Exhibit (h)(8)
FORM OF
TRANSFER AGENCY AGREEMENT
Made as of the day of , 2004
--- --------
by and between
EACH OF THE ENTITIES LISTED ON EXHIBIT A HERETO
And
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Documents to be Filed with Appointment 3
Certain Representations and Warranties of BOSTON FINANCIAL 4
Certain Representations and Warranties of the Trust 5
Scope of Appointment 5
Limit of Authority 7
Compensation and Expenses 8
Operation of the TA2000(TM) System 10
Indemnification 12
Certain Covenants of BOSTON FINANCIAL and the Trust 15
Recapitalization or Readjustment 17
Stock Certificates 18
Death, Resignation or Removal of Signing Officer 18
Future Amendments of Declaration of Trust and 18
Instructions, Opinion of Counsel and Signatures 18
Force Majeure and Disaster Recovery Plans 19
Certification of Documents 19
Records 20
Disposition of Books, Records and Canceled Certificates 20
Provisions Relating to BOSTON FINANCIAL as Transfer Agent 20
Provisions Relating to Dividend Disbursing Agency 22
Assumption of Duties By the Trust or Agents Designated By the Trust 23
Termination of Agreement 24
Confidentiality 25
Changes and Modifications 27
Assignment and Subcontractors 28
Limitations on Liability 28
Miscellaneous 28
Exhibit A - Fee Schedule
Exhibit B - Authorized Personnel
Exhibit C - Transfer Agency Services and Systems Features
Exhibit D - Confidentiality Agreement for Auditors
Appendix A
2
TRANSFER AGENCY AGREEMENT
THIS AGREEMENT made as of the day of , 2004, by and between
---- ---------
each of the entities listed on Appendix A hereto and each being an entity of the
type set for on Appendix A and organized under the laws of the state as set
forth on such Appendix, each with a principal place of business at 000 0xx Xxx.,
Xxx Xxxx, XX 00000 and each of which is acting on its own behalf and on behalf
of each of the portfolios listed under its name in Appendix A (jointly and
severally, such portfolios shall be referred to hereinafter as the "Fund" or
"Funds), and BOSTON FINANCIAL DATA SERVICES, INC., a corporation existing under
the laws of the Commonwealth of Massachusetts, having its principal place of
business at 0 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 ("BOSTON
FINANCIAL"):
WITNESSETH:
WHEREAS, each Trust (as used hereinafter, the term "Trust" shall refer
jointly and severally to the trust entities set forth on Appendix A hereto, and
to each Fund listed in Appendix A) is a Massachusetts or Delaware business trust
or Maryland corporation registered with the Securities and Exchange Commission
as an investment company pursuant to the Investment Company Act of 1940, as
amended, which currently consists of the Funds listed under its name on Appendix
A; and
WHEREAS, the Trust desires to appoint BOSTON FINANCIAL as Transfer Agent
and Dividend Disbursing Agent for all shares of each Fund of each Trust (the
"Shares"), and BOSTON FINANCIAL desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. DOCUMENTS TO BE FILED WITH APPOINTMENT.
In connection with the appointment of BOSTON FINANCIAL as Transfer Agent
and Dividend Disbursing Agent for the Trust, there will be filed with BOSTON
FINANCIAL the following documents:
A. A certified copy of the votes of the Board of Trustees of the Trust
appointing BOSTON FINANCIAL as Transfer Agent and Dividend Disbursing
Agent, approving the form of this Agreement, and designating certain
persons to sign Certificates, if any, and give written instructions
and requests on behalf of the Trust;
B. A certified copy of the Declaration of Trust of the Trust and all
amendments thereto;
C. A certified copy of the Bylaws of the Trust;
3
D. Copies of Registration Statements and amendments thereto, filed with
the Securities and Exchange Commission;
E. Specimens of all forms of outstanding Certificates;
F. Specimens of the signatures of the officers of the Trust authorized to
sign Certificates and individuals authorized to sign written
instructions and requests;
G. An opinion of counsel for the Trust or Corporation, as appropriate,
with respect to:
(1) The Trust's organization and existence under the laws of its state
of organization,
(2) The status of all Shares, whether unissued or evidenced by
Certificates of the Trust, covered by the appointment under the
Securities Act of 1933, as amended, (the "'33 Act") and any other
applicable federal or state statute, and
(3) That all issued Shares are, and all unissued Shares will be when
issued, validly issued, fully paid and non-assessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF BOSTON FINANCIAL.
BOSTON FINANCIAL represents and warrants to the Trust that:
A. It is a corporation duly organized and existing and in good standing
under the laws of the Commonwealth of Massachusetts.
B. It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
C. It is empowered under applicable laws and by its Articles of
Organization and Bylaws to enter into and perform the services contemplated
in this Agreement.
D. It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934, as amended, (the "34 Act") and it will
remain so registered for the duration of this Agreement. It will promptly
notify the Trust in the event of any material change in its status as a
registered transfer agent. Should BOSTON FINANCIAL fail to be registered
with the appropriate federal agency as a transfer agent at any time during
this Agreement, the Trust may, on written notice to BOSTON FINANCIAL,
immediately terminate this Agreement.
E. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
4
3. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to BOSTON FINANCIAL that:
A. It is a business trust duly organized and existing and in good standing
under the laws of the state of its organization as set forth on Appendix A.
B. It is, and with respect to each entity set forth on Appendix I, an
open-end, non-diversified management investment company registered under
the Investment Company Act of 1940, as amended.
C. A registration statement under the '33 Act has been filed and will be
effective with respect to all Shares offered for sale.
D. All requisite steps have been and will continue to be taken to register
the Shares for sale in all applicable states and such registration will be
effective at all times Shares are offered for sale in such state.
E. The Trust is empowered under applicable laws and by its Declaration of
Trust and Bylaws to enter into and perform this Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions and termination of provisions set forth in
this Agreement, the Trust hereby appoints BOSTON FINANCIAL as Transfer
Agent and Dividend Disbursing Agent for the Shares and for the Shares of
future portfolios of the Trust (Appendix I shall be automatically deemed to
be revised to include such future portfolio(s)).
B. BOSTON FINANCIAL hereby accepts such appointment and agrees that it will
act as the Trust's Transfer Agent and Dividend Disbursing Agent. BOSTON
FINANCIAL agrees that it will also act as agent in connection with the
Trust's periodic withdrawal payment accounts and other open accounts or
similar plans for shareholders, if any.
C. The Trust agrees to use its best efforts to deliver to BOSTON FINANCIAL
in Quincy, Massachusetts, as soon as they are available, all of its
shareholder account records for any new Fund of the Trust.
D. BOSTON FINANCIAL, utilizing TA2000(TM), a computerized data processing
system for securityholder accounting (the "TA2000(TM) System") licensed
from BOSTON FINANCIAL's affiliate, DST Systems, Inc. ("DST"), will perform
the following services as transfer and dividend disbursing agent for the
Trust, and as agent of the Trust for shareholder accounts thereof, in a
timely manner: (i) issuing (including countersigning), transferring and
canceling share certificates; (ii) maintaining all shareholder accounts;
5
(iii) providing transaction journals; (iv) once annually preparing
shareholder meeting lists for use in connection with the annual meeting and
certifying the shareholder votes of the Trust; (v) mailing shareholder
reports and prospectuses; (vi) withholding, as required by federal law,
taxes on shareholder accounts, disbursing income dividends and capital
gains distributions to shareholders, preparing, filing and mailing U.S.
Treasury Department Forms 1099, 1042, and 1042S and performing and paying
backup withholding as required for all shareholders; (vii) preparing and
mailing confirmation forms to shareholders and dealers, as instructed, for
all purchases and liquidations of shares of the Trust and other
transactions in shareholders' accounts requiring confirmation under
applicable law; (viii) recording reinvestment of dividends and
distributions in Shares; (ix) providing or making available on-line daily
and monthly reports as both are regularly provided by the TA2000(TM) System
and as requested by the Trust or its management company; (x) maintaining
those records necessary to carry out BOSTON FINANCIAL's duties hereunder,
including all information reasonably required by the Trust to account for
all transactions in the Shares, (xi) calculating the appropriate sales
charge with respect to each purchase of the Shares as set forth in the
prospectus for the Trust, determining the portion of each sales charge
payable to the dealer participating in a sale in accordance with schedules
delivered to BOSTON FINANCIAL by the Trust's principal underwriter or
distributor (hereinafter "principal underwriter") from time to time,
disbursing dealer commissions collected to such dealers, determining the
portion of each sales charge payable to such principal underwriter and
disbursing such commissions to the principal underwriter; (xii) receiving
correspondence pertaining to any former, existing or new shareholder
account, processing such correspondence for proper recordkeeping, and
responding promptly to shareholder correspondence; (xiii) mailing to
dealers confirmations of wire order trades; mailing copies of shareholder
statements to shareholders and dealers in accordance with the Trust's
instructions; (xiv) processing, generally on the date of receipt, purchases
or redemptions or instructions to settle any mail or wire order purchases
or redemptions received in proper order as set forth in the prospectus,
rejecting promptly any requests not received in proper order (as defined by
the Trust, the Trust's agents or prospectus, or the Procedures, as
hereinafter defined), and causing exchanges of shares to be executed in
accordance with the Trust's instructions and prospectus, the Procedures and
the general exchange privilege applicable; (xv) operating the order desk on
behalf of the Trust for the purpose of taking trade orders from
broker-dealers and institutions, confirming orders on "T+1" (Trade Date
Plus One), monitoring the settlement of such orders and advising the Trust
once such orders become delinquent based upon the Trust's guidelines; and
(xvi) monitoring "as of's" and advising broker-dealers of the necessity to
reimburse the Trust when the as of loss from a transaction exceeds the
thresholds established by the Trust.
