Exhibit (h)(3)
FORM OF TRANSFER AGENCY AND SERVICE AGREEMENT
This Transfer Agency and Services Agreement (the "Agreement") made this
1st day of February, 2005, between State Street Institutional Investment Trust,
a trust established under the laws of the State of Massachusetts (the "Fund"),
and ALPS Mutual Funds Services, Inc., a Colorado corporation (the "Transfer
Agent").
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940, as amended, with multiple portfolios;
each investment portfolio and any additional investment portfolios that may be
established by the Fund for which the Fund desires the Transfer Agent to provide
services hereunder are referred to herein individually as a "Portfolio" and
collectively as the "Portfolios"; and
WHEREAS, the Transfer Agent provides certain transfer agency services to
investment companies; and
WHEREAS, the Fund desires to appoint the Transfer Agent as the transfer
agent, dividend disbursing agent, and agent in connection with certain other
activities for the Portfolio, and the Transfer Agent desires to accept such
appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions set
forth in this Agreement, the Fund, on behalf of the Portfolio,
hereby employs and appoints the Transfer Agent to act as, and the
Transfer Agent agrees to act as its transfer agent for, the
Portfolio's authorized and issued shares of its beneficial interest
("Shares"), dividend disbursing agent, and agent in connection with
any accumulation, open-account or similar plan provided to the
shareholders of the Portfolio ("Shareholders") and as set out in the
currently effective prospectus and statement of additional
information ("Prospectus") of the Fund on behalf of the Portfolio,
including without limitation any periodic investment plan or
periodic withdrawal program. In accordance with procedures
established from time to time by agreement between the Fund on
behalf of the Portfolio, as applicable, and the Transfer Agent, the
Transfer Agent agrees that it will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to
the Custodian of the Fund authorized by the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold
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such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) With respect to the transactions enumerated in 1.1 (a), (b) and
(c) above, the Transfer Agent shall execute transactions directly
with broker-dealers and other financial institutions authorized by
the Fund, deemed to be acting as a limited agent of the Fund. The
Transfer Agent will execute transactions only from broker-dealers
and other financial institutions who have adopted and implemented
internal controls reasonably designed to ensure that order or
redemption requests received in proper form by the times specified
in the Prospectus, as may be amended from time to time, will be
processed on that day and order or redemption requests received in
proper form after the times specified in the Prospectus, as may be
amended from time to time, will be processed on the next business
day;
(e) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(i) Record the issuance of Shares of the Portfolio and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number of
Shares of the Portfolio which are authorized, based upon data
provided to it by the Portfolio, and issued and outstanding. The
Transfer Agent shall also provide the Fund on a regular basis with
the total number of Shares which are authorized and issued and
outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of the
Fund; and
(j) Orders or redemption requests received in proper form by the
times specified in the Prospectus, as may be amended from time to
time, will be processed by the Transfer Agent that day and orders or
redemption requests received in proper form after the times
specified in the Prospectus, as may be amended from time to time,
will be processed by the Transfer Agent on the next business day.
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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 and, as relevant, agent in
connection with accumulation, open-account or similar plan
(including without limitation any periodic investment plan or
periodic withdrawal program), including but not limited to:
maintaining all Shareholder accounts, preparing Shareholder meeting
lists, withholding taxes on U.S. resident and non-resident alien
accounts and maintaining records with respect to such withholding,
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, perform anti-money
laundering and customer identification reviews of Shareholder
accounts and providing Shareholder account information;
(b) Control Book. Maintain a daily record and produce a daily report
for the Fund of all transactions and receipts and disbursements of
money and securities and deliver a copy of such report for the
Portfolio for each business day to the Fund no later than 9:00 AM
Eastern Time, or such earlier time as the Fund may reasonably
require, on the next business day;
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the
Transfer Agent in writing those transactions and assets of the
Portfolio to be treated as exempt from blue sky reporting for each
State and (ii) verify the establishment of transactions for each
State on the system prior to activation and thereafter monitor the
daily activity for each State. The responsibility of the Transfer
Agent for the Fund's blue sky State registration status is solely
limited to the initial establishment of transactions subject to blue
sky compliance by the Fund on behalf of the Portfolio, providing a
system which will enable the Fund to monitor the total number of
Shares of the Portfolio sold in each State, and providing any other
information reasonably requested by the Fund to fulfill the Fund's
obligation to monitor blue sky compliance;
(d) National Securities Clearing Corporation (the "NSCC"). (i)
accept and effectuate the registration and maintenance of accounts
through Networking and the purchase, redemption, transfer and
exchange of shares in such accounts through Fund/SERV (Networking
and Fund/SERV being programs operated by the NSCC on behalf of
NSCC's participants, including the Fund), in accordance with,
instructions transmitted to and received by the Transfer Agent by
transmission from the 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 the Fund's bank for the
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settlement of transactions between the Fund and NSCC (acting on
behalf of its broker-dealer and bank participants); (iii) provide
account and transaction information from the Portfolio's records on
the Transfer Agent's computer system (the "System") in accordance
with NSCC's Networking and Fund/SERV rules for those broker-dealers;
and (iv) maintain Shareholder accounts on the System through
Networking; and
(e) New Procedures. New procedures as to who shall provide certain
of these services in Section 1 may be established in writing from
time to time by agreement between the Fund and the Transfer Agent.
