Exhibit (h)(1)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EACH OF THE ENTITIES LISTED ON SCHEDULE A
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
----
1. Terms of Appointment and Duties............................................1
2. Financial Intermediaries and Third Party Administrators....................7
3. Fees and Expenses..........................................................8
4. Representations and Warranties of the Transfer Agent......................10
5. Representations and Warranties of the Trust...............................10
6. Wire Transfer Operating Guidelines........................................11
7. Data Access and Proprietary Information...................................12
8. Indemnification...........................................................15
9. Standard of Care/Limitation of Liability..................................16
10. Confidentiality ..........................................................17
11. Inspection Rights.........................................................17
12. Assurance on Risk Management..............................................18
13. Covenants of the Trust and the Transfer Agent.............................18
14. Termination of Agreement..................................................19
15. Assignment and Third Party Beneficiaries..................................20
16. Subcontractors............................................................21
17. Miscellaneous.............................................................21
18. Additional Trusts/Funds...................................................23
19. Limitations of Liability of the Trustees and Shareholders.................23
Schedule A Trusts and Funds
Schedule 1.2(f) AML Delegation
Schedule 3.1 Fees and Expenses
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT made as of the 14th day of December, 2005, by and
between each of the entities listed on Schedule A hereto and each being an
entity of a type as set forth on Schedule A and organized under the laws of the
state as set forth on Schedule A, each with place of business at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 and each of which is acting on its own
behalf and on behalf of each of the funds listed under its name on Schedule A,
but not jointly with any other entities listed on Schedule A (each such entity,
together with its Funds (as defined below), shall be severally referred to as
the "Trust") 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").
WITNESSETH:
WHEREAS, each Trust currently set forth on Schedule A is a statutory or business
trust registered with the Securities and Exchange Commission as an investment
company pursuant to the Investment Company Act of 1940, as amended ("1940 Act");
and
WHEREAS, each Trust currently set forth on Schedule A is authorized to issue
shares in separate series, with each such series representing interests in a
separate portfolio of securities and other assets (each such series, together
with all other series subsequently established by the Trust and made subject to
this Agreement in accordance with Section 18 being herein referred to severally
as the Trust's "Funds"); and
WHEREAS, it is contemplated that additional Trusts and their Funds may become
parties to this agreement by mutual consent of the parties hereto and by
execution of a counterpart signature page to this Agreement; and
WHEREAS, the Trust on behalf of the Funds desires to appoint the Transfer Agent
as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Trust, on behalf of the Funds, hereby employs and
appoints the Transfer Agent to act as, and the Transfer Agent agrees to
act as, its transfer agent for the Trust's authorized and issued shares
of its beneficial interest ("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 Funds of the Trust ("Shareholders") and set
out in the currently effective prospectus and statement of additional
information ("prospectus") of the Trust on behalf of the applicable
Fund, including without limitation any periodic investment plan or
periodic withdrawal program. In accordance with procedures established
from time to time by agreement between the Trust on behalf of each of
the Funds, as applicable, and the Transfer Agent, the Transfer Agent
agrees that it will perform the following services:
(a) Establish each Shareholder's account in the Trust on the Transfer
Agent's recordkeeping system and maintain such account for the benefit
of such Shareholder;
(b) Receive for acceptance and process orders for the purchase of
Shares, and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Trust authorized pursuant to the Trust
Instrument of the Trust (the "Custodian");
(c) Pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(d) Receive for acceptance and process redemption requests and
redemption directions and deliver the appropriate documentation thereof
to the Custodian;
(e) In respect to items (a) through (d) above, the Transfer Agent may
execute transactions directly with broker-dealers authorized by the
Trust;
(f) 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;
(g) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(h) Prepare and transmit payments for dividends and distributions
declared by the Trust on behalf of the applicable Fund;
(i) 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 Trust, and the Transfer Agent at its option, may
issue replacement certificates in place of mutilated stock certificates
upon presentation thereof and without such indemnity;
(j) Issue replacement checks and place stop orders on original checks
based on Shareholder's representation that a check was not received or
was lost;
(k) Maintain records of account for and advise the Trust and its
Shareholders as to the foregoing; and
(1) Record the issuance of Shares of the Trust and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares of the Trust
which are authorized, based upon data provided to it by the Trust, and
issued and outstanding. The Transfer Agent shall also provide the Trust
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 Trust.
2
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, Shareholder
reports and prospectuses to current Shareholders, withholding taxes on
U.S. resident and non-resident alien accounts, preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms required with
respect to dividends and distributions by federal authorities for all
Shareholders, preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and
other confirmable transactions in Shareholder accounts, 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 Trust of all transactions and
receipts and disbursements of money and securities and deliver a copy of
such report for the Trust for each business day to the Trust no later
than 9:00 AM Eastern Time, or such earlier time as the Trust may
reasonably require, on the next business day;
(c) "Blue Sky" Reporting. The Trust 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 Trust's blue sky State registration status
is solely limited to the initial establishment of transactions subject
to blue sky compliance by the Trust and providing a system which will
enable the Trust to monitor the total number of Shares sold in each
State;
(d) National Securities Clearing Corporation (the "NSCC"). (i) accept
and effectuate the registration and maintenance of accounts through
Networking and the purchase, redemption, transfer and exchange of shares
in such accounts through Fund/SERV (Networking and Fund/SERV being
programs operated by the NSCC on behalf of NSCC's participants,
including the Trust), 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 Trust's banks for the settlement of transactions between
the Trust and NSCC (acting on behalf of its broker-dealer and bank
participants); (iii) provide account and transaction information from
the affected Trust'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;
3
(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 Trust and the Transfer Agent. The Transfer
Agent may at times perform only a portion of these services and the
Trust or its agents and affiliates may perform these services on the
Trust's behalf. As of the commencement of this Agreement, the parties
agree that the Trust or its agent or affiliate, shall be responsible for
performing the following services: (i) answering and responding to phone
calls from Shareholders and advisors during certain hours and (ii)
scanning of all street mail sent to the Trust address. With respect to
the services to be performed by the Trust or by any Trust agent or
affiliate, the Trust agrees that the Transfer Agent shall be relieved
from all responsibility and liability for the services performed or to
be performed by the Trust, its agents or affiliates and shall be
indemnified and held harmless by the Trust against any liability arising
therefrom to the same extent as provided for in Section 8 of this
Agreement. The Trust and Transfer Agent may agree for the Transfer Agent
to answer and respond to phone calls from Shareholders and advisors
during certain hours.
(f) Anti-Money Laundering ("AML") Delegation. If the Trust elects to
delegate to the Transfer Agent certain AML duties under this Agreement,
the parties will agree to such duties and terms as stated in the
attached schedule ("Schedule 1.2(f) entitled "AML Delegation") which may
be changed from time to time subject to mutual written agreement between
the parties. In consideration of the performance of the duties by the
Transfer Agent pursuant to this Section 1.2(f), the Trust agrees to pay
the Transfer Agent for the reasonable administrative expense that may be
associated with such additional duties in the amount as the parties may
from time to time agree in writing in accordance with Section 3 (Fees
and Expenses) below.
