or more third parties
approved by Prudential as may be necessary for the placement and
processing of orders on behalf of Plans with respect to
Investment Options.
(c) BISYS acknowledges that for each Plan designated by Prudential
pursuant to Section 2(c) of this Agreement, certain recordkeeping
and/or
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administrative services will not be required of Prudential, and
accordingly not be provided by BISYS, under the Plan's
Administrative Services Agreement and, instead, will be provided
to the Plan by a third party. BISYS shall coordinate with each
such third-party recordkeeper to ensure the effective delivery of
Services to the affected Plan(s).
11. PRUDENTIAL CLIENTS. BISYS acknowledges and agrees that each of the
Employers and Plans is a client of Prudential and that all information
and records relating to any of them (or to Participants) in connection
with BISYS's services under this Agreement belong to Prudential and/or
each such Employer and/or Plan, as applicable. BISYS shall not,
without the consent of Prudential, market any of its products to
current or prospective Prudential clients identified by or during
BISYS's relationship with Prudential.
12. NEW PLAN ACCOUNTS AND PROTOTYPE CHANGES. The process following the
initial contact with an Employer with respect to a Plan and the
process for responding to an Employer's (or Plan's) request to amend
the Plan which would result in an individually-designed Plan, and the
respective responsibilities of Prudential and BISYS regarding
initiation of Services to that Plan or handling such request, as the
case may be, shall be as set forth on Schedule G attached hereto.
13. PLAN INVESTMENT TRANSACTIONS.
(a) With respect to Plan investment transactions, pricing information
shall be provided, orders shall be placed and settlements shall
be made as provided in Schedule I attached hereto. BISYS shall
provide and maintain appropriate computer systems linking the
system on which it maintains Plan records under this Agreement
with the recordkeeping system maintained by or on behalf of each
Investment Product for its investors. Prudential shall have
on-line access to such BISYS system.
(b) BISYS shall ensure that all of the Plan's Investment Option
accounts reflect Prudential Securities Incorporated as the Plan's
broker of record. Except where commissions are paid through the
National Securities Clearing Corporation, BISYS shall properly
calculate and track all commissions payable to Prudential
Securities Incorporated and its registered representatives with
respect to Investment Options.
(c) BISYS shall have no obligation or duty to inquire into or verify
the investment performance of any Investment Option.
14. MAINTENANCE OF RECORDS. BISYS shall maintain and preserve all records
as required by law to be maintained and preserved in connection with
providing the Services and with the care, skill, prudence and
diligence that a prudent person acting in like capacity and familiar
with such matters would use in maintaining
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such records. Upon the request of Prudential, BISYS will provide
copies (or such other form of durable record as Prudential may
approve) of all historical records relating to transactions involving
the Plan(s), written communications regarding the Plan(s) and other
materials, in each case (a) as are maintained by BISYS in the ordinary
course of its business, (b) as may reasonably be requested to enable
Prudential, or its representatives, including without limitation
auditors or legal counsel, to (i) monitor and review the Services,
(ii) comply with any request of a governmental body or self-regulatory
organization or a Plan, (iii) verify compliance by BISYS with the
terms of this Agreement, (iv) make required regulatory reports or (v)
perform general assessment of Services. BISYS will permit Prudential
or such representatives to have reasonable access, during normal
business hours and subject to reasonable notice to BISYS, to its
personnel, records and facilities in order to facilitate the
monitoring of the quality of the Services.
15. CONFIDENTIALITY.
(a) Prudential and BISYS acknowledge that each may be provided with
information about, and BISYS's engagement by Prudential may bring
each into close contact with, confidential and proprietary
information of the other. In addition, Prudential and BISYS each
may be provided with or be exposed to confidential information
of third parties with which the other conducts business. Such
confidential information of a party and of the third parties with
which it does business is collectively referred to as its
"Confidential Information." In recognition of the foregoing,
Prudential and BISYS each covenant and agree that:
(1) it will keep and maintain all Confidential Information of
the other in strict confidence, using such degree of care as
is appropriate to avoid unauthorized use or disclosure;
(2) it will not, directly or indirectly, disclose any
Confidential Information of the other to anyone outside of
the other, except with the other's prior consent;
(3) it will not make use of any Confidential Information of the
other for its own purposes or the benefit of anyone or any
other entity except the other;
(4) it will (A) on termination of discussions between the
parties, or, (B) if BISYS is engaged to perform Services for
Prudential, upon completion of the engagement, or (C) at any
time the other may so request, deliver promptly to the
other, or, at the other's option, destroy all memoranda,
notes, records, reports, media and other documents and
materials (and all copies thereof) regarding or
9
including any Confidential Information which it may then
possess or have under its control; and
(5) it will take no action with respect to the Confidential
Information that is inconsistent with the confidential and
proprietary nature of such Information.
(b) Prudential and BISYS each shall be permitted to disclose the
Confidential Information of the other only to its employees and
agents ("Employees") having a need to know such information in
connection with the performance of the Services. Prudential and
BISYS each shall instruct all such of its Employees as to their
obligations under this Agreement.
(c) Subject to the provision of Section 11 of this Agreement, for
purposes of this Agreement, Confidential Information shall
include all business information of Prudential or BISYS, as
applicable, including the following:
(1) information relating to its planned or existing computer
systems and systems architecture, including computer
hardware, computer software, source code, object code,
documentation, methods of processing and operational
methods;
(2) policyholder or Participant data, customer lists, sales,
profits, organizational restructuring, new business
initiatives and financial information;
(3) information that describes insurance and financial products,
including actuarial calculations, product designs, and how
such products are administered and managed;
(4) information that describes product strategies, tax
interpretations, tax positions and treatment of any item;
and
(5) confidential information of third parties with which it
conducts business.
(d) Notwithstanding the foregoing, Confidential Information of a
party shall not include information that (1) is or becomes
generally known to the public not as a result of a disclosure by
the other, (2) is rightfully in the possession of the other prior
to disclosure by the first party, or (3) is received by the other
in good faith and without restriction from a third party, not
under a confidentiality obligation to the first party and having
the right to make such disclosure. Prudential and BISYS each
acknowledge that the disclosure of Confidential Information of
the other may cause irreparable injury to the other and damages
which may be difficult to ascertain. Therefore,
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Prudential and BISYS each shall, upon a disclosure or threatened
disclosure of any of its Confidential Information, be entitled to
injunctive relief, including, but not limited to, a preliminary
injunction and an order of seizure and impoundment under Section
503 of the Copyright Act upon an EX PARTE application by it to
protect and recover the Confidential Information, and the other
shall not object to the entry of an injunction or other equitable
relief against it on the basis of an adequate remedy at law, lack
of irreparable harm or any other reason. Without limitation of
the foregoing, Prudential and BISYS each shall advise the other
immediately in the event that it learns or has reason to believe
that any person or entity which has had access to Confidential
Information has violated or intends to violate the terms of this
Agreement.
16. DISASTER RECOVERY PLANS; FORCE MAJEURE.
(a) BISYS currently maintains an agreement with a third party whereby
BISYS is to be permitted to use, at no cost to Prudential, on a
"shared use" basis a "hot site" (the "Recovery Facility")
maintained by such party in event of a disaster rendering the
necessary BISYS facilities ("BISYS Facilities") inoperable.
BISYS has developed and is continually revising a business
contingency plan ("Business Contingency Plan") detailing which,
how, when, and by whom data maintained by BISYS at the BISYS
Facilities will be installed and operated at the Recovery
Facility. BISYS shall by August 31, 1998, provide Prudential
with a copy of its then current Business Contingency Plan
applicable to the Plans and shall promptly provide Prudential
with a copy of any amendment or modification to the Business
Contingency Plan. BISYS will, in event of a disaster rendering
the BISYS Facilities inoperable, use reasonable efforts to
convert the computer (or other) systems ("Systems") containing
the designated Prudential and/or Plan data to the computers at
the Recovery Facility in accordance with the then current
Business Contingency Plan. BISYS conducts regular tests of
BISYS's ability to operate the Systems at the Recovery Facility
and shall provide Prudential with reports of the results of such
tests.
(b) In addition to its obligations under the foregoing subsection (a)
of this Section, BISYS shall, by November 16, 1998, have tested
its Business Contingency Plan and its ability to operate the
Systems at the Recovery Facility and have provided to Prudential
a copy of the report(s) of the results of such testing. If the
results of such testing are not satisfactory, in Prudential's
reasonable business judgment, Prudential may notify BISYS of such
failure, and if, within thirty (30) days after such notice, BISYS
has not cured such failure, Prudential shall have the right to
terminate this Agreement immediately upon notice to BISYS.
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(c) BISYS also currently maintains, separate from the area in which
the operations which provide the Services hereunder are located,
a Crisis Management Center consisting of phones, computers and
the other equipment reasonably necessary to operate a retirement
plan servicing business in the event one of its operations areas
is rendered inoperable. The transfer of operations to other
operating areas or to the Crisis Management Center is also
covered in BISYS's Business Contingency Plan.
(d) Provided it has complied with its obligations under this Section
16, BISYS shall not be responsible or liable for its failure or
delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by
circumstances beyond its reasonable control, including, without
limitation: any interruption, loss or malfunction of any utility
or transportation service; inability to obtain transportation or
a delay in mails; governmental or exchange action, statute,
ordinance, rulings, regulations or direction; war, strike, riot,
emergency, civil disturbance, terrorism, vandalism, explosions,
freezes, floods, fires, tornadoes, hurricanes, acts of God or
public enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to BISYS's
reasonable control which prevents or hinders BISYS's performance
hereunder.
17. FINANCIAL REPORTS.
(a) BISYS agrees to furnish to Prudential annual reports of the
financial condition of The BISYS Group, Inc., the parent company
of BISYS, consisting of a balance sheet, earnings statement and
any other financial information reasonably requested by
Prudential, and shall, on an annual basis, arrange for the
preparation, and promptly furnish to Prudential a copy, of a
report with respect to BISYS that is prepared in accordance with
the requirements of STATEMENT ON AUDITING STANDARDS NO. 70, as
amended from time to time, issued by the American Institute of
Certified Public Accountants (the "SAS 70 Report"). The annual
financial statements will be certified, and the SAS 70 Report
will be prepared and issued, by BISYS's certified public
accountants. Prudential agrees to keep confidential all
information provided to it pursuant to the preceding sentence and
shall not disclose the same to any person, except with the prior
consent of BISYS, or use the same except in connection with
Section 14 of this Agreement, unless such information has been
disclosed by BISYS to the public.
(b) BISYS shall, no later than August 31, 1998, provide Prudential
with a copy of BISYS's SAS 70 Report for the period July 1, 1997,
through June 30, 1998. If BISYS does not do so, or that report
is qualified, or Prudential, in its reasonable business
discretion, determines that the results
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of that report are unsatisfactory, Prudential may notify BISYS of
such failure, and if, within thirty (30) days after such notice,
BISYS has not cured such failure, Prudential shall have the right
to terminate this Agreement effective immediately upon notice to
BISYS.
18. COMPLIANCE WITH PLAN TERMS AND LAWS. At all times, BISYS shall comply
in all material respects with all Plan documents and all laws, rules
and regulations applicable to it by virtue of entering into this
Agreement.
19. YEAR 2000 COMPLIANCE.
(a) BISYS represents and warrants that all software, hardware and
electronic data processing systems used or that will be used by
it, and by its suppliers and vendors, prior to, during, or after
the calendar year 2000 in connection with the provision of
services hereunder (the "Software and Hardware"), includes, at no
additional cost to Prudential, any Plan or any Employer, design
and performance capabilities such that BISYS and Prudential in
connection with the services performed hereunder, shall not
experience Software and Hardware abnormally ending and/or invalid
and/or incorrect results from the Software and Hardware in the
operation of its business.
(b) BISYS further represents and warrants that in connection with the
provision of services hereunder, BISYS shall not use (or provide
to any Plan for its use) Software and Hardware that is not "year
2000 compliant." For purposes of this paragraph, the term "year
2000 compliant" shall mean that the data outside of the range
1900-1999 shall be correctly processed in any level of computer
hardware or software, including but not limited to, microcode,
firmware, application programs, files and databases.
(c) BISYS further represents and warrants that the Software and
Hardware will lose no functionality with respect to the
introduction of records containing dates after December 31, 1999,
and that the advent of the year 2000 will not adversely affect
BISYS's performance of the Services.
20. SERVICE IMPROVEMENTS. BISYS represents and agrees that it shall use
reasonable commercial efforts to keep current on the trends of the
retirement plan services industry relating to recordkeeping and
administrative services and shall use reasonable efforts to continue
to modernize and improve at no cost to Prudential. BISYS shall modify
its computer systems and applicable policies, procedures and practices
to timely comply with changes in applicable statutory and regulatory
requirements at no cost to Prudential. Any downtime necessary for
normal systems upgrades and/or maintenance by BISYS shall be on
off-peak hours, and BISYS shall provide Prudential with reasonable
prior notice of any such downtime.
13
21. FEES.
(a) BISYS shall collect on Prudential's behalf the fees and charges
specified on Schedule O attached hereto ("Fees") and may keep
such Fees collected as payment in full for BISYS's satisfactory
performance of its services and obligations under this Agreement.
Prudential shall have no obligation to collect such Fees and
shall have no further liability for payment to BISYS. BISYS
shall have the right to terminate Services for any Plan for
non-payment of fees due for more than ninety (90) days, provided
BISYS shall, at least thirty (30) days prior to any such
termination of Services, have informed Prudential of its
intention to do so.
(b) Upon collection of the installation fee for any start-up Plan
and/or the collection of the conversion fee for any conversion
Plan (as specified in Schedule O), BISYS shall pay Prudential a
one-time fee of $250 for each such Plan, or such other amount as
Prudential and BISYS shall agree. These fees payable by BISYS
may be accumulated and remitted to Prudential no less frequently
than quarterly.
(c) The parties agree that the Fees are for administrative and
recordkeeping services only and do not constitute payment in any
manner for investment advisory or distribution services.
(d) Except as otherwise provided in this Agreement or otherwise
agreed by Prudential and BISYS, each party will bear all expenses
incidental to the performance of its obligations under this
Agreement.
(e) BISYS may charge Employers/Plans the Fees set forth in Schedule O
attached hereto, as such Schedule may be revised from time to
time by agreement of Prudential and BISYS.
(f) BISYS shall have the right to receive sub-transfer agency or
other administrative fees at the annual rate of $6 (or, for Plans
designated by Prudential pursuant to Section 2(c) of this
Agreement, $10) per Participant per mutual fund Investment Option
position, on a quarterly basis, either directly from each
Investment Option (or its affiliate) or indirectly through
Prudential. If, depending on the arrangement with respect to the
particular mutual fund Investment Option, Prudential or BISYS, as
the case may be, does not timely receive direct payment of the
fees due from the mutual fund or its affiliate, then (A)
whichever party is to have directly received such fees shall
promptly so notify the other party and (B) Prudential and BISYS
shall take such action as may be necessary to remove that mutual
fund as an Investment Option or take such other action as
Prudential and BISYS shall, within thirty (30) days after notice
under the preceding clause, agree.
14
22. RELATIONSHIP OF PARTIES. Except to the extent BISYS is expressly
authorized in this Agreement to act as Prudential's limited agent for
certain purposes, it is understood and agreed that all services
performed under this Agreement by BISYS will be as an independent
contractor and not as an employee or agent of Prudential, and neither
party will hold itself out as an agent of the other party with the
authority to bind such party.
23. USE OF NAMES.
(a) Except as otherwise expressly provided for in Schedule P attached
hereto or otherwise in this Agreement, BISYS will not use, nor
allow its employee or agents to use, the name or logo of
Prudential or any affiliate of Prudential, or any products or
services sponsored, managed, advised, administered or distributed
by Prudential, for advertising, trade or other commercial or
noncommercial purposes without the express prior consent of
Prudential.
(b) Except as otherwise expressly provided for in Schedule P attached
hereto or otherwise in this Agreement, Prudential will not use,
nor allow its employees or agents to use, the name or logo of
BISYS, any affiliate of BISYS, or any products or services
sponsored or offered by BISYS or any of its affiliates, for
advertising, trade or other commercial or noncommercial purposes
without the express prior consent of BISYS.
24. REPRESENTATIONS WITH RESPECT TO INVESTMENT OPTIONS. BISYS and its
agents will not make any representations concerning Prudential, or any
Investment Option except those contained in the then current
prospectus of such Investment Option, in current sales literature
furnished by Prudential to BISYS, and/or in current sales literature
created by BISYS and submitted to and approved in writing by
Prudential before first use.
25. LICENSES, INSURANCE AND BONDING.
(a) BISYS shall maintain such licenses as may be necessary for it to
provide its services and perform its obligations under this
Agreement and shall provide Prudential upon request with a copy
of each such license BISYS maintains.
(b) BISYS shall obtain from a company or companies acceptable to
Prudential and maintain in force during the term of this
Agreement and for not less than two (2) years thereafter, the
following insurance coverages in at least the amounts indicated:
(1) Worker's Compensation - Statutory
limits
15
(2) Employer's Liability
Bodily injury by disease by person - $250,000
Bodily injury by accident - $250,000
Bodily injury by disease policy limit - $250,000
(3) Commercial General Liability, including
Broad Form Property Damage and
Contractual Liability
General Aggregate - $2,000,000
Products/Completed Operations
Aggregate - $2,000,000
Each Occurrence - $1,000,000
Personal and Advertising Injury - $1,000,000
Medical Payments - $5,000/person
(4) Excess Liability - $5,000,000
(5) Comprehensive Auto Liability - $1,000,000
including, Owned, Non-owned combined single
and Hired Car coverage for vehicles limit
which are operated on behalf of
BISYS in furtherance of BISYS's
performance of activities hereunder.
If BISYS does not own any - $1,000,000
vehicles, then non-owned and
hired Auto Liability
(6) Property Coverage
(7) Professional Liability (Errors & Omissions) - $5,000,000
Where applicable, the above policy(ies) shall name Prudential as
an additional insured. BISYS shall, upon request, provide
Prudential with a certificate or certificates of insurance
evidencing that the above-noted insurance requirements have been
satisfied and specifying the Prudential shall receive a thirty
(30)-day advance notice of any cancellation of or reduction in
coverage.
(c) As a part of the fixed price for this Agreement, BISYS shall
obtain from a licensed surety acceptable to Prudential and
deliver to Prudential a fidelity bond which includes employee
dishonesty coverage, with limits in an amount of not less than
Five Million Dollars ($5,000,000) covering BISYS and all BISYS's
agents who provide the Services. Said bond must
16
be blanket in nature covering BISYS and all BISYS agents and
include coverage for property for which BISYS is legally liable.
26. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Each party
represents that it is free to enter into 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.
