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TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
TIAA-CREF INSTITUTIONAL MUTUAL FUNDS
AND
BOSTON FINANCIAL DATA SERVICES, INC.
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TABLE OF CONTENTS
1. Terms of Appointment: Duties of BFDS .........................................1
2. Provision by BFDS of Computer Software and Hardware ..........................4
3. Fees and Expenses ............................................................6
4. Representations and Warranties of BFDS .......................................7
5. Representations and Warranties of the Fund ...................................7
6. Year 2000 ....................................................................8
7. Data Access and Proprietary Information ......................................8
8. Indemnification ..............................................................9
9. Standard of Care ............................................................10
10. Covenants of the Fund and BFDS ..............................................11
11. Termination of Agreement ....................................................13
12. Additional Funds ............................................................14
13. Assignment ..................................................................14
14. Amendment ...................................................................14
15. New York Law to Apply .......................................................14
16. Force Majeure ...............................................................14
17. Consequential Damages .......................................................14
18. Merger of Agreement .........................................................15
19. Counterparts ................................................................15
20. Notices .....................................................................15
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of ________________, 1999, by and between TIAA-CREF
Institutional Mutual Funds (the "Fund") and Boston Financial Data Services,
Inc., a Massachusetts corporation having its principal office and place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("BFDS").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund intends to initially offer shares in seven series, the Growth
and Income Series, Money Market Series, Growth Equity Series, International
Equity Series, Bond Series, Equity Index Series, Social Choice Equity Series,
(each such series, together with all other series subsequently established by
the Fund and made subject to this Agreement in accordance with Article 11, being
herein referred to as a "Portfolio", and collectively as the "Portfolios");
WHEREAS, the Fund and the Portfolios desires to appoint BFDS as the Fund's
transfer agent, dividend disbursing agent, and agent in connection with certain
other activities, and BFDS desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. TERMS OF APPOINTMENT: DUTIES OF BFDS
1.1 Subject to the terms and conditions set forth in this Agreement, the Fund
and its Portfolios hereby employs and appoints BFDS to act as, and BFDS
agrees to act as transfer agent for the Fund's authorized and issued
shares of beneficial interest ("Shares"), dividend disbursing agent, and
agent in connection with any accumulation, open account or similar plans
provided to shareholders of each of the respective Portfolios of the Fund
("Shareholders") and set out in the currently effective prospectus and
statement of additional information ("prospectus") of the Fund on behalf
of the applicable Portfolio, including without limitation any periodic
investment plan or periodic withdrawal program.
1.2 BFDS agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and each of the Portfolios, as
applicable and BFDS, BFDS shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation
thereof to the custodian of the Fund authorized by the
Trustees of the Fund pursuant to the Declaration of Trust
of the Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number
of Shares and
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hold such Shares in the appropriate Shareholder account(s);
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation
thereof to the Custodian;
(iv) At the appropriate time as and when it receives monies paid
to it by the Custodian with respect to any redemption, pay
over or cause to be paid over in the appropriate manner
such monies as instructed by the redeeming Shareholder(s);
(v) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the
applicable Portfolio;
(vii) Provide, on behalf of the Fund, timely, accurate and
factual responses to Shareholder inquiries received over
the phone, by mail, by facsimile, or by other electronic
means. Also, maintain copies of written correspondence
received, and produce, deliver, and maintain copies of
correspondence generated in response to such inquiries;
(viii) Maintain records of account for and advise the Fund and its
Shareholders as to items (i) through (vii) and;
(ix) Record the issuance of Shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total
number of Shares of the Fund which are authorized, based
upon data provided to it by the Fund, and issued and
outstanding. BFDS shall also provide the Fund on a regular
basis with the total number of Shares which are authorized
and issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws
relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), BFDS shall: (i)
perform the customary services of a transfer agent, dividend
disbursing agent, and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing
and tabulating proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding, depositing and
reporting taxes on U.S. resident and non-resident alien accounts,
preparing, filing and issuing U.S. Treasury Department and IRS
Forms 1099 and other appropriate forms required
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with respect to dividends and distributions by federal authorities
for all Shareholders and maintaining appropriate records in
compliance with all applicable regulatory requirements, preparing
and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, and providing
Shareholder account information; and (ii) provide a system which
will enable the Fund and/or its designee to monitor the total
number of Fund Shares sold in each State. Such system shall
include the generation and delivery to the Fund and/or its
designee of a daily report detailing the sale of Fund Shares for
the previous day in each of the States Fund Shares are sold.
