TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 15th day of November, 1996
between the KOBREN INSIGHT FUNDS (the "Fund"), a Massachusetts
business trust having its principal place of business at Xxx
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000-0000 and FIRST DATA
INVESTOR SERVICES GROUP, INC. ("FDISG"), a Massachusetts
corporation with principal offices at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
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 initially intends to offer Shares in those
Portfolios identified in the attached Exhibit 1, each such
Portfolio, together with all other Portfolios subsequently
established by the Fund shall be subject to this Agreement in
accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint
FDISG as its transfer agent, dividend disbursing agent and agent
in connection with certain other activities and FDISG desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and
promises hereinafter set forth, the Fund and FDISG agree as
follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the
following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar
organizational document as the case may be, of the Fund as the
same may be amended from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not
such person is an officer or employee of the Fund, duly authorized
to give Oral Instructions or Written Instructions on behalf of the
Fund as indicated in writing to FDISG from time to time.
(c) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time
deposit, or cause to be deposited or held under the name or
account of such a custodian pursuant to a Custodian Agreement.
(f) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as
amended from time to time.
(g) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by FDISG from a person
reasonably believed by FDISG to be an Authorized Person;
(i) "Portfolio" shall mean each separate series of shares
offered by the Fund representing interests in a separate portfolio
of securities and other assets;
(j) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information, including any
supplements thereto, if any, which has become effective under the
Securities Act of 1933 and the 1940 Act.
(k) "Shares" refers collectively to such shares of capital stock
or beneficial interest, as the case may be, or class thereof, of
each respective Portfolio of the Fund as may be issued from time
to time.
(l) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(m) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by FDISG to be an
Authorized Person and actually received by FDISG. Written
Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of FDISG.
The Fund, on behalf of the Portfolios, hereby appoints and
constitutes FDISG as transfer agent and dividend disbursing agent
for Shares of each respective Portfolio of the Fund and as
shareholder servicing agent for the Fund and FDISG hereby accepts
such appointments and agrees to perform the duties hereinafter set
forth.
Article 3 Duties of FDISG.
3.1 FDISG shall be responsible for:
(a) Administering and/or performing the customary services of a
transfer agent; acting as service agent in connection with
dividend and distribution functions; and performing shareholder
account and administrative agent functions in connection with the
issuance, transfer and redemption or repurchase (including
coordination with the Custodian) of Shares of each Portfolio, as
more fully described in the written schedule of Duties of FDISG
annexed hereto as Schedule A and incorporated herein, and in
accordance with the terms of the Prospectus of the Fund on behalf
of the applicable Portfolio, applicable law and the procedures
established from time to time between FDISG and the Fund.
(b) Recording the issuance of Shares and maintaining pursuant to
Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Portfolio which are authorized, based upon data
provided to it by the Fund, and issued and outstanding. FDISG
shall provide the Fund on a regular basis with the total number of
Shares of each Portfolio which are authorized and issued and
outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of the
Fund.
(c) Notwithstanding any of the foregoing provisions of this
Agreement, FDISG shall be under no duty or obligation to inquire
into, and shall not be liable for: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to
be received therefor; (ii) the legality of the redemption of any
Shares, or the propriety of the amount to be paid therefor; (iii)
the legality of the declaration of any dividend by the Board of
Directors, or the legality of the issuance of any Shares in
payment of any dividend; or (iv) the legality of any
recapitalization or readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to FDISG 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 FDISG for the Fund's blue sky State registration
status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
3.3 FDISG agrees to provide the services set forth herein in
accordance with the Performance Standards annexed hereto as
Exhibit 1 of Schedule A and incorporated herein (the "Performance
Standards"). Such Performance Standards may be amended from time
to time upon written agreement by the parties.
3.4 In addition to the duties set forth herein, FDISG shall
perform such other duties and functions, and shall be paid such
amounts therefor, as may from time to time be agreed upon in
writing between the Fund and FDISG.
Article 4 Recordkeeping and Other Information.
4.1 FDISG shall create and maintain all records required of it
pursuant to its duties hereunder and as set forth in Schedule A in
accordance with all applicable laws, rules and regulations,
including records required by Section 31(a) of the 1940 Act.
