Exhibit (h)(1)
Execution Copy
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EACH OF THE ENTITIES LISTED ON APPENDIX A
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties.........................................1
2. Third Party Administrators for Defined Contribution Plans ..............6
3. Fees and Expenses.......................................................7
4. Representations and Warranties of the Transfer Agent....................8
5. Representations and Warranties of the Fund..............................8
6. Wire Transfer Operating Guidelines......................................9
7. Data Access and Proprietary Information................................10
8. Indemnification........................................................12
9. Standard of Care/Limitation on Liability...............................14
10. Confidentiality .......................................................14
11. Covenants of the Fund and the Transfer Agent...........................15
12. Termination of Agreement...............................................16
13. Assignment and Third Party Beneficiaries...............................17
14. Subcontractors.........................................................18
15. Miscellaneous..........................................................18
16. Additional Funds/Portfolios............................................20
17. Limitations of Liability of the Trustees and Shareholders..............21
Appendix A Funds and Portfolios
Schedule 1.2(f) AML Delegation
Schedule 1.3 Service Level Agreement
Schedule 1.6 Simple XXX Services
Schedule 2.1 Third Party Administrator(s) Procedures
Schedule 3.1 Fees and Expenses
Schedule 9 Transfer Agent's Liability
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT made as of the 1st day of October, 2005, by and between each
of the entities listed on Appendix A hereto and each being an entity of a type
as set forth on Appendix A and organized under the laws of the state as set
forth on Appendix A, each with place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 and each of which is acting on its own behalf and on behalf
of each of the portfolios listed under its name on Appendix A, but not jointly
with any other entities listed on Appendix A (each such entity, together with
its Portfolios (as defined below), shall be severally referred to as the "Fund")
and BOSTON FINANCIAL DATA SERVICES, INC., a Massachusetts corporation having its
principal office and place of business at Xxx Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WITNESSETH:
WHEREAS, each Fund currently set forth on Appendix A is a trust registered with
the Securities and Exchange Commission as an investment company pursuant to the
Investment Company Act of 1940, as amended; and
WHEREAS, each Fund currently set forth on Appendix A is authorized to issue
shares in separate series, with each such series representing interests in a
separate portfolio of securities and other assets (each such series, together
with all other series subsequently established by the Fund and made subject to
this Agreement in accordance with Section 16 being herein referred to severally
as the Fund's "Portfolios"); and
WHEREAS, it is contemplated that additional Funds and their Portfolios may
become parties to this Agreement by mutual consent of the parties hereto and by
execution of a counterpart signature page to this Agreement subject to the
provisions of Section 16 hereto; and
WHEREAS, the Fund (as used herein "the Fund" shall refer severally to each
entity listed on Appendix A together with its Portfolios) on behalf of the
Portfolios 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.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions
set forth in this Agreement, the Fund, on behalf of the
Portfolios, hereby employs and appoints the Transfer Agent to
act as, and the Transfer Agent agrees to act as, its transfer
agent for the Fund's authorized and issued shares of its
beneficial interest ("Shares"), dividend disbursing agent and
agent in connection with any accumulation, open-account or
similar plan provided to the shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out
in the currently effective prospectus(es) and statement(s) of
additional information ("prospectus") of the Fund on behalf of
the applicable Portfolio, including without limitation any
periodic investment plan or periodic withdrawal
program. In accordance with the prospectus and the procedures
established from time to time by agreement between the Fund on
behalf of each of the Portfolios, as applicable and the Transfer
Agent, the Transfer Agent agrees that it will perform the
following services:
(a) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Fund authorized pursuant to the
Trust Instrument of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to
the Custodian;
(d) In respect to the transactions in items (a), (b) and (c)
above, the Transfer Agent shall execute transactions directly
with broker-dealers authorized by the Fund;
(e) At the appropriate time as and when it receives monies paid
to it by the Custodian with respect to any redemption, pay over
or cause to be paid over in the appropriate manner such monies
as instructed by the redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the applicable
Portfolio;
(h) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt by
the Transfer Agent of indemnification satisfactory to the
Transfer Agent and protecting the Transfer Agent and the Fund,
and the Transfer Agent at its option, may issue replacement
certificates in place of mutilated stock certificates upon
presentation thereof and without such indemnity;
(i) Issue replacement checks and place stop orders on original
checks based on Shareholder's representation that a check was
not received or was lost. Such stop orders and replacements will
be deemed to have been made at the request of the Fund, and the
Fund shall be responsible for all losses or claims resulting
from such replacement;
(j) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(k) Record the issuance of Shares of the Fund and maintain
pursuant to Rule 17Ad-10(e) under the Securities and Exchange
Act of 1934, as amended, a record of the total number of Shares
of the Fund which are authorized, based upon data provided to it
by the Fund, and issued and outstanding. The Transfer Agent
shall also provide the Fund on a regular basis with the total
number of Shares which are authorized and issued and outstanding
and shall have no obligation, when recording the issuance of
Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of the
Fund;
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(l) Maintain such bank accounts (demand deposit accounts or
"DDAs") as the Transfer Agent shall deem necessary to the
performance of its duties hereunder, including, but not limited
to, the processing of Share purchases and redemptions and the
payment of Portfolio dividends;
(m) Report abandoned property to state authorities as authorized
by the Fund in accordance with the policies and procedures
agreed upon by the Fund and the Transfer Agent;
(n) Provide Shareholder proxy coordination;
(o) Provide Shareholder account information through various
means, including but not limited to, telephone calls,
correspondence and research;
(p) Monitor transactions in the Fund for market timing activity
in accordance with the specifications and procedures agreed upon
by the parties in writing, which may be amended from time to
time. The services provided under this Section 1.1(p) will be
ministerial only and such monitoring will not subject the
Transfer Agent to any liability for failure to detect market
timing activity; provided, however that the Transfer Agent shall
be liable for its willful misconduct in connection with
performing the services in this Section 1.1(p); and
(q) Account for and administer the redemption fees on the
