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SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 26th of July, 2000, by and between Advantus
Mortgage Securities Fund, Inc., a Minnesota corporation, having its principal
office and place of business at 400 Robert Street North, St. Paul, Minnesota
55101 (the "Fund"), and Minnesota Life Insurance Company, a Minnesota
corporation having its principal office and place of business at 400 Robert
Street North, St. Paul, Minnesota 55101 ("ML").
WHEREAS, the Fund has contracted with PFPC Inc. formerly "First Data
Investor Services Group, Inc.", (the "Transfer Agent"), to provide customary
transfer agent services to the Fund; and
WHEREAS, the Fund has reserved certain shareholder servicing tasks and
responsibilities ("Shareholder Services") which are to be performed by ML rather
than the Transfer Agent; and
WHEREAS, the Fund has further reserved certain accounting, auditing,
legal and other administrative tasks and responsibilities ("Administrative
Services") to be performed by ML; and
WHEREAS, the Fund desires to appoint ML as its Shareholder Services
agent and agent in connection with certain other Administrative Services, and ML
desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT AND DUTIES OF ML
1.01 Subject to the terms and conditions set forth in this Agreement,
and in accordance with procedures established from time to time by agreement
between the Fund and ML, ML hereby agrees to provide the following
Administrative Services:
(a) Register or qualify, and maintain the registrations or
qualifications, of the Fund and its common stock ("Shares") under
state or other securities laws;
(b) Calculate the Fund's net asset value per Share at such times and
in such manner as specified in the Fund's current prospectus and
statement of additional information and at such other times as the
parties hereto may from time to time agree upon;
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(c) Upon the Fund's distribution of dividends and capital gains,
calculate the amount of such dividends and capital gains to be
received per Share and calculate the number of additional Shares to be
received by each Shareholder, other than any shareholder who has
elected to receive such dividends and capital gains in cash;
(d) Prepare and maintain all accounting records required by the Fund,
including a general ledger;
(e) Prepare the Fund's annual and semi-annual financial statements;
(f) Prepare and file the Fund's income, excise and other tax returns;
(g) Provide audit assistance in conjunction with the Fund's
independent auditors;
(h) Provide such legal services as the parties hereto may from time to
time agree upon, including without limitation preparation and filing
with the Securities and Exchange Commission of the annual or more
frequent post-effective amendments to the Fund's registration
statement and the Fund's proxy materials; and
(i) Provide such other Administrative Services as the parties hereto
may from time to time agree upon.
1.02 As Shareholder Services agent, ML agrees to provide or perform
the following Shareholder Services in accordance with procedures established
from time to time by agreement between the Fund and ML:
(a) Receive telephone redemption requests, telephone redemption
directions, wire order purchase requests and telephone transfer
instructions, and deliver such requests, directions and instructions
together with other appropriate information, to the Transfer Agent;
(b) Provide customer service representatives to respond to telephone
inquiries relating to the Fund from customers, shareholders and/or
registered representatives and forward any pertinent information,
including without limitation instructions pertaining to any periodic
investment plan, periodic withdrawal plan or other plan set out in the
currently effective prospectus, or requests to the Transfer Agent. ML
shall transmit electronically, via U.S. mail or any other delivery
means ML determines to be suitable, any Shareholder or account
transaction instructions received, to the Transfer Agent in a timely
fashion; and
(c) ML will calculate any minimum required distribution amounts for
plans qualified under Section 401(a) or 408 of the Internal Revenue
Code, as
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that term is defined under the Code or delegate such responsibility to
a suitable agent, with the Fund's approval.
Article 2 ADDITIONAL DUTIES
2.01 ML shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the Rules thereunder, ML agrees that all such records prepared or maintained by
ML relating to the services to be performed by ML hereunder are the property of
the Fund and will be preserved, maintained and made available in accordance with
such Section and Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
2.02 ML and the Fund agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required be law.
2.03 ML will endeavor to notify the Fund and to secure instructions
from an authorized officer of the Fund in case of any requests or demands for
the inspection of Shareholder records. ML reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the Shareholder
records to such person.
Article 3 FEES AND EXPENSES
3.01 For Shareholder Services performed by ML pursuant to this
Agreement, the Fund will pay ML an annual account servicing fee as set forth in
Schedule A. In addition to the fees, the Fund will reimburse ML for
out-of-pocket expenses or advances incurred by ML. Such fees, out-of-pocket
expenses or advances may be changed from time to time subject to mutual written
agreement between the Fund and ML.
3.02 For Administrative Services performed by ML pursuant to this
Agreement, the Fund will pay ML a monthly Administrative Services Fee as set
forth in Schedule A. In addition to the fees, the Fund will reimburse ML for
out-of-pocket expenses or advances incurred by ML. Such fees, out-of-pocket
expenses or advances may be changed from time to time subject to mutual written
agreement between the Fund and ML.