Where applicable, such records shall be maintained by FDISG for
the periods and in the places required by Rule 31a-2 under the
1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, FDISG
agrees that all such records prepared or maintained by FDISG
relating to the services to be performed by FDISG hereunder are
the property of the Fund and will be preserved, maintained and
made available in accordance with such section, and will be
surrendered promptly to the Fund on and in accordance with the
Fund's request.
4.3 In case of any requests or demands for the inspection of
Shareholder records of the Fund, FDISG will endeavor to notify the
Fund of such request and secure Written Instructions as to the
handling of such request. FDISG reserves the right, however, to
exhibit the Shareholder records to any person whenever it is
advised by its counsel that it may be held liable for the failure
to comply with such request.
Article 5 Fund Instructions.
5.1 FDISG will have no liability when acting upon Written or
Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have
any notice of any change of authority of any person until receipt
of a Written Instruction thereof from the Fund. FDISG will also
have no liability when processing Share certificates which it
reasonably believes to bear the proper manual or facsimile
signatures of the officers of the Fund and the proper
countersignature of FDISG.
5.2 At any time, FDISG may request Written Instructions from the
Fund and may seek advice from legal counsel for the Fund, or its
own legal counsel, with respect to any matter arising in
connection with this Agreement, and it shall not be liable for any
action taken or not taken or suffered by it in good faith in
accordance with such Written Instructions or in accordance with
the opinion of counsel for the Fund or for FDISG. Written
Instructions requested by FDISG will be provided by the Fund
within a reasonable period of time.
5.3 FDISG, its officers, agents or employees, shall accept Oral
Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said
representative is an Authorized Person. The Fund agrees that all
Oral Instructions shall be followed within one business day by
confirming Written Instructions, and that the Fund's failure to so
confirm shall not impair in any respect FDISG's right to rely on
Oral Instructions.
Article 6 Compensation.
6.1 The Fund on behalf of each of the Portfolios will compensate
FDISG for the performance of its obligations hereunder in
accordance with the fees set forth in the written Fee Schedule
annexed hereto as Schedule B and incorporated herein.
6.2 In addition to those fees set forth in Section 6.1 above,
the Fund on behalf of each of the Portfolios agrees to pay, and
will be billed separately for, out-of-pocket expenses incurred by
FDISG in the performance of its duties hereunder. Out-of-pocket
expenses shall include, but shall not be limited to, the items
specified in the written schedule of out-of-pocket charges annexed
hereto as Schedule C and incorporated herein. Schedule C may be
modified by written agreement between the parties. Unspecified
out-of-pocket expenses shall be limited to those out-of-pocket
expenses reasonably incurred by FDISG in the performance of its
obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to pay
all fees and out-of-pocket expenses within fifteen (15) days
following the receipt of the respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule B, a revised Fee Schedule
executed and dated by the parties hereto.
6.5 The Fund acknowledges that the fees that FDISG charges the
Fund under this Agreement reflect the allocation of risk between
the parties, including the disclaimer of warranties in Section 9.3
and the limitations on liability and exclusion of remedies in
Section 11.2 and Article 12. Modifying the allocation of risk
from what is stated here would affect the fees that FDISG charges,
and in consideration of those fees, the Fund agrees to the stated
allocation of risk.
Article 7 Documents.
In connection with the appointment of FDISG, the Fund shall, on or
before the date this Agreement goes into effect, but in any case
within a reasonable period of time for FDISG to prepare to perform
its duties hereunder, deliver or caused to be delivered to FDISG
the documents set forth in the written schedule of Fund Documents
annexed hereto as Schedule D.
Article 8 Transfer Agent System.
8.1 FDISG shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts,
expertise, patents, copyrights, trade secrets, and other related
legal rights utilized by FDISG in connection with the services
provided by FDISG to the Fund herein (the "FDISG System").
8.2 FDISG hereby grants to the Fund a limited license to the
FDISG System for the sole and limited purpose of having FDISG
provide the services contemplated hereunder and nothing contained
in this Agreement shall be construed or interpreted otherwise and
such license shall immediately terminate with the termination of
this Agreement.
Article 9 Representations and Warranties.