E. At the request of Trust, BOSTON FINANCIAL shall use reasonable efforts
to provide the services set forth in Section 4.D. other than through BOSTON
FINANCIAL's usual methods and procedures to utilize the TA2000 System, that
is by performing services requiring more manual intervention by BOSTON
FINANCIAL, either in the entry of data or in the modification or amendment
of reports generated by the TA2000 System, or where information is provided
to BOSTON FINANCIAL after the commencement of the nightly processing cycle
of the TA2000 System, thereby
6
decreasing the effective time for performance by BOSTON FINANCIAL (the
"Exception Services").
F. BOSTON FINANCIAL shall use reasonable efforts to provide, reasonably
promptly under the circumstances, the same services with respect to any
new, additional functions or features or any changes or improvements to
existing functions or features as provided for in the Trust's instructions,
prospectus or application as amended from time to time, for the Trust;
provided (i) BOSTON FINANCIAL is advised in advance by the Trust of any
changes therein and (ii) the TA2000(TM) System and the mode of operations
utilized by BOSTON FINANCIAL, as then constituted, supports such additional
functions and features. If any addition to, improvement of or change in the
features and functions currently provided by the TA2000(TM) System or the
operations as requested by the Trust requires an enhancement or
modification to the TA2000(TM) System or to operations as presently
conducted by BOSTON FINANCIAL, BOSTON FINANCIAL shall not be liable
therefore until such modification or enhancement is installed on the
TA2000(TM) System or new mode of operation is instituted. If any new,
additional function or feature or change or improvement to existing
functions or features or new service or mode of operation measurably
increases BOSTON FINANCIAL's cost of performing the services required
hereunder at the current level of service, BOSTON FINANCIAL shall advise
the Trust of the amount of such increase and if the Trust elects to utilize
such function, feature or service, BOSTON FINANCIAL shall be entitled to
increase its fees by the amount of the increase in costs. In no event shall
BOSTON FINANCIAL be responsible for or liable to provide any additional
function, feature, improvement or change in method of operation requested
by the Trust until it has consented thereto in writing.
G. The Trust shall have the right to add all new Funds of the Trust to the
TA2000(TM) System, provided that the Trust provides BOSTON FINANCIAL with
at least thirty (30) days' prior written notice and provided, further, that
the requirements of the new series are generally consistent with services
then being provided by BOSTON FINANCIAL under this Agreement. Rates or
charges for additional Funds shall be as set forth in Exhibit A, as
hereinafter defined, for the remainder of the contract term except as such
Fund uses functions, features or characteristics for which BOSTON FINANCIAL
has imposed an additional charge as part of its standard pricing schedule.
In the latter event, rates and charges shall be in accordance with BOSTON
FINANCIAL's then-standard pricing schedule.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Trust, the appointment of BOSTON FINANCIAL as
Transfer Agent will be construed to cover the full amount of authorized
stock of the class or classes for which BOSTON FINANCIAL is appointed as
the same will, from time to time, be constituted, and any subsequent
increases in such authorized amount.
7
In case of such increase the Trust will file with BOSTON FINANCIAL:
A. If the appointment of BOSTON FINANCIAL was theretofore expressly
limited, a certified copy of a resolution of the Board of Trustees of the
Trust increasing the authority of BOSTON FINANCIAL;
B. A certified copy of the amendment to the Declaration of Trust of the
Trust authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of the
increased stock, or an opinion of counsel that the order or consent of no
other governmental or regulatory authority is required;
D. Opinion of counsel for the Trust stating:
(1) The status of the additional shares of stock of the Trust under
the '33 Act and any other applicable federal or state statute;
and
(2) That the additional shares are, or when issued will be, validly
issued, fully paid and non-assessable.
6. COMPENSATION AND EXPENSES.
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Trust will pay to BOSTON FINANCIAL,
from time to time, a reasonable compensation for all services rendered
as Agent and, also, all BOSTON FINANCIAL's reasonable billable
expenses, charges, counsel fees, and other disbursements
("Compensation and Expenses") incurred in connection with the agency.
"Expenses" are more fully described in Section 6.B. of this Agreement.
Such Compensation and Expenses are set forth in a separate schedule
previously agreed to by the Trust and BOSTON FINANCIAL, a copy of
which is attached hereto as Exhibit A. If the Trust has not paid such
Compensation and Expenses to BOSTON FINANCIAL within a reasonable
time, BOSTON FINANCIAL may charge against any monies held under this
Agreement, the amount of any Compensation and Expenses for which it
shall be entitled to reimbursement under this Agreement.
B. The Trust also agrees promptly to reimburse BOSTON FINANCIAL for all
reasonable billable expenses or disbursements incurred by BOSTON
FINANCIAL in connection with the performance of services under this
Agreement including, but not limited to: expenses for postage; express
delivery services; freight charges; envelopes, checks, drafts, forms
(continuous or otherwise); specially requested reports and statements;
telephone calls; telegraphs; stationery supplies; counsel fees
incurred in connection with the review of the legal sufficiency of
documentation
8
provided by a shareholder or otherwise as to the advisability of
complying with the request or instruction of a shareholder or person
purporting to act on behalf of a shareholder; outside printing and
mailing firms (including DST Output, Inc. and its affiliates ("DST
Output"); magnetic tapes, reels or cartridges (if sent to the Trust or
to a third party at the Trust's request) and magnetic tape handling
charges; off-site record storage and media for storage of records
(e.g., microfilm, microfiche, optical platters, computer tapes);
computer equipment installed at the Trust's request at the Trust's or
a third party's premises; telecommunications equipment and
telephone/telecommunication lines between the Trust and its agents, on
one hand, and BOSTON FINANCIAL on the other; proxy soliciting,
processing and/or tabulating costs; second-site backup computer
facility; transmission of statement data for remote printing or
processing other than by DST Output (at a charge of .035/record); and
National Securities Clearing Corporation ("NSCC") transaction fees to
the extent any of the foregoing are paid or incurred by BOSTON
FINANCIAL. The Trust agrees to pay postage expenses at least one day
in advance if so requested. In addition, any other expenses incurred
by BOSTON FINANCIAL at the request or with the consent of the Trust
will be promptly reimbursed by the Trust.
C. Amounts due hereunder shall be due and paid on or before the thirtieth
(30th) calendar day after receipt of the statement therefor by the
Trust (the "Due Date"). The Trust is aware that its failure to pay all
amounts in a timely fashion so that they will be received by BOSTON
FINANCIAL on or before the Due Date will give rise to costs to BOSTON
FINANCIAL not contemplated by this Agreement, including but not
limited to carrying, processing and accounting charges. Accordingly,
subject to Section 6.D. hereof, in the event that any amounts due
hereunder are not received by BOSTON FINANCIAL by the Due Date, the
Trust shall pay a late charge equal to the lesser of the maximum
amount permitted by applicable law or the product of one and one-half
(1 1/2) percentage points per month times the amount overdue, times
the number of days from the Due Date up to and including the day on
which payment is received by BOSTON FINANCIAL. The parties hereby
agree that such late charge represents a fair and reasonable
computation of the costs incurred by reason of late payment or payment
of amounts not properly due. Acceptance of such late charge shall in
no event constitute a waiver of the Trust's or BOSTON FINANCIAL's
default or prevent the non-defaulting party from exercising any other
rights and remedies available to it.
D. In the event that any charges are disputed, the Trust shall, on or
before the Due Date, pay all undisputed amounts due hereunder and
notify BOSTON FINANCIAL in writing of any disputed charges for
billable expenses which it is disputing in good faith. Payment for
such disputed charges shall be due on or before the close of the fifth
(5th) business day after the day on which BOSTON FINANCIAL provides to
the Trust documentation which an objective observer would agree
reasonably supports the disputed charges (the "Revised Due Date").
