TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT
made as of the ______ day of ________,_____, by and between each Trust
(hereinafter the “Trust”) listed on Appendix I hereto and each Series of the
Trust listed on Appendix I hereto (as such Appendix be amended from time to
time), and THE BANK OF NEW YORK MELLON, a New York banking company having its
principal office and place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the “Bank”).
WHEREAS,
the Trust is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS,
the Trust will ordinarily issue for purchase and redeem shares of the Trust (the
“Shares) only in aggregations of Shares known as “Creation Units” (currently
50,000 shares) (each a “Creation Unit”) principally in kind;
WHEREAS,
The Depository Trust Company, a limited purpose trust company organized under
the laws of the State of New York (“DTC”), or its nominee (Cede & Co.), will
be the registered owner (the “Shareholder”) of all Shares;
and
WHEREAS,
the Trust desires to appoint the Bank as its 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, the Trust hereby
employs and appoints the Bank to act as, and the Bank agrees to act as, its
transfer agent for the authorized and issued Shares, and as the Trust’s dividend
disbursing agent.
1.2 The
Bank agrees that it will perform the following services:
(a) In
accordance with the terms and conditions of the form of Participant Agreement
prepared by the Distributor, a copy of which is attached hereto as Exhibit A,
the Bank shall:
(i)
Perform and facilitate the performance of purchases and redemption of Creation
Units;
(ii) Prepare
and transmit by means of DTC’s book-entry system payments for dividends and
distributions on or with respect to the Shares declared by the Trust on behalf
of the applicable Trust;
(iii) Maintain
the record of the name and address of the Shareholder and the number of Shares
issued by the Trust and held by the Shareholder;
(iv) Record
the issuance of Shares of the Trust and maintain a record of the total number of
Shares of the Trust which are outstanding, and, based upon data provided to it
by the Trust, the total number of authorized Shares. The Bank 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 Trust.
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(v) Prepare
and transmit to the Trust and the Trust’s administrator and to any applicable
securities exchange (as specified to the Bank by the Trust or its administrator)
information with respect to purchases and redemptions of Shares;
(vi) On
days that the Trust may accept orders for purchases or redemptions, calculate
and transmit to Bank and the Trust’s administrator the number of outstanding
Shares;
(vii) On
days that the Trust may accept orders for purchases or redemptions (pursuant to
the Participant Agreement), transmit to the Bank, the Trust and DTC the amount
of Shares purchased on such day;
(viii) Confirm
to DTC the number of Shares issued to the Shareholder, as DTC may reasonably
request;
(ix) Prepare
and deliver other reports, information and documents to DTC as DTC may
reasonably request;
(x)
Extend the voting rights to the Shareholder for extension by DTC to DTC
participants and the beneficial owners of Shares in accordance with policies and
procedures of DTC for book-entry only securities;
(xi) Maintain
those books and records of the Trust specified by the Trust in Schedule A
attached hereto;
(xii) Prepare
a monthly report of all purchases and redemptions of Shares during such month on
a gross transaction basis, and identify on a daily basis the net number of
Shares either redeemed or purchased on such Business Day and with respect
to each Authorized Participant purchasing or redeeming Shares, the amount of
Shares purchased or redeemed;
(xiii) Receive
from the Distributor (as defined in the Participant Agreement) or from its agent
purchase orders from Authorized Participants (as defined in the Participant
Agreement) for Creation Unit Aggregations of Shares received in good form and
accepted by or on behalf of the Trust by the Distributor, transmit appropriate
trade instructions to the National Securities Clearance Corporation, if
applicable, and pursuant to such orders issue the appropriate number of Shares
of the Trust and hold such Shares in the account of the Shareholder for each of
the respective Trusts;
(xiv) Receive
from the Authorized Participants redemption requests, deliver the appropriate
documentation thereof to The Bank of New York as custodian for the Trust,
generate and transmit or cause to be generated and transmitted confirmation of
receipt of such redemption requests to the Authorized Participants submitting
the same; transmit appropriate trade instructions to the National Securities
Clearance Corporation, if applicable, and redeem the appropriate number of
Creation Unit Aggregations of Shares held in the account of the Shareholder;
and
(xv)
Confirm the name, U.S taxpayer identification number and principle place of
business of each Authorized Participant.