1.3 Facsimile Communications.
(a) The Trust hereby authorizes and instructs the Transfer Agent, as
transfer agent for the Trusts listed on Schedule A: (i) to accept
facsimile transaction requests on behalf of individual Shareholders
received from broker/dealers of record, third-party administrators
("TPAs") or the Trust; (ii) that the broker/dealers, TPAs and the Trust
are duly authorized to initiate such transactions on behalf of the
Shareholders; and (iii) that the original source documentation is in
good order and the broker/dealers, TPAs or the Trust will retain such
documentation.
1.4 Retirement Accounts. The Trust has developed certain Retirement Plan
Programs pursuant to which the customers ("Employers") and individuals
("Participants") may adopt certain retirement plans ("Plan" or "Plans").
Retirement Plan Programs shall mean the Trust's standardized profit
sharing plans, money purchase plans, 401(k) plans, 403(b)(7)
plans and Traditional, Xxxx, SEP Individual Retirement Accounts
(collectively "IRAs"). The Trust has developed and shall provide, plan
documents for such Plans which are qualified under Sections 401(a), 401
(k), 408, 408A and 403(b) of the Internal Revenue Code of 1986 (the
"Code"), as amended ("Trust Prototypes"). The Trust desires
4
to appoint the Transfer Agent as custodian or trustee of any Plan
established by an Employer or Participant using the Trust Prototypes and
the Transfer Agent desires to accept such appointment, provided however
that such Plan is maintained on the Transfer Agent's systems pursuant to
this Agreement. The parties agree as follows:
(a) As custodian or trustee of the Plans, the Transfer Agent will be
designated as the owner, on the records of the Trust;
(b) Records of the custodian's or trustee's ownership of Shares of the
Trust will be maintained by the Transfer Agent for such Shares in the
name of the Transfer Agent as custodian or trustee (or its nominee) and
no physical Shares will be issued.
(c) Under the terms of each Trust Prototype, the Transfer Agent as
custodian or trustee has no investment responsibility for the selection
of investments for a Plan and the Transfer Agent will have no liability
for any investments made for a Plan other than to maintain custody of
the investments subject to the terms of this Agreement. The Trust will
not state or make any representations to the contrary hereof.
(d) The Transfer Agent will not serve as plan administrator of any Plan,
or in any other administrative or other capacity except as custodian or
trustee thereof. The Transfer Agent will not keep records of the Plans
or maintain any other records except those that are necessary to serve
as custodian, trustee or as transfer agent pursuant to this Agreement.
The Trust will not state or make any representations to the contrary
hereof.
(e) The Trust will upon reasonable advance notice make available access
to its facilities and access to or copies of such records to the
Transfer Agent as the Transfer Agent may request in order that the
Transfer Agent may determine that the Trust is properly performing any
duties and obligations it may have hereunder.
(f) As agreed by the Trust and the Transfer Agent, the Trust may share
in the annual maintenance fee with respect to each Retirement Account.
1.5 Review and Maintenance of Fund Prototypes or Account Materials.
(a) The Trust agrees that the Trust Prototypes will comply with
applicable sections of the Code and regulations promulgated pursuant to
the Code in effect at the time. The Trust will be responsible for
establishing, maintaining and updating the Trust Prototypes in
compliance with the Code and all other applicable Federal or state law
or regulations, when changes in the law require such updating.
(b) The Trust agrees that any modifications made by the Trust to the
Trust Prototypes without the Transfer Agent's written consent shall not
increase the liabilities or responsibilities of the Transfer Agent as
custodian or limit the Transfer Agent's ability to resign as custodian
as provided under Section 1.6 below. The Trust will furnish the Transfer
Agent with a copy of the Trust Prototypes. The Transfer Agent shall not
be required to review, comment or advise on such Trust Prototypes.
5
1.6 Resignation or Removal of Custodian
(a) If either party chooses to terminate pursuant to Section 12 of the
Agreement the Transfer Agent may thereupon resign as custodian in
respect to any or all of the Retirement Accounts upon sixty (60) days'
prior written notice to the Trust. In such an event, the Trust will
promptly distribute the 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 Trust shall be
responsible to obtain a successor custodian for all Retirement Accounts.
(b) If the Trust chooses to discontinue performing any of its duties and
obligations with respect to any or all Retirement Accounts, it will give
the Transfer Agent at least one hundred twenty (120) days' written
notice prior to such discontinuance. The Transfer Agent may thereupon
resign as custodian in respect to any or all Retirement Accounts by
providing sixty (60) days' prior written notice to the Trust. In such an
event, the Trust shall be responsible to obtain a successor custodian
for the Retirement Accounts. Upon written acceptance by the successor
custodian, the Trust will promptly distribute the 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.
(c) If at any time and for any reason the Transfer Agent chooses to
resign as custodian of any or all Retirement Accounts, it will give the
Trust at least sixty (60) days' prior written notice. In connection with
Transfer Agent resignation hereunder or pursuant to Sections 1.6(a),
1.6(b), the Transfer Agent may, but is not required to, designate a
successor custodian by written notice to the Trust, and the Trust will
be deemed to have consented to such successor unless the Trust
designates a different successor custodian and provides written notice
thereof together with such a different successor's written acceptance by
such date as the Transfer Agent specifies in its original notice to the
Trust provided that the Trust will have a minimum of sixty (60) days to
designate a different successor. The Trust will promptly distribute the
notice of the Transfer Agent's resignation as custodian 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.
(d) If within sixty (60) days (or such longer time as the custodian may
agree to in writing) after resignation by the custodian, the Trust or
the Transfer Agent has not appointed a successor custodian who has
accepted such appointment in writing, the Trust shall within a further
period of sixty (60) days apply to a court of competent jurisdiction for
appointment of a successor custodian, provided that if (i) the Trust
shall have failed to have made such application within such period or
(ii) the court shall have dismissed such application without having made
such appointment, and (iii) no successor custodian shall have then
accepted appointment, then (iv) termination of the custodian's
responsibilities shall be effected by distributing all assets of the
Retirement Account in a single payment in cash or in kind to each
Participant, subject to the Transfer Agent's right as custodian to
reserve such funds as it may deem advisable for payment of all its fees,
compensation,
6
costs and expenses or for payment of any other liabilities constituting
a charge on or against the assets of Retirement Accounts or on or
against the custodian. Any amounts remaining after payment of such costs
shall be delivered to the successor custodian, if any.
(e) Upon appointment of and acceptance by a successor custodian under
this Section 1.6, the custodian shall transfer all assets in book entry
form relating to the Retirement Accounts to the successor custodian.
