exhibit h(3)
SUB-TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT, dated as of October 1, 1999 between Xxxxx Xxxxxx Private Trust
Company ("Transfer Agent"), a Delaware corporation having its principal place
of business at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and FIRST DATA
INVESTOR SERVICES GROUP, INC. ("Investor Services Group"), a Massachusetts
corporation with principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, Transfer Agent serves as transfer agent, dividend disbursing
agent and shareholder servicing agent for the registered investment companies
listed on Schedule A (as from time to time amended) (each a "Fund" and
collectively, the "Funds") pursuant to Transfer Agency and Services Agreements
between the Transfer Agent and the Funds, as amended from time to time (the "TA
Agreements"); and
WHEREAS, pursuant to Article 4 ("Delegation of Responsibilities") of the
TA Agreements, the Transfer Agent wishes to retain Investor Services Group to
render certain shareholder recordkeeping and accounting services and functions
for the Funds and Investor Services Group is willing to render such services;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, Transfer Agent and Investor Services Group agree as
follows:
Article 1 Definitions
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of a Fund as the same may be amended from
time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of a Fund or Transfer Agent; or (ii) any person,
whether or not such person is an officer or employee of a Fund or
Transfer Agent, duly authorized to give Oral Instructions or Written
Instructions on behalf of the Fund or Transfer Agent as indicated in
writing to Investor Services Group from time to time.
(c) "Board Members" shall mean the Directors or Trustees of
the governing body of the Fund, as the case may be.
(d) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Fund, as the case may be.
(e) "Commission" shall mean the Securities and Exchange
Commission.
(f) "Custodian" refers to any custodian or subcustodian of
securities and other property which a Fund may from time to time
deposit, or cause to be deposited or held under the name or account of
such a custodian pursuant to a Custodian Agreement.
(g) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(i) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by Investor Services Group
from a person reasonably believed by Investor Services Group to be an
Authorized Person;
(j) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information, including any
supplements thereto if any, which has become effective under the
Securities Act of 1933 and the 1940 Act.
(k) "Shares" refers collectively to such shares of capital
stock or beneficial interest, as the case may be, or class thereof, of
a Fund as may be issued from time to time.
(l) "Shareholder" shall mean a record owner of Shares of a
Fund.
(m) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by Investor Services Group to
be an Authorized Person and actually received by Investor Services
Group. Written Instructions shall include manually executed originals
and authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of Investor Services Group
2.1 Transfer Agent hereby appoints Investor Services Group to render
shareholder recordkeeping and accounting services and functions to Transfer
Agent with respect to the Funds and Investor Services Group hereby accepts such
appointment and agrees to perform the duties hereinafter set forth.
Article 3 Duties of Investor Services Group
3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of
a transfer agent; acting as service agent in connection with dividend
and distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance,
transfer and redemption or repurchase (including coordination with the
Custodian) of Shares of each Fund, as more fully described in the
written schedule of Duties of Investor Services Group annexed hereto
as Schedule B and incorporated herein, and in accordance with the
terms of the Prospectus of each Fund, applicable law and the
procedures established from time to time between Investor Services
Group and Transfer Agent.
(b) Recording the issuance of Shares and maintaining pursuant
to Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Fund which are authorized, based upon data provided to
it by the Fund, and issued and outstanding. Investor Services Group
shall provide each 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.
(c) In addition to performing the foregoing services, the
Fund hereby engages Investor Services Group as its service provider
with respect to those Print/Mail Services as set forth in Schedule B
for the fees identified in Schedule D. Investor Services Group agrees
to perform the services and its obligations subject to the terms and
conditions of this Agreement. Notwithstanding the foregoing, in the
event that Investor Services Group deems it necessary to use the
services of a third party to provide Transfer Agent with the
print/mail services described herein, Investor Services Group shall,
unless otherwise agreed to by the parties, use the services of
Transfer Agent or its affiliates to provide such services.
(d) Notwithstanding any of the foregoing provisions of this
Agreement, Investor Services Group 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 a
Fund's Board of Directors, or the legality of the issuance of any
Shares in payment of any dividend; or (iv) the legality of any
recapitalization or readjustment of the Shares.