Late charges shall not begin to accrue as to charges disputed in good
faith until the first business day after the Revised Due Date.
9
E. The fees and charges set forth on Exhibit A shall increase or may be
increased as follows:
(1) On the first day of each anniversary of this Agreement, subject to
Note E of Exhibit A;
(2) BOSTON FINANCIAL may increase the fees and charges set forth on
Exhibit A upon at least ninety (90) days prior written notice, if
changes in existing laws, rules or regulations: (i) require
substantial system modifications or (ii) materially increase BOSTON
FINANCIAL's cost of performance hereunder;
(3) BOSTON FINANCIAL may charge for additional features of TA2000 used
by the Trust which features are not consistent with the Trust's
current processing requirements; and
(4) In the event BOSTON FINANCIAL, at the Trust's request or
direction, performs Exception Services, BOSTON FINANCIAL shall be
entitled to increase the fees and charges for such Exception Services
from those set forth on Exhibit A to the extent such Exception
Services increase BOSTON FINANCIAL's cost of performance.
If BOSTON FINANCIAL notifies the Trust of an increase in fees or charges
pursuant to subparagraph (2) of this Section 6.E., the parties shall
confer, diligently and in good faith and agree upon a new fee to cover the
amount necessary, but not more than such amount, to reimburse BOSTON
FINANCIAL for the Trust's aliquot portion of the cost of developing the new
software to comply with regulatory charges and for the increased cost of
operation.
If BOSTON FINANCIAL notifies the Trust of an increase in fees or charges
under subparagraphs (3) or (4) of this Section 6.E., the parties shall
confer, diligently and in good faith, and agree upon a new fee to cover
such new Trust feature.
7. OPERATION OF THE TA2000(TM) SYSTEM.
In connection with the performance of its services under this Agreement, BOSTON
FINANCIAL is responsible for such items as:
A. That entries in BOSTON FINANCIAL's records, and in the Trust's records
on the TA2000(TM) System created by BOSTON FINANCIAL and BOSTON
FINANCIAL's affiliates, accurately reflect the orders, instructions,
and other information received by BOSTON FINANCIAL and such affiliates
from the Trust, the Trust's distributor, manager or principal
underwriter, or any successor of any of the foregoing (all hereinafter
referred to as "JPM") and its affiliates, entities from whom JPM or
the Trust have directed BOSTON FINANCIAL to accept orders,
instructions or other information, the Trust's investment adviser,
banks or other entities which BOSTON
10
FINANCIAL has been advised by the Trust or JPM are affiliated with or
a correspondent of JPM, or the Trust's administrator (each of the
foregoing being an "Authorized Person"), broker-dealers or
shareholders (existing or new). BOSTON FINANCIAL has currently been
instructed, by way of example and not limitation, to accept telephone
instructions from any person reasonably believed by BOSTON FINANCIAL
to be a representative of an Authorized Person, to accept third party
checks initiated by or received from or through a broker/dealer or a
JPM-customer relationship, to accept transactions and documentation by
fax in accordance with the guidelines established by an Authorized
Person, to allow corporations, partnerships, trusts and other accounts
not registered in the name of a single individual and individually
owned accounts to have telephone or "VOICE" transaction processing
privileges (the "Privileges"), to establish Privileges on all accounts
unless the establishing shareholder explicitly directs that telephone
exchanges and redemptions not be permitted and to accept and to
effectuate transmissions and trades entered on a remote basis by JPM
and banks affiliated with JPM (without verification of the contents of
such transmissions and trades);
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be produced
from its records or data be available and accurately reflect the data
in the Trust's records on the TA2000(TM) System;
C. The accurate and timely issuance of dividend and distribution checks
in accordance with instructions received from the Trust and the data
in the Trust's records on the TA2000(TM) System;
D. That redemption transactions and payments be effected timely, to be
processed under normal circumstances on the day of receipt, and
accurately in accordance with redemption instructions received by
BOSTON FINANCIAL from Authorized Persons, broker-dealers or
shareholders and the data in the Trust's records on the TA2000(TM)
System;
E. The deposit daily in the Trust's appropriate special bank account of
all checks and payments received by BOSTON FINANCIAL from NSCC,
broker-dealers or shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with respect to "as
of" adjustments, BOSTON FINANCIAL will not assume one hundred percent
(100%) responsibility for losses resulting from "as of's" due to
clerical errors or misinterpretations of shareholder instructions, but
BOSTON FINANCIAL will discuss with the Fund BOSTON FINANCIAL's
accepting liability for an "as of" on a case-by-case basis and will
accept financial responsibility for a particular situation resulting
in a financial loss to the Fund where such loss is "material", as
hereinafter defined, and, under the particular facts at issue, BOSTON
FINANCIAL's conduct was culpable and BOSTON FINANCIAL's conduct is the
sole cause of the loss. A loss is "material" for purposes of this
Section 7.F. when it results in a pricing error on a given day which
is (i) greater than a negligible amount per shareholder, (ii) equals
or exceeds one ($.01) full cent per
11
share times the number of shares outstanding or (iii) equals or
exceeds the product of one-half of one percent (1/2%) times Fund's Net
Asset Value per share times the number of shares outstanding (or, in
case of (ii) or (iii), such other amounts as may be adopted by
applicable accounting or regulatory authorities from time to time).
When BOSTON FINANCIAL must contribute to the settlement of a loss,
BOSTON FINANCIAL's responsibility will commence with that portion of
the loss over $0.01 per share calculated on the basis of the total
value of all shares owned by the affected portfolio (i.e., on the
basis of the value of the shares of the total portfolio, including all
classes of that portfolio, not just those of the affected class) and
BOSTON FINANCIAL will make such account adjustments and take such
other action as is necessary to compensate shareholders for
shareholder losses and reimburse the Fund for the amount of Fund
losses in accordance with the foregoing standards;
G. The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with BOSTON
FINANCIAL's present procedures as set forth in its Legal Manual
(collectively the "Procedures") with such changes or deviations
therefrom as may be from time to time required or approved by the
Trust, its investment adviser or principal underwriter, or its or
BOSTON FINANCIAL's counsel and the rejection of orders or instructions
not in good order in accordance with the applicable prospectus or the
Procedures; and
H. The maintenance of a current, duplicate set of the Trust's essential
records at a secure separate location, in a form available and usable
forthwith in the event of any breakdown or disaster disrupting its
main operation.
8. INDEMNIFICATION.
A. BOSTON FINANCIAL shall at all times use reasonable care, due diligence
and act in good faith in performing its duties under this Agreement
and agrees to use its best efforts within reasonable limits to insure
the accuracy of all services performed under this Agreement. BOSTON
FINANCIAL shall provide its services hereunder in accordance with the
'34 Act, and other Federal laws, rules and regulations of governmental
authorities having jurisdiction over BOSTON FINANCIAL. In the absence
of bad faith, willful misconduct, knowing violations of applicable law
pertaining to the manner in which transfer agency services are to be
performed by BOSTON FINANCIAL (excluding any violations arising
directly or indirectly out of the actions or omissions to act of third
parties unaffiliated with BOSTON FINANCIAL), reckless disregard of the
performance of its duties, or negligence on its part, BOSTON FINANCIAL
shall not be liable for any action taken, suffered, or omitted by it
or for any error of judgment made by it in the performance of its
duties under this Agreement. For those activities or actions
delineated in the Procedures, BOSTON FINANCIAL shall be presumed to
have used reasonable care, due diligence and acted in good faith if it
has acted in accordance with the Procedures, copies of which have been
provided to the Trust and reviewed and approved by the Trust's
12
counsel, as amended from time to time with approval of counsel, or for
any deviation therefrom approved by the Trust or BOSTON FINANCIAL
counsel.
