Exhibit h(xii) under Form N-1A
Exhibit 10 under Item 601/ reg. S-K
AGREEMENT
for
TRANSFER AGENCY SERVICES
AGREEMENT made as of July 1, 2004, by and between MTB GROUP OF FUNDS,
having its principal office and place of business in Pittsburgh,
Pennsylvania ("Investment Company"), on behalf of its portfolios now
existing or hereafter created, as identified on Exhibit 1 hereto as the
same may be amended from time to time (each a "Fund" and collectively the
"Funds"), and BOSTON FINANCIAL DATA SERVICES, INC., a Massachusetts
corporation, having its principal office and place of business at 0
Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx, 00000 on behalf of itself and
its subsidiaries (the "BFDS").
WHEREAS, the Investment Company is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended
(the "1940 Act"), with authorized and issued shares of capital stock
("Shares");
WHEREAS, the Investment Company desires to appoint BFDS as its transfer
agent and dividend disbursing agent to provide it with transfer agency
services (as herein defined) and agent in connection with certain other
activities, and BFDS desires to accept such appointment; and
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
SECTION ONE: Transfer Agency Services.
Article 1. Terms of Appointment.
Subject to the terms and conditions set forth in this Agreement, the
Investment Company hereby appoints BFDS to act as, and BFDS agrees to act
as, transfer agent and dividend disbursing agent for each Fund's Shares,
and agent in connection with any accumulation, open-account or similar
plans provided to the shareholders of any Fund ("Shareholder(s)"),
including without limitation any periodic investment plan or periodic
withdrawal program. BFDS shall be held to a standard of reasonable care in
carrying out the provisions of this Section One.
Article 2. Duties of BFDS.
BFDS shall perform the following services in accordance with Proper
Instructions as may be provided from time to time by the Investment Company
as to any Fund:
A. Purchases
(1) BFDS shall receive orders and payment for the purchase of
shares and promptly deliver payment and appropriate
documentation therefor to the custodian of the relevant Fund,
(the "Custodian"). BFDS shall notify the Fund and the
Custodian on a daily basis of the total amount of orders and
payments so delivered.
(2) Pursuant to purchase orders and in accordance with the Fund's
current Prospectus, BFDS shall compute and issue the
appropriate number of Shares of each Fund and/or any classes
of shares issued by any Fund ("Classes") and hold such Shares
in the appropriate Shareholder accounts.
(3) In the event that any check or other order for the purchase
of Shares of the Fund and/or Class is returned unpaid for any
reason, BFDS shall debit the Share account of the Shareholder
by the number of Shares that had been credited to its account
upon receipt of the check or other order, promptly mail a
debit advice to the Shareholder, and notify the Investment
Company of its action. In the event that the amount paid for
such Shares exceeds proceeds of the redemption of such Shares
plus the amount of any dividends paid with respect to such
Shares, the Investment Company or its distributor will
reimburse BFDS on the amount of such excess.
B. Distribution
(1) Upon notification by the Funds of the declaration of any
distribution to Shareholders, BFDS shall act as Dividend
Disbursing Agent for the Funds in accordance with the
provisions of its governing document and the then-current
prospectus and statement of additional information
("Prospectus") of the Fund. BFDS shall prepare and mail or
credit income, capital gain, or any other payments to
Shareholders. As the Dividend Disbursing Agent, BFDS shall,
on or before the payment date of any such distribution,
notify the Custodian of the estimated amount required to pay
any portion of said distribution which is payable in cash and
request the Custodian to make available sufficient funds for
the cash amount to be paid out. BFDS shall reconcile the
amounts so requested and the amounts actually received with
the Custodian on a daily basis. If a Shareholder is entitled
to receive additional Shares by virtue of any such
distribution or dividend, appropriate credits shall be made
to the Shareholder's account; and
(2) BFDS shall maintain records of account for each Fund and
Class and advise the Investment Company, each Fund and Class
and its Shareholders as to the foregoing.
C. Redemptions and Transfers
(1) BFDS shall receive redemption requests and redemption
directions and, if such redemption requests comply with the
procedures as may be described in the Fund Prospectus or set
forth in Proper Instructions, deliver the appropriate
instructions therefor to the Custodian. BFDS shall notify the
Funds on a daily basis of the total amount of redemption
requests processed and monies paid to BFDS by the Custodian
for redemptions.