(c) In connection with state tax reporting services to be provided by
BFDS pursuant to this Agreement, BFDS and the Fund shall mutually
agree on state tax reporting obligations on an annual or other
mutually agreeable periodic basis.
(d) In addition, the Fund and/or its designee shall: (i) identify to
BFDS in writing those transactions and assets to be treated as
exempt from blue sky reporting for each State; and (ii) verify the
establishment of transactions for each State on the system prior
to activation and thereafter monitor the daily activity for each
State. The responsibility of BFDS for the Fund's blue sky
registration status is solely limited to the initial establishment
of transactions and the reporting of such transactions as provided
above.
(e) Procedures as to who shall provide certain of these services in
this Section 1 may be established from time to time by agreement
between the Fund and each Portfolio and BFDS per the attached
service responsibility schedule. BFDS may at times perform only a
portion of these services and the Fund or its agent may perform
these services on the Fund's behalf.
(f) BFDS shall provide additional services on behalf of the Fund
(i.e., services pertaining to escheatments, garnishment orders,
bankruptcy and divorce proceedings, IRS or State tax authority tax
levies and summonses and all matters relating to the foregoing)
which may be agreed upon in writing between the Fund and BFDS.
(g) BFDS represents that:
(i) It is in compliance with applicable money laundering and
currency transaction reporting laws, regulations, and
government guidance including suspicious activity reporting
and recordkeeping requirements, and has adequate policies,
procedures and internal controls to ensure compliance;
(ii) It monitors transactions to identify unacceptable forms of
payment (as defined in the Fund's current prospectus, as
amended from time to time)
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and reportable and suspicious transactions and reports to
the appropriate authorities reportable and suspicious
transactions;
(iii) It is in compliance with applicable federal laws and U.S.
Treasury Office of Foreign Assets Control ("OFAC")
regulations, government guidance, and blocking and
notification requirements, including, but not limited to,
executive orders issued by the President of the United
States (collectively referred to as "OFAC laws"), and has
adequate policies, procedures and internal controls to
ensure compliance as it pertains to embargoed and
sanctioned countries and nationals, citizens and/or
residents thereof and their financial transactions; and
(iv) It will identify all (i) new accounts and (ii) accounts
effecting registration changes in financial transactions
against OFAC laws and OFAC lists identifying specially
designated terrorists, nationals, narcotic traffickers,
governments and persons.
(h) BFDS shall provide trained customer transaction processing staff
who will process Shareholder transaction requests. BFDS
understands and agree that such staff will be considered to be
dedicated to providing services primarily to the Fund, but may,
from time to time, during periods of exceptional business volume,
be utilized to provide services to one or another of BFDS' other
clients.
2. PROVISION BY BFDS OF COMPUTER SOFTWARE AND HARDWARE
2.1 BFDS will provide computer software and hardware, or arrange for it to be
provided, and provide for the maintenance of such software and hardware,
for the purposes of performing its duties as described herein,
specifically including, but not limited to establishing electronic
interfaces with the Fund as necessary to provide daily file transfers
from BFDS to the Fund and vice-versa. Specifically, but not by way of
limitation, BFDS will make available to the Fund and each Portfolio the
following systems:
a. DST TA/2000 System and its peripheral applications
b. DST AWD and AWD/View Manager Systems
c. DST Investor System
d. DST CSW/ISW
2.2 BFDS will insure that on-line environments are available each business
day between the hours of 7:00 a.m. and 8:00 p.m. Eastern Standard Time.