(b) In
addition to the services set forth in the above sub-section 1.2(a), the Bank
shall: perform the customary services of a transfer agent and dividend
disbursing agent including, but not limited to, maintaining the account of the
Shareholder, obtaining at the request of the Trust from the Shareholder a list
of DTC participants holding interests in the Global Certificate, and those
services set forth on Schedule A attached hereto.
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(c) The
following shall be delivered to DTC participants as identified by DTC as the
Shareholder for book-entry only securities:
(i) Annual
and semi-annual reports of the Trust;
(ii) Trust
proxies, proxy statements and other proxy soliciting materials;
(iii) Trust
prospectus and amendments and supplements thereto, including stickers;
and
(iv) Other
communications as the Trust may from time to time identify as required by law or
as the Trust may reasonably request
(v) The
Bank shall provide additional services, if any, as may be agreed upon in writing
by the Trust and the Bank.
(d) The
Bank shall keep records relating to the services to be performed hereunder, in
the form and manner required by applicable laws, rules, and regulations under
the 1940 Act and to the extent required by Section 31 of the 1940 Act and the
rules thereunder (the “Rules”), all such books and records shall be the property
of the Trust, will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered promptly to the Trust on
and in accordance with its request.
2. Fees and
Expenses
2.1 The
Bank shall receive from the Trust such compensation for the Transfer Agent’s
services provided pursuant to this Agreement as may be agreed to from time to
time in a written fee schedule approved by the parties. The fees are
accrued daily and billed monthly and shall be due and payable upon receipt of
the invoice. 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 upon the date of termination of this Agreement.
2.2 In
addition to the fee paid under Section 2.1 above, the Trust agrees to reimburse
the Bank for reasonable out-of-pocket expenses, including but not limited to
confirmation production, postage, forms, telephone, microfilm, microfiche,
tabulating proxies, records storage, or advances incurred by the Bank for the
items set out in the fee schedule attached hereto or relating to dividend
distributions and reports (whereas all expenses related to creations and
redemptions of Trust securities shall be borne by the relevant authorized
participant in such creations and redemptions). In addition, any other expenses
incurred by the Bank at the request or with the consent of the Trust, will be
reimbursed by the Trust.
2.3 The
Trust agrees to pay all fees and reimbursable expenses within ten business days
following the receipt of the respective billing notice accompanied by supporting
documentation, as appropriate. Postage for mailing of dividends, proxies, Trust
reports and other mailings to all shareholder accounts shall be advanced to the
Bank by the Trust at least seven (7) days prior to the mailing date of such
materials.
3. Representations and
Warranties of the Bank
The Bank
represents and warrants to the Trust that:
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It is a
banking company duly organized and existing and in good standing under the laws
of the State of New York.
It is
duly qualified to carry on its business in the State of New York.
It is
empowered under applicable laws and by its Charter and By-Laws to act as
transfer agent and dividend disbursing agent and to enter into, and perform its
obligations under, this Agreement.
All
requisite corporate proceedings have been taken to authorize it to enter into
and perform this Agreement.
It has
and will continue to have access to the necessary facilities, equipment and
personnel to perform its duties and obligations under this
Agreement.
4. Representations and
Warranties of the Trust
The Trust
represents and warrants to the Bank that:
It is
duly organized and existing and in good standing under the laws of
Delaware.
It is
empowered under applicable laws and by its Declaration of Trust and By-Laws to
enter into and perform this Agreement.
It is an
open-end management investment company registered under the 1940
Act.
A
registration statement under the Securities Act of 1933, as amended, on behalf
of each of the Trusts has become effective, will remain effective, and
appropriate state securities law filings have been made and will continue to be
made, with respect to all Shares of the Trust being offered for
sale.
5. Indemnification
5.1 The
Bank shall not be responsible for, and the Trust shall indemnify and hold the
Bank harmless from and against, any and all losses, damages, costs, charges,
counsel fees, including, without limitation, those incurred by the Bank in a
successful defense of any claims by the Trust, payments, expenses and liability
(“Losses”) which may sustain or incur or which may be asserted against the Bank
in connection with or relating to this Agreement or the Bank’s actions or
omissions with respect to this Agreement, except for any Losses for which the
Bank has accepted liability pursuant to Article 6 of this
Agreement.
5.2 This
indemnification provision shall apply to actions taken pursuant to this
Agreement or the Participant Agreement.