(a) BISYS further represents, warrants and covenants that:
(1) it has full power and authority under applicable law, and
has taken all action necessary, to enter into and perform
this Agreement;
(2) with respect to the provision of the Services, it is not,
nor will be, a "fiduciary" of any Plan, as such term is
defined in Section 3(21) of ERISA and Section 4975 of the
Code;
(3) its receipt of the Fees described in Section 21 of this
Agreement will not constitute a non-exempt "prohibited
transaction," as such term is defined in Section 406 of
ERISA and Section 4975 of the Code;
(4) it has and shall maintain policies and procedures to ensure
that the Services are performed in compliance with the terms
of the Plan documents and with the requirements of ERISA,
the Code and all applicable law;
(5) it has and shall maintain personnel policies and procedures
to ensure that its services and obligations are performed in
compliance with this Agreement;
(6) it is not required to be registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended ("1934
Act"), and any applicable state securities laws, including
as a result of entering into, and performing the Services
set forth in, this Agreement;
(7) it has and shall continue to have (or have access to) the
necessary facilities, equipment, software, licenses,
consents, third-party administration licenses, and personnel
(including, but not limited to, the computer or other
systems capabilities necessary to interface with other Plan
service providers and with the Investment Options) to
perform its duties and obligations under this Agreement;
17
(8) it will provide prior notice to Prudential before entering
into any material new retirement plan servicing arrangements
or terminating any material retirement plan servicing
arrangement currently in effect, and will promptly notify
Prudential of any such change effected by a third party;
(9) to its knowledge, no retirement plan for which it provides
services, or to which it provided services during the past
three (3) years from the date of this Agreement, other than
the plans generally described by BISYS in a notice to
Prudential given prior to August 31, 1998, is or was subject
to an Examination;
(10) as of June 30, 1998, BISYS provided services comparable to
the Services to approximately seven thousand (7,000) plans
qualified under Section 401(k) of the Code;
(11) all transition team and account executive members of the
Service Team in Schedule D shall be dedicated exclusively to
the provision of services under this Agreement, unless
otherwise agreed to by Prudential;
(12) the Services and, to its knowledge, the Software and
Hardware will not infringe upon or violate any copyright,
patent, trade secret or other property right of any third
party;
(13) the Services performed shall in all respects comply with the
standards set forth in Schedule E;
(14) the Services shall be provided in strict conformance within
the time frames and response times for the standards set
forth in Schedule E;
(15) each of BISYS's employees, agents and permitted
subcontractors assigned to perform any Services hereunder,
including the training and/or maintenance Services, shall
have the proper skill, training, and background to perform
such Services and that such Services will be performed in a
competent and professional manner;
(16) BISYS has not paid or caused to be paid and shall not pay or
cause to be paid, directly or indirectly, any wages,
compensation, gifts or gratuities to any employee or agent
of Prudential or to any government agent, official, or
employee for the purpose of influencing any decisions with
respect to the making of this Agreement, or in connection
with any Services contemplated hereby;
18
(17) BISYS represents and warrants that its processing sites have
and shall maintain without cost to Prudential sufficient
capacity, including prudent excess capacity, to accommodate
no later than the Effective Date the Plans and New Plan
Business described in Section 4 of this Agreement; and
(18) to its knowledge, any software or other materials delivered
to Prudential do not contain any virus or any other
contaminant, or disabling devices including, but not limited
to, codes, commands or instructions that may have the effect
or be used to access, alter, delete, impede damage and/or
disable the Services, other software, Prudential information
or other Prudential property, in a manner other than in
accordance with the specifications set forth in Schedule R
attached hereto.
(b) Prudential further represents, warrants and covenants that it has
full power and authority under applicable law, and has taken all
action necessary, to enter into and perform this Agreement.
27. SECURITY REGULATIONS.
(a) BISYS and its employees and agents shall implement and maintain
security regulations consistent with the highest industry
standards as are reasonably necessary for BISYS to perform its
obligations under this Agreement.
(b) BISYS shall exercise due care and diligence in the selection and
training of its employees who shall perform Services.
(a) BISYS shall establish and maintain facilities and written
procedures for the safekeeping of policy forms, check forms and
facsimile signature imprinting devices, if any, and all other
data, documents, reports, records, books, files, and other
materials relative to this Agreement. BISYS shall review and
update such written procedures at least annually. Prudential
shall have the right to review and approve such procedures, such
approval not to be unreasonably withheld.
(d) It is expressly understood and agreed that all data, documents,
reports, records, books, files and other materials relative to
this Agreement shall be the sole property of Prudential and that
such property shall be held by BISYS, during the effective terms
of this Agreement, and shall be furnished, without additional
charge to Prudential in a form agreed upon by Prudential and
BISYS, upon the expiration or termination of this Agreement for
any reason whatsoever or at any time at Prudential's request.
BISYS further acknowledges and agrees that BISYS shall not
19
possess any interest, title, lien or right to any such Prudential
data, documents, reports, records, books, files or other
materials relative to this Agreement.
(e) Prudential shall, from time to time, provide BISYS with current
forms of policies, applications, and prospectuses for each
Investment Option, as applicable, names and states of license of
all insurance and/or broker-dealer agents and representatives
authorized to see Prudential's customers' policies.
28. SUBCONTRACTING.
(a) BISYS shall not subcontract any material work or Services under
this Agreement without the prior approval of Prudential. If
BISYS does subcontract work, the limited right granted hereunder
to BISYS to subcontract the tasks specified herein is expressly
conditioned upon BISYS's enforcement and protection of the rights
of Prudential pursuant to this Agreement. If any agent or
subcontractor fails to abide by such agreement, BISYS shall
enforce the Agreement to Prudential's reasonable satisfaction.
(b) BISYS shall remain responsible for the performance of all agents
and subcontractors.
(c) BISYS shall include a provision in all of its agreements with
subcontractors stating that such subcontractors shall look to
BISYS for payment and shall under no circumstances look to any
other party, including Prudential, for payment. BISYS agrees to
defend, indemnify and hold Prudential liable for any loss,
damages, costs, expenses (including attorneys' fees) incurred due
to any claims by or against subcontractor regarding breach of the
provisions of the Agreement, including, but not limited to, the
provisions regarding subcontractor looking only to BISYS for
payment for Services which may be rendered.
29. EEO REQUIREMENTS. The following clauses shall apply if required by
applicable law with respect to the performance of this Agreement and
if this Agreement is not otherwise exempt under federal law or
applicable regulations:
(a) BISYS represents that it is an equal opportunity employer, as
described in Section 202 of Executive Order 11246, dated
September 24, 1976, as amended, and, as such, agrees to comply
with the provisions of said Executive Order and its implementing
regulations during the performance of this Agreement; and
20
(b) BISYS agrees to comply with the affirmative action requirements
of Part 60-741.4 Title 41, Code of Federal Regulations, with
respect to handicapped workers during the performance of this
Agreement; and
(c) BISYS agrees to comply with the affirmative action requirements
of Part 60-240.4, Title 41, Code of Federal Regulations, with
respect to Disabled Veterans and Veterans of the Vietnam Era
during the performance of this Agreement; and
(d) BISYS agrees to comply with the provisions of Executive Order
11625 and its implementing regulations with respect to the
utilization of minority business enterprises during the
performance of this Agreement.
30. INDEMNIFICATION.
(a) BISYS, as indemnitor, agrees to indemnify and hold harmless
Prudential and each of its affiliates, subsidiaries, directors,
officers, employees, agents and each person, if any, who controls
them within the meaning of the Securities Act of 1933, as amended
("Securities Act"), against any losses, claims, damages,
liabilities or expenses (including attorneys' fees) to which an
indemnitee may become subject insofar as those losses, claims,
damages, liabilities or expenses or actions in respect thereof,
arise directly out of or are based upon (i) BISYS's negligence,
reckless disregard or willful misconduct in performing the
Services, (ii) any breach by BISYS of any material provision of
this Agreement, (iii) any material breach by BISYS of a
representation, warranty or covenant made in this Agreement, or
(iv) any personal injury or property damage resulting from the
performance of BISYS's obligations under this Agreement or the
fault or negligence of BISYS's directors, officers, employees or
agents. BISYS 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 indemnity agreement will be in addition to any
liability which BISYS may otherwise have.
(b) Prudential, as indemnitor, agrees to indemnify and hold harmless
BISYS and each of its affiliates, subsidiaries, directors,
officers, employees, agents and each person, if any, who controls
BISYS within the meaning of the Securities Act against any
losses, claims, damages, liabilities or expenses (including
attorneys' fees) to which an indemnitee may become subject
insofar as such losses, claims, damages, liabilities or expenses
(or actions in respect thereof) arise directly out of or are
based upon (i) any breach by Prudential of any material provision
of this Agreement, (ii) negligence, reckless disregard or willful
misconduct by Prudential in carrying out its duties and
responsibilities under this Agreement, or (iii) any material
breach by Prudential of a representation, warranty or
21
covenant made in this Agreement. Prudential will reimburse the
indemnitees for any legal or other expenses reasonably incurred,
as incurred, by them in connection with investigating or
defending any such material loss, claim or action. This
indemnity agreement will be in addition to any liability which
Prudential may otherwise have.
(c) Promptly after receipt by an indemnitee under this Section 30 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 of the action in
accordance with the provisions of Section 32 of this Agreement
within seven (7) days after the summons or other first legal
process shall have been served, unless within such seven (7) days
the indemnitor shall have been served in the same action, in
which case such notification may be given within sixty (60) days
provided that the omission so to notify the indemnitor will not
relieve it from any liability that it may have to any indemnitee
under this Section 30 except to the extent that the indemnitor
has been prejudiced in any material respect by such failure. The
omission so to notify the indemnitor will not relieve it from any
liability that it may have to any indemnitee otherwise than under
this Section 30. If any such action is brought against any
indemnitee and it notifies the indemnitor of the commencement of
the action, the indemnitor will be entitled to assume the defense
of the action with counsel reasonably satisfactory to the
indemnitee, and the defendant or defendants in such action
entitled to indemnification under this Agreement will have the
right to participate in the defense or preparation of the defense
of any such action. If the indemnitor elects to assume the
defense of any such action, and to retain counsel of good
standing, the defendant or defendants in such action will bear
the fees and expenses of any additional counsel retained by any
of them; but if the indemnitor does not assume the defense of any
such action, the indemnitor will reimburse the indemnitee(s)
named a defendant or 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 will 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 regarding the action, 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.
(d) IN NO EVENT SHALL EITHER PARTY UNDER THIS AGREEMENT BE LIABLE TO
THE OTHER PARTY UNDER ANY PROVISION OF THIS AGREEMENT FOR ANY
SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, AND IN NO
EVENT SHALL EITHER PARTY'S LIABILITY FOR
22
DIRECT DAMAGES EXCEED THE GREATER OF ONE MILLION DOLLARS
($1,000,000.00) OR THE FEES RECEIVED BY BISYS PURSUANT TO THIS
AGREEMENT DURING THE PRECEDING CALENDAR YEAR. NOTWITHSTANDING
ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, THE
LIMITATIONS ON LIABILITY AND REMEDIES CONTAINED IN THIS SECTION
SHALL NOT APPLY TO LIABILITY ARISING OUT OF OR BASED UPON THE
PARTY'S GROSS NEGLIGENCE, RECKLESS DISREGARD OR WILLFUL
MISCONDUCT.
31. TERM AND TERMINATION. Subject to Prudential's right to terminate this
Agreement in accordance with the provisions of Sections 5, 6, 7(a),
7(b), 8, 9, 16(b) and 17(b) of this Agreement, which shall be without
penalty to Prudential or further obligation of Prudential under
Section 3 of this Agreement, and subject also to Prudential's right to
terminate this Agreement in accordance with the provisions of Section
3 of this Agreement:
(a) The initial term of this Agreement shall be two (2) years from
the Effective Date and shall automatically be extended for
successive two (2)-year terms unless, at least one hundred and
eighty (180) days prior to the end of such initial or subsequent
term, BISYS gives Prudential notice that such term shall not be
extended.
(b) If BISYS shall fail to provide the Services in material
compliance with its obligations under this Agreement, which with
respect to the Services described in Schedule E of this Agreement
shall mean compliance with the standards set forth in Schedule E,
Prudential may give notice of such failure, and if, within thirty
(30) days after such notice, BISYS has not cured such failure,
Prudential may, without penalty or further obligation under
Section 3 of this Agreement, cease to provide additional Plans
for servicing by BISYS.
(c) If BISYS shall fail to provide the Services in material
compliance with its obligations under this Agreement, which with
respect to the Services described in Schedule E of this Agreement
shall mean compliance with the standards set forth in Schedule E,
Prudential may give notice of such failure, and if, within ninety
(90) days after such notice, BISYS has not cured such failure,
Prudential may, without penalty or further obligation under
Section 3 of this Agreement, request that BISYS transfer, to
Prudential or other service provider specified by Prudential,
responsibility for servicing such Plan(s) as Prudential shall
designate. Any such transfer of Plan servicing to Prudential or
another service provider shall be timely implemented at the
highest industry standards, including but not limited to the
standards set forth in Schedules E and Q attached hereto, at no
charge
23
to Prudential or the affected Employer(s) or Plan(s). BISYS's
failure to satisfy the requirements of this Section 31(c) shall
be deemed harmful to Prudential's interests and shall result in
BISYS's obligation to pay Prudential the amount of One Thousand
Dollars ($1,000.00) for each Plan not properly or timely
transferred due to BISYS's (or its agents' or subcontractors')
actions or inaction. Prudential shall determine whether BISYS
has met its transfer obligations under this Section 31(c) by
applying the standards set forth in Schedules E and Q.
(d) Upon one hundred and eighty (180) days prior notice to BISYS and
effective on a date after the initial term of this Agreement
("Transfer Date"), Prudential may request that BISYS transfer
over the two (2) years following the Transfer Date, to Prudential
or other service provider specified by Prudential, responsibility
for servicing such Plan(s) as Prudential shall designate;
provided, however, that BISYS shall not be obligated to transfer
during the initial twelve (12)-month period following the
Transfer Date more than one-half (1/2) of the Plans for which
BISYS is providing Services on the Transfer Date. Any such
transfer of Plan servicing to Prudential or another service
provider shall be timely implemented at the highest industry
standards as set forth in Schedules E and Q, at no charge to
Prudential or the affected Employer(s) or Plan(s). Prudential
shall pay to BISYS, within thirty (30) days after the close of
each month during which Plans are transferred, an amount equal to
Twenty-Five Hundred Dollars ($2,500) times the number of Plans
successfully transferred during such month. The foregoing
provisions of this Section 31(d) notwithstanding, after the
initial term of this Agreement, Prudential may, during any twelve
(12)-month period, upon ninety (90) days prior notice to BISYS,
request that BISYS transfer to Prudential or other service
provider specified by Prudential, responsibility for servicing up
to five percent (5%) of the then-serviced Plans and, subject to
approval by BISYS, up to five percent (5%) of the number of
then-serviced Plans in excess of one thousand (1,000), without
obligation for payment under this Section 31(d).
(e) Upon one hundred and eighty (180) days prior notice to Prudential
and effective after the initial term of this Agreement, BISYS may
terminate its obligation to accept additional Plans.
32. NOTICE. Each notice required by this Agreement must be 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):
24
If to Prudential, to: *
Xxxxx X. Xxxxx, Vice President, Defined
Contribution Services
Prudential Investments
00 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
* with a copy to:
Xxxxx X. Xxxxx, Esq., Chief Legal Officer
Prudential Investments, Retirement Services
000 Xxxxxxxx Xxxxxx, Xxxxxxx Center 0,
00xx Xxxxx
Xxxxxx, XX 00000
If to BISYS, to: *
Xx Xxxxxxx, President
BISYS Plan Services, L.P.
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
* with a copy to:
The BISYS Group, Inc.
000 Xxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Attention: General Counsel
33. COMPLETE AGREEMENT. This Agreement contains the full and complete
understanding of Prudential and BISYS and supersedes all prior
representations, promises, statements, arrangements, agreements,
warranties and understandings between Prudential and BISYS with
respect to the subject matter of this Agreement, whether oral or
written, express or implied.
34. MODIFICATION AND APPROVAL. This Agreement may be modified or
amended, the terms of this Agreement may be waived, and any
agreement of Prudential and BISYS, or the approval or consent of
either of them, required herein may be made, only by writing signed
by such party. Any approval or consent required in this Agreement
shall not be unreasonably withheld or delayed.
35. GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New Jersey applicable to
agreements fully executed and to be performed therein, without
reference to choice of law
25
principles. Any suit, action or proceeding arising out of or
relating to this Agreement shall be brought in a New Jersey court,
and BISYS hereby consents to the exclusive jurisdiction of the
courts of New Jersey.
36. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same Agreement.
37. ASSIGNMENT. This Agreement cannot be assigned by either party
hereto, without the prior written consent of the other parties
hereto, except that a party may assign this Agreement to an
affiliate having the same ultimate ownership as the assigning party
without such consent.
38. SURVIVAL. The provisions of Sections 11, 14, 15, 23, 24, and 30
will survive termination of this Agreement.
39. NON-EXCLUSIVITY. Each of the parties acknowledges and agrees that
this Agreement and the arrangement it describes 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,
subject to the other provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the day and year written above.
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By:
------------------------------
Xxxx X. Xxxxxxx
Its: Senior Vice President
BISYS PLAN SERVICES, L.P.
By:
------------------------------
Xx Xxxxxxx
Its: President
26
SCHEDULE A TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
Schedule A-1 attached hereto is the form of Prudential's Administrative Services
Agreement for new, full-service Plans. Schedule A-2 attached hereto is the form
of Prudential's Administrative Services Agreement for TPA Alliance Programs.
A-1
SCHEDULE A-1 TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
PRUDENTIAL INSURANCE COMPANY OF AMERICA
ADMINISTRATIVE SERVICES AGREEMENT
This AGREEMENT is made and entered into by and between _______________
("Employer") on behalf of the __________________ (the "Plan"), and The
Prudential Insurance Company of America ("Prudential"), a New Jersey mutual life
insurance company on this _______ day of _______, 199__ .
The Employer represents and Prudential acknowledges that:
- The Plan is or will be in existence at the time funds are deposited
with Prudential;
- The Plan is intended to qualify under Section 401(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), and a related Trust
(the "Trust") exists which is intended to be qualified under Section
501(a) of the Code, and
- The Employer, as Plan Administrator, desires Prudential to perform
certain administrative services for the Plan and to provide certain
assistance to the Employer as more fully described in this Agreement,
and Prudential is willing to perform those services .
In consideration of the premises and mutual covenants contained in this
Agreement, the Employer and Prudential agree as follows:
1. SERVICES.
a. SERVICES TO BE RENDERED BY PRUDENTIAL. Prudential will perform the
following services:
i. PLAN RECORDKEEPING. Prudential will provide to the Plan the
record- keeping services included in Exhibit A to this
Agreement.
ii. PLAN DOCUMENTATION AND DISCLOSURE SERVICES. Prudential will
provide Plan services support to the Plan as described in
Exhibit B to this Agreement.
iii. PLAN TESTING. Prudential will provide Plan testing as included
in Exhibit C to this Agreement.
iv. ADDITIONAL SERVICES. In addition to the foregoing services,
Prudential may provide such other services, and be paid such
amounts therefor, as may from time to time be agreed upon in
writing by the parties.