2.3 BFDS will provide the Fund with full documentation of all computer
software and hardware to be utilized for the purposes of administering
its duties as described herein, including but without limitation,
applications, interfaces, database structures, hardware architecture and
communication links etc.
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2.4 BFDS will notify the Fund, in writing, at least sixty (60) days in
advance of the implementation of any and all changes to software and
hardware that will materially affect the administration of its duties
and/or the interfaces established with the Fund. Further, BFDS will plan
and execute, to the reasonable satisfaction of the Fund, appropriate
levels of unit and acceptance testing of any such changes before
implementing them into the production environment(s) utilized to meet its
responsibilities to the Fund as described herein.
2.5 BFDS agrees to take all reasonable steps necessary to remedy production
problems with the operation of the software and hardware, including but
without limitation, those related to programming errors and operating
environment malfunctions; until such problems have been remedied as
mutually agreed to by the Fund and BFDS.
2.6 BFDS will maintain commercially reasonable security protocols for all
software and hardware utilized in meeting its administrative duties as
described herein; including but without limitation, those related to
applications, data centers, systems, networks, telecommunication links,
tape management facilities, and virus control mechanisms. BFDS, upon its
knowledge of any material violation of the established security
protocols, shall notify, by telephone, the Fund's or its designee's
Manager of Technical Services, within twenty-four (24) hours following
the discovery of said violation(s). Further, BFDS will comply, within one
(1) business day, with any request from the Fund for a security lock out
of any Officer of the Fund.
2.7 BFDS will provide for back-up of the computer software and hardware,
maintain the Fund's data files in a manner so as to minimize risk of
damage or loss and will provide for daily back-up of those data files.
BFDS will maintain a comprehensive disaster recovery plan and will
maintain back-up processing facilities, and will provide for transition
to such back-up processing sites in the event that computer software or
hardware downtime at BFDS' offices, or those of its subcontractors
exceeds twenty-four (24) consecutive hours.
2.8 BFDS agrees to provide the Fund with a copy of its Disaster Recovery Plan
upon the request of the Fund. BFDS will test its Disaster Recovery Plan
at least once per calendar year at a time mutually agreeable with the
Fund and a Fund representative shall have the right to be present at such
test. BFDS further agrees to annually provide the Fund with copies of its
audited SAS 70 report.
2.9 BFDS further agrees to provide connectivity for on-line access,
transmissions of data files, and all other functions as described herein
to the Fund in New York City, New York, White Plains, New York, Denver,
Colorado, the Fund's back-up site in Sterling Forest, NY and such
additional sites to be mutually agreed upon by the parties . In the event
that the Fund must invoke their own disaster recovery plans, BFDS agrees
to work with them to make alternative site access available for use
within a forty-eight hour time period from the time of a disaster
declaration by the Fund and to reasonably accommodate daily processing
outside of a regular business day in the event of an emergency situation
incurred by the Fund.
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2.10 As part of the Fund's implementation plan for the service to be rendered
under this Agreement, BFDS will provide for training on all systems that
are proprietary to BFDS and that will be utilized by the Fund in
connection with this Agreement. Such training will take place at the
Fund's New York offices at times agreed to by the parties. Similarly,
BFDS will provide training required as a result of administrative,
systems or operating changes initiated by BFDS. However, training
requested by the Fund for new employees of it designee, or for changes
initiated by the Fund, will be provided on a schedule and in a location
mutually agreed to in writing by the parties and BFDS' costs related to
such subsequent training shall be billed to the Fund as an out-of-pocket
expense.
2.11 BFDS will ensure that technical support services from DST Systems, Inc.
("DST") are available to the Fund 24 hours a day each day of the year.
BFDS technical support staff will be made available each business day
between the hours of 7:00 a.m. and 11:00 p.m. Eastern Standard Time. BFDS
will provide a list of contact staff and phone numbers, including those
of unit/shift managers at BFDS and DST, to the Fund or its designee.
