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Exhibit 9
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 1st day of January, 1998 between those
entities identified on the execution page hereof (each a "Fund", and
collectively the "Funds"), each with its principal place of business at 0000 Xxx
Xxxxx Xxxxxxxx, 0000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 and FIRST DATA
INVESTOR SERVICES GROUP, INC. ("Investor Services Group"), a Massachusetts
corporation with principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000.
WITNESSETH
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WHEREAS, the Funds are authorized to issue Shares in separate series,
with each such series representing interests in a separate portfolio of
securities or other assets.
WHEREAS, each Fund currently offers Shares in itself or in a series
identified in the attached Exhibit 1;
WHEREAS, each of the Funds desires to appoint Investor Services Group
as its transfer agent, dividend disbursing agent and agent in connection with
certain other activities and Investor Services Group desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, each Fund and Investor Services Group agree as follows:
Article 1 Definitions.
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1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Authorized Person" shall be deemed to include (i) any
authorized officer of a Fund; or (ii) any person, whether or not such
person is an officer or employee of a Fund, duly authorized to give
Oral Instructions or Written Instructions on behalf of a Fund as
indicated in writing to Investor Services Group from time to time.
(b) "Board of Trustees" shall mean the Board of Trustees of a
Fund.
(c) "Commission" shall mean the Securities and Exchange
Commission.
(d) "Custodian" refers to any custodian or subcustodian of
securities and other property which a Fund may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custodian Agreement.
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(e) "Declaration of Trust" shall mean the Declaration of
Trust, or other similar organizational document as the case may be, of
a Fund as the same may be amended from time to time.
(f) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(g) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by Investor Services Group from
a person reasonably believed by Investor Services Group to be an
Authorized Person;
(i) "Prospectus" shall mean the most recently dated Prospectus
and Statement of Additional Information of a Fund, including any
supplements thereto if any, which has become effective under the
Securities Act of 1933 and the 1940 Act.
(j) "Shares" refers collectively to such shares of beneficial
interest or class thereof, of each respective Fund or Fund series, as
may be issued from time to time.
(k) "Shareholder" shall mean a record owner of Shares of a
Fund.
(l) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by Investor Services Group to be
an Authorized Person and actually received by Investor Services Group.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of Investor Services Group.
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Each Fund hereby appoints and constitutes Investor Services Group as
transfer agent and dividend disbursing agent for its Shares and as shareholder
servicing agent for the Fund and Investor Services Group hereby accepts such
appointments and agrees to perform the duties hereinafter set forth.
Article 3 Duties of Investor Services Group.
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3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of
a transfer agent; acting as service agent in connection with dividend
and distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance,
transfer or redemption (including coordination with the Custodian) of
Shares of each Fund, as more fully described without limitation in the
written schedule of
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Duties of Investor Services Group annexed hereto as Schedule A and
incorporated herein, and in accordance with the terms of the Prospectus
of each Fund, applicable law and the procedures established from time
to time between Investor Services Group and each Fund.
(b) Recording the issuance of Shares and maintaining pursuant
to Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Fund which are authorized, based upon data provided to
it by each Fund, and issued and outstanding. Investor Services Group
shall 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.
(c) In addition to providing the foregoing services, each Fund
hereby engages Investor Services Group as its exclusive service
provider with respect to the Print/Mail Services as set forth in
Schedule B for the fees also identified in Schedule B. Investor
Services Group agrees to perform the services and its obligations
subject to the terms and conditions of this Agreement.
(d) Notwithstanding any of the foregoing provisions of this
Agreement, Investor Services Group shall be under no duty or obligation
to inquire into, and shall not be liable for: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the redemption of any Shares,
or the propriety of the amount to be paid therefor; (iii) the legality
of the declaration of any dividend by the Board of Trustees, or the
legality of the issuance of any Shares in payment of any dividend; or
(iv) the legality of any recapitalization or readjustment of the
Shares.
3.2 In addition, each Fund shall (i) identify to Investor Services
Group 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 Investor Services Group for
a Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
3.3 In addition to the duties set forth herein, Investor Services Group
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between a Fund and
Investor Services Group.
Article 4 Recordkeeping and Other Information.
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4.1 Investor Services Group shall create and maintain all records
required of it pursuant to its duties hereunder and as set forth in Schedule A
in accordance with all applicable
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laws, rules and regulations, including records required by Section 31(a) of the
1940 Act. Where applicable, such records shall be maintained by Investor
Services Group for the periods and in the places required by Rule 31a-2 under
the 1940 Act.
