EXHIBIT 99.B9(d)
TRANSFER AGENCY AND SERVICES AGREEMENT
(With Facilities Management Arrangement)
THIS AGREEMENT, dated as of this ______ day of February, 1998
between NATIONS ANNUITY TRUST, a Delaware business trust (the "Trust),
and each other investment company which may become a party hereto
pursuant to the terms of this Agreement, with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 and
additional offices at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, and FIRST DATA INVESTOR SERVICES, INC. (the "Transfer Agent"), a
Massachusetts corporation with principal offices at Xxx Xxxxxxxx Xxxxx,
00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, the Trust desires to appoint the Transfer Agent as its
transfer agent, dividend disbursing agent and agent in connection with
certain other activities and the Transfer Agent desires to accept such
appointment;
WHEREAS, the Trust may authorize the issuance of Shares in
separate series, with each such series representing interests in a
separate portfolio of securities and other assets ("Portfolio");
WHEREAS, the Trust and each Portfolio of the Trust subject to
this Agreement, including any investment company or Portfolio as may be
added to this Agreement pursuant to Section 17, shall be identified in
the attached Schedule G; and
WHEREAS, the Transfer Agent and NationsBank, N.A.
("NationsBank") have entered into a Facilities Management Agreement
("Facilities Agreement") dated June 1, 1995 pursuant to which the
Transfer Agent has established a servicing and processing center to
provide transfer agent services on behalf of the Trust in Charlotte,
North Carolina (the "Charlotte Facility").
NOW THEREFORE, in consideration of the mutual covenants and
promises hereinafter set forth, the Trust and the Transfer Agent agree
as follows:
Definitions
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following
meanings:
(a) "Declaration of Trust" shall mean the Declaration
of Trust, or other similar organizational document as the case
may be, of the Trust as the same may be amended from time to
time.
(b) "Authorized Person" of a Portfolio shall be deemed
to include (i) any authorized officer of the Trust; (ii) the
members of the Joint Operations Board (as hereinafter defined);
or (iii) any person, whether or not such person is an officer
or employee of the Trust, duly authorized to give Oral
Instructions or Written Instructions on behalf of the Trust as
indicated in writing to the Transfer Agent from time to time.
(c) "Board of Trustees" of the Trust shall mean the
Board of Trustees of the Trust, as the case may be.
(d) "Commission" shall mean the Securities and
Exchange Commission.
(e) "Custodian" of a Portfolio refers to any custodian
or subcustodian of securities and other property which the
Trust 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) "Joint Operations Board" shall mean the joint
board comprised of one senior representative from the Transfer
Agent, one individual designated by the Trust jointly to
represent their respective interests and the most senior
Transfer Agent manager of the Charlotte Facility.
(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 the Transfer
Agent from a person reasonably believed by the Transfer Agent
to be an Authorized Person;
(i) "Prospectus" of the Trust shall mean collectively
the most recently dated Portfolio Prospectuses and Statements
of Additional Information, including any supplements thereto,
if any, with respect to each Portfolio of the Trust which has
become effective under the Securities Act of 1933 and the 1940
Act.
(j) "Shares" of a Portfolio refers collectively to
such shares of capital stock or beneficial interest, as the
case may be, or class thereof, of the Portfolio as may be
issued from time to time.
(k) "Shareholder" shall mean a record owner of
Shares.
(l) "Written Instructions" shall mean a written
communication signed by a person reasonably believed by the
Transfer Agent to be an Authorized Person and actually received
by the Transfer Agent. Written Instructions shall include
manually executed originals and authorized electronic
transmissions, including telefacsimile of a manually executed
original or other process.
Appointment of the Transfer Agent
2.1 The Trust hereby appoints and constitutes the Transfer Agent as
transfer agent and dividend disbursing agent for Shares of the Trust and
the Transfer Agent hereby accepts such appointments and agrees to
perform the duties hereinafter set forth.
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Duites of the Transfer Agent
3.1 The Transfer Agent shall be responsible for:
(a) Administering and performing the customary
services of a transfer agent; agent in connection with dividend
and distribution functions; and agent in connection with
shareholder account and administrative functions in connection
with the issuance, transfer and redernption or repurchase
(including coordination with the Custodian) of Shares, as more
fully described in the written schedule of Duties of the
Transfer Agent annexed hereto as Schedule A and incorporated
herein, and in accordance with the terms of the Trust's
Prospectus, applicable law and the procedures established from
time to time between the Transfer Agent and the Trust.
(b) Recording the issuance of Shares and maintaining
pursuant to Commission Rule 17Ad-10(e) a record of the total
number of Shares which are authorized, based upon data provided
to it by the Trust, and issued and outstanding. The Transfer
Agent shall provide the Trust 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 legality or
validity of the issue or sale of such Shares, which functions
shall be the sole responsibility of the Trust.
(c) Notwithstanding any of the foregoing provisions of
this Agreement, the Transfer Agent shall be under no duty or
obligation to inquire into, and shall not be liable for: (i)
the legality of the issuance or sale of any Shares or the
sufficiency of the amount to be received therefor; (ii) the
legality of the redemption of any Shares, or the propriety of
the amount to be paid therefor; (iii) the legality of the
declaration of any dividend by the Board of Trustees, or the
legality of the issuance of any Shares in payment of any
dividend; or (iv) the legality of any recapitalization or
readjustment of the Shares.