3.2 In addition, Transfer Agent shall (i) identify to Investor Services
Group in writing or by transmission 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
Investor Services Group 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 Funds and the reporting of such transactions to the Funds as
provided above.
3.3 In addition to the duties set forth herein, Investor Services Group
agrees to migrate the Funds at no cost to its Full Service Retail (FSR)
application, as more fully described on Schedule C. Investor Services Group
agrees to complete such migration within 18 months of the completion of
reciprocal key milestones, written business requirements, functional
specifications and documented mutual test plans. In addition, Investor Services
Group 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
Transfer Agent and Investor Services Group.
3.4 Investor Services Group agrees to provide the services described
herein in accordance with the written schedule of Performance Standards annexed
hereto as Exhibit 1 of Schedule B and incorporated by reference herein.
Article 4 Recordkeeping and Other Information
4.1 Investor Services Group shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in Schedule B in
accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. Where applicable, such records shall
be maintained by Investor Services Group for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the services to be performed by Investor Services
Group hereunder are the property of the Funds and will be preserved, maintained
and made available in accordance with such section, and will be surrendered
promptly to the Funds on and in accordance with Transfer Agent's or the Fund's
request. The expenses associated with standard records requests made in the
normal course of business are covered accordingly in Schedule E. The expenses
associated with extraordinary requests for records which are not made in the
ordinary course of business shall be determined by agreement between Transfer
Agent and Investor Services Group.
4.3 In case of any requests or demands for the inspection of Shareholder
records of a Fund, Investor Services Group will endeavor to notify Transfer
Agent of such request and secure Written Instructions as to the handling of
such request. Investor Services Group reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by its counsel
that it may be held liable for the failure to comply with such request.
Article 5 Fund Instructions
5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Fund or Transfer Agent. Investor Services Group will also have
no liability when processing Share certificates which it reasonably believes to
bear the proper manual or facsimile signatures of the officers of a Fund and
the proper countersignature of Investor Services Group.
5.2 At any time, Investor Services Group may request Written Instructions
from a Fund or Transfer Agent and may seek advice from legal counsel for the
Fund, or its own legal counsel, with respect to any matter arising in
connection with this Agreement, and it shall not be liable for any action,
taken or not taken or suffered by it in good faith in accordance with such
Written Instructions or in accordance with the opinion of counsel for the Fund
or for Investor Services Group. Written Instructions requested by Investor
Services Group will be provided by a Fund or Transfer Agent within a reasonable
period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of a Fund or Transfer Agent only if said
representative is an Authorized Person. Transfer Agent agrees that all Oral
Instructions shall be followed within one business day by confirming Written
Instructions, and that the Fund's failure to so confirm shall not impair in any
respect Investor Services Group's right to rely on Oral Instructions.
Article 6 Compensation
6.1 Transfer Agent will compensate Investor Services Group for the
performance of its obligations hereunder in accordance with the fees set forth
in the written Fee Schedule annexed hereto as Schedule D and incorporated
herein. Investor Services Group will transmit an invoice to Transfer Agent as
soon as practicable after the end of each calendar month which will be detailed
in accordance with Schedule D.
6.2 In addition to those fees set forth in Section 6.1 above, Transfer
Agent agrees to arrange for payment by the Funds, and will be billed separately
for, reasonable out-of-pocket expenses incurred by Investor Services Group in
the performance of its duties hereunder. Out-of-pocket expenses shall include,
but shall not be limited to, the items specified in the written schedule of
out-of-pocket charges annexed hereto as Schedule E and incorporated herein.
Schedule E may be modified by written agreement between the parties.
Unspecified out-of-pocket expenses shall be limited to those out-of-pocket
expenses reasonably incurred by Investor Services Group in the performance of
its obligations hereunder.
6.3 Transfer Agent agrees to pay or arrange for the payment of all fees
and out-of-pocket expenses by Federal Funds Wire within five (5) business days
following the receipt of the respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule D, a revised Fee Schedule and by written agreement
executed and dated by the parties hereto.
Article 7 Documents
7.1 In connection with the appointment of Investor Services Group,
Transfer. Agent shall, on or before the date this Agreement goes into effect,
but in any case within a reasonable period of time for Investor Services Group
to prepare to perform its duties hereunder, deliver or caused to be delivered
to Investor Services Group the documents set forth in the written schedule of
Fund Documents annexed hereto as Schedule F.