Pursuant to such agreement the Transfer Agent may at times perform
only a portion of these services and the Fund or its agent may
perform these services on the Fund's behalf.
2. Fees and Expenses
2.1 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 B"). Such fees and
out-of-pocket expenses and advances identified in Section 2.2 below
may be changed from time to time subject to mutual written agreement
between the Fund and the Transfer Agent.
2.2 Out-of-Pocket Expenses. In addition to the fee paid under Section
2.1 above, the Fund agrees to reimburse the Transfer Agent for
reasonable out-of-pocket expenses, including but not limited to
statement and confirmation production, postage, forms, NSCC
interface fees, allocation of service auditor's report, telephone,
records storage, or advances incurred by the Transfer Agent for the
items set out in Schedule B attached hereto. In addition, any other
expenses incurred by the Transfer Agent at the request or with the
consent of the Fund, will be reimbursed by the Fund.
2.3 Postage. Postage for mailing of dividends, Fund reports and other
mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) days prior to the
mailing date of such materials.
2.4 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
only withhold that portion of the fee or expense subject to the good
faith dispute. The Fund shall notify the Transfer Agent in writing
within twenty-one (21) calendar days following the receipt of each
billing notice if the Fund is disputing any amounts in good faith.
If the Fund does not provide such notice of dispute within the
required time, the billing notice will be deemed accepted by the
Fund. The Fund shall settle such disputed amounts within ten (10)
business days from the day on which the parties agree on the amount
to be paid, or at such later date as may be agreed upon by the
Transfer Agent, by payment of the agreed amount. If no agreement is
reached,
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then such disputed amounts shall be settled as may be required by
law or legal process.
2.5 Late Payments. If any undisputed amount in an invoice of the
Transfer Agent (for fees or reimbursable expenses) is not paid when
due, the Fund shall pay the Transfer Agent interest thereon (from
the due date to the date of payment) at a per annum rate equal to
one percent (1.0%) plus the Prime Rate (that is, the base rate on
corporate loans posted by large domestic banks) published by The
Wall Street Journal (or, in the event such rate is not so published,
a reasonably equivalent published rate selected by the Fund) on the
first day of publication during the month when such amount was due.
Notwithstanding any other provision hereof, such interest rate shall
be no greater than permitted under applicable provisions of Colorado
law.
3. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund that:
3.1 It is a Colorado corporation duly organized and existing and in good
standing under the laws of the State of Colorado.
3.2 It is duly qualified to carry on its business in the State of
Colorado.
3.3 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
3.6 It is, and will continue to be, registered as a transfer agent under
the Securities Exchange Act of 1934, as amended.
3.7 It will adopt and implement written policies and procedures
reasonably designed to prevent violations of the Federal Securities
Laws (as defined under Rule 38a-1 of the Investment Company Act of
1940, as amended) by the Fund. It will review, no less frequently
than annually, the adequacy of the policies and procedures and the
effectiveness of their implementation and will report to the Fund
any material changes made to the policies and procedures since the
date of the last report, and any material changes made to the
policies and procedures recommended as a result of the annual
review. It will provide the Fund with a quarterly notice of each
Material Compliance Matter (as defined under Rule 38a-1 of the
Investment Company Act of 1940, as amended) that occurred since the
date of the last report.
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4. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
4.1 It is a statutory trust duly organized and existing and in good
standing under the laws of the state of Massachusetts.
4.2 It is empowered under applicable laws and by its Agreement and
Declaration of Trust and Bylaws to enter into and perform this
Agreement.
4.3 All trust proceedings required by said Agreement and Declaration of
Trust and Bylaws have been taken to authorize it to enter into and
perform this Agreement.
4.4 It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
4.5 A registration statement under the Securities Act of 1933, as
amended is currently, or will be upon commencement of operations, be
effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made,
with respect to all Shares of the Portfolio being offered for sale.
5. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code
5.1 Obligation of Sender. The Transfer Agent is authorized to promptly
debit the appropriate Fund account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the
"Security Procedure"), attached hereto as Schedule C, chosen for
Fund 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 the customary
deadline will be deemed to have been received the next business day.
5.2 Security Procedure. The Fund acknowledges that the Security
Procedure it has designated on the Fund's Selection Form, attached
hereto as Schedule C, was selected by the Fund. The Fund must notify
the Transfer Agent immediately 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. The Transfer Agent is authorized to make exceptions to
the Security Procedures if instructed by the Fund. For purposes of
this section only, instructions received from representatives of
SSgA Fund Management Inc., the Fund's investment adviser, will be
considered to be instructions from the Fund.
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5.3 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.
5.4 Rejection. The Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a) is in
excess of the collected balance in the account to be charged at the
time of the Transfer Agent's receipt of such payment order; (b) if
initiating such payment order would cause the Transfer Agent, in the
Transfer Agent's sole judgment, to exceed any volume, aggregate
dollar, network, time, credit or similar limits which are applicable
to the Transfer Agent; or (c) if the Transfer Agent, in good faith,
is unable to satisfy itself that the transaction has been properly
authorized.