redemption and exchange of Shares.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph,
the Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of
a transfer agent, dividend disbursing agent and, as relevant,
agent in connection with accumulation, open-account or similar
plan (including without limitation any periodic investment plan,
DRIP or periodic withdrawal program), including but not limited
to: maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing Shareholder proxies, Shareholder reports
and prospectuses to current Shareholders, withholding taxes on
U.S. resident and non-resident alien accounts, 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, preparing and mailing
confirmation forms and statements of account to Shareholders for
all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing
activity statements for Shareholders, providing Shareholder
account information and coordinating with and overseeing the
print/mail vendor in accordance with the provisions of Section
14.1 below;
(b) Control Book (also known as "Super Sheet"). Maintain a daily
record and produce a daily report for the Fund of all
transactions and receipts and disbursements of money and
securities and deliver a copy of such report for the Fund for
each business day to the Fund
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no later than 9:00 AM Eastern Time, or such earlier time as the
Fund may reasonably require, on the next business day;
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the
Transfer Agent in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State and
(ii) verify the establishment of transactions for each State on
the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of the Transfer
Agent 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 providing a
system which will enable the Fund to monitor the total number of
Shares sold in each State;
(d) National Securities Clearing Corporation (the "NSCC"). (i)
accept and effectuate the registration and maintenance of
accounts through Networking and the purchase, redemption,
transfer and exchange of shares in such accounts through
Fund/SERV (Networking and Fund/SERV being programs operated by
the NSCC on behalf of NSCC's participants, including the Fund),
in accordance with, instructions transmitted to and received by
the Transfer Agent by transmission from NSCC on behalf of
broker-dealers and banks which have been established by, or in
accordance with the instructions of authorized persons, as
hereinafter defined on the dealer file maintained by the
Transfer Agent; (ii) issue instructions to Fund's banks for the
settlement of transactions between the Fund and NSCC (acting on
behalf of its broker-dealer and bank participants); (iii)
provide account and transaction information from the affected
Fund's records on DST Systems, Inc. computer system TA2000
("TA2000 System") in accordance with NSCC's Networking and
Fund/SERV rules for those broker-dealers; (iv) comply with NSCC
rules and procedures applicable to the Transfer Agent's use of
Networking; (v) implement and maintain procedures reasonably
designed to ensure the accuracy of all transmissions through
Networking and to limit the access to, and the imputing of data
into, Networking to persons specifically authorized by the
Transfer Agent; and (vi) otherwise perform any and all duties,
functions, procedures and responsibilities pursuant to each NSCC
matrix level and as otherwise established by NSCC from time to
time.
(e) New Procedures. New procedures as to who shall provide
certain of these services in Section 1 may be established in
writing from time to time by agreement between the Fund and the
Transfer Agent. The Transfer Agent may at times perform only a
portion of these services and the Fund or its agent may perform
these services on the Fund's behalf;
(f) Anti-Money Laundering ("AML") Delegation. The Fund has
elected to delegate to the Transfer Agent certain AML duties and
customer identification procedure ("CIP") duties under this
Agreement and the parties have agreed to such duties and terms
as stated in the attached schedule (Schedule 1.2(f) entitled
"AML Delegation"), which may be changed from time to time
subject to mutual written agreement between the parties.
(g) Laws and Regulation. The Transfer Agent will take reasonable
steps to stay informed of new securities and tax laws and
regulations which apply to the Transfer Agent's products and
services hereunder and will take reasonable steps to update its
products and/or services to comply with new securities and tax
laws and regulations applicable to its transfer agency business
in the time and manner as required by such laws and regulations.
On a quarterly basis, upon request of the Fund, the Transfer
Agent shall
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provide the Fund with a Rule 38a-1 certification substantially
in the format previously provided to the Fund in connection with
the negotiation of this Agreement. The Transfer Agent reserves
the right to amend and update the form of its Rule 38a-1
certification from time to time to comply with new or amended
requirements of applicable law or to enhance its Compliance+
program.
1.3 Service Level Agreement. The Transfer Agent shall maintain a
quality control process designed to provide a consistent level
of quality and timeliness for its call center, correspondence
services and transaction processing and level of systems
availability. The Transfer Agent's performance of the services
under this Agreement will be measured against service levels and
standards ("SLAs"), which will be established in good faith by
mutual written agreement of the parties and shall be made a part
of this Agreement as Schedule 1.3.
1.4 Facsimile Communications.
(a) The Fund hereby authorizes and instructs the Transfer Agent,
as transfer agent for the Portfolios listed on Appendix A: (i)
to accept facsimile transaction requests on behalf of individual
Shareholders received from broker/dealers of record, third-party
administrators ("TPAs") or the Fund; (ii) that the
broker/dealers, TPAs and the Fund are duly authorized to
initiate such transactions on behalf of the Shareholders; and
(iii) that the original source documentation is in good order
and the broker/dealers, TPAs or the Fund will retain such
documentation.
(b) The Transfer Agent acknowledges that requests for a change
in wiring instructions or for redemptions, the proceeds of which
are to be paid to third parties or wired to an account other
than the account of record, may not be accepted by facsimile
transmission in accordance with the Fund's current prospectus.
The Transfer Agent will not accept facsimile requests for the
foregoing unless and until such time as the Fund's prospectus
permits the acceptance of such instructions by facsimile.
1.5 E-Mail Communications.
(a) The Fund hereby instructs the Transfer Agent, as transfer
agent for the Portfolios listed on Appendix A, to accept
instructions using e-mail ("E-mail Communications"), as further
set out below. The Fund instructs the Transfer Agent to accept
such E-mail Communications to and from the Fund. The Fund
acknowledges that the Transfer Agent will not act on E-mail
Communications to it coming directly from Shareholders.
(b) The Fund acknowledges that the Transfer Agent is not
extending any warranties or making any representations with
respect to the services of any internet services provider. Any
delays or errors attributable to the non-functioning of the
internet is at the risk of the Fund. The Fund has been advised
by the Transfer Agent that E-mail Communications to or from the
Transfer Agent may not be encrypted.
(c) The Fund, when submitting instructions via e-mail, will be
responsible for determining that any original source
documentation supporting such instructions is in good order and
for retaining such original documentation.
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1.6 SIMPLE IRAs.