3.2 In addition, the Trust shall verify the establishment of shares or
share transactions for each State prior to activation on the Transfer
Agent's system and thereafter monitor the daily activity of shares for
each State based upon daily transactions recorded by the Transfer Agent
and transmitted to the Trust or its designated agent. The responsibility
of the Transfer Agent for a Trust's blue sky State registration is
solely limited to the initial establishment of shares or share
transactions subject to blue sky compliance by the Trust and the
reporting of such transactions to the Trust as provided above.
3.3 In addition to the duties set forth herein, the Transfer Agent 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
Trust and the Transfer Agent. Article 4 Duties of the Joint Operations
Board
4.1 The Joint Operations Board will be responsible for the
following with respect to the services to be performed by the Transfer
Agent under this Agreement (the "Services"):
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(a) General oversight of the provision of Services by
the Transfer Agent, including, but not limited to, the creation
and quarterly review of quality standards governing the
Services pursuant to Article 5 hereof, the establishment of
strategic and/or operational goals with respect to the Services
to be provided at the Charlotte Facility, and addressing such
issues and concerns that may arise from time to time amongst
the Trust and the Transfer Agent under this Agreement.
(b) Review and approval of, from a technical
feasibility standpoint, imaging and other new technologies
proposed to be used by the Transfer Agent in performing the
Services at the Charlotte facility.
(c) Review and approval of the Charlotte Facility
budget and expense statements, including those costs for which
compensation is sought by the Transfer Agent pursuant to
Article 8 hereof.
(d) Review of those costs incurred by the Transfer
Agent, other than in connection with the Charlotte Facility,
for which compensation is sought by thc Transfer Agent pursuant
to Article 8 hereof.
4.2 With respect to matters described in Section 4.1 above, the
decision of the Trust's representative on the Joint Operations Board
shall control.
4.3 On a monthly basis, the Transfer Agent shall provide to the
Joint Operations Board a statement of the internal and external costs
incurred by the Transfer Agent in connection with the provision of
Services for which the Transfer Agent will seek reimbursement under
Article 8 hereof.
Article 5 Quality Standards
5.1 Thc quality of service provided by the Transfer Agent
hereunder shall be maintained at or above the levels set forth in
Schedule B hereto. Such quality standards shall govern the Services
provided by the Transfer Agent until a new set of quality standards is
established pursuant to Section 5.2 hereof.
5.2 As soon as practicable after the first ninety (90) days of
operation of the Charlotte Facility, the Joint Operations Board shall
establish a new set of quality standards reasonably acceptable to the
Trusts and the Transfer Agent.
5.3 The Joint Operations Board shall review and update, if
necessary, the quality standards on a semi-annual basis.
5.4 If, at any time during the term of this Agreement, 20% or
more of the then-current quality standards (e.g., 2 or more out of 10
standards) are not met by the Transfer Agent during any month (as
evidenced by monthly reports), the Trust shall promptly notify the
Transfer Agent in writing of such failure and the details relating to
such failure. If, any of the failed quality standards are not met by the
Transfer Agent during the three month period commencing thirty (30) days
after the Transfer Agent receives such notice, the Trust shall have the
right to terminate this Agreement on thirty (30) days notice.
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5.5 Notwithstanding the foregoing, the Trust shall not have the
right to terminate this Agreement based on the failure by the Transfer
Agent to have satisfied a quality standard if such failure was caused
directly by the negative vote of the Trust's representative on the Joint
Operations Board with respect to a commercially reasonable Portfolioing
request of the Transfer Agent for the Charlotte Facility.
Article 6 Recordkeeping and Other Information
6.1 The Transfer Agent 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. All records shall be available during regular business hours for
inspection and use by the Trust. Where applicable, such records shall be
maintained by the Transfer Agent for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
6.2 To the extent required by Section 31 of the 1940 Act, the
Transfer Agent agrees that all such records prepared or maintained by
the Transfer Agent relating to the Services are the property of the
relevant Portfolio and will be preserved, maintained and made available
in accordance with such section, and will be surrendered promptly to
such Portfolio on and in accordance with the Trust's request.
6.3 In case of any requests or demands for the inspection of
Shareholder records of a Portfolio, the Transfer Agent will endeavor to
notify the Trust of such request and secure Written Instructions as to
the handling of such request. The Transfer Agent reserves the right,
upon prior notice to the Trust, 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.
6.4 Upon reasonable notice by a Portfolio, the Transfer Agent
shall make available during regular business hours such of its
facilities and premises employed in connection with the performance of
its duties under this Agreement for reasonable visitation by the Trust,
or any person retained by the Trust as may be necessary for the Trust to
evaluate the quality of the Services performed by the Transfer Agent
pursuant hereto.
Article 7 Portfolio Instructions
7.1 The Transfer Agent will have no liability when acting for
the Trust in accordance with Written or Oral Instructions believed to
have been executed or orally communicated by an Authorized Person of the
Trust 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
Trust. The Transfer Agent will also have no liability when processing
Share certificates for the Trust which it reasonably believes to bear
the proper manual or facsimile signatures of the officers of the Trust
and the proper countersignature of the Transfer Agent.