Article 4 REPRESENTATIONS AND WARRANTIES OF ML
ML represents and warrants to the Fund that:
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4.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Minnesota.
4.02 It is duly qualified to carry on its business in the State of
Minnesota
4.03 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
4.04 It agrees to obtain and maintain, all regulatory licensing as may
be required of it, if any, under this Agreement.
Article 5 REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to ML that:
5.01 It is a corporation duly organized and existing and in good
standing under the laws of Minnesota.
5.02 It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform this Agreement.
5.03 All corporate proceedings required by said Articles of
Incorporation and Bylaws have been taken to authorize it to enter into and
perform this Agreement.
5.04 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940.
5.05 A registration statement under the Securities Act of 1933 is
currently effective and will remain effective, and appropriate state securities
law filings have been made and will continue to be made, with respect to all
Shares of the Fund being offered for sale.
Article 6 INDEMNIFICATION
6.01 ML shall not be responsible for, and the Fund shall indemnify and
hold ML harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable
to:
(a) All actions of ML or its agent or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in good
faith without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
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(c) The reliance on or use by ML or its agents or subcontractors of
information, records and documents which (i) are received by ML or is agents or
subcontractors and furnished to it by or on behalf of the Fund, and (ii) have
been prepared and/or maintained by the Fund or any other person or firm on
behalf of the Fund.
(d) The reliance on, or the carrying out by ML or its agents or
subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws or regulations
of any state that such Shares be registered in such state or in violation of any
stop order or other determination or ruling by any federal agency or any state
with respect to the offer or sale of such Shares in such state.
6.02 ML shall indemnify and hold the Fund harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to any action or failure or
omission to act by ML as a result of ML's lack of good faith, negligence or
willful misconduct, or ML's refusal or failure to comply with the terms of this
Agreement, or which arise out of the breach of any representation or warranty of
ML hereunder.
6.03 At any time ML may apply to any officer of the Fund for
instructions, and may consult with legal counsel to the Fund with respect to any
matter arising in connection with the services to be performed by ML under this
Agreement, and ML and its agents or subcontractors shall not be liable and shall
be indemnified by the Fund for any action taken or omitted by it in good-faith
reliance upon such instructions or upon the opinion of such counsel. ML, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Fund, reasonably believed to
be genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided ML or its agents
or subcontractors by machine readable input, telex, CRT data entry or other
similar means authorized by the Fund, and shall not be held to have notice of
any change or authority of any person, until receipt of written notice thereof
from the Fund. ML, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of the Fund, and
the proper countersignature of any transfer agent or registrar, or of a
co-transfer agent or co-registrar.
6.04 In the event any party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, the party shall not be liable for damages to the
other parties for any damages resulting from such failure to perform or
otherwise from such causes.
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6.05 No party to this Agreement shall be liable to any other party for
consequential damages, whether under any provision of this Agreement or for any
act or failure to act hereunder.
6.06 In order that the indemnification provisions contained in this
Article 6 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 7 TERMINATION OF AGREEMENT
7.01 This Agreement may be terminated by either party upon sixty (60)
days written notice to the other party.
Article 8 ASSIGNMENT
8.01 Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
Article 9 AMENDMENT
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the Board
of Directors of the Fund.
Article 10 GOVERNING LAW
10.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Minnesota.
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Article 11 ENTIRE AGREEMENT
11.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
Article 12 EFFECTIVE DATE
12.01 This Agreement shall be effective as of May 1, 2000.
IT WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
ADVANTUS MORTGAGE SECURITIES
FUND, INC.
By_________________________________________________________
William N. Westhoff, President
Attest_____________________________________________________
Frederick P. Feuerherm, Treasurer
MINNESOTA LIFE INSURANCE COMPANY
By_________________________________________________________
Robert E. Hunstad, Executive Vice President
Attest_____________________________________________________
Dennis E. Prohofsky, Senior Vice
President, General Counsel and Secretary
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SCHEDULE A
TO THE
SHAREHOLDER AND ADMINISTRATIVE SERVICES AGREEMENT
FOR
ADVANTUS MORTGAGE SECURITIES FUND, INC.
(As effective May 1, 2000)
(1) Minnesota Life shall receive, as compensation for services
performed as its shareholder servicing agent, an annual account servicing fee
for each shareholder account, determined in accordance with the following table:
ANNUAL ACCOUNT FEE
$5.00
(2) Minnesota Life shall receive, as compensation for its accounting,
auditing, legal and other administrative services pursuant to this Agreement, a
monthly fee determined in accordance with the following table:
Monthly Administrative
SERVICE FEE
$6,200.00
The above monthly fees shall be paid to Minnesota Life not later than
five days following the end of each calendar quarter in which said services were
rendered.
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