TRANSFER AGENCY AND SERVICE AGREEMENT
between
NVEST COMPANIES TRUST I
and
NVEST SERVICES COMPANY, INC.
TABLE OF CONTENTS
Page
----
1. Appointment and Duties.......................................1
2. Third Party Administrators for Defined Contribution Plans ...3
3. Fees and Expenses............................................4
4. Representations and Warranties of the Transfer Agent.........5
5. Representations and Warranties of the Fund...................5
6. Wire Transfer Operating Guidelines...........................6
7. Data Access and Proprietary Information......................8
8. Confidentiality..............................................9
9. Indemnification.............................................10
10. Standard of Care............................................11
11. Information to be Furnished by the Fund ....................12
12. Recordkeeping...............................................12
13. Termination of Agreement....................................12
14. Assignment and Third Party Beneficiaries....................13
15. Subcontractors..............................................13
16. Miscellaneous...............................................14
17. Additional Funds............................................15
18. Limitations of Liability of the Trustees and Shareholders...16
TRANSFER AGENCY AND SERVICE AGREEMENT
Agreement made as of this 1st day of September, 2000, by and between NVEST
COMPANIES TRUST I, a Massachusetts business trust, having its principal office
and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the
"Fund"), and NVEST SERVICES COMPANY, INC., a Massachusetts corporation 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 currently offers shares in one series, such series being named
in the attached Schedule A, which may be amended by the parties from time to
time (such series, and each other series subsequently established by the Fund
and made subject to this Agreement in accordance with Section 17 hereof, being
herein referred to as a "Portfolio," and collectively as the "Portfolios"); and
WHEREAS, the Fund, on behalf of the Portfolios, desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, and agent in connection
with certain other activities, and the Transfer Agent desires to accept such
appointment.
WHEREAS, the Transfer Agent intends to engage Boston Data Financial Services,
Inc. (the "Sub-Transfer Agent") to perform certain of the services to be
provided by the Transfer Agent hereunder and enter into a Sub-Transfer Agency
and Service Agreement with the Sub-Transfer Agent to that effect, and the Fund
hereby acknowledges the Transfer Agent's intent to so engage the Sub-Transfer
Agent.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. Appointment and Duties
----------------------
1.1 General. 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 authorized and issued shares of beneficial
interest of the Fund ("Shares"), dividend disbursing agent, and agent in
connection with any accumulation, open-account, or similar plan provided
to the shareholders of each of the respective Portfolios of the Fund
("Shareholders") and set out in the currently effective prospectuses and
statements of additional information ("Prospectus") of the Fund, on
behalf of the applicable Portfolio, including, without limitation, any
periodic investment plan or periodic withdrawal program.
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In accordance with written procedures established from time to time by
agreement between the Fund and the Transfer Agent, the Transfer Agent
agrees that it will perform the services set forth in Schedule B hereto.
As the Fund and the Transfer Agent may, from time to time, mutually agree
in writing, such services may be changed and the Transfer Agent may at
times perform only a portion of the services listed in Schedule B, and
the Fund or its agent may perform such services.
1.2 Retirement Accounts. With respect to certain retirement plans or accounts
(such as individual retirement accounts ("IRAs"), SIMPLE IRAs, SEP IRAs,
Xxxx IRAs, Education IRAs, and 403(b) Plans (such accounts, "Retirement
Accounts")), the Transfer Agent, at the request of the Fund, may provide
or arrange for the provision of appropriate prototype plans as well as
provide or arrange for the provision of various services to such plans
and/or accounts, which services may include plan custodian services,
account set-up, maintenance, and disbursements as well as such other
services as the parties hereto shall mutually agree upon.
If at any time and for any reason the Transfer Agent, any of its agent or
sub-contractors, or any of their affiliates chooses to resign as
custodian of any or all Retirement Accounts, the Transfer Agent will give
the Fund at least eighty-five (85) days' prior written notice and shall
not be required to designate a successor custodian. If either party
chooses to terminate this Agreement pursuant to Section 13 hereof, the
Transfer Agent, any of its agents or sub-contractors, or any of their
affiliates may thereupon resign as custodian in respect to any or all of
the Retirement Accounts upon eighty-five (85) days' prior written notice
to the Fund. In either such event, the Fund will promptly distribute
notice of the custodian's resignation to such persons and in such manner
as are called for under the applicable provisions of the Retirement
Account and in form and content satisfactory to and signed by the
Transfer Agent. The Fund shall be responsible for obtaining a successor
custodian for all Retirement Accounts.
1.3 Review and Maintenance of Fund Prototype Retirement Plans or Account
Materials.
(a) If the Fund develops and makes available its own retirement plan
prototypes or account materials (the "Fund Prototype(s)") for use in
connection with a Retirement Account or Accounts, the Fund, subject to
the terms set forth below, may appoint the Transfer Agent, one of its
agent or sub-contractors, or an affiliate thereof as the custodian with
respect to such Retirement Accounts.