5.5 Cancellation Amendment. The Transfer Agent shall use reasonable best
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, in absence of
negligence, bad faith or willful misconduct by the Transfer Agent,
the Transfer Agent assumes no liability if the request for amendment
or cancellation cannot be satisfied.
5.6 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
and acts without negligence, bad faith or willful misconduct. The
Security Procedure is established for the purpose of authenticating
payment orders only and not for the detection of errors in payment
orders.
5.7 Interest. Absent negligence, bad faith or willful misconduct, 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.
5.8 ACH Credit Entries/Provisional Payments. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant
to these guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association,
the Transfer Agent will act as an Originating Depository Financial
Institution and/or Receiving Depository Financial Institution, as
the case may be, with respect to such entries. Credits given by the
Transfer Agent with respect to an ACH credit entry are provisional
until the Transfer Agent receives final settlement for such entry
from the Federal Reserve Bank. If the Transfer Agent does not
receive such final settlement, the Fund agrees that the Transfer
Agent shall receive a refund of the amount credited to the Fund in
connection with such entry, and
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the party making payment to the Fund via such entry shall not be
deemed to have paid the amount of the entry.
5.9 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
information systems, or by facsimile or call-back. Fund must report
any objections to the execution of an order within thirty (30) days.
6. Indemnification
6.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any
and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement
(including the defense of any law suit in which the Transfer Agent
or affiliate is a named party), provided that such actions are taken
in good faith and without negligence or willful misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct;
(c) The 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, or services, which
are received by the Transfer Agent or its agents or subcontractors
by machine readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Fund in
writing, and which have been prepared, maintained or performed by
the Fund or any other person or firm on behalf of the Fund including
but not limited to any broker-dealer, TPA or previous transfer
agent; (ii) any instructions or requests of the Fund or any of its
officers reasonably believed by the Transfer Agent to be authorized
by the Fund's Board of Trustees; (iii) any instructions or opinions
of legal counsel with respect to any matter arising in connection
with the services to be performed by the Transfer Agent under this
Agreement which are provided to the Transfer Agent after
consultation with such legal counsel; or (iv) any paper or document,
reasonably believed to be genuine, authentic, and signed by the
proper person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination
or ruling by any federal or any state agency with respect to the
offer or sale of such Shares;
(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account
maintained by the Transfer Agent, excluding checks not made payable
to the order of the Fund, the Fund's management
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company, custodian, transfer agent or distributor or the retirement
account custodian or trustee for a plan account investing in Shares
(such checks are commonly known as "third party checks") which
checks are tendered to a bank for the purchase of Shares; or
(f) Upon the Fund's request entering into any agreements required by
the NSCC for the transmission of Fund or Shareholder data through
the NSCC clearing systems.
6.2 The Fund shall not be responsible for, and the Transfer Agent shall
indemnify and hold the Fund harmless against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liability to the extent arising out of or attributable to any
actions or failure of the Transfer Agent to act as a result of the
Transfer Agent's lack of good faith, negligence or willful
misconduct.
6.3 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which an
indemnifying party may be required to indemnify the indemnified
party, the indemnified party shall have acted without negligence,
bad faith or willful misconduct and 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.
7. Standard of Care
The Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within reasonable limits to ensure the
accuracy of all services performed under this Agreement, but assumes
no responsibility and shall not be liable for loss or damage due to
errors, including encoding and payment processing errors, unless
said errors are caused by its negligence, bad faith, or willful
misconduct or that of its employees or agents. According to mutually
agreed upon procedures, the Transfer Agent agrees to use reasonable
efforts with regard to the processing of investments checks. 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 7 of this
Agreement.
8. Confidentiality
8.1 The Transfer Agent and the Fund agree that they will not, at any
time during the term of this Agreement or after its termination,
reveal, divulge, or make known to any person, firm, corporation or
other business organization, any Shareholders' or
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customers' lists, trade secrets, cost figures and projections,
profit figures and projections, or any personal information of the
Portfolio's shareholders or other secret or confidential information
whatsoever, whether of the Transfer Agent or of the Fund, used or
gained by the Transfer Agent or the Fund during performance under
this Agreement. For purposes of this Agreement, Confidential
Information shall also include:
(a) Any data or information that is competitively sensitive
material, and not generally known to the public, including but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationship, customer profiles,
Shareholder personal information, sales estimates, business plans,
and internal performance results relating to the past, present or
future business activities of the Fund or the Transfer Agent, their
respective affiliates and customers, shareholders, clients and
suppliers of any of them;
(b) Any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or the
Transfer Agent a competitive advantage over its competitors;
(c) All confidential or proprietary concepts, documentation,
reports, data specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how and trade
secrets, whether or not patentable or copyrightable; and
(d) Information that the Fund is required to keep confidential
pursuant to agreements with third party service providers.