1.7 Applications and Correspondence
The Transfer Agent will execute any instruments and documents in regard
to the Retirement Accounts (including correspondence with various
persons such as employers, Participants and beneficiaries) that the
Trust submits to the Transfer Agent for that purpose. In no event will
the Trust sign the Transfer Agent's name on any application or other
document without the Transfer Agent's prior written approval.
2. Financial Intermediaries and Third Party Administrators
2.1 Shares will be available through Financial Intermediaries who provide
shareholder services for their clients and who may hold their clients'
assets in omnibus accounts ("Financial Intermediary Accounts").
2.2 In accordance with procedures agreed upon between the Transfer Agent and
the Trust, the Transfer Agent shall:
(a) Treat Financial Intermediary Accounts as omnibus accounts unless
otherwise requested by the Trust (either on a case-by-case basis or
according to guidelines agreed upon by the Trust and Transfer Agent);
(b) Maintain omnibus accounts on its records in the name of the
Financial Intermediaries for the benefit of their clients; and (c)
Perform all services under Section 1 as transfer agent of the Trust and
not as record- keepers or trustees for the Financial Intermediary
Accounts.
2.3 The Trust 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
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)").
2.4 In accordance with procedures agreed upon between the Transfer Agent and
the Trust, the Transfer Agent shall:
7
(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 Trust
and not as a record- keeper for the Plans.
2.5 Notwithstanding Sections 2.2 and 2.4, the Transfer Agent agrees to
assist the Trust with its Rule 22c-2 compliance under the 1940 Act and
with any other laws and regulations applicable to transfer agent
responsibilities for omnibus accounts.
2.6 Transactions identified under Sections I and 2 of this Agreement shall
be deemed exception services ("Exception Services") when such
transactions require the Transfer Agent to use methods and procedures
other than those normally employed by the Transfer Agent to perform its
transfer agency services.
3. Fees and Expenses
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to this
Agreement, the Trust agrees to pay the Transfer Agent an annual
maintenance fee for each Shareholder account as set forth in the
attached fee schedule ("Schedule 3.1"). Such fees and out-of- pocket
expenses and advances identified under Section 3.2 below may be changed
from time to time subject to mutual written agreement between the Trust
and the Transfer Agent. The fees set forth on Schedule 3.1 shall
automatically apply to any trusts resulting from acquisition or merger
subsequent to the execution of this Agreement. In the event that a trust
is to become a party to this Agreement as the result of an acquisition
or merger, and that trust requires different services from the Transfer
Agent than those covered by this Agreement, then the parties shall
confer diligently and in good faith, and agree upon fees applicable to
such trust.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Trust agrees to advance to or reimburse, as appropriate, the
Transfer Agent out-of-pocket expenses, including but not limited to
confirmation production, postage, forms, telephone, microfilm,
microfiche, records storage, or advances incurred by the Transfer Agent
for the items set out in Schedule 3.1 attached hereto. In addition, any
other expenses incurred by the Transfer Agent at the request or with the
consent of the Trust, will be reimbursed by the Trust.
3.3 Postage. Postage for mailing of dividends, Trust reports and other
mailings to all shareholder accounts shall be advanced to the Transfer
Agent by the Trust at least seven (7) days prior to the mailing date of
such materials.
3.4 Invoices. The Trust agrees to pay all fees and reimbursable expenses
within sixty (60) 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 Trust may only
8
withhold that portion of the fee or expense subject to the good faith
dispute. The Trust shall notify the Transfer Agent in writing within
twenty-one (21) calendar days following the receipt of each billing
notice if the Trust is disputing any amounts in good faith. If the Trust
does not provide such notice of dispute within the required time, the
billing notice will be deemed accepted by the Trust. The Trust shall
settle such disputed amounts within five (5) days of the day on which
the parties agree on the amount to be paid by payment of the agreed
amount. If no agreement is reached, then such disputed amounts shall be
settled as may be required by law or legal process.
3.5 Cost of Living Adjustment. Following the first year of the Initial Term,
the total fee for all services for each succeeding year shall equal the
fee that would be charged for the same services based on a fee rate (as
reflected in a fee rate schedule) increased by the percentage increase
for the twelve-month period of such previous calendar year of the CPI-W
(defined below), or, in the event that publication of such Index is
terminated, any successor or substitute index, appropriately adjusted,
acceptable to both parties. As used herein, "CPI-W" shall mean the
Consumer Price Index for Urban Wage Earners and Clerical Workers for
Boston-Brockton-Nashua, MA-NH-ME-CT, (Base Period: 1982-84 = 100), as
published by the United States Department of Labor, Bureau of Labor
Statistics.
3.6 Late Payments. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due, the
Trust shall pay the Transfer Agent interest thereon (from the due date
to the date of payment) at a per annum rate equal to one percent (1.0%)
plus the Prime Rate (that is, the base rate on corporate loans posted by
large domestic banks) published by The Wall Street Journal (or, in the
event such rate is not so published, a reasonably equivalent published
rate selected by the Trust) on the first day of publication during the
month when such amount was due. Notwithstanding any other provision
hereof, such interest rate shall be no greater than permitted under
applicable provisions of Massachusetts law.
4. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Trust 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 registered as a transfer agent to the extent required under
the Securities Exchange Act of 1934, as amended, and it will remain so
registered for the duration of this Agreement. It will promptly notify
the Trust in the event of any material change in its status as a
registered transfer agent.
4.3 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.4 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
9
4.5 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.6 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
5. Representations and Warranties of the Trust
The Trust represents and warrants to the Transfer Agent that:
5.1 It is a trust duly organized and existing and in good standing under the
laws of the state of its organization as set forth on Schedule A.
5.2 It is empowered under applicable laws and by its Trust Instrument and
By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Trust Instrument and By-Laws
have been taken to authorize it to enter into and perform this
Agreement.
5.4 The Trust and each of its Funds is an open-end management investment
company registered under the 0000 Xxx.
5.5 A registration statement under the Securities Act of 1933, as amended is
currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with
respect to all Shares being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
Code
6.1 Obligation of Sender. The Transfer Agent is authorized to promptly debit
the appropriate Trust 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 Trust 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 the customary deadline will be
deemed to have been received the next business day.
6.2 Security Procedure. The Trust acknowledges that the Security Procedure
it has designated on the Trust Selection Form was selected by the Trust
from security procedures offered by the Transfer Agent. The Trust shall
restrict access to confidential information relating to the Security
Procedure to authorized persons as communicated to the Transfer Agent in
writing. The Trust 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 Trust's authorized personnel.
The Transfer Agent shall verify the authenticity of all Trust
instructions according to the Security Procedure.
10
6.3 Account Numbers. The Transfer Agent shall process all payment orders on
the basis of the account number contained in the payment order. In the
event of a discrepancy between any name indicated on the payment order
and the account number, the account number shall take precedence and
govern.