4.2 Investor Services Group agrees that all such records prepared or
maintained by Investor Services Group relating to the services to be performed
by Investor Services Group hereunder are the property of the respective Fund and
will be preserved, maintained and made available in accordance with Section 31
of the 1940 Act, and will be surrendered promptly to the appropriate Fund on and
in accordance with the Fund's request.
4.3 In case of any requests or demands for the inspection of
Shareholder records of a Fund, Investor Services Group will endeavor to notify
the Fund of such request and secure Written Instructions as to the handling of
such request. Investor Services Group reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to comply with such request.
4.4 Investor Services Group shall at all times maintain a duplicate set
of records of each Fund (except those records copies of which are furnished
daily to the Fund) in a fire-safe facility and shall further maintain a back-up
computer capability sufficient to permit Investor Services Group to perform its
obligations hereunder under reasonably foreseeable circumstances.
Article 5 Fund Instructions.
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5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from a Fund. Investor Services Group will also have no liability when
processing Share certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the officers of a Fund and the proper
countersignature of Investor Services Group.
5.2 At any time, Investor Services Group may request Written
Instructions from a Fund and may seek advice from legal counsel for a Fund, or
its own legal counsel, with respect to any matter arising in connection with
this Agreement, and it shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such Written Instructions or in
accordance with the opinion of counsel for a Fund or for Investor Services
Group. Written Instructions requested by Investor Services Group will be
provided by a Fund within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is an
Authorized Person. Each Fund agrees that all Oral Instructions shall be followed
within one business day by confirming Written Instructions, and that the Fund's
failure to so confirm shall not impair in any respect Investor Services Group's
right to rely on Oral Instructions.
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Article 6 Compensation.
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6.1 Each Fund will compensate Investor Services Group for the
performance of its obligations hereunder in accordance with the fees set forth
in the written Fee Schedule annexed hereto as Schedule B and incorporated
herein.
6.2 In addition to those fees set forth in Section 6.1 above, each Fund
agrees to pay, and will be billed separately for, out-of-pocket expenses
incurred by Investor Services Group in the performance of its duties hereunder.
Out-of-pocket expenses shall include, but shall not be limited to, the items
specified in the written schedule of out-of-pocket charges annexed hereto as
Schedule C and incorporated herein. Schedule C may be modified by written
agreement between the parties. Unspecified out-of-pocket expenses shall be
limited to those out-of-pocket expenses reasonably incurred by Investor Services
Group in the performance of its obligations hereunder.
6.3 Each Fund agrees to pay all fees and out-of-pocket expenses to
Investor Services Group within thirty (30) business days following the receipt
of the respective invoice. With respect to all fees under this Agreement,
Investor Services Group may charge a service fee equal to the lesser of (i) one
and one half percent (1 1/2%) per month or (ii) the highest interest rate
legally permitted on any past due invoiced amounts, provided however, the
foregoing service fee shall not apply if the Fund in good faith disputes any
invoice amount in which case the Fund shall do the following within thirty (30)
days of receipt of the invoice: (a) pay Investor Services Group the undisputed
amount of the invoice; and (b) provide Investor Services Group a detailed
written description of the disputed amount and the basis for the Fund's dispute
with such amount. In addition, the Fund shall cooperate with Investor Services
Group in resolving disputed invoice amounts and then promptly paying such
amounts determined to be due.
6.4 Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule B, a revised Fee Schedule executed and dated by
the parties hereto.
Article 7 Documents.
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In connection with the appointment of Investor Services Group, each
Fund shall, on or before the date this Agreement goes into effect, within a
reasonable period of time for Investor Services Group to prepare to perform its
duties hereunder but only to the extent not previously delivered to Investor
Services Group, deliver or caused to be delivered to Investor Services Group the
documents set forth in the written schedule of Fund Documents annexed hereto as
Schedule D.
Article 8 Transfer Agent System.
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8.1 Investor Services Group shall retain title to and ownership of any
and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by Investor
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Services Group in connection with the services provided by Investor Services
Group to a Fund herein (the "Investor Services Group System").
8.2 Investor Services Group hereby grants to each Fund a limited
license to the Investor Services Group System for the sole and limited purpose
of having Investor Services Group provide the services contemplated hereunder
and nothing contained in this Agreement shall be construed or interpreted
otherwise and such license shall immediately terminate with the termination of
this Agreement.