Confidential 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 with the written
permission of the other party for general disclosure by a written
release by the Transfer Agent or the Fund, as the case may be; (iii)
are already in the possession of the receiving party at the time of
receipt without obligation of confidentiality or breach of this
Agreement; (iv) are subsequently disclosed to a party hereto on a
non-confidential basis by a third party that is not bound by an
agreement of non disclosure or confidentiality with another party
hereto or its affiliates, which rightfully acquired such
information; or (v) are independently developed by a party hereto.
The Fund and the Transfer Agent further covenant and agree to retain
all such knowledge and information acquired during and after the
term of this Agreement respecting such lists, trade secrets, or any
secret or confidential information whatsoever in trust for the sole
benefit of the Transfer Agent or the Fund and their successors and
assigns. The above prohibition of disclosure shall not apply to the
extent that the Transfer Agent must disclose such data to its
sub-contractor or Fund
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agent for purposes of providing services under this Agreement,
provided such parties are bound by the same obligations to maintain
confidentiality as set forth above.
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 standard subpoenas
from state or federal government authorities (i.e., divorce and
criminal actions), the Transfer Agent will use reasonable efforts to
notify the Fund to the extent legally permitted and to secure
instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves the right,
however, to exhibit the Shareholder records to any person whenever
it is advised by counsel that it may be held liable for the failure
to exhibit the Shareholder records to such person or if required by
law or court order.
8.3 The Fund and the Transfer Agent shall each comply with all
applicable laws, rules and regulations relating to privacy,
confidentiality, data security and the handling of personal
financial information applicable to it that may be established from
time to time, including but not limited to the Xxxxx-Xxxxx-Xxxxxx
Act and Securities and Exchange Commission Regulation S-P (17 CFR
Part 248) promulgated thereunder.
9. Covenants of the Fund and the Transfer Agent
9.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Agreement and Declaration of Trust and By-Laws of
the Fund and all amendments thereto.
9.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for
safekeeping of 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.
9.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable
as required by applicable laws, rules and regulations. 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.
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9.4 The Transfer Agent shall provide assistance to and cooperate with
the Fund's internal or external auditors in connection with any
Fund-directed audits. The Transfer Agent shall provide such
assistance in accordance with reasonable procedures and at
reasonable frequencies, which shall not exceed twice each calendar
year unless otherwise agreed to by the parties, and the Fund shall
provide reasonable advance notice to the Transfer Agent of such
audits. For purposes of such audits, at the request of the Fund, the
Transfer Agent will use reasonable efforts to make available, during
normal business hours, all required records, data and operating
processes for review by such auditors.
10. Termination of Agreement
10.1 Term. The term of this Agreement shall be two (2) years ("Initial
Term") from the date first stated above unless terminated pursuant
to the provisions of this Section 10. After the Initial Term, this
Agreement may be terminated by either party upon at least sixty (60)
days' written notice to the other party. In the event of the
termination of this Agreement, the terms of this Agreement shall
continue in effect until the date that the Deconversion (defined
below) of the Fund is completed.
10.2 Termination; Deconversion. In the event that this Agreement is
terminated, the Transfer Agent agrees that, in order to provide for
uninterrupted service to the Fund, the Transfer Agent, at the Fund's
request, shall offer reasonable assistance to the Fund in converting
the records of the Fund from the Transfer Agent's systems to
whatever services or systems are selected by the Fund (the
"Deconversion"). As used herein "reasonable assistance" and
"transitional assistance" shall not include requiring the Transfer
Agent (i) to assist any new service or system provider (the "new
agent") to modify, to alter, to enhance, or to improve the new
agent's system, or to provide any new functionality to the new
agent's system, (ii) to disclose any Proprietary Information of the
Transfer Agent, or (iii) to develop Deconversion software, to modify
any Transfer Agent software, or to otherwise alter the format of the
data as maintained on any Transfer Agent's systems. Notwithstanding
anything contained in this Agreement to the contrary, should the
Fund desire to carry out such Deconversion on a particular date, the
Transfer Agent shall use its best efforts to facilitate the
conversion on such date; however, there can be no guarantee or
assurance that the Transfer Agent will be able to complete a
Deconversion by such requested date.
10.3 Fees and Expenses upon Termination. Should either party exercise its
right to terminate, all reasonable out-of-pocket expenses or costs
associated with the movement of records and material and programming
charges, if any, will be borne by the Fund. Additionally, the
Transfer Agent reserves the right to charge a reasonable fee for its
deconversion services. In the event of termination of this
Agreement, the Fund agrees to pay the Transfer Agent promptly all
amounts due the Transfer Agent hereunder for services performed and
reasonable out-of-pocket expenditures incurred prior to such
termination.
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10.4 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.
10.5 Termination by the Fund. The Fund, in addition to any other rights
and remedies, shall have the right to terminate this Agreement upon
the occurrence of (i) the bankruptcy of the Transfer Agent or the
appointment of a receiver therefore if such proceedings are not
dismissed within 21 days of being brought or (ii) during the Initial
Term, the material failure by the Transfer Agent to perform its
duties and obligations under this Agreement or a material breach of
this Agreement by the Transfer Agent. With respect to (i), the
termination shall be effective at any time specified in a written
notice from the Fund to the Transfer Agent. With respect to (ii),
the Fund shall provide the Transfer Agent with written notice
identifying such failure or breach and stating its intention to
terminate the Agreement in sixty (60) days from the date of such
notice if such failure or breach has not been cured by the Transfer
Agent within thirty (30) days after receipt of such written notice
from the Fund, except that any failure by the Transfer Agent to
maintain its registration as a transfer agent must be cured
immediately.