7.2 The Transfer Agent may request Written Instructions from
the Trust and may seek advice from legal counsel for the Trust with
prior notice to the Trust, 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 Trust or for the Transfer Agent.
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Written Instructions requested by the Transfer Agent will be provided by
the Trust within a reasonable period of time.
7.3 The Transfer Agent, its officers, agents or employees,
shall accept Oral Instructions or Written Instructions given to them
with respect to a Portfolio by any person representing or acting on
behalf of the Trust only if said representative is an Authorized Person
of the Trust. The Trust agrees that all Oral Instructions shall be
followed within one business day by confirming Written Instructions, and
that the Trust's failure to so confirm shall not impair in any respect
the Transfer Agent's right to rely on Oral Instructions.
Article 8 Compensation
8.1 The Trust shall reimburse the Transfer Agent for all of the
Transfer Agent's "Costs" incurred in connection with the provision of
Services as set forth in the written Schedule of Costs annexed hereto as
Schedule C and incorporated herein and in addition the Trust shall
compensate the Transfer Agent for the following amounts (the "Margin");
(a) During the first 36 months of the Initial Term (as
defined below), an amount equal to 15% of such Costs during
each month.
(b) During the last 24 months of the Initial Term and
during each Renewal Term (as defined below), an amount equal to
12.5% of such Costs during each month.
8.2 Notwithstanding the foregoing, the charges incurred by the
Transfer Agent under the Facilities Agreement with NationsBank and such
other expenses set forth in the written schedule of Non-Margin Expenses
annexed hereto as Schedule D shall not be included as Costs in
connection with the calculation of the Margin amounts set forth in
Subsections 8.1 (a) and (b).
8.3 In addition to the Costs and Margin described above, the
Trust shall reimburse the Transfer Agent, and will be billed separately
for, those out-of-pocket expenses incurred by the Transfer Agent in the
performance of its duties hereunder as specified in the written schedule
of out-of-pocket expenses annexed hereto as Schedule E and incorporated
herein.
8.4 The Trust agrees to pay all fees and out-of-pocket expenses
within thirty (30) days following the receipt of the respective invoice.
The Trust shall not be obligated to pay amounts that are reasonably in
dispute until such dispute is resolved.
Article 9 Documents
9.1 In connection with the appointment of the Transfer Agent,
the Trust shall, on or before the date this Agreement goes into effect,
but in any case within a reasonable period of time for the Transfer
Agent to prepare to perform its duties hereunder, deliver or cause to be
delivered to the Transfer Agent the documents set forth in the written
schedule of Trust Documents annexed hereto as Schedule F.
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Article 10 Transfer Agent System
10.1 The Transfer Agent 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 the Transfer Agent in connection with the services provided
by the Transfer Agent to the Trust herein (the "Transfer Agent System").
10.2 The Transfer Agent hereby grants to the Trust a limited
license to the Transfer Agent System for the sole and limited purpose of
having the Transfer Agent provide the services contemplated hereunder
and nothing contained in this Agreement shall be construed or
interpreted otherwise and such license shall immediately terminate upon
the termination of this Agreement.
10.3 The Transfer Agent agrees to provide the Trust with full
access to the Transfer Agent System and all enhancements thereto to the
same extent that such is made available to other Transfer Agent clients.
10.4 In the event the Trust desires the Transfer Agent to
develop any enhancements for the Transfer Agent System, the parties
shall agree on the staffing requirements which will be subject to the
approval of the Joint Operations Board.
10.5 In the event the Trust requests an enhancement to the
Transfer Agent System which is estimated to require 5,000 programming
hours or more ("Enhancement Project") and the Trust agrees to assume the
cost of such Enhancement Project, the Trust and the Transfer Agent shall
agree in writing on any restrictions imposed on the Transfer Agent with
respect to the use of such enhancement prior to commencement of the
Enhancement Project.
10.6 The Trust reserves the right to review and examine
"imaging" and significant other technological developments to be
implemented with the Transfer Agent System from a technical feasibility
standpoint.
Article 11 Representations and Warranties of the Transfer Agent
11.1 The Transfer Agent represents and warrants to the Trust
that:
(a) It is a corporation duly organized and
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 the appropriate
regulatory agencies as a transfer agent and such registration
will remain in effect for the duration of this Agreement;
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(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.
Article 12 Representations and Warranties of the Trust
12.1 The Trust represents and warrants to the Transfer Agent
that:
(a) It is duly organized and 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 Declaration of Trust and By-Laws to enter into this
Agreement;
(c) All corporate proceedings required by said
Declaration of Trust, By-Laws and applicable laws have been
taken to authorize it to enter into this Agreement;
(d) A registration statement under the Securities Act
of 1933, as amended, 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 Trust being offered for sale;
(e) All outstanding Shares are validly issued, fully
paid and non-assessable and that, when Shares are hereafter
issued in accordance with the terms of the Trust's Declaration
of Trust and its Prospectus, such Shares shall be validly
issued, fully paid and non-assessable.
Article 13 Indemnification
13.1 The Transfer Agent shall not be responsible for and the
Trust shall indemnify and hold the Transfer Agent 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 the Transfer Agent or for
which the Transfer Agent may be held to be liable (a "Claim") arising
out of or attributable to any of the following:
(a) Any actions of the Transfer Agent required to be
taken pursuant to this Agreement for the Trust unless such
Claim resulted from a negligent act or failure to act or bad
faith by the Transfer Agent in the performance of its duties
hereunder.