9.1 FDISG represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory agency
as a transfer agent and such registration will remain in effect
for the duration of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.2 The Fund represents and warrants to FDISG that:
(a) it is duly organized, existing and in good standing under
the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to
authorize it to enter into this Agreement;
(d) a registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of each of the Portfolios
is currently effective and will remain effective, and all
appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the Fund being
offered for sale; and
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance
with the terms of the Fund's Articles of Incorporation and its
Prospectus with respect to each Portfolio, such Shares shall be
validly issued, fully paid and non-assessable.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED
IN THIS AGREEMENT, FDISG DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE FUND OR ANY OTHER
PERSON, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING
QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING,
CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED
INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT. FDISG
DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS
OTHERWISE SET FORTH IN THIS AGREEMENT.
Article 10 Indemnification.
10.1 FDISG shall not be responsible for and the Fund on behalf of
each Portfolio shall indemnify and hold FDISG harmless from and
against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and
liabilities of any sort or kind which may be asserted against
FDISG or for which FDISG may be held to be liable (a "Claim")
arising out of or attributable to any of the following:
(a) any actions of FDISG required to be taken pursuant to this
Agreement unless such Claim resulted from a negligent act or
omission to act or bad faith by FDISG in the performance of its
duties hereunder;
(b) FDISG's reasonable reliance on, or reasonable use of
information, data, records and documents (including but not
limited to magnetic tapes, computer printouts, hard copies and
microfilm copies) received by FDISG from the Fund, or any
authorized third party acting on behalf of the Fund, including but
not limited to the prior transfer agent for the Fund, in the
performance of FDISG's duties and obligations hereunder;
(c) the reliance on, or the implementation of, any Written or
Oral Instructions or any other instructions or requests of the
Fund on behalf of the applicable Portfolio;
(d) the offer or sales of shares in violation of any requirement
under 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 state with respect
to the offer or sale of such shares in such state; and
(e) the Fund's refusal or failure to comply with the terms of
this Agreement, or any Claim which arises out of the Fund's
negligence or misconduct or the breach of any representation or
warranty of the Fund made herein.
10.2 The Fund and each Portfolio shall not be responsible for,
and FDISG shall indemnify and hold the Fund and each Portfolio
harmless from and against, any and all Claims arising out of or
attributable to (a) FDISGs refusal or failure to comply with the
terms of this Agreement or (b) FDISGs negligence, willful
misconduct or breach of any representation or warranty made of
FDISG herein.
10.3 In any case in which a party (the "Indemnified Party") may
be asked to indemnify or hold the other party (the "Indemnifying
Party") harmless, the Indemnified Party will notify the
Indemnifying Party promptly after identifying any situation which
it believes presents or appears likely to present a claim for
indemnification against the Indemnifying Party although the
failure to do so shall not prevent recovery by the Indemnified
Party and shall keep the Indemnifying Party advised with respect
to all developments concerning such situation. The Indemnifying
Party shall have the option to defend the Indemnified Party
against any Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so
elects, such defense shall be conducted by counsel chosen by the
Indemnifying Party and satisfactory to the Indemnified Party, and
thereupon the Indemnifying Party shall take over complete defense
of the Claim and the Indemnified Party shall sustain no further
legal or other expenses in respect of such Claim. The Indemnified
Party will not confess any Claim or make any compromise in any
case in which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior
written consent. The obligations of the parties hereto under this
Article 10 shall survive the termination of this Agreement.
10.4 Any claim for indemnification under this Agreement must be
made prior to the earlier of:
(a) one year after the Indemnified Party becomes aware of the
event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law
(and injunctive or provisional relief), the provisions of this
Article 10 shall be each partys sole and exclusive remedy for
claims or other actions or proceedings to which the
indemnification obligations pursuant to this Article 10 may apply.
Article 11 Standard of Care.
11.1 FDISG shall at all times act in good faith and agrees to use
its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but
assumes no responsibility for loss or damage to the Fund unless
said errors are caused by FDISG's own negligence, bad faith or
willful misconduct or that of its employees.