(2) At the appropriate time upon receiving redemption proceeds
from the Custodian with respect to any redemption, BFDS shall
pay or cause to be paid the redemption proceeds in the manner
instructed by the redeeming Shareholders, pursuant to
procedures described in the then-current Prospectus of the
Fund.
(3) If any certificate returned for redemption or other request
for redemption does not comply with the procedures for
redemption approved by the Fund, BFDS shall promptly notify
the Shareholder of such fact, together with the reason
therefor, and shall effect such redemption at the price
applicable to the date and time of receipt of documents
complying with said procedures.
(4) BFDS shall effect transfers of Shares by the registered
owners thereof.
(5) BFDS shall identify and process abandoned accounts and uncashed
checks for state escheat requirements on an annual basis and report
such actions to the Fund.
D. Recordkeeping
(1) BFDS shall record the issuance of Shares of each Fund, and/or
Class, and maintain pursuant to applicable rules of the
Securities and Exchange Commission ("SEC") a record of the
total number of Shares of the Fund and/or Class 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 or upon reasonable request with the total
number of Shares which are authorized and issued and
outstanding, but shall have no obligation when recording the
issuance of Shares, except as otherwise set forth herein, 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 Funds.
(2) BFDS shall establish and maintain records pursuant to
applicable rules of the SEC relating to the services to be
performed hereunder in the form and manner as agreed to by
the Investment Company or the Fund to include a record for
each Shareholder's account of the following:
(a) Name, address and tax identification number (and
whether such number has been certified);
(b) Number of Shares held;
(c) Historical information regarding the account, including
dividends paid and date and price for all transactions;
(d) Any stop or restraining order placed against the
account;
(e) Information with respect to withholding in the case of
a foreign account or an account for which withholding
is required by the Internal Revenue Code;
(f) Any dividend reinvestment order, plan application,
dividend address and correspondence relating to the
current maintenance of the account;
(g) Certificate numbers and denominations for any
Shareholder holding certificates;
(h) Any information required in order for BFDS to perform
the calculations contemplated or required by this
Agreement.
(3) BFDS shall preserve any such records required to be
maintained pursuant to the rules of the SEC for the periods
prescribed in said rules as specifically noted below. Such
records shall include, but not be limited to records required
by Section 31(a) of the Investment Company Act of 1940 and
the rules thereunder, pertaining to the Transfer Agency
Services performed by it and not otherwise created and
maintained by another party pursuant to contract with the
Investment Company. Where applicable, such records shall be
maintained by BFDS for the periods and in the places required
by Rule 31a-2 under the 1940 Act. The books and records
pertaining to the Investment Company that are in the
possession of BFDS shall be the property of the Investment
Company. Such record retention shall be at the expense of
BFDS, and such records may be inspected by the Fund at
reasonable times. BFDS may, at its option at any time, and
shall forthwith upon the Fund's demand, turn over to the Fund
and cease to retain in BFDS's files, records and documents
created and maintained by BFDS pursuant to this Agreement,
which are no longer needed by BFDS in performance of its
services or for its protection. If not so turned over to the
Fund, such records and documents will be retained by BFDS for
six years from the year of creation, during the first two of
which such documents will be in readily accessible form. At
the end of the six-year period, such records and documents
will either be turned over to the Fund or destroyed in
accordance with Proper Instructions.
E. Confirmations/Reports
(1) BFDS shall furnish to the Fund periodically the following
information:
(a) A copy of the transaction register;
(b) Dividend and reinvestment blotters;
(c) The total number of Shares issued and outstanding in
each state for "blue sky" purposes as determined
according to Proper Instructions delivered from time to
time by the Fund to BFDS;
(d) Shareholder lists and statistical information;
(e) Payments to third parties relating to distribution
agreements, allocations of sales loads, redemption
fees, or other transaction- or sales-related payments;
(f) Such other information as may be agreed upon from time
to time.