B. BOSTON FINANCIAL shall not be responsible for, and the Trust shall
indemnify and hold BOSTON FINANCIAL harmless from and against, any and
all losses, damages, reasonable costs, reasonable charges, reasonable
counsel fees, payments, reasonable expenses and liability (the
"Adverse Consequences") which may be asserted against BOSTON FINANCIAL
or for which BOSTON FINANCIAL may be held to be liable, arising out of
or attributable to:
(1) All actions of BOSTON FINANCIAL required to be taken by BOSTON
FINANCIAL pursuant to this Agreement, provided that BOSTON FINANCIAL
has acted in good faith and with due diligence and reasonable care;
(2) The Trust's refusal or failure to comply with the terms of this
Agreement, the Trust's negligence or willful misconduct, or the breach
of any representation or warranty of the Trust hereunder;
(3) The good faith reliance on, or the carrying out of, any written or
oral instructions or requests of persons designated by the Trust in
writing (see Exhibit B) from time to time as authorized to give
instructions on its behalf or representatives of an Authorized Person
or BOSTON FINANCIAL's good faith reliance on, or use of, information,
data, records and documents received from, or which have been prepared
and/or maintained by the Trust, its investment advisor, its sponsor or
its principal underwriter;
(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered;
(5) The offer or sale of Shares in violation of any requirement under
federal securities laws or regulations or the securities laws or
regulations of any state or in violation of any stop order or other
determination or ruling by any federal agency or state with respect to
the offer or sale of such shares in such state (unless such violation
results from BOSTON FINANCIAL's failure to comply with written
instructions of the Trust or of any officer of the Trust that no
offers or sales be input into the Trust's securityholder records in or
to residents of such state);
(6) Any error or mistake of the Trust, any Authorized Person, and any
agent designated by the Trust in the use of the TA2000(TM) System, the
data center, computer and related equipment used to access the
TA2000(TM) System (the "DST Facilities"), and control procedures
relating thereto in the verification of output and in the remote input
of data;
(7) Errors, inaccuracies, and omissions in, or errors, inaccuracies or
omissions of BOSTON FINANCIAL arising out of or resulting from such
errors, inaccuracies and omissions in, the Trust's records,
shareholder and other records, delivered to BOSTON FINANCIAL hereunder
by the Trust or its prior agent(s);
13
(8) Actions or omissions to act by the Trust or agents designated by
the Trust with respect to duties assumed thereby as provided for in
Section 21 hereof; and
(9) BOSTON FINANCIAL's performance of Exception Services except where
BOSTON FINANCIAL acted or omitted to act in bad faith, with reckless
disregard of its obligations or with gross negligence.
(10) The Trust's breach or violation of the Ethical Hack Guidelines
(as hereinafter defined) of BOSTON FINANCIAL and/or its affiliates.
C. Except where BOSTON FINANCIAL is entitled to indemnification under
Section 8.B. hereof and with respect to "as of's" set forth in Section
7.F., BOSTON FINANCIAL shall indemnify and hold the Trust harmless
from and against any and all Adverse Consequences arising out of
BOSTON FINANCIAL's failure to comply with the terms of this Agreement
or arising out of or attributable to BOSTON FINANCIAL's negligence,
willful misconduct or reckless disregard of its obligations under this
Agreement or BOSTON FINANCIAL's breach of any of its representations
or warranties under this Agreement. In the event that any claim is
asserted against BOSTON FINANCIAL under this Agreement for any reason
other than BOSTON FINANCIAL's bad faith or willful misconduct, BOSTON
FINANCIAL's liability with respect to, arising from or arising in
connection with this Agreement, or from all services provided or
omitted to be provided under this Agreement, whether in contract, or
in tort, or otherwise, is limited to, and shall not exceed, the
amounts paid hereunder by the Trust to BOSTON FINANCIAL as fees and
charges, but not including reimbursable expenses, during the previous
twelve (12) months (the "Liability Limitation Amount").
D. EXCEPT FOR INTENTIONAL MALEVOLENT VIOLATIONS/1/ OF SECTION 23, IN NO
EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT
BE LIABLE TO ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY,
FOR CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY
THEREOF.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a claim
in respect thereto is to be made against an indemnifying party
hereunder, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying
Party will not relieve an indemnifying party from any liability that
it may have to any indemnified person for contribution or otherwise
under the indemnity agreement contained herein except to the extent it
is prejudiced as a proximate result of such failure to timely notify.
In case any such action is brought against any indemnified person and
such
----------
/1/ For purposes of this Section 8.D, "intentional malevolent violations" shall
mean those acts undertaken purposefully under circumstances in which the person
acting knows or has reason to believe that such act violates such person's
obligations under this Agreement and is likely to cause danger or harm to the
other party or its shareholders.
14
indemnified person seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, assume the
defense thereof (in its own name or in the name and on behalf of any
indemnified party or both with counsel reasonably satisfactory to such
indemnified person); provided, however, if the defendants in any such
action include both the indemnified person and an indemnifying party
and the indemnified person shall have reasonably concluded that there
may be a conflict between the positions of the indemnified person and
an indemnifying party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other
indemnified persons which are inconsistent with those available to an
indemnifying party, the indemnified person or indemnified persons
shall have the right to select one separate counsel (in addition to
local counsel) to assume such legal defense and to otherwise
participate in the defense of such action on behalf of such
indemnified person or indemnified persons at such indemnified party's
sole expense. Upon receipt of notice from an indemnifying party to
such indemnified person of its election so to assume the defense of
such action and approval by the indemnified person of counsel, which
approval shall not be unreasonably withheld (and any disapproval shall
be accompanied by a written statement of the reasons therefor), the
indemnifying party will not be liable to such indemnified person
hereunder for any legal or other expenses subsequently incurred by
such indemnified person in connection with the defense thereof. An
indemnifying party will not settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
persons are actual or potential parties to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified person from all liability
arising out of such claim, action, suit or proceeding. An indemnified
party will not, without the prior written consent of the indemnifying
party, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder. If it does so, it waives its right to
indemnification therefor.
F. In any case an indemnifying person may be asked to indemnify or save
an indemnified person harmless, the indemnified person shall use
reasonable care to (i) fully and promptly advise the indemnifying
person of all pertinent facts concerning the situation in question,
and (ii) timely advise the indemnifying person of any matter as to
which the indemnified person is aware that a claim which may give rise
to Adverse Consequences has been asserted or is being threatened and
appears reasonably likely to be asserted.
9. CERTAIN COVENANTS OF BOSTON FINANCIAL AND THE TRUST.
A. All requisite steps will be taken by the Trust from time to time when
and as necessary to register the Shares for sale in all states in
which the Shares shall at the time be offered for sale and require
registration. If at any time the Trust receives notice of any stop
order or other proceeding in any such state affecting such
registration or the sale
15
of the Shares, or of any stop order or other proceeding under the
federal securities laws affecting the sale of the Shares, the Trust
will give prompt notice thereof to BOSTON FINANCIAL.
B. BOSTON FINANCIAL hereby agrees to perform such transfer agency
functions as are set forth in Section 4.D. above and Exhibit C, to
establish and to maintain facilities and procedures reasonably
acceptable to the Trust for safekeeping of Certificates, check forms,
and facsimile signature imprinting devices, if any, and for the
preparation or use, and the keeping account of, such Certificates,
forms and devices, and to carry such insurance as BOSTON FINANCIAL
considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and Rules thereunder, BOSTON FINANCIAL agrees that
all records maintained by BOSTON FINANCIAL relating to the services to
be performed by BOSTON FINANCIAL under this Agreement are the property
of the Trust and will be preserved and will be surrendered promptly to
the Trust on request.
D. BOSTON FINANCIAL agrees to furnish the Trust with a report in
accordance with Statements on Auditing Standards No. 70 (the "SAS 70
Report") as well as such other publicly available financial
information about itself or its affiliates as the Trust may reasonably
request.
E. BOSTON FINANCIAL represents and agrees that it will use its best
efforts within reasonable limits to keep current on the trends of the
investment company industry relating to shareholder services and will
use its best efforts to continue to modernize and improve.
Notwithstanding the foregoing, (i) BOSTON FINANCIAL shall not be
liable for failing to make any modification or improvement as to the
necessity of which the Fund has not advised BOSTON FINANCIAL in
writing and (ii) for any delay in the implementation of such
modification or improvement where BOSTON FINANCIAL reasonably requires
more time than was permitted by circumstances or such regulations.
F. BOSTON FINANCIAL will permit the Trust and its authorized
representatives to make periodic inspections of its operations as such
would involve the Trust at reasonable times during business hours
subject to such authorized representatives' execution of BOSTON
FINANCIAL's "Confidentiality and Limited Use Agreement, a blank copy
of which is attached hereto as Exhibit D.
G. BOSTON FINANCIAL agrees to use its best efforts to provide in Kansas
City, MO at the Trust's expense two (2) man weeks of training for the
Trust's personnel in connection with use and operation of the
TA2000(TM) System. All travel and reimbursable expenses incurred by
the Trust's personnel in connection with and during training at BOSTON
FINANCIAL's Facility or DST's Facility shall be borne by the Trust. At
the Trust's option and expense, BOSTON FINANCIAL also agrees to use
its best efforts to provide an additional two (2) man weeks of
training at the Trust's facility for the Trust's personnel in
connection with the conversion to the TA2000(TM) System.