8.3 In the event that any Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the Investor Services Group System for either account inquiry or to
transmit transaction information, including but not limited to maintenance,
exchanges, purchases and redemptions, such direct access capability shall be
limited to direct entry to the Investor Services Group System by means of
on-line mainframe terminal entry or PC emulation of such mainframe terminal
entry and any other non-conforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the prior written
consent of Investor Services Group.
Article 9 Representations and Warranties.
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9.1 Investor Services Group represents and warrants to each Fund that:
(a) it is a corporation duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will remain in effect
for the duration of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.2 Each Fund represents and warrants to Investor Services Group
that:
(a) it is duly organized and existing as a business trust
under the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into this Agreement;
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(c) all corporate proceedings required by said Declaration of
Trust, By-Laws and applicable laws have been taken to authorize it to
enter into this Agreement;
(d) a registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of the Fund is currently
effective and the Fund will use commercially reasonable efforts to
cause it to remain effective, and all appropriate state securities law
filings or notices have been made or filed and will continue to be made
or filed, with respect to all Shares of the Fund being offered for
sale; and
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with
the terms of the Fund's Declaration of Trust and its Prospectus, such
Shares shall be validly issued, fully paid and non-assessable.
Article 10 Indemnification.
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10.1 Investor Services Group shall not be responsible for and each Fund
shall indemnify and hold Investor Services Group harmless from and against any
and all claims, costs, expenses (including reasonable attorneys' fees), losses,
damages, charges, payments and liabilities of any sort or kind (a "Claim") which
may be asserted against Investor Services Group or for which Investor Services
Group may be held to be liable arising out of or attributable to any of the
following:
(a) any actions of Investor Services Group required to be
taken pursuant to this Agreement unless such Claim resulted from a
negligent act or omission to act or bad faith by Investor Services
Group in the performance of its duties hereunder;
(b) Investor Services Group's reasonable reliance on, or
reasonable use of information, data, records and documents (including
but not limited to magnetic tapes, computer printouts, hard copies and
microfilm copies) received by Investor Services Group from a Fund, or
any authorized third party acting on behalf of a Fund, in the
performance of Investor Services Group's duties and obligations
hereunder;
(c) the reliance on, or the implementation of, any Written or
Oral Instructions or any other instructions or requests of a Fund;
(d) the offer or sale of Shares in violation of any
requirement under the securities laws or regulations of any state or in
violation of any stop order or other determination or ruling by any
state with respect to the offer or sale of such Shares in such state;
and
(e) a Fund's refusal or failure to comply with the terms of
this Agreement, or any Claim which arises out of a Fund's negligence or
misconduct or the breach of any representation or warranty of that Fund
made herein.
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10.2 The Funds shall not be responsible for and Investor Services Group
shall indemnify and hold each Fund harmless from and against any and all Claims
which result from the negligence, bad faith or willful misconduct of Investor
Services Group in the performance of its duties hereunder.
10.3 In any case in which any party to this Agreement (the
"Indemnifying Party") may be asked to indemnify or hold another party (the
"Indemnified Party") harmless, the Indemnified Party will notify the
Indemnifying Party promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification against the
Indemnifying Party although the failure to do so shall not prevent recovery by
the Indemnified Party, which shall keep the Indemnifying Party advised with
respect to all developments concerning such situation. The Indemnifying Party
shall have the option to defend the Indemnified Party against any Claim which
may be the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by counsel chosen
by the Indemnifying Party and satisfactory to the Indemnified Party, and
thereupon the Indemnifying Party shall take over complete defense of the Claim
and the Indemnified Party shall sustain no further legal or other expenses in
respect of such Claim. The Indemnified Party will not confess any Claim or make
any compromise in any case in which the Indemnifying Party will be asked to
provide indemnification, except with the Indemnifying Party's prior written
consent. The obligations of the parties hereto under this Article 10 shall
survive the termination of this Agreement.
10.4 Any claim for indemnification under this Agreement must be made
prior to the earlier of:
(a) one year after the respective Fund becomes aware of the
event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
Investor Services Group's sole and exclusive remedy for claims or other actions
or proceedings to which a Fund's indemnification obligations pursuant to this
Article 10 may apply.
Article 11 Standard of Care.
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11.1 Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to a Fund unless said errors are caused by
Investor Services Group's own negligence, bad faith or willful misconduct or
that of its employees.