(2) BFDS shall prepare in the appropriate form, file with the
Internal Revenue Service and appropriate state agencies, and,
if required, mail to Shareholders, such notices for reporting
dividends and distributions paid as are required to be so
filed and mailed and shall withhold such sums as are required
to be withheld under applicable federal and state income tax
laws, rules and regulations.
(3) In addition to and not in lieu of the services set forth
above, BFDS shall:
(a) Perform all of 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, mailing Shareholder reports and
Prospectuses to current Shareholders, withholding taxes
on accounts subject to back-up or other withholding
(including non-resident alien accounts), preparing and
filing reports on U.S. Treasury Department Form 1099
and other appropriate forms required with respect to
dividends and distributions by federal authorities for
all Shareholders, 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
(b) provide a system that will enable the Fund to monitor
the total number of Shares of each Fund (and/or Class)
sold in each state ("blue sky reporting"). The Fund
shall by Proper Instructions (i) identify to BFDS those
transactions and assets to be treated as exempt from
the blue sky reporting for each state and (ii) verify
the classification 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 each Fund's (and/or Class's) state blue sky
registration status is limited solely to the recording
of the initial classification of transactions or
accounts with regard to blue sky compliance and the
reporting of such transactions and accounts to the Fund
as provided above.
F. Other Duties
(1) BFDS shall answer correspondence from Shareholders relating
to their Share accounts and such other correspondence as may
from time to time be addressed to BFDS;
(2) BFDS shall prepare Shareholder meeting lists, mail proxy
cards and other material supplied to it by the Fund in
connection with Shareholder meetings of each Fund; receive,
examine and tabulate returned proxies, and certify the vote
of the Shareholders;
(3) BFDS shall establish and maintain facilities and procedures
for safekeeping of stock certificates, check forms and
facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such
certificates, forms and devices.
The foregoing, along with any additional services that BFDS
shall agree in writing to perform for the Investment Company under
this Section One, shall hereafter be referred to as "Transfer
Agency Services."
Article 3. Duties of the Investment Company.
A. Compliance
The Investment Company or Fund assume full responsibility for the
preparation, contents and distribution of their own and/or their
classes' Prospectus and for complying with all applicable
requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act and any laws, rules and regulations of
government authorities having jurisdiction.
B. Distributions
The Fund shall promptly inform BFDS of the declaration of any
dividend or distribution on account of any Fund's shares.
Article 4. Compensation and Expenses.
A. Annual Fee
For performance by BFDS pursuant to Section One of this Agreement,
the Investment Company and/or the Fund agree to pay BFDS an annual
maintenance fee for each Shareholder account as agreed upon between
the parties and as may be added to or amended from time to time.
Such fee may be changed from time to time subject to written
agreement between the Investment Company and BFDS. Pursuant to
information in the Fund Prospectus or other information or
instructions from the Fund, BFDS may sub-divide any Fund into
Classes or other sub-components for recordkeeping purposes.
B. Reimbursements
Unless otherwise agreed in writing between the parties, BFDS will
bear reasonable out-of-pocket expenses associated with performing
its Transfer Agency Services. Any other non-routine expenses
(reasonable or otherwise) incurred by BFDS at the request or with
the consent of the Investment Company and/or the Fund that are not
normally associated with performing Transfer Agency Services, will
be reimbursed by the appropriate Fund.
C. Payment
The compensation and out-of-pocket expenses shall be accrued daily
by the Fund and shall be paid to BFDS no less frequently than
monthly, and shall be paid daily upon request of BFDS. BFDS will
maintain detailed information about the compensation and
out-of-pocket expenses by Fund and Class.
D. Any amendments or adjustments to the schedule of compensation
agreed to hereunder shall be dated and signed by a duly authorized
officer of the Investment Company and/or the Funds and a duly
authorized officer of BFDS.
SECTION TWO: General Provisions.
Article 5. Proper Instructions.
As used throughout this Agreement, a "Proper Instruction" means a writing
signed or initialed by one or more person or persons as the Investment
Company's Board of Trustees ("Board") shall have from time to time
authorized. Each such writing shall set forth the specific transaction or
type of transaction involved. Oral instructions will be deemed to be Proper
Instructions if (a) BFDS reasonably believes them to have been given by a
person previously authorized in Proper Instructions to give such instructions
with respect to the transaction involved, and (b) the Investment Company, or
the Fund, and BFDS promptly cause such oral instructions to be confirmed in
writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Investment
Company, or the Fund, and BFDS are satisfied that such procedures afford
adequate safeguards for the Fund's assets. Proper Instructions may only be
amended in writing.