(b) The Fund agrees that the Fund Prototypes will comply with applicable
sections of the Internal Revenue Code of 1986, as amended (the "Code"),
and regulations promulgated thereunder as in effect at the time. The Fund
will be responsible for establishing, maintaining, and updating the Fund
Prototypes in compliance with the Code and all other applicable federal
or state law or regulations, when changes in the law require such
updating.
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(c) The Fund agrees that the Fund Prototypes are the responsibility of
the Fund and further agrees that it will indemnify, defend, and hold
harmless the Transfer Agent, its affiliates, successors, representatives,
and assigns from and against any and all losses, damages, costs, charges,
expenses, including reasonable fees for counsel, taxes, penalties, and
liabilities (collectively, "Losses") arising out of or attributable to
the use of a Fund Prototype by the Fund or the Transfer Agent, its
agents, employees, representatives, or any other person acting on a
Fund's behalf, except to the extent that such Losses arise out of or are
attributable to the negligence, bad faith, or willful misconduct of the
Transfer Agent (or its agents, affiliates, successors, or assigns),
unless such negligence is a result of complying with a Fund Prototype.
This indemnification obligation will survive termination of this
Agreement.
(d) The Fund agrees that any modifications made by the Fund to a Fund
Prototype without the Transfer Agent's written consent or the required
written consent of any of the Transfer Agent's agents or sub-contractors
or any of their affiliates shall not increase the liabilities or
responsibilities of the Transfer Agent or that of such agent,
sub-contractor, or affiliate as custodian or limit the Transfer Agent's
ability or that of that of its agent or sub-contractor, or any of their
affiliates to resign as custodian as provided hereunder. The Fund will
furnish the Transfer Agent with a copy of each Fund Prototype. The
Transfer Agent shall not be required to review, comment, or advise on
such Fund Prototypes.
1.4 Blue Sky. The Fund shall (a) identify to the Transfer Agent in writing
those transactions and assets to be treated as exempt from blue sky
reporting for each State and (b) 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 that will enable the Fund
to monitor the total number of Shares sold in each State.
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 such customers
("Employers") may adopt certain plans (each a "Plan," and collectively,
"Plans") for the benefit of Plan participants (the "Participants"), such
Plans being qualified under Section 401(a) of the Code, and administered
by third party administrators, which may be "administrators" as defined
in the Employee Retirement Income Security Act of 1974, as amended
("TPA(s)").
2.2 In accordance with the procedures established in Schedule 2.2 hereto
entitled "Third Party Administrator Procedures," as may be amended by the
Transfer Agent and the Fund from time to time ("Schedule 2.2"), the
Transfer Agent shall:
(a) treat Shareholder accounts established by the Plans in the name of
the Plan Trustees, the Plans or TPAs, as the case may be, as omnibus
accounts;
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(b) maintain omnibus accounts on its records in the name of the TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) perform all services under Section 1 as transfer agent of the Fund
and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be deemed
exception services ("Exception Services") when such transactions:
(a) require the Transfer Agent or its sub-agent to use methods and
procedures other than those usually employed by the Transfer Agent or its
sub-agent to perform services described under Section 1 of this
Agreement;
(b) involve the provision of information to the Transfer Agent or its
sub-agent after the commencement of the nightly processing cycle of the
transfer agency data processing system then in use by the Transfer Agent
or its sub-agent (the "System"); or
(c) require more manual intervention by the Transfer Agent or its
sub-agent, either in the entry of data or in the modification or
amendment of reports generated by the 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 fees 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 fees paid under Section 3.1
above, the Fund agrees to reimburse the Transfer Agent for the Transfer
Agent's reasonable out-of-pocket expenses, including, but not limited to,
confirmation production, postage, investor statements, telephone,
telecommunication and line charges, microfilm, microfiche, checks, forms
(including year end forms), wire fees, mailing and tabulating proxies,
records storage, costs associated with certain specialty products,
systems, or services, as applicable (such as "Investor," "Voice," "Fan,"
and "Vision"), or advances incurred by the Transfer Agent for the items
set out in Schedule 3.1 attached hereto. In addition, any other expenses
reasonably 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.
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3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing
notice, except for any fees or expenses that are subject to good faith
dispute. In the event of such a dispute, the Fund may withhold only 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.
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 and is duly
registered as a transfer agent under the Securities Exchange Act of 1934,
as amended.
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 (either directly or pursuant to
contractual arrangements with third parties) 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 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.
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5.5 A registration statement under the Securities Act of 1933, as amended, is
currently effective or will be effective prior to the public issuance and
sale of Portfolio shares and will remain effective, and appropriate state
securities law filings have been made or will be made prior to the public
issuance of applicable Portfolio shares and will continue to be made,
with respect to all Shares of the Fund's Portfolios being offered for
sale.