A-2
b. NATURE OF SERVICES.
i. RECORDKEEPING ONLY. The Employer understands and agrees that
Prudential's sole function under this Agreement is to act as
recordkeeper and to provide other services at the direction of
the Employer or its agents or designee in accordance with the
terms of this Agreement. Under the terms of this Agreement,
Prudential does not render investment advice, is not the Plan
Administrator, trustee or a Plan fiduciary, as that term is
defined under the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and does not provide legal, tax or
accounting advice with respect to the creation, adoption or
operation of the Plan and the Trust.
ii. DISCONTINUANCE OF SERVICES INCONSISTENT WITH ROLE. If, based
on changes in the applicable regulatory structure or the
interpretation of the regulatory structure, there is a
reasonable likelihood that any service being, or to be,
provided under this Agreement by Prudential could constitute a
discretionary function and thereby subject Prudential to
classification as a "fiduciary" under ERISA with respect to the
Plan, and such service could not be restructured in a manner
that would not subject Prudential to classification as a
"fiduciary" under ERISA, then Prudential, upon reasonable
notice to the Employer may decline to thereafter provide that
service. The failure to provide any such service shall not
constitute a breach of Prudential's obligations under this
Agreement.
c. RELIANCE UPON PLAN DATA. All services provided by Prudential
hereunder shall be based on information supplied by the Employer or
any other designee or agent of the Employer (as designated by the
Employer). The Employer acknowledges that the timely provisions of
accurate, consistent and complete data in the format specified by
Prudential is essential to its delivery of services, and the Employer
is responsible for ensuring such timely and accurate data is delivered
to Prudential in Prudential's approved format. For these purposes,
"Plan Data" means all data and records supplied to Prudential,
obtained by Prudential or produced by Prudential (based on data or
records supplied to, or obtained by, Prudential) in connection with
performing the services pursuant to this Agreement. Plan Data
includes current participant names, addresses and status.
d. RELIANCE UPON NAMED ADMINISTRATORS AND TRUSTEES. Employer will
provide names and other information for persons authorized to take
actions for or provide information on behalf of the Plan and Trust.
Until notified of a change, Prudential may reasonably rely upon this
information and may act upon instructions received from and/or on
information provided by these named persons. Prudential has the right
to assume that those persons continue to be authorized unless notified
otherwise.
A-3
2. COMPENSATION. In consideration for its services provided hereunder, the
Employer shall pay Prudential in accordance with the Fee Schedule provided
at Exhibit D. Prudential may amend the schedule for services not yet
rendered upon giving notice in writing under the same conditions specified
in Section 7.b. The Employer shall pay all fees within thirty (30) days of
the Prudential invoice date. Any fees not paid when due may be deducted by
Prudential from the trust fund, without prior notice to the Employer. The
Employer shall pay any and all costs that may be incurred by Prudential in
charging the trust fund for these fees. The Employer also agrees that it
shall empower the Trustee to pay compensation to Prudential for services
provided hereunder.
3. INVESTMENTS; GOOD ORDER.
a. INVESTMENTS--GENERALLY. Prudential will invest all assets of the
Trust only as directed in writing or via any authorized phone or
Internet transaction, if applicable:
i. By Participants - to the extent the Plan Adoption Agreement
provides for investment direction by Participants.
ii. By the Employer - to the extent the Plan Adoption Agreement
provides for investment direction by the Employer.
b. UNCLEAR INVESTMENT INSTRUCTIONS; GOOD ORDER.
i. UNCLEAR INVESTMENT INSTRUCTIONS. Prudential will forward
contributions for investment into a short-term interest-bearing
investment contribution account if Prudential determines that
no proper investment directions are in effect. Once proper
instructions are received, Prudential will forward the new
instructions so that contributions can be re-invested and
related earnings can be allocated accordingly.
ii. GOOD ORDER.
a) CONTRIBUTIONS. Prudential will use its best efforts to
process all contributions received in good order on the day
good order is achieved, PROVIDED, HOWEVER, that Prudential
reserves the right to process all contributions received in
good order at Prudential within seventy-two (72) hours of
receipt. Contributions are in "good order" when the
contribution roster remitted by the Employer agrees with the
contribution funding, and when the social security number
and money type correspond to social security numbers and
money types of participants previously enrolled on
Prudential's recordkeeping system.
In the event contribution data is NOT IN GOOD ORDER,
Prudential shall attempt to obtain clarification from the
Employer as to the proper
A-4
contribution amount and/or funding allocations. The
Employer acknowledges and directs that contributions will be
deposited in an interest or non-interest bearing account (at
Prudential's discretion) until such time as the roster,
contribution amount, and funding allocation are reconciled.
In the event Prudential is unable, in its sole judgment, to
obtain such clarification within thirty (30) days of receipt
of contribution amounts, then Prudential shall return all
such contribution amounts to the Employer's Temporary
Trustee. The Employer hereby agrees that the Employer or
other Employer designated person(s) authorized to take
actions for the Plan and the Trust will constitute the
Temporary Trustee, serving under the terms of the Trust
indenture then in effect, for the limited purposes of
receiving contributions returned as not in good order and
holding them as Plan trustee pending further instructions
from the Employer. Employer understands and agrees that it
shall not have any claim against Prudential or any affiliate
of Prudential in the event that Prudential returns
contribution amounts pursuant to the provision of this
paragraph. Employer further understands and agrees that the
Plan and the Employer will bear the investment risk during
this period.
b) DISTRIBUTIONS. Prudential will process all distribution
requests received in good order at Prudential within three
(3) business days of receipt of said distribution request by
Prudential. Distribution checks will be issued within seven
(7) days of receipt of good order. Distributions are in
"good order" when the distribution request contains all
pertinent information (including type and form of
distribution, any critical dates needed to process the
distribution and, if applicable, all necessary rollover
instructions) and appropriate signatures (including spousal
consent to the extent deemed necessary by the Employer).
c. Employer acknowledges that it:
i. Received a prospectus of each of the Prudential Mutual Funds
and any other mutual funds offered by Prudential in which Plan
participants may invest.
ii. Reviewed such prospectus(es) and is familiar with the fees and
expenses described therein, and that such fees and expenses are
reasonable.
iii. Understands that any Contingent Deferred Sales Charge that may
be due as a result of a sale by the Trust of shares of
Prudential mutual funds and other investment products offered
by Prudential or its affiliates concurrent with or following
the termination of this Agreement, shall not be waived.
A-5
d. FEES TO PRUDENTIAL AFFILIATES. Employer acknowledges that Prudential
may be deemed to benefit from:
i. Advisory and other fees paid to its affiliates for managing,
selling, or settling of the Prudential mutual funds and other
investment products offered by Prudential or its affiliates
selected as investment options available under that Plan; and
ii. Contingent Deferred Sales Charges imposed in certain instances
on shares of funds, as described in the applicable fund
prospectuses.
Employer also acknowledges that Prudential benefits directly from:
iii. Transfer agent fees paid to it by the Prudential mutual funds
and other investment products offered by Prudential or its
affiliates; and
iv. Fees paid to Prudential in connection with the Guaranteed
Interest Account.
e. INVESTMENT OF FORFEITURE ACCOUNT. Employer agrees that all amounts
maintained as forfeitures will be moved into a fund or account that
Employer and Prudential agree in writing is appropriate to hold
forfeitures pending their reallocation under the terms of the Plan.
4. USE OF AGENTS OR SUBCONTRACTORS. Prudential may perform any of the services
described in this Agreement through agents and subcontractors selected by
Prudential. Prudential specifically selected BISYS Plan Services, L.P. to
provide certain recordkeeping and administrative services under this
agreement to the Plan. Prudential shall adequately supervise any such
agent or subcontractor and the retention of agents or subcontractors shall
not relieve Prudential of its duties hereunder.
5. PRUDENTIAL NOT LEGAL COUNSEL. Employer understands and agrees that it
shall review with its legal and/or tax counsel all documents provided to it
by Prudential and that Employer should consult such counsel on any
questions concerning Employer's responsibilities under this Agreement, the
Plan's documents, and the legal sufficiency of any documents so provided.
Employer understands that neither Prudential nor any of its affiliates are
permitted to provide Employer with legal or tax advice or otherwise engage
in the practice of law. Employer acknowledges that it will not rely on any
information provided as if it were legal or tax advice.
A-6
6. INDEMNIFICATION.
a. INDEMNIFICATION OF PRUDENTIAL. The Employer shall hold harmless and
indemnify Prudential and its employees, agents, and subcontractors
("Indemnitees") from and against any loss, damage, liability, claims,
costs and expenses, including reasonable attorneys' fees
("Liabilities"), to which the Indemnitees may become subject, which
result from:
i. Any misrepresentation or nonfulfillment of any terms of this
Agreement by the Plan, the Employer, the Plan Administrator or
other Plan fiduciary (including, but not limited to,
Liabilities resulting from the provision of inaccurate,
untimely, or incomplete information to Prudential or the
failure to provide Prudential with clear instructions as to
matters relating to contributions, investment selections, or
distributions).
ii. Any failure by the Plan, the Employer, the Plan Administrator
or other Plan fiduciary to comply with the terms of the Plan,
iii. A violation by the Plan, the Employer, the Plan Administrator
or other Plan fiduciary of the requirements of applicable
Federal and/or state laws,
iv. The making by Prudential of any benefit payment based upon
instructions that Prudential reasonably believes to be
authorized, and
v. Any action, conduct or activity, including the failure to take
action or to perform any activity taken by Prudential at the
direction of the Employer, Plan Administrator or Trustee,
provided that Prudential reasonably believes the direction to
be valid and is not negligent in the execution of such
directions.
b. INDEMNIFICATION OF EMPLOYER. Prudential shall hold harmless and
indemnify the Employer from and against any loss, damage, liability,
claims, costs and expenses, including reasonable attorneys' fees, to
which the Employer may become subject, which result from:
i. Any misrepresentation or nonfulfillment of any terms of this
Agreement by Prudential, and
ii. Prudential's violation of the requirements of applicable
Federal and/or state laws, except when resulting from the
failure to take action or any action taken at the direction of
the Employer, the Employer's agent or designee, or Trustee,
provided that Prudential reasonably believes the direction to
be valid and is not negligent in the execution of such
directions.
A-7
7. DURATION; TERMINATION; SUCCESSOR RECORDKEEPER.
a. DURATION. This Agreement will continue in effect until terminated.
b. TERMINATION. Each party may terminate this Agreement upon sixty (60)
days prior written notice to the other. Such notice shall be deemed
to have been given three (3) days after mailing in the U.S. mail or
immediately upon receipt if delivered to the address set forth below.
The notice period may be waived by the party entitled to the notice.
c. SUCCESSOR RECORDKEEPER. Upon termination, the parties agree that
Prudential shall have no further duty or responsibility to the Plan
under this Agreement. However, Prudential will use reasonable efforts
to transfer all relevant non-Prudential proprietary information
concerning the Plan, in Prudential's standard format, to the Employer
or to a successor recordkeeper. Any unforeseeable costs or expenses
incurred by Prudential in effecting this transfer shall be paid by the
Employer unless waived in writing by Prudential. Employer agrees that
Prudential may charge reasonable fees for the provision of requested
records or reports that Prudential previously provided.
d. SURVIVAL OF INDEMNIFICATION AND INVESTMENTS. The Employer acknowledges
and agrees that the indemnification provisions of paragraph 6 shall
survive the termination of this Agreement. The Employer understands
and acknowledges that the termination of this Agreement shall not
require the sale by the Trust of shares of Prudential mutual funds
held by the Trust (unless specifically requested by Prudential in
writing).
8. NOTICES. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when
so delivered personally, telegraphed or telexed or, if sent by facsimile
transmission, upon the recipient's oral verification by telephone of
receipt or, if mailed, three (3) days after the date of deposit in the U.S.
mail, as follows:
If to BISYS on behalf of Prudential: (By other than U.S. mail)
(By U.S. mail)
The Prudential Insurance Company of The Prudential Insurance Company of
America America
c/o BISYS Plan Services, L.P. c/o BISYS Plan Services, L.P.
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
A-8
If to the Employer:
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
9. ENTIRE AGREEMENT; AMENDMENT. This Agreement, including the Exhibits
hereto, contains the entire Agreement among the parties hereto with respect
to the subject matter hereof, and there are no other Agreements written or
oral, relating to the subject matter hereof other than those explicitly set
forth herein or attached hereto. This Agreement may be amended at any
time, but only when agreed to in writing by the parties.
10. CONSTRUCTION. This Agreement is the result of negotiation by both parties,
and, therefore, no claim shall be made to construe any portion of the
Agreement against either party on the basis of such party's participation
in the negotiating thereof.
11. BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns and legal representatives. Neither this Agreement, nor any right
hereunder, may be assigned by any party without the written consent of the
other parties hereto.
12. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and delivered, shall
be an original, but all such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all of the
parties hereto.
13. HEADINGS. The headings in this Agreement are for reference only, and shall
not affect the interpretation of this Agreement.
14. SEVERABILITY. If any word, phrase, sentence, paragraph, provision or
section of this Agreement shall be held, declared, pronounced or rendered
invalid, void, unenforceable or inoperative for any reason by any court of
competent jurisdiction, governmental authority, statute or otherwise, such
holding, declaration, pronouncement or rendering shall not adversely affect
any other word, phrase, sentence, paragraph, provision or section of this
Agreement, which shall otherwise remain in full force and effect and be
enforced in accordance with its terms.
A-9
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of New Jersey applicable to agreements made and to
be performed entirely within such State.
15. THIRD PARTY BENEFICIARIES. The provisions of this Agreement are solely for
the benefit of the parties hereto and their Affiliates and are not intended
to confer upon any person except the parties hereto any rights or remedies
herein.
17. UNFORESEEN CIRCUMSTANCES. Prudential shall not be liable for any default
or delay in the performance of its services under this Agreement if and to
the extent such default or delay is primarily caused, directly or
indirectly, by
a. fire, flood, elements of nature or other acts of God;
b. any outbreak or escalation of hostilities, war, riots or civil
disorders in any country;
c. any act or omission of the other party or any governmental authority;
or
d. nonperformance of a third party or any similar cause beyond the
reasonable control of Prudential, including without limitation,
failures or fluctuations in telecommunications or other equipment.
In any such event, Prudential shall be excused from any further performance
and observance of the obligations so affected only for as long as such
circumstances prevail and Prudential continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
18. WRITING AND SIGNATURE. Unless otherwise explicitly required by law,
a. Any requirement for a writing under this Agreement may be rendered in
any form that can reliably reproduce an accurate physical record of
the communication and authenticate the source, including but not
limited to facsimile transmission, electronic mail, indexed telephone
recording, or Internet transmission.
b. Any requirement of a signature under this Agreement may be rendered in
any form clearly indicated by the signatory to be a signature or which
complies with instructions directly given to the signatory as to the
proper form of indicating a signature in an electronic or voice
response environment. Appropriate forms include, but are not limited
to, personal identification numbers rendered over the Internet,
facsimile transmissions, and unique telephone keypad combinations
pressed during recorded calls.
Notwithstanding a. or b., above, the recipient of any writing or signature
under this Agreement may require the confirmation of any writing or
signature in physical form (such as hand or typewritten or the equivalent)
with a manual signature.
A-10
IN WITNESS THEREOF, the Employer has caused this Agreement to be executed by its
duly authorized representative.
Date Signed:
----------------------------------
Date Agreement Effective:
----------------------------------
First period or year for
which records are to be
compiled and reports to be
generated (start/end): ----------------------------------
Employer Authorized By: Prudential Authorized By:
----------------------------------- -----------------------------------
Name Name
----------------------------------- -----------------------------------
Authorized Signature Authorized Signature
----------------------------------- -----------------------------------
Title Title
This Agreement is not effective until properly countersigned by an authorized
representative of Prudential.
A-11
EXHIBIT A
Administration and Recordkeeping Services
Prudential will provide the following administrative services under this
Agreement:
1. TRANSITION SERVICES:
a. TRANSFER OF EXISTING RECORDS - Prudential will use the data supplied
by the Employer and its current recordkeeper to transfer all existing
participant records from the current recordkeeping system to the
Prudential system, if applicable. Prudential will rely on the data
received and will not be responsible for omissions or incorrect data
supplied by the Employer or the current recordkeeper. Prudential will
establish recordkeeping accounts in the investments selected by the
Employer. If the data is not in an electronic format acceptable to
Prudential, additional fees may apply, as more fully described in
Exhibit D.
b. REVIEW PROTOTYPE AND PRIOR DOCUMENT - Prudential will prepare for
Employer review and execution the prototype documents. If applicable,
any prior plan documents shall be reviewed for consistency with the
administrative requirements of Prudential's systems and will provide a
suggestion of benefits, rights, or features that may require
preservation.
c. ENROLLMENT AND COMMUNICATIONS - Prudential will provide a welcome
package and its standard enrollment kit with standard forms and
notices necessary to implement the Plan's administration. Prudential
will process all enrollment agreements received and report to the
Employer when contributions may commence.
d. IRS DETERMINATION LETTER - If the Plan uses an Adoption Agreement not
covered by Prudential's opinion letter (such as a Non-Standardized
Adoption Agreement or certain Standard Adoption Agreements),
Prudential urges the Employer to submit the Plan to the IRS for a
determination that the Plan is qualified in form. Prudential will
provide basic plan information, such as participant counts, to support
a determination letter request at no additional charge. Prudential
does not represent clients before the IRS but will prepare Form 5307
subject to the payment of fees as indicated in Exhibit D.
2. PLAN RECORDKEEPING:
a. PARTICIPANT ACCOUNTS: Prudential will establish a participant account
for each Plan participant for whom it receives records. Prudential is
not responsible for determining if such Plan participants are eligible
under the terms of the Plan.
b. PARTICIPANT FILES: Prudential maintains files for all participants
for whom participant accounts have been established. These files
include enrollment forms,
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-12
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
beneficiary designation forms (to the extent provided to Prudential)
and all other written correspondence and documents concerning each
participant's account.
c. CONTRIBUTION PROCESSING: Prudential processes the investment of Plan
contributions when the information is supplied in good order.
Prudential deposits those contributions into the investments provided
for under the Pan, in accordance with the allocation instructions
received from the Employer or Plan participants (if the Plan provides
that participants may direct the investment of contributions made on
their behalf). Prudential will supply automated contribution software
free of charge to Employers who request it. This software should
enable contributions to be processed more efficiently and will help
the Employer avoid Data Submission charges described in Exhibit D.
d. TRANSFERS BETWEEN INVESTMENT OPTIONS: In accordance with the requests
of Plan participants or other authorized representative of the
Employer, Prudential processes transfers of amounts held in
participant accounts among the investment options provided for under
the Plan.
e. DISTRIBUTION PROCESSING: Prudential will process requests for payment
to participants, beneficiaries and alternate payees as permitted by
the Adoption Agreement and upon being notified by the Employer that
the payee has met the necessary standards for withdrawals. Prudential
will provide the Employer (or other individual at the direction of the
Employer) with the funds and the prescribed IRS tax notice to payees.