Article 6. Assignment.
Except as provided below, neither this Agreement nor any of the rights or
obligations under this Agreement may be assigned by either party without the
written consent of the other party.
A. Either party may assign all of or a substantial portion of its
business to a successor, or to a party controlling, controlled by, or
under common control with such party upon prior written notice. This
Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
B. BFDS may without further consent on the part of the Investment
Company subcontract for the performance of Transfer Agency Services
with such other provider of services duly registered as a transfer
agent under Section 17A(c)(1) as BFDS shall select, provided that
BFDS provides prior written notice to the Investment Company . BFDS
shall be fully responsible to the Investment Company for the acts and
omissions of this subcontractor as it is for its own acts and
omissions.
C. BFDS shall upon instruction from the Investment Company subcontract
for the performance of services under this Agreement with an Agent
selected by the Investment Company, other than as described in B.
above; provided, however, that BFDS shall in no way be responsible
for the acts and omissions of the Agent.
Article 7. Documents.
A. In connection with the appointment of BFDS under this Agreement,
the Investment Company shall file with BFDS the following documents:
(1) A copy of the Declaration of Trust and By-Laws of the
Investment Company and all amendments thereto ("Charter
Documents");
(2) A copy of the resolution of the Board of the Investment
Company authorizing this Agreement;
(3) Printed documentation from the recordkeeping system
representing any outstanding Share certificates of the
Investment Company or the Funds;
(4) All account application forms and other documents relating to
Shareholders accounts; and
(5) A copy of the current Prospectus for each Fund.
B. The Fund will also furnish from time to time the following
documents:
(1) Each resolution of the Board of the Investment Company
authorizing the original issuance of each Fund's, and/or
Class's Shares;
(2) Each Registration Statement filed with the SEC and amendments
thereof, including prospectuses and statements of additional
information as amended from time to time, and orders relating
thereto in effect with respect to the sale of Shares of any
Fund, and/or Class;
(3) A certified copy of each amendment to the governing document
and the By-Laws of the Investment Company;
(4) Certified copies of each vote of the Board authorizing
officers to give Proper Instructions to the Custodian and
agents for fund accountant, and shareholder recordkeeping or
transfer agency services; and
(5) Such other certifications, documents or opinions that BFDS
may, in its discretion, deem necessary or appropriate in the
proper performance of its duties.
Article 8. Representations and Warranties.
A. Representations and Warranties of BFDS
BFDS represents and warrants to the Fund that:
(1) it is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(2) it is duly qualified to carry on its business in each
jurisdiction where the nature of its business requires such
qualification;
(3) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement;
(4) all requisite corporate proceedings have been taken to
authorize it to enter into and perform its obligations under
this Agreement;
(5) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement;
(6) it is in compliance with federal securities law requirements
and in good standing as a registered transfer agent; and
B. Representations and Warranties of the Investment Company
The Investment Company represents and warrants to BFDS that:
(1) It is an investment company duly organized and existing and
in good standing under the laws of its state of organization;
(2) It is empowered under applicable laws and by its Charter
Documents to enter into and perform its obligations under
this Agreement;
(3) All corporate proceedings required by said Charter Documents
have been taken to authorize it to enter into and perform its
obligations under this Agreement;
(4) The Investment Company is an open-end investment company
registered under the 1940 Act; and
(5) A registration statement under the 1933 Act will be
effective, and appropriate authorizations for state
securities law filings have been made and will continue to be
made, with respect to all Shares of each Fund being offered
for sale.
Article 9. Indemnification.