10.6 Termination by the Transfer Agent. The Transfer Agent, in addition
to any other rights and remedies, shall have the right to terminate
this Agreement upon the occurrence (i) of the bankruptcy of the Fund
or the appointment of a receiver therefore if such proceedings are
not dismissed within 21 days of being brought (ii) during the
Initial Term, the material failure by the Fund to perform its duties
and obligations under this Agreement or a material breach of this
Agreement by the Fund. With respect to (i), the termination shall be
effective at any time specified in a written notice from the
Transfer Agent to the Fund. With respect to (ii), the Transfer Agent
shall provide the Fund with written notice identifying such failure
or breach and stating its intention to terminate the Agreement in
sixty (60) days from the date of such notice if such failure or
breach has not been cured by the Fund within thirty (30) days after
receipt of such written notice from the Transfer Agent.
11. Assignment and Third Party Beneficiaries
11.1 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.
11.2 Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or
benefits in this Agreement to anyone other than the Transfer Agent
and the Fund, and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive
benefit of
13
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.
11.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided herein, neither party shall make any commitments with third
parties that are binding on the other party without the other
party's prior written consent.
12. Subcontractors
12.1 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, 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, and shall have acted without negligence,
bad faith or willful misconduct.
13. Miscellaneous
13.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and, if material, authorized or
approved by a resolution of the Board of Trustees of the Fund.
13.2 Colorado Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws
of the state of Colorado.
13.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of
God, strikes, equipment or transmission failure or damage reasonably
beyond its control, or other causes reasonably beyond its control,
and such party has acted without negligence, bad faith or willful
misconduct, 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. In the event of a disaster rendering the Transfer
Agent's systems or facilities inoperable, the Transfer Agent will
use all reasonable efforts to continue to provide services to the
Fund in accordance with the Transfer Agent's then current Business
Contingency plan, which includes such general back-up facilities as
the Transfer Agent reasonably determines to be appropriate.
13.4 Notice. A copy of the Agreement and Declaration of Trust is on file
with the Secretary of the Commonwealth of Massachusetts, and notice
is hereby given that this instrument is executed on behalf of the
Board of Trustees of the Fund as Trustees and not individually and
that the obligations of this instrument are not binding upon any of
the Trustees or shareholders individually but are binding only upon
the assets and property of the Fund.
14
13.5 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.
13.6 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.
13.7 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.
13.8 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.
13.9 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.
13.10 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.
13.11 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.
13.12 Notices. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class
mail, postage prepaid, addressed as follows or to such other address
or addresses of which the respective party shall have notified the
other.
(a) ALPS Mutual Funds Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: General Counsel
Fax: 000.000.0000
15
(b) If to the Fund, to:
State Street Institutional Investment Trust
Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: President
14. Additional Funds
In the event that the Fund establishes one or more Portfolios, 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 Portfolio shall become a
Portfolio hereunder.
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.
ALPS MUTUAL FUNDS SERVICES, INC. STATE STREET INSTITUTIONAL
INVESTMENT TRUST
By: ____________________________ By: ______________________
Name: Name:
Title: Title:
16
SCHEDULE A
STATE STREET
FUND LIST
State Street Institutional Investment Trust
State Street Institutional Liquid Reserves Fund
17
SCHEDULE B
FEE SCHEDULE
Base Fee:
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.
Annual Base Fee of:
$25,000 on the primary class of shares of each Portfolio
$5,000 fee for each additional class of shares of each Portfolio
Annual Open Account Fee of:
$15 per open account
Annual Inactive Account Fee of:
$5 per inactive account(1).
Annual Closed Account Fee of
$0.50 per closed account(2).
(1) An inactive account is an account with a zero balance that has had activity
in the last eighteen months.
(2) A closed account is an account with a zero balance that has not had activity
in the last eighteen months.
Out-of-Pocket Fees:
The following list includes some, but not all, of the Out-of-Pocket Fees and
expenses that may be incurred by ALPS from outside vendors. All Out-of-Pocket
Fees and expenses, whether or not listed below, are passed directly through at
cost to our clients as Out-of-Pocket Fees and expenses. The following fees are
estimates and are subject to change:
- $15 annual fee on fiduciary accounts (may be charged to shareholders
directly)
- Monthly NSCC-interface fees
- The cost of printing and mailing shareholder confirmations and
statements
18
- The cost of fund-specific statement paper and envelopes
- Postage
- Service auditor's report
- Customized programming
- Other miscellaneous expenses that may occur at the Fund's direction
ALPS MUTUAL FUNDS SERVICES, INC. STATE STREET INSTITUTIONAL
INVESTMENT TRUST
By: ____________________________ By: ______________________
Name: Name:
Title: Title:
19
SCHEDULE C
SECURITY PROCEDURES
TELEPHONE VERIFICATION PROCEDURES:
The Transfer Agent will require verification of all of the following by the
caller
- Social Security number or Tax ID number
- Account Registration / Legal Name of Account
- Mailing Address of Record
FAX VERIFICATION PROCEDURES:
The Transfer Agent will require that the fax contain an authorized signature for
verification. In addition, for faxed applications, the Transfer Agent will
require the shareholder to mail the original in a timely manner.