(b) The Transfer Agent'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 the
Transfer Agent from the Trust, or any authorized third party
acting on behalf of the Trust, including but not limited to the
prior transfer agent for the Trust, in the performance of the
Transfer Agent'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 Trust which are deemed to be provided by an
Authorized Person of the Trust.
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(d) The offer or sales of Shares by the Trust 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.
(e) The Trust's refusal or failure to comply with the
terms of this Agreement, or any Claim which arises out of the
Trust's negligence or misconduct or the breach of any
representation or warranty of the Trust made herein.
13.2 In any case in which a Trust may be asked to indemnify or
hold the Transfer Agent harmless, the Transfer Agent will notify the
Trust promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification
against the Trust although the failure to do so shall not prevent
recovery by the Transfer Agent, unless the Trust is actually prejudiced
thereby, and the Transfer Agent shall keep the Trust advised with
respect to all developments concerning such situation. The Trust shall
have the option to defend the Transfer Agent against any Claim which may
be the subject of this indemnification, and, in the event that the Trust
so elects, such defense shall be conducted by counsel chosen by the
Trust and satisfactory to the Transfer Agent, and thereupon the Trust
shall take over complete defense of the Claim and the Transfer Agent
shall sustain no further legal or other expenses in respect of such
Claim. The Transfer Agent will not confess any Claim or make any
compromise in any case in which the Trust will be asked to provide
indemnification, except with the Trust's prior written consent. The
obligations of the parties hereto under this Article shall survive the
termination of this Agreement, so long as the Transfer Agent and the
Trust act in good faith and are not negligent in their actions.
Article 14 Standard of Care
14.1 The Transfer Agent 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 Trust unless
said errors are caused by the Transfer Agent's own negligence, bad faith
or willful misconduct or that of its employees.
Article 15 Consequential Damages
15.1 In no event and under no circumstances shall either the
Trust or the Transfer Agent be liable to another party for consequential
or indirect loss of profits, reputation or business or any other special
damages under any provision of this Agreement or for any act or failure
to act hereunder.
Article 16 Term and Termination
16.1 This Agreement shall be effective on the date first
written above and shall continue for a period of sixty (60) months (the
"Initial Term"), unless earlier terminated pursuant to the terms of this
Agreement. Thereafter, this Agreement shall automatically be renewed for
successive terms of twenty-four (24) months ("Renewal Terms") each,
unless terminated pursuant to this Agreement.
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16.2 The Trust or the Transfer Agent may terminate this
Agreement at the end of the Initial Term or at the end of any subsequent
Renewal Term upon not less than nine (9) months prior written notice to
the other parties.
16.3 Upon a minimum of nine (9) months prior written notice
from the Board of Trustees of the Trust, the Trust may terminate this
Agreement at the end of the thirty-sixth (36th) or forty-eighth (48th)
month of the Initial Term.
16.4 The Trust shall have the right to terminate this Agreement
immediately upon the insolvency or bankruptcy of the Transfer Agent or
the appointment of a receiver for the Transfer Agent, or with respect to
any of its assets, or any change in the financial condition of the
Transfer Agent which impedes the ability of the Transfer Agent to
perform any of its obligations hereunder which is not cured by the
Transfer Agent within thirty (30) days of such occurrence. The Trust
shall have the right to seek to renegotiate this Agreement and, if such
negotiations are not successful within a reasonable period of time, not
to exceed ninety (90) days, to terminate this Agreement upon the
transfer of ownership of a controlling interest in the Transfer Agent by
or to any person other than a person who was an affiliate of the
Transfer Agent or its parent company immediately before the transfer.
16.5 In the event that the total number of combined Shareholder
accounts for the Trust and any other open-end investment companies
affiliated with the Trust by reason of having a common investment
adviser exceeds three times the 1994 Shareholder account base of 130,000
due to merger or acquisition activity involving the investment adviser
or any affiliates of the adviser, the Trust shall have the right to
terminate this Agreement upon nine (9) months prior written notice to
the Transfer Agent. As used in this Article 16, "affiliates of the
adviser" shall mean (i) a direct or indirect owner of 50% or more of the
outstanding common stock of the adviser (a "parent") or (ii) any company
or association whose outstanding common stock is at least 50% owned,
directly or indirectly, by the adviser or by a parent.
16.6 In the event this Agreement is terminated by the Trust
pursuant to Section 5.4, all expenses associated with the movement of
records and materials to a successor transfer agent will be borne by the
Transfer Agent. In the event of a termination pursuant to any other
sections, all expenses associated with conversion will be borne by the
Trust. The Transfer Agent shall cooperate with any such conversion to a
successor transfer agent and shall use its best efforts to mitigate the
costs associated with such transfer.
16.7 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 the Transfer Agent is the Non-Defaulting Party, its
termination of this Agreement shall not constitute a waiver of any other
rights or remedies of the Transfer Agent with respect to services
performed prior to such termination or rights of the Transfer Agent to
be reimbursed for out-of-pocket expenses incurred prior to such
termination. 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
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Party. The Defaulting Party shall not be released from any liability
with respect to such services performed prior to such termination.