6.4 Rejection. The Transfer Agent reserves the right to decline to process
or delay the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of the
Transfer Agent's receipt of such payment order or (b) if the Transfer
Agent, in good faith, is unable to satisfy itself that the transaction
has been properly authorized. The Transfer Agent agrees to promptly
notify the Trust of the rejection of any order and the reasons for such
rejection, so that the Trust may contact and resolve the issue with the
Shareholder on the same day.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable efforts
to act on all authorized requests to cancel or amend payment orders
received in compliance with the Security Procedure provided that such
requests are received in a timely manner affording the Transfer Agent
reasonable opportunity to act. However, the Transfer Agent assumes no
liability if the request for amendment or cancellation cannot be
satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the
Transfer Agent complies with the Security Procedure. The Security
Procedure is established for the purpose of authenticating payment
orders only and not for the detection of errors in payment orders.
6.7 Interest. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the unauthorized
payment order within thirty (30) days' of notification by the Transfer
Agent of the acceptance of such payment order.
6.8 ACH Credit Entries/Provisional Payments. When the Trust initiates or
receives Automated Clearing House credit and debit entries pursuant to
these guidelines and the rules of the National Automated Clearing House
Association and the New England Clearing House Association, the Transfer
Agent will act as an Originating Depository Financial Institution and/or
Receiving Depository Financial Institution, as the case may be, with
respect to such entries. Credits given by the Transfer Agent with
respect to an ACH credit entry are provisional until the Transfer Agent
receives final settlement for such entry from the Federal Reserve Bank.
If the Transfer Agent does not receive such final settlement, the Trust
agrees that the Transfer Agent shall receive a refund of the amount
credited to the Trust in connection with such entry, and the party
making payment to the Trust via such entry shall not be deemed to have
paid the amount of the entry.
6.9 Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours notice
of which may be delivered through the Transfer Agent's proprietary
information systems, or by facsimile or call-back. Trust must report any
objections to the execution of an order within thirty (30) days.
11
7. Data Access and Proprietary Information
7.1 The Trust acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Trust by the Transfer Agent as
part of the Trust's ability to access certain Trust-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 Trust
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 Trust agrees for
itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Trust's computers,
or (ii) solely from equipment at the location agreed to between the
Trust and the Transfer Agent and (iii) solely in accordance with the
Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Trust's computer(s)), the
Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform in a timely manner of such fact and dispose of such
information in accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Trust'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);
(e) Allow the Trust to have access only to those authorized transactions
as agreed to between the Trust 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.
12
7.3 The Trust 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 Trust 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 Trust 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 AVAILABLF 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 Trust include the ability to
originate electronic instructions to the Transfer Agent in order to (i)
effect the transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information, then in such event the
Transfer Agent shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further inquiry
as long as such instruction is undertaken in conformity with security
procedures established by the Transfer Agent from time to time.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of this
Section shall survive any earlier termination of this Agreement.
7.7 Personal Information; Information Security.
(a) The Transfer Agent shall develop and maintain as part of the Data
Access Services (and in furtherance of all of the services provided
under this Agreement) policies and procedures for safeguarding any
Customer Data received, processed or stored by the Transfer Agent
constituting customer records and information (including, without
limitation, any consumer report information) subject to the requirements
of Sectiones.248.30 of Regulation S-P promulgated by the United States
Securities and Exchange Commission, as from time to time amended
(collectively, "personal information"); the Transfer Agent shall cause
such policies and procedures to be reasonably designed to (a) insure the
security and confidentiality of the personal information; (b) protect
against anticipated
13
threats or hazards to the security and integrity of the personal
information; and (c) protect against unauthorized access to or use of
the personal information that could result in substantial harm or
inconvenience to any customer of the Fund.
(b) At the request of the Fund, and not less than once during each year
of the term of this Agreement, the Transfer Agent shall meet with the
Fund and deliver to the Fund a written and oral presentation regarding
the policies and procedures in place under Section 7.7(a); such written
and oral presentations shall address the suitability of those policies
and procedures for safeguarding the personal information, taking account
of the requirements of Section 7.7(a) and ongoing changes in information
security, computing and related fields.
(c) In performing the Data Access Services or any other services under
this Agreement, the Transfer Agent shall cause its services to be
performed pursuant to the policies and procedures then in effect (as
developed pursuant to Section 7.7(a) above). The Transfer Agent shall
report to the Fund promptly any material incidents occurring, and at
regular meetings any non-material incidents occurring, which involve the
subject matter of those policies and procedures (including, but not
limited to, the improper release of personal information, the
unauthorized access to personal information, any unauthorized attempts
to access personal information or the discovery of a flaw in the
procedures in place under Section 7.7(a) that could subject personal
information to unauthorized access or release) and cooperate with the
Fund in conducting any related investigation activities, regulatory
examinations, or remedial changes.
(d) All information provided to the Fund by the Transfer Agent under
this Section 7.7 shall be considered as Proprietary Information.
8. Indemnification
8.1 The Transfer Agent shall not be responsible for, and the Trust shall
indemnify and hold the Transfer Agent harmless from and against, any and
all losses, damages, costs, charges, counsel fees (including the defense
of any law suit in which the Transfer Agent, Boston Financial Data
Services, Inc., DST Systems, Inc. and DSTO or their officers, trustees
or controlling persons are named parties), 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 Trust'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 Transfer Agent or its agents or
subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions or other similar means authorized by the Trust,
and which have been prepared, maintained or performed by the Trust or
any other person or firm on
14
behalf of the Trust including but not limited to any broker-dealer, TPA
or previous transfer agent; (ii) any instructions or requests of the
Trust 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 by counsel to the Trust after
consultation with such legal counsel and upon which instructions or
opinion the Transfer Agent is expressly permitted to rely or written
opinions of legal counsel regularly used by the Transfer Agent and that
are obtained by the Transfer Agent; or (iv) any paper or document,
reasonably believed to be genuine, authentic, or signed by the proper
person or persons; (v) any instructions to the Transfer Agent from the
Trust to process trades after the close of the market at that day's
price. The Trust represents and warrants that any and all such trade
instructions were received by the Trust prior to market close;
(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;
(e) The acceptance of transaction requests whether by facsimile or
otherwise, on behalf of individual Shareholders received from
broker-dealers, TPAs or the Trust, and the reliance by the Transfer
Agent on the broker-dealer, TPA or the Trust ensuring that the original
source documentation is in good order and properly retained;
(f) The negotiation and processing of any checks, wires and ACH
transmissions including without limitation for deposit into, or credit
to, the Trust's demand deposit account maintained by the Transfer Agent;
or
(g) Upon the Trust's request entering into any agreements required by
the NSCC for the transmission of Trust or Shareholder data through the
NSCC clearing systems.