Prudential will provide the appropriate Form 1099R following the end
of the year in which the distribution occurred.
f. LOAN PROCESSING: To the extent loans are permitted under the Plan,
Prudential will provide a package of standard loan documentation such
as loan policies and notes (for review by Employer's legal counsel)
and will:
i. Disburse loan proceeds upon the Employer's approval; and
ii. Provide for systematic crediting of loan repayments and
re-investment in appropriate funds. Loan repayments will be
made via payroll deduction.
g. ALLOCATE EARNINGS/LOSSES - Prudential will adjust participant accounts
daily for investment performance for those investment options that
price daily; for all other investments, participant accounts will be
periodically adjusted, depending on the investment.
h. QUALIFIED DOMESTIC RELATIONS ORDERS - Upon certification by the
Employer that a domestic relations order is a Qualified Domestic
Relations Order, Prudential will establish a separate participant
record for the alternate payee.
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-13
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
3. REPORTS:
a. PERIODIC REPORTS - Prudential will provide Plan-level reports
utilizing the information maintained on its recordkeeping system.
Reports will summarize all transactions that occurred for each
participant within the specified time period. Plan level reports are
normally generated on a quarterly basis.
b. FINANCIAL STATEMENTS - Prudential will provide Plan level information
on each available investment option for the purpose of trust
reporting.
c. 5500 REPORTING - Prudential will supply key information from its
recordkeeping system necessary for the Employer to complete Form 5500,
to be filed annually. This report will not include information or
values from non-Prudential sources. If the Employer requests,
Prudential, with the assistance of the Employer or other service
providers, will complete a signature ready Form 5500 for an additional
fee, as described in Exhibit D.
4. ACCOUNT EXECUTIVES: A Prudential Account Executive will be available at a
toll free number from 8:30 a.m. to 6:00 p.m., Eastern time, Monday through
Friday, to assist the Employer.
5. PARTICIPANT SERVICES:
a. PARTICIPANT SERVICE REPRESENTATIVES - Participant service
representatives will be available at a toll free telephone number from
8:30 a.m. to 6:00 p.m., Eastern time, Monday through Friday, to assist
participants.
b. VOICE RESPONSE AND INTERNET SERVICES - By calling a toll-free number
or, if applicable, logging onto the Prudential Web site, participants
can access certain account information at any time. The Employer must
contact its Prudential representative to initiate these services. At
such time as these services are available, participants will be able
to direct investment changes, loans distributions and other services
calling the toll-free number, or, if applicable, by logging onto the
Prudential Web site.
c. PARTICIPANT STATEMENT OF ACCOUNT - Participants will receive standard
quarterly statements. Statements can include inserts and/or
customized messages provided by Prudential or the Employer.
Statements will be mailed directly to the participants' homes, unless
the Employer requests that they be bulk-mailed to the Employer for
distribution. At such time as Internet service is available,
participants will be able to access their account information by
logging onto the Prudential Web site.
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-14
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
EXHIBIT B
Plan Document Services
Prudential will provide the following documentation services:
1. MAINTENANCE OF PROTOTYPE
a. Prudential will automatically update the base Prudential sponsored
Prototype Plan Document, adopted by the Employer, as required by
changes in the law and regulations that do not require changes to the
Adoption Agreement. Prudential will provide the updated Prototype
Plan Document to the Employer within a reasonable period of time after
any update.
b. Prudential will inform the Employer of changes to the Adoption
Agreement required by law or regulatory changes and will provide the
Employer with a revised copy of the Adoption Agreement for completion
and execution, or, if applicable, with a model amendment.
c. Prudential will process new Adoption Agreements to implement changes
to the Plan desired by the Employer and return the Adoption Agreement
to the Employer for review and execution. Preparation of the Adoption
Agreement or systems changes to implement them will be billed at
Prudential's Optional Service rates listed in Exhibit D.
2. REVISION OF SUMMARY PLAN DESCRIPTION (SPD)/SUMMARY OF MATERIAL
MODIFICATIONS (SMM) FOR CHANGES IN PROTOTYPE
a. Prudential will provide the Employer with a revised SPD or SMM to
reflect changes made due to base Plan Document or Adoption Agreement
changes required by law or regulatory changes.
b. Prudential will provide the Employer with a revised SPD or SMM to
reflect any Employer initiated amendments at Prudential's service
rates listed in Exhibit D.
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-15
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
EXHIBIT C
Nondiscrimination and Qualification Testing
Any test or check of operational compliance will be performed by Prudential as
soon as reasonably possible following receipt of all necessary information.
Should Prudential act as soon as reasonably possible and a test or check is not
timely, the Employer will be responsible for all resulting taxes or
consequences.
1. Prudential will perform tests or monitor compliance with qualified plan
requirements as follows:
a. EXCESS DEFERRALS: Prudential will monitor each participant's
contributions to the Plan against the maximum deferral limit [Section
402(g)] and periodically report to the Employer. It is the Employer's
responsibility to act upon the information provided.
b. ACTUAL DEFERRAL PERCENTAGE (ADP) AND ACTUAL CONTRIBUTION PERCENTAGE
(ACP) TESTS: Prudential will conduct ADP, and, as appropriate, ACP
tests using Employer-provided information as follows:
i. [ONE MID-YEAR INTERIM TEST;
ii. ONE YEAR-END TEST;]
The Employer is responsible for determining which of its employees are
Highly Compensated Employees (HCE) and understands that no test will
be run until all necessary information is provided in good order by
the Employer. Additional tests or determinations may be undertaken
(for an additional charge) as follows:
iii. Additional ADP/ACP tests; and
iv. HCE Determination, using Employer-provided data and information
on all members of a controlled group, or affiliated service
group, if applicable.
c. ELIGIBILITY, PARTICIPATION AND ENTRY - Determining which employees are
eligible and when they should enter the Plan and participate.
2. Prudential will not undertake the following testing or demonstrations
required for qualified plans.
a. ANNUAL ADDITIONS LIMITS [Section 415];
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-16
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
b. GENERAL NON-DISCRIMINATION TESTS [Section 401(a)(4)] (including
Comparability and Cross Testing);
c. COVERAGE AND MINIMUM PARTICIPATION [Section 410(b)];
i. Ratio Percentage Test
ii. Reasonable Classification/Average Benefits Test
d. TOP HEAVY TESTING [Section 416]; AND
e. DEFINITION OF COMPENSATION [Section 414(s)].
3. Prudential does not monitor all operational and compliance requirements,
including but not limited to those listed below. These are solely the
responsibility of the Employer.
a. CONTROLLED GROUP - Determining which Employers or employees are in a
controlled group of entities within the meaning of Code Sections
414(b) and (c) or part of an affiliated service group within the
meaning of Code Section 414(m).
b. SEPARATE LINES OF BUSINESS - Determining if Plan or Plans of the
Employer control group may be tested as Separate Lines of Business as
defined in Section 414(r).
c. EMPLOYEE STATUS CHANGES - Including separation from service, change of
work classification, or change in marital status.
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-17
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
EXHIBIT D
Administrative Fee Schedule
IN CONSIDERATION FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT, THE EMPLOYER
AGREES TO PAY THE FOLLOWING FEES:
- Annual fee per Plan: $2,000
- Annual fee per Participant: $14 or $28, as determined by Prudential
- Installation charge for all startup Plans: $1,500 per Plan, one-time,
nonrefundable upon submission of executed Administrative Services Agreement
- Conversion charge: $2,500 per Plan, one-time - $1,500 nonrefundable upon
submission of executed Administrative Services Agreement and $1,000 upon
completion of conversion
- Trust service: $500 per Plan per year (Trust services are offered through
Prudential Bank & Trust Company or Prudential Trust Company.)
- Signature-ready 5500: $600 per Plan per year (Information required to
complete the 5500 is included in the basic fee for full-service Plans.)
- Testing: Additional fee for top-heavy tests: $350 per test
- Check fee: $15 per check charged to Participant
- Manual contribution data processing: $15 per Participant per year
- Loans: $75 origination fee; $60 maintenance fee per Participant with
outstanding loan balance per year
- Special services: See attached Special Services Fee Schedule
- Termination/cash-out charge: $1,000, one-time
THE FOLLOWING SERVICES WILL NOT BE SUBJECT TO A SEPARATE FEE OR CHARGE:
- Standard or nonstandard prototype Plan document (nonstandardized filing fee
$500 plus $125 IRS user fee)
- Testing: Semi-annual testing for full-service Plans include: ADP/ACP,
402(g), 415. Assumes required data is provided in the specified electronic
format.
- Quarterly Participant statements
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-18
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
EXHIBIT D
Special Services Fee Schedule
Depending upon its needs, the Employer may request additional services beyond
those required for normal recordkeeping and reporting (as set forth in the
Administrative Services Agreement). Additional services will be billed on a
flat dollar basis. Examples of additional services are:
- Interim or off-quarter account balances -- $250
- Plan refunds required due to failing either the ADP or ACP test -- $100 per
refund
- Plan refunds required under IRS rules -- $100 per refund
- Plan valuation due to improper financial data or employee census
information supplied by the Employer or its agent -- $500
- Reprocessing of monthly contribution information due to the receipt of
erroneous data -- $500
- Reprocessing of distributions, transfers, or forfeitures due to the receipt
of erroneous data -- $100 per transaction
- Multiple payroll location hard copy -- $250 annually
- Calculate matching, profit sharing, QNEC, QMAC -- $500
- Retroactive recordkeeping 200% of standard fees for the period specified as
retroactive activity
- The standard service is to mail Participant statements to the Employer. If
the Employer requires statements mailed directly to Participants, this will
be billed at $.60 per quarter per Participant ($2.40 per Participant per
year) to cover postage and mailing expense. This cost may change from time
to time based upon current postage and handling rates.
- Plan year-end summary -- $300
- Frozen assets incur a 50% increase in standard recordkeeping fees.
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-19
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
SCHEDULE A-2 TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
PRUDENTIAL INSURANCE COMPANY OF AMERICA
ADMINISTRATIVE SERVICES AGREEMENT FOR
TPA ALLIANCE PROGRAMS
This AGREEMENT is made and entered into by and among _______________
("Employer") and ______________ (the "Third Party Administrator" or "TPA") on
behalf of the __________________ (the "Plan"), and The Prudential Insurance
Company of America ("Prudential"), a New Jersey mutual life insurance company on
this _______ day of _______, 199__ .
The Employer represents and Prudential acknowledges that:
- The Plan is or will be in existence at the time funds are deposited
with Prudential;
- The Plan is intended to qualify under Section 401(a) of the Internal
Revenue Code of 1986, as amended (the "Code"), and a related Trust
(the "Trust") exists which is intended to be qualified under Section
501(a) of the Code, and
- The Employer, as Plan Administrator, desires Prudential to perform
certain administrative and investment services for the Plan and to
provide certain assistance to the Employer as more fully described in
this Agreement, and Prudential is willing to perform those services .
In consideration of the premises and mutual covenants contained in this
Agreement, the Employer and Prudential agree as follows:
1. SERVICES.
a. SERVICES TO BE RENDERED BY PRUDENTIAL. Prudential will perform the
following services:
i. PLAN RECORDKEEPING. Prudential will provide to the Plan the
limited record-keeping services included in Exhibit A to this
Agreement.
ii. ADDITIONAL SERVICES. In addition to the foregoing services,
Prudential may provide such other services, and be paid such
amounts therefor, as may from time to time be agreed upon in
writing by the parties.
b. NATURE OF SERVICES.
i. INVESTMENT AND ACCOUNTING SERVICES ONLY. The Employer
understands and agrees that Prudential's sole function under this
Agreement is to act as limited recordkeeper of investment
accounts for investments that are within Prudential's control and
to provide other services at the direction of the Employer or its
agents or designee in accordance with the terms of this
A-20
Agreement. Under the terms of this Agreement, Prudential does
not render investment advice, is not the Plan Administrator,
trustee or a Plan fiduciary, as that term is defined under the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and does not provide legal, tax or accounting advice
with respect to the creation, adoption or operation of the Plan
and the Trust. (Any services to be provided by a Prudential
affiliate as a directed Trustee or investment manager are the
subject of a separate agreement.)
ii. DISCONTINUANCE OF SERVICES INCONSISTENT WITH ROLE. If, based on
changes in the applicable regulatory structure or the
interpretation of the regulatory structure, there is a reasonable
likelihood that any service being, or to be, provided under this
Agreement by Prudential could constitute a discretionary function
and thereby subject Prudential to classification as a "fiduciary"
under ERISA with respect to the Plan, and such service could not
be restructured in a manner that would not subject Prudential to
classification as a "fiduciary" under ERISA, then Prudential,
upon reasonable notice to the Employer may decline to thereafter
provide that service. The failure to provide any such service
shall not constitute a breach of Prudential's obligations under
this Agreement.
c. RELIANCE UPON PLAN DATA. All services provided by Prudential
hereunder shall be based on information supplied by the Employer, its
designated TPA, or any other designee or agent of the Employer (as
designated by the Employer). The Employer acknowledges that the
timely provisions of accurate, consistent and complete data in the
format specified by Prudential is essential to its delivery of
services, and the Employer or its TPA is responsible for ensuring such
timely and accurate data is delivered to Prudential in Prudential's
approved format. For these purposes, "Plan Data" means all data and
records supplied to Prudential, obtained by Prudential or produced by
Prudential (based on data or records supplied to, or obtained by,
Prudential) in connection with performing the services pursuant to
this Agreement. Plan Data includes current participant names,
addresses and status.
d. RELIANCE UPON NAMED ADMINISTRATORS AND TRUSTEES. Employer will
provide names and other information for persons authorized to take
actions for or provide information on behalf of the Plan and Trust.
Until notified of a change, Prudential may reasonably rely upon this
information and may act upon instructions received from and/or on
information provided by these named persons. Prudential has the right
to assume that those persons continue to be authorized unless notified
otherwise.
2. COMPENSATION. In consideration for its services provided hereunder, the
Employer shall pay Prudential in accordance with the Fee Schedule provided
at Exhibit C. Prudential may amend the schedule for services not yet
rendered upon giving notice in writing
A-21
under the same conditions specified in Section 7.b. The Employer shall pay
all fees within thirty (30) days of the Prudential invoice date. Any fees
not paid when due may be deducted by Prudential from the trust fund,
without prior notice to the Employer. The Employer shall pay any and all
costs that may be incurred by Prudential in charging the trust fund for
these fees. The Employer also agrees that it shall empower the Trustee and
Third Party Administrator to pay compensation to Prudential for services
provided hereunder.
3. INVESTMENTS; GOOD ORDER.
a. INVESTMENTS--GENERALLY. Prudential will invest all assets of the
Trust only as directed in writing or via any authorized phone or
Internet transaction, if applicable:
i. By Participants - to the extent the Plan Adoption Agreement
provides for investment direction by Participants.
ii. By the Employer - to the extent the Plan Adoption Agreement
provides for investment direction by the Employer.
b. UNCLEAR INVESTMENT INSTRUCTIONS; GOOD ORDER.
i. UNCLEAR INVESTMENT INSTRUCTIONS. Prudential will forward
contributions for investment into a short-term interest-bearing
investment contribution account if Prudential determines that no
proper investment directions are in effect. Once proper
instructions are received, Prudential will forward the new
instructions so that contributions can be re-invested and related
earnings can be allocated accordingly.
ii. GOOD ORDER.
a) CONTRIBUTIONS. Prudential will use its best efforts to
process all contributions received in good order on the day
good order is achieved, PROVIDED, HOWEVER, that Prudential
reserves the right to process all contributions received in
good order at Prudential within seventy-two (72) hours of
receipt. Contributions are in "good order" when the
contribution roster remitted by the Employer agrees with the
contribution funding, and when the social security number
and money type correspond to social security numbers and
money types of participants previously enrolled on
Prudential's recordkeeping system.
In the event contribution data is NOT IN GOOD ORDER,
Prudential shall attempt to obtain clarification from the
Employer as to the proper contribution amount and/or funding
allocations. The Employer acknowledges and directs that
contributions will be deposited in an
A-22
interest or non-interest bearing account (at Prudential's
discretion) until such time as the roster, contribution
amount, and funding allocation are reconciled. In the event
Prudential is unable, in its sole judgment, to obtain such
clarification within thirty (30) days of receipt of
contribution amounts, then Prudential shall return all such
contribution amounts to the Employer's Temporary Trustee.
The Employer hereby agrees that the Employer or other
Employer designated person(s) authorized to take actions for
the Plan and the Trust will constitute the Temporary
Trustee, serving under the terms of the Trust indenture then
in effect, for the limited purposes of receiving
contributions returned as not in good order and holding them
as Plan trustee pending further instructions from the
Employer. Employer understands and agrees that it shall not
have any claim against Prudential or any affiliate of
Prudential in the event that Prudential returns
contribution amounts pursuant to the provision of this
paragraph. Employer further understands and agrees that the
Plan and the Employer will bear the investment risk during
this period.
b) DISTRIBUTIONS. Prudential will process all distribution
requests received in good order at Prudential within three
(3) business days of receipt of said distribution request by
Prudential. Distribution checks will be issued within seven
(7) days of receipt of good order. Distributions are in
"good order" when the distribution request contains all
pertinent information (including type and form of
distribution, any critical dates needed to process the
distribution and, if applicable, all necessary rollover
instructions) and appropriate signatures (including spousal
consent to the extent deemed necessary by the Employer).
c. Employer acknowledges that it:
i. Received a prospectus of each of the Prudential Mutual Funds and
any other mutual funds offered by Prudential in which Plan
participants may invest.
ii. Reviewed such prospectus(es) and is familiar with the fees and
expenses described therein, and that such fees and expenses are
reasonable.
iii. Understands that any Contingent Deferred Sales Charge that may be
due as a result of a sale by the Trust of shares of Prudential
mutual funds and other investment products offered by Prudential
or its affiliates concurrent with or following the termination of
this Agreement, shall not be waived.
d. FEES TO PRUDENTIAL AFFILIATES. Employer acknowledges that Prudential
may be deemed to benefit from:
A-23
i. Advisory and other fees paid to its affiliates for managing,
selling, or settling of the Prudential mutual funds and other
investment products offered by Prudential or its affiliates
selected as investment options available under that Plan; and
ii. Contingent Deferred Sales Charges imposed in certain instances on
shares of funds, as described in the applicable fund
prospectuses.
Employer also acknowledges that Prudential benefits directly from:
iii. Transfer agent fees paid to it by the Prudential mutual funds and
other investment products offered by Prudential or its
affiliates; and
iv. Fees paid to Prudential in connection with the Guaranteed
Interest Account.
e. INVESTMENT OF FORFEITURE ACCOUNT. Employer agrees that all amounts
maintained as forfeitures will be moved into a fund or account that
Employer and Prudential agree in writing is appropriate to hold
forfeitures pending their reallocation under the terms of the Plan.