16
Reasonable travel, per diem and reimbursable expenses incurred by
BOSTON FINANCIAL personnel in connection with and during training at
the Trust's facility or in connection with the conversion shall be
borne by the Trust.
H. BOSTON FINANCIAL shall reasonably cooperate with the Trust's
independent public accountants and shall take all reasonable action in
the performance of its obligations under this Agreement to assure that
all readily necessary information is made available to such
accountants for the expression of their opinion as such may be
required from time to time. Special reports or information may be
charged for. A report is "Special" if it is not regularly produced by
TA2000(TM) or requires special programming.
I. Ethical Hack. The parties have agreed that the Trust may conduct an
Ethical Hack, as part of the Trust's normal information security due
diligence review and compliance solely in accordance with the Ethical
Hack Guidelines or BOSTON FINANCIAL and/or its affiliates (the
"Ethical Hack Guidelines") a copy of which are attached hereto and
incorporated herein by reference as if fully set forth as Exhibit E.
The Trust agrees that any such Ethical Hack shall be performed
strictly in accordance with such Ethical Hack Guidelines. If
vulnerabilities are identified, then as part of the Services BOSTON
FINANCIAL and/or its affiliates shall promptly (i) document the system
remediation proposal, (ii) provide the Trust with such documentation
and reports on the status of modifications to correct such
vulnerabilities, and (iii) implement such remediation modifications as
may be required.
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the capital
structure of the Trust requiring a change in the form of Certificates, BOSTON
FINANCIAL will issue or register Certificates in the new form in exchange for,
or in transfer of, the outstanding Certificates in the old form, upon receiving:
A. Written instructions from an officer of the Trust;
B. Certified copy of the amendment to the Declaration of Trust or other
document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the stock in the
new form, and an opinion of counsel that the order or consent of no other
government or regulatory authority is required;
D. Specimens of the new Certificates in the form approved by the Board of
Trustees of the Trust, with a certificate of the Secretary of the Trust as
to such approval;
E. Opinion of counsel for the Trust stating:
(1) The status of the shares of stock of the Trust in the new form
under the '33 Act, as amended and any other applicable federal or
state statute; and
17
(2) That the issued shares in the new form are, and all unissued
shares will be when registered, validly issued, fully paid and
nonassessable.
11. STOCK CERTIFICATES ("CERTIFICATES").
The Trust will furnish BOSTON FINANCIAL with a sufficient supply of blank
Certificates and from time to time will renew such supply upon the request of
BOSTON FINANCIAL. Such Certificates will be signed manually or by facsimile
signatures of the officers of the Trust authorized by law and by bylaws to sign
Certificates, and if required, will bear the corporate seal or facsimile
thereof.
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Trust will file promptly with BOSTON FINANCIAL written notice of any change
in the officers authorized to sign Certificates, written instructions or
requests, together with a revised Exhibit B. In case any officer of the Trust
who will have signed manually or whose facsimile signature will have been
affixed to blank Certificates will die, resign, or be removed prior to the
issuance of such certificates, BOSTON FINANCIAL may issue or register such
Certificates as the Certificates of the Trust notwithstanding such death,
resignation, or removal, until specifically directed to the contrary by the
Trust in writing. In the absence of such direction, the Trust will file promptly
with BOSTON FINANCIAL such approval, adoption, or ratification as may be
required by law.
13. FUTURE AMENDMENTS OF DECLARATION OF TRUST AND BYLAWS.
The Trust will promptly file with BOSTON FINANCIAL copies of all material
amendments to its Declaration of Trust or Bylaws made after the date of this
Agreement.
14. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES.
Any time BOSTON FINANCIAL shall be in doubt as to any proposed or requested
action or omission to be taken or omitted by it, BOSTON FINANCIAL may apply to
any person authorized by the Trust to give instructions to BOSTON FINANCIAL.
BOSTON FINANCIAL may with the approval of a Trust officer consult with legal
counsel for the Trust or may consult with BOSTON FINANCIAL's own legal counsel
at BOSTON FINANCIAL's own expense, with respect to any matter involving a
question of law involved in any action to be taken or omitted by BOSTON
FINANCIAL in connection with the agency. BOSTON FINANCIAL will not be liable for
any action taken or omitted by it in good faith in reliance upon such
instructions or upon the opinion of such counsel. Notwithstanding the foregoing,
the Trust shall reimburse BOSTON FINANCIAL for outside counsel fees incurred in
connection with the review of the legal sufficiency of documentation provided by
a shareholder or otherwise as to the advisability of complying with the request
of a shareholder or person purporting to act on behalf of a shareholder. BOSTON
FINANCIAL will be protected in acting upon any paper or document reasonably
believed by it to be genuine and to have been signed by the proper person or
persons and will not be held to have notice of any change of authority of any
person, until receipt of
18
written notice thereof from the Trust. It will also be protected in recognizing
Certificates which it reasonably believes to bear the proper manual or facsimile
signatures of the officers of the Trust, and the proper countersignature of any
former Transfer Agent or Registrar, or of a co-Transfer Agent or co-Registrar.
15. FORCE MAJEURE AND DISASTER RECOVERY PLANS.
A. BOSTON FINANCIAL 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 or any utility, transportation, computer (hardware
or software) or communication service; inability to obtain labor,
material, equipment or 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, labor disputes,
freezes, floods, fires, tornadoes, acts of God or public enemy,
revolutions, or insurrection; or any other cause, contingency,
circumstance or delay not subject to BOSTON FINANCIAL's reasonable
control which prevents or hinders BOSTON FINANCIAL's performance
hereunder.
B. BOSTON FINANCIAL's affiliate, DST, currently maintains a recovery
facility for use in event of a disaster rendering the DST Facilities
inoperable (the "DST Recovery Facility"). DST has developed and is
continually revising business contingency plans (the "DST Business
Contingency Plan") detailing which, how, when, and by whom data
maintained at DST Facilities will be installed and operated at the
Recovery Facility. Provided the Trust is paying its pro rata portion
of the charge therefor, BOSTON FINANCIAL would, in event of a disaster
rendering the DST's Facility inoperable, instruct DST to use
reasonable efforts to convert the TA2000(TM) System containing the
designated Trust data to the computers at the Recovery Facility in
accordance with the then current DST Business Contingency Plan.
C. BOSTON FINANCIAL also currently maintains, separate from the area in
which the operations that provides the services to the Trust hereunder
are located, a Crisis Management Center consisting of phones,
computers and the other equipment necessary to operate a full service
transfer agency 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 covered in BOSTON
FINANCIAL's Business Contingency Plan.
16. CERTIFICATION OF DOCUMENTS.
The required copy of the Declaration of Trust of the Trust and copies of all
amendments thereto will be certified by the Secretary of State (or other
appropriate official) of the State of Incorporation, and if such Declaration of
Trust and amendments are required by law to be also filed with a county, city or
other officer of official body, a certificate of such filing will appear on the
certified copy submitted to BOSTON FINANCIAL. A copy of the order or consent of
each governmental or regulatory authority required by law to the issuance of the
stock will be certified by the Secretary or Clerk of such governmental or
regulatory authority, under proper
19
seal of such authority. The copy of the Bylaws and copies of all amendments
thereto, and copies of resolutions of the Board of Trustees of the Trust, will
be certified by the Secretary or an Assistant Secretary of the Trust under the
Trust's seal.
17. RECORDS.
BOSTON FINANCIAL will maintain customary records in connection with its agency,
and particularly will maintain those records required to be maintained pursuant
to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 under the Investment
Company Act of 1940, if any.
18. DISPOSITION OF BOOKS, RECORDS AND CANCELED CERTIFICATES.
BOSTON FINANCIAL may send periodically to the Trust, or to where designated by
the Secretary or an Assistant Secretary of the Trust, all books, documents, and
all records no longer deemed needed for current purposes and Certificates which
have been canceled in transfer or in exchange, upon the understanding that such
books, documents, records, and Certificates will be maintained by the Trust
under and in accordance with the requirements of Section 17Ad-7 adopted under
the Securities Exchange Act of 1934. Such materials will not be destroyed by the
Trust without the consent of BOSTON FINANCIAL (which consent will not be
unreasonably withheld), but will be safely stored for possible future reference.
19. PROVISIONS RELATING TO BOSTON FINANCIAL AS TRANSFER AGENT.
A. BOSTON FINANCIAL will make original issues of Certificates upon
written request of an officer of the Trust and upon being furnished
with a certified copy of a resolution of the Board of Trustees
authorizing such original issue, an opinion of counsel as outlined in
subparagraphs 1.G and 5.D of this Agreement, any documents required by
Sections 5 or 10 of this Agreement, and necessary funds for the
payment of any original issue tax.
