EXHIBIT h(1)(c)
AMENDMENT
TO
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
This Amendment to the Sub-Transfer Agency and Service Agreement (the
"Amendment") is made as of the 1st day of October, 2008 by and between NYLIM
Service Company LLC ("Transfer Agent") and Boston Financial Data Services, Inc.
("Sub-Transfer Agent").
WHEREAS, the parties hereto have entered into a Sub-Transfer Agency and
Service Agreement dated as of October 1, 2005, which was amended on June 18,
2007 (collectively, the "Agreement");
WHEREAS, pursuant to Section 15.1 of the Agreement, the parties wish to
amend the Agreement;
NOW, THEREFORE, notwithstanding anything to the contrary contained in the
above-cited Agreement, and for good and adequate consideration, the receipt of
which is hereby acknowledged, the Transfer Agent and Sub-Transfer Agent agree
that the Agreement is hereby amended as follows:
1. Section 1.1 (Terms of Appointment; Duties - Sub-Transfer Agency
Services). Section 1.1 is hereby amended to add the following
provisions;
(p) pursuant to instructions provided by Shareholders, reinvest income
dividends and capital gains distributions in additional Shares of the
Funds.
2. Section 1.2 (Additional Services). Section 1.2 is hereby amended to
add the following provision:
(g) Off-NAV Processing. Utilize a system to identify all share
transactions which involve purchase, redemption and repurchase orders
that are processed at a time other than the time of the computation of
NAV per share next computed after receipt of such orders, and shall
compute the net effect upon the Funds of such transactions so
identified on a daily and cumulative basis.
3. Section 3.1 (Fee Schedule). Section 3.1 to the Agreement is hereby
deleted in its entirety and replaced with the following Section 3.1:
3.1 Fee Schedule. For the performance the Sub-Transfer Agent pursuant
to this Agreement, the Transfer Agent agrees to pay the
Sub-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 may be changed from
time to time subject to mutual written agreement between the
Transfer Agent and the Sub-Transfer Agent.
4. Section 3.4 (Cost of Living Adjustment). Section 3.4 of the Agreement
is hereby deleted in its entirety.
5. Section 8.3 (As-of Adjustments). The following Section 8.3 is hereby
added to the Agreement.
8.3 As-of Adjustments.
(a) Notwithstanding anything herein to the contrary, with respect to
"as of" adjustments, the Sub-Transfer Agent will not assume one
hundred percent (100%) responsibility for losses resulting from "as
ofs" due to clerical errors or misinterpretations of shareholder
instructions, but the Sub-Transfer Agent will discuss with the
Transfer Agent the Sub-Transfer Agent's accepting liability for an "as
of" on a case-by-case basis and, subject to the limitation set forth
in Section 9, will accept financial responsibility for a particular
situation resulting in a financial loss to the Fund where such loss is
"material," as hereinafter defined, and, under the particular facts at
issue, the Sub-Transfer Agent's conduct was culpable and the
Sub-Transfer Agent's conduct is the sole cause of the loss. A loss is
"material" for purposes of this Section 8.3 when it results in a
pricing error on a particular transaction which equals or exceeds one
full cent ($.01) per Share times the number of Shares outstanding or
such other amounts as may be adopted by applicable accounting or
regulatory authorities from time to time.
(b) If the net effect of the "as of" transactions that are determined
to be caused solely by the Sub-Transfer Agent is negative and exceeds
the above limit, then the Sub-Transfer Agent shall promptly contact
the Transfer Agent. The Sub-Transfer Agent will work with the Transfer
Agent to determine what, if any, impact the threshold break has on the
Fund's Net Asset Value and what, if any, further action is required.
These further actions may include but are not limited to, the Fund
re-pricing the affected day(s), the Sub-Transfer Agent re-processing,
at its expense, all affected transactions in the Fund that took place
during the period or a payment to the Transfer Agent. The Transfer
Agent agrees to work in good faith with the Sub-Transfer Agent and
wherever possible, absent a regulatory prohibition or other mutually
agreed upon reason, the Fund agrees to re-price the affected day(s)
and to allow the Sub-Transfer Agent to re-process the affected
transactions. When such re-pricing and re-processing is not possible,
and when the Sub-Transfer Agent must contribute to the settlement of a
loss, the Sub-Transfer Agent's responsibility will commence with that
portion of the loss over $0.01 per share calculated on the basis of
the total value of all Shares owned by the affected Portfolio (i.e.,
on the basis of the value of the Shares of the total Portfolio,
including all classes of that Portfolio, not just those of the
affected class) and the Sub-Transfer Agent will make such account
adjustments and take such other action as is necessary to compensate
Shareholders for Shareholder losses and reimburse the Fund for the
amount of Fund losses in accordance with the foregoing standards. If
the Transfer Agent contributes to the settlement of a loss, the amount
paid by the Transfer Agent shall be deducted from the amount of any
accumulated losses calculated in the fiscal year monitoring process
described below.