(a) Background. The Fund, if such Fund executes Schedule 1.6
hereto and only in such event, intends to make available to
certain of its customers who are employers ("Employers") SIMPLE
XXX plans within the meaning of Section 408(p) of the Internal
Revenue Code of 1986, as amended (the "Code"), ("SIMPLE IRAs")
pursuant to which Employers may adopt a SIMPLE XXX for the
benefit of their individual employees ("Participants"). The
Transfer Agent, at the request of the Fund, shall arrange for
the provision of ministerial data processing and record-keeping
services for such SIMPLE IRAs as specified in Schedule 1.6.
(b) Investment Directions. The parties agree that the Transfer
Agent shall have no investment responsibility or liability for
the selection of investments made by Employers or Participants
with respect to any SIMPLE IRAs. The Transfer Agent will accept
investment directions from Participants regarding their SIMPLE
XXX. Employers of the SIMPLE IRAs shall deliver directions to
Transfer Agent regarding the investment of the SIMPLE IRAs'
assets for which no Participant directions are received or where
implementing Participant directions is administratively
infeasible.
2. Third Party Administrators for Defined Contribution Plans
2.1 The Fund may decide to make available to certain of its
customers, a qualified plan program (the "Program") pursuant to
which Employers may adopt certain plans of deferred compensation
("Plan or Plans") for the benefit of the individual Plan
participant (the "Plan Participant"), such Plan(s) being
qualified under Section 401(a) of the Code and administered by
TPA(s) which may be plan administrators as defined in the
Employee Retirement Income Security Act of 1974, as amended.
2.2 In accordance with the procedures established in the initial
Schedule 2.1 entitled "Third Party Administrator Procedures", as
may be amended by the Transfer Agent and the Fund from time to
time ("Schedule 2.1"), the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the
name of the trustees, Plans or TPAs as the case may be as
omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the
TPA or its designee as the trustee for the benefit of the Plan;
and
(c) Perform all services under Section 1 as transfer agent of
the Fund and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall
be deemed exception services ("Exception Services")
when such transactions:
(a) Require the Transfer Agent to use methods and procedures
other than those usually employed by the Transfer Agent to
perform services under Section 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent
after the commencement of the nightly processing cycle of the
TA2000 System; or
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(c) Require more manual intervention by the Transfer Agent,
either in the entry of data or in the modification or amendment
of reports generated by the TA2000 System, than is usually
required by non-retirement plan and pre-nightly transactions.
3. Fees and Expenses
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant
to this Agreement, the Fund agrees to pay the Transfer Agent an
annual maintenance fee for each Shareholder account as set forth
in the attached fee schedule ("Schedule 3.1"). Such fees and
out-of-pocket expenses and advances identified under Section 3.2
below may be changed from time to time subject to mutual written
agreement between the Fund and the Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under
Section 3.1 above, the Fund agrees to reimburse the Transfer
Agent for out-of-pocket expenses in accordance with the terms of
Schedule 3.1 attached hereto.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports
and other mailings to all shareholder accounts shall be advanced
to the Transfer Agent by the Fund at least seven (7) days prior
to the mailing date of such materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable
expenses within thirty (30) days following the receipt of the
respective billing notice, except for any fees or expenses that
are subject to good faith dispute. In the event of such a
dispute, the Fund may only withhold that portion of the fee or
expense subject to the good faith dispute. The Fund shall notify
the Transfer Agent in writing within twenty-one (21) calendar
days following the receipt of each billing notice if the Fund is
disputing any amounts in good faith. If the Fund does not
provide such notice of dispute within the required time, the
billing notice will be deemed accepted by the Fund. The Fund
shall settle such disputed amounts within five (5) days of the
day on which the parties agree on the amount to be paid by
payment of the agreed amount. If no agreement is reached, then
such disputed amounts shall be settled as may be required by law
or legal process.
3.5 Cost of Living Adjustment. Unless otherwise agreed to at the
time of renewal, commencing in the initial year of the first
Renewal Term (if any), the total fee for all services for that
year and for each successive year of that or any subsequent
Renewal Term shall equal the fee that would be charged for the
same services based on a fee rate (as reflected in a fee rate
schedule) increased by the percentage increase for the
twelve-month period of such previous calendar year of the CPI-W
(defined below), or, in the event that publication of such Index
is terminated, any successor or substitute index, appropriately
adjusted, acceptable to both parties. As used herein, "CPI-W"
shall mean the Consumer Price Index for Urban Wage Earners and
Clerical Workers for Boston-Brockton-Nashua, MA-NH-ME-CT, (Base
Period: 1982-84 = 100), as published by the United States
Department of Labor, Bureau of Labor Statistics.
4. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund that:
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4.1 It is a corporation duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The
Commonwealth of Massachusetts.
4.3 It is empowered under applicable laws and by its Articles of
Organization and By-Laws to enter into and perform this
Agreement.
4.4 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
5. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a trust duly organized and existing and in good standing
under the laws of the state of its organization as set forth on
Appendix A.
5.2 It is empowered under applicable laws and by its Agreement and
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
5.3 All corporate proceedings required by said Agreement and
Declaration of Trust and By-Laws have been taken to authorize it
to enter into and perform this Agreement.
5.4 The Fund and each of its Portfolios is an open-end management
investment company registered under the Investment Company Act
of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as
amended, is currently effective and will remain effective, and
appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares being offered
for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code
6.1 Obligation of Sender. The Transfer Agent is authorized to
promptly debit the appropriate Fund account(s) upon the receipt
of a payment order in compliance with the selected security
procedure (the "Security Procedure") chosen for funds transfer
and in the amount of money that the Transfer Agent has been
instructed to transfer. The Transfer Agent shall execute payment
orders in compliance with the Security Procedure and with the
Fund instructions on the execution date provided that such
payment order is received by the customary deadline for
processing such a request, unless the payment order specifies a
later time. All payment orders and communications received after
the customary deadline will be deemed to have been received the
next business day.
6.2 Security Procedure. The Fund acknowledges that the Security
Procedure it has designated on the Fund Selection Form was
selected by the Fund from security
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procedures offered by the Transfer Agent. The Fund shall
restrict access to confidential information relating to the
Security Procedure to authorized persons as communicated to the
Transfer Agent in writing. The Fund must notify the Transfer
Agent immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any
change in the Fund's authorized personnel. The Transfer Agent
shall verify the authenticity of all Fund instructions according
to the Security Procedure.