16.8 In the event of termination of this Agreement by the
Trust pursuant to Sections 16.3 or 16.5:
(a) Prior to the effective date of the termination,
the Trust shall reimburse the Transfer Agent for all
unamortized costs incurred by the Transfer Agent in
establishing the Charlotte Facility.
(b) Prior to the effective date of the termination,
the Trust shall assume any and all obligations that the
Transfer Agent may have to third parties arising out of or in
connection with the Transfer Agent's operations at the
Charlotte Facility and that the Transfer Agent is not able to
terminate prior to the effective date of the termination of
this Agreement.
(c) Prior to the effective date of the terminaton, the
Trust shall pay the Transfer Agent an amount equal to 80% of
the cumulative Margin (as defined in Section 8.1) paid by the
Trust to the Transfer Agent for the twelve months preceding the
notice of termination, unless the Trust's investment adviser or
any affiliate of the adviser has acquired an entity providing
comparable transfer agency services to those provided under
this Agreement.
(d) The Trust shall reimburse the Transfer Agent for
all reasonable expenses (other than accrued vacation, sick or
other leave) incurred by the Transfer Agent in connection with
the termination of the Transfer Agent's employees located at
the Charlotte Facility, or, at the option of the Trust, the
transfer of such employees to another entity providing services
to the Trust. The Transfer Agent shall be obligated to seek to
minimize any such expenses to the extent commercially
practicable.
(e) The Transfer Agent shall transfer to the Trust all
physical assets located at the Charlotte Facility.
Article 17 Additional Portfolios
17.1 In the event that the Trust establishes one or more
Portfolios in addition to those identified initially on Schedule G, with
respect to which the Trust desires to have the Transfer Agent render
services as transfer agent under the terms hereof, the Trust shall so
notify the Transfer Agent in writing, and if the Transfer Agent agrees
in writing to provide such services (such agreement not to be withheld
unreasonably), Schedule G shall be amended to include such additional
Portfolios.
17.2 Subsequent to the effective date of this Agreement, one or
more registered investment companies (a "New Portfolio") for which
NationsBank or any of its affiliates acts as investment adviser may
become a party to this Agreement upon execution of a written adoption
agreement by such New Portfolio pursuant to which such New Portfolio
agrees to be bound by the terms of this Agreement (an "Adoption
Agreement"). Following the execution of an Adoption Agreement by a New
Portfolio, such New Portfolio shall be deemed a Portfolio for all
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purposes of this Agreement and shall have all the rights, obligations
and duties of a Portfolio under this Agreement.
Article 18 Confidentiality
18.1 In connection with the services provided by the Transfer
Agent hereunder, certain confidential and proprietary information
regarding the Transfer Agent and the Trust may be disclosed to the
other. In connection therewith, the parties agree as follows:
(a) "Confidential Information" shall mean:
(i) 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 Transfer Agent or the
Trust, their respective parent corporation,
their respective subsidiaries and affiliated
companies and the customers, clients and
suppliers of any of the foregoing;
(ii) 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 Transfer Agent or
the Trust a competitive advantage over its
competitors; and
(iii) 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.
(b) Confidential Information includes, without
limitation, all documents, inventions, substances, engineering
and laboratory notebooks, drawings, diagrams, specifications,
bills of material, equipment, prototypes and models, and any
other tangible manifestation of the foregoing which now exist
or come into the control or possession of the party.
18.2 Except as expressly authorized by prior written consent of
the disclosing party ("Discloser"), the party receiving Confidential
Information ("Recipient") shall:
(a) limit access to Discloser's Confidential
Information to Recipient's employees and agents who have a
need-to-know in connection with the subject matter thereof;
(b) advise those employees and agents who have access
to the Confidential Information of the proprietary nature
thereof and of the obligations set forth in this
Confidentiality Agreement;
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(c) take appropriate action by instruction or
agreement with the employees and agents having access to
Discloser's Confidential Information to fulfill Recipient's
obligations under this Confidentiality Agreement;
(d) safeguard all of Discloser's Confidential
Information by using a reasonable degree of care, but not less
than that degree of care used by Recipient in safeguarding its
own similar confidential information or material;
(e) use all of Discloser's Confidential
Information solely for purposes for which the Confidential
Information was conveyed; and
(f) not disclose any of Discloser's Confidential
Information, or information derived therefrom, to third
parties.
18.3 Upon Discloser's request, Recipient shall surrender to
Discloser all memoranda, notes, records, drawings, manuals, and other
documents or materials (and all copies of same) relating to or
containing Discloser's Confidential Information. When Recipient returns
the materials, Recipient shall certify in writing that it has returned
all materials containing or relating to the Confidential Information.
18.4 The obligations of confidentiality and restriction on use
in this Article 18 shall not apply to any Confidential Information that
Recipient proves:
(a) Was in the public domain prior to the date of this
Agreement or subsequently came into the public domain through
no fault of Recipient; or
(b) Was received by Recipient from a third party
without Recipient's knowledge that the third party was not
legally entitled to disclose such information; or
(c) Was already in Recipient's possession prior
to receipt from Discloser; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after reasonable legal remedies for
maintaining such information in confidence have been exhausted
including, but not limited to, giving Discloser as much advance
notice as practical of the possibility of disclosure to allow
Discloser to take appropriate legal action to seek to prevent
such disclosure; or
(e) Is subsequently and independently developed by
Recipient's employees, consultants or agents without reference
to Confidential Information.