B. Before making any original issue of Certificates of the Trust will
furnish BOSTON FINANCIAL with sufficient funds to pay all required
taxes on the original issue of the stock, if any. The Trust will
furnish BOSTON FINANCIAL such evidence as may be required by BOSTON
FINANCIAL to show the actual value of the stock. If no taxes are
payable BOSTON FINANCIAL will be furnished with a certified statement
from an officer of the Trust to that effect.
C. Shares of stock represented by Certificates will be transferred and
new Certificates issued in transfer, or Shares of stock accepted for
redemption and funds remitted therefor, or book entry transfer be
effected, upon surrender of the old Certificates in form or receipt by
BOSTON FINANCIAL of instructions deemed by BOSTON FINANCIAL properly
endorsed for transfer or redemption accompanied by such documents as
BOSTON FINANCIAL may deem necessary to evidence the authority of the
person making the transfer or redemption. BOSTON FINANCIAL reserves
the right to refuse to transfer or redeem Shares until it is satisfied
that the endorsement or signature on the Certificate or any other
document is valid and genuine,
20
and for that purpose it may require a guaranty of signature in
accordance with the Procedures. BOSTON FINANCIAL will incur no
liability and shall be indemnified and held harmless by the Fund for
any action taken by it in accordance with an instruction bearing what
purports to be a signature guarantee or medallion of an Eligible
Guarantor Institution or otherwise in accordance with BOSTON
FINANCIAL's Signature Guarantee Procedures adopted pursuant to 17
C.F.R. Section 240.17Ad-15 under the Securities and Exchange Act of
1934. BOSTON FINANCIAL also reserves the right to refuse to transfer
or redeem shares until BOSTON FINANCIAL is satisfied that the
requested transfer or redemption is legally authorized, and it will
incur no liability for the refusal in good faith to make transfers or
redemptions which, in its reasonable judgment, are improper or
unauthorized. Authority to perform a redemption shall be suspended
when the Trust suspends the shareholders' right of redemption provided
that the Trust delivers written notice of such suspension to BOSTON
FINANCIAL. BOSTON FINANCIAL may, in effecting transfers or
redemptions, rely upon Simplification Acts, Uniform Commercial Code or
other statutes that protect it and the Trust in not requiring complete
fiduciary documentation. In cases in which BOSTON FINANCIAL is not
directed or otherwise required to maintain the consolidated records of
shareholder's accounts, BOSTON FINANCIAL will not be liable for any
loss that may arise by reason of not having such records.
D. When mail is used for delivery of Certificates, BOSTON FINANCIAL
will forward Certificates in "nonnegotiable" form by first class or
registered mail and Certificates in "negotiable" form by registered
mail, all such mail deliveries to be covered while in transit to the
addressee by insurance arranged for by BOSTON FINANCIAL.
E. BOSTON FINANCIAL will issue and mail subscription warrants,
Certificates representing stock dividends, exchanges or split ups, or
act as Conversion Agent upon receiving written instructions from any
officer of the Trust and such other documents as BOSTON FINANCIAL
deems necessary.
F. BOSTON FINANCIAL will issue, transfer, and split up Certificates
and will issue Certificates of stock representing full Shares upon
surrender of scrip certificates aggregating one full share or more
when presented to BOSTON FINANCIAL for that purpose upon receiving
written instructions from an officer of the Trust and such other
documents as BOSTON FINANCIAL may deem necessary.
G. BOSTON FINANCIAL may issue new Certificates in place of
Certificates represented to have been lost, destroyed, stolen or
otherwise wrongfully taken upon receiving instructions from the Trust
and indemnity satisfactory to BOSTON FINANCIAL and the Trust, and may
issue new Certificates in exchange for, and upon surrender of,
mutilated Certificates. Such instructions from the Trust will be in
such form as will be approved by the Board of Trustees of the Trust
and will be in accordance with the provisions of law and the bylaws of
the Trust governing such matter.
H. BOSTON FINANCIAL will supply a shareholder's list to the Trust for
its annual meeting upon receiving a request from an officer of the
Trust. It will also, at the expense
21
of the Trust, supply lists at such other times as may be requested by
an officer of the Trust.
I. Upon receipt of written instructions of an officer of the Trust,
BOSTON FINANCIAL will, at the expense of the Trust, address and mail
notices to shareholders.
J. In case of any request or demand for the inspection of the
securityholder files or stock books of the Trust or any other books or
records in the possession of the Trust in BOSTON FINANCIAL's
possession, BOSTON FINANCIAL will not permit such inspection, except
(i) after prior notification to and approval in writing by the Trust
or Advisor as appropriate, which approval shall not be unreasonably
withheld and may not be withheld or delayed where BOSTON FINANCIAL may
be exposed to civil or criminal contempt proceedings for failure to
comply when requested to divulge such information by duly constituted
authorities, or (ii) when so requested by the Trust or an Authorized
Person. Nothing in the foregoing is intended to, nor does it, prohibit
or deny to BOSTON FINANCIAL the right to disclose information
requested by subpoena, Court Order, administrative order or request
issued by a federal, state or local authority purporting to be issued
under statutory authority or a self-regulatory organization registered
under the '34 Act. BOSTON FINANCIAL shall use reasonable efforts to
advise the Trust concerning subpoenas received for records of the
Trust and, upon being so advised, the Trust shall be responsible for
handling and responding thereto.
20. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
A. BOSTON FINANCIAL will, at the expense of the Trust, provide a
special form of check containing the imprint of any device or other
matter desired by the Trust. Said checks must, however, be of a form
and size convenient for use by BOSTON FINANCIAL.
B. If the Trust desires to include additional printed matter,
financial statements, etc., with the dividend checks, the same will be
furnished BOSTON FINANCIAL within a reasonable time prior to the date
of mailing of the dividend checks, at the expense of the Trust.
C. If the Trust desires its distributions mailed in any special form
of envelopes, sufficient supply of the same will be furnished to
BOSTON FINANCIAL but the size and form of said envelopes will be
subject to the approval of BOSTON FINANCIAL. If stamped envelopes are
used, they must be furnished by the Trust; or if postage stamps are to
be affixed to the envelopes, the stamps or the cash necessary for such
stamps must be furnished by the Trust.
D. BOSTON FINANCIAL shall establish and maintain, and is hereby
authorized to establish and to maintain, under the usual terms and
conditions prevalent in the industry and on behalf of the Trust as
agent of the Trust, in BOSTON FINANCIAL's own name or under the X.X.
Xxxxxx name (or that of the Trusts as a group or of an Affiliate
thereof), one or more deposit accounts, into which BOSTON FINANCIAL
shall deposit the funds
22
BOSTON FINANCIAL receives for payment of dividends, distributions,
redemptions or other disbursements provided for hereunder and to draw
checks against such accounts.
E. BOSTON FINANCIAL is authorized and directed to stop payment of checks
theretofore issued hereunder, but not presented for payment, when the
payees thereof allege either that they have not received the checks or that
such checks have been mislaid, lost, stolen, destroyed or through no fault
of theirs, are otherwise beyond their control, and cannot be produced by
them for presentation and collection, and, to issue and deliver duplicate
checks in replacement thereof.
21. ASSUMPTION OF DUTIES BY THE TRUST OR AGENTS DESIGNATED BY THE TRUST.
A. The Trust or its designated agents other than BOSTON FINANCIAL may
assume certain duties and responsibilities with respect to the operations
of the Trust, including (with BOSTON FINANCIAL's agreement) providing all,
or a portion, of those services which BOSTON FINANCIAL is obligated to
provide under Section 4.D of this Agreement.
B. To the extent the Trust or its agent or affiliate assumes BOSTON
FINANCIAL's duties and responsibilities (which assumption should be
embodied in writing), BOSTON FINANCIAL shall be relieved from all
responsibility and liability therefore (including any Adverse Consequences
directly or indirectly arising out of or resulting from the actions or
omissions of the Trust or its designees, as well as from any "as of"
liability or withholding reversals in connection therewith) and BOSTON
FINANCIAL is hereby indemnified and held harmless against any liability
therefrom in the same manner and degree as provided for in Section 8
hereof.