11.2 Notwithstanding any provision in this Agreement to the
contrary, FDISG's cumulative liability (to the Fund) for all
losses, claims, suits, controversies, breaches, or damages for any
cause whatsoever (including but not limited to those arising out
of or related to this Agreement) and regardless of the form of
action or legal theory shall not exceed the greater of (i)
$500,000 or (ii) the fees received by FDISG for services provided
under this Agreement during the twelve months immediately prior to
the date of such loss or damage. Fund understands the limitation
on FDISG's damages to be a reasonable allocation of risk and Fund
expressly consents with respect to such allocation of risk. In
allocating risk under the Agreement, the parties agree that the
damage limitation set forth above shall apply to any alternative
remedy ordered by a court in the event such court determines that
sole and exclusive remedy provided for in the Agreement fails of
its essential purpose.
11.3 Neither party may assert any cause of action against the
other party under this Agreement that accrued more than two (2)
years prior to the filing of the suit (or commencement of
arbitration proceedings) alleging such cause of action.
11.4 Each party shall have the duty to mitigate damages for which
the other party may become responsible.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL FDISG, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE
UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF
WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR
ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first written
above and shall continue for a period of five (5) years (the
"Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement
shall automatically renew for successive terms of three (3) years
("Renewal Terms") each, unless the Fund or FDISG provides written
notice to the other of its intent not to renew. Such notice must
be received not less than ninety (90) days and not more than one-
hundred eighty (180) days prior to the expiration of the Initial
Term or the then current Renewal Term.
13.3 Notwithstanding the forgoing, the Fund shall have the
ability to terminate this Agreement (i) upon sixty (60) days prior
written notice to FDISG in the event that Fund should dissolve and
discontinue to do business; or (ii) upon the termination of the
Administration Agreement between the Fund and FDISG.
13.4 In the event that FDISG has failed to meet a specific
performance standard category, as set forth in Exhibit 1 of
Schedule A, in four months of any rolling six month period, the
Fund may terminate this Agreement. The Fund will provide FDISG
with sixty (60) days notice in writing if the Fund intends to
exercise its option under this Section 8(d). Notwithstanding the
foregoing, the Funds right under this Section 8(d), shall not
become effective until ninety (90) days after FDISG has begun
providing services under this Agreement.
13.5 In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and
conversion thereof to a successor transfer agent will be borne by
the Fund.
13.6 If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party") the
other party (the "Non-Defaulting Party") may give written notice
thereof to the Defaulting Party, and if such material breach shall
not have been remedied within thirty (30) days after such written
notice is given, then the Non-Defaulting Party may terminate this
Agreement by giving thirty (30) days written notice of such
termination to the Defaulting Party. If FDISG is the
Non-Defaulting Party, its termination of this Agreement shall not
constitute a waiver of any other rights or remedies of FDISG with
respect to services performed prior to such termination or rights
of FDISG to be reimbursed for out-of-pocket expenses. In all
cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the
Defaulting Party.
Article 14 Additional Portfolios.
In the event that the Fund establishes one or more Portfolios in
addition to those identified in Exhibit 1, with respect to which
the Fund desires to have FDISG render services as transfer agent
under the terms hereof, the Fund shall so notify FDISG in writing,
and if FDISG agrees in writing to provide such services, Exhibit 1
shall be amended to include such additional Portfolios.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information (defined
below) and the contents of this Agreement (collectively
"Confidential Information") are confidential information of the
parties and their respective licensors. The Fund and FDISG shall
exercise at least the same degree of care, but not less than
reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to
protect its own confidential information of a similar nature. The
Fund and FDISG shall not duplicate, sell or disclose to others the
Confidential Information of the other, in whole or in part,
without the prior written permission of the other party. The Fund
and FDISG may, however, disclose Confidential Information to their
respective parent corporation, their respective affiliates, their
subsidiaries and affiliated companies and employees, provided that
each shall use reasonable efforts to ensure that the Confidential
Information is not duplicated or disclosed in breach of this
Agreement. The Fund and FDISG may also disclose the Confidential
Information to regulatory or judicial authorities, independent
contractors, auditors, and professional advisors, provided they
first agree in writing to be bound by the confidentiality
obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either
the Fund or FDISG disclose the Confidential Information to any
competitor of the other without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but
not limited to, information about product plans, marketing
strategies, finance, operations, customer relationships, customer
profiles, sales estimates, business plans, and internal
performance results relating to the past, present or future
business activities of the Fund or FDISG, their respective
subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable
and secret in the sense that its confidentiality affords the Fund
or FDISG a competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how,
show-how and trade secrets, whether or not patentable or
copyrightable.
