TRANSFER AGENCY AND SERVICE AGREEMENT
between
TEACHERS ADVISORS, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Terms of Appointment: Duties of the Bank............................... 1
2. Provision by the Bank of Computer Software and Hardware................ 4
3. Fees and Expenses...................................................... 7
4. Representations and Warranties of the Bank............................. 7
5. Representations and Warranties of Advisors............................. 8
6. Data Access and Proprietary Information................................ 9
7. Indemnification........................................................ 10
8. Standard of Care....................................................... 11
9. Covenants of Advisors and the Bank..................................... 11
10. Termination of Agreement............................................... 14
11. Additional Funds....................................................... 14
12. Assignment............................................................. 14
13. Amendment.............................................................. 15
14. New York Law to Apply.................................................. 15
15. Force Majeure.......................................................... 15
16. Consequential Damages.................................................. 15
17. Merger of Agreement.................................................... 15
18. Counterparts........................................................... 16
19. Notices................................................................ 16
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 16th Day of July, 1997, by and between Teachers
Advisors, Inc. ("Advisors"), having its principal office and place of business
at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on behalf of TIAA-CREF Mutual Funds
(the "Fund") and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund intends to initially offer shares in six series, the Growth
and Income Series, Money Market Series, Growth Equity Series, International
Equity Series, Bond Plus Series, Managed Allocation Series, (each such series,
together with all other series subsequently established by the Fund and made
subject to this Agreement in accordance with Article 11, being herein referred
to as a "Portfolio", and collectively as the "Portfolios");
WHEREAS, Advisors is the investment manager to the Fund;
WHEREAS, Advisors and the Fund have entered into an investment management
agreement pursuant to which Advisors will provide or arrange to provide overall
management to the Fund, including investment management, custody, transfer
agency, dividend disbursing, legal, accounting, and administrative services; and
WHEREAS, Advisors, on behalf of the Fund and the Portfolios, desires to appoint
the Bank as the Fund's transfer agent, dividend disbursing agent and agent in
connection with certain other activities, and the Bank desires to accept such
appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. TERMS OF APPOINTMENT: DUTIES OF THE BANK
1.1 Subject to the terms and conditions set forth in this Agreement, Advisors,
on behalf of the Fund and its Portfolios, hereby employs and appoints the
Bank to act as, and the Bank agrees to act as transfer agent for the
Fund's authorized and issued shares of beneficial interest ("Shares"),
dividend disbursing agent, and agent in connection with any accumulation,
open-account or similar plans provided to shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out in the
currently effective prospectus and statement of additional information
("prospectus") of the Fund on behalf of the applicable Portfolio,
including without limitation any periodic investment plan or periodic
withdrawal program.
1.2 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between
Advisors, on behalf of the Fund and each of the Portfolios, as
applicable and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation
thereof to the custodian of the Fund authorized by the
Trustees of the Fund pursuant to the Declaration of Trust of
the Fund (the "Custodian"). In connection with the acceptance
of orders for the purchase of Fund Shares, the Bank is
authorized to negotiate and process only those checks made
payable to the Bank, Boston Financial Data Services, Inc.
("BFDS"), the Fund or Advisors and those checks not made
payable to the order of the Bank, BFDS the Fund or Advisors,
which checks are tendered to the Bank for the purchase of
Fund Shares (i.e., checks made payable to prospective or
existing Shareholders, such checks are commonly known as
"third party checks") in amounts up to and no greater than
$10,000;
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account(s);
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof
to the Custodian;
(iv) At the appropriate time as and when it receives monies paid
to it by the Custodian with respect to any redemption, pay
over or cause to be paid over in the appropriate manner such
monies as instructed by the redeeming Shareholder(s);
(v) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(vii) Provide, on behalf of the Fund, timely, accurate and factual
responses to Shareholder inquiries received over the phone,
by mail, by facsimile, or by other electronic means. Also,
maintain copies of written correspondence received, and
produce, deliver, and maintain copies of correspondence
generated in response to such inquiries;
(viii) Maintain records of account for and advise the Fund and its
Shareholders as to items (i) through (vii) and;
(ix) Record the issuance of Shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number
of Shares of the Fund which are authorized, based upon data
provided to it by Advisors, on behalf of the Fund,
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and issued and outstanding. The Bank shall also provide
Advisors or 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
Advisors or the Fund.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall: (i)
perform the customary services of a transfer agent, dividend
disbursing agent, and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing and
tabulating proxies, mailing Shareholder reports and prospectuses to
current Shareholders, withholding, depositing and reporting taxes on
U.S. resident and non-resident alien accounts, preparing, filing
and issuing U.S. Treasury Department and IRS Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders and
maintaining appropriate records in compliance with all applicable
regulatory requirements, preparing and mailing confirmation forms
and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in
Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information; and
(ii) provide a system which will enable Advisors and/or its designee
to monitor the total number of Fund Shares sold in each State. Such
system shall include the generation and delivery to Advisors and/or
its designee of a daily report detailing the sale of Fund Shares for
the previous day in each of the States Fund Shares are sold.