8.2 To the extent that the Transfer Agent is not entitled to indemnification
pursuant to Section 8.1 above and only to the extent of such right, the
Trust shall not be responsible for, and the Transfer Agent shall
indemnify and hold the Trust harmless from and against any losses,
damages, costs, charges, counsel fees (including the defense of any such
lawsuit in which the Trust or its officers, Trustees or controlling
persons are named parties), payments, expenses and liability arising
directly out of or attributable to any action or failure of the Transfer
Agent to act as a result of the Transfer's Agent's lack of good faith,
negligence or willful misconduct in the performance of its services
hereunder.
8.3 In order that the indemnification provisions contained in this Section 8
shall apply, upon the assertion of a claim for which one party may be
required to indemnify the other party, the indemnified party shall
promptly notify the indemnifying party of such assertion, and shall keep
the indemnifying party advised with respect to all developments
concerning such claim. The indemnifying party shall have the option to
participate with the indemnified party in the defense of such claim or
to defend against said claim in its own name or in the name of the
indemnified party. The indemnified party shall in no case confess any
claim or make any compromise in any case in which the indemnifying party
may be required to indemnify the indemnified party except with the
indemnifying party's prior written consent.
15
9. Standard of Care/Limitation of Liability
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to ensure the accuracy of
all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors,
including encoding and payment processing errors, unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of
its employees or agents. The parties agree that any encoding or payment
processing errors shall be governed by this standard of care and Section
4-209 of the Uniform Commercial Code is superseded by Section 9 of this
Agreement. This standard of care also shall apply to Exception Services,
as defined in Section 2.6 herein, but such application shall take into
consideration the manual processing involved in, and time sensitive
nature of, Exception Services. Notwithstanding the foregoing, except for
liability associated with breaches of confidentiality, security or the
systems of the Transfer Agent or with breaches of infringement on the
intellectual property rights of any third party, the Transfer Agent's
aggregate liability during each year of this Agreement with respect to,
arising from or arising in connection with this Agreement, or from all
services provided or omitted to be provided by the Transfer Agent under
this Agreement for all of the Trusts and Funds subject to this
Agreement, whether in contract, or in tort, or otherwise, is limited to,
and shall not exceed the aggregate of the amounts actually received
hereunder by the Transfer Agent as fees and charges, but not including
reimbursable expenses, for all of the Trusts and Funds covered by this
Agreement during the nine (9) calendar months immediately preceding the
event for which recovery from the Transfer Agent is being sought. For
liability related to: (a) a breach of confidentiality as set forth in
Section 10, (b) a breach of security (including, but not limited to, any
breach relating to the services provided by the Transfer Agent pursuant
to Section 7.7 of this Agreement), (c) any breakdown in the Transfer
Agent's systems (including, but not limited to, any interruptions in the
Transfer Agent's business continuity and disaster recovery plans), or
(d) any infringement by the Transfer Agent of the intellectual property
rights of any third party, the Transfer Agent's aggregate liability
during any term of this Agreement with respect to, arising from or in
connection with this Agreement, or from all services provided or omitted
to be provided by the Transfer Agent under this Agreement, whether in
contract, or in tort, or otherwise, is limited to, and shall not exceed
the aggregate of the amounts actually received hereunder by the Transfer
Agent as fees and charges, but not including reimbursable expenses, for
all of the Trusts and Funds covered by this Agreement during the
thirteen and one-half months (13 1/2) calendar months immediately
preceding the event for which recovery from the Transfer Agent is being
sought. The foregoing limitations on liability shall not apply to any
loss or damage resulting from any fraud committed by the Transfer
Agent's employees or any intentional malevolent acts by the Transfer
Agent's employees or reckless disregard or gross negligence in carrying
out their duties. For purposes of this Section 9, "intentional
malevolent acts" shall mean those acts undertaken purposefully under the
circumstances in which the person knows or has reason to believe that
such act violates this Agreement and is likely to cause damage or harm.
16
10. Confidentiality
10.1 The Transfer Agent and the Trust 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 of
the Trust, used or gained by the Transfer Agent or the Trust during
performance under this Agreement. The Trust 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
Trust 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 Trust
agent for purposes of providing services under this Agreement.
10.2 In the event that any requests or demands are made for the inspection of
the Shareholder records of the Trust, 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 Trust and to secure
instructions from an authorized officer of the Trust as to such
inspection. The Transfer Agent expressly reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by
counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person or if required by law or court order.
11. Inspection Rights
11.1 During the term of this Agreement, the duly authorized independent
auditors, internal audit teams, compliance officers and regulators of
the Trust will have the right under this Agreement to perform periodic
on-site inspections, during Transfer Agent's regular business hours, of
Transfer Agent's facilities, systems, records and procedures solely as
they pertain to Transfer Agent's activities under or pursuant to this
Agreement. Any reasonable incremental direct expenses for programming
required for special reports requested by such auditors, or examiners
incurred by Transfer Agent with respect to such Trust directed
inspections shall be charged as an out-of-pocket expense to the Trust.
To the extent reasonable and feasible under the circumstances, Trust
shall provide at least five (5) business days advance notice to Transfer
Agent of such inspections, and to the extent possible, of such
examinations or inspections by its regulators. The foregoing provisions
shall not apply to on-site visits by Trust' employees or representatives
from time to time for purposes of discussing Transfer Agent's
performance under the Agreement; provided that Trust shall provide
reasonable notice to Transfer Agent of such visits and conduct them in a
manner that will not materially interfere with Transfer Agent's normal
and customary conduct of its business activities. Transfer Agent may
require any persons seeking access to its facilities to provide
reasonable evidence of their authority. Transfer Agent may require
Trust's independent auditors to execute a
17
confidentiality agreement before granting access. The Transfer Agent
shall have the right to immediately require the removal of any Fund
representatives from its premises in the event that their actions, in
the reasonable opinion of the Transfer Agent, jeopardize the information
security of its systems and/or other client data or otherwise are
disruptive to the business of the Transfer Agent.
11.2 Transfer Agent will make available to Trust on an annual basis as soon
as available, a copy of its SAS 70 report from its independent auditors.
Transfer Agent shall also provide to Trust copies of the attestation
performed annually by such auditors with respect to AML/CIP delegated
duties compliance.
12. Assurance on Risk Management
12.1 Upon request of Trust, Transfer Agent will provide to Trust the Transfer
Agent's standard form Xxxxxxxx-Xxxxx certification with respect to
Transfer Agent's performance of the Transfer Agency Services and its
internal controls related thereto.
12.2 In addition, upon request of Trust, Transfer Agent will provide to Trust
the Transfer Agent's standard form certification with respect to the
compliance provisions under Rule 38a-l of the 1940 Act.
13. Covenants of the Trust and the Transfer Agent
13.1 The Trust shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Trust authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Trust Instrument and By-Laws of the Trust and all
amendments thereto.
13.2 The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Trust 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.
13.3 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 1940 Act, 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 Trust
and will be preserved, maintained and made available in accordance with
such Section and Rules, and will be surrendered promptly to the Trust on
and in accordance with its request.