5.3 If in any
case the Trust is asked to indemnify or hold the Bank harmless, the Bank shall
promptly advise the Trust of the pertinent facts concerning the situation in
question, and will use reasonable care to notify the Trust promptly concerning
any situation which appears likely to present the potential for a claim for
indemnification. If it is finally determined by a court of competent
jurisdiction that the Bank was not entitled to indemnification (e.g. due to its
gross negligence or willful misconduct) it must repay advances or other expenses
paid by the Trust. The Trust shall be entitled to participate at its
own expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this indemnification provision. If the
Trust elects to assume the defense of any such claim, the defense shall be
conducted by counsel chosen by the Trust and approved by the Bank, whose
approval shall not be unreasonably withheld. If the Trust elects to
assume the defense of any claim and retains counsel, the Bank shall bear the
fees and expenses of any additional counsel retained by it. If the
Trust does not elect to assume the defense of a claim, it will reimburse the
Bank for the fees and expense of any counsel it retains. None of the
parties hereto shall settle or compromise any action, suit, proceeding or claim
if such settlement or compromise provides for admission of liability on the part
of the indemnified party without such indemnified party’s written
consent.
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6. Standard of Care and
Limitation of Liability
The Bank
shall have no responsibility and shall not be liable for any Losses, except that
the Bank shall be liable to the Trust for direct money damages caused by its own
negligence or willful misconduct or that of its employees, or its breach of any
of its representations. In no event shall the Bank be liable for
special, indirect or consequential damages, regardless of the form of action and
even if the same were foreseeable. For purposes of this Agreement,
none of the following shall be or be deemed negligence or willful
misconduct:
(a) The
conclusive reliance on or use by the Bank or its agents or subcontractors, in
good faith, 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 the Trust or any other person or firm on
behalf of the Trust including but not limited to any previous transfer agent
or registrar.
(b) The
conclusive reliance on, or the carrying out by the Bank or its agents or
subcontractors of, in good faith, any instructions or requests of the Trust or
instructions or requests on behalf of the Trust.
(c) The
offer or sale of Shares by or for the Trust 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 any
violation of any stop order or other determination or ruling by any federal
agency, or by any state with respect to the offer or sale of Shares
in such state.
7. Concerning the
Bank
7.1
(a) The
Bank may employ agents or attorneys-in-fact which are not affiliates of the Bank
with the prior written consent of the Trust (which consent shall not be
unreasonably withheld), and shall not be liable for any loss or expense arising
out of, or in connection with, the actions or omissions to act of such agents or
attorneys-in-fact, provided that the Bank acts in good faith and with reasonable
care in the selection and retention of such agents or
attorneys-in-fact.
(b) The
Bank may, without the prior consent of the Trust, enter into subcontracts,
agreements and understandings with any Bank affiliate, whenever and on such
terms and conditions as it deems necessary or appropriate to perform its
services hereunder. No such subcontract, agreement or understanding
shall discharge Bank from its obligations hereunder.
7.2 The
Bank shall be entitled to conclusively rely upon any written or oral instruction
actually received by the Bank and reasonably believed by the Bank to be duly
authorized and delivered. The Trust agrees to forward to the Bank
written instructions confirming oral instructions by the close of business of
the same day that such oral instructions are given to the Bank. The Trust agrees
that the fact that such confirming written instructions are not received or that
contrary written instructions are received by the Bank shall in no way affect
the validity or enforceability of transactions authorized by such oral
instructions and effected by the Bank. If the Trust elects to
transmit written instructions through an on-line communication system offered by
the Bank, Trust’s use thereof shall be subject to the terms and conditions
attached hereto as Appendix A.
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7.3
The Bank shall establish and maintain a disaster recovery plan and back-up
system satisfying the requirements of its regulators (the “Disaster Recovery
Plan and Back-Up System”). The Bank shall not be responsible or
liable for any failure or delay in the performance of its obligations under this
Agreement arising out of or caused, directly or indirectly, by circumstances
beyond its control which are not a result of its negligence, including without
limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; epidemics; riots; interruption, loss or malfunctions of
transportation, computer (hardware or software) or communication services; labor
disputes; acts of civil or military authority; governmental actions; or
inability to obtain labor, material, equipment or transportation, provided that
the Bank has established and is maintaining the Disaster Recovery Plan and
Back-Up System, or if not, that such delay or failure would have occurred even
if the Bank had established and was maintaining the Disaster Recovery Plan and
Back-Up System. Upon the occurrence of any such delay or failure the
Bank shall use commercially reasonable best efforts to resume performance as
soon as practicable under the circumstances.