2.12 BFDS will conduct batch processing of all Shareholder transactions each
business day. Transactions received by 4:00 p.m. Eastern Time will be
applied to the current business day. BFDS will ensure that batch
processing files are available for electronic transmission to the Fund
between the hours of 3:00 a.m. and no later than 5:00 a.m. Eastern Time
each day. BFDS will ensure monitoring of batch on-line transmissions and
will immediately notify the Fund's Production Processing staff in the
event that production/transmission problems occur or when batch
transmission windows are anticipated to be exceeded.
2.13 BFDS will provide the Fund with three (3) AWD/CSW compatible workstations
for its use. The parties shall mutually agree upon any provision by BFDS
of any additional connectivity and workstations requested by the Fund and
any additional charges resulting therefrom. Each workstation will be
configured to be fully compatible with BFDS/DST applications.
2.14 Upon request, BFDS will provide the Fund with connectivity to all
appropriate computer or other systems for use by the Fund in servicing
Shareholders at locations designated by the Fund in a mutually agreeable
system configuration.
3. FEES AND EXPENSES
3.1 For the services rendered by BFDS pursuant to this Agreement, the Fund
agrees to compensate BFDS by paying the fees set out in the fee schedule
attached hereto. Such fees and out-of-pocket expenses referenced under
Section 3.2 below may be changed from time to time subject to mutual
written agreement between the Fund and BFDS.
3.2 In addition to the fees referenced under Section 3.1 above, the Fund
agrees to reimburse BFDS for reasonable out-of-pocket expenses as
reflected in the fee schedule attached hereto.
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3.3 The Fund agrees to pay all fees and reimbursable expenses within thirty
(30) days following the receipt of the monthly billing notice. Upon the
termination of this Agreement before the end of any month, the fee for
the part of the month before such termination shall be prorated according
to the proportion which such part bears to the full monthly period and
shall be payable within thirty (30) days following the receipt of the
billing notice.
4. REPRESENTATIONS AND WARRANTIES OF BFDS
BFDS represents and warrants to the Fund that:
4.1 It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts;
4.2 It is duly registered as a transfer agent pursuant to Section 17A(c)(2)
of the Securities Exchange Act of 1934, as amended ("Section 17A(c)(2)");
4.3 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts;
4.4 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement;
4.5 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement;
4.6 It has and will continue to have access to, and will take the
commercially reasonable steps necessary to ensure appropriate maintenance
of, the necessary facilities, equipment and personnel to perform its
duties and obligations under this Agreement; and
4.7 It will comply with all applicable regulatory requirements.
5. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to BFDS that:
5.1 The Fund is a business trust organized and existing and in good standing
under the laws of the State of Delaware;
5.2 The Fund is empowered under applicable laws and by its Declaration of
Trust to receive services pursuant to this Agreement;
5.3 The Fund has performed all requisite corporate proceedings to receive
services pursuant to this Agreement;
5.4 The Fund is an open-end and diversified management investment company
registered
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under the Investment Company Act of 1940, as amended; and
5.5 A registration statement under the Securities Act of 1933, as amended, on
behalf of each of the Portfolios will be effective upon or prior to the
initial offering of the Fund's Shares to the public and will remain
effective while the Fund's Shares are offered to the public, and
appropriate State securities law filings have been or will be made and
will continue to be made, with respect to all Shares of the Fund being
offered for sale;
6. YEAR 2000
BFDS will take reasonable steps to ensure that its products (and those of
its third-party suppliers) reflect the available state of the art
technology to offer products that are Year 2000 compliant, including, but
not limited to, century recognition of dates, calculations that correctly
compute same century and multi century formulas and date values, and
interface values that reflect the date issues arising between now and the
next one-hundred years, and if any changes are required, BFDS will make
the changes to its products at no cost to the Fund and in a commercially
reasonable time frame and will require third-party suppliers to do
likewise.