(c) In connection with state tax reporting services to be provided by
the Bank pursuant to this Agreement, the Bank and Advisors shall
mutually agree on state tax reporting obligations on an annual or
other mutually agreeable periodic basis.
(d) In addition, Advisors and/or its designee shall: (i) identify to the
Bank 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 the Bank for the Fund's blue sky registration
status is solely limited to the initial establishment of
transactions and the reporting of such transactions as provided
above.
(e) Procedures as to who shall provide certain of these services in this
Section 1 may be established from time to time by agreement between
Advisors on behalf of the Fund and each Portfolio and the Bank per
the attached service responsibility schedule. The Bank may at times
perform only a portion of these services and Advisors or its agent
may perform these services on the Fund's behalf.
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(f) The Bank shall provide additional services on behalf of the Fund
(i.e., services pertaining to escheatments, garnishment orders,
bankruptcy and divorce proceedings, IRS or State tax authority tax
levies and summonses, and U.S. Treasury Office of Foreign Assets
Control and all matters relating to the foregoing) which may be
agreed upon in writing between Advisors and the Bank.
(g) The Bank shall provide trained telephone customer service staff who
will process Shareholder telephone transaction requests including
but not limited to those described in Section 1.2 (a) above. The
Bank and Advisors understand and agree that such staff will be
considered to be dedicated to providing services primarily to the
Fund, but may, from time to time, during periods of exceptional
business volume, be utilized to provide services to one or another
of the Bank's other clients. Such individuals will be appropriately
licensed by the National Association of Securities Dealers ("NASD")
(Series 6 and 63). Any such individuals engaged in a supervisory
capacity over such licensed telephone customer service staff
representatives shall also be appropriately licensed by the NASD to
serve in that capacity (Series 26). While such individuals will
provide services on behalf of the Fund, it is understood that these
individuals will be Registered Representatives of the Bank. Customer
Service staff will be available to accept telephone calls during the
hours of 8:00 a.m. to 11:00 p.m. Eastern Standard Time, during all
business days the New York Stock Exchange is open.
(h) The Bank shall provide trained customer transaction processing staff
who will process Shareholder transaction requests, other that
telephone requests referenced in Section 1.2 (g) above, including
but not limited to those described in Section 1.2 (a) above. The
Bank and Advisors understand and agree that such staff will be
considered to be dedicated to providing services primarily to the
Fund, but may, from time to time, during periods of exceptional
business volume, be utilized to provide services to one or another
of the Bank's other clients.
2. PROVISION BY THE BANK OF COMPUTER SOFTWARE AND HARDWARE
2.1 The Bank will provide computer software and hardware, or arrange for it to
be provided, and provide for the maintenance of such software and
hardware, for the purposes of performing its duties as described herein,
specifically including, but not limited to establishing electronic
interfaces with Advisors and the Fund as necessary to provide daily file
transfers from the Bank to Advisors and the Fund and vice-versa.
Specifically, but not by way of limitation, the Bank will make available
to Advisors on behalf of the Fund and each Portfolio the following
systems:
a. DST TA/2000 System and its peripheral applications
b. DST AWD and AWD/View Manager Systems
c. DST Investor System
d. DST CSW/ISW
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2.2 The Bank will insure that on-line environments are available each business
day between the hours of 7:00 a.m. and 8:00 p.m. Eastern Standard Time and
the Automated Telephone System (ATS) environment supporting voice response
applications, and the environment supporting World Wide Web applications
are available 24 hours a day, each day of the year with the exception of
once a week on Sunday mornings for maintenance.