Mail
NO Signature Signature
Guarantee Guarantee
Phone Fax Required Required
Redemptions
Wire to bank instructions on record X X X
Wire to new bank instructions X
Exchanges between classes X X X
Purchases
Purchase by wire X X X
Transfers
Transfer assets to different account registration X X
Account Maintenance
Establish new account X X
Change address of record X X X
20
Mail
NO Signature Signature
Guarantee Guarantee
Phone Fax Required Required
Change account registration X X
Add bank wiring instructions X X
Remove bank wiring instructions X X X
Change interested party (additional mailings) X X
Change broker dealer of record X X
Change dividend options X X X
Addition or removal of authorized signer or transactor X X
ALPS MUTUAL FUNDS SERVICES, INC.
STATE STREET INSTITUTIONAL
INVESTMENT TRUST
By: ____________________________ By: ______________________
Name: Name:
Title: Title:
21
SERVICES AMENDMENT
February 1, 0000
Xxxxx Xxxxxx Institutional Investment Trust
Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Dear Sir or Madam:
State Street Institutional Investment Trust (the "Fund") and ALPS Mutual Funds
Services, Inc. (the "Transfer Agent") are parties to an agreement dated as of
February 1, 2005 (the "Agreement") under which the Transfer Agent performs
certain transfer agency and/or recordkeeping services for the Fund. In
connection with the enactment of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 ("USA PATRIOT Act") and the regulations promulgated thereunder,
(collectively, the "Patriot Act"), the Fund has requested and the Transfer Agent
has agreed to amend the Agreement as of the date hereof in the manner set forth
below:
WHEREAS, Section 326 of the USA PATRIOT Act (the "Patriot Act") and final rules
adopted by the Department of the Treasury's Financial Crimes Enforcement Network
(the "Rules") require the Fund to develop and implement an anti-money laundering
program (the "Program"), which among other things, is designed to verify the
identity of any person opening an account, determine whether such person appears
on lists of known or suspected terrorists or terrorist organizations and
identify and report unusual and suspicious account activity to regulators;
WHEREAS, the Patriot Act authorizes a mutual fund to delegate to a service
provider, including its transfer agent, the implementation and operation of
certain aspects of the Program; and
WHEREAS, in order to assist its transfer agent clients with their customer
identification compliance responsibilities under the Patriot Act and the Rules,
the Transfer Agent has provided to the Fund for its consideration and approval
written procedures describing various tools designed to assist in the (i)
verification of persons opening accounts with the Fund and determination of
whether such persons appear on any list of known or suspected terrorists or
terrorist organizations, and (ii) identifying and reporting of unusual and
suspicious activity in connection with accounts opened with the Fund. The Fund
has, after review, selected various procedures to comply with its obligations
under the Patriot Act and the Rules pursuant to the Program; and
WHEREAS, the Fund recognizes the importance of complying with the Patriot Act
and desires to implement its procedures as part of its Program and, subject to
the terms of the Rules, delegate to the Transfer Agent the day-to-day operation
of certain of its procedures on behalf of the Fund.
1
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter contained, the parties hereby agree to amend the
Agreement, pursuant to the terms thereof, as follows:
1. Delegation; Duties.
1.1 Subject to the terms and conditions set forth in the Agreement, the
Fund hereby instructs and directs the Transfer Agent to implement the procedures
on its behalf as set forth on Exhibit A, which is attached to and made a part
of, this Agreement (the "Procedures"), and, in connection therewith, the
Transfer Agent agrees to maintain policies and procedures, and related internal
controls, that are consistent with the Procedures and the Program (the "TA
Procedures"). Exhibit A may be amended, from time to time, by the Transfer Agent
in writing to the Fund with at least 30 days prior notice of such effective
change.
1.2 The Transfer Agent agrees to perform such delegated Procedures, with
respect to the ownership of shares in the Fund(s) set forth in Exhibit B for
which the Transfer Agent maintains the applicable shareholder information,
subject to and in accordance with the terms and conditions of the Agreement.
Exhibit B, which is attached to and made a part of, this Agreement, may be
amended from time to time by mutual agreement of the parties upon the execution
by both parties of a revised Exhibit B.
1.3 The Fund acknowledges that it has had an opportunity to review,
consider and comment upon and select the Procedures and the Fund has determined
that they, as part of the Fund's overall anti-money laundering Program, are
reasonably designed to prevent the Fund from being used for money laundering or
the financing of terrorist activities and to achieve compliance with the
applicable provisions of the Patriot Act, Bank Secrecy Act and their
implementing regulations thereunder, which compliance the Fund acknowledges to
be its responsibility. Notwithstanding anything to the contrary contained in
this Agreement, in no event shall the Transfer Agent be obligated to file with
any regulator, on behalf of the Fund, any requisite forms or other information
in connection with the Program. Any filing by the Transfer Agent shall be in its
own name and on its own behalf. The Fund shall be responsible for complying with
any and all requisite regulatory filings which arise as a result of the
Procedures or Program generally.