4. USE OF AGENTS OR SUBCONTRACTORS. Prudential may perform any of the services
described in this Agreement through agents and subcontractors selected by
Prudential. Prudential specifically selected BISYS Plan Services, L.P. to
provide certain recordkeeping and administrative services under this
agreement to the Plan. Prudential shall adequately supervise any such
agent or subcontractor and the retention of agents or subcontractors shall
not relieve Prudential of its duties hereunder.
5. PRUDENTIAL NOT LEGAL COUNSEL. Employer understands and agrees that it
shall review with its legal and/or tax counsel all documents provided to it
by Prudential and that Employer should consult such counsel on any
questions concerning Employer's responsibilities under this Agreement, the
Plan's documents, and the legal sufficiency of any documents so provided.
Employer understands that neither Prudential nor any of its affiliates are
permitted to provide Employer with legal or tax advice or otherwise engage
in the practice of law. Employer acknowledges that it will not rely on any
information provided as if it were legal or tax advice.
6. INDEMNIFICATION.
a. INDEMNIFICATION OF PRUDENTIAL. The Employer shall hold harmless and
indemnify Prudential and its employees, agents, and subcontractors
("Indemnitees") from and against any loss, damage, liability, claims,
costs and expenses, including reasonable attorneys' fees
("Liabilities"), to which the Indemnitees may become subject, which
result from:
A-24
i. Any misrepresentation or nonfulfillment of any terms of this
Agreement by the Plan, the Employer, the Plan Administrator,
Third Party Administrator, or other Plan fiduciary (including,
but not limited to, Liabilities resulting from the provision of
inaccurate, untimely, or incomplete information to Prudential or
the failure to provide Prudential with clear instructions as to
matters relating to contributions, investment selections, or
distributions).
ii. Any failure by the Plan, the Employer, the Plan Administrator,
Third Party Administrator, or other Plan fiduciary to comply with
the terms of the Plan,
iii. A violation by the Plan, the Employer, the Plan Administrator,
Third Party Administrator, or other Plan fiduciary of the
requirements of applicable Federal and/or state laws,
iv. The making by Prudential of any benefit payment based upon
instructions that Prudential reasonably believes to be
authorized, and
v. Any action, conduct or activity, including the failure to take
action or to perform any activity taken by Prudential at the
direction of the Employer, Plan Administrator, Third Party
Administrator, or Trustee, provided that Prudential reasonably
believes the direction to be valid and is not negligent in the
execution of such directions.
b. INDEMNIFICATION OF EMPLOYER. Prudential shall hold harmless and
indemnify the Employer from and against any loss, damage, liability,
claims, costs and expenses, including reasonable attorneys' fees, to
which the Employer may become subject, which result from:
i. Any misrepresentation or nonfulfillment of any terms of this
Agreement by Prudential, and
ii. Prudential's violation of the requirements of applicable Federal
and/or state laws, except when resulting from the failure to take
action or any action taken at the direction of the Employer,
Third Party Administrator, the Employer's agent or designee, or
Trustee, provided that Prudential reasonably believes the
direction to be valid and is not negligent in the execution of
such directions.
7. DURATION; TERMINATION; SUCCESSOR RECORDKEEPER.
a. DURATION. This Agreement will continue in effect until terminated.
b. TERMINATION. Each party may terminate this Agreement upon sixty (60)
days prior written notice to the other. Such notice shall be deemed
to have been given three
A-25
(3) days after mailing in the U.S. mail or immediately upon receipt if
delivered to the address set forth below. The notice period may be
waived by the party entitled to the notice.
b. SUCCESSOR RECORDKEEPER. Upon termination, the parties agree that
Prudential shall have no further duty or responsibility to the Plan
under this Agreement. However, Prudential will use reasonable efforts
to transfer all relevant non-Prudential proprietary information
concerning the Plan, in Prudential's standard format, to the Employer,
Third Party Administrator, or to a successor recordkeeper. Any
unforeseeable costs or expenses incurred by Prudential in effecting
this transfer shall be paid by the Employer unless waived in writing
by Prudential. Employer agrees that Prudential may charge reasonable
fees for the provision of requested records or reports that Prudential
previously provided.
d. SURVIVAL OF INDEMNIFICATION AND INVESTMENTS. The Employer acknowledges
and agrees that the indemnification provisions of paragraph 6 shall
survive the termination of this Agreement. The Employer understands
and acknowledges that the termination of this Agreement shall not
require the sale by the Trust of shares of Prudential mutual funds
held by the Trust (unless specifically requested by Prudential in
writing).
8. NOTICES. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when
so delivered personally, telegraphed or telexed or, if sent by facsimile
transmission, upon the recipient's oral verification by telephone of
receipt or, if mailed, three (3) days after the date of deposit in the U.S.
mail, as follows:
If to BISYS on behalf of Prudential: (By other than U.S. mail)
(By U.S. mail)
The Prudential Insurance Company of The Prudential Insurance Company of
America America
c/o BISYS Plan Services, L.P. c/o BISYS Plan Services, L.P.
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
If to the Employer:
----------------------------------------
A-26
----------------------------------------
----------------------------------------
----------------------------------------
9. ENTIRE AGREEMENT; AMENDMENT. This Agreement, including the Exhibits
hereto, contains the entire Agreement among the parties hereto with respect
to the subject matter hereof, and there are no other Agreements written or
oral, relating to the subject matter hereof other than those explicitly set
forth herein or attached hereto. This Agreement may be amended at any
time, but only when agreed to in writing by the parties.
10. CONSTRUCTION. This Agreement is the result of negotiation by both parties,
and, therefore, no claim shall be made to construe any portion of the
Agreement against either party on the basis of such party's participation
in the negotiating thereof.
11. BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns and legal representatives. Neither this Agreement, nor any right
hereunder, may be assigned by any party without the written consent of the
other parties hereto.
12. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and delivered, shall
be an original, but all such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all of the
parties hereto.
13. HEADINGS. The headings in this Agreement are for reference only, and shall
not affect the interpretation of this Agreement.
14. SEVERABILITY. If any word, phrase, sentence, paragraph, provision or
section of this Agreement shall be held, declared, pronounced or rendered
invalid, void, unenforceable or inoperative for any reason by any court of
competent jurisdiction, governmental authority, statute or otherwise, such
holding, declaration, pronouncement or rendering shall not adversely affect
any other word, phrase, sentence, paragraph, provision or section of this
Agreement, which shall otherwise remain in full force and effect and be
enforced in accordance with its terms.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of New Jersey applicable to agreements made and to
be performed entirely within such State.
16. THIRD PARTY BENEFICIARIES. The provisions of this Agreement are solely for
the benefit of the parties hereto and their Affiliates and are not intended
to confer upon any person except the parties hereto any rights or remedies
herein.
A-27
17. UNFORESEEN CIRCUMSTANCES. Prudential shall not be liable for any default
or delay in the performance of its services under this Agreement if and to
the extent such default or delay is primarily caused, directly or
indirectly, by
a. fire, flood, elements of nature or other acts of God;
b. any outbreak or escalation of hostilities, war, riots or civil
disorders in any country;
c. any act or omission of the other party or any governmental authority;
or
d. nonperformance of a third party or any similar cause beyond the
reasonable control of Prudential, including without limitation,
failures or fluctuations in telecommunications or other equipment.
In any such event, Prudential shall be excused from any further performance
and observance of the obligations so affected only for as long as such
circumstances prevail and Prudential continues to use commercially
reasonable efforts to recommence performance or observance as soon as
practicable.
18. WRITING AND SIGNATURE. Unless otherwise explicitly required by law,
a. Any requirement for a writing under this Agreement may be rendered in
any form that can reliably reproduce an accurate physical record of
the communication and authenticate the source, including but not
limited to facsimile transmission, electronic mail, indexed telephone
recording, or Internet transmission.
b. Any requirement of a signature under this Agreement may be rendered in
any form clearly indicated by the signatory to be a signature or which
complies with instructions directly given to the signatory as to the
proper form of indicating a signature in an electronic or voice
response environment. Appropriate forms include, but are not limited
to, personal identification numbers rendered over the Internet,
facsimile transmissions, and unique telephone keypad combinations
pressed during recorded calls.
Notwithstanding a. or b., above, the recipient of any writing or signature
under this Agreement may require the confirmation of any writing or
signature in physical form (such as hand or typewritten or the equivalent)
with a manual signature.
A-28
IN WITNESS THEREOF, the Employer has caused this Agreement to be executed by its
duly authorized representative.
Date Signed:
-----------------------------------
Date Agreement Effective:
-----------------------------------
First period or year for
which records are to be
compiled and reports to be
generated (start/end): -----------------------------------
Employer Authorized By: Prudential Authorized By:
----------------------------------- -----------------------------------
Name Name
----------------------------------- -----------------------------------
Authorized Signature Authorized Signature
----------------------------------- -----------------------------------
Title Title
Third Party Administrator Authorized By:
-----------------------------------
Name
-----------------------------------
Authorized Signature
-----------------------------------
Title
This Agreement is not effective until properly countersigned by an authorized
representative of Prudential.
A-29
EXHIBIT A
Administration and Recordkeeping Services
Prudential will provide the following administrative services under this
Agreement:
1. TRANSITION SERVICES:
a. TRANSFER OF EXISTING RECORDS - Prudential will use the data supplied
by the Employer and its current recordkeeper to transfer all existing
participant records from the current recordkeeping system to the
Prudential system, if applicable. Prudential will rely on the data
received and will not be responsible for omissions or incorrect data
supplied by the Employer or the current recordkeeper. Prudential will
establish investment recordkeeping accounts in the investments
selected by the Employer. If the data is not in an electronic format
acceptable to Prudential, additional fees may apply, as more fully
described in Exhibit C.
b. ENROLLMENT AND COMMUNICATIONS - Prudential will provide a welcome
package and its standard enrollment kit with standard forms and
notices necessary to implement the Plan's administration. Prudential
will process all enrollment agreements received and report to the
Employer when contributions may commence.
2. PLAN RECORDKEEPING:
a. PARTICIPANT ACCOUNTS: Prudential will establish a participant account
for each Plan participant for whom it receives investment records that
are not maintained in pooled accounts. Prudential is not responsible
for determining if such Plan participants are eligible under the terms
of the Plan. It will also maintain any pooled assets in separate
pooled accounts in the name of the Plan and Trust.
b. PARTICIPANT FILES: Prudential maintains files for all participants
for whom participant accounts have been established. These files
include enrollment forms, beneficiary designation forms (to the extent
provided to Prudential) and all other written correspondence and
documents concerning each participant's account.
c. CONTRIBUTION PROCESSING: Prudential processes the investment of Plan
contributions when the information is supplied in good order.
Prudential deposits those contributions into the investments provided
for under the Pan, in accordance with the allocation instructions
received from the Employer or Plan participants (if the Plan provides
that participants may direct the investment of contributions made on
their behalf). Prudential will supply automated contribution software
free of charge to Employers with 10 or more employees who request it.
This software should enable contributions to be processed more
efficiently and will help the Employer avoid Data Submission charges
described in Exhibit C.
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-30
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
d. TRANSFERS BETWEEN INVESTMENT OPTIONS: In accordance with the requests
of Plan participants or other authorized representative of the
Employer, Prudential processes transfers of amounts held in
participant accounts among the investment options provided for under
the Plan.
e. DISTRIBUTION PROCESSING: Prudential will process requests for payment
to participants, beneficiaries and alternate payees as permitted by
the Plan and upon being notified by the Employer or TPA that the payee
has met the necessary standards for withdrawals. Prudential will
provide the Employer (or other individual at the direction of the
Employer) with the funds and the prescribed IRS tax notice to payees.
f. LOAN PROCESSING: To the extent loans are permitted under the Plan,
Prudential will provide a package of standard loan documentation such
as loan policies and notes (for review by Employer's legal counsel)
and will:
i. Disburse loan proceeds upon the Employer's approval; and
ii. Provide for systematic crediting of loan repayments and
re-investment in appropriate funds. Loan repayments will be made
via payroll deduction.
g. ALLOCATE EARNINGS/LOSSES - Prudential will adjust participant accounts
daily for investment performance for those investment options that
price daily; for all other investments, participant accounts will be
periodically adjusted, depending on the investment.
h. QUALIFIED DOMESTIC RELATIONS ORDERS - Upon certification by the
Employer that a domestic relations order is a Qualified Domestic
Relations Order, Prudential will establish a separate participant
record for the alternate payee.
3. REPORTS:
a. PERIODIC REPORTS - Prudential will provide Plan-level reports
utilizing the information maintained on its recordkeeping system.
Reports will summarize all transactions that occurred for each
participant within the specified time period. Plan level reports are
normally generated on a quarterly basis.
b. FINANCIAL STATEMENTS - Prudential will provide Plan level information
on each available investment option for the purpose of trust
reporting.
c. 5500 REPORTING - Prudential will supply key information from its
recordkeeping system necessary for the Employer to complete Form 5500,
to be filed annually. This report will not include information or
values from non-Prudential sources. If the Employer requests,
Prudential, with the assistance of the Employer or other service
providers, will complete a signature ready Form 5500 for an additional
fee, as described in Exhibit C.
--------------------------------------------------------------------------------
401(k) Administrative Services Agreement A-31
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
4. ACCOUNT EXECUTIVES: A Prudential Account Executive will be available at a
toll free number from 8:30 a.m. to 6:00 p.m., Eastern time, Monday through
Friday, to assist the Employer.
5. PARTICIPANT SERVICES:
a. PARTICIPANT SERVICE REPRESENTATIVES - Participant service
representatives will be available at a toll free telephone number from
8:30 a.m. to 6:00 p.m., Eastern time, Monday through Friday, to assist
participants.
b. VOICE RESPONSE AND INTERNET SERVICES - By calling a toll-free number
or, if applicable, logging onto the Prudential Web site, participants
can access certain account information at any time. The Employer must
contact its Prudential representative to initiate these services. At
such time as these services are available, participants will be able
to direct investment changes, loans distributions and other services
calling the toll-free number, or, if applicable, by logging onto the
Prudential Web site.
c. PARTICIPANT STATEMENT OF ACCOUNT - Participants will receive standard
quarterly statements. Statements can include inserts and/or
customized messages provided by Prudential or the Employer.
Statements will be mailed directly to the participants' homes, unless
the Employer requests that they be bulk-mailed to the Employer for
distribution. At such time as Internet service is available,
participants will be able to access their account information by
logging onto the Prudential Web site.
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401(k) Administrative Services Agreement A-32
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
EXHIBIT B
Nondiscrimination and Qualification Testing
1. Prudential will not undertake any test or check of operational compliance.
These will be the sole responsibility of the Employer or the TPA,
separately agreed between them. Prudential's sole responsibility will be
to provide on request information maintained on its systems, in the format
it is maintained or can be readily reported to the Employer or TPA. Among
the tests or compliance standards that the Employer or the TPA, not
Prudential, will monitor (as they decide between them) are the following:
a. EXCESS DEFERRALS: [Section 402(g)]
b. ACTUAL DEFERRAL PERCENTAGE (ADP) AND ACTUAL CONTRIBUTION PERCENTAGE
(ACP) TESTS;
c. ANNUAL ADDITIONS LIMITS [Section 415]*;
d. GENERAL NON-DISCRIMINATION TESTS [Section 401(a)(4)] (including
Comparability and Cross Testing);
e. COVERAGE AND MINIMUM PARTICIPATION [Section 410(b)];
i. Ratio Percentage Test
ii. Reasonable Classification/Average Benefits Test
f. TOP HEAVY TESTING* [Section 416]; AND
g. DEFINITION OF COMPENSATION [Section 414(s)].
h. ELIGIBILITY, PARTICIPATION AND ENTRY - Determining which employees are
eligible and when they should enter the Plan and participate.
i. CONTROLLED GROUP - Determining which Employers or employees are in a
controlled group of entities within the meaning of Code Sections
414(b) and (c) or part of an affiliated service group within the
meaning of Code Section 414(m).
j. SEPARATE LINES OF BUSINESS - Determining if Plan or Plans of the
Employer control group may be tested as Separate Lines of Business as
defined in Section 414(r).
k. EMPLOYEE STATUS CHANGES - Including separation from service, change of
work classification, or change in marital status.
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401(k) Administrative Services Agreement A-33
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
2. Prudential may agree in writing to undertake one or more of the tests or
demonstration required for qualified plans for an additional fee upon
request, if Prudential deems it possible under the circumstances.
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401(k) Administrative Services Agreement A-34
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
EXHIBIT C
Administrative Fee Schedule
IN CONSIDERATION FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT, THE EMPLOYER
AGREES TO PAY THE FOLLOWING FEES:
- Annual fee per Participant: $14 for Plans with mutual fund Investment
Options
- Plan setup: $500
- Plan conversion: $500 plus $3 per Participant with an account balance
(assumes transfer of Plan account balances are completely reconciled in
Prudential or designee's system)
- Treasury service: $300 (assumes no trust reporting)
- Loans: $75 origination fee; $60 maintenance fee per Participant with
outstanding loan
- Distribution checks: $15 deducted from each distribution check
- Special services: See attached Special Services Fee Schedule.
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401(k) Administrative Services Agreement A-35
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
EXHIBIT C
Special Services Fee Schedule
Depending upon its needs, the Employer may request additional services beyond
those required for normal recordkeeping and reporting (as set forth in the
Administrative Services Agreement). Additional services will be billed on a
flat dollar basis. Examples of additional services are:
- Interim or off-quarter account balances -- $250
- Plan refunds required due to failing either the ADP or ACP test -- $100 per
refund
- Plan refunds required under IRS rules -- $100 per refund
- Plan valuation due to improper financial data or employee census
information supplied by the Employer or its agent -- $500
- Reprocessing of monthly contribution information due to the receipt of
erroneous data -- $500
- Reprocessing of distributions, transfers, or forfeitures due to the receipt
of erroneous data -- $100 per transaction
- Multiple payroll location hard copy -- $250 annually
- Calculate matching, profit sharing, QNEC, QMAC -- $500
- Retroactive recordkeeping 200% of standard fees for the period specified as
retroactive activity
- The standard service is to mail Participant statements to the Employer. If
the Employer requires statements mailed directly to Participants, this will
be billed at $.60 per quarter per Participant ($2.40 per Participant per
year) to cover postage and mailing expense. This cost may change from time
to time based upon current postage and handling rates.
- Plan year-end summary -- $300
- Frozen assets incur a 50% increase in standard recordkeeping fees.
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401(k) Administrative Services Agreement A-36
Initials of Authorized Employer Representative/Date: _____/_____
Initials of Authorized Employer Representative/Date: _____/_____
SCHEDULE B TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
INVESTMENT OPTIONS
THE PLANS' INVESTMENT OPTIONS ARE:
A. MUTUAL FUNDS. Any of the modified Class C shares of the following Funds:
(The asterisked Funds are the suggested portfolio.)