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11.2 Notwithstanding any provision in this Agreement to the contrary,
Investor Services Group's liability (to any Fund) for all losses, claims, suits,
controversies, breaches, or damages for any cause whatsoever arising out of or
related to this Agreement and regardless of the form of action or legal theory
in any given contract year shall not exceed the lesser of (i) $500,000 or (ii)
the fees received by Investor Services Group for services provided under this
Agreement during the twelve months immediately prior to the date of such loss or
damage. Fund understands the limitation on Investor Services Group's damages to
be a reasonable allocation of risk and Fund expressly consents with respect to
such allocation of risk.
11.3 Neither party may assert any cause of action against the other
party under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings) alleging such
cause of action.
11.4 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
Article 12 Consequential Damages.
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EXCEPT WITH RESPECT TO THE RESPONSIBILITY OF INVESTOR SERVICES GROUP
FOR DIRECT DAMAGES AS SET FORTH IN SECTION 10.2, IN NO EVENT SHALL INVESTOR
SERVICES GROUP, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY THEORY OF TORT,
CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS,
OR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 13 Term and Termination.
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13.1 This Agreement shall be effective on the date first written above
and shall continue for a period of five (5) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless one or more of the Funds or Investor Services Group provides
written notice to the other of its intent not to renew with respect to one or
more Funds. Such notice must be received not less than ninety (90) days and not
more than one-hundred eighty (180) days prior to the expiration of the Initial
Term or the then current Renewal Term.
13.3 In the event a termination notice is given by a Fund, all expenses
associated with movement of records and materials and conversion thereof to a
successor transfer agent will be borne by the Fund.
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13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If Investor Services Group is the Non-Defaulting Party,
its termination of this Agreement shall not constitute a waiver of any other
rights or remedies of Investor Services Group with respect to services performed
prior to such termination or rights of Investor Services Group to be reimbursed
for out-of-pocket expenses. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the Defaulting
Party.
13.5 Notwithstanding anything contained in this Agreement to the
contrary, in the event of an acquisition, change of control (as defined under
the 1940 Act), merger, or consolidation involving one or more of the Funds or
any affiliate of a Fund ("Change of Control") and as a result a majority of the
accounts or assets of such Fund are transferred from such Fund to a mutual fund
for which Investor Services Group does not provide services similar to those
provided to such Fund hereunder, prior to the effective date of the Change of
Control each affected Fund shall pay to Investor Services Group the fee set
forth in Schedule B (the "Early Termination Fee").
13.6 Notwithstanding anything in this Agreement to the contrary, in the
event that Xxxxx Xxxxxx, Inc. ("Xxxxx Xxxxxx") terminates its relationship with
Investor Services Group and no longer utilizes the Investor Services Group
System in connection with shareholder record keeping for the Xxxxx Xxxxxx
related mutual funds, each Fund shall have the right to terminate this
Agreement, provided however, that in such event (i) the terminating Fund shall
provide Investor Services Group with not less than 180 days prior written
notice; and (ii) the terminating Fund shall pay to Investor Services Group the
Early Termination Fee set forth in Schedule C. The Early Termination Fee set
forth in this Section 13.6 shall not apply if the Fund is dissolved.
Article 14 Additional Series
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In the event that a Fund establishes one or more Series in addition to
those identified in Exhibit 1, with respect to which the Fund desires to have
Investor Services Group render services as transfer agent under the terms
hereof, the Fund shall so notify Investor Services Group in writing, and Exhibit
1 shall be amended to include such additional series.
Article 15 Confidentiality.
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15.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. Each
Fund and Investor Services Group shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its own
confidential information of a similar nature. Except as required by law, the
Fund and Investor
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Services Group shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior written
permission of the other party. The Fund and Investor Services Group may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, independent contractors, auditors, and professional
advisors, provided that each shall use reasonable efforts to ensure that the
Confidential Information is not duplicated or disclosed in breach of this
Agreement. Notwithstanding the previous sentence, in no event shall either a
Fund or Investor Services Group disclose the Confidential Information to any
competitor of the other without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating to
the past, present or future business activities of a Fund or Investor
Services Group, their respective subsidiaries and affiliated companies
and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords a Fund or Investor
Services Group a competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
15.4 The obligations of confidentiality and restriction on use herein
shall not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this
Agreement or subsequently came into the public domain through no fault
of such party; or
(b) Was lawfully received by the party from a third party free
of any obligation of confidence to such third party; or
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(c) Was already in the possession of the party prior to
receipt thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal remedies for
maintaining such information in confidence have been exhausted
including, but not limited to, giving the other party as much advance
notice of the possibility of such disclosure as practical so the other
party may attempt to stop such disclosure or obtain a protective order
concerning such disclosure; or
(f) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
Article 16 Force Majeure.