2.3 The Bank will provide Advisors with full documentation of all computer
software and hardware to be utilized for the purposes of administering its
duties as described herein, including but without limitation,
applications, interfaces, database structures, hardware architecture and
communication links etc.
2.4 The Bank will notify Advisors, in writing, at least sixty (60) days in
advance of the implementation of any and all changes to software and
hardware that will materially affect the administration of its duties
and/or the interfaces established with Advisors and the Fund. Further, the
Bank will plan and execute, to the reasonable satisfaction of Advisors,
appropriate levels of unit and acceptance testing of any such changes
before implementing them into the production environment(s) utilized to
meet its responsibilities to Advisors and the Fund as described herein.
2.5 The Bank agrees to take all reasonable steps necessary to remedy
production problems with the operation of the software and hardware,
including but without limitation, those related to programming errors and
operating environment malfunctions, until such problems have been remedied
as mutually agreed to by Advisors and the Bank.
2.6 The Bank will maintain commercially reasonable security protocols for all
software and hardware utilized in meeting its administrative duties as
described herein; including but without limitation, those related to
applications, data centers, systems, networks, telecommunication links,
tape management facilities, and virus control mechanisms. The Bank, upon
its knowledge of any material violation of the established security
protocols, shall notify, by telephone, Advisors' Manager of Technical
Services, within twenty-four (24) hours following the discovery of said
violation(s). Further, the Bank will comply, within one (1) business day,
with any request from Advisors for a security lock out of any employee of
Advisors or Officer of the Fund.
2.7 The Bank will provide for back-up of the computer software and hardware,
maintain Advisors' and the Fund's data files in a manner so as to minimize
risk of damage or loss and will provide for daily back-up of those data
files. The Bank will maintain a comprehensive disaster recovery plan and
will maintain back-up processing facilities, and will provide for
transition to such back-up processing sites in the event that computer
software or hardware downtime at the Bank's offices, or those of its
subcontractors exceeds twenty-four (24) consecutive hours.
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2.8 The Bank agrees to provide Advisors with a copy of its Disaster Recovery
Plan upon request and further agrees to annually provide Advisors and the
Fund with audited copies of SAS 70 reports.
2.9 The Bank further agrees to provide connectivity for on-line access,
transmissions of data files, and all other functions as described herein
to Advisors in New York City, New York, White Plains, New York, Denver,
Colorado, Advisors' back-up site in Sterling Forest, NY and such
additional sites to be mutually agreed upon by the parties . In the event
that Advisors or the Fund must invoke their own disaster recovery plans,
the Bank agrees to work with them to make alternative site access
available for use within a forty-eight hour time period from the time of a
disaster declaration by Advisors or the Fund and to reasonably accommodate
daily processing outside of a regular business day in the event of an
emergency situation incurred by Advisors or the Fund.
2.10 As part of Advisors' implementation plan, the Bank will provide Advisors'
employees, including end-users and technical staff, with training on all
systems that are proprietary to the Bank and that will be utilized by
employees of Advisors in connection with this Agreement. Such training
will take place at the Advisors' New York offices at times agreed to by
the parties. Similarly, the Bank will provide training required as a
result of administrative, systems or operating changes initiated by the
Bank. However, training requested by Advisors for new employees, or for
changes initiated by Advisors, will be provided on a schedule and in a
location mutually agreed to in writing by the parties and the Bank's costs
related to such subsequent training shall be billed to Advisors as an
out-of-pocket expense.
2.11 The Bank will ensure that technical support services from DST Systems,
Inc. ("DST") are available to Advisors and the Fund 24 hours a day each
day of the year. BFDS technical support staff will be made available each
business day between the hours of 7:00 a.m. and 11:00 p.m. Eastern
Standard Time. The Bank will provide a list of contact staff and phone
numbers, including those of unit/shift managers at BFDS and DST, to
Advisors' Director, Technical Services.