15.3 Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory
notebooks, drawings, diagrams, specifications, bills of material,
equipment, prototypes and models, and any other tangible manifes-
tation of the foregoing of either party which now exist or come
into the control or possession of the other.
Article 16 Force Majeure.
No party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the
extent such default or delay is caused, directly or indirectly, by
(i) fire, flood, elements of nature or other acts of God; (ii) any
outbreak or escalation of hostilities, war, riots or civil
disorders in any country, (iii) any act or omission of the other
party or any governmental authority; (iv) any labor disputes
(whether or not the employees' demands are reasonable or within
the party's power to satisfy); or (v) nonperformance by a third
party or any similar cause beyond the reasonable control of such
party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the
non-performing party shall be excused from any further performance
and observance of the obligations so affected only for as long as
such circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or
observance as soon as practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement may
not be assigned or otherwise transferred by either party hereto,
without the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided, however,
that FDISG may, in its sole discretion, assign all its right,
title and interest in this Agreement to an affiliate, parent or
subsidiary. FDISG may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this
Agreement to be performed by FDISG, but such engagement will not
relieve FDISG of such obligations.
Article 18 Arbitration.
18.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration
administered by the American Arbitration Association in Boston,
Massachusetts in accordance with its applicable rules, except that
the Federal Rules of Evidence and the Federal Rules of Civil
Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
18.3 The parties acknowledge and agree that the performance of
the obligations under this Agreement necessitates the use of
instrumentalities of interstate commerce and, notwithstanding
other general choice of law provisions in this Agreement, the
parties agree that the Federal Arbitration Act shall govern and
control with respect to the provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or FDISG, shall be
sufficiently given if addressed to that party and received by it
at its office set forth below or at such other place as it may
from time to time designate in writing. A written notice or
instrument may be in the form of a facsimile transmission,
electronic mail, a telegram or a telex provided that it is
actually received by the addressee.
To the Fund:
Kobren Insight Funds
00 Xxxxxxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 20 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws
on conflicts of laws, shall govern the interpretation, validity,
and enforcement of this agreement. All actions arising from or
related to this Agreement shall be brought in the state and
federal courts sitting in the City of Boston, and FDISG and Client
hereby submit themselves to the exclusive jurisdiction of those
courts.
Article 21 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original; but such counterparts
shall, together, constitute only one instrument.
Article 22 Captions.
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect.
Article 23 Publicity.
Neither FDISG nor the Fund shall release or publish news releases,
public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without
the prior review and written approval of the other party;
provided, however, that either party may make such disclosures as
are required by legal, accounting or regulatory requirements after
making reasonable efforts in the circumstances to consult in
advance with the other party.
Article 24 Relationship of Parties/Non-Solicitation.
24.1 The parties agree that they are independent contractors and
not partners or co-venturers and nothing contained herein shall be
interpreted or construed otherwise.
24.2 Except as may be agreed upon by the parties, during the term
of this Agreement and for one (1) year afterward, the Fund and
FDISG agree not to recruit, solicit, employ or engage, for
themselves or others, the employees of the other party.
Article 25 Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and Exhibits
hereto, constitutes the entire Agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous proposals, agreements, contracts, representations,
and understandings, whether written or oral, between the parties
with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of
the Agreement shall be valid unless in writing signed by each
party. No such writing shall be effective as against FDISG unless
said writing is executed by a Senior Vice President, Executive
Vice President, or President of FDISG. A partys waiver of a
breach of any term or condition in the Agreement shall not be
deemed a waiver of any subsequent breach of the same or another
term or condition.