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No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default or delay
is caused, directly or indirectly, by (i) fire, flood, elements of nature or
other acts of God; (ii) any outbreak or escalation of hostilities, war, riots or
civil disorders in any country, (iii) any act or omission of the other party or
any governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to satisfy); or
(v) nonperformance by a third party or any similar cause beyond the reasonable
control of such party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the non-performing
party shall be excused from any further performance and observance of the
obligations so affected only for as long as such circumstances prevail and such
party continues to use commercially reasonable efforts to recommence performance
or observance as soon as practicable.
Article 17 Assignment and Subcontracting.
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This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Investor Services Group may, in its sole discretion, assign all its right, title
and interest in this Agreement to an affiliate, parent or subsidiary, or to the
purchaser of substantially all of its business. Investor Services Group may, in
its sole discretion, engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by Investor Services Group.
Article 18 Arbitration.
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18.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered by the
American Arbitration Association in Boston, Massachusetts in accordance with its
applicable rules, except that the Federal Rules of
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Evidence and the Federal Rules of Civil Procedure with respect to any discovery
process ordered by the arbitrators shall apply. The parties agree that the fees
of and authorized costs of the arbitrators shall be shared equally by the
parties.
18.2 The parties hereby agree that the decision of the arbitrator shall
be binding on the parties and that judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
18.3 The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Article 18.
Article 19 Notice.
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Any notice or other instrument authorized or required by this Agreement
to be given in writing to a Fund or Investor Services Group, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To any Fund:
Carnegie Capital Management Company
0000 Xxx Xxxxx Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, President and CEO
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
Article 20 Governing Law/Venue.
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The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this agreement.
Article 21 Counterparts.
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This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 22 Captions.
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The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 23 Publicity.
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Neither Investor Services Group nor any Fund shall release or publish
news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without the prior
review and written approval of the other party; provided, however, that either
party may make such disclosures as are required by legal, accounting or
regulatory requirements after making reasonable efforts in the circumstances to
consult in advance with the other party.
Article 24 Trustee/Shareholder Liability
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The shareholders, Trustees, officers, employees and agents of a Fund
shall not personally be bound by or liable under this Agreement, nor shall
resort be had to their private property for the satisfaction of any obligation
or claim thereunder, as more fully provided under the terms of the Declaration
of Trust.
Article 25 Relationship of Parties/Non-Solicitation.
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25.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
25.2 During the term of this Agreement and for one (1) year afterward,
no Fund shall recruit, solicit, employ or engage, for the Fund or others,
Investor Services Group's employees, without the consent of Investor Services
Group.
Article 26 Entire Agreement; Severability.
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26.1 This Agreement, including Schedules and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or
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condition in the Agreement shall not be deemed a waiver of any subsequent breach
of the same or another term or condition.
26.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement
shall remain fully effective.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
LIQUID CAPITAL INCOME TRUST
By:
-------------------------------
Title:
CARNEGIE GOVERNMENT SECURITIES TRUST
By:
-------------------------------
Title:
----------------------------
CARNEGIE TAX FREE INCOME TRUST
By:
-------------------------------
Title:
----------------------------
CARNEGIE TAX EXEMPT INCOME TRUST
By:
-------------------------------
Title:
----------------------------
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:
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Title:
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EXHIBIT 1
CARNEGIE FUNDS AND SERIES
Parties to Agreement
Liquid Capital Income Trust (Mass business trust)
Carnegie Government Securities Trust (Mass business trust) - Money Market Series
Carnegie Tax Free Income Trust (Mass business trust)
Carnegie Tax Exempt Income Trust - Ohio General Municipal Fund (Ohio business
trust)
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Schedule A
Duties of Investor Services Group
---------------------------------
1. SHAREHOLDER INFORMATION. Investor Services Group shall maintain a
record of the number of Shares held by each Shareholder of record which shall
include name, address, taxpayer identification and which shall indicate whether
such Shares are held in certificates or uncertificated form.
2. SHAREHOLDER SERVICES. Investor Services Group shall respond as
appropriate to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as may be from
time to time mutually agreed upon between Investor Services Group and the Fund.
3. SHARE CERTIFICATES.
(a) At the expense of the Fund, the Fund shall supply Investor
Services Group with an adequate supply of blank share certificates to meet
Investor Services Group requirements therefor. Such Share certificates shall be
properly signed by facsimile. The Fund agrees that, notwithstanding the death,
resignation, or removal of any officer of the Fund whose signature appears on
such certificates, Investor Services Group or its agent may continue to
countersign certificates which bear such signatures until otherwise directed by
Written Instructions.