7.4 The
Bank shall have no duties or responsibilities whatsoever except such duties and
responsibilities as are specifically set forth in this Agreement and the
Participation Agreement, and no covenant or obligation shall be implied against
the Bank in connection with this Agreement, except as set forth in this
Agreement and the Participation Agreement.
7.5 At
any time the Bank may apply to an officer of the Trust for written instructions
with respect to any matter arising in connection with the Bank’s duties and
obligations under this Agreement, and the Bank, its agents, and subcontractors
shall not be liable for any action taken or omitted to be taken in good faith in
accordance with such instructions. Such application by the Bank for
instructions from an officer of the Trust may, at the option of the Bank, set
forth in writing any action proposed to be taken or omitted to be taken by the
Bank with respect to its duties or obligations under this Agreement and the date
on and/or after which such action shall be taken, and the Bank shall not be
liable for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting to take any such action, the Bank has received
written or oral instructions in response to such application specifying the
action to be taken or omitted.
7.6 The
Bank, its agents and subcontractors may act upon any paper or document,
reasonably believed to be genuine and to have been signed by the proper person
or persons, or upon any instruction, information, data, records or documents
provided to the Bank or its agents or subcontractors by or on behalf of the
Trust by machine readable input, telex, CRT data entry or other similar means
authorized by the Trust, and shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the
Trust.
7.7 Notwithstanding
any provisions of this Agreement to the contrary, the Bank shall be under no
duty or obligation to inquire into, and shall not be liable for:
(a) The
legality of the issue, sale or transfer of any Shares, the sufficiency of the
amount to be received in connection therewith, or the authority of the Trust to
request such issuance, sale or transfer;
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(b) The
legality of the purchase of any Shares, the sufficiency of the amount to be paid
in connection therewith, or the authority of the Trust to request such
purchase;
(c) The
legality of the declaration of any dividend by the Trust, or the legality of the
issue of any Shares in payment of any stock dividend; or
(d) The
legality of any recapitalization or readjustment of the Shares.
8. Providing of Documents by
the Trust and Transfers of Shares
8.1 The
Trust shall promptly furnish to the Bank with a copy of its Declaration of Trust
and all amendments thereto.
8.2 In
the event that DTC ceases to be the Shareholder, the Bank shall re-register the
Shares in the name of the successor to DTC as Shareholder upon receipt by the
Bank of such documentation and assurances as it may reasonably
require.
8.3 The
Bank shall have no responsibility whatsoever with respect to of any beneficial
interest in any of the Shares owned by the Shareholder.
8.4 The
Trust shall deliver to the Bank the following documents on or before the
effective date of any increase, decrease or other change in the total number of
Shares authorized to be issued:
(a) A
certified copy of the amendment to the Trust’s Declaration of Trust with respect
to such increase, decrease or change; and
(b) An
opinion of counsel for the Trust, in a form satisfactory to the Bank, with
respect to (i) the validity of the Shares, the obtaining of all necessary
governmental consents, whether such Shares are fully paid and non-assessable and
the status of such Shares under the Securities Act of 1933, as amended, and any
other applicable federal law or regulations (i.e., if subject to
registration, that they have been registered and that the Registration Statement
has become effective or, if exempt, the specific grounds therefore), (ii) the
status of the Trust with regard to the 1940 Act, and (iii) the due and proper
listing of the Shares on all applicable securities exchanges.
8.5 Prior
to the issuance of any additional Shares pursuant to stock dividends, stock
splits or otherwise, and prior to any reduction in the number of Shares
outstanding, the Trust shall deliver to the Bank:
(a) A
certified copy of the order or consent of each governmental or regulatory
authority required by law as a prerequisite to the issuance or reduction of such
Shares, as the case may be, and an opinion of counsel for the Trust that no
other order or consent is required; and
(b) An
opinion of counsel for the Trust, in a form satisfactory to the Bank, with
respect to (i) the validity of the Shares, the obtaining of all necessary
governmental consents, whether such Shares are fully paid and non-assessable and
the status of such Shares under the Securities Act of 1933, as amended, and any
other applicable federal law or regulations (i.e., if subject to
registration, that they have been registered and that the Registration Statement
has become effective or, if exempt, the specific grounds therefore), (ii) the
status of the Trust with regard to the 1940 Act, and (iii) the due and proper
listing of the Shares on all applicable securities exchanges.