7. DATA ACCESS AND PROPRIETARY INFORMATION
7.1 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by BFDS as part of the Fund's ability to
access certain Fund-related data ("Customer Data") maintained by BFDS on
data bases under the control and ownership of BFDS ("Data Access
Services") constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial
value to BFDS or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Fund agrees to treat all
Proprietary Information as proprietary to BFDS and further agrees that it
shall not divulge to any person or organization except as may be provided
hereunder. Without limiting the foregoing, the Fund agrees for itself and
its employees and agents:
(a) to access Customer Data solely from locations as may be designated
in writing by BFDS and agreed to by the Fund and solely in
accordance with BFDS' applicable user documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any portion of
the Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose of
such information in accordance with BFDS' instructions;
(d) to refrain from causing or allowing the data acquired hereunder
from being
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retransmitted to any other computer facility or other location,
except with the prior written consent of BFDS;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties; and
(f) to honor all reasonable written requests made by BFDS to protect
at BFDS' expense the rights of BFDS in Proprietary Information at
common law, under federal copyright law and under other federal or
State law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 7. The obligations of this Section
shall survive any earlier termination of this Agreement.
7.2 If the transactions available to the Fund include the ability to
originate electronic instructions to BFDS in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event BFDS shall be
entitled to rely on the validity and authenticity of such instruction
without undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established by the Fund
and BFDS from time to time.
8. INDEMNIFICATION
8.1 BFDS shall not be responsible for, and the Fund shall indemnify and hold
BFDS harmless from any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of
or attributable to:
(a) All actions of BFDS or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are
taken in good faith and with reasonable care and without
negligence or willful misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct
which arise out of the breach of any representation or warranty of
the Fund hereunder;
(c) The reliance on or use by BFDS or its agents or subcontractors of
information, records, documents or services which (i) are received
by BFDS or its agents or subcontractors, and (ii) have been
prepared, maintained or performed by the Fund or any other person
or firm on behalf of the Fund; and
(d) The reliance on, or the carrying out by BFDS or its agents or
subcontractors of any written instructions or request of the Fund
and the applicable Portfolio.
8.2 At any time BFDS may apply to an authorized officer of the Fund for
instructions, or may consult with the Fund's in-house legal counsel or
may at its own expense consult with its own legal counsel with respect to
any matter arising in connection with the services to be
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performed by BFDS under this Agreement, and BFDS 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 and with reasonable
care and without negligence in reliance upon such instructions from an
authorized officer of the Fund or the opinion of the Fund's in-house
counsel or BFDS' legal counsel, provided however, with respect to the
performance of any action or omission of any action upon such legal
advice by BFDS' legal counsel, BFDS shall be required to conform to the
standard of care set forth herein and further provided that BFDS shall
follow the advice of the Fund's in-house legal counsel in any and all
instances where the advice of the Fund's in-house legal counsel and BFDS'
legal counsel differ. BFDS, its agents and subcontractors shall be
protected and indemnified in acting in good faith and with reasonable
care and without negligence upon any paper or document furnished by or on
behalf of the Fund, reasonably believed to be genuine and to have been
signed by duly authorized person or persons, or upon any instruction,
information, data, records or documents provided to BFDS 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 of authority of any person, until receipt of written
notice thereof from the Fund or its designee.
8.3 In order that the indemnification provisions contained in this Section 8
shall apply, upon the assertion of a suit for which the Fund may be
required to indemnify BFDS, BFDS shall promptly notify the Fund of such
assertion, and shall keep the Fund advised with respect to all
developments concerning such suit. The Fund will be entitled to
participate at its own expense in the defense, or, if it so elects, to
assume the defense of any suit brought to enforce any liability subject
to the indemnification provided above. In the event the Fund elects to
assume the defense of any such suit and retain counsel, BFDS or any of
its affiliated persons, named as defendant or defendants in the suit, may
retain additional counsel but shall bear the fees and expenses of such
counsel unless the Fund shall have specifically authorized in writing the
retaining of such counsel. BFDS shall not settle any action, suit, claim,
or demand, for which indemnity may be sought hereunder without the prior
written approval of the Fund, which approval shall not be unreasonably
withheld. The indemnification provisions contained herein shall survive
the termination of this Agreement.