(b) Investor Services Group shall issue replacement Share
certificates in lieu of certificates which have been lost, stolen or destroyed,
upon receipt by Investor Services Group of properly executed affidavits and lost
certificate bonds, in form satisfactory to Investor Services Group, with the
Fund and Investor Services Group as obligees under the bond.
(c) Investor Services Group shall also maintain a record of
each certificate issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open accounts or
uncertificated form (i.e., no certificate being issued with respect thereto)
Investor Services Group shall maintain comparable records of the Shareholders
thereof, including their names, addresses and taxpayer identification. Investor
Services Group shall further maintain a stop transfer record on lost and/or
replaced certificates.
4. MAILING COMMUNICATIONS TO SHAREHOLDERS; PROXY MATERIALS. Investor
Services Group will address and mail to Shareholders of the Fund, all reports to
Shareholders, dividend and distribution notices and proxy material for the
Fund's meetings of Shareholders. In connection with meetings of Shareholders,
Investor Services Group will prepare Shareholder lists, mail and certify as to
the mailing of proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
5. SALES OF SHARES.
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(a) Investor Services Group shall not be required to issue any
Shares of the Fund where it has received a Written Instruction from the Fund or
official notice from any appropriate authority that the sale of the Shares of
the Fund has been suspended or discontinued. The existence of such Written
Instructions or such official notice shall be conclusive evidence of the right
of Investor Services Group to rely on such Written Instructions or official
notice.
(b) In the event that any check or other order for the payment
of money is returned unpaid for any reason, Investor Services Group will
endeavor to: (i) give prompt notice of such return to the Fund or its designee;
(ii) place a stop transfer order against all Shares issued as a result of such
check or order; and (iii) take such actions as Investor Services Group may from
time to time deem appropriate.
6. TRANSFER AND REDEMPTION.
(a) Investor Services Group shall process all requests to
transfer or redeem Shares in accordance with the transfer or redemption
procedures set forth in the Fund's Prospectus.
(b) Investor Services Group will transfer or redemption Shares
upon receipt of Oral or Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly endorsed for transfer or
redemption, accompanied by such documents as Investor Services Group reasonably
may deem necessary.
(c) Investor Services Group reserves the right to refuse to
transfer or redeem Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. Investor Services Group also reserves the
right to refuse to transfer or redeem Shares until it is satisfied that the
requested transfer or redemption is legally authorized, and it shall incur no
liability for the refusal, in good faith, to make transfers or redemptions which
Investor Services Group, in its good judgment, deems improper or unauthorized,
or until it is reasonably satisfied that there is no basis to any claims adverse
to such transfer or redemption.
(d) When Shares are redeemed, Investor Services Group shall,
upon receipt of the instructions and documents in proper form, deliver to the
Custodian and the Fund or its designee a notification setting forth the number
of Shares to be redeemed. Such redeemed shares shall be reflected on appropriate
accounts maintained by Investor Services Group reflecting outstanding Shares of
the Fund and Shares attributed to individual accounts.
(e) Investor Services Group shall upon receipt of the monies
provided to it by the Custodian for the redemption of Shares, pay such monies as
are received from the Custodian, all in accordance with the procedures described
in the written instruction received by Investor Services Group from the Fund.
(f) Investor Services Group shall not process or effect any
redemption with respect to Shares of the Fund after receipt by Investor Services
Group or its agent of notification of the suspension of the determination of the
net asset value of the Fund.
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7. DIVIDENDS.
(a) Upon the declaration of each dividend and each capital
gains distribution by the Board of Trustees of the Fund with respect to Shares
of the Fund, the Fund shall furnish or cause to be furnished to Investor
Services Group Written Instructions setting forth the date of the declaration of
such dividend or distribution, the ex-dividend date, the date of payment
thereof, the record date as of which Shareholders entitled to payment shall be
determined, the amount payable per Share to the Shareholders of record as of
that date, the total amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at net asset value.
(b) On or before the payment date specified in such resolution
of the Board of Trustees, the Fund will provide Investor Services Group with
sufficient cash to make payment to the Shareholders of record as of such payment
date.
(c) If Investor Services Group does not receive sufficient
cash from the Fund to make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, Investor Services Group will,
upon notifying the Fund, withhold payment to all Shareholders of record as of
the record date until sufficient cash is provided to Investor Services Group.