4 core Prudential Funds
*Prudential Xxxxxxxx Growth Fund
*Prudential Equity Income Fund
*Prudential Diversified Bond Fund
*Prudential Moneymart Assets
Up to 4 additional Prudential Funds
*Prudential Government Income
*Prudential Government High-Yield
*Prudential World Intl Stock
*Prudential Real Estate Secs
Up to 4 additional non-proprietary Funds from Select List
Xxxxxx Xxxxxxx Emerg Mkts C Diversified Emerging Markets
*MFS Total Return C Domestic Hybrid
Xxx Xxxxxx Am Cap Eqty-Inc C Domestic Hybrid
Alliance Balanced Shares C Domestic Hybrid
Xxxxxx International C Foreign Stock
Alliance Worldwd Priv C Foreign Stock
*Xxxxxxxxxxx Glob Grwth and Inc C Foreign Stock
Xxxxxxxxxxx U.S. Govt C Intermediate Government
MFS Bond C Intermediate-term Xxxx
Xxxxxx Xxxxxxx Wrldwd HiIncC International Bond
MFS World Total Return C International Hybrid
PIMCo Renaissance C Large Blend
Xxxxxxxxxxx Capital Ap C Large Growth
Xxxxxxxxxxx Quest Value C Large Value
Xxx Xxxxxx Am Cap Xxxxxxxx C Large Value
Alliance Bond Corp Bond C Long-term Bond
Xxxxxxxxxxx Ltd-Term Govt C Short Government
B-1
*Alliance Quasar C Small Growth
*Xxxxxx Xxxxxxx Xxxx Value C Small Value
MFS World Equity C World Stock
Xxxxxx Xxxxxxx Glob Eq All C World Stock
PIMCo Stock Plus Mid to Small Cap
B. UNDER PRUDENTIAL DISCOVERY SELECT GROUP RETIREMENT ANNUITY, any of the
following underlying Funds and investments:
Cash and Equivalents Prudential Money Market Portfolio
Fixed Income Prudential Diversified Bond Portfolio
Prudential Government Income Portfolio
Prudential High Yield Bond Portfolio
Prudential Guaranteed Interest Account*
Large Cap Value Prudential Equity Portfolio
Prudential Equity Income Portfolio
OpCap Adv OCC Accumulation Trust Mng Portfolio
X. Xxxx Price Equity Income Portfolio
Large Cap Growth Prudential Xxxxxxxx Portfolio
Prudential Stock Index Portfolio
AIM V.I. Growth & Income Fund
Janus Aspen Series Growth Portfolio
Small/Mid Cap Value AIM V.I. Value Fund
OpCap Adv OCC Accum Trust Small Cap Portfolio
Small/Mid Cap Growth MFS Emerging Growth Series
MFS Research Series
Warburg Pincus Post-Venture Capital
International Equity Prudential Global Portfolio
Janus Aspen Series International Growth Portfolio
X. Xxxx Price International Stock Portfolio
Balanced Prudential Conservative Balanced Portfolio
Prudential Flexible Managed Portfolio
* The Guaranteed Interest Account is a group annuity contract issued by
the Prudential Insurance Company of America, Newark, NJ.
B-2
SCHEDULE C TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
PLAN CRITERIA
PLANS SELECTED BY PRUDENTIAL WILL TYPICALLY HAVE:
Less than $1 million in anticipated Plan assets,
Less than 100 eligible employees,
$3,000 minimum average annual cash flow per Participant (for a start-up
Plan),
$20,000 minimum average Participant balance including cash flow (for a
converted Plan),
Mandatory match for start-up Plans (50% of 2% minimum),
Prudential Trust Company or Prudential Bank & Trust Company as trustee (or
be self-trusteed),
A standardized or non-standardized Prudential prototype plan, and
Only the Investment Options described in Schedule B.
PRUDENTIAL RESERVES THE RIGHT TO SELECT OTHER PLANS.
C-1
SCHEDULE D TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
SERVICE TEAM
THE SERVICE TEAM SHALL INCLUDE:
1. All members of BISYS senior management as appropriate to ensure the
performance of Services in accordance with the standards provided in
this Agreement.
2. For each block of 500 Plans for which BISYS provides Services under
this Agreement, seven ongoing service associates. As Plans are
provided by Prudential, three new business associates and an ERISA
compliance associate to coordinate the installation of the Plans on
the recordkeeping system. BISYS shall staff its service and new
business teams on a pro-rated basis as Plans are submitted.
BISYS shall promptly notify Prudential of any deviation from the foregoing.
D-1
SCHEDULE E TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
SERVICE PERFORMANCE STANDARDS
A.1. For each of the following activities required to be performed under the
terms of a particular Plan's Administrative Services Agreement, the
following standards shall apply to BISYS's obligations from the time that
information is received in "good order." "Good order" means all
information required to perform the relevant transaction has been received,
in acceptable form, and contains no obvious inconsistency or error.
a. Plan set-up: On system and available to receive enrollments in 10
days.
b. Enrollment kits: standard -- 95% mailed 10 days; target -- 99% within
7 days.
c. Contribution processing: standard -- 95% within 3 days for magnetic
media, 5 days for hard copy; target -- 99% within 1 day for all good
orders.
d. Plan correspondence: standard -- acknowledge 90% with intent to
resolve within 4 days, or as Prudential and BISYS may otherwise agree;
target -- acknowledge all within 24 hours, resolve within 5 days.
e. Participant statements: standard -- mail 95% within 10 calendar days
of receipt of required information from Prudential; target -- mail
99% within 10 calendar days of receipt of required information from
Prudential.
f. Disbursements: standard -- 95% issued within 7 calendar days; target
-- 99% issued within 7 calendar days for all good orders.
g. Loan checks: standard -- 95% within 5 days; target -- 99% within 5
days for all good orders.
h. 800 line average response time: standard -- 90% within 20 seconds;
target -- all within 20 seconds.
i. Conversion/transfer processing: standard -- 3 weeks after receipt of
final piece of required information; target -- 2 weeks after receipt
of final piece of required information.
These standards shall be reviewed by Prudential and BISYS at least annually
and may be modified by agreement of Prudential and BISYS to reflect
industry standards.
E-1
2. All references to days shall mean business days unless otherwise specified.
Percentages shall be calculated on the basis of each day's work and
measured on a monthly basis and refer to work completed accurately.
B.1. In the event BISYS fails to meet any of the foregoing standards, Prudential
shall have the right, upon notice to BISYS, to require BISYS to consult
with Prudential regarding BISYS's performance. As part of such
consultation, Prudential and BISYS shall agree to an appropriate cure
period, which shall not be less than thirty (30), nor more than ninety
(90), calendar days. If, within such cure period, BISYS has not cured its
noncompliance, in addition to any other rights Prudential may have,
Prudential shall have the right, upon notice to BISYS, to require BISYS to
take any one or more (including all) of the following actions:
a. To dedicate to Plans additional BISYS senior management attention,
including one member of senior management full-time.
b. To dedicate to Plans additional
(1) client service representatives
(2) transition team representatives
(3) transaction processing staff
(4) other appropriate or desirable staff
c. To require BISYS to increase the Service Team described in Schedule D,
item 2, of this Agreement by fifty percent.
2. Prudential's ability to enforce these provisions will continue until the
service standards under this Schedule E are met, as determined by
Prudential.
E-2
SCHEDULE F TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
DISCOVERY SELECT SERVICES
PRUDENTIAL AND BISYS SHALL PROVIDE THE FOLLOWING SERVICES WITH RESPECT TO
DISCOVERY SELECT GROUP RETIREMENT ANNUITY:
A. BISYS RESPONSIBILITIES
- Provide Participant-level recordkeeping for all investment options
available under the Discovery Select product, including the Guaranteed
Interest Account ("GIA").
- Administer the following features of the Discovery Select product on a
Participant-level basis, as described in the Discovery Select
prospectus provided by Prudential:
- Death benefit
- 90-day Equity Wash between GIA and any competing funds as
identified by Prudential
- Promptly inform Prudential of any Plan terminations. Apply any
applicable surrender charge communicated by Prudential to the Plan
sponsor or Participants as directed by the Plan sponsor.
- Compute the daily value of the GIA based on the interest rate factor
provided by Prudential each quarter.
- For each Discovery Select variable Investment Option and the GIA,
break out by Plan each contribution, loan initiation, default, and
repayment, transfer in and out, and withdrawal.
- Assess an annual account charge on Plans as instructed by Prudential.
This charge should be assessed to each Plan at an initial rate of $30
for Participant account in the Plan during the year. This amount is
to be billed by BISYS directly to the client in January of each year.
BISYS shall provide Plans with necessary details supporting the amount
of the total annual account charge.
- For each Investment Option under Discovery Select, BISYS shall provide
Prudential with an aggregate instruction as to net activity for each
business day after BISYS has performed a reconciliation for that day.
- For each business day where there is a net purchase of a particular
Investment Option, BISYS shall wire the amount necessary to honor the
net purchase request to Prudential immediately after that day's
reconciliation but in no event later than 12:00 noon Eastern time.
- Communicate any adjustment to the aggregate balance of each Investment
Option under Discovery Select to Prudential via phone and facsimile as
soon as possible following the discovery of the adjustment.
- Conduct a reconciliation each business day of its Participant-level
records to Plan-level information provided by Prudential.
F-1
B. PRUDENTIAL RESPONSIBILITIES
- Provide BISYS with a daily price file each business day by 8:00 p.m.
Eastern time. This file will include the current net asset value of
each Investment Option within Discovery Select.
- Provide BISYS prior to the beginning of each calendar quarter with an
Excel spreadsheet that lists the daily interest rate factors for the
GIA for the upcoming quarter.
- Provide a daily confirmation file to BISYS by 8:00 a.m. Eastern time
the following business day containing the daily trade activity and
share position for all Investment Options under Discovery Select.
This file will be used as a source for the daily reconciliation
between Prudential and BISYS to ensure that Participant records are in
balance with Plan records.
- For each business day where there is a net withdrawal of a particular
Investment Option under Discovery Select, Prudential shall execute a
wire instruction to the Plan trustee in the amount of the withdrawal
immediately after that day's reconciliation but in no event later than
12:00 noon Eastern time.
- Maintain Plan-level records for the following purposes:
- daily reconciliation conducted by BISYS between the Plan and
Participant accounts.
- calculation of Plan-level transactions such as the surrender
charge and GIA market value adjustment.
- Communicate surrender charge and market value adjustment amount to
BISYS where applicable.
All services provided by BISYS shall be performed in accordance with the
then-current prospectus for Discovery Select ("Prospectus") and the then-current
prospectus for each applicable underlying fund Investment Option.
Notwithstanding the preceding sentence, Prudential shall provide BISYS with a
copy of the Prospectus as anticipated to be in effect on the Effective Date and
sufficiently in advance of such Effective Date as to afford BISYS a reasonable
opportunity to review such Prospectus. Within fourteen (14) calendar days after
receipt of such Prospectus, BISYS shall notify Prudential whether BISYS can, in
BISYS's reasonable business judgment, perform the services described in A.
above. If BISYS notifies Prudential that it is unable to perform all, or
certain specified, of those services and, after consultation with Prudential,
BISYS determines, in its reasonable business judgment, that it remains unable to
perform such services, then BISYS shall not be obligated to perform services
pursuant to Section 2(a)(4) of this Agreement, unless Prudential and BISYS
otherwise agree.
After BISYS has begun to perform services pursuant to Section 2(a)(4) of
this Agreement, Prudential shall provide BISYS with reasonable prior notice of
any proposed revision or amendment to the Prospectus.
F-2
SCHEDULE G TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
SERVICE OR PROTOTYPE CHANGES AND NEW PLAN ACCOUNTS
SERVICE OR PROTOTYPE CHANGES AND NEW PLAN ACCOUNTS:
1. Requests by Plans, or by Prudential representatives on behalf of
Plans, that BISYS receives for services different than the standard
services under the Administrative Services Agreement shall be referred
to Prudential for decision. BISYS shall indicate to Prudential if the
requested services:
a. could be performed by BISYS at no extra charge
b. could be performed by BISYS for an additional charge, and what
that charge would be
c. cannot be performed by BISYS
2. Prudential will review the request and deny or accept it in whole or
in part, with the charges specified in 1.b. above.
G-1
SCHEDULE H TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
TRUST AND ACCOUNTING SERVICES
BISYS shall arrange for the provision of the following trust and accounting
services to Plans in accordance with the form of Trustee Services Delegation
Agreement attached hereto as Exhibit H-1 (or in such other form agreed upon by
Prudential and BISYS) by a party approved by Prudential.
H-1
EXHIBIT H-1
PRUDENTIAL TRUST COMPANY
TRUSTEE SERVICES DELEGATION AGREEMENT
THIS AGREEMENT is made this ___ day of August, 1998, by and between
Prudential Trust Company, a ________________ trust company ("Trustee"), and
BISYS Plan Services, L.P., a Pennsylvania limited partnership ("BISYS").
WHEREAS, pursuant to the Retirement Plan Services Outsourcing Agreement
dated August __, 1998, by and between The Prudential Insurance Company of
America ("Prudential") and BISYS ("Outsourcing Agreement"), BISYS has agreed to
provide certain recordkeeping and administrative services, and to arrange for
the provision of certain trust reporting and accounting services and certain
order placement and processing services, to selected Prudential defined
contribution pension plan clients that have adopted certain specified forms of
plan documents;
WHEREAS, Trustee has agreed to serve as the trustee or custodian for such
plans and desires to delegate to BISYS the performance of certain of its duties
under such plan documents, in accordance with the terms and conditions of this
Agreement;
WHEREAS, BISYS is willing to perform, or arrange for the performance of,
such delegated duties, in accordance with the terms and conditions of this
Agreement;
THEREFORE, in consideration of the premises and mutual covenants contained
in this Agreement, Trustee and BISYS agree as follows:
1 CERTAIN DEFINITIONS. As used in this Agreement:
a. "Effective Date" means October 1, 1998, or such later date
constituting the effective date as defined in Section 1 of the
Outsourcing Agreement.
b. "Participant" means a participant as defined in Section 1 of the
Outsourcing Agreement.
c. "Plan" means a plan as defined in Section 1 of the Outsourcing
Agreement and for which BISYS is obligated to provide services under
the Outsourcing Agreement.
d. "Plan Administrator" means the person named as such for a Plan under
the Plan Documents.
e. "Plan Documents" means the trust instrument for a Plan and the
PruArray Prototype 401(k) Plan Document (or such other Plan document)
under which Trustee serves as the [trustee/custodian] for the Plan.
H-2
f "Services" means those services BISYS is obligated to perform, or
arrange for the performance of, pursuant to Section 2 of this
Agreement, depending on the Plan Documents for each particular Plan.
2. SERVICES OF BISYS. BISYS shall enable Trustee to satisfy Trustee's
obligations to each Plan under the Plan Documents for that Plan.
Accordingly, and subject to the further provisions of this Agreement,
beginning on the Effective Date and thereafter:
a. BISYS shall perform, or arrange for the performance of, the following
services with respect to Plans:
i. Receive contributions under the terms of the applicable Plan
Documents and hold, invest and reinvest the assets of each Plan
in accordance with the written instructions of the Plan
Administrator.
ii. Make distributions from the assets of the Plan to Participants in
accordance with the written instructions of the Plan
Administrator.
iii. Maintain, for each Plan, such records of contributions,
investment earnings and gains (or losses), withdrawals and all
other transactions as may be required under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and
the Internal Revenue Code of 1986, as amended ("Code").
iv. Prepare and timely file such information returns with respect to
distributions from Plans as may be required under the Code.
v. Perform such additional services as shall be necessary to enable
Trustee to meet its obligations with respect to each Plan under
the Plan Documents for that Plan.
b. All services performed, or for which the performance is arranged, by
BISYS and related materials and records produced or maintained (in
whatever form produced or maintained) under this Agreement shall be
performed, produced and/or maintained, as applicable, in a manner that
reflects that such services, materials and records are so performed,
produced and/or maintained, as applicable, by Trustee through BISYS
(or such other party performing services and/or producing or
maintaining records for Plans pursuant to an arrangement with BISYS
permitted under this Agreement).
c. Trustee hereby delegates to BISYS the authority to act on Trustee's
behalf, and to execute such documents as may be necessary, to effect:
i. The establishment of Plan accounts.
ii. The transfer of assets to or from a Plan account.
H-3
iii. The distributions to Participants.
iv. The filing of information returns with respect the distribution
of Plan assets to Participants.
d. All services performed and actions taken, and all services or other
actions for which the performance is arranged, by BISYS under this
Agreement for a Plan shall be performed in accordance the terms of the
Plan Documents for that Plan.
3. MAINTENANCE OF RECORDS. BISYS shall maintain and preserve all records as
required by law to be maintained and preserved in connection with providing
the Services and with the care, skill, prudence and diligence that a
prudent person acting in like capacity and familiar with such matters would
use in maintaining such records. Upon the request of Trustee, BISYS will
provide copies (or such other form of durable record as Trustee may
approve) of all historical records relating to transactions involving the
Plan(s), written communications regarding the Plan(s) and other materials,
in each case (a) as are maintained by BISYS in the ordinary course of its
business, (b) as may reasonably be requested to enable Trustee, or its
representatives, including without limitation auditors or legal counsel, to
(i) monitor and review the Services, (ii) comply with any request of a
governmental body or self-regulatory organization or a Plan, (iii) verify
compliance by BISYS with the terms of this Agreement, (iv) make required
regulatory reports or (v) perform general assessment of Services. BISYS
will permit Trustee or such representatives to have reasonable access,
during normal business hours and subject to reasonable notice to BISYS, to
its personnel, records and facilities in order to facilitate the monitoring
of the quality of the Services.