Article 8 Transfer Agent System
8.1 Investor Services Group 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 Investor Services Group in
connection with the core transfer agency services provided by Investor Services
Group to the Funds herein (the "Investor Services Group System") and the other
products or services provided by Investor Services Group hereunder. It is
expressly understood that all data pertaining to the Funds remains the
exclusive property of the Funds.
8.2 Investor Services Group hereby grants to Transfer Agent on behalf of
the Funds a limited license to the Investor Services Group System for the sole
and limited purpose of having Investor Services Group provide the services
contemplated hereunder and nothing contained in this Agreement shall be
construed or interpreted otherwise and such license shall immediately terminate
with the termination of this Agreement.
8.3 In the event that Transfer Agent, the Funds, including any affiliate
or agent of the Funds or any third party acting on behalf of the Fund is
provided with direct access to the Investor Services Group System for either
account inquiry or to transmit transaction information, including but not
limited to maintenance, exchanges, purchases and redemptions, such direct
access capability shall be limited to direct entry to the Investor Services
Group System by means of on-line mainframe terminal entry or PC emulation of
such mainframe terminal entry and any other non-conforming method of
transmission of information to the Investor Services Group System is strictly
prohibited without the prior written consent of Investor Services Group.
8.4 Investor Services Group agrees to commit to a systems development
headcount of forty (40) persons dedication to Transfer Agent.
8.5 During the term of this Agreement Investor Services Group will use on
behalf of the Funds at no additional cost all modifications, enhancements, or
changes which Investor Services Group may make to the Investor Services Group
System in the normal course of its business ("Systems Modifications") and which
are applicable to functions and features offered by the Funds.
8.6 Investor Services Group shall have the right, at any time, and from
time to time, to alter and modify any systems, programs, procedures or
facilities used or employed in performing its duties and obligations hereunder,
provided that no such alteration or modification shall, without the consent of
Transfer Agent, materially adversely change or affect the operations and
procedures of the Funds in using or employing the Investor Services Group
System hereunder or the reports to be generated by such system and facilities
hereunder.
Article 9 Representations and Warranties and Condition Precedent
9.1 Investor Services Group represents and warrants to Transfer Agent
that:
(a) it is a corporation organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts,
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will remain in effect
for the duration of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.2 Transfer Agent represents and warrants to Investor Services Group
that:
(a) it is duly organized, existing and in good standing under
the laws of the state of Delaware;
(b) it is empowered under applicable laws and by its Article
of Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, ByLaws and applicable laws have been taken to authorize
it to enter into this Agreement;
(d) a registration statement under the Securities Act of
1933, as amended, and the 1940 Act on behalf of each Fund is currently
effective and will remain effective, and all appropriate state
securities law filings have been made and will continue to be made,
with respect to all Shares of the Fund being offered for sale; and
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with
the terms of each Fund's Articles of Incorporation and its Prospectus,
such Shares shall be validly issued, fully paid and non-assessable.
9.3 Year 2000 Compliance. (a) For purposes of this Agreement, "Year 2000
Compliant" means:
(i) date data will process in the same manner and without
error or interruption due solely to the change in century, in any
level of computer hardware or software Investor Services Group
provides, including, but not limited to, microcode, firmware, system
and application programs, files and databases; and
(ii) there will be no loss of any functionality, accuracy,
data integrity and performance of the Investor Services Group System
due solely to the change in century, with respect to the introduction,
processing or output of date records.
(b) Investor Services Group represents and warrants that:
(i) The Investor Services Group System will be Year 2000
Compliant by December 31, 1998; provided, however, that Investor
Services Group will be in a process of testing the Investor Services
Group System in regard to Year 2000 Compliance throughout calendar
year 1999 and any temporary and immaterial loss of functionality
occurring during the ordinary course of this testing and fixing
process shall not be considered a failure of Investor Services Group
to be Year 2000 Compliant.