8. In addition to and neither in lieu nor in contravention of the
services set forth above, Investor Services Group shall: (i) perform all the
customary services of a transfer agent, registrar, dividend disbursing agent and
agent of the dividend reinvestment and cash purchase plan as described in the
Fund's Prospectus and Statement of Additional Information and herein and
consistent with those requirements in effect as at the date of this Agreement.
The detailed definition, frequency, limitations and associated costs (if any)
set out in the attached fee schedule, include but are not limited to:
maintaining all Shareholder accounts, preparing Shareholder meeting lists,
mailing proxies, tabulating proxies, mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident and non-resident alien accounts
where applicable, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders.
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Schedule B
FEE SCHEDULE
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1. Standard Fees
Open Account Fees:
Bond Funds: $13.84 per account/per annum
Money Market Funds: $19.44 per account/per annum
Closed Account Fees: $2.20 per account/per annum
The following functionality shall be supported on the Investor Services
Group System:
- Second Cycle to SDI
- 6700 Xxxxx Xxxxxx Account logic
- Pounding Daily Accrual
After the two year anniversary of the effective date of this Agreement, Investor
Services Group may adjust the above fees once every two calendar years, upon
thirty (30) days prior written notice in an amount not to exceed the cumulative
percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U)
U.S. City Average, All items (unadjusted) - (1982-84=100), published by the U.S.
Department of Labor since the last such adjustment in the Client's monthly fees
(or the Effective Date absent a prior such adjustment).
2. Retirement Plan Fees:
New Account Set Up: $ 5.00
Pre-Mature Distribution: $ 5.00
Annual Maintenance: $15.00 per social security
number per plan
3. Programming Costs
(a) Dedicated Team:
Programmer $100,000 per annum
BSA $ 85,000 per annum
Tester $ 65,000 per annum
(b) System Enhancements (Non Dedicated Team):
Programmer $135.00 per hour
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The above rates are subject to an annual 5% increase after the one year
anniversary of the effective date of this Agreement.
4. Early Termination Fee. In the event that this Agreement is terminated during
the Initial Term as set forth in either Section 13.5 or Section 13.6, the
following fee shall be paid by each affected Fund to Investor Services Group
prior to the effective date of termination:
Termination Notice Fee
------------------ ---
Received During Year:
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1 $50,000
2 $37,500
3 $25,000
4 $12,500
5 No Fee
5. Print/Mail Fees.
(a) Standard Pricing:
IMPLEMENTATION FEE:
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$ 5000.00
$ 150.00 / hr. Multi-check and Non Standard
TESTING APPLICATION OR DATA REQUIREMENTS:
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$3.00 / fax to client or Record Keeper
WORK ORDER:
$15.00 per workorder
DAILY WORK (CONFIRMS):
Hand: $71/K with $75.00 minimum (includes 1 insert)
$0.07/each additional insert
Machine: $42/K with $50.00 minimum (includes 1 insert)
$0.01/each additional insert
DAILY CHECKS:
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Hand: $91/K with $100.00 minimum daily (includes 1 insert)
$0.08/each additional insert
Machine: $52/K with $75.00 minimum (includes 1 insert)
$0.01/each additional insert
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* There is a $3.00 charge for each 3606 Form sent.
STATEMENTS:
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Hand: $78/K with $75.00 minimum (includes 1 insert)
$0.08/each additional insert
$125/K for intelligent inserting
Machine: $52/K with $75.00 minimum (includes 1 insert) $0.01
each additional insert $58/K for intelligent
inserting
PERIODIC CHECKS:
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Hand: $91/K with $100.00 minimum (includes 1 insert)
$0.08/each additional insert
Machine: $52/K with $100.00 minimum (includes 1 insert)
$0.01/each additional insert
12B1/DEALER COMMISSION CHECKS/STATEMENTS:
-----------------------------------------
$0.78/each envelope with $100.00 minimum
SPAC REPORTS/GROUP STATEMENTS:
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$78/K with $75.00 minimum
LISTBILLS:
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$0.78 per envelope with $75.00 minimum
PRINTING CHARGES: (price ranges dependent on volumes)
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$0.08/per confirm/statement/page
$0.10/per check
FOLDING (MACHINE):
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$18/K
FOLDING (HAND):
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$.12 each
PRESORT CHARGE:
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$0.277 postage rate
$0.035 per piece
COURIER CHARGE:
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$15.00 for each on call courier trip/or actual cost
for on demand
OVERNIGHT CHARGE:
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$3.50 per package service charge plus Federal
Express/Airborne charge
INVENTORY STORAGE:
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$20.00 for each inventory location as of the 15th of
the month
INVENTORY RECEIPT:
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$20.00 for each SKU / Shipment
HOURLY WORK; SPECIAL PROJECTS, OPENING ENVELOPES, ETC...:
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$24.00 per hour
SPECIAL PULLS:
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$2.50 per account pull
BOXES/ENVELOPES:
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Shipping boxes $0.85 each
Oversized Envelopes $0.45 each
FORMS DEVELOPMENT/PROGRAMMING FEE:
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$100/hr
SYSTEMS TESTING:
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$85/hr
CUTTING CHARGES:
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$10.00/K
(b) Special Mailings.