14. Termination-of Agreement
14.1 Term. The initial term of this Agreement (the "Initial Term") shall be
five (5) years from the date first stated above as to each individual
Trust unless termination pursuant to the
18
provisions of this Section 14. The term may be renewed by mutual
agreement of the Transfer Agent and the individual Trust for successive
periods of one year each ("Renewal Term"). Either the Transfer Agent or
the Trust shall give written notice to the other party one hundred
twenty (120) days before the expiration of the Initial Term or Renewal
Term if such party desires not to renew the term for an additional
one-year period. In the event any individual Trust wishes to terminate
this Agreement as to it prior to the expiration of the Initial Term or a
Renewal Term, the Trust shall give one hundred twenty (120) days prior
written notice to the Transfer Agent and shall be subject to the terms
of this Section, including the payments applicable under Section 14.3.
One hundred twenty (120) days before the expiration of the Initial Term
or a Renewal Term, the Transfer Agent and the individual Trust will
agree upon a Fee Schedule for the upcoming Renewal Term applicable to
such Trust. Notwithstanding the termination or non-renewal of this
Agreement, the terms and conditions of this Agreement shall continue to
apply until the completion of Deconversion (defined below). Moreover,
the termination of this Agreement will not discharge or excuse
completion or performance of any liability or services obligation.
14.2 Deconversion. In the event that this Agreement is terminated or not
renewed for any reason by an individual Trust, the Transfer Agent agrees
that, in order to provide for uninterrupted service to the Trust, the
Transfer Agent, at Trust's request, shall offer reasonable assistance to
the Trust in converting the Trust's records from the Transfer Agent's
systems to whatever services or systems are designated by Trust (the
"Deconversion"). Such Deconversion is subject to the recompense of the
Transfer Agent for such assistance at its standard rates and fees in
effect at the time within a reasonable time frame agreed to by the
parties. As used herein "reasonable assistance" and "transitional
assistance" shall not include requiring the Transfer Agent (i) to assist
any new service or system provider to modify, to alter, to enhance, or
to improve such provider's system, or to provide any new functionality
to such provider's system, (ii) to disclose any protected information of
the Transfer Agent, or (iii) to develop Deconversion software, to modify
any of the Transfer Agent's software, or to otherwise alter the format
of the data as maintained on any provider's systems.
14.3 Termination or Non Renewal.
(a) Outstanding Fees and Charges. In the event of termination or
non-renewal of this Agreement by an individual Trust, such Trust will
promptly pay the Transfer Agent all fees and charges for the services
provided under this Agreement which (i) have been accrued and remain
unpaid as of the date of such notice of termination or non-renewal and
(ii) thereafter accrue for the period through and including the date of
Trust's Deconversion.
(b) Deconversion Costs and Post-Deconversion Support Fees. In the event
of termination or non-renewal of this Agreement by an individual Trust,
the Trust shall pay the Transfer Agent for the Deconversion costs as
noted in Section 14.2 and all reasonable fees and expenses for providing
any support services that the Trust requests the Transfer Agent to
provide post Deconversion, including but not limited to tax reporting
and open issue resolution.
19
(c) Early Termination for Convenience. In addition to the foregoing, in
the event that any individual Trust terminates this Agreement, other
than pursuant to Section 14.7, prior to the end of the Initial Term or
any Renewal Term, the Trust shall pay the Transfer Agent an amount equal
to the average monthly fee paid by the Trust to the Transfer Agent under
the Agreement times the number of months remaining in the Initial or
Renewal Term and calculated at the Account owner levels or as otherwise
set forth on the then current Fee Schedule, on the date notice of
termination was given to the Transfer Agent (the "Early Termination
Fee").
14.4 Confidential Information. Upon termination of this Agreement, each party
shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be retained
by such party under applicable laws or regulations.
14.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Trust to the Transfer
Agent being outstanding for more than ninety (90) days, except with
respect to any amount subject to a good faith dispute within the meaning
of Section 3.4 of this Agreement.
14.6 Bankruptcy. Either party hereto may terminate this Agreement by notice
to the other party, effective at any time specified therein, in the
event that (a) the other party ceases to carry on its business or (b) an
action is commenced by or against the other party under Title 11 of the
United States Code or a receiver, conservator or similar officer is
appointed for the other party and such suit, conservatorship or
receivership is not discharged within thirty (30) days.
14.7 Cause. If either of the parties hereto is in default in the performance
of its duties or obligations hereunder, and such default has a material
effect on the other party, then the non-defaulting party may give notice
to the defaulting party specifying the nature of the default in
sufficient detail to permit the defaulting party to identify and cure
such default. If the defaulting party fails to cure such default within
thirty (30) days of receipt of such notice, or within such longer period
of time as the parties may agree is necessary for such cure, then the
non-defaulting party may terminate this Agreement upon notice of not
less than five (5) days to the defaulting party.
15. Assignment and Third Party Beneficiaries
15.1 Except as provided in Section 16.1 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.
20
15.2 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 Trust, and the
duties and responsibilities undertaken pursuant to this Agreement shall
be for the sole and exclusive benefit of the Transfer Agent and the
Trust. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
15.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Trust. Other than as
provided in Section 16.1, neither party shall make any commitments with
third parties that are binding on the other party without the other
party's prior written consent.
16. Subcontractors
16.1 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 ("Boston Financial") which
is duly registered as a transfer agent pursuant to Section 17A(c)(2) of
the Securities Exchange Act of 1934, as amended, (ii) a Boston Financial
subsidiary duly registered as a transfer agent, (iii) a Boston Financial
affiliate duly registered as a transfer agent or (iv) with regard to
print/mail services, to DST Output, Inc., an affiliate of Boston
Financial provided, however, that the Transfer Agent shall be fully
responsible to the Trust for the acts and omissions of Boston Financial
or its subsidiary or affiliate as it is for its own acts and omissions.
Notwithstanding the foregoing, if the Trust contracts for the
performance of any services directly with an affiliate of the Transfer
Agent or DST Output, Inc., then the Transfer Agent shall not be
responsible to the Trust for the acts and omissions of such affiliate
with respect to such services.
16.2 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.
17. Miscellaneous
17.1 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 Trust.
17.2 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.
17.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
acts of war or terrorism, 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
21
other for any damages resulting from such failure to perform or
otherwise from such causes, provided however, that this provision shall
not imply that the Transfer Agent is excused from maintaining reasonable
business continuity and disaster recovery plans to address potential
service outages.
17.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other party for special, indirect or consequential damages under
any provision of this Agreement or for any special, indirect or
consequential damages arising out of any act or failure to act
hereunder.
17.5 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.
17.6 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.
17.7 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.
17.8 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.
17.9 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.
17.10 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.
17.11 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.