4. CONFIDENTIALITY.
a. Trustee and BISYS acknowledge that each may be provided with
information about, and BISYS's engagement by Trustee may bring each
into close contact with, confidential and proprietary information of
the other. In addition, Trustee and BISYS each may be provided with
or be exposed to confidential information of third parties with which
the other conducts business. Such confidential information of a party
and of the third parties with which it does business is collectively
referred to as its "Confidential Information." In recognition of the
foregoing, Trustee and BISYS each covenant and agree that:
i. it will keep and maintain all Confidential Information of the
other in strict confidence, using such degree of care as is
appropriate to avoid unauthorized use or disclosure;
ii. it will not, directly or indirectly, disclose any Confidential
Information of the other to anyone outside of the other, except
with the other's prior consent;
H-4
iii. it will not make use of any Confidential Information of the other
for its own purposes or the benefit of anyone or any other entity
except the other;
iv. it will (A) on termination of discussions between the parties,
or, (B) if BISYS is engaged to perform Services for Trustee, upon
completion of the engagement, or (C) at any time the other may so
request, deliver promptly to the other, or, at the other's
option, destroy all memoranda, notes, records, reports, media and
other documents and materials (and all copies thereof) regarding
or including any Confidential Information which it may then
possess or have under its control; and
v. it will take no action with respect to the Confidential
Information that is inconsistent with the confidential and
proprietary nature of such Information.
b. Trustee and BISYS each shall be permitted to disclose the Confidential
Information of the other only to its employees and agents
("Employees") having a need to know such information in connection
with the performance of the Services. Trustee and BISYS each shall
instruct all such of its Employees as to their obligations under this
Agreement.
c. Subject to the provisions of Section 11 of the Outsourcing Agreement
and for purposes of this Agreement, Confidential Information shall
include all business information of Trustee or BISYS, as applicable,
including the following:
i. information relating to its planned or existing computer systems
and systems architecture, including computer hardware, computer
software, source code, object code, documentation, methods of
processing and operational methods;
ii policyholder or Participant data, customer lists, sales, profits,
organizational restructuring, new business initiatives and
financial information;
iii. information that describes insurance and financial products,
including actuarial calculations, product designs, and how such
products are administered and managed;
iv. information that describes product strategies, tax
interpretations, tax positions and treatment of any item; and
v. confidential information of third parties with which it conducts
business.
d. Notwithstanding the foregoing, Confidential Information of a party
shall not include information that (1) is or becomes generally known
to the public not as a result of a disclosure by the other, (2) is
rightfully in the possession of the other
H-5
prior to disclosure by the first party, or (3) is received by the
other in good faith and without restriction from a third party, not
under a confidentiality obligation to the first party and having
the right to make such disclosure. Trustee and BISYS each
acknowledge that the disclosure of Confidential Information of the
other may cause irreparable injury to the other and damages which
may be difficult to ascertain. Therefore, Trustee and BISYS each
shall, upon a disclosure or threatened disclosure of any of its
Confidential Information, be entitled to injunctive relief,
including, but not limited to, a preliminary injunction and an
order of seizure and impoundment under Section 503 of the Copyright
Act upon an ex parte application by it to protect and recover the
Confidential Information, and the other shall not object to the
entry of an injunction or other equitable relief against it on the
basis of an adequate remedy at law, lack of irreparable harm or any
other reason. Without limitation of the foregoing, Trustee and
BISYS each shall advise the other immediately in the event that it
learns or has reason to believe that any person or entity which has
had access to Confidential Information has violated or intends to
violate the terms of this Agreement.
5. COMPLIANCE WITH PLAN TERMS AND LAWS. At all times, BISYS shall materially
comply with all Plan Documents and all laws, rules and regulations
applicable to it by virtue of entering into this Agreement.
6. FEES.
a. BISYS shall collect on Trustee's behalf the fees and charges specified
on Schedule A attached hereto ("Fees") and may keep such Fees
collected as payment in full for BISYS's satisfactory performance of
its services and obligations under this Agreement. Trustee shall have
no obligation to collect such Fees and shall have no further liability
for payment to BISYS. BISYS shall have the right to terminate
Services for any Plan for non-payment of fees due for more than ninety
(90) days, provided BISYS shall, at least thirty (30) days prior to
any such termination of Services, have informed Trustee of its
intention to do so.
b. Except as otherwise provided in this Agreement, each party will bear
all expenses incidental to the performance of its obligations under
this Agreement.
7. RELATIONSHIP OF PARTIES. Except to the extent BISYS is expressly
authorized in this Agreement to act as Trustee's limited agent for certain
purposes, it is understood and agreed that all services performed under
this Agreement by BISYS will be as an independent contractor and not as an
employee or agent of Trustee, and neither party will hold itself out as an
agent of the other party with the authority to bind such party.
8. USE OF NAMES.
a. Except as otherwise expressly provided for in the Outsourcing
Agreement or otherwise in this Agreement, BISYS will not use, nor
allow its employee or agents to use, the name or logo of Trustee or
any affiliate of Trustee, or any
H-6
products or services sponsored, managed, advised, administered or
distributed by Trustee, for advertising, trade or other commercial
or noncommercial purposes without the express prior consent of
Trustee.
b. Except as otherwise expressly provided for in the Outsourcing
Agreement or otherwise in this Agreement, Trustee will not use, nor
allow its employees or agents to use, the name or logo of BISYS, any
affiliate of BISYS, or any products or services sponsored or offered
by BISYS or any of its affiliates, for advertising, trade or other
commercial or noncommercial purposes without the express prior consent
of BISYS.
9. SUBCONTRACTING.
a. BISYS shall not subcontract any material work or Services under this
Agreement without the prior approval of Trustee. If BISYS does
subcontract work, the limited right granted hereunder to BISYS to
subcontract the tasks specified herein is expressly conditioned upon
BISYS's enforcement and protection of the rights of Trustee pursuant
to this Agreement. If any agent or subcontractor fails to abide by
such agreement, BISYS shall have an opportunity to enforce the
Agreement against such agent or subcontractor and agrees to enforce
the Agreement to Trustee's satisfaction.
b. BISYS shall remain responsible for the performance of all agents and
subcontractors.
c. BISYS shall include a provision in all of its agreements with
subcontractors stating that such subcontractors shall look to BISYS
for payment and shall under no circumstances look to any other party,
including Trustee, for payment. BISYS agrees to defend, indemnify and
hold Trustee liable for any loss, damages, costs, expenses (including
attorneys' fees) incurred due to any claims by or against
subcontractor regarding breach of the provisions of the Agreement,
including, but not limited to, the provisions regarding subcontractor
looking only to BISYS for payment for Services which may be rendered.
10. INDEMNIFICATION.
a. BISYS, as indemnitor, agrees to indemnify and hold harmless Trustee
and each of its affiliates, subsidiaries, directors, officers,
employees, agents and each person, if any, who controls them within
the meaning of the Securities Act of 1933, as amended ("Securities
Act"), against any losses, claims, damages, liabilities or expenses
(including attorneys' fees) to which an indemnitee may become subject
insofar as those losses, claims, damages, liabilities or expenses or
actions in respect thereof, arise directly out of or are based upon
(i) BISYS's negligence, reckless disregard or willful misconduct in
performing the Services, (ii) any breach by BISYS of any material
provision of this Agreement, (iii) any material breach by BISYS of a
representation, warranty or covenant made in this
H-7
Agreement, or (iv) any personal injury or property damage resulting
from the performance of BISYS's obligations under this Agreement or
the fault or negligence of BISYS's directors, officers, employees or
agents. BISYS 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
indemnity agreement will be in addition to any liability which BISYS
may otherwise have.
h. Trustee, as indemnitor, agrees to indemnify and hold harmless BISYS
and each of its affiliates, subsidiaries, directors, officers,
employees, agents and each person, if any, who controls BISYS within
the meaning of the Securities Act against any losses, claims, damages,
liabilities or expenses (including attorneys' fees) to which an
indemnitee may become subject insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) arise directly
out of or are based upon (i) any breach by Trustee of any material
provision of this Agreement, (ii) negligence, reckless disregard or
willful misconduct by Trustee in carrying out its duties and
responsibilities under this Agreement, or (iii) any material breach by
Trustee of a representation, warranty or covenant made in this
Agreement. Trustee will reimburse the indemnitees for any legal or
other expenses reasonably incurred, as incurred, by them in connection
with investigating or defending any such material loss, claim or
action. This indemnity agreement will be in addition to any liability
which Trustee may otherwise have.
c. Promptly after receipt by an indemnitee under this Section 10 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 of the action in accordance with
the provisions of Section 12 of this Agreement within seven (7) days
after the summons or other first legal process shall have been served,
unless within such seven (7) days the indemnitor shall have been
served in the same action, in which case such notification may be
given within sixty (60) days provided that the omission so to notify
the indemnitor will not relieve it from any liability that it may have
to any indemnitee under this Section 10 except to the extent that the
indemnitor has been prejudiced in any material respect by such
failure. The omission so to notify the indemnitor will not relieve it
from any liability that it may have to any indemnitee otherwise than
under this Section 10. If any such action is brought against any
indemnitee and it notifies the indemnitor of the commencement of the
action, the indemnitor will be entitled to assume the defense of the
action with counsel reasonably satisfactory to the indemnitee, and the
defendant or defendants in such action entitled to indemnification
under this Agreement will have the right to participate in the defense
or preparation of the defense of any such action. If the indemnitor
elects to assume the defense of any such action, and to retain counsel
of good standing, the defendant or defendants in such action will bear
the fees and expenses of any additional counsel retained by any of
them; but if the indemnitor does not assume the defense of any such
action, the indemnitor will reimburse the indemnitee(s)
H-8
named a defendant or 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 will
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 regarding the
action, 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.
d. Notwithstanding the above, the provisions of this Section 10 shall not
apply if, and to the extent that, BISYS satisfies its obligations
under Section 30 of the Outsourcing Agreement.
11. TERM AND TERMINATION.
a. The initial term of this Agreement shall be two (2) years from the
Effective Date and shall automatically be extended for successive two
(2)-year terms unless, at least one hundred and eighty (180) days
prior to the end of such initial or subsequent term, BISYS gives
Trustee notice that such term shall not be extended.
b. If, pursuant to Section 31(c) or (d) of the Outsourcing Agreement,
Prudential requests that BISYS transfer, and BISYS so transfers,
responsibility for servicing particular Plans, BISYS's responsibility
and authority to perform, or arrange for the performance of, Services
under this Agreement for such Plans shall cease upon such transfer(s).
c. If, pursuant to Section 31(e) of the Outsourcing Agreement, BISYS
terminates its obligation to accept additional Plans for servicing,
BYSYS's responsibility and authority to perform, or arrange for the
performance, of Services under this Agreement shall cease on the
effective date specified by BISYS pursuant to Section 31(e) of the
Outsourcing Agreement.
d. Notwithstanding the above, this Agreement shall automatically
terminate in the event of termination of the Outsourcing Agreement.
12. NOTICE. Each notice required by this Agreement must be 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):
H-9
If to Trustee, to: *
---------------------------------
---------------------------------
---------------------------------
---------------------------------
* with a copy to:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
If to BISYS, to: *
---------------------------------
---------------------------------
---------------------------------
---------------------------------
* with a copy to:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
13. COMPLETE AGREEMENT. This Agreement contains the full and complete
understanding of Trustee and BISYS and supersedes all prior
representations, promises, statements, arrangements, agreements, warranties
and understandings between Trustee and BISYS with respect to the subject
matter of this Agreement, whether oral or written, express or implied.
14. Modification and Approval. This Agreement may be modified or amended, the
terms of this Agreement may be waived, and any agreement of Trustee and
BISYS, or the approval or consent of either of them, required herein may be
made, only by writing signed by such party. Any approval or consent
required in this Agreement shall not be unreasonably withheld or delayed.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania applicable to
agreements fully executed and to be performed therein, without reference to
choice of law principles. Any suit, action or proceeding arising out of or
relating to this Agreement shall be brought in a
H-10
Pennsylvania court, and BISYS hereby consents to the exclusive jurisdiction
of the courts of Pennsylvania.
16. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same Agreement.
17. ASSIGNMENT. This Agreement cannot be assigned by either party hereto,
without the prior written consent of the other parties hereto, except that
a party may assign this Agreement to an affiliate having the same ultimate
ownership as the assigning party without such consent.
18. SURVIVAL. The provisions of Sections 3, 4, 8 and 10 will survive
termination of this Agreement.
19. NON-EXCLUSIVITY. Each of the parties acknowledges and agrees that this
Agreement and the arrangement it describes 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, subject to the other
provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the day and year written above.
PRUDENTIAL TRUST COMPANY
By:
------------------------------
Its:
-----------------------------
BISYS PLAN SERVICES, L.P.
By:
------------------------------
Its:
-----------------------------
H-11
SCHEDULE A TO
TRUSTEE SERVICES DELEGATION AGREEMENT
FEES
THE FOLLOWING FEES AND CHARGES MAY BE IMPOSED WITH RESPECT TO BISYS'S SERVICES
TO PLANS:
- Trust service: $500 per Plan per year
provided, however, that BISYS may impose such fee(s) and charge(s), if
different from or in addition to the foregoing, that are not duplicative of
any of the fees charged under the Outsourcing Agreement, subject to
Prudential's right to receive reasonable notice of such fees or any changes
to them. Subject to the preceding sentence, if the person with whom BISYS
arranges to provide trust and accounting services under this Agreement is
Frontier Trust Company, BISYS may charge the fees for the services
applicable to Plans, as set forth in Exhibit O-2 of the Outsourcing
Agreement, as such may be changed from time to time after reasonable prior
notice to Prudential.
H-12
SCHEDULE I TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
ORDER PLACEMENT, PROCESSING AND RELATED SERVICES
BISYS shall provide, or arrange with a third party designated in accordance with
Section 10(b) of this Agreement for the provision of, the following order
placement, processing and related services with respect to transactions in
mutual fund Investment Options.
- Establish a single account ("Account") for each Plan with each Fund in
which the Plan invests.
- Designate Prudential Services Incorporated ("PSI") as each Plan's
broker of record on the Account and assign or change the appropriate
PSI registered representative only as directed by Prudential.
- Transmit, directly or indirectly on each business day to the
appropriate Investment Option, the appropriate data associated with
each Plan's transaction(s) that day with respect to that Investment
Option.
- Process all Plan Investment Option transactions each business day and
on a timely basis to ensure same day pricing.
- Reconcile on each business day each Account balance to BISYS's
recordkeeping system.
- Pay commissions (including trail commissions) received with respect to
Investment Options, as applicable, to PSI.
- Properly calculate and track, and provide reports to PSI showing, the
commissions (including trail commissions) payable to PSI and to each
PSI registered representative, currently at the rate of 80% of the
fees payable to PSI, with respect to the Accounts, except where
commissions are paid through the National Securities Clearing
Corporation, in which case no such reports shall be required of BISYS.
I-1
SCHEDULE J TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
TRAINING AND MARKETING SUPPORT AND MATERIALS
The training and marketing support and materials to be provided by BISYS shall
be as agreed upon by Prudential and BISYS.
J-1
SCHEDULE K TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
REPORTS BY BISYS TO PRUDENTIAL
BISYS shall provide to Prudential reports corresponding in substance to the
attached Exhibits K-1 through K-4, in substantially the same format or such
other format as Prudential and BISYS may agree, and with the frequency indicated
on the particular report, as such Exhibits may be modified from time to time by
agreement of Prudential and BISYS. BISYS shall provide such additional reports
as may be required by Prudential in such formats as Prudential and BISYS may
agree.
K-1
EXHIBIT K-1
TRUST REPORT
BYSIS shall provide Prudential, on at least a monthly basis, an EXCEL
spreadsheet in electronic form that contains the following information for each
Plan:
Plan #
Plan Name
Fund ID Code
Fund Name
Market Value
Units
BYSIS shall also provide Prudential with copies of the reconciliations performed
between BYSIS and each Plan trustee.
K-2
EXHIBIT K-2
BISYS OPERATION REPORT PRU ARRAY DISCOVERY SELECT
W. Class Week 25 Week 24 YTD W. Class Week 25 Week 24 YTD
Indicator 26-Jun-98 19-Jun-98 Wkly Avg Indicator 26-Jun-98 19-Jun-98 Wkly Avg
WEEK 25
WK ENDING 26-JUN-98
STAFFING
Total # Staff
Total Outside Help
Management/Non-Management %
FINANCIAL
Assets Under Management (000s)
# Inforce (Participants, Contracts)
(000s)
NEW BUSINESS (ENROLLMENTS)
On-Hand Beginning of Week
Received
Processed
MisDirects
Rejects
On-Hand End of Week
Processing Standard
% meeting standard (99% W C S) *
# items greater than standard
% Quality (99% W C S) *
SURRENDERS
# Full Surrenders
$ Full Surrenders
CALL CENTERS
Total Call Volume
% VRU (70% W C S) *
Average Speed to Answer (20 secs W C *
S) *
Abandon Rate (2% W C S) *
Service Level (% calls ans in 20 sec *
or less)
Once and Done (60% W C S)
COMPLAINTS
On-Hand Beginning of Week
Received
Redirected
Resolved
On Hand EOP
24 Hour Acknowledgement (95% W C S) *
5 Day Resolution (95% W C S) *
DISTRIBUTIONS/DISBURSEMENTS
Periodic Payment (000s)
On-Hand Beginning of Week
Received
Processed
MisDirects
Rejects
On-Hand End of Week
Processing Standard
% meeting standard (99% W C S) _
# items greater than standard
% Quality (99% W C S) *
REMITTANCES/CONTRIBUTIONS
On-Hand Beginning of Week
Received
Processed
MisDirects
Rejects
On-Hand End of Week
Processing Standard
% meeting standard (99% W C S) *
# items greater than standard
% Quality (99% W C S) *
K-3
EXHIBIT K-2, CONTINUED
BISYS OPERATION REPORT TOTAL (WHERE APPROPRIATE)
W. Class Week 25 Week 24 YTD
Indicator 26-Jun-98 19-Jun-98 Wkly Avg
WEEK 25
WK ENDING 26-JUN-98
STAFFING
Total # Staff
Total Outside Help
Management/Non-Management %
FINANCIAL
Assets Under Management (000s)
# Inforce (Participants, Contracts)
(000s)
NEW BUSINESS (ENROLLMENTS)
On-Hand Beginning of Week
Received
Processed
MisDirects
Rejects
On-Hand End of Week
Processing Standard
% meeting standard (99% W C S)
# items greater than standard
% Quality (99% W C S)
SURRENDERS
# Full Surrenders
$ Full Surrenders
CALL CENTERS
Total Call Volume
% VRU (70% W C S)
Average Speed to Answer (20 secs W C
S)
Abandon Rate (2% W C S)
Service Level (% calls ans in 20 sec
or less)
Once and Done (60% W C S)
COMPLAINTS
On-Hand Beginning of Week
Received
Redirected
Resolved
On Hand EOP
24 Hour Acknowledgement (95% W C S)
5 Day Resolution (95% W C S)
DISTRIBUTIONS/DISBURSEMENTS
Periodic Payment (000s)
On-Hand Beginning of Week
Received
Processed
MisDirects
Rejects
On-Hand End of Week
Processing Standard
% meeting standard (99% W C S) _
# items greater than standard
% Quality (99% W C S) *
REMITTANCES/CONTRIBUTIONS
On-Hand Beginning of Week
Received
Processed
MisDirects
Rejects
On-Hand End of Week
Processing Standard
% meeting standard (99% W C S) *
# items greater than standard
% Quality (99% W C S) *
K-4
EXHIBIT K-3
FINANCE REPORT
Monthly & YTD:
- Summary of Plans and Participants, including new Plans added and Plans
cashing out
- Assets flows by fund/share class, including
BOP Assets
Converting assets
Contributions
Cashouts
Distributions
Net Loans
Net Exchanges
Dividends and Market Appreciation
EOP assets
- For Plans with Guaranteed Interest Account
Cash flow information listed above, by market (i.e. 401(k), etc.)
New money by quarter
- Commission Information
Asset sales and commissions payable by F/A or Agent
- Transfer Agency Information
Total number of Participant accounts by fund (proprietary and
non-proprietary)
- Outside Fund Commissions
Sales (contributions, conversions and net exchanges) by Plan and
Agent for all non-Prudential fund options
K-5
EXHIBIT K-4
BPS SYSTEM UPTIME STATISTICS
Digital UNIX system up time statistics from _______________________
The UNIX server is currently a DEC 4100 which is operational 7 by 24.