25.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that
any term or provision is illegal or invalid for any reason, the
illegality or invalidity shall not affect the validity of the
remainder of this Agreement. In such case, the parties shall in
good faith modify or substitute such provision consistent with the
original intent of the parties. Without limiting the generality
of this paragraph, if a court determines that any remedy stated in
this Agreement has failed of its essential purpose, then all other
provisions of this Agreement, including the limitations on
liability and exclusion of damages, shall remain fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers, as of the day
and year first above written.
KOBREN INSIGHT FUNDS
By: XXXX X. XXXXXX
Title: President
FIRST DATA INVESTOR SERVICES GROUP, INC.
By: Xxxxx Xxxxx
Title: Executive Vice President
Exhibit 1
LIST OF PORTFOLIOS
Kobren Growth Fund
Kobren Moderate Growth Fund
Kobren Conservative Allocation Fund
Schedule A
DUTIES OF FDISG
1. Shareholder Information. FDISG shall maintain a record
of the number of Shares held by each Shareholder of record which
shall include name, address, taxpayer identification and which
shall indicate whether such Shares are held in certificates or
uncertificated form.
2. Shareholder Services. FDISG shall respond as appropriate
to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as
may be from time to time mutually agreed upon between FDISG and
the Fund.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply FDISG with
an adequate supply of blank Share certificates to meet FDISG
requirements therefor. Such Share certificates shall be properly
signed by facsimile. The Fund agrees that, notwithstanding the
death, resignation, or removal of any officer of the Fund whose
signature appears on such certificates, FDISG or its agent may
continue to countersign certificates which bear such signatures
until otherwise directed by Written Instructions.
(b) FDISG shall issue replacement Share certificates in lieu of
certificates which have been lost, stolen or destroyed, upon
receipt by FDISG of properly executed affidavits and lost
certificate bonds, in form satisfactory to FDISG, with the Fund
and FDISG as obligees under the bond.
(c) FDISG shall also maintain a record of each certificate
issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open
accounts or uncertificated form (i.e., no certificate being issued
with respect thereto) FDISG shall maintain comparable records of
the Shareholders thereof, including their names, addresses and
taxpayer identification numbers. FDISG shall further maintain a
stop transfer record on lost and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials.
FDISG will address and mail to Shareholders of the Fund, all
reports to Shareholders, dividend and distribution notices and
proxy material for the Fund's meetings of Shareholders. In
connection with meetings of Shareholders, FDISG will prepare
Shareholder lists, mail and certify as to the mailing of proxy
materials, process and tabulate returned proxy cards, report on
proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
5. Sales of Shares
(a) FDISG shall not be required to issue any Shares of the Fund
if it has received a Written Instruction from the Fund or official
notice from any appropriate authority that the sale of the Shares
of the Fund has been suspended or discontinued. The existence of
such Written Instructions or such official notice shall be
conclusive evidence of the right of FDISG to rely on such Written
Instructions or official notice.
(b) In the event that any check or other order for the payment of
money is returned unpaid for any reason, FDISG will endeavor to:
(i) give prompt notice of such return to the Fund or its designee;
(ii) place a stop transfer order against all Shares issued as a
result of such check or order; and (iii) take such actions as
FDISG may from time to time deem appropriate.
6. Transfer and Repurchase
(a) FDISG shall process all requests to transfer or redeem Shares
in accordance with the transfer or repurchase procedures set forth
in the Fund's Prospectus.
(b) FDISG will transfer or repurchase Shares upon receipt of Oral
or Written Instructions or otherwise pursuant to the Prospectus
and Share certificates, if any, properly endorsed for transfer or
redemption, accompanied by such documents as FDISG reasonably may
deem necessary.
(c) FDISG reserves the right to refuse to transfer or repurchase
Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. FDISG also reserves the right
to refuse to transfer or repurchase Shares until it is satisfied
that the requested transfer or repurchase is legally authorized,
and it shall incur no liability for the refusal, in good faith, to
make transfers or repurchases which FDISG, in its good judgement,
deems improper or unauthorized, or until it is reasonably
satisfied that there is no basis to any claims adverse to such
transfer or repurchase.
(d) When Shares are redeemed, FDISG shall, upon receipt of the
instructions and documents in proper form, deliver to the
Custodian and the Fund or its designee a notification setting
forth the number of Shares to be redeemed. Such redeemed shares
shall be reflected on appropriate accounts maintained by FDISG
reflecting outstanding Shares of the Fund and Shares attributed to
individual accounts.