9. STANDARD OF CARE
9.1 BFDS shall at all times act in good faith and with reasonable care and
agrees to use its best efforts to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of its
employees, agents, or subcontractors.
9.2 In addition to the liability of BFDS under this Section 9, BFDS shall
also be liable to the Fund for all reasonable out-of-pocket costs and
expenses incurred by the Fund in connection with any claim by the Fund
against BFDS, its agents or subcontractors arising from the obligations
of BFDS hereunder, including, without limitation, all reasonable
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attorneys' fees and expenses incurred by the Fund in asserting any such
claim, and out-of-pocket expenses incurred by the Fund in connection with
any lawsuits or proceedings relating to such claim, provided that the
Fund has recovered from BFDS for such claim.
10. COVENANTS OF THE FUND AND BFDS
10.1 The Fund shall promptly furnish to BFDS the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund approving this Agreement; and
(b) A copy of the Declaration of Trust of the Fund and all amendments
thereto.
10.2 BFDS hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Fund for safekeeping of check forms and
facsimile signature imprinting devices, if any; and for the preparation
or use, and for keeping account of such forms and devices.
10.3 BFDS shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable provided that
it is in compliance with all applicable regulatory requirements and it is
consistent with prevailing industry standards for transfer agents. To the
extent required by Section 31 of the Investment Company Act of 1940, as
amended, and the rules thereunder, BFDS agrees that all such records
prepared or maintained by BFDS relating to the services to be performed
by BFDS hereunder are the property of the Fund and will be preserved,
maintained and make available in accordance with such Section and Rules,
and will be surrendered promptly to the Fund on and in accordance with
its their request. The Fund may, at any time and from time to time,
reasonably request copies of such records and BFDS will provide same.
10.4 BFDS 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 by law.
10.5 BFDS shaft maintain reasonable safeguards for maintaining any Shareholder
records which are furnished by or on behalf of the Fund to BFDS in the
form of computer tapes, data transmissions or any other medium. BFDS
shall not, at any time, use such records or any information contained
therein for any purpose other than as specifically authorized by this
Agreement, or in writing by the Fund. No such record or any part thereof
shall be disclosed or provided to any other person, except as
specifically authorized by this Agreement, or upon the prior written
consent of an authorized officer of the Fund or as otherwise required by
law.
10.6 BFDS shall maintain reasonable safeguards for maintaining in confidence
any and all documentation and information obtained in connection with
this Agreement furnished to it
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by or on behalf of the Fund or by any Shareholder or related to the Fund
or any Shareholder, and all records created from that documentation and
information (collectively, the "Mutual Fund Information"). BFDS shall not
make use of or disclose the Mutual Fund Information nor authorize its use
or disclose the same to any person or entity, other than the Fund, except
as specifically authorized by this Agreement, or upon the prior written
consent of an authorized officer of the Fund or as otherwise required by
law. Copies of such documentation and information shall remain the
property of the Fund. Upon termination of the Agreement or otherwise
requested by the Fund, such documentation and information furnished to
BFDS by the Fund or a Shareholder shall be promptly returned to the Fund,
or BFDS will certify to the Fund that all such information has been
destroyed.
10.7 BFDS shall promptly notify an authorized officer of the Fund in writing
of any and all legal actions received by or served on BFDS and shall use
its best efforts to promptly notify the Fund of all contacts and/or
correspondence received by BFDS from any regulatory department or agency
or other governmental authority purporting to regulate the Fund and not
BFDS, regarding BFDS' duties and activities performed in connection with
this Agreement, and will cooperate with the Fund in responding to these
contacts and any necessary correspondence.