2.12 The Bank will conduct batch processing of all Shareholder transactions
each business day. Transactions received by 4:00 p.m. Eastern Standard
Time will be applied to the current business day. The Bank will ensure
that batch processing files are available for electronic transmission to
Advisors and the Fund between the hours of 3:00 a.m. and no later than
5:00 a.m. Eastern Standard Time each day. The Bank will ensure monitoring
of batch on-line transmissions and will immediately notify Advisors'
Production Processing staff in the event that production/transmission
problems occur or when batch transmission windows are anticipated to be
exceeded.
2.13 The Bank will provide Advisors and the Fund with five (5)AWD/CSW
compatible workstations for its use. The parties shall mutually agree upon
any provision by the Bank to Advisors of any additional connectivity and
workstations requested by Advisors and any
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additional charges resulting therefrom. Each workstation will be
configured to be fully compatible with BFDS/DST applications utilized to
provide teleservicing/transaction capabilities.
2.14 Upon request, the Bank will provide Advisors with connectivity to all
appropriate computer or other systems for use by Advisors in servicing
Shareholders at locations designated by Advisors in a mutually agreeable
system configuration.
3. FEES AND EXPENSES
3.1 For the services rendered by the Bank pursuant to this Agreement, and the
other Agreements referenced in such fee schedule, Advisors agrees on
behalf of the Fund and each of the Portfolios to compensate the Bank by
paying the Bank the fees set out in the fee schedule attached hereto.
Advisors also agrees to pay the Communication Link Expense charges and
Customer Service Staff Telephonic Overflow Support charges set forth in
the fee schedule. Such fees, charges, and out-of-pocket expenses
referenced under Section 3.2 below may be changed from time to time
subject to mutual written agreement between Advisors and the Bank.
3.2 In addition to the fees and charges referenced under Section 3.1 above,
Advisors agrees on behalf of the Fund and each of the Portfolios to
reimburse the Bank for reasonable out-of-pocket expenses as reflected in
the fee schedule attached hereto.
3.3 Advisors agrees on behalf of the Fund and each of the Portfolios to pay
all fees and reimbursable expenses within thirty (30) days following the
receipt of the monthly billing notice. Upon the termination of this
Agreement before the end of any month, the fee for the part of the month
before such termination shall be prorated according to the proportion
which such part bears to the full monthly period and shall be payable
within thirty (30) days following the receipt of the billing notice.
4. REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to Advisors that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts;
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts;
4.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement;
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement;
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4.5 It has and will continue to have access to, and will take the commercially
reasonable steps necessary to ensure appropriate maintenance of, the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement; and
4.6 It will comply with all applicable regulatory requirements.
5. REPRESENTATIONS AND WARRANTIES OF ADVISORS
Advisors represents and warrants to the Bank that:
5.1 The Fund is a business trust organized and existing and in good standing
under the laws of the State of Delaware;
5.2 The Fund is empowered under applicable laws and by its Declaration of
Trust and By-Laws to receive services pursuant to this Agreement;
5.3 The Fund has performed all requisite corporate proceedings to receive
services pursuant to this Agreement;
5.4 The Fund is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended;
5.5 A registration statement under the Securities Act of 1933, as amended, on
behalf of each of the Portfolios will be effective upon or prior to the
initial offering of the Fund's Shares to the public and will remain
effective while the Fund's Shares are offered to the public, and
appropriate State securities law filings have been or will be made and
will continue to be made, with respect to all Shares of the Fund being
offered for sale;
5.6 Advisors is a corporation organized and existing and in good standing
under the laws of the State of Delaware;
5.7 Advisors is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
5.8 Advisors has taken all requisite corporate proceedings to authorize it to
enter into and perform this Agreement;
5.9 Advisors is authorized to act on behalf of the Fund in entering into and
performing this Agreement; and
5.10 Advisors is individually liable for all duties and obligations under this
Agreement on behalf of itself and the Fund, including, without limitation,
the payment of fees.