18.5 The Trust and the Transfer Agent agree that money damages
would not be a sufficient remedy to an injured party for breach of this
Article 18. Accordingly, in addition to all other remedies that a party
may have, a party shall be entitled to specific performance and
injunctive or other equitable relief against another party as a remedy
for any breach of the obligations set forth in this Article 18. The
parties agree to waive any requirement for a bond in connection with any
such injunctive or other equitable relief.
13
18.6 The rights and obligations established by this Article
18 shall survive the termination of this Agreement.
Article 19 Force Majeure
19.1 In the event a party is unable to perform its obligations
under the terms of this Agreement because of acts of God or by reason of
circumstances beyond its control, including war, national emergencies,
strikes, labor difficulties, insurrection, riots or the failure or
unavailability of transportation or communication services or power
supplies, such party shall not be liable for damages incurred by any
other party resulting from such failure to perform. The above in no way
relieves thc Transfer Agent or the Trust of responsibility for
exercising all backup and contingency plans available and in effect at
such time and does not affect any other remedies that a party may have
under this Agreement.
Article 20 Amendments
20.1 This Agreement may only be amended or modified by a
written instrument executed by all parties except that Schedule A may be
amended in the manner set forth in Section 17.1.
Article 21 Subcontracting
21.1 The Trust agrees that the Transfer Agent, in its
discretion, may after notification to the Trust, subcontract for certain
of the services to be provided by the Transfer Agent under this
Agreement or the Schedules hereto; provided that the appointment of any
such subcontractor shall not relieve the Transfer Agent of its
responsibilities hereunder.
Article 22 Arbitration
22.1 Any claim or controversy arising out of or relating to
this Agreement, or breach hereof, shall be settled by arbitration
administrated by the American Arbitration Association in Charlotte,
North Carolina 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.
22.2 The parties hereby agree that judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
22.3 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 22.
Article 23 Notice
23.1 Any notice or other instrument authorized or required by
this Agreement to be given in writing to a party, shall be sufficiently
given if addressed to that party and received by it
14
at its office set forth below or at such other place as such party may
from time to time designate in writing.
To the Trust:
Nations Annuity Trust
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Corporate Secretary
To the Transfer Agent:
First Data Investor Services Group, Inc.
Xxx Xxxxxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to:
General Counsel (same address)
Article 24 Successors
24.1 This Agreement shall extend to and shall be binding upon
the parties hereto, and their respective successors and assigns,
provided, however, that this Agreement shall not be assigned to any
person other than a person controlling, controlled by or under common
control with the assignor without the written consent of the other
party, which consent shall not be unreasonably withheld.
Article 25 Governing Law
25.1 This Agreement shall be governed exclusively by the laws
of the Commonwealth of Massachusetts without reference to the choice of
law provisions thereof. Subject to Article 22 hereof, each party hereto
hereby (i) consents to the personal jurisdiction of the Commonwealth of
Massachusetts courts over the parties hereto, hereby waiving any defense
of lack of personal jurisdiction; and (ii) appoints the person to whom
notices hereunder are to be sent as agent for service of process.
Article 26 Counterparts
26.1 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 27 Captions
27.1 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.
15
Article 28 Use of Transfer Agent/Portfolio Name
28.1 The Trust shall not use the name of the Transfer Agent in
any Prospectus, Statement of Additional Information, Shareholders'
report, sales literature or other material relating to the Trust in a
manner not approved prior thereto in writing by the Transfer Agent;
provided, that the Transfer Agent need only receive notice of all
reasonable uses of its name which merely refer in accurate terms to its
appointment hereunder or which are required by any government agency or
applicable law or rule.
28.2 The Transfer Agent shall not use the name of a Portfolio
or material relating to a Portfolio on any documents or forms for other
than internal use in a manner not approved prior thereto in writing by
such Portfolio; provided, that the Trust need only receive notice of all
reasonable uses of its name which merely refer in accurate terms to the
appointment of the Transfer Agent as transfer agent for the Trust or
which are required by any government agency or applicable law or rule.
Article 29 Relationship of Parties
29.1 The parties agree that they are independent contractors
and not partners or co-venturers and nothing contained herein shall be
interpreted or construed otherwise.
29.2 The parties hereby acknowledge and agree that the Trust
has entered into this Agreement independently on behalf of itself and
its Portfolios which are now or may hereafter be identified on Schedule
G. Notwithstanding anything to the contrary contained in this Agreement,
(i) the Trust individually shall have the rights and obligations of a
Portfolio as set forth in this Agreement, (ii) any action by a Portfolio
in violation of this Agreement shall not affect the rights and
obligations of any other Portfolio under this Agreement, and (iii) the
Transfer Agent, in seeking to enforce any provisions of this Agreement
with respect to a Portfolio, shall look solely to the assets and
revenues of such Portfolio and that in no event shall the Transfer Agent
in seeking to enforce such obligation have recourse to the independent
assets or revenues of any other Portfolio.