(e) FDISG, upon receipt of the monies provided to it by the
Custodian for the redemption of Shares, pay such monies as are
received from the Custodian, all in accordance with the procedures
described in the written instruction received by FDISG from the
Fund.
(f) FDISG shall not process or effect any redemption with respect
to Shares of the Fund after receipt by FDISG or its agent of
notification of the suspension of the determination of the net
asset value of the Fund.
7. Dividends
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to
Shares of the Fund, the Fund shall furnish or cause to be
furnished to FDISG Written Instructions setting forth the date of
the declaration of such dividend or distribution, the ex-dividend
date, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined, the amount
payable per Share to the Shareholders of record as of that date,
the total amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at net asset
value.
(b) On or before the payment date specified in such resolution of
the Board of Directors, the Fund will provide FDISG with
sufficient cash to make payment to the Shareholders of record as
of such payment date.
(c) If FDISG does not receive sufficient cash from the Fund to
make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, FDISG will, upon
notifying the Fund, withhold payment to all Shareholders of record
as of the record date until sufficient cash is provided to FDISG.
8. Hours of Operation. FDISGs business hours are 9:00
a.m. throught 5:00 p.m. Eastern Standard Time Monday through
Friday with respect to Shareholder communication availability by
telephone. Any after hours Shareholder communication by telephone
will be covered in a separate Teleservicing Agreement between the
Fund and FDISG.
9. In addition to and neither in lieu nor in contravention of
the services set forth above, FDISG shall: (i) perform all the
customary services of a transfer agent, registrar, dividend
disbursing agent and agent of the dividend reinvestment and cash
purchase plan as described herein consistent with those
requirements in effect as at the date of this Agreement. The
detailed definition, frequency, limitations and associated costs
(if any) set out in the attached fee schedule, include but are not
limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, tabulating proxies,
mailing Shareholder reports to current Shareholders, withholding
taxes on U.S. resident and non-resident alien accounts where
applicable, preparing and filing U.S. Treasury Department Forms
1099 and other appropriate forms required with respect to
dividends and distributions by federal authorities for all
Shareholders.
Exhibit 1 of Schedule A
PERFORMANCE STANDARDS
FDISGs obligation to meet the following Performance Standards
shall be measured in the aggregate with respect to all Portfolios.
FDISG will report to Insight on a quarterly basis the percent of
items completed within standard as well as a quality rating. A
pass/fail determination for contractual purposes will however be
based on the categories listed below based on monthly performance.
For example, the accuracy of purchases, redemptions, exchanges and
adjustments will be reported to the Fund on an individual basis
and as a collective group. FDISG will receive a "fail" for the
month if the collective score for all financials falls below the
contractual level. Note that completion standards are measured in
business days.
Category Components (to be reported individually)
Financials: Purchases, Redemptions, Exchanges, Adjustments
(both financial
and non-financial adjustments)
Collective Quality Score: 98.25%
Minimum Acceptable
Collective
Score by Category:
Weighting:
Transaction Throughput - 99%
50%
Transaction Quality - 97.5%
50%
Shareholder Services: Telephones, Correspondence
Collective Quality Score: 98%
Minimum Acceptable
Collective
Score by Category:
Weighting:
Telephone Abandoned Rate - 3%
25%
Average Speed of Answer - 20 seconds
25%
Financial Correspondence - Receipt +2
25%
Non-financial Correspondence - Receipt + 4
25%
Schedule B
FEE SCHEDULE
1. ANNUAL FEES
A. Open Account Fees: $14.00 per open account
(subject to minimum fees set forth below)
B. Fund Minimums: $32,000 per Portfolio
per year, provided however, the Fund shall pay a minimum of
$64,000 per annum regardless of the number of Portfolios
C. Out of Pocket Expenses As set forth in Schedule
C
D. Individual Retirement
Accounts $20.00 per Shareholder Account
(multiple accounts across Portfolios with the same account number
will be treated as a single Shareholder Account)
GENERAL
After the completion of the third year of the Agreement, First
Data may adjust any annual or monthly fees once per calendar year,
upon thirty (30) days prior written notice in an amount not to
exceed the previous years cumulative percentage increase in the
Consumer Price Index for All Urban Consumers (CPI-U) U.S. City
Average, All items (unadjusted) - (1982-84=100), published by the
U.S Department of Labor since the last such adjustment in the
Client's monthly fees (or the Effective Date absent a prior such
adjustment).
Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse FDISG monthly for applicable
out-of-pocket expenses, including, but not limited to the
following items:
Microfiche/microfilm production
Magnetic media tapes and freight
Printing costs, including certificates, envelopes, checks
and stationery
Postage (bulk, pre-sort, ZIP+4, barcoding, first class)
direct pass through to the Fund
Due diligence mailings
Telephone and telecommunication costs, including all lease,
maintenance and line costs
Ad hoc reports
Proxy solicitations, mailings and tabulations
Daily & Distribution advice mailings
Shipping, Certified and Overnight mail and insurance
Year-end form production and mailings
Terminals, communication lines, printers and other equipment
and any expenses incurred in connection with such terminals and
lines
Duplicating services
Courier services
Incoming and outgoing wire charges
Federal Reserve charges for check clearance
Overtime, as approved by the Fund
Temporary staff, as approved by the Fund
Travel and entertainment, as approved by the Fund
Record retention, retrieval and destruction costs,
including, but not limited to exit fees charged by third party
record keeping vendors
Third party audit reviews
Ad hoc SQL time
All Systems enhancements after the conversion at the rate of
$135.00 per hour
Insurance
Such other miscellaneous expenses reasonably incurred by
FDISG in performing its duties and responsibilities under this
Agreement.
The Fund agrees that postage and mailing expenses will be paid on
the day of or prior to mailing as agreed with FDISG. In addition,
the Fund will promptly reimburse FDISG for any other unscheduled
expenses incurred by FDISG whenever the Fund and FDISG mutually
agree that such expenses are not otherwise properly borne by FDISG
as part of its duties and obligations under the Agreement.
Schedule D
FUND DOCUMENTS
Certified copy of the Articles of Incorporation of the Fund,
as amended
Certified copy of the By-laws of the Fund, as amended,
Copy of the resolution of the Board of Directors authorizing
the execution and delivery of this Agreement
Specimens of the certificates for Shares of the Fund, if
applicable, in the form approved by the Board of Directors of the
Fund, with a certificate of the Secretary of the Fund as to such
approval
All account application forms and other documents relating
to Shareholder accounts or to any plan, program or service offered
by the Fund
Certified list of Shareholders of the Fund with the name,
address and taxpayer identification number of each Shareholder,
and the number of Shares of the Fund held by each, certificate
numbers and denominations (if any certificates have been issued),
lists of any accounts against which stop transfer orders have been
placed, together with the reasons therefore, and the number of
Shares redeemed by the Fund
All notices issued by the Fund with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-laws of the Fund or as required by law and shall perform such
other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or
annual meetings of shareholders and any other notices required
thereby.
Exhibit 1 of Schedule A
Performance Standards
FDISGs obligation to meet the following Performance Standards
shall be measured in the aggregate with respect to all Funds.
First Data will report to Insight on a quarterly basis the percent
of items completed within standard as well as a quality rating. A
pass/fail determination for contractual purposes will however be
based on the categories listed below based on monthly performance.
For example, the accuracy of purchases, redemptions, exchanges and
adjustments will be reported to Insight on an individual basis and
as a collective group. First Data will receive a "fail" for the
month if the collective score for all financials falls below the
contractual level. Note that completion standards are measured in
business days.
Category Components (to be reported individually)
Financials Purchases, Redemptions, Exchanges, Adjustments
(both financial
and non-financial adjustments)
Minimum Acceptable Scores:
Transaction Throughput - 99%
Transaction Quality - 97.5%
Shareholder Service Telephones, Correspondence
Minimum Acceptable Scores:
Telephone Abandoned Rate - 3%
Average Speed of Answer - 20 seconds
Financial Correspondence - 2 day
turnaround
Non-financial Correspondence - 4 day
turnaround
24
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