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6. DATA ACCESS AND PROPRIETARY INFORMATION
6.1 Advisors acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to Advisors by the Bank as part of Advisors ability to
access certain Fund-related data ("Customer Data") maintained by the Bank
on data bases under the control and ownership of the Bank ("Data Access
Services") constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial value
to the Bank or other third party. In no event shall Proprietary
Information be deemed Customer Data. Advisors agrees to treat all
Proprietary Information as proprietary to the Bank and further agrees that
it shall not divulge to any person or organization except as may be
provided hereunder. Without limiting the foregoing, Advisors agrees for
itself and its employees and agents:
(a) to access Customer Data solely from locations as may be designated
in writing by the Bank and agreed to by Advisors and solely in
accordance with the Bank's applicable user documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose of
such information in accordance with the Bank's instructions;
(d) to refrain from causing or allowing the data acquired hereunder from
being retransmitted to any other computer facility or other
location, except with the prior written consent of the Bank;
(e) that Advisors shall have access only to those authorized
transactions agreed upon by the parties; and
(f) to honor all reasonable written requests made by the Bank to protect
at the Bank's expense the rights of the Bank in Proprietary
Information at common law, under federal copyright law and under
other federal or State law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 6. The obligations of this Section shall
survive any earlier termination of this Agreement.
6.2 If the transactions available to Advisors on behalf of the Fund include
the ability to originate electronic instructions to the Bank in order to
(i) effect the transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information, then in such event the Bank
shall be entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such
instruction is undertaken in conformity with security procedures
established by Advisors and the Bank from time to time.
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7. INDEMNIFICATION
7.1 The Bank shall not be responsible for, and Advisors on behalf of the Fund
shall indemnify and hold the Bank harmless from any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Bank or its agents or subcontractors required to
be taken pursuant to this Agreement, provided that such actions are
taken in good faith and with reasonable care and without negligence
or willful misconduct;
(b) Advisors' lack of good faith, negligence or willful misconduct which
arise out of the breach of any representation or warranty of
Advisors hereunder;
(c) The reliance on or use by the Bank or its agents or subcontractors
of information, records, documents or services which (i) are
received by the Bank or its agents or subcontractors, and (ii) have
been prepared, maintained or performed by Advisors or any other
person or firm on behalf of Advisors;
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any written instructions or request of Advisors on
behalf of the Fund and the applicable Portfolio; and
(e) The negotiation and processing by the Bank of only those "third
party" checks referenced in Section 1.2 (a) (i) of this Agreement.
7.2 At any time the Bank may apply to an authorized officer of Advisors or the
Fund for instructions, or may consult with the Fund's in-house legal
counsel or may at its own expense consult with its own legal counsel with
respect to any matter arising in connection with the services to be
performed by the Bank under this Agreement, and the Bank and its agents or
subcontractors shall not be liable and shall be indemnified by Advisors
for any action taken or omitted by it in good faith and with reasonable
care and without negligence in reliance upon such instructions from an
authorized officer of Advisors or of the Fund or the opinion of the Fund's
in-house counsel or the Bank's legal counsel, provided however, with
respect to the performance of any action or omission of any action upon
such legal advice by the Bank's legal counsel, the Bank shall be required
to conform to the standard of care set forth herein and further provided
that the Bank shall follow the advice of the Fund's in-house legal counsel
in any and all instances where the advice of the Fund's in-house legal
counsel and the Bank's legal counsel differ. The Bank, its agents and
subcontractors shall be protected and indemnified in acting in good faith
and with reasonable care and without negligence upon any paper or document
furnished by or on behalf of Advisors or the Fund, reasonably believed to
be genuine and to have been signed by duly authorized person or persons,
or upon any instruction, information, data, records or documents provided
to the Bank or its agents or subcontractors by machine readable input,
telex, CRT data entry or other similar means authorized by Advisors or the
Fund, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from Advisors.
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7.3 In order that the indemnification provisions contained in this Section 7
shall apply, upon the assertion of a suit for which Advisors may be
required to indemnify the Bank, the Bank shall promptly notify Advisors of
such assertion, and shall keep Advisors advised with respect to all
developments concerning such suit. Advisors on behalf of the Fund, will be
entitled to participate at its own expense in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any liability
subject to the indemnification provided above. In the event Advisors
elects to assume the defense of any such suit and retain counsel, the Bank
or any of its affiliated persons, named as defendant or defendants in the
suit, may retain additional counsel but shall bear the fees and expenses
of such counsel unless Advisors shall have specifically authorized in
writing the retaining of such counsel. The Bank shall not settle any
action, suit, claim, or demand, for which indemnity may be sought
hereunder without the prior written approval of Advisors, which approval
shall not be unreasonably withheld. The indemnification provisions
contained herein shall survive the termination of this Agreement.