Article 30 Entire Agreement; Severability
30.1 This Agreement and the Schedules attached hereto
constitute the entire agreement of the parties hereto relating to the
matters covered hereby and supersede any previous agreements. If any
provision is held to be illegal, unenforceable or invalid for any
reason, the remaining provisions shall not be affected or impaired
thereby.
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.
NATIONS ANNUITY TRUST
By:
----------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Secretary
16
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:
----------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
and Chief Operating Officer
17
Schedule A
DUTIES OF THE TRANSFER AGENT
1. Shareholder Information. The Transfer Agent shall maintain a
record of the number of Shares held by each Shareholder of record which
shall include full registration information, including, but not limited
to, name, address and taxpayer identification number and which shall
indicate whether such Shares are held in certificated or uncertificated
form.
2. Shareholder Services. The Transfer Agent shall respond as
appropriate to all inquires 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 the
Transfer Agent and the Trust.
3. Share Certificates.
(a) At the expense of the appropriate Portfolio, the
Trust shall supply the Transfer Agent with an adequate supply of blank
share certificates to meet the Transfer Agent's requirements therefor.
Such Share certificates shall be properly signed by facsimile. The Trust
agrees that, notwithstanding the death, resignation, or removal of any
officer of the Trust whose signature appears on such certificates, the
Transfer Agent or its agent may continue to countersign certificates
which bear such signatures until otherwise directed by Written
Instructions.
(b) The Transfer Agent shall issue replacement Share
certificates in lieu of certificates which have been lost, stolen or
destroyed, upon receipt by the Transfer Agent of properly executed
affidavits and lost certificate bonds, in form satisfactory to the
Transfer Agent, with the appropriate Portfolio and the Transfer Agent as
obligees under the bond.
(c) The Transfer Agent 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 in uncertificated form (i.e., no certificate being issued with
respect thereto) the Transfer Agent shall maintain comparable records of
the Shareholders thereof, including their names, addresses and taxpayer
identification number. The Transfer Agent shall further maintain a stop
transfer record on lost and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials. The
Transfer Agent will address and mail to Shareholders of the Trust, all
reports to Shareholders, dividend and distribution notices and proxy
material for the Trust's meetings of Shareholders. In connection with
meetings of Shareholders, the Transfer Agent 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.
1
5. Sales of Shares
(a) The Transfer Agent shall not be required to issue
any Shares of a Portfolio where it has received a Written Instruction
from the Trust or official notice from any appropriate authority that
the sale of the Shares of the Trust has been suspended or discontinued.
The existence of such Written Instructions or such official notice shall
be conclusive evidence of the right of the Transfer Agent 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, the Transfer Agent
will endeavor to: (i) give prompt notice of such return to the Trust 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 the
Transfer Agent may from time to time deem appropriate.
6. Transfer and Repurchase
(a) The Transfer Agent shall process all requests to
transfer or redeem Shares in accordance with the transfer or repurchase
procedures set forth in the Trust's Prospectus.
(b) The Transfer Agent 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
the Transfer Agent reasonably may deem necessary.
(c) The Transfer Agent reserves the right to refuse to
transfer or repurchase Shares until it is satisfied that the endorsement
on the instructions is valid and genuine. The Transfer Agent 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 the Transfer Agent, 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, the Transfer Agent
shall, upon receipt of the instructions and documents in proper form,
deliver to the Custodian and the appropriate Portfolio 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
the Transfer Agent reflecting outstanding Shares of the Trust and Shares
attributed to individual accounts.
(e) The Transfer Agent, upon receipt of the monies
paid 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 Instructions received by the
Transfer Agent from the Trust.
(f) The Transfer Agent shall not process or effect any
repurchase with respect to Shares of the Trust after receipt by the
Transfer Agent or its agent of notification of the suspension of the
determination of the net asset value of the Trust.
2
7. Dividends
(a) Upon the declaration of each dividend and each
capital gains distribution by the Board of Trustees of the Trust with
respect to Shares of the Trust, the Trust shall furnish or cause to be
furnished to the Transfer Agent 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 to the Transfer Agent on the payment date and
whether such dividend or distribution is to be paid in Shares at net
asset value.
(b) On or before the payment date specified in such
resolution of the Board of Trustees, the Trust will pay to the Transfer
Agent sufficient cash to make payment on such payment date to the
Shareholders of record on the record date.
(c) If, prior to the payment date, the Transfer Agent
does not receive sufficient cash from the Trust to make total dividend
and/or distribution payments to all Shareholders of the Trust as of the
record date, the Transfer Agent will, upon notifying the Trust, withhold
payment to all Shareholders of record as of the record date until
sufficient cash is provided to the Transfer Agent.
8. In addition to and neither in lieu nor in contravention of
the services set forth above, the Transfer Agent 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.
3
Schedule B
Quality Standards
(Effective October 2, 1995 as updated on September 25, 1995)
For all Portfolios, open-end and closed-end, serviced by the Transfer
Agent, under the Transfer Agency and Services Agreement (with Facilities
Management Arrangement) dated June 1, 1995, the following quality
standards shall apply. This schedule shall replace the temporary quality
standard Schedule B in the original agreement as referenced in Section
5.2.