A. Indemnification by Investment Company
BFDS shall not be responsible for and the Investment Company or
Fund shall indemnify and hold BFDS, including its officers,
directors, trustees, shareholders and their agents, employees and
affiliates, harmless against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liabilities arising
out of or attributable to:
(1) The acts or omissions of any Custodian, Fund Accountant,
Adviser, Sub-adviser, administrator other than BFDS, or other
party contracted by or approved by the Investment Company or
Fund,
(2) The reliance on or use by BFDS or its agents or
subcontractors of information, records and documents in
proper form which
(a) are received by BFDS or its agents or subcontractors
and furnished to it by or on behalf of the Fund, its
Shareholders or investors regarding the purchase,
redemption or transfer of Shares and Shareholder
account information;
(b) are received by BFDS or its agents or subcontractors
from Advisers, Sub-advisers, administrator other than
BFDS, or other third parties contracted by or approved
by the Investment Company or the Fund for use in the
performance of services under this Agreement; or
(c) have been prepared and/or maintained by the Fund or its
affiliates or any other person or firm on behalf of the
Investment Company.
(3) The reliance on, or the carrying out by BFDS or its agents or
subcontractors of Proper Instructions of the Investment
Company or the Fund.
(4) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the
securities laws or regulations of any state that such Shares
be registered in such state or in violation of any stop order
or other determination or ruling by any federal agency or any
state with respect to the offer or sale of such Shares in
such state.
Provided, however, that BFDS shall not be protected by this
Article 9.A. from liability for any act or omission resulting
from BFDS's willful misfeasance, bad faith, negligence, or
reckless disregard of its duties.
B. Reliance
At any time BFDS may apply to any officer of the Investment Company
or Fund for instructions, and may consult with legal counsel (who
may be counsel for the Investment Company) with respect to any
matter arising in connection with the services to be performed by
BFDS under this Agreement, and BFDS and its agents or
subcontractors shall not be liable and shall be indemnified by the
Investment Company or the appropriate Fund for any action
reasonably taken or omitted by it in good faith reliance upon such
instructions or upon the opinion of such counsel, provided such
action is not in violation of applicable federal or state laws or
regulations. BFDS, its agents and subcontractors shall be
protected and indemnified in recognizing stock certificates which
are reasonably believed to bear the proper manual or facsimile
signatures of the officers of the Investment Company or the Fund,
and the proper countersignature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
C. Notification
In order that the indemnification provisions contained in this
Agreement shall apply, however, it is understood that the party
seeking indemnification ("Claimant") will use all reasonable care
to promptly identify and notify the party against whom
indemnification is sought ("Indemnifier") concerning any situation
which presents or appears likely to present the probability of a
claim for indemnification, and shall advise the Indemnifier of all
pertinent facts and developments concerning the situation in
question. The Indemnifier shall have the option to defend the
Claimant against any claim which may be the subject of this
indemnification. In the event that the Indemnifier so elects, it
will so notify the Claimant and thereupon the Indemnifier shall
take over complete defense of the claim, and the Claimant shall in
such situation initiate no further legal or other expenses for
which it shall seek indemnification under this Agreement. The
Claimant shall in no case confess any claim or make any compromise
in any case in which the Indemnifier will be asked to indemnify the
Claimant, except with the Indemnifier's prior written consent.
Article 10. Term and Termination of Agreement.
This Agreement shall be effective from the date signed above and shall
continue through September 30, 2005 ("Initial Term"). Thereafter, the
Agreement will continue for consecutive 12-month terms (a "Renewal Term")
unless one party receives written notice of termination from the other
party no less than 120 days prior to the expiration of the Initial Term or
a Renewal Term. The termination date for all original or after-added Funds
that are, or become, a party to this Agreement shall be coterminous.
In addition, each party reserves the right to immediately terminate this
Agreement upon the giving of written notice in the event of: the
dissolution or liquidation of either party or other cessation of business
other than a reorganization or recapitalization of such party as an ongoing
business; financial difficulties on the part of either party which is
evidenced by the authorization or commencement of, or involvement by way of
pleading, answer, consent, or acquiescence in, a voluntary or involuntary
case under Title 11 of the United States Code, as from time to time is in
effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of debtors or to
the modification or alteration of the rights of creditors; or a final,
unappealable judicial, regulatory or administrative ruling or order in
which either party has been found guilty of criminal behavior in the
conduct of its business.
Should the Investment Company exercise its rights to terminate, all
reasonable out-of-pocket expenses associated with the movement of records
and materials will be borne by the Investment Company or the appropriate
Fund. Additionally, BFDS reserves the right to charge for any other
reasonable expenses associated with such termination. The provisions of
Article 9 shall survive the termination of this Agreement.