C. Initially, with respect to accounts serviced by JPM or banks affiliated
with or a correspondent of JPM, the Trust or its designees shall be
responsible for the following: (i) answering and responding to telephone
inquiries from shareholders and brokers; (ii) accepting shareholder and
broker instructions (either or both oral and written) and (A) transmitting
to BOSTON FINANCIAL orders (transactions and maintenance) based on such
instructions for input into TA2000 by BOSTON FINANCIAL or (B) themselves
inputting such orders into TA2000 on a remote basis; (iii) preparing and
mailing confirmations; (iv) classifying the status of shareholders and
shareholder accounts under applicable tax law and in accordance with the
capabilities provided on TA2000, and performing all compliance functions
with respect thereto, including without limitation obtaining certified
TIN's, Form W-8's and other documentation, and properly coding accounts
(social codes, tax status, foreign accounts and so forth) as provided for
on TA2000; (v) on a remote basis establishing shareholder accounts on the
TA2000(TM) System, establishing the appropriate privileges thereupon and
assigning social codes and Taxpayer Identification Number codes thereof;
(vi) disbursing monies of the Trust; (vii) sending redemption and dividend
wires in accordance with instructions received; and (viii) following up and
collecting upon unsettled trade orders and unpaid broker-dealer,
institutional or shareholder "as of's."
23
22. TERMINATION OF AGREEMENT.
A. This Agreement shall be in effect from the day of , 2004,
--- -------
through the st day of , 2009 (the "Initial Term" of this
---- --------
Transfer Agency Agreement"). This Agreement shall thereafter automatically
extend for additional, successive five (5) year terms upon the expiration
of any term hereof, unless terminated as of the end of any term by either
party on not less than six (6) month's prior written notice to the other
party. Each additional five (5) year period shall be an additional term of
this Agreement. However, notwithstanding anything in this Agreement to the
contrary, the effective date of any termination shall not occur during the
period from December 15 through March 30 of any year to avoid adversely
impacting year end, except if pursuant to Section 22.B of this Agreement.
B. Each party, in addition to any other rights and remedies, shall have the
right to terminate this Agreement forthwith upon the occurrence at any time
of any of the following events with respect to the other party:
(1) The bankruptcy of the other party or its assigns or the appointment of
a receiver for the other party or its assigns;
(2) failure by the other party or its assigns to perform its duties
(including any material interruption or cessation of its operations) in
accordance with the Agreement, which failure materially adversely affects
the business operations of the first party and which failure continues for
thirty (30) days after receipt of written notice from the first party,
unless such failure is excused under Section 15 of this Agreement; or
(3) merger, consolidation or sale of substantially all of the assets of the
other party or its assigns; or
(4) acquisition of a controlling interest in the other party or its assigns
by any third party except as may presently exist within the previous sixty
(60) days.
In the event of a termination under this Section 22.B, the notice of
termination for the reasons provided in this Section 22.B must be provided
within sixty (60) days of a party's learning of a reason permitting
termination, and shall take effect within not less than ninety (90) and
more than one hundred eighty (180) days from the date of receipt of the
notice of termination. Any termination by reasons set forth in Section
22.B(1) and (2) shall not be subject to any termination fees or penalties
relating to or arising out of termination, including without limitation any
such fees or penalties relating to or arising out of termination set forth
in "NOTES TO THE FEE SCHEDULE, " Paragraphs F and G on Exhibit A attached
to this Agreement.
24
C. BOSTON FINANCIAL may, on written notice to such Trust, immediately
terminate this Agreement as to any Trust which itself or its Shares fail to
be registered as provided in Section 3 of this Agreement at any time during
this Agreement.
D. In the event of termination, the Trust will promptly pay BOSTON
FINANCIAL all amounts due to BOSTON FINANCIAL hereunder, including any
termination fee set forth in Exhibit A to this Agreement.
E. In the event of termination, BOSTON FINANCIAL will use its best efforts
to transfer the records of the Trust to the designated successor transfer
agent, to provide reasonable assistance to the Trust and its designated
successor transfer agent, and to provide other information relating to its
services provided hereunder (subject to the recompense of BOSTON FINANCIAL
for such assistance at its standard rates and fees for personnel then in
effect at that time); provided, however, as used herein "reasonable
assistance" and "other information" shall not include assisting any new
service or system provider to modify, alter, enhance, or improve its system
or to improve, enhance, or alter its current system, or to provide any new
functionality or to require BOSTON FINANCIAL to disclose any BOSTON
FINANCIAL Confidential Information, as hereinafter defined, or any
information which is otherwise confidential to BOSTON FINANCIAL.
23. CONFIDENTIALITY.
A. BOSTON FINANCIAL agrees on behalf of itself, its affiliates, its
officers and employees, except as provided in Section 19.J. hereof, or as
otherwise required by law, BOSTON FINANCIAL will keep confidential all
records and data of and information in its possession relating to the Trust
or its shareholders or shareholder accounts in any form disclosed to BOSTON
FINANCIAL hereunder, including but not limited to any data and information
in any form disclosed by the Trust, anyone acting on behalf of the Trust,
or the Trust's customers, prospective customers, or employees to BOSTON
FINANCIAL, BOSTON FINANCIAL Personnel or any Subcontractor including
Consumer Information (as "Consumer Information" is defined in SEC
Regulation S-P) and non-public information which is learned by BOSTON
FINANCIAL without the Trust's intentional disclosure to it. Such
information includes all Trust software, specifications, documentation,
product proposals, financial information, data, source or object code,
documentation, manuals, studies, internally devised technology, system or
network architecture or topology, security mechanisms, product or
processing capacities, revenues, information relating to the business of
the Trust (including internal procedures and policies, businesses plans,
and products of the Trust), and all other trade secret, confidential or
proprietary information and documentation of the Trust or its customers,
prospective customers, employees, directors, outside directors, retirees
and their respective spouses and families received in connection with this
Agreement (whether or not it is designated as such). DST shall not disclose
the same to any person except at the instruction (standing or specific),
request or with the consent of the Trust. Notwithstanding the foregoing,
BOSTON FINANCIAL shall be permitted in the ordinary course of business to
provide such information to third parties providing services to
25
BOSTON FINANCIAL which BOSTON FINANCIAL utilizes in connection with the
services BOSTON FINANCIAL provides to the Trust under this Agreement or in
accordance with Section 19.J. of this Agreement.
B. The Trust on behalf of itself, its affiliates, its officers and
employees and all entities which it directs BOSTON FINANCIAL to provide any
of the following information agrees to keep confidential all financial
statements and other financial records (other than statements and records
relating solely to the Trust's business dealings with BOSTON FINANCIAL) and
all manuals, systems and other technical information and data, not publicly
disclosed, relating to the operations and programs of BOSTON FINANCIAL and
DST furnished to it by BOSTON FINANCIAL pursuant to this Agreement and will
not disclose the same to any person except at the request or with the
consent of BOSTON FINANCIAL.
C. (1) The Trust acknowledges that BOSTON FINANCIAL and/or its affiliates
have proprietary rights in and to the TA2000(TM) System used to perform
services hereunder including, but not limited to the maintenance of
shareholder accounts and records, processing of related information and
generation of output, including, without limitation any changes or
modifications of the TA2000(TM) System and any other programs, data bases,
supporting documentation, or procedures and all software, specifications,
documentation, product proposals, financial information, data, source or
object code, documentation, manuals, studies, internally devised
technology, system or network architecture or topology, security
mechanisms, product or processing capacities, revenues, information
relating to the business of BOSTON FINANCIAL and/or its affiliates
(including internal procedures and policies, businesses plans, and products
of BOSTON FINANCIAL and/or its affiliates), and all other trade secret,
confidential or proprietary information and documentation of BOSTON
FINANCIAL and/or its Affiliates or its customers, prospective customers,
employees, directors, outside directors, retirees and their respective
spouses and families (whether or not it is designated as such) and
non-public information which is learned by the Trust without BOSTON
FINANCIAL's intentional disclosure to it (collectively "BOSTON FINANCIAL
Confidential Information") which the Trust's access to the TA2000(TM)
System or computer hardware or software may permit the Trust or its agents
or the Trust's employees, directors, outside directors, retirees, their
respective spouses and families to become aware of or to access and that
the BOSTON FINANCIAL Confidential Information constitutes confidential
material and trade secrets of BOSTON FINANCIAL and/or its affiliates. The
Trust agrees to maintain the confidentiality of the BOSTON FINANCIAL
Confidential Information of which it is, or becomes, aware or to which it
has access.
(2) The Trust acknowledges that any unauthorized use, misuse, disclosure or
taking of BOSTON FINANCIAL Confidential Information which is confidential
as provided by law, or which is a trade secret, residing or existing
internal or external to a computer, computer system, or computer network,
or the knowing and unauthorized accessing or causing to be accessed of any
computer, computer system, or computer network, may be subject to civil
liabilities and criminal penalties under applicable state law. The Trust
will advise all of its employees and agents who have access to any BOSTON
FINANCIAL
26
Confidential Information or to any computer equipment capable of accessing
BOSTON FINANCIAL hardware or software of the foregoing.
(3) The Trust acknowledges that disclosure of the BOSTON FINANCIAL
Confidential Information may give rise to an irreparable injury to BOSTON
FINANCIAL and/or its affiliates inadequately compensable in damages.