6.3 Account Numbers. The Transfer Agent shall process all payment
orders on the basis of the account number contained in the
payment order. In the event of a discrepancy between any name
indicated on the payment order and the account number, the
Transfer Agent shall use commercially reasonable efforts to
resolve the discrepancy. For all discrepancies that remain
unresolved after the use of commercially reasonable efforts, the
account number shall take precedence and govern.
6.4 Rejection. The Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a) is
in excess of the collected balance in the account to be charged
at the time of the Transfer Agent's receipt of such payment
order; (b) if initiating such payment order would cause the
Transfer Agent, in the Transfer Agent's sole judgement, to
exceed any volume, aggregate dollar, network, time, credit or
similar limits which are applicable to the Transfer Agent; or
(c) if the Transfer Agent, in good faith, is unable to satisfy
itself that the transaction has been properly authorized.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable
best efforts to act on all authorized requests to cancel or
amend payment orders received in compliance with the Security
Procedure provided that such requests are received in a timely
manner affording the Transfer Agent reasonable opportunity to
act. However, the Transfer Agent assumes no liability if the
request for amendment or cancellation cannot be satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for
failure to detect any erroneous payment order provided that the
Transfer Agent complies with the payment order instructions as
received and the Transfer Agent complies with the Security
Procedure. The Security Procedure is established for the purpose
of authenticating payment orders only and not for the detection
of errors in payment orders.
6.7 Interest. The Transfer Agent shall assume no responsibility for
lost interest with respect to the refundable amount of any
unauthorized payment order, unless the Transfer Agent is
notified of the unauthorized payment order within thirty (30)
days of notification by the Transfer Agent of the acceptance of
such payment order.
6.8 ACH Credit Entries/Provisional Payments. When the Fund initiates
or receives Automated Clearing House credit and debit entries
pursuant to these Section 6 guidelines and the rules of the
National Automated Clearing House Association and the New
England Clearing House Association, State Street Bank and Trust
Company will act as an Originating Depository Financial
Institution and/or Receiving Depository Financial Institution,
as the case may be, with respect to such entries. Credits given
by the Transfer Agent with respect to an ACH credit entry are
provisional until the Transfer Agent receives final settlement
for such entry from the Federal Reserve Bank. If the Transfer
Agent does not receive such final settlement, the Fund agrees
that the Transfer Agent shall receive a refund of the amount
credited to the Fund in connection with such entry,
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and the party making payment to the Fund via such entry shall
not be deemed to have paid the amount of the entry.
6.9 Confirmation. Confirmation of Transfer Agent's execution of
payment orders shall ordinarily be provided within twenty four
(24) hours notice of which may be delivered through the Transfer
Agent's proprietary information systems, or by facsimile or
call-back. Fund must report any objections to the execution of
an order within thirty (30) days.
7. Data Access and Proprietary Information
7.1 The Fund acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques,
and documentation manuals furnished to the Fund by the Transfer
Agent as part of the Fund's ability to access certain
Fund-related data maintained by the Transfer Agent on databases
under the control and ownership of the Transfer Agent or other
third party ("Data Access Services") constitute copyrighted,
trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to the Transfer
Agent or other third party. In no event shall Proprietary
Information be deemed to include Customer Data (as defined in
Section 10.1 below) which shall remain proprietary to the Fund.
The Fund agrees to treat all Proprietary Information as
proprietary to the Transfer Agent and further agrees that it
shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without
limiting the foregoing, the Fund agrees for itself and its
employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's
computers or those of the Fund's investment adviser,
administrator or distributor, or (ii) solely from equipment at
the location agreed to between the Fund and the Transfer Agent
and (iii) solely in accordance with the Transfer Agent's
applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than
in the normal course of performing processing on the Fund's
computer(s) or those of the Fund's investment adviser,
administrator or distributor), the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of
the Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose
of such information in accordance with the Transfer Agent's
instructions;
(d) Refrain from causing or allowing information transmitted
from the Transfer Agent's computer to the Fund's terminal or
that of the Fund's investment adviser, administrator or
distributor to be retransmitted to any other computer terminal
or other device except as expressly permitted by the Transfer
Agent (such permission not to be unreasonably withheld); and
(e) Honor all reasonable written requests made by the Transfer
Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law,
under federal copyright law and under other federal or state
law.
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Notwithstanding the foregoing, the Transfer Agent acknowledges
that the Fund may share the Proprietary Information of the
Transfer Agent with the Fund's investment adviser, administrator
or distributor or any of their affiliates; provided that such
parties are subject to obligations of confidentiality to the
Fund with regard to such Proprietary Information of the Transfer
Agent no less stringent than those set forth in this Agreement
7.2 Proprietary Information shall not include all or any portion of
any of the foregoing items that: (i) are or become publicly
available without breach of this Agreement; (ii) are released
for general disclosure by a written release by the Transfer
Agent; or (iii) are already in the possession of the receiving
party at the time of receipt without obligation of
confidentiality or breach of this Agreement.
7.3 The Fund acknowledges that its obligation to protect the
Transfer Agent's Proprietary Information is essential to the
business interest of the Transfer Agent and that the disclosure
of such Proprietary Information in breach of this Agreement
would cause the Transfer Agent immediate, substantial and
irreparable harm, the value of which would be extremely
difficult to determine. Accordingly, the parties agree that, in
addition to any other remedies that may be available in law,
equity, or otherwise for the disclosure or use of the
Proprietary Information in breach of this Agreement, the
Transfer Agent shall be entitled to seek and obtain a temporary
restraining order, injunctive relief, or other equitable relief
against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data
Access Services do not operate in material compliance with the
most recently issued user documentation for such services, the
Transfer Agent shall endeavor in a timely manner to correct such
failure. Organizations from which the Transfer Agent may obtain
certain data included in the Data Access Services are solely
responsible for the contents of such data and the Fund agrees to
make no claim against the Transfer Agent arising out of the
contents of such third-party data, including, but not limited
to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER
PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION
THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE
TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE
EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order
to (i) effect the transfer or movement of cash or Shares or (ii)
transmit Shareholder information or other information, then in
such event the Transfer Agent shall be entitled to rely on the
validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established by
the Transfer Agent from time to time and agreed to by the Fund.