(c) The Sub-Transfer Agent will monitor all Portfolios across Share
classes to determine the accumulated gain or loss effect of "as-of
trades" caused solely by the Sub-Transfer Agent. At the fiscal year
end of each Portfolio, if the Portfolio has an accumulated loss across
Share classes that is attributed to the Sub-Transfer Agent, then the
Sub-Transfer Agent shall pay to the Fund the amount of such loss in
excess of $.01 per Share calculated on the basis of the total value of
all Shares owned by the affected Portfolio (i.e., on the basis of the
value of the Shares of the total Portfolio, including all classes of
that Portfolio, not just those of the affected class). If at the end
of the fiscal year, a Portfolio has accumulated a gain across Share
classes, that gain will remain with the Fund.
6. Section 12.1 (Term). Section 12.1 is hereby deleted in its entirety
and replaced it with the following:
12.1 Term. The term of this Agreement (the "Term") shall be three (3)
years effective October 1, 2008 through September 20, 2011,
unless terminated pursuant to the provisions of this Section 12.
Unless a terminating party gives written notice to the other
party one hundred and twenty (120) days before the expiration of
the Term or any Renewal Term, this Agreement will renew
automatically from year to year (each such year-to-year renewal
term a "Renewal Term"). One hundred and twenty (120) days before
the expiration of the Term or Renewal Term, the parties to this
Agreement will agree upon a Fee Schedule for the upcoming Term or
Renewal Term. Notwithstanding the termination or non-renewal of
this Agreement, the terms and conditions of this Agreement shall
continue to apply until the completion of deconversion. All
references in this Agreement to "Initial Term" shall be replaced
with "Term."
7. Schedule 3.1 (Fees). Schedule 3.1 is hereby deleted in its entirety
and replaced with the Schedule 3.1 attached hereto.
8. Schedule A (Funds). Schedule A to the Agreement is hereby deleted in
its entirety and replaced with the Schedule A attached hereto.
9. All defined terms and definitions in the Agreement shall be the same
in this amendment (the "Amendment") except as specifically revised by
this Amendment.
10. Except as specifically set forth in this Amendment, all other terms
and conditions of the Agreement shall remain in full force and effect.
* * * * *
IN WITNESS WHEREOF, the Transfer Agent and Sub-Transfer Agent have executed
this Amendment as of the date first written above and thereby have made it an
integral part of the Agreement.
BOSTON FINANCIAL NYLIM SERVICE COMPANY LLC
DATA SERVICES, INC.
By: /s/ Xxxxxxx X. Xxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxx Name: Xxxxxx X. Xxxxx
Title: Senior Vice President Title: President
SCHEDULE A
FUNDS
MainStay 130/30 Core Fund
MainStay 130/30 Growth Fund
MainStay 130/30 High Yield Fund
MainStay 130/30 International Fund
MainStay All Cap Growth Fund
MainStay Balanced Fund
MainStay Capital Appreciation Fund
MainStay Cash Reserves Fund
MainStay Common Stock Fund
MainStay Conservative Allocation Fund
MainStay Convertible Fund
MainStay Diversified Income Fund
MainStay Equity Index Fund
MainStay Floating Rate Fund
MainStay Global High Income Fund
MainStay Government Fund
MainStay Growth Allocation Fund
MainStay Growth Equity Fund
MainStay High Yield Corporate Bond Fund
MainStay ICAP Equity Fund
MainStay ICAP Global Fund
MainStay ICAP International Fund
MainStay ICAP Select Equity Fund
MainStay Income Manager Fund
MainStay Indexed Bond Fund
MainStay Institutional Bond Fund
MainStay Intermediate Term Bond Fund
MainStay International Equity Fund
MainStay Large Cap Growth Fund
MainStay Large Cap Opportunity Fund
MainStay MAP Fund
MainStay Mid Cap Growth Fund
MainStay Mid Cap Opportunity Fund
MainStay Mid Cap Value Fund
MainStay Moderate Allocation Fund
MainStay Moderate Growth Allocation Fund
MainStay Money Market Fund
MainStay Principal Preservation Fund
MainStay Retirement 2010 Fund
MainStay Retirement 2020 Fund
MainStay Retirement 2030 Fund
MainStay Retirement 2040 Fund
MainStay Retirement 2050 Fund
MainStay S&P 500 Index Fund
MainStay Short-Term Bond Fund
MainStay Small Cap Growth Fund
MainStay Small Cap Opportunity Fund
MainStay Small Cap Value Fund
MainStay Tax Free Bond Fund
MainStay Total Return Fund
MainStay Value Fund
SCHEDULE A
BOSTON FINANCIAL NYLIM SERVICE COMPANY LLC
DATA SERVICES, INC.