(ii) The Investor Services Group System will continue to be
interoperable, in the same manner as it is prior to January 1, 2000,
with software and hardware of Transfer Agent and the Funds which may
deliver records to, receive records from or interact with the Investor
Services Group System in the course of processing data, provided that
such software and hardware of Transfer Agent and the Funds is Year
2000 Compliant as defined herein and complies with the interface and
format standards mutually agreed to by Investor Services Group and
Transfer Agent.
(c) Transfer Agent agrees to cooperate fully, and to ensure that its
vendors cooperate fully, with Investor Services Group to ensure the
interoperability of the Investor Services Group System with hardware and
software of Transfer Agent and its vendors. Investor Services Group shall have
the right, at its discretion, to reject any data file which it in good faith
believes will interfere with the ability of the Investor Services Group System
to be Year 2000 Compliant.
(d) Investor Services Group agrees that Transfer Agent shall have the
right to conduct such testing as Transfer Agent reasonably deems necessary to
ensure that the Investor Services Group System complies with the foregoing
representations and warranties, and Investor Services Group agrees to cooperate
with, support and participate in such testing as reasonably required by
Transfer Agent.
(e) The term "Year 2000 Compliance Warrant" shall mean, collectively, the
warranties set forth in this section.
(f) Waiver of Limitation of Liability. With the exception of the
disclaimer of consequential damages provision of this Agreement, any provisions
of this Agreement which tend to limit or eliminate the liability of either
party shall have no application with respect to the Year 2000 Compliance
Warranty set forth herein.
Article 10 Indemnification
10.1 Investor Services Group shall not be responsible for and Transfer
Agent shall indemnify and hold Investor Services Group 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
not specifically deemed to be the responsibility of Investor Services Group
which may be asserted against Investor Services Group or for which Investor
Services Group may be held to be liable (a "Claim"), arising out of or
attributable to any of the following:
(a) any actions of Investor Services Group required to be
taken pursuant to this Agreement, provided that Investor Services
Group has acted in good faith and with due diligence and reasonable
care, unless such Claim resulted from a negligent act or omission to
act or bad faith by Investor Services Group in the performance of its
duties hereunder,
(b) Investor Services Group'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 Investor Services Group from a Fund, or
any authorized third party acting on behalf of the Fund in the
performance of Investor Services Group'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 a Fund;
(d) the offer or sale of shares in violation of any
requirement under the securities laws or regulations of any state that
such shares be registered in such state or in violation of any stop
order or other determination or ruling by any state with respect to
the offer or sale of such shares in such state; and
(e) Transfer Agent's refusal or failure to comply with the
terms of this Agreement, or any Claim which arises out of Transfer
Agent's negligence or misconduct or the breach of any representation
or warranty of Transfer Agent made herein.
10.2 Transfer Agent shall not be responsible for and Investor Services
Group shall indemnify and hold Transfer Agent, the Funds, their affiliates and
their respective directors, officers, employees and agents 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 Transfer Agent or for which Transfer Agent may be
held to be liable (a "Claim"), arising out of or attributable to (a) any
negligent act or omission to act or bad faith by Investor Services Group in the
performance of its duties hereunder; or (b) Investor Services Group's refusal
or failure to comply with the terms of this Agreement; (c) the breach of any
representation or warranty of Investor Services Group made herein.
10.3 In any case in which a party (the "Indemnifying Party") may be asked
to indemnify or hold harmless any other party (or parties) (the "Indemnified
Party"), the Indemnifying Party shall be advised of all pertinent facts
concerning the situation in question. The Indemnified Party will notify the
Indemnifying Party promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification against the
Indemnifying Party although the failure to do so shall not prevent recovery by
the Indemnified Party except to the extent that the Indemnifying Party is
prejudiced as a result of such failure to timely notify. The Indemnifying Party
shall have the option to defend the Indemnified Party against any Claim which
may be the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by counsel chosen
by the Indemnifying Party and satisfactory to the Indemnified, and thereupon
the Indemnifying Party shall take over complete defense of the Claim and the
Indemnified Party shall sustain no further legal or other expenses in respect
of such Claim. The Indemnified Party will not confess any Claim or make any
compromise in any case in which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior written consent.
The obligations of the parties hereto under this Section shall survive the
termination of this Agreement.
10.4 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be a
party's sole and exclusive remedy for claims or other actions or proceedings to
which the other party's indemnification obligations pursuant to this Article 10
may apply.