7.6 Each party shall take reasonable efforts to advise its employees
of their obligations pursuant to this Section 7. The obligations
of this Section shall survive any earlier termination of this
Agreement.
11
8. Indemnification
8.1 The Transfer Agent shall not be responsible for, and the Fund
shall indemnify and hold the Transfer Agent harmless, and with
respect to Section 8.1(f) herein, also State Street Bank and
Trust Company ("State Street"), from and against, any and all
losses, damages, costs, charges, reasonable counsel fees
(including the defense of any law suit in which the Transfer
Agent or its affiliate is a named party), payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and without
negligence or willful misconduct;
(b) The Fund's lack of good faith, negligence or willful
misconduct;
(c) The reliance upon, and any subsequent use of or action taken
or omitted, by the Transfer Agent, or its agents or
subcontractors on: (i) any information, records, documents,
data, stock certificates or services, which are received by the
Transfer Agent or its agents or subcontractors by machine
readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Fund, and
which have been prepared, maintained or performed by the Fund or
any other person or firm on behalf of the Fund including but not
limited to any broker-dealer, TPA or previous transfer agent;
(ii) any instructions or requests of the Fund or any of its
officers; (iii) any instructions or opinions of legal counsel
with respect to any matter arising in connection with the
services to be performed by the Transfer Agent under this
Agreement which are provided to the Transfer Agent after
consultation with such legal counsel; or (iv) any paper or
document, reasonably believed to be genuine, authentic, or
signed by the proper person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other
determination or ruling by any federal or any state agency with
respect to the offer or sale of such Shares;
(e) The acceptance of facsimile transaction requests on behalf
of individual Shareholders received from broker-dealers, TPAs or
the Fund, and the reliance by the Transfer Agent on the
broker-dealer, TPA or the Fund ensuring that the original source
documentation is in good order and properly retained;
(f) The negotiation and processing of any checks, wires or ACH
transmissions (including in connection with payroll or MSA
transmissions) including without limitation for deposit into, or
credit to, the Fund's demand deposit account maintained by the
Transfer Agent;
(g) Upon the Fund's request entering into any agreements
required by the NSCC for the transmission of Fund or Shareholder
data through the NSCC clearing systems; or
(h) The breach of any representation or warranty set forth in
Section 5 above.
12
8.2 To the extent the Transfer Agent is not entitled to
indemnification pursuant to Section 8.1 above, the Fund shall
not be responsible for, and the Transfer Agent shall indemnify
and hold the Fund, its Board of Trustees, officers, employees
and agents, harmless from and against any losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and
liability arising directly out of or attributable to any action
or failure of the Transfer Agent to act as a result of the
Transfer's Agent's lack of good faith, negligence or willful
misconduct in the performance of its services hereunder or the
breach of any representation or warranty set forth in Section 4
above.
8.3 In order that the indemnification provisions contained in this
Section 8 shall apply, upon the assertion of an indemnification
claim, the party seeking the indemnification shall promptly
notify the other party of such assertion, and shall keep the
other party advised with respect to all developments concerning
such claim. The Fund shall have the option to participate with
the Transfer Agent in the defense of such claim or to defend
against said claim in its own name or that of the Transfer
Agent. The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in which
the other party may be required to indemnify it except with the
indemnifying party's written consent, which consent shall not be
unreasonably withheld.
9. Standard of Care/Limitation of Liability
The Transfer Agent shall at all times act in good faith and
agrees to use its best efforts within reasonable limits to
ensure the accuracy of all services performed under this
Agreement, but assumes no responsibility and shall not be liable
for loss or damage due to errors, including encoding and payment
processing errors, unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its
employees or agents. The parties agree that any encoding or
payment processing errors shall be governed by this standard of
care and Section 4-209 of the Uniform Commercial Code is
superseded by Section 9 of this Agreement. This standard of care
also shall apply to Exception Services, as defined in Section
2.3 herein, but such application shall take into consideration
the manual processing involved in, and time sensitive nature of,
Exception Services. Notwithstanding the foregoing, the Transfer
Agent's aggregate liability during any term of this Agreement,
whether in contract, or in tort, or otherwise shall be as
determined and as set forth on Schedule 9 to this Agreement.
10. Confidentiality
10.1 (a) The Transfer Agent and the Fund agree that they will not, at
any time during the term of this Agreement or after its
termination, reveal, divulge, or make known to any person, firm,
corporation or other business organization, any customers'
lists, trade secrets, cost figures and projections, profit
figures and projections, or any other secret or confidential
information whatsoever, whether of the Transfer Agent or of the
Fund, used or gained by the Transfer Agent or the Fund during
performance under this Agreement (such party's "Confidential
Information"). The Fund and the Transfer Agent further covenant
and agree to retain all such Confidential Information of the
other party whatsoever in trust for the sole benefit of the
Transfer Agent or the Fund and their successors and assigns. In
the event of breach of the foregoing by either party, the
remedies provided by Section 7.3 shall be available to the party
whose confidential information is disclosed. The Transfer Agent
acknowledges that the Fund may share the Confidential
Information of the
13
Transfer Agent with the Fund's investment adviser, administrator
and distributor and any of their affiliates, agents, legal
counsel and consultants provided that such parties are subject
to obligations of confidentiality to the Fund with regard to
such Confidential Information of the Transfer Agent no less
stringent than those set forth in this Agreement.
(b) The Transfer Agent represents, covenants, and warrants that
Transfer Agent will use the nonpublic personal information of
the Fund's Shareholders ("Customer Data") only in compliance
with (i) this Agreement, (ii) its own Privacy and Information
Sharing Policy, as amended from time to time, (iii) the
Xxxxx-Xxxxx-Xxxxxx Act (the "GLB Act") and Regulation S-P
promulgated thereunder to the extent each is specifically
applicable to its transfer agency business, and (iv) as directed
by authorized persons of the Fund in writing and will not,
except as set forth above, at any time during the term of this
Agreement or after its termination, reveal, divulge or make
known to any person, firm or other business organization any
Customer Data as obtained by the Transfer Agent in performance
of its services pursuant to this Agreement.