6. Wire Transfer Operating Guidelines
----------------------------------
6.1 The Transfer Agent is authorized to promptly debit the appropriate Fund
bank 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 The Fund acknowledges that the Security Procedure it has designated on
the Transfer Agent's Wire Transfer Security Procedures Customer Selection
Form (the form of which is attached hereto as Schedule 6.2) 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 shall 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 (a) which 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 that are applicable to the Transfer Agent or any of its
sub-agents; 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 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
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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. 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 ("ACH")
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 or its sub-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 or its sub-agent with
respect to an ACH credit entry are provisional until the Transfer Agent
or its sub-agent receives final settlement for such entry from the
Federal Reserve Bank. If the Transfer Agent or its sub-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 the 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 or its sub-agent's proprietary
information systems, or by facsimile or call-back. The Fund must notify
the Transfer Agent of 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 or its sub-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 its sub-agent ("Data Access
Services") constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial
value to the Transfer Agent or its sub-agent. In no event shall
Proprietary Information be deemed Customer Data. The Fund agrees to treat
all Proprietary Information as proprietary to the Transfer Agent or its
sub-agent and further agrees that it shall not divulge any Proprietary
Information to any
7
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 locations agreed to between the Fund
and the Transfer Agent, and (iii) solely in accordance with the Transfer
Agent's or its sub-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 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;
(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 or its sub-agent's expense the rights of
the Transfer Agent or its sub-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 (a) are or become publicly available without
breach of this Agreement; (b) are released for general disclosure by a
written release by the Transfer Agent or its sub-agent; or (c) are
already in the possession of the receiving party at the time or receipt
without obligation of confidentiality or breach of this Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer Agent's
and its sub-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 or its sub-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 at law, in equity or otherwise for the disclosure
or use of the Proprietary Information in breach of this Agreement, the
Transfer Agent or its sub-agent shall be entitled to seek and obtain a
temporary restraining order, injunctive relief, or other equitable relief
against the continuance of such breach.
8
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 or its sub-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 or its sub-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 AND ITS SUB-AGENTS EXPRESSLY DISCLAIM
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 or its sub-agent
in order to (a) effect the transfer or movement of cash or Shares; or (b)
transmit Shareholder information or other information, then in such event
the Transfer Agent and its sub-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 or its
sub-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 the Fund under
this Section shall survive any termination of this Agreement.
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8. Confidentiality
---------------
8.1 Subject to the provisions of Section 8.2 hereof, the Transfer Agent and
the Fund agree that they will not, at any time during the term of this
Agreement or after its termination, reveal, divulge or make known to any
person, firm, corporation, or other business organization, any customers'
lists, trade secrets, cost figures and projections, profit figures and
projections or any other secret or confidential information whatsoever,
whether of the Transfer Agent or its sub-agent or of the Fund, used or
gained by the Transfer Agent or its sub-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 its sub-agent or the Fund
and their successors and assigns. In the event of breach of the
foregoing, 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-agent or to agents or representatives of
the Fund for purposes of providing services under this Agreement.
8.2 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 subpoenas from state or federal government
authorities, 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, for itself and its
sub-agents, 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.
9. Indemnification
---------------
9.1 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
liabilities 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 (or its trustees', officers' or employees') lack of good
faith, negligence, or willful misconduct;
(c) the Transfer Agent's (and its sub-agent's) reliance upon, and any
subsequent use of or action taken or omitted by the Transfer Agent (or
its sub-agents) based on (i) any information, records, documents, data,
stock certificates, or services that are received by the Transfer Agent
or its agents or subcontractors by machine readable input, facsimile,
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CRT data entry, electronic instructions, or other similar means
authorized by the Fund, and that 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 that 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 of sale of such
Shares, unless such violation of state securities law was directly
attributable to the Transfer Agent's negligence, bad faith, or willful
misconduct (with respect to this Section 9.1(d), in addition to
indemnifying and holding harmless the Transfer Agent, the Fund shall also
indemnify and hold harmless the Transfer Agent's agents and
sub-contractors);
(e) the negotiation and processing of any checks, including, without
limitation, for deposit into any bank account of the Fund; or
(f) the Transfer Agent's entering into any agreements required by the
National Securities Clearing Corporation ("NSCC") for the transmission of
Fund or Shareholder data through the NSCC clearing systems.
9.2 In order that the indemnification provisions contained in this Section 9
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 (which shall not be unreasonably withheld).
10. Standard of Care
----------------
10.1 The Transfer Agent shall at all times act in good faith and agrees to use
its best efforts within reasonable limits 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 such
errors are caused by its negligence, bad faith, or willful misconduct or
that of its employees, except as provided in Section 10.2 below. The
parties agree that any encoding or payment processing errors and the
liability arising under Section 4-209 of the Uniform Commercial Code
shall be governed by this Section 10.1.