Article 11 Standard of Carp
11.1 Investor Services Group shall provide its services as Sub-Transfer
Agent in accordance with the applicable provisions of Section 17A of the 1934
Act. Investor Services Group 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 Transfer Agent or the Funds unless said
errors are caused by Investor Services Group's own negligence, bad faith,
willful misconduct or that of its employees or knowing violations of applicable
law pertaining to the manner in which transfer agency services are to be
performed by Investor Services Group.
11.2 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
Article 12 Consequential Damages
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY TO THIS AGREEMENT, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO THE OTHER
PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR
WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
Article 13 Term and Termination
13.1 This Agreement shall be effective on the date first written above and
shall continue until May 31, 2004 (the "Initial Term"), provided Transfer Agent
or any of its affiliates continues to serve as transfer agent during such
period.
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive annual periods ending on May 31 of each such
renewal period (each a "Renewal Term"), unless Transfer Agent or Investor
Services Group provides written notice to the other of its intent not to renew.
Such notice must be received not less than ninety (90) days and not more than
one-hundred eighty (180) days prior to the expiration of the Initial Term or
the then current Renewal Term.
13.3 In the event a termination notice is given by the Fund, all
reasonable expenses associated with movement of records and materials and
conversion thereof to a successor transfer agent will be borne by the Fund.
13.4 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 Investor Services Group is the
Non-Defaulting Party, its termination of this Agreement shall not constitute a
waiver of any other rights or remedies of Investor Services Group with respect
to services performed prior to such termination of rights of Investor Services
Group to be reimbursed for out-of-pocket expenses. In all cases, termination by
the Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting
Party of any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
13.5 Notwithstanding the foregoing, Transfer Agent may terminate this
Agreement if either: (i) one quarter or more of the Performance Standards
listed in Exhibit 1 of Schedule B are not met by Investor Services Group for
three (3) consecutive monthly periods, or (ii) any one performance standard is
not met by Investor Services Group for any four (4) consecutive monthly
periods. Transfer Agent shall notify Investor Services Group in writing within
120 days of any such failure. If Investor Services Group is unable to correct
its failure to meet the performance standard(s) identified in such notice
within sixty (60) days following receipt of such notice, Transfer Agent may
terminate this Agreement upon written notice to Investor Services Group. Unless
Transfer Agent provides Investor Services Group with the written notice of
Investor Services Group's failure to meet the applicable performance standard
as described above, Transfer Agent shall have waived its option to terminate
the Agreement under this provision.
Article 14 Confidentiality
14.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information")
are confidential information of the parties and their respective licensors.
Transfer Agent and Investor Services Group shall exercise at least the same
degree of care, but not less than reasonable care, to safeguard the
confidentiality of the Confidential Information of the other as it would
exercise to protect its own confidential information of a similar nature.
Transfer Agent and Investor Services Group shall not duplicate, sell or
disclose to others the Confidential Information of the other, in whole or in
part, without the prior written permission of the other party. Transfer Agent
and Investor Services Group may, however, disclose Confidential Information to
their respective parent corporation, their respective affiliates, their
subsidiaries and affiliated companies and employees, provided that each shall
use reasonable efforts to ensure that the Confidential Information is not
duplicated or disclosed in breach of this Agreement. Transfer Agent and
Investor Services Group may also disclose the Confidential Information to
independent contractors, auditors, and professional advisors, provided they
first agree in writing to be bound by the confidentiality obligations
substantially similar to this Section 14.1. Notwithstanding the previous
sentence, in no event shall either Transfer Agent or Investor Services Group
disclose the Confidential Information to any competitor of the other without
specific, prior written consent.
14.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating
to the past, present or future business activities of Transfer Agent,
the Funds or Investor Services Group, their respective subsidiaries
and affiliated companies and the customers, clients and suppliers of
any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords Transfer Agent,
the Funds or Investor Services Group a competitive advantage over its
competitors; and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
14.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and models,
and any other tangible manifestation of the foregoing of either party which now
exist or come into the control or possession of the other.