1.4 Except as otherwise expressly stated in this Agreement, the Transfer
Agent makes no representation or warranty, either express, implied or statutory,
concerning the Procedures herein. The Fund expressly confirms that it has not
relied upon any representation by the Transfer Agent as a basis for entering
into this Amendment. The provisions of this ss.1.4 shall survive the termination
of this Amendment.
2. Consent to Examination. In connection with the performance by the
Transfer Agent of the Procedures, the Transfer Agent understands and
acknowledges that the Fund remains responsible for assuring compliance with the
Patriot Act and that the records the Transfer Agent maintains for the Fund
relating to the Fund's 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 Fund hereby directs, and the Transfer Agent
acknowledges, that the Transfer Agent shall; (1) maintain all records or other
documentation related to shareholder
2
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Patriot Act, the Rules and the Program (including,
without limitation, creating documentation to provide a basis for law
enforcement authorities to trace illicit funds), (2) permit federal regulators,
the Fund's anti-money laundering compliance officer ("AML Officer") and/or any
auditor of the Program or their designees (collectively, the "Inspectors")
access to such information and records maintained by the Transfer Agent and
relating to the Transfer Agent's implementation of the Procedures on behalf of
the Fund, as they may request, (3) permit such Inspectors to inspect the
Transfer Agent's implementation of the Procedures on behalf of the Fund; and
(iv) otherwise make said records or other documents available at the direction
of the AML Officer. The Transfer Agent hereby consents to such examination
and/or inspection and agrees to cooperate with such Inspectors 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, all required records and information for review by such
Inspectors.
3. Limitation on Delegation.
3.1 The Fund acknowledges and agrees that in accepting the delegation
hereunder, the Transfer Agent is agreeing to perform only those aspects of the
Fund's Program that have been expressly delegated as part of the Procedures and
is not undertaking and shall not be responsible for any other aspect of the
Fund's Program or for the overall compliance by the Fund with the Patriot Act.
Additionally, the parties acknowledge and agree that the Transfer Agent shall
only be responsible for performing the Procedures with respect to the ownership
of shares in the Fund for which the Transfer Agent maintains the applicable
shareholder information.
3.2 The Fund also acknowledges and agrees that the Transfer Agent's
provision of the Procedures hereunder is dependent upon the receipt by the
Transfer Agent of certain services from third parties. In the event services
from any such third party becomes unavailable, the Transfer Agent shall use
reasonable efforts to obtain equivalent services from an alternative provider or
may, in its discretion, discontinue the delegated duties upon such prior notice
to the Fund as may be reasonably practicable. Notwithstanding anything to the
contrary contained herein, the Transfer Agent will have no liability for the
performance or nonperformance of any such third party except to the extent the
Transfer Agent failed to exercise the same care in its selection of such third
party as the Transfer Agent exercises in the conduct of its own operations.
4. Reports. The Transfer Agent agrees to provide to the Fund (i) any reports
received by the Transfer Agent from any government agency pertaining to the
Transfer Agent's anti-money laundering monitoring on behalf of the Fund as
provided in this Amendment, (ii) any action taken in response to anti-money
laundering violations as described in (i), and (iii) an annual report of its
verification activities on behalf of the Fund. The Transfer Agent shall provide
such other reports on the verification activities conducted at the direction of
the Fund as may be agreed to from time to time by the Transfer Agent and the
Fund.
3
5. Fees & Expenses.
5.1 In consideration of the performance of the foregoing duties, the
Fund agrees to pay the Transfer Agent a fee for each Shareholder account as set
out in the Fee Schedule which is attached to, and made a part of, this
Agreement. Such fees and out-of-pocket expenses and advances identified in
ss.5.2 below may be changed from time to time subject to mutual written
agreement between the Fund and the Transfer Agent.
5.2 In addition to such fees paid under ss.5.1 above, the Fund agrees to
reimburse the Transfer Agent for the reasonable administrative expenses that may
be associated with such additional duties 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
forth in the fee schedule attached hereto. The terms of the Agreement shall
apply with respect to the payment of such expenses in the same manner and to the
same extent as any other expenses incurred under the Agreement.
6. Reliance on Information and Authenticity. The Fund hereby acknowledges and
understands that the Transfer Agent's ability to perform the Procedures under
the terms and conditions set forth in this Agreement is contingent upon the
Fund's ongoing cooperation with the Transfer Agent. The Fund shall use all
reasonable efforts in good faith to cooperate with the Transfer Agent taking all
action in a timely manner which the Transfer Agent, in its reasonable opinion,
deems necessary to enable or assist the Transfer Agent in performing any of the
Procedures under this Agreement, including but not limited to, providing, or
causing to be provided, to the Transfer Agent any information or documents which
the Transfer Agent deems reasonable or appropriate to provide the duties
hereunder. The Transfer Agent shall, when performing hereunder, be entitled to
rely upon (i) the accuracy of information, data and authorizations received from
the Fund or any Shareholder, and (ii) the authenticity of any representation
purporting to be from, or signature purporting to be of, the Fund or a
Shareholder. In no event shall the Transfer Agent be liable in any way for any
losses, penalties, expenses or other harm or injury which may arise in
connection with the Transfer Agent's delay in establishing, or refusal to
establish, a shareholder account as a result of the Transfer Agent's failure to
receive in a timely manner an application to open such account which, in the
Transfer Agent's sole discretion, it deems complete.