Our service standard is to have the system operational 100% of the time with
scheduled weekly maintenance on the weekends.
Scheduled Down Time:
--------------------
Time system went down Time system came up Total time down Reason
--------------------- ------------------- --------------- ------
Unscheduled Down Time:
Time system went down Time system came up Total time down Reason
--------------------- ------------------- --------------- ------
Up Time:
--------
Total Elapse Time =
Up Time:
Percentage Up Time:
K-6
SCHEDULE L TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
PROCESS TRACKING SYSTEM
The Process Tracking System will allow users to track the progress of various
recordkeeping procedures. This application will also allow users to see the
underlying detail of various activities. Items to be tracked are as follows:
1. Financial Activity
- Contributions
- Distributions
- Earnings/Fees
- Exchanges
2. Client Communications
- Enrollment Forms
- Mail Confirm (MPC)
3. Compliance Testing
- 415
- Discrimination (ADP)
4. Mail Log/Data Entry
- Census
- Enrollment Forms
- Payroll Controls
- Transaction Forms
5. Participant Indicative Change
- By Participant
6. Statements
- Production Information
The Process Tracking System will be implemented by September 17, 1998.
L-1
SCHEDULE M TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
PIN SECURITY ENHANCEMENTS
BISYS SHALL PROVIDE THE FOLLOWING ENHANCEMENTS TO ITS PERSONAL IDENTIFICATION
NUMBER ("PIN") SECURITY:
- The initial PIN shall be randomly generated and not available for
viewing within BISYS. Encryption of PINs shall be present throughout
the system.
- PINs shall be mailed in automatically generated PIN envelopes directly
to the respective Participants or Employers, as applicable.
- A Participant who uses his or her randomly generated PIN may reset his
or her PIN over the Voice Response Unit.
- PIN reset shall follow the process specified above if a Participant
forgets his or her PIN.
- Employer master PINs and associated transaction authority shall be
restricted in accordance with security procedures established for the
Plan.
M-1
SCHEDULE N TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
SYSTEMS ENHANCEMENT WORK PLAN
BISYS SHALL IMPLEMENT THE FOLLOWING SYSTEMS ENHANCEMENTS, AND BY THE RESPECTIVE
FINAL DATES INDICATED:
ID TASK NAME DESCRIPTION FINAL DATE
112 Frontier Trust Project to fulfill special reporting requirements, which
includes check history, balance reports and general client data.
Tue 8/4/98
98 Mail Log System Programs to record receipt of all incoming mail for clients that
are converted to new system.
Program Complete/Phase II includes special reporting requests. Tue 8/11/98
127 Block Conversion Program Programs to convert partners, clients in mass from old system to
new system.
Phase I completed in early May. Phase II includes new broker
definitions and new compensation and contribution definitions
for ASC software. Fri 8/14/98
153 Plan Administrator ADMIN Project to produce administrator's report on a quarterly basis.
Desktop version complete; working on batch version using
Medicode printer. Mon 8/17/98
123 Compliance Project to connect Recordkeeping database to ASC compliant
software. Also make test results available to monthly plan
confirms and process control system. Wed 8/19/98
162 Global Processing Refer to separate Global Processing description. Fri 8/21/98
180 New Business/Conversion Plan Project to expedite and automate the setting up of new plans.
Part of the process will be enabled by the WyStar Plan Processes
(Plan Cloning). Rest of project is special allocation
procedures requested by the conversion group. Fri 8/28/98
183 Data Entry Project to add new functionality and reporting capabilities to
the keying process for MCS, Census, Enrollments and Transaction
forms. Functionality will include the driving of keyers through
the transaction form process, dropping problem forms into "red"
box and creating status reports for the customer service area. Tue 9/8/98
N-1
196 Customer Service Log Creating new customer service log with GUI front end allowing
for sorting/reporting capabilities off of log entries.
Application will allow linking to the new process control
screens. Tue 9/29/98
202 Process Control Refer to separate Process Control description. Thu 9/17/98
Pin Procedure Project to automate the production of pin numbers Tue 10/6/98
72 Distribution Processing Project to generate check-writing instructions for transmission
to appropriate trust companies. Also includes new distribution
reports. Transmission project is complete. Reporting part is
in acceptance. Phase II - new loan reports, update check
history, Premier distribution Accounts. Fri 10/9/98
213 Statement Backend Processing Project to deliver up-front editing, automatic extraction and
statement production. Tue 10/20/98
221 Enrollment Process Project Project to automate the production of enrollment forms and to
generate those forms on Medicode printers. Tue 11/3/98
176 1099R Process Project to pull 1099R form information from the new
Recordkeeping database. That information will feed currently
existing end of year process. Date moved out, specs not ready. Fri 12/4/98
251 Stif Processing Project to automatically calculate and allocate short term
interest. Fri 12/11/98
255 EOY Auditors Pack This project is being merged with Year End Summary. Fri 1/8/99
259 Loan Default Letters Project to automate delivery of Loan Default Letters and
generate 1099s. Fri 2/5/99
263 Automate Trust Reports Project to automate the production and delivery of trust reports
including an automatic reconciliation to recordkeeping balances. Mon 2/15/99
N-2
SCHEDULE O TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
FEES
A. FOR PLANS OTHER THAN THOSE DESIGNATED BY PRUDENTIAL PURSUANT TO
SECTION 2(c) OF THE AGREEMENT:
THE FOLLOWING FEES AND CHARGES MAY BE IMPOSED WITH RESPECT TO BISYS'S SERVICES
TO PLANS WHOSE ADMINISTRATIVE SERVICES AGREEMENTS ARE EFFECTIVE ON OR AFTER THE
EFFECTIVE DATE:
- Annual fee per Plan: $2,000
- Annual fee per Participant: $14 or $28, as determined by Prudential
- Installation charge for all startup Plans: $1,500 per Plan, one-time,
nonrefundable upon submission of executed Administrative Services Agreement
- Conversion charge: $2,500 per Plan, one-time - $1,500 nonrefundable upon
submission of executed Administrative Services Agreement and $1,000 upon
completion of conversion
- Trust service: $500 per Plan per year (Trust services are offered through
Prudential Bank & Trust Company or Prudential Trust Company.)
- Signature-ready 5500: $600 per Plan per year (Information required to
complete the 5500 is included in the basic fee for full-service Plans.)
- Testing: Additional fee for top-heavy tests: $350 per test
- Check fee: $15 per check charged to Participant
- Manual contribution data processing: $15 per Participant per year
- Loans: $75 origination fee; $60 maintenance fee per Participant with
outstanding loan balance per year
- Special services: See attached Exhibit O-1 for applicable fee schedule
- Termination/cash-out charge: $1,000, one-time
THE FOLLOWING SERVICES PROVIDED BY BISYS TO PLANS WHOSE ADMINISTRATIVE SERVICES
AGREEMENTS ARE EFFECTIVE ON OR AFTER THE EFFECTIVE DATE WILL NOT BE SUBJECT TO A
SEPARATE FEE OR CHARGE:
- Standard or nonstandard prototype Plan document (nonstandardized filing fee
$500 plus $125 IRS user fee)
- Testing: Semi-annual testing for full-service Plans include: ADP/ACP,
402(g), 415. Assumes required data is provided in the specified electronic
format.
- Quarterly Participant statements
A. FOR PLANS DESIGNATED BY PRUDENTIAL PURSUANT TO SECTION 2(C) OF THIS
AGREEMENT:
THE FOLLOWING FEES AND CHARGES MAY BE IMPOSED WITH RESPECT TO BISYS'S SERVICES
TO PLANS WHOSE ADMINISTRATIVE SERVICES AGREEMENTS ARE EFFECTIVE ON OR AFTER THE
EFFECTIVE DATE AND FOR WHICH NO SERVICES ARE PROVIDED BY BISYS PURSUANT TO
SECTION 2(a)(4) OF THE AGREEMENT:
- Annual fee per Participant: $14 for Plans with mutual fund Investment
Options
- Plan setup: $500
- Plan conversion: $500 plus $3 per Participant with an account balance
(assumes transfer of
O-1
Plan account balances are completely reconciled in BISYS system)
- Treasury service: $300 (assumes no trust reporting)
- Loans: $75 origination fee; $60 maintenance fee per Participant with
outstanding loan
- Distribution checks: $15 deducted from each distribution check
- Special services: See Section A. of attached Exhibit O-1 for applicable
fee schedule.
X-0
XXXXXXX X-0
SPECIAL SERVICES FEE SCHEDULE
A. Depending upon its needs, the Employer may request additional services
beyond those required for normal recordkeeping and reporting (as set forth
in the Administrative Services Agreement). Additional services will be
billed by BISYS on a flat dollar basis. Examples of additional services
are:
- Interim or off-quarter account balances -- $250
- Plan refunds required due to failing either the ADP or ACP test --
$100 per refund
- Plan refunds required under IRS rules -- $100 per refund
- Plan valuation due to improper financial data or employee census
information supplied by the Employer or its agent -- $500
- Reprocessing of monthly contribution information due to the receipt of
erroneous data -- $500
- Reprocessing of distributions, transfers, or forfeitures due to the
receipt of erroneous data -- $100 per transaction
- Multiple payroll location hard copy -- $250 annually
- Calculate matching, profit sharing, QNEC, QMAC -- $500
- Retroactive recordkeeping 200% of standard fees for the period
specified as retroactive activity
- The standard service is to mail Participant statements to the
Employer. If the Employer requires statements mailed directly to
Participants, this will be billed at $.60 per quarter per Participant
($2.40 per Participant per year) to cover postage and mailing expense.
This cost may change from time to time based upon current postage and
handling rates.
- Plan year-end summary -- $300
- Frozen assets incur a 50% increase in standard recordkeeping fees.
BISYS may add fees for special services, or change any fees for special
services, upon reasonable prior notice to Prudential.
B. BISYS may also charge such fees as are applicable to Plans under the fee
schedule of the person providing trust and accounting services under
Section 2(b) of the Agreement and that are not duplicative of any of the
fees otherwise identified on Schedule O to the Agreement, subject to
Prudential's right to receive reasonable prior notice of such fees or any
changes to them. Subject to the preceding sentence, if such service
provider is Frontier Trust Company, BISYS may charge the fees for the
Services applicable to Plans, as set forth in Exhibit O-2 attached hereto,
as such may be changed from time to time after reasonable prior notice to
Prudential.
O-3
EXHIBIT O-2
FRONTIER TRUST COMPANY
FEE SCHEDULE EFFECTIVE JANUARY 1, 1998
A. Set Up. There is no set up fee if the only assets in the plan are the
standard investments offered in the 401(k) Program. There is a $500 set up
fee for each non-standard asset except company stock which has a $1,000 set
up fee.
Frontier will generally accept the following non-standard assets:
1. Annuity contracts and insurance policies issued by leading insurance
companies.
2. GIC contracts issued by leading insurance companies.
3. Real estate investment trust interests IF the current trustee of the
REIT will sign the Frontier Trust Custodial Agreement.
4. Company (i.e., employer) stock.
5. Certificates of deposit issued by major banking institutions.
Frontier will not accept:
1. Limited partnership interests. 4. Mortgages.
2. Collectibles (e.g. art, coins). 5. Real estate.
3. Brokerage account assets.
The ownership of all non-standard assets must be changed to: Frontier Trust
Company FBO The (Plan Name) 401(k) Plan. With the exception of company stock,
new contributions cannot be allocated to non-standard assets.
B. Annual Fee. The annual fee is $500 if the only assets are the standard
investments offered in the 401(k) Program. For each non-standard asset, except
company stock, there will be a $50 charge for each transaction, with a minimum
additional annual fee of $200 which covers the first four transactions. The
company stock fee will be an additional $1,000 per year. All fees quoted are
based on contributions being invested once per month and contributions being
sent to Frontier by check. If contributions are sent to Frontier by wire, there
is a fee of $10 per wire. If contributions are to be invested more than once
per month (12 times per year), add $15 to the $500 annual fee for each
additional investment.
C. Check Fees. The fee for issuing a check to a plan participant from paper
documents is $30. The fee for issuing a check to a plan participant from
diskette or computer transmission is $15. After checks have been issued,
Frontier retains any interest earned on amounts in its disbursement account.
Stop payments are $10.
If a check is returned to be reinvested, the original fee plus a processing fee
of $10 is charged.
O-4
If a check to be reissued is returned, the total fee includes: the original
check fee, $10 for processing the void, and the new check fee. If a check to be
reissued is not returned, the total fee includes: the original check fee, $20
for processing (including the stop payment fee), and the new check fee.
If a check made payable to a new trustee or XXX is returned to be made payable
to the participant (or vice versa), the original fee plus a processing fee of
$50 is charged. A check made payable to a participant will not be changed to be
payable to a new trustee or XXX unless the check was made payable to the
participant due to an error made by someone other than the participant.
D. Miscellaneous Fees. 1. There is a fee of $150 to process a plan
termination or a transfer of plan assets to a new trustee. In addition, all
outstanding fees must be paid before the plan assets are distributed or
transferred. 2. A fee of $25 is charged if a check is returned for
non-sufficient funds or account closed.
E. Fee Increases. Increases in annual fees will be applicable as of January 1
and become effective for a given plan on the anniversary of the trust effective
date on or after January 1. Increases in check fees will be announced 90 days
in advance and become effective on the date specified.
O-5
SCHEDULE P TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
USE OF NAMES
BISYS may use the name or logo of Prudential or a Prudential affiliate, or
of a Prudential product or service, as such may be contained in Prudential's
Administrative Services Agreement, the Plan documents, including the Adoption
Agreement, the summary plan description and statements to Employers and
Participants, solely for the purpose of providing services under this Agreement.
Prudential may use the name of BISYS or a BISYS affiliate, or of a BISYS
product or Service, as such may be contained in materials used to explain to
clients, potential clients or other relevant parties the nature of the Services
offered under this Agreement.
P-1
SCHEDULE Q TO
RETIREMENT PLAN SERVICES OUTSOURCING AGREEMENT
STANDARDS FOR TRANSFER OF PLANS BACK TO PRUDENTIAL OR ITS DESIGNEE FOR SERVICING
For all transfers of plan servicing, BISYS shall:
- Review attached data requirements prior to conference call with Prudential.
- Assign a Programmer/Analyst who can answer questions regarding tape layout
and contents
- Provide Prudential with the layout of the conversion files prior to
conference call.
- Provide Prudential with a code/symbol translation key prior to conference
call.
- Ensure that the format and content of the test and live files are exactly
the same.
- Supply control totals for all financial data.
- Supply hard copy reports.
- Provide the data set forth in Exhibit S-1 to this Schedule. In this
regard:
Data may be provided via tape, diskette, or data transmission.
Tapes should be in EBCDIC format.
Diskettes should be in ASCII (text) format.
Modem instructions will be provided upon request.
Q-1
EXHIBIT Q-1
CONVERSION DATA REQUIREMENTS
PARTICIPANT DATA ELEMENTS
--------------------------------------------------------------------------------
DATA ELEMENT EXPLANATION COMMENTS
--------------------------------------------------------------------------------
Social Security Number Required field for every Not hyphenated.
record.
--------------------------------------------------------------------------------
Participant Name Prudential format uses
two fields: (1) Last
Name (2) First Name,
MI.
--------------------------------------------------------------------------------
Date of Birth
--------------------------------------------------------------------------------
Date of Hire
--------------------------------------------------------------------------------
Date of Participation
--------------------------------------------------------------------------------
Vesting Date Used if vesting is
calculated using a date
other than date of hire
or date of
participation.
--------------------------------------------------------------------------------
Date of Termination
--------------------------------------------------------------------------------
Status Translation key
required.
--------------------------------------------------------------------------------
Marital Status
--------------------------------------------------------------------------------
Employee ID Number
--------------------------------------------------------------------------------
Street Address Prudential format uses
up to two street
address lines.
--------------------------------------------------------------------------------
City, State and ZIP Code
--------------------------------------------------------------------------------
Division Used for sorting client Translation key
data. required.
--------------------------------------------------------------------------------
Deferral Rates Use separate fields if
multiple source deferral
rates are stored.
--------------------------------------------------------------------------------
Investment Allocation Use separate fields if Each source investment
multiple source allocation must add to
investment allocations 100%.
are stored.
--------------------------------------------------------------------------------
Vesting Modifiers Prior years and hours of
service.
--------------------------------------------------------------------------------
Vesting Overrides Used when system
calculated vesting is
being overridden.
--------------------------------------------------------------------------------
Q-2
FINANCIAL DATA ELEMENTS
--------------------------------------------------------------------------------
DATA ELEMENT EXPLANATION COMMENTS
--------------------------------------------------------------------------------
Investment Balances by Cash Fields As of valuation date.
Source Should not include
outstanding loan
balances.
--------------------------------------------------------------------------------
Share Balances by Source Share Fields Same as above.
--------------------------------------------------------------------------------
Tax Cost Basis for After- Post 86 Contributions Net of withdrawals.
Tax Sources Pre 87 Contributions
Cash Fields
--------------------------------------------------------------------------------
Hardship Balances for Pre- This amount is equal to
Tax Sources the 12/31/88 market value
plus post 88
contributions less
withdrawals for pre-tax
sources only.
--------------------------------------------------------------------------------
Inception to Date Cash Fields
Contributions by Source
--------------------------------------------------------------------------------
Year to Date Contributions Cash Fields
by Source
--------------------------------------------------------------------------------
Cost Basis of Company
Stock
--------------------------------------------------------------------------------
Pending Forfeitures Please indicate how
pending forfeiture
amounts are tracked.
--------------------------------------------------------------------------------
Inception to Date Cash Fields
Withdrawals by Source
Q-3
LOAN DATA ELEMENTS
--------------------------------------------------------------------------------
DATA ELEMENT EXPLANATION COMMENTS
--------------------------------------------------------------------------------
Loan ID Prudential may need to
assign new loan ID.
--------------------------------------------------------------------------------
Original Loan Amount
--------------------------------------------------------------------------------
Loan Origination Date
--------------------------------------------------------------------------------
Interest Rate
--------------------------------------------------------------------------------
First Payment Date
--------------------------------------------------------------------------------
Payment Amount Cash Fields
--------------------------------------------------------------------------------
Total Number of Payments
--------------------------------------------------------------------------------
Loan Duration
--------------------------------------------------------------------------------
Total Number of Payments
Made
--------------------------------------------------------------------------------
Payment Frequency Translation key
required.
--------------------------------------------------------------------------------
Next Payment Due Date
--------------------------------------------------------------------------------
Outstanding Balances by Cash Fields As of the valuation
Source date.
--------------------------------------------------------------------------------
Highest Outstanding
Balance for Each of the
Previous 12 Months
--------------------------------------------------------------------------------
Loan Reinvestment Method Will default to current
contribution
allocation.
--------------------------------------------------------------------------------
Q-4