The following pricing is based on appropriate notification
(standard of 30 day notification) and scheduling for special
mailings. Scheduling requirements include having materials
arrive at agreed upon times in advance of deadlines. Mailings
which arise with shorter time frames and turns will be billed
at a maximum premium of 25% based on turn around requirements.
WORK ORDER:
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$30.00 per Workorder
DAILY WORK (CONFIRMS):
----------------------
Hand: $135.00 to create an admark tape
$10.00/K to zip + 4 data enhance with $125.00 minimum
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$80.00/hr for any data manipulation
$6.00/K combo charge
ADMARK & MACHINE INSERT
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#10, #11, 6x9
$62/K to admark envelope and machine insert 1 piece,
with $125.00 min
$2.50/K for each additional insert $38/K to admark
only with $75.00 minimum
$25.00/X xxxx sort
9x12
$100/K to admark envelope and machine insert 1 piece,
with $125.00 min
$5.00/K for each additional insert $38/K to admark
only with $75.00 minimum
$0.08 for each hand insert
ADMARK & HAND INSERT
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#10, #11, 6x9
$0.08 for each hand insert
$25.00/X xxxx sort
9x12
$0.09 for each hand insert
$25.00/X xxxx sort
PRESSURE/SENSITIVE LABELS:
--------------------------
$0.32 each to create, affix and hand insert 1 piece,
with a $75.00 minimum
$0.08 for each hand insert $0.10 to affix labels only
$0.10 to create labels only
LEGAL DROP:
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$150.00 / compliant legal drop per job and processing
fees
CREATE MAILING LIST:
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$0.40 per entry with $75.00 minimum
PRESORT FEE:
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$0.035 per piece
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Schedule C
OUT-OF-POCKET EXPENSES
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Each Fund shall reimburse Investor Services Group monthly for
applicable reasonable out-of-pocket expenses, including, but not limited to the
following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes, checks and
stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including all lease,
maintenance and line costs
- Ad hoc reports
- Proxy solicitations, mailings and tabulations
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end form production and mailings
- Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
- Duplicating services
- Courier services
- Banking Services Fees, including but not limited to, Incoming and
Outgoing wires, and Federal Reserve charges for check clearance
- Overtime, as approved by the Fund
- Temporary staff, as approved by the Fund
- Travel and entertainment, as approved by the Fund
- Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record keeping
vendors
- Third party audit reviews
- Ad hoc SQL time
- Insurance
- Such other miscellaneous expenses reasonably incurred by Investor
Services Group in performing its duties and responsibilities under
this Agreement.
Each Fund agrees that postage and mailing expenses will be paid on the
day of or prior to mailing as agreed with Investor Services Group. In addition,
each Fund will promptly reimburse Investor Services Group for any other
unscheduled expenses incurred by Investor Services Group whenever the Fund and
Investor Services Group mutually agree that such expenses are not otherwise
properly borne by Investor Services Group as part of its duties and obligations
under the Agreement.
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Schedule D
FUND DOCUMENTS
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- Certified copy of the Declaration of Trust of the Fund, as amended
- Certified copy of the By-laws of the Fund, as amended,
- Copy of the resolution of the Board of Trustees authorizing the
execution and delivery of this Agreement
- Specimens of the certificates for Shares of the Fund, if applicable,
in the form approved by the Board of Trustees of the Fund, with a
certificate of the Secretary of the Fund as to such approval
- All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by
the Fund
- Certified list of Shareholders of the Fund with the name, address
and taxpayer identification number of each Shareholder, and the
number of Shares of the Fund held by each, certificate numbers and
denominations (if any certificates have been issued), lists of any
accounts against which stop transfer orders have been placed,
together with the reasons therefore, and the number of Shares
redeemed by the Fund
- All notices issued by the Fund with respect to the Shares in
accordance with and pursuant to the Declaration of Trust or By-laws
of the Fund or as required by law.
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