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10.2 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.
11. Information to be Furnished by the Fund
---------------------------------------
11.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) a certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the execution
and delivery of this Agreement;
(b) a copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto;
(c) a list of all officers of the Fund, together with specimen signatures
of those officers, who are authorized to instruct the Transfer Agent in
all matters; and
(d) two copies of the following:
1. all of its current Prospectuses and Statements of Additional
Information; and
2. all other forms commonly used by the Fund with regard to its
relationships and transactions with Shareholders of the Fund.
12. Recordkeeping
-------------
12.1 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.
12.2 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in such 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 by either party upon one hundred twenty
(120) days' written notice to the other.
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13.2 Should the Fund exercise its right to terminate this Agreement, all
reasonable out-of-pocket expenses associated with the movement of records
and material will be borne by the Fund at cost. Additionally, the
Transfer Agent reserves the right to charge for any other reasonable
expenses associated with such termination. Payment of such expenses or
costs shall be in accordance with Section 3.4 of this Agreement.
13.3 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. In addition, the Transfer Agent shall promptly provide to
the Fund or a successor transfer agent all records and information
required to be maintained by the Transfer Agent hereunder. To the extent
reasonably possible, the Transfer Agent shall deliver such records and
information in machine readable form.
13.4 Upon the resignation by the Transfer Agent or any of its agents or
sub-contractors or their affiliates as custodian of a Retirement Account,
the Transfer Agent shall promptly return to the Fund and shall require
its agents or sub-contractors to promptly return to the Fund all Fund and
Fund Shareholder records and information held or maintained by such party
in its capacity as Retirement Account custodian. To the extent reasonably
possible, such records and information shall be delivered to the Fund in
machine readable form.
14. Assignment and Third Party Beneficiaries.
-----------------------------------------
14.1 Except as provided in Section 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 under
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.
15. Subcontractors
--------------
15.1 The Transfer Agent may, without further consent on the part of the Fund,
engage subcontractors to perform any of the obligations of the Transfer
Agent under this Agreement; provided, however, that the Transfer Agent
shall be fully responsible to the
13
Fund for the acts and omissions of the subcontractor as it is for its own
acts and omissions.
15.2 Except as otherwise provided in Section 15.1, 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, NSCC
and telecommunication companies, provided, if the Transfer Agent selected
such company, the Transfer Agent shall have exercised due care in
selecting the same.
16. Miscellaneous
-------------
16.1 Relationship of Parties. The parties agree that they are independent
contractors and not partners or co-venturers, and nothing contained
herein shall be interpreted or construed otherwise.
16.2 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties .
16.3 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.
16.4 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.
16.5 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.
16.6 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.
16.7 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.
16.8 Priorities Clause. In the event of any conflict, discrepancy, or
ambiguity between the terms and conditions contained in this Agreement
and any schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
14
16.9 Waiver. No waiver by either party or any breach or default of any of the
covenants or conditions herein contained and performed by the other party
shall be construed as a waiver of any succeeding breach of the same or of
any other covenant or condition.
16.10 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
16.11 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.
16.12. Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic, or other
similar process. The parties hereto each 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.
16.13 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 Nvest Services Company, Inc., to:
Nvest Services Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
With a copy to: General Counsel
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Nvest Companies Trust I
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
With a copy to: Secretary and Clerk
Facsimile: (000) 000-0000
15
17. Additional Funds
----------------
In the event that the Fund establishes one or more series of Shares in
addition to those named on 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 Fund's Declaration of Trust is on file with the Secretary
of State of The Commonwealth of Massachusetts, and notice is hereby given
that this instrument is executed on behalf of the Trustees of the Trust
as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees or Shareholders
individually, but are binding only upon the assets and property of the
Fund.
[Remainder of This Page Intentionally Left Blank]
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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.
NVEST COMPANIES TRUST I
BY: /s/ XXXX X. XXXXXX
------------------------------------
(Hereunto Duly Authorized)
ATTEST:
/s/ XXXXXXXXXXX XXXXXX
----------------------
NVEST SERVICES COMPANY, INC.
BY: /s/ XXXXXXXXXXX X. XXXXXX
-------------------------------------
Xxxxxxxxxxx X. Xxxxxx, President
ATTEST:
/s/ XXXX X. XXXXXXXXX
----------------------
17
SCHEDULE A
LIST OF NVEST COMPANIES TRUST I PORTFOLIOS
AEW FUNDS
1. AEW Real Estate Securities Fund
NVEST COMPANIES TRUST I NVEST SERVICES COMPANY, INC.
BY: /s/ XXXX X. XXXXXX BY: /s/ XXXXXXXXXXX X. XXXXXX
------------------------------- -----------------------------------
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