Article 11. Amendment.
This Agreement may be amended or modified only by a written agreement
executed by both parties.
Article 12. Interpretive and Additional Provisions.
In connection with the operation of this Agreement, BFDS and the
Investment Company may from time to time agree on such provisions
interpretive of or in addition to the provisions of this Agreement as may
in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in a
writing signed by both parties and shall be annexed hereto, provided that
no such interpretive or additional provisions shall contravene any
applicable federal or state regulations or any provision of the Charter
Documents. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
Article 13. Governing Law.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the Commonwealth of Pennsylvania.
Article 14. Notices.
Except as otherwise specifically provided herein, Notices and other
writings delivered or mailed postage prepaid to the Investment Company at
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Secretary or
to BFDS at Boston Financial Data Services, Inc., 0 Xxxxxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Secretary, or to such other
address as the Investment Company or BFDS may hereafter specify, shall be
deemed to have been properly delivered or given hereunder to the respective
address.
Article 15. Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original.
Article 16. Merger of Agreement.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
Article 17. Successor Agent.
If the Investment Company shall appoint a successor agent, BFDS shall
upon termination of this Agreement deliver to such successor agent at the
office of BFDS all properties of the Investment Company held by BFDS
hereunder. If no such successor agent shall be appointed, BFDS shall at its
office upon receipt of Proper Instructions deliver such properties in
accordance with such instructions.
In the event that no written order designating a successor agent or
Proper Instructions shall have been delivered to BFDS on or before the date
when such termination shall become effective, then BFDS shall have the
right to deliver to a bank or trust company, which is a "bank" as defined
in the 1940 Act, of its own selection, having an aggregate capital,
surplus, and undivided profits, as shown by its last published report, of
not less than $2,000,000, all properties held by BFDS under this Agreement.
Thereafter, such bank or trust company shall be the successor of BFDS under
this Agreement.
Article 18. Force Majeure.
BFDS shall have no liability for cessation of services hereunder or any
damages resulting therefrom to the Fund as a result of work stoppage, power
or other mechanical failure, natural disaster, governmental action,
communication disruption or other impossibility of performance.
Article 19. Severability.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
Article 20. Privacy.
A. The Fund and BFDS hereby acknowledge that the Funds may disclose
shareholder nonpublic personal information ("NPI") to BFDS as agent of
the Funds and solely in furtherance of fulfilling BFDS's contractual
obligations under the Agreement in the ordinary course of business to
support the Funds and their respective shareholders.
B. BFDS hereby agrees to be bound to use and redisclose NPI only for the
limited purpose of fulfilling its duties and obligations under the
Agreement, for law enforcement and miscellaneous purposes as permitted
in 17 CFR xx.xx. 248.15, or in connection with joint marketing
arrangements that the Funds may establish with BFDS in accordance with
the limited exception set forth in 17 CFR ss. 248.13.
C. BFDS further represents and warrants that, in accordance with 17 CFR ss.
248.30, it has implemented, and will continue to carry out for the term
of the Agreement, policies and procedures reasonably designed to:
(1) insure the security and confidentiality of records and NPI of the
customers of each of the Funds,
(2) protect against any anticipated threats or hazards to the
security or integrity of each of the Fund's customer records and
NPI, and
(3) protect against unauthorized access to or use of each of the
Fund's customer records or NPI that could result in substantial harm
or inconvenience to any of the Fund's customers.
D. BFDS may redisclose Section 248.13 NPI only to: (a) the Funds and
affiliated persons of the Funds ("Fund Affiliates"); (b) affiliated
persons of BFDS ("BFDS Affiliates") (which in turn may disclose or use
the information only to the extent permitted under the original
receipt); (c) a third party not affiliated with BFDS ("Nonaffiliated
Third Party") under the service and processing (ss.248.14) or
miscellaneous (ss.248.15) exceptions, but only in the ordinary course of
business to carry out the activity covered by the exception under which
BFDS received the information in the first instance; and (d) a
Nonaffiliated Third Party under the service provider and joint
marketing exception (ss.248.13), provided BFDS enters into a written
contract with the Nonaffiliated Third Party that prohibits the
Nonaffiliated Third Party from disclosing or using the information
other than to carry out the purposes for which the Funds disclosed the
information in the first instance.