10.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Fund, other than
request for records of Shareholders pursuant to standard
subpoenas from state or federal government authorities (i.e.,
divorce and criminal actions), the Transfer Agent will use best
efforts to notify the Fund and to secure instructions from an
authorized officer of the Fund as to such inspection. The
Transfer Agent expressly reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by
counsel that it may be held liable for the failure to exhibit
the Shareholder records to such person or if required by law or
court order.
11. Covenants of the Fund and the Transfer Agent
11.1 The Fund shall promptly furnish to the Transfer Agent the
following:
(a) A certified copy of the resolution of the Board of Trustees
of the Fund authorizing the appointment of the Transfer Agent
and the execution and delivery of this Agreement; and
(b) A copy of the Agreement and Declaration of Trust and By-Laws
of the Fund and all amendments thereto.
11.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for
safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such certificates, forms and
devices.
11.3 The Transfer Agent shall keep records relating to the services
to be performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the
Investment Company Act of 1940, as amended, and the rules
thereunder, the Transfer Agent agrees that all such records
prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are the
property of the Fund and will be preserved, maintained and made
available in accordance with such Section and rules thereunder,
and will be surrendered promptly to the Fund on and in
accordance with its request.
14
11.4 The Transfer Agent shall maintain a fidelity bond covering
larceny and embezzlement and an insurance policy with respect to
directors' and officers' errors and omissions coverage in
amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Fund, the
Transfer Agent shall provide evidence that coverage is in place.
The Transfer Agent shall notify the Fund should its insurance
coverage with respect to professional liability or errors and
omissions be canceled. Such notification shall include the date
of cancellation and the reasons therefore. The Transfer Agent
shall notify the Fund of any material claims against it with
respect to the services provided under this Agreement to the
Fund, whether or not they may be covered by insurance, and shall
notify the Fund should the total outstanding claims made by the
Transfer Agent under its insurance coverage materially impair,
or threaten to materially impair, the adequacy of its coverage.
12. Termination of Agreement
12.1 Term. The initial term of this Agreement (the "Initial Term")
shall be three (3) years from the date first stated above unless
terminated pursuant to the provisions of this Section 12. Unless
a terminating party gives written notice to the other party at
least one hundred and twenty (120) days before the expiration of
the Initial Term or any Renewal Term (as defined herein), this
Agreement will renew automatically for an additional one-year
term and, thereafter, for successive one-year terms (each such
year-to-year renewal term, a "Renewal Term"). Notwithstanding
the foregoing, during a Renewal Term, this Agreement may be
terminated by either party upon at least one hundred and twenty
(120) days' written notice to the other party. The notification
requirements herein shall not apply to a termination for cause,
which shall be governed by the provisions of Section 12.6 below.
One hundred and twenty (120) days before the expiration of the
Initial Term or a Renewal Term the parties to this Agreement
will agree upon a Fee Schedule for the upcoming Renewal Term.
Otherwise, the fees shall be increased pursuant to Section 3.5
of this Agreement.
12.2 Early Termination. Notwithstanding anything contained in this
Agreement to the contrary, should the Fund desire to move any of
its services provided by the Transfer Agent hereunder to a
successor service provider prior to the expiration of the
then-current Initial or Renewal Term, or without the required
notice, the Transfer Agent shall make a good faith effort to
facilitate the conversion on such prior date; however, there can
be no guarantee or assurance that the Transfer Agent will be
able to facilitate a conversion of services on such prior date.
In connection with the foregoing, if during the Initial Term,
the Fund should convert all or substantially all of such
services to a successor service provider, or if the Fund or
substantially all of its Portfolios are liquidated or all or
substantially all of its assets are merged or purchased or the
like with or by another entity which does not utilize the
services of the Transfer Agent, its affiliates or the TA2000
platform as set forth below, the fees payable to the Transfer
Agent shall be calculated as if the services had been performed
by the Transfer Agent until the expiration of the Initial Term
and calculated at the asset and/or Shareholder account levels,
as the case may be, on the date notice of termination was given
to the Transfer Agent, and the payment of all fees to the
Transfer Agent as set forth herein shall be accelerated to the
business day immediately prior to the conversion or termination
of services (the "Early Termination Fee"). In the event that (i)
the Fund terminates this Agreement as the result of its
acquisition by or merger into another fund and such other fund's
shareholder records are, at
15
the time of such acquisition or merger, maintained by the
Transfer Agent or its affiliates, or (ii) the Fund wishes to
move its transfer agency servicing operation from the Transfer
Agent to an affiliated entity or another DST TA2000 platform
(i.e., become a remote user of DST's TA2000 system) as the
result of Fund's acquisition by or merger into another fund,
then the parties agree to negotiate in good faith to determine
whether or to what extent the Early Termination Fee shall apply
to such termination.
12.3 Termination Expenses and Costs. During the Initial Term or
Renewal Term, whichever currently is in effect, should either
party exercise its right to terminate, all out-of-pocket
expenses or costs associated with the movement of records and
material will be borne by the Fund. Additionally, the Transfer
Agent reserves the right to charge for any other reasonable
expenses associated with such termination.
12.4 Confidential Information. Upon termination of this Agreement,
each party shall return to the other party all copies of
confidential or proprietary materials or information received
from such other party hereunder, other than materials or
information required to be retained by such party under
applicable laws or regulations. Each party hereby agrees to
dispose of any "consumer report information," as such term is
defined under Regulation S-P promulgated under the GLB Act, in
accordance with the provisions of Regulation S-P and the GLB Act
applicable to its respective business.
12.5 Unpaid Invoices. Except with respect to any amount subject to a
good faith dispute within the meaning of Section 3.4 of this
Agreement, the Transfer Agent may terminate this Agreement in
the event that an invoice payable by the Fund to the Transfer
Agent remains outstanding for more than ninety (90) days;
provided that the Transfer Agent has provided written notice to
the Fund at least thirty (30) days prior to such termination
(which notice may be provided prior to the expiration of the
ninety (90) day period).