8. STANDARD OF CARE
8.1 The Bank shall at all times act in good faith and with reasonable care and
agrees to use its best efforts to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of its
employees, agents, or subcontractors.
8.2 In addition to the liability of the Bank under this Section 8, the Bank
shall also be liable to Advisors for all reasonable out-of-pocket costs
and expenses incurred by Advisors in connection with any claim by Advisors
against the Bank, its agents or subcontractors arising from the
obligations of the Bank hereunder, including, without limitation, all
reasonable attorneys' fees and expenses incurred by Advisors in asserting
any such claim, and out-of-pocket expenses incurred by Advisors in
connection with any lawsuits or proceedings relating to such claim,
provided that Advisors has recovered from the Bank for such claim.
9. COVENANTS OF ADVISORS AND THE BANK
9.1 Advisors shall on behalf of the Fund and each of the Portfolios promptly
furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund approving this Agreement;
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto; and
(c) A copy of the resolution of the Board of Advisors authorizing
entering into this Agreement.
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9.2 The Bank hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to Advisors and the Fund for safekeeping of check
forms and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such forms and devices.
9.3 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable provided that
it is in compliance with all applicable regulatory requirements and it is
consistent with prevailing industry standards for transfer agents. To the
extent required by Section 31 of the Investment Company Act of 1940, as
amended, and the rules thereunder, the Bank agrees that all such records
prepared or maintained by the Bank relating to the services to be
performed by the Bank hereunder are the property of the Fund and will be
preserved, maintained and make available in accordance with such Section
and Rules, and will be surrendered promptly to Advisors and the Fund in
accordance with their request. Advisors on behalf of the Fund may, at any
time and from time to time, reasonably request copies of such records and
the Bank will provide same.
9.4 The Bank and Advisors agree that all books, records, information and data
pertaining to the business of the other party or the Fund which are
exchanged or received pursuant to the negotiation or the carrying out of
this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
9.5 The Bank shall maintain reasonable safeguards for maintaining any
Shareholder records which are furnished by or on behalf of the Fund to the
Bank in the form of computer tapes, data transmissions or any other
medium. The Bank shall not, at any time, use such records or any
information contained therein for any purpose other than as specifically
authorized by this Agreement, or in writing by Advisors or the Fund. No
such record or any part thereof shall be disclosed or provided to any
other person, except as specifically authorized by this Agreement, or upon
the prior written consent of an authorized officer of Advisors or the Fund
or as otherwise required by law.
9.6 The Bank shall maintain reasonable safeguards for maintaining in
confidence any and all documentation and information obtained in
connection with this Agreement furnished to it by or on behalf of the Fund
or by any Shareholder or related to the Fund or any Shareholder, and all
records created from that documentation and information (collectively, the
"Mutual Fund Information"). The Bank shall not make use of or disclose the
Mutual Fund Information nor authorize its use or disclose the same to any
person or entity, other than Advisors and the Fund, except as specifically
authorized by this Agreement, or upon the prior written consent of an
authorized officer of Advisors or the Fund or as otherwise required by
law. Copies of such documentation and information shall remain the
property of the Fund and upon termination of the Agreement or otherwise
requested by Advisors such documentation and information furnished to the
Bank by Advisors, the Fund, or a Shareholder shall be promptly returned to
Advisors, or the Bank will certify to Advisors that all such information
has been destroyed.
12
9.7 The Bank shall promptly notify an authorized officer of Advisors in
writing of any and all legal actions received by or served on the Bank and
shall use its best efforts to promptly notify Advisors of all contacts
and/or correspondence received by the Bank from any regulatory department
or agency or other governmental authority purporting to regulate Advisors
or the Fund and not the Bank, regarding the Bank's duties and activities
performed
in connection with this Agreement, and will cooperate with Advisors or the
Fund in responding to these contacts and any necessary correspondence.
