Exhibit h(1)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EACH OF THE PARTIES, INDIVIDUALLY AND NOT JOINTLY,
AS INDICATED ON THE SCHEDULES A-1 AND A-2
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties ...................................................... 1
2. Financial Intermediaries and Third Party Administrators for Defined Contribution Plans 4
3. Fees and Expenses .................................................................... 5
4. Representations and Warranties of the Transfer Agent ................................. 6
5. Representations and Warranties of the Fund ........................................... 6
6. Wire Transfer Operating Guidelines ................................................... 7
7. Data Access and Proprietary Information .............................................. 8
8. Indemnification ...................................................................... 10
9. Standard of Care ..................................................................... 11
10. Year 2000 ............................................................................ 11
11. Confidentiality ...................................................................... 11
12. Covenants of the Fund and the Transfer Agent ......................................... 12
13. Termination of Agreement ............................................................. 12
14. Assignment and Third Party Beneficiaries ............................................. 13
15. Subcontractors ....................................................................... 14
16. Miscellaneous ........................................................................ 14
17. Additional Funds ..................................................................... 16
18. Limitations of Liability of Trustees and Shareholders ............................... 17
19. Each Fund a Separate Party to Agreement .............................................. 17
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of February, 2001, by and between EACH OF THE
PARTIES, INDIVIDUALLY AND NOT JOINTLY, AS INDICATED ON THE SCHEDULES A-1 and
A-2, having its principal office and place of business at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Fund"), and BOSTON FINANCIAL DATA SERVICES, INC.,
a Massachusetts corporation having its principal office and place of business at
0000 Xxxxxxx Xxxxxx, Xxxxx 000X, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer
Agent").
WHEREAS, one or more of the Funds are authorized to issue shares in separate
series, with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the attached Schedules A-1 and A-2 may be amended by the parties from
time to time (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
Section 17, being herein referred to as a "Portfolio", and collectively as the
"Portfolios");
WHEREAS, the Fund, on behalf of the Portfolios, desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans 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, as
applicable, 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 common stock or
beneficial interest, as the case may be, ("Shares"), dividend
disbursing agent, custodian of certain retirement plans 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 and statement 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 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 Articles of
Incorporation or Declaration of Trust, as appropriate, 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) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(j) Record the issuance of Shares of the Fund and maintain pursuant
to SEC Rule 17Ad-10(e) 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.
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, record-keeper for certain
retirement plans where State Street Bank and Trust Company (the
"Bank") is custodian and, as relevant, agent in connection with
accumulation, open-account or similar plan (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, 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,
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preparing and mailing activity statements for Shareholders, and
providing Shareholder account information;
(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
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 or its
agent 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's distributor), in
accordance with instructions transmitted to and received by the
Transfer Agent by transmission from NSCC on behalf of other NSCC
participants 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 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 participants; and (iv) maintain Shareholder accounts on
TA2000 System through Networking;
(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; and
(f) OverflowTelephone Support. If the parties elect to have the
Transfer Agent provide overflow telephone support to any of the
Funds under this Agreement, the parties will agree in writing to the
manner and timing of such services and any fees and out-of-pocket
expenses related thereto;
(g) Compliance with Office of Foreign Asset Control ("OFAC")
Regulation. Ensure compliance with OFAC laws, regulations, guidance
documents, and blocking and notification requirements by adopting
adequate compliance policies, procedures and internal controls;
(h) Comply with applicable money laundering and currency transaction
reporting laws, regulations, and government guidance, including
suspicious activity reporting and record-
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keeping requirements and with "money laundering" guidelines as may
be agreed upon by the parties; and
(i) Monitor proposed securities and tax laws and regulations which
may affect the Transfer Agent's products and/or services provided
hereunder and take reasonable steps to update its products and/or
services to accommodate new securities and tax laws and regulations
applicable to the Transfer Agent in the time and manner as required
by such laws and regulations.
2. Financial Intermediaries and 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 the
customers ("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 Internal Revenue Code of 1986,
as amended ("Code") and administered by third party administrators
which may be plan administrators as defined in the Employee
Retirement Income Security Act of 1974, as amended (the "TPA(s)").
2.2 In accordance with procedures established between the parties, as
may be amended by the parties from time to time, the Transfer Agent
shall:
(a) Treat Shareholder accounts established by the Plans in the name
of the trustees, Plans or TPA's 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 or trustee 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
(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.
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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, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche,
records storage, or advances incurred by the Transfer Agent for the
items set out in Schedule 3.1 attached hereto. In addition, any
other expenses incurred by the Transfer Agent at the request or with
the consent of the Fund, will be reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, 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 which 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 Late Payments. If any undisputed amount in an invoice of the
Transfer Agent (for fees or reimbursable expenses) is not paid
within sixty (60) days following the receipt of the respective
billing notice, the Fund shall pay the Transfer Agent interest
thereon (from the due date to the date of payment) at a per annum
rate equal to one percent (1.0%) plus the Prime Rate (that is, the
base rate on corporate loans posted by large domestic banks)
published by The Wall Street Journal (or, in the event such rate is
not so published, a reasonably equivalent published rate selected by
the Fund) on the first day of publication during the month when such
amount was due. Notwithstanding any other provision hereof, such
interest rate shall be no greater than permitted under applicable
provisions of Massachusetts law.
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4. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund that:
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 It is a transfer agent fully registered as a transfer agent pursuant
to Section 17A(c)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
4.5 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
4.6 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 corporation or business trust duly organized and existing
and in good standing under the laws of its state of organization or
incorporation.
5.2 It is empowered under applicable laws and by its Articles of
Incorporation or Declaration of Trust, as the case may be, and
By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Articles of Incorporation
or Declaration of Trust, as the case may be, and By-Laws have been
taken to authorize it to enter into and perform this Agreement.
5.4 It 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 of the Fund being
offered for sale.
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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 this 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 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 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 reasonable 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
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
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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 guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association,
the Transfer Agent 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, 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
("Customer 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
Customer Data. 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 (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)), 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 to be
retransmitted to any other computer terminal or
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other device except as expressly permitted by the Transfer Agent
(such permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent;
and
(f) 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.
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.
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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.
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.
8. Indemnification
8.1 The Transfer Agent shall not be responsible for, and the relevant
Fund shall indemnify and hold the Transfer Agent harmless from and
against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability (collectively referred to as
"Losses") 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
(including the defense of any lawsuit in which the Transfer Agent or
affiliate is a named party), 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 reasonable 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; unless such Losses are due to the
negligence of the Transfer Agent arising out of its failure to
perform in accordance with procedures established with the Fund;
(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;
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(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account
maintained at the Bank, unless such Losses are due to the negligence
of the Transfer Agent arising out of its failure to perform in
accordance with procedures established with the Fund; or
(f) 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.
8.2 The Fund shall not be responsible for, and the Transfer Agent shall
indemnify and hold the Fund harmless from and against, any and all
losses, costs, charges, counsel fees, payments, expenses and
liability to the extent arising out of or attributable to any
actions or failure of the Transfer Agent to act as a result of the
Transfer Agent's lack of good faith, negligence or willful
misconduct.
9. Standard of Care
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.
10. Confidentiality
10.1 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, Fund
Shareholder information, 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. The Fund and the Transfer Agent
further covenant and agree to retain all such knowledge and
information acquired during and after the term of this Agreement
respecting such lists, trade secrets, or any secret or confidential
information 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 above prohibition of disclosure shall
not apply to the extent that the Transfer Agent must disclose such
data to its sub-contractor or Fund agent for purposes of providing
services under this Agreement. The Transfer Agent shall use its best
efforts to require such sub-contractors to agree that the Fund
information be kept in strict confidence and used solely for
purposes of performing its requisite services.
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),
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the Transfer Agent will endeavor 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 Directors or
Trustees, as the case may be, of the Fund authorizing the
appointment of the Transfer Agent and the execution and delivery of
this Agreement; and
(b) A copy of the Articles of Incorporation 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 relevant Fund
and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered promptly to the
Fund on and in accordance with its request.
11.4 The Transfer Agent will provide for back-up of its computer files
and data with respect to the Fund. The Transfer Agent will maintain
a comprehensive Disaster Recovery Plan and will provide the Fund
with a summary of its Disaster Recovery Plan upon the reasonable
request of the Fund.
12. Termination of Agreement
12.1 Term. The initial term of this Agreement (the "Initial Term") shall
be two years from the date first stated above unless terminated
pursuant to the provisions of this Section 13. Unless a terminating
party gives written notice to the other party one hundred and twenty
(120) days before the expiration of the Initial Term or any Renewal
Term, this Agreement will renew automatically from year to year
(each such year-to-year renewal term a
12
"Renewal Term"). 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.
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 the event that the Funds set forth on
Schedules A-1 and A-2 terminate this Agreement, during the Initial
Term for any reason, other than as prescribed under Section 12.7,
including converting the services to a successor service provider,
or if the Fund is liquidated or its assets merged or purchased or
the like with or by another entity which does not utilize the
services of the Transfer Agent, then each Fund shall pay the
Transfer Agent its pro-rata portion of the Conversion Fee based on
its relative net assets in accordance with the following:
(i) Termination prior to the end of the first year of this
Agreement, the Conversion Fee as set forth in Schedule 3.1.
(ii) Termination prior to the end of the second year of this
Agreement, half of the Conversion Fee as set forth in Schedule
3.1.
12.3 Expiration of Term. During the Initial Term or Renewal Term,
whichever currently is in effect, should either party exercise its
right to terminate, all reasonable 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. Section 12.3 shall not apply if the Transfer Agent is
terminated pursuant to Sections 12.6 or Section 12.7.
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.
12.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the
Transfer Agent being outstanding for more than ninety (90) days,
except with respect to any amount subject to a good faith dispute
within the meaning of Section 3.4 of this Agreement.
12.6 Bankruptcy. Either party hereto may terminate this Agreement by
notice to the other party, effective at any time specified therein,
in the event that (a) the other party ceases to carry on its
business or (b) an action is commenced by or against the other party
under Title 11 of the United States Code or a receiver, conservator
or similar officer is appointed for the other party and such suit,
conservatorship or receivership is not discharged within thirty (30)
days.
12.7 Cause. If either of the parties hereto becomes in default in the
performance of its duties or obligations hereunder, and such default
has a material effect on the other party, then the
13
non-defaulting party may give notice to the defaulting party
specifying the nature of the default in sufficient detail to permit
the defaulting party to identify and cure such default. If the
defaulting party fails to cure such default within sixty (60) days
of receipt of such notice, or within such longer period of time as
the parties may agree is necessary for such cure, then the
non-defaulting party may terminate this Agreement upon notice of not
less than thirty (30) days to the defaulting party.
13. Assignment and Third Party Beneficiaries
13.1 Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the written consent of the other
party, which consent shall not be unreasonably withheld. 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 will release or discharge the assignor
from any duty or responsibility under this Agreement.
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. 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, with consent on the part of the Fund,
subcontract for the performance hereof with (i) any of its
subsidiaries duly registered as a transfer agent or (ii) any of its
affiliates duly registered as a transfer agent. The Transfer Agent
shall be fully responsible to the Fund for the acts and omissions of
its subsidiary or affiliate as it is for its own acts and omissions.
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, 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 by a written
agreement executed by both parties.
14
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.
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, 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 that the parties shall take reasonable steps
under the facts and circumstances then prevailing to mitigate
damages arising out of such causes and events.
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 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.
15.8 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.
15.9 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.
15.10 Counterparts. This Agreement may be executed by the parties hereto
on any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
15.11 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 agree
that any such reproduction shall be admissible in evidence as the
original itself in any
15
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.
15.12 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.
0000 Xxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Credit Suisse Asset Management. LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx, General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17. Additional Funds
In the event that the Fund establishes one or more series of Shares,
in addition to those listed on the attached Schedules A-1 and A-2,
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.
18. Limitations of Liability of Trustees and Shareholders
As applicable, a copy of the Declaration of Trust of the Fund is on
file with the Secretary of The Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of
the Trustees of the Fund as Trustees and not individually and that
the obligations of this instrument are not binding upon any of the
Trustees or Shareholders individually but are binding only upon the
assets and property of the Fund.
16
19. Each Fund a Separate Party to Agreement
19.1 Each undersigned Fund is a separate party under this Agreement.
19.2 Each Fund that is a party hereto shall be regarded for all purposes
as a separate party apart from any of the other funds which are
parties. Each Fund (or a particular Portfolio) shall be responsible
only for its own actions and no property of a Fund (or a particular
Portfolio) shall be commingled with the property of any other Fund
(or a particular Portfolio).
19.3 The use of this single document to memorialize the separate
Agreement of each of the undersigned Funds is understood to be for
clerical convenience only and shall not constitute any basis for
joining the Funds (or a particular Portfolio) in any respect.
19.4 This Agreement is executed by the officers of each Fund in their
capacity as such and not individually. Any responsibility or
liability of a Fund (or a particular Portfolio) under any provision
of this Agreement shall be satisfied solely from the assets of that
Fund or of the particular portfolio, tangible or intangible,
realized or unrealized, and in no event shall the Transfer Agent or
any other person have any recourse against the shareholders,
officers or, to the extent applicable, directors/trustees of the
Fund under this Agreement or against any one Fund or Portfolio for
the obligations of any Fund or Portfolio.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
17
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.
EACH OF THE PARTIES, INDIVIDUALLY
AND NOT JOINTLY, AS INDICATED ON
THE SCHEDULE A-1
BY: /s/ Xxx Xxxxxx
---------------------
Xxx Xxxxxx, Secretary
ATTEST:
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
EACH OF THE PARTIES, INDIVIDUALLY
AND NOT JOINTLY, AS INDICATED ON
THE SCHEDULE A-2
BY: /s/ Xxxxxx Xxxxx
----------------
Xxxxxx Xxxxx, Secretary
ATTEST:
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx, President
ATTEST:
/s/ Xxxxxxxx Xxx
----------------
18
SCHEDULE A-1
Dated: _____________
Credit Suisse Institutional Fund, Inc.
Emerging Markets Portfolio
International Equity Portfolio
Warburg Pincus Post-Venture Capital Portfolio
Small Company Growth Portfolio
Value Portfolio
Credit Suisse Institutional International Growth Fund, Inc.
Credit Suisse Institutional High Yield Fund, Inc.
Credit Suisse Institutional U.S. Core Equity Fund, Inc.
Credit Suisse Institutional U.S. Core Fixed Income Fund, Inc.
Warburg, Xxxxxx Balanced Fund, Inc.
Warburg, Xxxxxx Capital Appreciation Fund, Inc.
Warburg, Pincus Cash Reserve Fund, Inc.
Warburg, Xxxxxx Emerging Growth Fund, Inc.
Warburg, Xxxxxx Emerging Markets Fund, Inc.
Warburg, Xxxxxx European Equity Fund, Inc.
Warburg, Xxxxxx Fixed Income Fund, Inc.
Warburg, Xxxxxx Focus Fund, Inc.
Warburg, Xxxxxx Global Financial Services Fund, Inc.
Warburg, Xxxxxx Global Fixed Income Fund, Inc.
Warburg, Xxxxxx Global Health Sciences Fund, Inc.
Warburg, Xxxxxx Global New Technologies Fund, Inc.
Warburg, Xxxxxx Global Post-Venture Capital Fund, Inc.
Warburg, Xxxxxx Global Telecommunications Fund, Inc.
Warburg, Xxxxxx Intermediate Maturity Government Fund, Inc.
Warburg, Xxxxxx International Equity Fund, Inc.
Warburg, Xxxxxx International Small Company Fund, Inc.
Warburg, Xxxxxx Japan Growth Fund, Inc.
Warburg, Xxxxxx Japan Small Company Fund, Inc.
Warburg, Pincus Long-Short Market Neutral Fund, Inc.
Warburg, Xxxxxx Major Foreign Markets Fund, Inc.
Warburg, Xxxxxx Municipal Bond Fund, Inc.
Warburg, Xxxxxx New York Intermediate Municipal Fund, Inc.
Warburg, Xxxxxx New York Tax Exempt Fund, Inc.
Warburg, Xxxxxx Small Company Growth Fund, Inc.
Warburg, Xxxxxx Small Company Value II Fund, Inc.
SCHEDULE A-1
Dated: _____________
(continued)
Warburg, Xxxxxx Trust
Emerging Markets Portfolio
Value Portfolio
International Equity Portfolio
Global Post-Venture Capital Portfolio
Small Company Growth Portfolio
Emerging Growth Portfolio
Warburg, Xxxxxx Trust II
Fixed Income Portfolio
Warburg, Xxxxxx Value II Fund, Inc.
Warburg, Xxxxxx WorldPerks Money Market Fund, Inc.
Warburg, Xxxxxx WorldPerks Tax Free Money Market Fund, Inc.
Warburg, Xxxxxx Aggressive Growth Fund, Inc.
EACH OF THE PARTIES, INDIVIDUALLY BOSTON FINANCIAL DATA SERVICES, INC.
AND NOT JOINTLY, AS INDICATED ON
THE SCHEDULE A-1
BY: /s/ Xxx Xxxxxx BY: /s/ Xxxxxx X. Xxxxx
------------------------- ------------------------------
Xxx Xxxxxx, Secretary Xxxxxx X. Xxxxx, President
SCHEDULE A-2
Credit Suisse Warburg Pincus Capital Funds
Credit Suisse Warburg Pincus Value Fund
Credit Suisse Warburg Pincus Blue Chip Fund
Credit Suisse Warburg Pincus Small Company Value Fund
Credit Suisse Warburg Pincus Fixed Income II Fund
Credit Suisse Warburg Pincus Municipal Trust Fund
Credit Suisse Warburg Pincus Opportunity Funds
Credit Suisse Warburg Pincus International Equity II Fund
Credit Suisse Warburg Pincus Developing Markets Fund
Credit Suisse Warburg Pincus High Income Fund
Credit Suisse Warburg Pincus U.S. Government Money Fund
Credit Suisse Warburg Pincus Municipal Money Fund
Credit Suisse Warburg Pincus Select Funds
Credit Suisse Warburg Pincus Strategic Growth Fund
Credit Suisse Warburg Pincus Technology Fund
EACH OF THE PARTIES, INDIVIDUALLY BOSTON FINANCIAL DATA SERVICES, INC.
AND NOT JOINTLY, AS INDICATED ON
THE SCHEDULE A-2
BY: /s/ Xxxxxx Xxxxx BY: /s/ Xxxxxx X. Xxxxx
--------------------------- ------------------------------
Xxxxxx Xxxxx, Secretary Xxxxxx X. Xxxxx, President
SCHEDULE 3.1
FEES
Effective: __________, 2001 through ___________, 2003
Annual Account Service Fees
Open Accounts (Complex Accounts)
0 - 175K 176 - 225K 226K+
-------- ---------- -----
Daily $12.00 $11.40 $10.80
Non-Daily $ 9.50 $ 8.90 $ 8.30
Matrix Xxxxx 0 Accounts $ 8.00 $ 7.40 $ 6.80
Closed Account Fee $ 3.00
Activity Based Fees
New Account Set-up $ 4.00/Each
Manual Transactions (1 - 275,000 Transactions) $ 2.00/Each
Manual Transactions (275,001 - 325,000) $ 1.75/Each
Manual Transactions (325,001 + Transactions) $ 1.50/Each
Omnibus Transactions $ 2.50/Each
Telephone Calls (Overflow) $ 3.00/Each
Correspondence $ 4.00/Each
Optional Fees
Investor/Per Investor $ 1.80/Account/Year
12b-1 Fees $ 1.00/Account/Year
TPA Relationship/Per Relationship $ 10,000.00/Year
XXX Custodial Fees
Annual Maintenance $ 12.50/Account
Maximum $ 25.00/SSN
Conversion
Conversion Fee (One Time) $100,000.00*
*Waived subject to the terms of Section 12.2 of the Agreement.
SCHEDULE 3.1
FEES
(Continued)
Balance Earnings Credit
A balance earnings credit from the Fund's DDA balances will be used to partially
offset transfer agent fees. The credit paid to the Transfer Agent from such
balance earnings will be as set forth below:
0 - 30 Cusips $375,000 per annum
Each additional cusip over 30 cusips
Open Cusip $10,000 per cusip, per annum**
Closed Cusip $4,000 per cusip, per annum**
**Waived for first 6 months following the establishment of cusip.
Northwest WorldPerks reconciliation fee $75,000 per annum
The above may be adjusted on a periodic basis (i.e.: monthly, quarterly, and
annual) by agreement of the parties.
Out-of-Pocket Expenses Billed as incurred
Out-of Pocket expenses include but are not limited to: confirmation statements,
investor statements, audio response, long distance telephone calls, records
retention, customized programming/enhancements, federal wire fees, transcripts,
microfilm, microfiche, disaster recovery, software licensing, banking services,
image print station, remote imaging, hardware at the Fund's facility, and
expenses incurred at the specific direction of the Fund.
EACH OF THE PARTIES, INDIVIDUALLY BOSTON FINANCIAL DATA SERVICES, INC.
AND NOT JOINTLY, AS INDICATED ON
THE SCHEDULE A-1
BY: /s/ Xxx Xxxxxx BY: /s/ Xxxxxx X. Xxxxx
--------------------------- --------------------------------
Xxx Xxxxxx, Secretary Xxxxxx X. Xxxxx, President
EACH OF THE PARTIES, INDIVIDUALLY
AND NOT JOINTLY, AS INDICATED ON
THE SCHEDULE A-2
BY: /s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx, Secretary
2