12.6 Termination by either Party for Cause. In the event that: (i)
the Transfer Agent defaults in the performance of its
obligations under Schedule 1.3 "Service Level Agreement" in
accordance with the terms of such schedule and, as a result
thereof, the Fund is entitled to exercise a Service Level
Termination Right as defined in such schedule or (ii) either
party fails perform its duties hereunder (including any material
interruption or cessation of its operations), which failure
materially adversely affects the business operations of the
other party and which failure continues for thirty (30) days
after receipt of written notice from the first party, unless
such failure is excused under the terms of Schedule 1.3 or
Section 15.3 (Force Majeure) of this Agreement, such
non-defaulting party may terminate this Agreement by giving
written notice to the other party as of the termination date
specified in the notice of termination. The Transfer Agent shall
make a good faith effort to facilitate conversion as described
in Section 12.2 above. In the event of a termination by the Fund
for cause, the Fund shall not be obligated to pay the Early
Termination Fee as defined in Section 12.2 above.
13. Assignment and Third Party Beneficiaries
13.1 Except as provided in Section 14.1 below neither this Agreement
nor any rights or obligations hereunder may be assigned by
either party without the written consent of the other party. Any
attempt to do so in violation of this Section shall be void.
Unless specifically stated to the contrary in any written
consent to an assignment, no assignment
16
will release or discharge the assignor from any duty or
responsibility under this Agreement. For the avoidance of doubt,
a transaction involving a merger or sale of substantially all of
the assets of a Portfolio or a Fund shall not require the
written consent of the Transfer Agent.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or
benefits in this Agreement to anyone other than the Transfer
Agent and the Fund, and the duties and responsibilities
undertaken pursuant to this Agreement shall be for the sole and
exclusive benefit of the Transfer Agent and the Fund. This
Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
13.3 This Agreement does not constitute an agreement for a
partnership or joint venture between the Transfer Agent and the
Fund. Other than as provided in Section 14.1 and Schedule
1.2(f), neither party shall make any commitments with third
parties that are binding on the other party without the other
party's prior written consent.
14. Subcontractors
14.1 The Transfer Agent may, without further consent on the part of
the Fund, subcontract for the performance hereof with an
affiliate of the Transfer Agent duly registered as a transfer
agent or, with regard to print/mail services, with another
affiliate or provider; provided, however, that consent of the
Fund shall be required with regard to print/mail services which
the Fund currently maintains by a separate agreement. The
Transfer Agent shall be fully responsible to the Fund for the
acts and omissions of its affiliate as it is for its own acts
and omissions. With regard to print/mail services that are
provided by a vendor not affiliated with the Transfer Agent, the
Transfer Agent will use all reasonable commercial efforts to
coordinate with such outside print/mail vendor and to timely and
accurately provide all information requested by such print/mail
vendor; provided, however, that the Transfer Agent shall not be
held liable to the Fund or any affiliated party of the Fund for
any act or failure to act by such outside print/mail vendor
except where the Transfer Agent's negligent acts or omissions
were the proximate cause of such vendor's non-performance.
14.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the
actions or omissions to act of unaffiliated third parties such
as by way of example and not limitation, Airborne Services,
Federal Express, United Parcel Service, the U.S. Mails, the NSCC
and telecommunication companies, provided that, if the Transfer
Agent selected such company, the Transfer Agent shall have
exercised due care in selecting the same.
15. Miscellaneous
15.1 Amendment. This Agreement may be amended or modified only by a
written agreement executed by both parties.
15.2 Massachusetts Law to Apply. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance
with the laws of The Commonwealth of Massachusetts.
17
15.3 Force Majeure. In the event either party is unable to perform
its obligations under the terms of this Agreement because of
acts of God, acts of war or terrorism, strikes, equipment or
transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not
be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes;
provided, however, that this provision shall not imply that the
Transfer Agent is excused from maintaining reasonable business
continuity plans to address potential service outages.
15.4 Consequential Damages. Neither party to this Agreement shall be
liable to the other party for special, indirect or consequential
damages under any provision of this Agreement or for any
special, indirect or consequential damages arising out of any
act or failure to act hereunder.
15.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or
protections of proprietary rights and trade secrets shall
survive the termination of this Agreement.
15.6 Severability. If any provision or provisions of this Agreement
shall be held invalid, unlawful, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired.
15.7 The Parties. All references herein to the "Fund" are to each of
the management investment companies listed on Appendix A hereto,
and each management company made subject to this Agreement in
accordance with Section 16 below, individually, as if the
Agreement were between each such Fund and the Transfer Agent. In
the case of a series trust, all references to "Portfolio" are to
the individual series or portfolio of such trust or to such
trust on behalf of the individual series or portfolio, as
appropriate.
15.8 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this
Agreement and any Schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
15.9 Waiver. No waiver by either party or any breach or default of
any of the covenants or conditions herein contained and
performed by the other party shall be construed as a waiver of
any succeeding breach of the same or of any other covenant or
condition.
15.10 Merger of Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior
agreement with respect to the subject matter hereof whether oral
or written.
15.11 Counterparts. This Agreement may be executed by the parties
hereto in any number of counterparts, and all of said
counterparts taken together shall be deemed to constitute one
and the same instrument.
15.12 Reproduction of Documents. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each
18
agree that any such reproduction shall be admissible in evidence
as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile
or further reproduction shall likewise be admissible in
evidence.
15.13 Notices. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class
mail, postage prepaid, addressed as follows or to such other
address or addresses of which the respective party shall have
notified the other.
(a) If to Boston Financial Data Services, Inc., to:
Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to an entity set forth on Appendix A hereto,
to:
Secretary of the Fund
c/o General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
16. Additional Funds/Portfolios
In the event that the Fund establishes one or more series of Shares, in
addition to those listed on the attached Appendix A, with respect to
which it desires to have the Transfer Agent render services as transfer
agent under the terms hereof, it shall so notify the Transfer Agent in
writing, and if the Transfer Agent agrees in writing to provide such
services, such series of Shares shall become a Portfolio hereunder.