E. BFDS may redisclose Section 248.14 NPI and Section 248.15 NPI to: (a)
the Funds and Fund Affiliates; (b) BFDS Affiliates (which in turn may
disclose the information to the same extent permitted under the
original receipt); and (c) a Nonaffiliated Third Party to whom the
Funds might lawfully have disclosed NPI directly.
F. BFDS is obligated to maintain beyond the termination date of the
Agreement the confidentiality of any NPI it receives from the Fund in
connection with the Agreement or any joint marketing arrangement, and
hereby agrees that this Article 20 shall survive such termination.
Article 21. Anti-Money Laundering and Customer Identification Program
A. Each Fund represent and warrant to each other Fund that it has
established, and covenants that during the term of the Agreement it
will maintain, a written anti-money laundering and customer
identification program ("Program") in compliance with the series of
rules and regulations arising out of the USA PATRIOT Act (together with
such rules and regulations, the "Applicable Law") adopted by the
Securities and Exchange Commission and the United States Treasury
Department ("Treasury Department") "), specifically requiring certain
financial institutions including the Funds, to establish a Program.
B. The Funds hereby delegate to BFDS, the responsibility to perform or
contract for the performance of, for and on behalf of the Funds, all
required activities under the Funds' Program.
C. BFDS hereby accepts such delegation and represents and warrants that:
(a) it has implemented, and will continue to (i) monitor the operation
of, (ii) assess the effectiveness of, and (iii) modify, as appropriate
or as required by Applicable Law, procedures necessary to effectuate
the Program; (b) it will annually certify, in a manner acceptable to
the Funds under Applicable Law, that it has implemented the Program and
that it will perform or cause to be performed the customer
identification and other activities required by Applicable Law and the
Program; and (c) it will provide such other information and reports to
the Funds' designated Compliance Officer, as may from time to time be
requested, and will provide such Compliance Officer with notice of any
contact by any regulatory authority with respect to the operation of
the Program.
D. BFDS does hereby covenant that: (a) it will provide to any federal
examiners of the Funds such information and records relating to
Program as may be requested; and (b) it will allow such examiners to
inspect BFDS for purposes of examining the Program and its operation
to the full extent required by Applicable Law.
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.
MTB GROUP OF FUNDS
By: /s/ Xxxxxxx X. Xxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Operating Officer
EXHIBIT 1 to the
Agreement for Transfer Agency Services
CONTRACT
DATE MTB Group of Funds
------------------------------------------------------------------------------
July 1, 2004 MTB Balanced Fund
July 1, 2004 MTB Equity Income Fund
July 1, 2004 MTB Equity Index Fund
July 1, 2004 MTB Income Fund
July 1, 2004 MTB Intermediate-Term Bond Fund
July 1, 2004 MTB International Equity Fund
July 1, 2004 MTB Large Cap Growth Fund
July 1, 2004 MTB Large Cap Growth Fund II
July 1, 2004 MTB Large Cap Stock Fund
July 1, 2004 MTB Large Cap Value Fund
July 1, 2004 MTB Large Cap Value Fund II
July 1, 2004 MTB Managed Allocation Fund - Aggressive Growth
April 29, 2005 MTB Managed Allocation Fund - Aggressive Growth II
July 1, 2004 MTB Managed Allocation Fund - Conservative Growth
April 29, 2005 MTB Managed Allocation Fund - Conservative Growth II
July 1, 2004 MTB Managed Allocation Fund - Moderate Growth
July 1, 2004 MTB Managed Allocation Fund - Moderate Growth II
July 1, 0000 XXX Xxxxxxxx Municipal Bond Fund
July 1, 2004 MTB Mid Cap Growth Fund
July 1, 2004 MTB Mid Cap Stock Fund
July 1, 2004 MTB Money Market Fund
July 1, 2004 MTB Multi Cap Growth Fund
July 1, 2004 MTB New York Municipal Bond Fund
July 1, 0000 XXX Xxx Xxxx Tax-Free Money Market Fund