14.4 The obligations of confidentiality and restriction on use herein
shall not apply to any Confidential Information that a party 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 such party; or
(b) Was lawfully received by the party from a third party
free of any obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to
receipt thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal remedies for
maintaining such information in confidence have been exhausted
including, but not limited to, giving the other party as much advance
notice of the possibility of such disclosure as practical so the other
party may attempt to stop such disclosure or obtain a protective order
concerning such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
Article 15 Force Majeure
15.1 No party shall be liable for any default or delay in the performance
of its obligations under this Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i) fire, flood, elements of nature
or other acts of God; (ii) any outbreak or escalation of hostilities, war,
riots or civil disorders in any country, (iii) any act or omission of the other
party or any governmental authority; (iv) any labor disputes beyond the
reasonable control of such party; or (v) nonperformance by a third party or any
similar cause beyond the reasonable control of such party, including without
limitation, failures or fluctuations in telecommunications or other equipment.
Except to the extent that the non-performing party shall have failed to use its
reasonable best efforts to minimize the likelihood of occurrence of such
circumstances or to mitigate any loss or damage to the other party or the Funds
caused by such circumstances. In any such event, the non-performing party shall
be excused from any further performance and observance of the obligations so
affected only for as long as such circumstances prevail and such party
continues to use commercially reasonable efforts to recommence performance or
observance as soon as practicable.
15.2 Investor Services Group in conjunction with its affiliate, First Data
Technologies ("FDT"), has developed a comprehensive disaster recovery plan that
ensures critical applications of daily data processing functions are
recoverable at an alternate processing facility. A disaster recovery test is
conducted with FDT on at least an annual basis. The tests include systems
restoration, batch processing and network connectivity. The mainframe operating
systems and customer network connectivity are established at an alternate
processing hot site located in North Bergen, New Jersey. In addition, Investor
Services Group's sites located in Westboro, MA and King of Pussia, PA, provide
redundant backup for critical business processes, and local data processing.
Article 16 Assignment and Subcontracting
16.1 This Agreement, its benefits and obligations shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. This Agreement may not be assigned or otherwise
transferred by either party hereto, without the prior written consent of the
other party, which consent shall not be unreasonably withheld; provided,
however, that either party may, in its sole discretion, assign all its right,
title and interest in this Agreement to an affiliate, parent or subsidiary of
the assigning party who is qualified to act under the 1940 Act. Investor
Services Group may, in its sole discretion, engage subcontractors to perform
any of the obligations contained in this Agreement to be performed by Investor
Services Group.
Article 17 Arbitration
17.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration administered by
the American Arbitration Association in New York, New York 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.
17.2 The parties hereby agree that judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction.
17.3 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 17.
Article 18 Notice
18.1 Any notice or other instrument authorized or required by this
Agreement to be given in writing to Transfer Agent or Investor Services Group,
shall be sufficiently given if addressed to that party and received by it at
its office set forth below or at such other place as it may from time to time
designate in writing.
To Transfer Agent:
Xxxxx Xxxxxx Private Trust Company
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
Article 19 Governing Law/Venue
19.1 The laws of the State of New York, excluding the laws on conflicts of
laws, shall govern the interpretation, validity, and enforcement of this
agreement.
Article 20 Counterparts
20.1 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 21 Captions
21.1 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.
Article 22 Publicity
22.1 Neither Investor Services Group nor Transfer Agent shall release or
publish news releases, public announcements, advertising or other publicity
relating to this Agreement or to the transactions contemplated by it without
the prior review and written approval of the other party; provided, however,
that either party may make such disclosures as are required by legal,
accounting or regulatory requirements after making reasonable efforts in the
circumstances to consult in advance with the other party.
Article 23 Relationship of Parties
23.1 The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
Article 24 Entire Agreement, Severability
24.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. No such writing shall be
effective as against Investor Services Group unless said writing is executed by
a Senior Vice President, Executive Vice President, or President of Investor
Services Group. A party's waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same or
another term or condition.
24.2 The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not
affect the validity of the remainder of this Agreement. In such case, the
parties shall in good faith modify or substitute such provision consistent with
the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, on the day of September 1999,
subject to approval by the Funds' Board of Directors.
XXXXX XXXXXX PRIVATE TRUST
COMPANY
By:
Title:
FIRST DATA INVESTOR SERVICES
GROUP, INC.
By:
Title:
