TRANSFER AGENCY AND SERVICE AGREEMENT
Between
FIRST FUNDS
And
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties. . . . . . . . . . . . . . . . . . . . 1
2. Third Party Administrators for Defined Contribution Plans. . . . . . . 4
3. Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Representations and Warranties of the Transfer Agent . . . . . . . . . 5
5. Representations and Warranties of the Fund . . . . . . . . . . . . . . 6
6. Wire Transfer Operating Guidelines . . . . . . . . . . . . . . . . . . 6
7. Data Access and Proprietary Information. . . . . . . . . . . . . . . . 8
8. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
10. Year 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
11. Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12. Covenants of the Fund and the Transfer Agent . . . . . . . . . . . . . 13
13. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . 13
14. Assignment and Third Party Beneficiaries . . . . . . . . . . . . . . . 14
15. Subcontractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
17. Additional Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
18. Limitations of Liability of the Trustees and Shareholders. . . . . . . 17
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the day of , 1999, by and between FIRST
FUNDS, a Massachusetts business trust, having its principal office and place of
business at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the "Fund"),
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company having
its principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund offers shares in nine (9) series, such series to be named on
the attached Schedule A which 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") and
the shares of such Portfolios are offered in one or more classes; and
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 as set
forth herein 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:
l. TERMS OF APPOINTMENT AND DUTIES
1.1 TRANSFER AGENCY SERVICES. Subject to the terms and conditions set forth in
this Agreement, the Fund, on behalf of the Portfolios, hereby employs and
appoints the Transfer Agent to act as, and the Transfer Agent agrees to act
as its transfer agent for the Fund's authorized and issued shares of its
beneficial interest, $ par value, ("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 resolution 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
Regulations 17Ad-10(e) of the Securities Exchange Act of 1934 as amended
(the "Exchange Act") 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, custodian of certain retirement
plans 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, preparing Shareholder meeting lists, mailing
Shareholder proxies, Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident alien
accounts, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect
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to dividends and distributions by federal authorities for all Shareholders,
preparing and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing activity statements
for Shareholders, 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 to monitor the total number of Shares sold in each State and follow
the Fund's instructions regarding the rejection of all unauthorized sales.
(d) NATIONAL SECURITIES CLEARING CORPORATION (THE "NSCC"). (i) Accept and
effectuate the registration and maintenance of accounts through Networking
and the purchase, redemption, transfer and exchange of shares in such
accounts through Fund/SERV (Networking and Fund/SERV being programs
operated by the NSCC on behalf of NSCC's participants, including the Fund),
in accordance with instructions transmitted to and received by the Transfer
Agent by transmission from NSCC on behalf of broker-dealers and banks which
have been established by, or in accordance with the instructions of
authorized persons, as hereinafter defined on the dealer file maintained by
the Transfer Agent; (ii) issue instructions to Fund's banks for the
settlement of transactions between the Fund and NSCC (acting on behalf of
its broker-dealer and bank participants); (iii) provide account and
transaction information from the affected Fund's records on DST Systems,
Inc. computer system TA2000 ("TA2000 System") in accordance with NSCC's
Networking and Fund/SERV rules for those broker-dealers; 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.
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2. THIRD PARTY ADMINISTRATORS FOR DEFINED CONTRIBUTION PLANS
2.1 The Fund may decide to make available to certain of its customers a
qualified plan program (the "Program") pursuant to which 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 the procedures established in the initial Schedule 2.1
entitled "Third Party Administrator Procedures", as may be amended by the
Transfer Agent and the Fund from time to time ("Schedule 2.1"), the
Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name of the
Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA or its
designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under SECTION 1 as transfer agent of the Funds
and not as a record-keeper for the Plans.
2.3 Transactions identified under SECTION 2 of this Agreement shall be deemed
exception services ("Exception Services") when such transactions:
(a) Require the Transfer Agent to use methods and procedures other than
those usually employed by the Transfer Agent to perform services under
SECTION 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent after the
commencement of the nightly processing cycle of the TA2000 System; or
(c) Require more manual intervention by the Transfer Agent, either in the
entry of data or in the modification or amendment of reports generated by
the TA2000 System than is usually required by non-retirement plan and
pre-nightly transactions.
3. FEES AND EXPENSES
3.1 FEE SCHEDULE. For the performance by the Transfer Agent pursuant to this
Agreement, the Fund agrees to pay the Transfer Agent an annual maintenance
fee for each Shareholder account as set forth in the attached fee schedule
("Schedule 3.1"). Such fees
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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, mailing and tabulating proxies,
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, proxies, Fund reports and other
mailings to all shareholder accounts shall be advanced to the Transfer
Agent by the Fund at least seven (7) days prior to the mailing date of such
materials.
3.4 INVOICES. The Fund agrees to pay all fees and reimbursable expenses within
thirty (30) days following the receipt of the respective billing notice,
except for any fees or expenses, 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 thirty (30) 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.
4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company 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 Charter and By-Laws to
enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
4.6 It is duly registered as a transfer agent under the Exchange Act.
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4.7 Its service company Boston Financial Data Services, Inc. ("Boston
Financial") carries and will continue to carry general liability, errors
and omissions, fidelity bond and other policies, with limits of not less
than five million dollars ($5,000,000) for aggregate general liability,
twenty million dollars ($20,000,000) for errors and omissions and eighty
million dollars ($80,000,000) for fidelity bond and upon written request
shall provide certificates of liability insurance to the Fund.
5. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a business trust duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
5.2 It is empowered under applicable laws and by its Declaration of Trust and
By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Declaration of Trust 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 except as the Fund may advise
the Transfer Agent in writing, 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.
6. WIRE TRANSFER OPERATING GUIDELINES/ARTICLES 4A OF THE UNIFORM COMMERCIAL
CODE
6.1 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 (4:00 PM ET) for processing such a request, unless the
payment order specifies a later time. All payment orders and
communications received after the customary deadline will be deemed to have
been received the next business day.
6.2 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
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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 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 The Transfer Agent reserves the right to decline to process or delay the
processing of a payment order which (a) is in excess of the collected
balance in the account to be charged at the time of the Transfer Agent's
receipt of such payment order; (b) if initiating such payment order would
cause the Transfer Agent, in the Transfer Agent's sole judgement, to exceed
any volume, aggregate dollar, network, time, credit or similar limits which
are applicable to the Transfer Agent; or (c) if the Transfer Agent, in good
faith, is unable to satisfy itself that the transaction has been properly
authorized.
6.5 The Transfer Agent shall use commercially 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 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 The Transfer Agent shall assume no responsibility for lost interest with
respect to the refundable amount of any unauthorized payment order, unless
the Transfer Agent is notified of the unauthorized payment order within
thirty (30) days of notification by the Transfer Agent of the acceptance of
such payment order. In no event (including failure to execute a payment
order) shall the Transfer Agent be liable for special, indirect or
consequential damages, even if advised of the possibility of such damages.
6.8 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
7
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 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. The 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 or 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 the Transfer Agent 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 other device except as expressly permitted by
the Transfer Agent (such permission not to be unreasonably withheld);
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(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.
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.
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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 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 arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such actions
are taken in good faith and without negligence or willful misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on: (i) any
information, records, documents, data, stock certificates or services,
which are received by the Transfer Agent or its agents or subcontractors by
machine readable input, facsimile, CRT data entry, electronic instructions
or other similar means authorized by the Fund, and which have been
prepared, maintained or performed by the Fund or any other person or firm
on behalf of the Fund including but not limited to any previous transfer
agent or registrar; (ii) any instructions or requests of the Fund or any of
its officers; (iii) any instructions or opinions of legal counsel with
respect to any matter arising in connection with the services to be
performed by the Transfer Agent under this Agreement which are provided to
the Transfer Agent after consultation with such legal counsel; or (iv) any
paper or document, reasonably believed to be genuine, authentic, or signed
by the proper person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be registered or
in violation of any stop order or other determination or ruling by any
federal or any state agency with respect to the offer or sale of such
Shares except with respect to those Shares which the Fund has notified the
Transfer Agent are not registered pursuant to SECTION 1.2(c);
(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account maintained by
the Transfer Agent;
(f) Upon the Fund's request entering into any agreements required by the
National Securities Clearing Corporation (the "NSCC") for the transmission
of Fund or Shareholder data through the NSCC clearing systems; or
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(g) Execution by the Transfer Agent or Boston Financial of any
agreements with third party banking entities relating to bank
accounts, bank wires, automated clearing house items or other
bank services in respect of the Fund.
8.2 In order that the indemnification provisions contained in this SECTION 8
shall apply, upon the assertion of a claim for which the Fund may be
required to indemnify the Transfer Agent, the Transfer Agent shall promptly
notify the Fund of such assertion, and shall keep the Fund advised with
respect to all developments concerning such claim. The Fund shall have the
option to participate with the Transfer Agent in the defense of such claim
or to defend against said claim in its own name or in the name of the
Transfer Agent. The Transfer Agent shall in no case confess any claim or
make any compromise in any case in which the Fund may be required to
indemnify the Transfer Agent except with the Fund's prior written consent.
9. STANDARD OF CARE
9.1 The Transfer Agent shall at all times act in good faith and agrees to use
its best efforts to insure 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 unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees,
except as provided in SECTION 9.2 below.
9.2 In the case of Exception Services as defined in SECTION 2.3 herein, the
Transfer Agent shall be held to a standard of gross negligence and encoding
and payment processing errors shall not be deemed negligence.
10. YEAR 2000
10.1 The Transfer Agent will take reasonable steps to ensure that its products
(and those of its third-party suppliers) reflect the available technology
to offer products that are Year 2000 ready, including, but not limited to,
century recognition of dates, calculations that correctly compute same
century and multi century formulas and date values, and interface values
that reflect the date issues arising between now and the next one-hundred
years, and if any changes are required, the Transfer Agent will make the
changes to its products at a price to be agreed upon by the parties and in
a commercially reasonable time frame and will require third-party suppliers
to do likewise.
10.2 The Transfer Agent will conduct ongoing testing to ensure that its products
are Year 2000 Ready and thereafter the Transfer Agent takes reasonable
steps to achieve such Year 2000 Readiness.
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a) For purposes of this SECTION 10, "Year 2000 Readiness" means the
capability to perform all date dependent and date related functions
and to record, store, process and present date information and date
dependent information for calendar dates on or after January 1, 2000.
b) The provisions of this SECTION 10 do not constitute a certification,
guarantee, warranty or indemnity with respect to Year 2000 Readiness.
11. CONFIDENTIALITY
11.1 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 other than their respective officers, directors, employees and
agents on a need-to-know basis or as otherwise set for herein, any
customers' lists, trade secrets, cost figures and projections, profit
figures and projections, or any other secret or confidential information
whatsoever, whether of the Transfer Agent or of the Fund, used or gained by
the Transfer Agent or the Fund during performance under this Agreement.
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 be responsible for its sub-contractors
under SECTION 11.1 hereunder as provided in SECTION 15 hereunder.
11.2 In the event that any requests or demands are made for the inspection of
the Shareholder records of the Fund, other than request for records of
Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the Transfer
Agent will endeavor to notify the Fund and attempt 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.
12
12. COVENANTS OF THE FUND AND THE TRANSFER AGENT
12.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the execution
and delivery of this Agreement; and
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto.
12.2 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.
12.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder in the form and manner, as it may deem advisable. To
the extent required by Section 31 of the Investment Company Act of 1940, as
amended, and the Rules thereunder, the Transfer Agent agrees that all such
records prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are the property
of the Fund and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to
the Fund on and in accordance with its request.
13. TERMINATION OF AGREEMENT
13.1 This Agreement may be terminated (i) by either party upon ninety (90) days
written notice to the other and (ii) immediately by the Fund at its sole
option upon written notice to the Transfer Agent if such termination
results from the Transfer Agent's failure to achieve Year 2000 Readiness as
defined in SECTION 10.2(a) of this Agreement.
13.2 Unless due to (i) material breach or (ii) failure of the Transfer Agent to
achieve Year 2000 Readiness, should the Fund exercise its right to
terminate, all out-of-pocket expenses and any other reasonable expenses
approved by the Fund in writing associated with the movement of records and
material will be borne by the Fund. Payment of such expenses or costs
shall be in accordance with SECTION 3.4 of this Agreement.
13.3 In the event of termination under SECTION 13.2(ii) such termination shall
be without cost or penalty to either party. Notwithstanding the foregoing,
the Fund shall not reimburse the Transfer Agent for the out-of pocket
costs, expenses and disbursements in connection with transfer if
termination is due to the Transfer Agent's failure to have achieved Year
2000 Readiness.
13
13.4 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.
14. ASSIGNMENT AND THIRD PARTY BENEFICIARIES.
14.1 Except as provided in SECTIONS 8.1(g) AND 15.1 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party. Any attempt to do so
in violation of this Section shall be void. Unless specifically stated to
the contrary in any written consent to an assignment, no assignment will
release or discharge the assignor from any duty or responsibility under
this Agreement.
14.2 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.
14.3 This Agreement does not constitute an agreement for a partnership or joint
venture between the Transfer Agent and the Fund. Other than as provided in
SECTIONS 8.1(g) AND 15.1, neither party shall make any commitments with
third parties that are binding on the other party without the other party's
prior written consent.
15. SUBCONTRACTORS
15.1 The Transfer Agent may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the
Exchange Act, (ii) a BFDS subsidiary duly registered as a transfer agent or
(iii) a BFDS affiliate duly registered as a transfer agent; provided,
however, that the Transfer Agent shall be fully responsible to the Fund for
the acts and omissions of BFDS or its subsidiary or affiliate as it is for
its own acts and omissions.
15.2 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.
14
16. MISCELLANEOUS
16.1 AMENDMENT. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Trustees of the Fund.
16.2 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.
16.3 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 resulting from such failure
to perform or otherwise from such causes. In any event each party will
use commercially reasonable efforts to mitigate damages.
16.4 CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be liable
to the other party for consequential damages under any provision of this
Agreement or for any consequential damages arising out of any act or
failure to act hereunder.
16.5 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.
16.6 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.
16.7 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.
16.8 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.
16.9 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.
16.10 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
16.11 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 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.
16.12 AUDIT; ANNUAL FINANCIAL STATEMENTS. Transfer Agent will cooperate in
providing to Fund or its auditors, any information reasonably requested
by Fund or Fund's auditors which is necessary or required for the
performance by Fund of any audit of the accounts or records of Services
performed by Transfer Agent pursuant to the terms and conditions of this
Agreement to the extent required by law. All out-of-pocket expenses
associated with compliance with such requests outside the customary
services rendered by the Transfer Agent under SECTION 1 of the Agreement
shall be borne by the Fund.
16.13 NOTICES. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Fund, to:
ALPS Mutual Funds
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxx, Treasurer
Facsimile: (000) 000-0000
16
16.13 INSPECTION OF RECORDS. Upon the Fund's written request the Transfer
Agent shall make all Shareholder records available for inspection by the
Fund or its agents. All out-of-pocket expenses associated with compliance
with such requests outside the customary services rendered by the
Transfer Agent under SECTION 1 of the Agreement shall be borne by the
Fund.
17. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of Shares in
addition to the attached Schedule A with respect to which it desires to
have the Transfer Agent render services as transfer agent under the terms
hereof, it shall so notify the Transfer Agent in writing, and if the
Transfer Agent agrees in writing to provide such services, such series of
Shares shall become a Portfolio hereunder.
18. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of The Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed by an officer of the Trust and
that the obligations of this instrument are not binding upon any of the
Trustees of the Trust or Shareholders individually but are binding only
upon the assets and property of the Fund.
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.
FIRST FUNDS
BY:
-------------------------------
ATTEST:
------------------------------
STATE STREET BANK AND TRUST
COMPANY
BY:
------------------------------
Executive Vice President
ATTEST:
18
SCHEDULE A
Bond Portfolio
Capital Appreciation Portfolio
Cash Reserve Portfolio
Intermediate Bond Portfolio
Growth & Income Portfolio
Municipal Money Market Portfolio
Tennessee Tax Free Portfolio
U.S. Government Money Market Portfolio
U.S. Treasury Money Market Portfolio
FIRST FUNDS STATE STREET BANK AND TRUST
COMPANY
BY: BY:
--------------------------------- ----------------------------------
19
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated
----------
1. On each Business Day, the TPA(s) shall receive, on behalf of and as agent
of the Fund(s), Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the
purchases of Shares, and (ii) requests by the Plan for the redemption of
Shares; in each case based on the Plan's receipt of purchase orders and
redemption requests by Participants in proper form by the time required by
the term of the Plan, but not later than the time of day at which the net
asset value of a Fund is calculated, as described from time to time in that
Fund's prospectus. Each Business Day on which the TPA receives
Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions,
to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Transfer Agent of the net amount of such
purchases or redemptions, as the case may be, for each of the Plans. In
the case of net purchases by any Plan, the TPA(s) shall instruct the
Trustees of such Plan to transmit the aggregate purchase price for Shares
by wire transfer to the Transfer Agent on (TD+1). In the case of net
redemptions by any Plan, the TPA(s) shall instruct the Fund's custodian to
transmit the aggregate redemption proceeds for Shares by wire transfer to
the Trustees of such Plan on (TD+1). The times at which such notification
and transmission shall occur on (TD+1) shall be as mutually agreed upon by
each Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Transfer Agent
and such account shall be in the name of that Plan, the TPA(s), or the
nominee of either thereof as the record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan as
of the statement closing date, purchases and redemptions of Shares by the
Plan during the period covered by the statement, and the dividends and
other distributions paid to the Plan on Shares during the statement period
(whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information
provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to each
Fund or any agent designated by it such periodic reports covering Shares of
each Plan as each Fund shall reasonably conclude are necessary to enable
the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses, proxy
materials, periodic reports and other materials relating to each Fund be
furnished to Participants in which event the Transfer Agent or each Fund
shall mail or cause to be mailed such materials to Participants. With
respect to any such mailing, the TPA(s) shall, at the request of the
Transfer Agent or each Fund, provide at the TPA(s)'s expense complete and
accurate set of mailing labels with the name and address of each
Participant having an interest through the Plans in Shares.
FIRST FUNDS STATE STREET BANK AND TRUST
COMPANY
BY: BY:
---------------------------------- ---------------------------------
SCHEDULE 3.1
FEES
Dated
---------
ANNUAL ACCOUNT SERVICE FEES
Per Account Fee $ 25.00
Closed Account Fee $ 1.80
Base Fee (per Fund/Class) $ 18,575
Each class is considered a fund and will be billed accordingly.
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. A
charge is made for an account in the month that an account opens or closes.
OTHER FEES
NSCC Interface $ 1,500/per Cusip
CONVERSION FEES*
---------------
Per Account Fee $ 1.00
Minimum (per complex) $ 25,000
XXX CUSTODIAL FEES
------------------
Annual Maintenance $ 10.00/account
OUT-OF-POCKET EXPENSES Billed as incurred
Out-of-Pocket expenses include but are not limited to: confirmation statements,
investor statements, postage, banking services, forms, audio response,
telephone, records retention, customized programming / enhancements, federal
wire, transcripts, microfilm, microfiche, and expenses incurred at the specific
direction of the fund.
These fees will be subject to an annual Cost of Living Adjustment based on
regional consumer price index.**
*The conversion fee will be waived contingent upon a three-year term contract.
**This cost of living adjustment will be waived for the first three years of the
proposed three-year term.
FIRST FUNDS STATE STREET BANK AND TRUST
COMPANY
BY: BY:
--------------------------------- ----------------------------------