July 1, 0000 XXX Xxxxxxxxxxxx Municipal Bond Fund
July 1, 0000 XXX Xxxxxxxxxxxx Tax Free Money Market Fund
July 1, 2004 MTB Prime Money Market Fund
July 1, 2004 MTB Short Duration Government Bond Fund
July 1, 2004 MTB Short-Term Corporate Bond Fund
July 1, 2004 MTB Small Cap Growth Fund
July 1, 2004 MTB Small Cap Stock Fund
July 1, 2004 MTB Social Balanced Fund
July 1, 2004 MTB Tax Free Money Market Fund
July 1, 0000 XXX X.X. Government Bond Fund
July 1, 2004 MTB US. Government Money Market Fund
July 1, 0000 XXX X.X. Treasury Money Market Fund
Revised as of April 29, 2005
Page 3
SCHEDULE A
Fees and Expenses
Pursuant to Article 4 of the Agreement for Transfer Agency Services for
MTB Group of Funds, dated as of July 1, 2004, the transfer agency fee
schedule is set forth as follows:
Annual Base Fees* - Per Cusip Charge
? A Shares $10,000.00
? B Shares $10,000.00
? C Shares $10,000.00
? S Shares $10,000.00
? Institutional Shares $10,000.00
? Institutional I Shares $10,000.00
? Institutional II Shares $10,000.00
? Variable Annuity Shares $10,000.00
Annual Account Fees* - Per Account Charge
? Daily Dividend Fund $9.00
? Non-Daily Dividend Fund $5.00
Out-of-Pocket Expenses**
Out-of-Pocket Expenses may include, but are not limited to, the following:
? Postage (including overnight courier service)
? Statement Stock
? Envelopes
? Telephones
? Telecommunication Charges (including FAX and Dedicated Line Charges)
? Travel
? Forms
? Supplies
? Microfiche/CD Rom
? Computer Access Charges
? Customized Programming and Reporting
? Disaster Recovery
? Other as Incurred
* Fees are annualized and will be prorated on a monthly basis for billing
purposes.
** Out-of-Pocket Expenses are not covered by the above fees and will be
charged as incurred and billed separately.
WITNESS the due execution hereof as of the 1st day of July, 2004.
MTB GROUP OF FUNDS
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Operating Officer
March 8, 2005
Board of Trustees
MTB Group of Funds
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Re: Transfer Agent Agreement
Gentlemen:
Reference is hereby made to Article 10 of the Agreement for Transfer Agency
Services, dated as of July 1, 2004, between MTB Group of Funds (the "Funds")
and Boston Financial Data Services, Inc. ("BFDS"). Article 10 states that
unless written notice of termination is provided by either party at least 120
days prior to September 30, 2005, the transfer agent agreement automatically
renews for an additional one-year term. The upcoming Board Meeting on March
8-9, 2005 is the last regularly scheduled board meeting prior to the deadline
for such notice of June 2, 2005.
BFDS is desirous of continuing to provide transfer agency services to the
Funds beyond September 30, 2005. However, the terms under which BFDS is
prepared to perform such services to the Funds remain under discussion.
Accordingly, BFDS and the Funds agree that: (i) the 120-day notice
requirement applicable to the September 30, 2005 termination date of the
transfer agent agreement is waived; (ii) at any time after June 2, 2005, a
party may terminate the transfer agent agreement upon 120 days' prior written
notice to the other; and (iii) if the parties have not executed a definitive
transfer agent agreement by September 30, 2005, then the existing transfer
agent agreement will continue in effect until terminated by either party upon
120 days' prior written notice to the other.
If the foregoing is agreeable to you, please so indicate by signing in the
space provided below. This letter agreement is effective from the date set
forth above and constitutes an amendment to the transfer agent agreement.
Sincerely,
BOSTON FINANCIAL DATA SERVICES, INC.
BY: /s/ Xxxxxxx X. Xxxxxxx, Xx. _
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Division Vice President
Acknowledged and Agreed:
MTB GROUP OF FUNDS
/s/ Xxxxxx X. Xxxxxxxxx _
------------------------------------------
Xxxxxx X. Xxxxxxxxx
Chairman
cc: Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxx, Xx.
Secretary of MTB Group of Funds