10.8 BFDS shall permit the Fund, during the term of this Agreement, through
any person(s) designated by the Fund, at such reasonable times during
normal business hours and as often as the Fund may reasonably deem
appropriate but not so often as to place unreasonable burden on BFDS,
within ten (10) business day's prior written notice to an Authorized
Officer of BFDS, to conduct an inspection. As a matter of clarification,
the Fund acknowledges and agrees that no such inspection shall include
any visits, inspections, examinations, audits, or verification of any of
the properties, documents, books, reports, work papers and other records
belonging to, or in the possession of BFDS, involving any service,
product or work BFDS does or possess other than those relating directly
to this Agreement and the service performed by BFDS in connection
therewith.
10.9 BFDS will provide the Fund with copies of audit reports filed with
governmental authorities.
10.10 BFDS will provide the Fund with copies of all policies and procedure
manuals utilized by any and all of BFDS' operating units performing
duties related to BFDS' responsibilities to the fund as described herein.
10.11 In case of any requests or demands for the inspection of the Shareholder
records of the Fund, that arise from persons other than authorized
officers of the Fund, BFDS will immediately notify the Fund and secure
instructions from an authorized officer of the Fund as to such
inspection.
10.12 With respect to BFDS' performance of the services as outlined herein,
BFDS agrees to work in concert with the Fund to establish and document
performance measurement
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standards for such services. BFDS and the Fund shall mutually agree as to
the frequency, type, and format of reports which document BFDS's
performance relative to those standards. These standards may be modified
from time to time. subject to mutual written agreement between the Fund
and BFDS.
10.13 Notwithstanding the restrictions on confidentiality in Section 10 herein,
when required by law BFDS will disclose Shareholder records (e.g.,
subpoena for divorce) and Fund records (e.g., SEC inspection powers). The
Fund and BFDS will agree on procedures regarding such mandatory
disclosure and BFDS will make every reasonable effort to notify the Fund
of requests for such information by the SEC or any other federal or State
securities regulatory agencies prior to the release of such records.
11. TERMINATION OF AGREEMENT
11.1 This Agreement shall become effective as of the date first written above.
The Agreement shall remain in effect for a period of 3 years from the
effective date provided, however, that either party may terninate this
Agreement without prejudice to any other remedy it may have, upon the
material breach of this Agreement provided, however, that the
non-breaching party shall have given the breaching party written notice
of such breach and that the breaching party cannot or shall not have
cured to the reasonable satisfaction of the non-breaching party any such
breach within 30 days of such notice. Termination shall become effective
120 days after the end of the 30 day cure period. A material breach of
this Agreement will include, without limitation, the failure by BFDS to
conform to the performance measurements standards, which standards shall
be mutually agreed to in writing by BFDS and the Fund within 45 days of
the date of this Agreement and when mutually agreed to made a part of
this Agreement by schedule. The parties agree that the failure to agree
upon such standards within such 45 day period will enable either party to
terminate this Agreement upon written notice to the other party, subject
to the notice periods that are described herein that would otherwise
apply to a termination of this Agreement. The parties further understand
and agree that the party causing a "recurring problem" as such term is
defined in the standards shall not be entitled to the aforementioned
right to cure within 30 days. This Agreement shall automatically continue
in effect after such three year period unless terminated by the Fund on
ninety (90) days' prior written notice to BFDS or by BFDS on one hundred
eighty (180) days' prior written notice to the Fund, with such
termination to be effective at the time specified in the written notice.
11.2 Should the Fund exercise its right to terminate, all reasonable
out-of-pocket expenses associated with the movement of records and
material will be borne by the Fund on behalf of the applicable
Portfolio(s).
11.3 If this Agreement is terminated, both parties will act in good faith to
cooperate in an orderly transition.
12. ADDITIONAL FUNDS
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12.1 In the event that the Fund establishes one or more series of Shares in
addition to those described in the preamble of this Agreement with
respect to which the Fund desires to have BFDS render services as
transfer agent for such series of Fund Shares under the terms hereof, the
Fund shall so notify BFDS in writing, and such series of Shares shall
become a Portfolio hereunder.