17.12 Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
22
(a) If to the Transfer Agent, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Trust, to:
Xxxxxxxxxxx & Xxxxxxxx Xxxxxxxxx Xxxxxx LLP
Attention: Xxxxxx Xxxxxxxx, Esquire
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxxx Xxxxxx Management, Inc.
Attention: Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
18. Additional Trusts/Funds
In the event that the Trust establishes one or more series of Shares, in
addition to those listed 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 Fund hereunder.
19. Limitations of Liability of the Trustees and Shareholders
A copy of the Trust Instrument is on file with the state of
organization, 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 Trust.
23
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.
TRUST Each of the entities listed on Schedule A hereto)
By: /s/ XXXXX XXXXXXX
----------------------------------
Name: XXXXX XXXXXXX
Title: CHIEF EXECUTIVE OFFICER
As an Authorized Officer on behalf of
each of the entities indicated on
Schedule A
ATTEST:
[ILLEGIBLE]
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Executive Vive President
ATTEST:
[ILLEGIBLE]
24
SCHEDULE A
Dated: December 19, 2006
XXXXXXXXX XXXXXX INCOME FUNDS, a business trust organized under the laws of the
State of Delaware
Xxxxxxxxx Xxxxxx Cash Reserves
Xxxxxxxxx Xxxxxx Government Money Fund
Xxxxxx Brothers Short Duration Bond Fund
Xxxxxx Brothers Municipal Securities Trust
Xxxxxx Brothers High Income Bond Fund
Xxxxxx Brothers Strategic Income Fund
Xxxxxx Brothers Core Bond Fund
Xxxxxx Brothers Municipal Money Fund
Xxxxxx Brothers New York Municipal Money Fund
Xxxxxx Brothers National Municipal Money Fund
Xxxxxx Brothers Tax-Free Money Fund
XXXXXXXXX XXXXXX EQUITY FUNDS, a business trust organized under the laws of the
State of Delaware
Xxxxxxxxx Xxxxxx Focus Fund
Xxxxxxxxx Xxxxxx Genesis Fund
Xxxxxxxxx Xxxxxx Guardian Fund
Xxxxxxxxx Xxxxxx Partners Fund
Xxxxxxxxx Xxxxxx Manhattan Fund
Xxxxxxxxx Xxxxxx Socially Responsible Fund
Xxxxxxxxx Xxxxxx International Fund
Xxxxxxxxx Xxxxxx Millennium Fund
Xxxxxxxxx Xxxxxx Regency Fund
Xxxxxxxxx Xxxxxx Century Fund
Xxxxxxxxx Xxxxxx Xxxxxxxx Fund
Xxxxxxxxx Xxxxxx International Institutional Fund
Xxxxxxxxx Xxxxxx Real Estate Fund
Xxxxxxxxx Xxxxxx All-Cap Growth Fund
Xxxxxxxxx Xxxxxx International Large Cap Fund
Xxxxxxxxx Xxxxxx Equity Income Fund
Xxxxxxxxx Xxxxxx Premier Convergence Fund
Xxxxxxxxx Xxxxxx Premier Analysts Fund
Xxxxxxxxx Xxxxxx Premier Energy Fund
Xxxxxxxxx Xxxxxx Premier Dividend Fund
XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST, a business trust organized under the
laws of the State of Delaware
Xxxxxxxxx Xxxxxx Balanced Portfolio
Xxxxxxxxx Xxxxxx Growth Portfolio
Xxxxxxxxx Xxxxxx limited Maturity Bond Portfolio
Xxxxxxxxx Xxxxxx Partners Portfolio
Xxxxxxxxx Xxxxxx Xxxxxxxx Portfolio
SCHEDULE A
Dated: December 19, 2006
(continued)
Xxxxxxxxx Xxxxxx Focus Portfolio
Xxxxxxxxx Xxxxxx Guardian Portfolio
Xxxxxxxxx Xxxxxx High Income Bond Portfolio
Xxxxxxxxx Xxxxxx International Portfolio
Xxxxxxxxx Xxxxxx International Large Cap Portfolio
Xxxxxxxxx Xxxxxx Mid-Cap Growth Portfolio
Xxxxxxxxx Xxxxxx Real Estate Portfolio
Xxxxxxxxx Xxxxxx Regency Portfolio
Xxxxxxxxx Xxxxxx Socially Responsive Portfolio
XXXXXXXXX XXXXXX INSTITUTIONAL LIQUIDITY SERIES, a statutory trust organized
under the laws of the State of Delaware
Xxxxxxxxx Xxxxxx Institutional Cash Fund
Xxxxxxxxx Xxxxxx Prime Money Fund
XXXXXX BROTHERS INSTITUTIONAL LIQUIDITY CASH MANAGEMENT FUNDS, a statutory trust
organized under the laws of the State of Delaware
Cash Management Money Market Portfolio
Cash Management Prime Portfolio
Cash Management Treasury Portfolio
XXXXXX BROTHERS RESERVE LIQUIDITY FUNDS, a statutory trust organized under the
laws of the State of Delaware
Money Market Reserve Portfolio
Prime Reserve Portfolio
Treasury Obligations Reserve Portfolio
XXXXXX BROTHERS INSTITUTIONAL LIQUIDITY FUNDS, a statutory trust organized under
the laws of the State of Delaware
Money Market Portfolio
Prime Portfolio
Treasury Portfolio
Treasury Reserves Portfolio
Government Portfolio
Government Reserves Portfolio
Municipal Portfolio
Tax-Exempt Rortfolio
New York Municipal Portfolio
SCHEDULE A
Dated: December 19, 2006
(continued)
TRUST (Each of the entities listed STATE STREET BANK AND TRUST COMPANY
on Schedule A hereto)
By: /s/ Xxxxxx Xxxxx BY: /s/ Xxxxxx X. Xxxxxx
-------------------------- ----------------------------------
Name: XXXXXX XXXXX Xxxxxx X. Xxxxxx
Vice Chairman
Title: VP
As an Authorized Officer on
behalf of each of The entities
indicated on Schedule A
SCHEDULE 3.12(f)
AML DELEGATION
Dated: December 14, 2005
1. Delegation.
1.1 Subject to the terms and conditions set forth in this Agreement, the
Trust hereby delegates to the Transfer Agent those aspects of the
Trust's Program that are set forth in Section 4 below (the "Delegated
Duties"). The Delegated Duties set forth in Section 4 may be amended,
from time to time, by mutual agreement of the Trust and the Transfer
Agent upon the execution of such parties of a revised Schedule 1.2(g)
bearing a later date than the date hereof.
1.2 The Transfer Agent agrees to perform such Delegated Duties, with respect
to the ownership of shares in the Trust for which the Transfer Agent
maintains the applicable shareholder information, subject to and in
accordance with the terms and conditions of this Agreement.