By: /s/ Xxxxxxx X. Xxx By: /s/ Xxxxxx X. Xxxxx
------------------------------ ---------------------------------
Name: Xxxxxxx X. Xxx Name: Xxxxxx X. Xxxxx
Title: Senior Vice President Title: President
SCHEDULE 3.1
FEES AND EXPENSES
Effective date: October 1, 2008 through September 30, 2011
General: Fees are billable on a monthly basis at the rate of 1/12 of the annual
fee. A charge is made for an account in the month that an account opens or
closes.
ANNUAL ACCOUNT SERVICE FEES:
For the first 1,000,000 accounts*:
Matrix Level 3 Accounts $7.49/account
Non-Matrix Level 3 Accounts $9.63/account
* All Accounts Serviced in excess of 1,000,000 will be discounted by $0.50
per Account.
Transaction Fees:
ACH Transaction $0.64/transaction
Check-writing item $1.23/check
Other Fees:
Complex Base Fee $1,100,000/year
Complex Base Fee:
- The following out-of-pocket and service fees have been reduced and
bundled into the Complex Base Fee noted above:
(i) Fund Minimums (see note below).
(ii) TA2000 Voice Fees. (Any related out of pocket charges as
such as AT&T long distance, advanced features, etc. would
continue to be invoiced).
(iii) Remote access to COOL Technology.
(iv) COMMFEE charges.
(v) Average Cost charges.
(vi) Fan Web charges. (Any Fan Web Development charges would
continue to be billed as an Out-of-Pocket charge.)
(vii) Patriot Act / AML charges.
(viii) Regulatory Compliance charges billed per CUSIP.
(ix) Compliance Plus charge.
SCHEDULE 3.1
SCHEDULE 3.1
FEES AND EXPENSES
(CONTINUED)
- The Complex Base Fee covers the first 300 CUSIPS, therefore
eliminating the Sub-Transfer Agent's Fund Minimum charge. However,
should the Transfer Agent exceed 300 CUSIPS, the Sub-Transfer Agent
will increase the Complex Base Fee in increments of $50,000/year to
cover additional blocks of 50 CUSIPS. (New fund implementation charges
would still apply.)
Dedicated Programmers. The Sub-Transfer Agent will provide the Transfer Agent
with the equivalent of (2) Dedicated Programmers at no charge. Excess
programming hours (if applicable) would continue to be billed at the then
current rates.
Sales Connect. If the Transfer Agent elects to utilize Sales Connect, the
Sub-Transfer Agent will waive the $50,000 implementation fee and $180,000/year
in on-going charges. In order for the foregoing to apply, the Transfer Agent
must provide the Sub-Transfer Agent's affiliate, DST Systems, Inc., with a
complete and accurate listing of all proprietary dealer office locations and
sales agents, including trading IDs, in a mutually agreeable format and
frequency.
DDA Balance Earnings Credits: The parties acknowledge that the Transfer Agent
and the Funds have received certain fee concession from the Sub-Transfer Agent
in the terms of this Schedule 3.1. Accordingly, as part of the overall fee
arrangement and in lieu of additional fees, the Sub-Transfer Agent shall retain
up to the first $1 million in DDA balance earnings credits received, per year,
on the DDAs maintained by the Sub-Transfer Agent in connection with performing
the services for the Transfer Agent and the Funds under this Agreement. The DDA
balance earnings credits per year calculation shall be based on the contract
term cycle of October 1st through September 30th rather than on a calendar year.
Any balance earnings credits in excess of $1 million received on such DDAs shall
be divided equally between the Sub-Transfer Agent and the Funds.
Out-of-Pocket Expenses: Billed as incurred in accordance with Section 3.2 of the
Agreement. Out-of-pocket expenses, including but are not limited to confirmation
production, postage, forms, telephone, microfilm, mailing and tabulating
proxies, records storage and advances incurred by the Sub-Transfer Agent. The
Transfer Agent will pay a flat fee of $20,000/month for reports stored on COOL
in lieu of paying Microfiche charges.
BOSTON FINANCIAL NYLIM SERVICE COMPANY LLC
DATA SERVICES, INC.
By: /s/ Xxxxxxx X. Xxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxx Name: Xxxxxx X. Xxxxx
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Title: Senior Vice President Title: President
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