13. ASSIGNMENT
13.1 Except as provided in Section 13.3 below, neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
13.2 The Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted assigns.
13.3 BFDS may, without further consent on the part of the Fund, subcontract
for the performance hereof with (i) a BFDS subsidiary duly registered as
a transfer agent pursuant to Section 17A(c)(2) or (ii) a BFDS affiliate
duly registered as a transfer agent under 17A(c)(2); provided, however,
that BFDS shall be as fully responsible to the Fund for the acts and
omissions of any subcontractor or agent as it is for its own acts and
omissions.
14. AMENDMENT
This Agreement may be amended or modified by a written agreement executed
by both parties.
15. NEW YORK LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of New York.
16. FORCE MAJEURE
BFDS shall not be liable for any damages to the Fund resulting from BFDS'
failure to perform under this Agreement or for the loss of all or part of
any records or proprietary information of the Fund maintained or
preserved by it pursuant to this Agreement or for any delays or errors
occurring because of acts of God, equipment or transmission failure, or
damage reasonably beyond its control except to the extent that BFDS shall
have failed to undertake commercially reasonable efforts to minimize the
likelihood of occurrence of such circumstances or to mitigate any loss or
damage caused to the Fund by such circumstances.
17. CONSEQUENTIAL DAMAGES
Neither party to this Agreement shall be liable to the other party for
consequential
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damages under any provision of this Agreement or for any consequential
damages arising out of any act or failure to act hereunder.
18. MERGER OF AGREEMENT
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.
19. COUNTERPARTS
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
20. NOTICES
Any notice or other instrument in writing authorized or required by this
Agreement to be given to the Fund shall be sufficiently given if
addressed to the Fund and mailed by registered or certified mail or
delivered to it or delivery refused therefore, at its offices at:
TIAA-CREF Institutional Mutual Funds
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: TIAA-CREF Institutional Mutual Funds Product Manager
cc: Xxxx Xxxx, Esq.
Law Dept., 9th Floor
TIAA-CREF
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
or at such other place as the Fund may from time to time designate in
writing.
Any notice or other instrument in writing authorized or required by this
Agreement to be given to BFDS shall be sufficiently given if addressed to
BFDS and mailed by registered or certified mail or delivered to it or
delivery refused therefor, at its offices at:
President
Boston Data Financial Services, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
or at such other place as BFDS may from time to time designate in
writing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
TIAA-CREF INSTITUTIONAL MUTUAL
FUNDS
BY:
-----------------------------
ATTEST:
---------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY:
----------------------------
ATTEST:
---------------------
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BFDS FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
----------------- --------------
BFDS Fund
---- ----
1. Receives orders for the purchase
of Shares. X
2. Issue Shares and hold Shares in
Shareholders accounts. X
3. Receive redemption requests. X
4. Pay over monies to redeeming
Shareholders. X
5. Effect transfers of Shares. X
6. Prepare and transmit dividends
and distributions. X
7. Maintain records of account. X
8. Maintain and keep a current and
account control book for the Fund and
each series thereof X
9. Mail and tabulate proxies. X
10. Mail Shareholder reports. X
11. Mail prospectuses to current
Shareholders. X
12. Withhold, deposit and report taxes
on U.S. resident and non-resident
alien accounts. X
13. Prepare and file and issue U.S. Treasury
Department, IRS and other forms. X
14. Prepare and mail account and
confirmation statement for
Shareholders. X
15. Provide Shareholder account
information. X
16. Blue sky reporting. X
17. Reporting of abandoned property and other
Services pursuant to Section 1.2 (f) X
18. Reporting of transactions in compliance with
money laundering, currency transactions and
OFAC laws and regulations pursuant to
Section 1.2(g) X
19. Provide customer transaction processing staff
pursuant to Section 1.2 (h) to process
Shareholder transaction requests. X
* Such services are more full described in Section 1.2 (a), (b), (c), (e), (f),
(g) and (h) of the Agreement.
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TIAA-CREF INSTITUTIONAL MUTUAL FUNDS
BY:
--------------------------
ATTEST:
-----------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY:
-------------------------
ATTEST:
------------------------
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