Accordingly, BOSTON FINANCIAL may seek (without the posting of any bond or
other security) injunctive relief against the breach of the foregoing
undertaking of confidentiality and nondisclosure, in addition to any other
legal remedies which may be available, and the Trust consents to the
obtaining of such injunctive relief. All of the undertakings and
obligations relating to confidentiality and nondisclosure, whether
contained in this Section or elsewhere in this Agreement shall survive the
termination or expiration of this Agreement for a period of ten (10) years.
24. CHANGES AND MODIFICATIONS.
A. During the term of this Agreement BOSTON FINANCIAL will use on behalf of
the Trust without additional cost all modifications, enhancements, or
changes which BOSTON FINANCIAL or its affiliates may make to the TA2000(TM)
System in the normal course of its business and which are applicable to
functions and features offered by the Trust to its shareholders, unless
substantially all BOSTON FINANCIAL clients are charged separately for such
modifications, enhancements or changes, including, without limitation,
substantial system revisions or modifications necessitated by changes in
existing laws, rules or regulations. The Trust agrees to pay BOSTON
FINANCIAL promptly for modifications and improvements which are charged for
separately at the rate provided for in BOSTON FINANCIAL's standard pricing
schedule which shall be identical for substantially all clients, if a
standard pricing schedule shall exist. If there is no standard pricing
schedule, the parties shall mutually agree upon the rates to be charged.
B. BOSTON FINANCIAL and/ or its affiliates shall have the right, at any
time and from time to time, to alter and modify any systems, programs,
procedures or facilities used or employed in performing its duties and
obligations hereunder; provided that the Trust will be notified as promptly
as possible prior to implementation of such alterations and modifications
and that no such alteration or modification or deletion shall materially
adversely change or affect the operations and procedures of the Trust in
using or employing the TA2000(TM) System or BOSTON FINANCIAL Facilities
hereunder or the reports to be generated by such system and facilities
hereunder, unless the Trust is given thirty (30) days prior notice to allow
the Trust to change its procedures and BOSTON FINANCIAL provides the Trust
with revised operating procedures and controls.
C. All enhancements, improvements, changes, modifications or new features
added to the TA2000(TM) System however developed or paid for shall be, and
shall remain, the confidential and exclusive property of, and proprietary
to, BOSTON FINANCIAL and/or its affiliates.
27
25. ASSIGNMENT AND SUBCONTRACTORS.
A. Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party hereto without the written consent of the other
party. In the event of a mutually agreed to assignment, each party shall
remain liable for the performance of its assignee(s). BOSTON FINANCIAL may,
however, employ agents to assist it in performing its duties hereunder.
B. Notwithstanding anything in this Agreement to the contrary, nothing
herein shall impose any duty upon BOSTON FINANCIAL in connection with or
make BOSTON FINANCIAL liable for the actions or omissions to act of
unaffiliated third parties such as, by way of example and not limitation,
Airborne Services, the U.S. mails, the National Securities Clearing
Commission and telecommunication companies, provided, if BOSTON FINANCIAL
selected such company, BOSTON FINANCIAL shall have exercised due care in
selecting the same.
26. LIMITATIONS ON LIABILITY.
A. Notwithstanding anything in this Agreement to the contrary, each Trust
which executed this Agreement is and shall be regarded for all purposes
hereunder as a separate party apart from each other Trust and any Fund of
any such other Trust. To the extent that a Trust is comprised of more than
one Fund, each Fund shall be regarded for all purposes hereunder as a
separate party apart from each other Fund. Unless the context otherwise
requires, with respect to every transaction covered by this Agreement,
every reference herein to the Trust shall be deemed to relate solely to the
particular Fund or Trust to which such transaction relates. Under no
circumstances shall the rights, obligations or remedies with respect to a
particular Trust or a particular Fund constitute a right, obligation or
remedy applicable to any other Trust or Fund. The use of this single
document to memorialize the separate agreement of each Trust and each Fund
herein is understood to be for clerical convenience only and shall not
constitute any basis for joining the Trusts or Funds for any reason.
B Notice is hereby given that a copy of each Trust's Trust Agreement and
all amendments thereto is on file with the Secretary of State of the state
of its organization; that this Agreement has been executed on behalf of the
Trust by the undersigned duly authorized representative of the Trust in
his/her capacity as such and not individually; and that the obligations of
this Agreement shall only be binding upon the assets and property of the
Trust and shall not be binding upon any trustee, officer or shareholder of
the Trust individually.
27. MISCELLANEOUS.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the
Commonwealth of Massachusetts, excluding that body of law applicable to
choice of law.
28
B. All terms and provisions of this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
C. The representations and warranties, and the indemnification extended
hereunder, if any, are intended to and shall continue after and survive the
execution, expiration, termination or cancellation of this Agreement or the
performance of services hereunder until any statute of limitations
applicable to the matter at issues shall have expired.
D. No provisions of this Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by each
party hereto.
E. The captions in this Agreement are included for convenience of reference
only, and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
F. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected, and
the rights and obligations of the parties shall be construed and enforced
as if the Agreement did not contain the particular part, term or provision
held to be illegal or invalid.
H. Neither the execution nor performance of this Agreement shall be deemed
to create a partnership or joint venture by and between the Trust and
BOSTON FINANCIAL. It is understood and agreed that all services performed
hereunder by BOSTON FINANCIAL shall be as an independent contractor and not
as an employee of the Trust. This Agreement is between BOSTON FINANCIAL and
the Trust and neither this Agreement nor the performance of services under
it shall create any rights in any third parties. There are no third party
beneficiaries hereto.
I. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto and
any actions taken or omitted by any party hereunder shall not affect any
rights or obligations of any other party hereunder.
J. The failure of either party to insist upon the performance of any terms
or conditions of this Agreement or to enforce any rights resulting from any
breach of any of the terms or conditions of this Agreement, including the
payment of damages, shall not be construed as a continuing or permanent
waiver of any such terms, conditions, rights or privileges, but the same
shall continue and remain in full force and effect as if no such
forbearance or waiver had occurred.
29
K. (a) During the term of this Agreement, the Trust hereby grants to BOSTON
FINANCIAL a nonexclusive, worldwide and royalty-free right and license to
store, reproduce, display, perform, transmit and use the Trust intellectual
property and the Trust software in connection with the Services, solely for
the purposes necessary for BOSTON FINANCIAL to fulfill its obligations
pursuant to this Agreement (and not for the benefit of any third party).
BOSTON FINANCIAL acknowledges and agrees that its use of the Trust
intellectual property solely for the purposes necessary for BOSTON
FINANCIAL to fulfill its obligations pursuant to this Agreement shall not
create any right, title or interest in or to such the Trust intellectual
property. Except for the licenses expressly granted hereunder by the Trust
to BOSTON FINANCIAL, neither this Agreement nor any disclosure made
hereunder grants any license by the Trust to BOSTON FINANCIAL of any Trust
intellectual property.
(b) Except as may be otherwise expressly provided in this Agreement, the
Trust does not grant to BOSTON FINANCIAL any right or license, express or
implied, in or to the Trust intellectual property, the Trust software or
the Trust's operating environment. BOSTON FINANCIAL agrees that the Trust
and/or the Trust's licensors', as the case may be, are the exclusive owners
of, and hold and shall retain, all right, title and interest in and to the
Trust intellectual property, the Trust software, and the trust's operating
environment, and BOSTON FINANCIAL shall have no ownership or use rights
therein except as set forth herein.
L. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement, draft or agreement or proposal
with respect to the subject matter hereof, whether oral or written, and
this Agreement may not be modified except by written instrument executed by
both parties.
M. All notices to be given hereunder shall be deemed properly given if
delivered in person or if sent by U.S. mail, first class, postage prepaid,
or if sent by facsimile and thereafter confirmed by mail as follows: If to
BOSTON FINANCIAL:
BOSTON FINANCIAL DATA SERVICES, INC.
The Xxxxxxxxxx Building
000 X. 0xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy of non-operational notices to:
BOSTON FINANCIAL DATA SERVICES, INC.
0 Xxxxxxxx Xxxxx - 0xx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Legal Department
Facsimile No.: 000 000-0000
30
If to the Trust:
Xxxx X. Xxxxxxxx
Vice President and Assistant Secretary
1211 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
or to such other address as shall have been specified in writing by the party to
whom such notice is to be given.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officers, to be effective as of the day and
year first above written.
FUND
BY:
---------------------------------------
Title:
------------------------------------
as an Authorized Officer on behalf of each
of the Funds indicated on Appendixt A
BOSTON FINANCIAL DATA SERVICES, INC.
By:
---------------------------------------
Title:
------------------------------------
31