2. Consent to Examination. In connection with the performance by the
Transfer Agent of the Delegated Duties, the Transfer Agent understands
and acknowledges that the Trust remains responsible for assuring
compliance with the USA PATRIOT Act and that the records the Transfer
Agent maintains for the Trust relating to the AML Program may be
subject, from time to time, to examination and/or inspection by federal
regulators in order that the regulators may evaluate such compliance.
The Transfer Agent hereby consents to such examination and/or inspection
and agrees to cooperate with such federal examiners in connection with
their review. For purposes of such examination and/or inspection, the
Transfer Agent will use its best efforts to make available, during
normal business hours and on reasonable notice all required records and
information for review by such examiners.
3. Limitation on Delegation. The Trust acknowledges and agrees that in
accepting the delegation hereunder, the Transfer Agent is agreeing to
perform only the Delegated Duties, as may be amended from time to time,
and is not undertaking and shall not be responsible for any other aspect
of the AML Program or for the overall compliance by the Trust with the
USA PATRIOT Act or for any other matters that have not been delegated
hereunder. Additionally, the parties acknowledge and agree that the
Transfer Agent shall only be responsible for performing the Delegated
Duties with respect to the ownership of, and transactions in, shares in
the Trust for which the Transfer Agent maintains the applicable
shareholder information.
Schedule 1.2f
SCHEDULE 3.12(f)
AML DELEGATION
Dated: December 14, 2005
(continued)
4. Delegated Duties
4.1 Consistent with the services provided by the Transfer Agent and with
respect to the ownership of shares in the Trust for which the Transfer
Agent maintains the applicable shareholder information, the Transfer
Agent shall:
(a) Submit all new account and registration maintenance transactions
through the Office of Foreign Assets Control ("OFAC") database and such
other lists or databases as may be required from time to time by
applicable regulatory authorities;
(b) Submit special payee checks through OFAC database;
(c) Review redemption transactions that occur within thirty (30) days of
account establishment or maintenance;
(d) Review wires sent pursuant to banking instructions other than those
on file with the Transfer Agent;
(e) Review accounts with small balances followed by large purchases;
(f) Review accounts with frequent activity within a specified date range
followed by a large redemption;
(g) On a daily basis, review purchase and redemption activity per tax
identification number ("TIN") within the Trust to determine if activity
for that TIN exceeded the $100,000 threshold on any given day;
(h) Monitor and track cash equivalents under $10,000 for a rolling
twelve-month period and file IRS Form 8300 and issue the Shareholder
notices required by the IRS;
(i) Determine when a suspicious activity report ("SAR") should be filed
as required by regulations applicable to mutual funds; prepare and file
the SAR. Provide the Trust with a copy of the SAR within a reasonable
time after filing; notify the Trust if any further communication is
received from U.S. Department of the Treasury or other law enforcement
agencies regarding the SAR;
Schedule 1.2f
SCHEDULE 3.12(f)
AML DELEGATION
Dated: December 14, 2005
(continued)
(j) Compare account information to any FinCEN request received by the
Trust and provided to the Transfer Agent pursuant to USA PATRIOT Act
Sec. 314(a). Provide the Trust with documents/information necessary to
respond to requests under USA PATRIOT Act Sec. 314(a) within required
time frames; and
(k) In accordance with the requirements under 31 C.F.R. 103.131: (i)
Verify the identity of any person seeking to open an account with the
Trust, (ii) Maintain records of the information used to verify the
person's identity and (iii) Determine whether the person appears on any
lists of known or suspected terrorists or terrorists organizations
provided to the Trust by any government agency.
4.2 In the event that the Transfer Agent detects activity as a result of the
foregoing procedures, which necessitates the filing by the Transfer
Agent of a SAR, a Form 8300 or other similar report or notice to OFAC,
then the Transfer Agent shall also immediately notify the Trust, unless
prohibited by applicable law.
TRUST (Each of the entities listed STATE STREET BANK AND TRUST COMPANY
on Schedule A hereto)
By: /s/ XXXXX XXXXXXX BY: /s/ Xxxxxx X. Xxxxxx
-------------------------- ----------------------------------
Name: XXXXX XXXXXXX Exerutive Vice President
Title: CHIEF EXECUTIVE OFFICERVP
As an Authorized Officer on behalf of
each of The entities indicated on
Schedule A
Fee Information for Services as
Plan, Transfer and Dividend Disbursing Agent
FEE SCHEDULE (9/06)
XXXXXXXXX XXXXXX FUNDS
--------------------------------------------------------------------------------
ANNUAL ACCOUNT SERVICE FEES
--------------------------------------------------------------------------------
Non-Daily Dividend Funds:
"Equity Funds" $10.51
Advisors Management Trust
Equity Funds
Equity Trusts
Equity Assets
Equity Series
Daily Dividend Funds:
"Bond Funds" $16.89
Income Funds
Income Trusts
"Money Funds" $19.32
Matrix Level Three Networking accounts are billed at $6.44 account. Reduced rate
appears as a credit on monthly invoices. Credit is not applied where fund
minimum is invoked.
Closed Account Fee - All Funds $1.22
Not billed to Trust Funds (Equity and Income) where Fund Minimum is invoked.
Minimum (per Fund/Class/Spoke)
Equity Assets $20,251.96
Equity Trusts $20,251.96
Equity Series $20,251.96
Income Trusts $20,251.96
Advisors Management Trust $14,728.69
Fund minimums are guaranteed for three years from inception date, and are waived
for nine months from inception. Each class/spoke 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.
Account service fees are the higher of: open account charges plus closed account
charges or the fund minimum.
--------------------------------------------------------------------------------
ACTIVITY BASED FEES
--------------------------------------------------------------------------------
Omnibus Transactions - 3.07 transaction
Spoke 1 funds, specific dealers and
transaction codes
Outgoing Wires $9.81 transaction
Waived shareholder wire fees are
billed to the Mgmt Co. $0.42 transaction
--------------------------------------------------------------------------------
OTHER FEES
--------------------------------------------------------------------------------
12b-1 Commission Processing $490.96 month
Fee excludes supplies and postage
(billed as Out of Pockets)
Monthly Graphs (spoke 1 funds, except AMT) $89.90 month/fund
Disaster Recovery $0.08 account
--------------------------------------------------------------------------------
XXX CUSTODIAL FEES
--------------------------------------------------------------------------------
Annual Maintenance - XXX balance by SSN
less than $10,000.00 $12.00/SSN or TIN
Waived shareholder fees are billed
to the Management Company
--------------------------------------------------------------------------------
OUT-OF-POCKET EXPENSES BILLED AS INCURRED
--------------------------------------------------------------------------------
Out-of-Pocket expenses include but are not limited to: daily confirmation
statements, investor statements, postage, forms, audio response, network
equipment, telephone (i.e. telephone line charges, faxes, transmissions, records
retention, movement of records, freight, customized programming/ enhancements,
ad-hoc reporting, federal wire, transcripts, microfilm, microfiche, lost
shareholder services 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.