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8.6 The
Bank and the Trust agree that all books, records, confidential, non-public, or
proprietary information and data pertaining to the business of the other party
which are exchanged or received pursuant to the negotiation or the carrying out
of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any person other than its auditors, accountants, regulators,
employees or counsel, except as may be, or may become required by law, by
administrative or judicial order or by rule.
8.7 In
case of any requests or demands for the inspection of the Shareholder records of
the Trust, the Bank will promptly employ reasonable commercial efforts to notify
the Trust and secure instructions from an authorized officer of the Trust as to
such inspection. The Bank 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 exhibit the Shareholder records to
such person.
9. Termination of
Agreement
9.1 The
term of this Agreement shall be one year commencing upon the date hereof (the
"Initial Term") and shall automatically renew for additional one-year terms
(each a “Subsequent Term”)unless either party provides written notice of
termination at least ninety (90) days prior to the end of any one year term or,
unless earlier terminated as provided below:
(a) Either
party hereto may terminate this Agreement prior to the expiration of the Initial
Term in the event the other party breaches any material provision of this
Agreement, including, without limitation in the case of the Trust, its
obligations under Section 2.1, provided that the non-breaching party gives
written notice of such breach to the breaching party and the breaching party
does not cure such violation within 90 days of receipt of such
notice.
(b) The
Trust may terminate this Agreement at any time upon ninety (90) days' prior
written notice.
9.2 Should
the Trust exercise its right to terminate, all out-of-pocket expenses associated
with the movement of records and material will be borne by the
Trust.
9.3 The
terms of Article 2 (with respect to fees and expenses incurred prior to
termination), and of Article 5 shall survive any termination of
this Agreement.
10. Additional
Series
In the
event that the Trust establishes one or more additional series of Shares with
respect to which it desires to have the Bank render services as transfer agent
under the terms hereof, it shall so notify the Bank in writing, and if the Bank
agrees in writing to provide such services, such additional issuance shall
become Shares hereunder.
11. Assignment
11.1 Neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
11.2 This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns.
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12. Severability and
Beneficiaries
12.1 In
case any provision in or obligation under this Agreement shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, the legality and
enforceability of the remaining provisions shall not in any way be affected
thereby provided obligation of the Trust to pay is conditioned upon provision of
services.
13.2 This
Agreement is solely for the benefit of the Bank and the Trust, and none of any
Participant (as defined in the Participation Agreement), the Distributor, any
Shareholder or beneficial owner of any Shares shall be or be deemed a third
party beneficiary of this Agreement.
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 in accordance with the substantive laws of the
State of New York, without regard to conflicts of laws principles
thereof. The Trust and the Bank hereby consent to the jurisdiction of
a state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. The Trust hereby irrevocably waives,
to the fullest extent permitted by applicable law, any objection which it may
now or hereafter have to the laying of venue of any such proceeding brought in
such a court and any claim that such proceeding brought in such a court has been
brought in an inconvenient forum. The Trust and the Bank each hereby
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement.
15. 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 writ
16. Notices
All
notices, requests, consents and other communications pursuant to this Agreement
in writing shall be sent as follows:
if to the
Trust, at
X.X. Xxx
00000
Xxxx,
Xxxxxx 00000
if to the
Bank, at
[insert
address]
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or at
such other places as may from time to time be designated in
writing. Notices hereunder shall be effective upon
receipt.
17. Counterparts
This
Agreement may be executed by the parties hereto in any number of counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
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.
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EACH
TRUST LISTED ON APPENDIX I
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By:
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_______________________________________
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Name:
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Title:
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THE
BANK OF NEW YORK MELLON
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By:
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_______________________________________
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Name:
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Title:
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APPENDIX
I
SCHEDULE
A
BOOKS AND RECORDS TO BE
MAINTAINED BY THE BANK
Source
Documents requesting Creations and Redemptions
Correspondence/AP
Inquiries
Reconciliations,
bank statements, copies of canceled checks, cash proofs
Daily/Monthly
reconciliation of outstanding Shares between the Trust and DTC
Dividend
Records
Year-end
Statements and Tax Forms
11
Exhibit
A
Form of
Authorized Participant Agreement
Alumnus
12