9.8 The Bank shall permit Advisors or the Fund, during the term of this
Agreement, through any person(s) designated by Advisors or the Fund, at
such reasonable times during normal business hours and as often as
Advisors or the Fund may reasonably deem appropriate but not so often as
to place unreasonable burden on the Bank, within ten (10) business day's
prior written notice to an Authorized Officer of the Bank, to conduct an
inspection. As a matter of clarification, Advisors on behalf of the Fund
acknowledges and agrees that no such inspection shall include any visits,
inspections, examinations, audits, or verification of any of the
properties, documents, books, reports, work papers and other records
belonging to, or in the possession of the Bank, involving any service,
product or work the Bank does or possess other than those relating
directly to this Agreement and the service performed by the Bank in
connection therewith.
9.9 The Bank will cause BFDS, the record-keeping transfer agent hereunder, to
provide Advisors with copies of audit reports filed with governmental
authorities.
9.10 The Bank will provide Advisors with copies of all policies and procedure
manuals utilized by any and all of the Bank's operating units performing
duties related to the Bank's responsibilities to Advisors on behalf of the
Fund as described herein.
9.11 In case of any requests or demands for the inspection of the Shareholder
records of the Fund, that arise from persons other than authorized
officers of Advisors or the Fund, the Bank will immediately notify
Advisors and secure instructions from an authorized officer of Advisors as
to such inspection.
9.12 With respect to the Bank's performance of the services as outlined herein,
the Bank agrees to work in concert with Advisors to establish and document
performance measurement standards for such services. The Bank and Advisors
shall mutually agree as to the frequency, type, and format of reports
which document the Bank's performance relative to those standards. These
standards may be modified from time to time subject to mutual written
agreement between Advisors and the Bank.
9.13 Notwithstanding the restrictions on confidentiality in Section 9 herein,
when required by law the Bank will disclose Shareholder records (e.g.,
subpoena for divorce) and Fund records (e.g., SEC inspection powers).
Advisors and the Bank will agree on procedures regarding such mandatory
disclosure and the Bank will make every reasonable effort to notify
Advisors of requests for such information by the SEC or any other federal
or State securities regulatory agencies prior to the release of such
records.
13
10. TERMINATION OF AGREEMENT
10.1 This Agreement shall become effective as of the date first written above.
The Agreement shall remain in effect for a period of 5 years from the
effective date provided, however, that either party may terminate this
Agreement without prejudice to any other remedy it may have, upon the
material breach of this Agreement provided, however, that the
non-breaching party shall have given the breaching party written notice of
such breach and that the breaching party cannot or shall not have cured to
the reasonable satisfaction of the non-breaching party any such breach
within 30 days of such notice. Termination shall become effective 120 days
after the end of the 30 day cure period. A material breach of this
Agreement will include, without limitation, the failure by the Bank to
conform to the performance measurements standards, which standards shall
be mutually agreed to in writing by the Bank and Advisors within 45 days
of the date of this Agreement and when mutually agreed to made a part of
this Agreement by schedule. The parties agree that the failure to agree
upon such standards within such 45 day period will enable either party to
terminate this Agreement upon written notice to the other party, subject
to the notice periods that are described herein that would otherwise apply
to a termination of this Agreement. The parties further understand and
agree that the party causing a "recurring problem" as such term is defined
in the standards shall not be entitled to the aforementioned right to cure
within 30 days. This Agreement shall automatically continue in effect
after such five year period unless terminated by Advisors on ninety (90)
days' prior written notice to the Bank, or by the Bank on one hundred
eighty (180) days' prior written notice to Advisors, with such termination
to be effective at the time specified in the written notice.
10.2 Should Advisors exercise its right to terminate, all reasonable
out-of-pocket expenses associated with the movement of records and
material will be borne by the Advisors on behalf of the applicable
Portfolio(s).
10.3 If this Agreement is terminated, both parties will act in good faith to
cooperate in an orderly transition.
11 ADDITIONAL FUNDS
11.1 In the event that the Fund establishes one or more series of Shares in
addition to those described in the preamble of this Agreement with respect
to which Advisors desires to have the Bank render services as transfer
agent for such series of Fund Shares under the terms hereof, Advisors
shall so notify the Bank in writing, and such series of Shares shall
become a Portfolio hereunder.
12 ASSIGNMENT
12.1 Except as provided in Section 12.3 below, neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
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12.2 The Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted assigns.