Furthermore, in the event that one or more additional funds affiliated
with the Fund desire(s) to have the Transfer Agent render services as
transfer agent under the terms hereof, such fund or funds shall so
notify the Transfer Agent in writing, and if the Transfer Agent agrees
in writing to provide such services, such fund or funds, together with
their portfolios, may become parties to this Agreement by execution of a
counterpart signature page hereto.
In the event that new affiliated funds and their portfolios become
parties to this Agreement, the fees and expenses set forth on Schedule
3.1 shall apply to such funds and portfolios for their applicable
initial term or renewal term, provided that the requirements of such
funds and portfolios are generally consistent with the services then
being provided by the Transfer Agent under this Agreement to the Fund
and its Portfolios. Notwithstanding the foregoing, however, at such time
as the number of CUSIPs serviced by the Transfer Agent for all IXIS
Advisor and Xxxxxx Xxxxxx funds and their affiliated funds has increased
by forty percent (40%) or more from the number of CUSIPs serviced by the
Transfer Agent on the first date of this Agreement (as to all IXIS
Advisor and
19
Xxxxxx Xxxxxx funds and their affiliates together) the parties agree to
review and, if necessary, negotiate the fees and expenses set forth on
Schedule 3.1 for the Fund and its Portfolios and any new affiliated
funds and their portfolios in light of the additional administrative,
technical and other service costs imposed on the Transfer Agent by such
additional services.
17. Limitations of Liability of the Trustees and Shareholders
A copy of the Agreement and Declaration of Trust of each Fund listed on
Appendix A is on file with the Secretary of the Commonwealth of
Massachusetts, and notice is hereby given that this instrument is
executed by an officer of the Trust on behalf of the Trustees of the
Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or
Shareholders individually but are binding only upon the assets and
property of the Fund.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
IXIS ADVISOR CASH MANAGEMENT TRUST
IXIS ADVISOR FUNDS TRUST I
IXIS ADVISOR FUNDS TRUST II
IXIS ADVISOR FUNDS TRUST III
IXIS ADVISOR FUNDS TRUST IV
XXXXXX XXXXXX FUNDS I
XXXXXX XXXXXX FUNDS II
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
-------------------------------
Title: Chief Operating Officer
------------------------------
As an Authorized Officer on behalf of
each of the Funds listed above.
ATTEST:
/s/ Xxxxxx Xxxxx Xxxxxxx
---------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxxxx Xxx
---------------------------------
Name: Xxxxxxx Xxx
-------------------------------
Title: Senior Vice President
------------------------------
ATTEST:
/s/ Xxxxxxxxx Xxxxx
---------------------------------
21
APPENDIX A
Funds and Portfolios
Dated: October 1, 2005
IXIS Advisor Cash Management Trust, a business trust organized under the laws of
the Commonwealth of Massachusetts
IXIS Cash Management Trust - Money Market Series (formerly, CDC Nvest
Cash Management Trust - Money Market Series)
IXIS Advisor Funds Trust I, a business trust organized under the laws of the
Commonwealth of Massachusetts
CGM Advisor Targeted Equity Fund
Xxxxxxxxxx International Fund
IXIS U.S. Diversified Portfolio (formerly, CDC Nvest Star Advisers Fund)
IXIS Value Fund (formerly, CDC Nvest Star Value Fund)
Xxxxxx Xxxxxx Core Plus Bond Fund
Xxxxxxx Xxxxxx Small Cap Value Fund
Westpeak Capital Growth Fund
IXIS Advisor Funds Trust II , a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Associates Large Cap Value Fund
Xxxxxx Xxxxxx Massachusetts Tax Free Income Fund
IXIS Advisor Funds Trust III, a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Associates Focused Value Fund
IXIS Equity Diversified Portfolio
IXIS Moderate Diversified Portfolio (formerly, CDC IXIS Moderate
Diversified Portfolio)
IXIS Advisor Funds Trust IV, a business trust organized under the laws of the
Commonwealth of Massachusetts
AEW Real Estate Fund
Xxxxxx Xxxxxx Funds I, a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Xxxxxx Bond Fund
Xxxxxx Xxxxxx Fixed Income Fund
Appendix A-1
Xxxxxx Xxxxxx Global Bond Fund
Xxxxxx Xxxxxx High Income Opportunities Fund
Xxxxxx Xxxxxx Inflation Protected Securities Fund
Xxxxxx Xxxxxx Institutional High Income Fund
Xxxxxx Xxxxxx Intermediate Duration Fixed Income Fund
Xxxxxx Xxxxxx Investment Grade Fixed Income Fund
Xxxxxx Xxxxxx Securitized Asset Fund
Xxxxxx Xxxxxx Small Cap Value Fund
Xxxxxx Xxxxxx Funds II, a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Xxxxxx Aggressive Growth Fund
Xxxxxx Xxxxxx Growth Fund
Xxxxxx Xxxxxx High Income Fund
Xxxxxx Xxxxxx Investment Grade Bond Fund (except for Class J shares)
Xxxxxx Xxxxxx Limited Term Government and Agency Fund
Xxxxxx Xxxxxx Municipal Income Fund
Xxxxxx Xxxxxx Research Fund
Xxxxxx Xxxxxx Small Cap Growth Fund
Xxxxxx Xxxxxx Strategic Income Fund
Xxxxxx Xxxxxx Tax-Managed Equity Fund
Xxxxxx Xxxxxx Value Fund
Xxxxxx Xxxxxx Worldwide Fund
IXIS ADVISOR CASH MANAGEMENT TRUST
IXIS ADVISOR FUNDS TRUST I
IXIS ADVISOR FUNDS TRUST II
IXIS ADVISOR FUNDS TRUST III
IXIS ADVISOR FUNDS TRUST IV
XXXXXX XXXXXX FUNDS I
XXXXXX XXXXXX FUNDS II
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxx
----------------------------------- ---------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxxx Xxx
--------------------------------- -------------------------------
Title: Chief Operating Officer Title: Senior Vice President
-------------------------------- ------------------------------
As an Authorized Officer on behalf of
each of the Funds listed above.
Appendix A-2