Financials:
Subscriptions 98%
Redemptions 98%
Exchanges 98%
Non-Financials:
Maintenances 98%
Transfers 98%
Correspondence 98%
Adjustments 98%
Telephone Calls 98%
New Accounts
------------
New Account Set-ups 98%
---------------------------------------------------------------------------------------
Performance Standards
--------------------------------------------------------------------------------------
Telephone Performance Standards
--------------------------------------------------------------------------------------
Average speed of answer 20 seconds or less
----------------------------------------------------------- --------------------------
Calls abandoned 2% of calls that wait 20 seconds or more
--------------------------------------------------------------------------------------
Service level* 80%
----------------------------------------------------------- --------------------------
*Represents the percentage of calls answered within 20 seconds.
Schedule B
[List: of Initial Quality Standards based on
1994 quarterly senior management reports]
Nations Funds
Financial Transactions
Subscriptions 98%
Redemptions 98%
Exchanges 98%
Non-Financials
Maintenances 98%
Transfers 98%
New Accounts 98%
% = minimum acceptable levels
Closed End Funds
Financials 98%
Subscriptions 98%
Redemptions 98%
Exchanges 98%
Non-Financials
Certificate Processing 98%
Maintenances 98%
Transfers 98%
New Accounts 98%
% = minimum acceptable levels
Capitol Mutual Funds
Financials
Subscriptions 98%
Redemptions 98%
Exchanges 98%
Non-Financials
Maintenance 98%
Transfers 98%
New Accounts 98%
% = minimum acceptable levels
Schedule C
Schedule of Costs
1. For purposes of this Agreement, "Costs" shall mean all
internal and external costs incurred by the Transfer Agent in connection
with and properly allocated to the Services provided under the
Agreement, including, but not limited to, the costs involved with the
operation of the Charlotte Facility, those costs reasonably incurred by
the Transfer Agent to achieve the quality standards imposed on it under
the terms of this Agreement and the Transfer Agent's overhead,
depreciation and amortization costs, excepting out-of-pocket expenses
and such other costs agreed to in writing by the Transfer Agent and the
Trust.
2. The Trust shall have the right to audit, at its own expense,
the books and records of the Transfer Agent with respect to the Costs
for which the Transfer Agent seeks reimbursement under Article 8 on an
annual basis, or more frequently if the Trust has a reasonable basis to
dispute any cost for which the Transfer Agent seeks reimbursement.
3. The Transfer Agent shall use its best efforts to minimize
the costs incurred by it in connection with the provisions of services
under this Agreement to the extent such action is commercially
reasonable and consistent with the quality standards imposed under this
Agreement.
Schedule D
Non-Margin Expenses
- Facilities related expenses as incurred by the
Transfer Agent under the Facilities Management
Agreement between the Transfer Agent and NationsBank
- Out-of-Pocket expenses
- Sub-Transfer Agent Fees and Expenses
- Any other expenses agreed to in writing by the
Transfer Agent and the Trust
Schedule E
OUT-OF-POCKET EXPENSES
The Trust shall reimburse the Transfer Agent monthly for
reasonable out-of-pocket expenses incurred in connection with the
provision of Services under this Agreement, 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 Trusts
- Due diligence mailings
- Telephone and telecommunication costs, including all
lease, maintenance and line costs (excluding such
telephone and telecommunications costs provided by
NationsBank pursuant to the Facilities Agreement)
- Ad hoc reports
- Proxy solicitations, mailings and tabulatons
- Daily & Distribution advice mailings (including all periodic
statements)
- 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 Trusts
- Temporary staff, as approved by the Trusts
- Travel and entertainment, as approved by the Trusts
- Record retention, retrieval and destruction costs,
including, but not limited to exit fees charged by third
party record keeping vendors
- Third party audit reviews
- All conversion costs: including System start up costs
- Insurance
- Such other miscellaneous expenses reasonably incurred by
the Transfer Agent in performing its duties and
responsibilities under this Agreement
- Systems Programming utilizing non-dedicated systems
resources at $100 per hour
The Trust agrees that postage and mailing expenses will be paid
on the day of or prior to mailing as agreed with the Transfer Agent. In
addition, the Trust will promptly reimburse the Transfer Agent for any
other unscheduled expenses incurred by the Transfer Agent whenever the
Trust and the Transfer Agent mutually agree that such expenses are not
otherwise properly borne by the Transfer Agent as part of its duties and
obligations under the Agreement.
Schedule F
Trust Documents
- Certified copy of the Declaration of Trust of the Trust,
as amended.
- Certified copy of the By-laws of the Trust, as amended.
- Copy of the resolution of the Board of Trustees
authorizing the execution and delivery of this Agreement.
- Specimens of the certificates for Shares of the Trust, if
applicable, in the form approved by the Board of Trustees
of the Trust, with a certificate of the Secretary of the
Trust 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 Trust.
- Certified list of Shareholders of the Trust with the
name, address and taxpayer identification number of each
Shareholder, and the number of Shares of the Trust 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 Trust.
- All notices issued by the Trust with respect to the
Shares in accordance with and pursuant to the Declaration
of Trust or By-laws of the Trust or as required by law
and shall perform such other specific duties as are set
forth in the Declaration of Trust including the giving of
notice of any special or annual meetings of shareholders
and any other notices required thereby.