12.3 The Bank may, without further consent on the part of Advisors, subcontract
for the performance hereof with (i) BFDS, a Massachusetts corporation
which is duly registered as a transfer agent pursuant to Section 17A(c)(2)
of the Securities Exchange Act of 1934, as amended ("Section 17A(c)(2)"),
(ii) a BFDS subsidiary duly registered as a transfer agent pursuant to
Section 17A(c)(2) or (iii) a BFDS affiliate duly registered as a transfer
agent under 17A(c)(2); provided, however, that the Bank shall be as fully
responsible to Advisors for the acts and omissions of any subcontractor or
agent as it is for its own acts and omissions.
13. AMENDMENT
This Agreement may be amended or modified by a written agreement executed
by both parties.
14. NEW YORK LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of New York
15. FORCE MAJEURE
The Bank shall not be liable for any damages to Advisors or the Fund
resulting from the Bank's failure to perform under this Agreement or for
the loss of all or part of any records or proprietary information of
Advisors or of the Fund maintained or preserved by it pursuant to this
Agreement or for any delays or errors occurring because of acts of God,
equipment or transmission failure, or damage reasonably beyond its control
except to the extent that the Bank shall have failed to undertake
commercially reasonable efforts to minimize the likelihood of occurrence
of such circumstances or to mitigate any loss or damage caused to Advisors
or the Fund by such circumstances.
16. CONSEQUENTIAL DAMAGES
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
17. MERGER OF AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
15
18. COUNTERPARTS
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
19. NOTICES
Any notice or other instrument in writing authorized or required by this
Agreement to be given to Advisors or the Fund shall be sufficiently given
if addressed to Advisors and mailed by registered or certified mail or
delivered to it or delivery refused therefore, at its offices at:
Teachers Advisors, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Mutual Fund Product Manager
cc: Xxxx Xxxx, Esq.
Law Dept., 9th Floor
TIAA-CREF
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
or at such other place as Advisors may from time to time designate in
writing.
Any notice or other instrument in writing authorized or required by this
Agreement to be given to the Bank shall be sufficiently given if addressed
to the Bank and mailed by registered or certified mail or delivered to it
or delivery refused therefor, at its offices at:
President
Boston Data Financial Services, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
or at such other place as the Bank may from time to time designate in
writing.
16
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.
TEACHERS ADVISORS, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Executive Vice President
ATTEST:
/s/ Xxxxx X. Xxxxxx
------------------------------
STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Executive Vice President
ATTEST:
/s/ X. Xxxxx
-----------------------------
00
XXXXX XXXXXX BANK & TRUST COMPANY FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
----------------- --------------
Bank Advisors
---- --------
1. Receive orders for the purchase
of Shares. X
2. Issue Shares and hold Shares in
Shareholder accounts. X
3. Receive redemption requests. X
4. Pay over monies to redeeming
Shareholders. X
5. Effect transfers of Shares. X
6. Prepare and transmit dividends
and distributions. X
7. Maintain records of account. X
8. Maintain and keep a current and
account control book for the Fund and
each series thereof. X
9. Mail and tabulate proxies. X
10. Mail Shareholder reports. X
11. Mail prospectuses to current
Shareholders. X
12. Withhold, deposit and report taxes
on U.S. resident and non-resident
alien accounts. X
13. Prepare and file and issue U.S. Treasury
Department, IRS and other forms. X
18
14. Prepare and mail account and
confirmation statement for
Shareholders. X
15. Provide Shareholder account
information. X
16. Blue sky reporting. X
17. Reporting of abandoned property and other
Services pursuant to Section 1.2 (f) X
18. Provide trained telephone customer service
staff pursuant to Section 1.2 (g) to respond
to Shareholder inquiries and process
Shareholder transaction requests and
customer transaction processing staff
pursuant to Section 1.2 (h) to process
Shareholder transaction requests. X
* Such services are more full described in Section 1.2 (a), (b), (c),
(e), (f), (g), and (h) of the Agreement.
TEACHERS ADVISORS, INC.
BY: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Executive Vice President
ATTEST:
/s/ Xxxxx X. Xxxxxx
-----------------------------------
STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxxx X. Xxxxx
-------------------------------
Executive Vice President
ATTEST:
/s/ X. Xxxxx
------------------------------------
19