7. Miscellaneous.
7.1 Except as set forth herein, the terms and provisions of the
Agreement shall remain unchanged and continue to apply with full force and
effect. Except as otherwise defined herein, all capitalized terms used in this
Amendment shall have the same meaning as set forth in the Agreement.
7.2 The parties to this Agreement understand and acknowledge that the
Transfer Agent shall act on behalf of and as agent for the Fund with respect to
the Procedures set forth in Exhibit A. In no event shall the Transfer Agent be
liable for its failure to perform under the terms of this Amendment or any
Exhibit, except where the Transfer Agent has acted with
4
negligence or willful misconduct. This Agreement shall not be deemed to
constitute the Fund and the Transfer Agent as partners or joint ventures.
7.3 The Fund shall indemnify and hold harmless the Transfer Agent from
and against any and all losses, penalties, expenses or other harm or injury
which the Transfer Agent may incur or suffer or which may be asserted by any
person or entity, including reasonable attorneys' fees and court costs arising
out of (i) any failure by the Fund to observe and perform properly each and
every covenant of this Agreement or any other wrongdoing of the Fund, or (ii)
any action taken or omitted to be taken by the Transfer Agent in reasonable
reliance upon information provided to the Transfer Agent by the Fund; provided,
however, that the Fund shall not be required to indemnify and hold harmless the
Transfer Agent from any losses which are caused by the Transfer Agent's
negligence. The provisions of ss.7 shall survive the termination of this
Amendment.
7.4 In the event that the Transfer Agent, in its sole judgment, believes
that its performance of any duty set forth herein may create a risk of
financial, reputation or other loss for it, the Transfer Agent may, upon notice
to the Fund, suspend its performance of the Procedures; provided, however, that
if the Fund takes such action as may be requested by the Transfer Agent to
eliminate such risk, the Transfer Agent shall not suspend the Procedures, or, if
the Procedures have been suspended, shall reinstate its provision of the
Procedures.
7.5 Each party represents to the other that the execution and delivery
of this Amendment has been duly authorized.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be
executed in its name and behalf by its duly authorized representative as of the
date first above written.
ALPS MUTUAL FUND SERVICES, INC.
By: ________________________________________
Name:_______________________________________
Title: _____________________________________
State Street Institutional Investment Trust
By: ________________________________________
Name:_______________________________________
Title: _____________________________________
5
EXHIBIT A
PROCEDURES
The Transfer Agent agrees to perform the duties set forth below in addition to
those duties set forth in the TA Procedures, with respect to the ownership of
shares in the Fund(s) set forth in Exhibit B for which the Transfer Agent
maintains the applicable account shareholder information, subject to and in
accordance with the terms and conditions of this Agreement.
I. REQUESTS FOR NEW ACCOUNT
Upon receipt from the Fund of an application to establish an account in the name
of one of its shareholders, the Transfer Agent shall review it for completeness.
The Transfer Agent shall deem the application complete as to the shareholder or
any authorized signers or beneficiaries on the account if with respect to such
entity (i) the application includes such entity's name, U.S. resident street
address, social security number and date of birth or (ii) the Fund (a) certifies
to the Transfer Agent as to the successful verification of the identity of such
entity and the manner in which the Fund verified such identity, and (b) provides
the detailed information so verified (i.e. passport number, drivers license
number, birth certificate, etc.) which, in the Transfer's Agent's opinion,
fulfills applicable regulatory requirements.
If the application is incomplete as to the shareholder, the Transfer Agent will
not open the account and will notify the Fund and request additional information
from the Fund. If the Fund fails to provide the necessary shareholder
information to complete the application within two business days of the Transfer
Agent's request, the Transfer Agent shall promptly return the application as
incomplete and return any funds earmarked for deposit in such account to the
shareholder, unless upon receipt of the Transfer Agent's request, the Fund
requests additional time to provide the missing information in which such
application and funds will be returned to the shareholder if the missing
information is not provided within five (5) business days of the Transfer
Agent's request. If the Transfer Agent determines, in its sole discretion, that
the shareholder information has been completed within a timely manner, the
Transfer Agent shall establish the account; provided, however, that such account
shall be restricted from any and all redemption transactions unless and until
such restriction is lifted by the Transfer Agent in accordance with the terms
below.
Prior to opening any account, the Transfer Agent shall perform an acceptance
review for all monetary instruments received and administer any signature
guarantee or other verification policy in accordance with prospectus
requirements or pursuant to instructions received from the Fund.
If the shareholder information is complete but the application is incomplete as
to any authorized signer and/or beneficiary, the Transfer Agent will open the
account and restrict such account from any redemption transactions with respect
to such entity unless and until such restriction is lifted by the Transfer Agent
in accordance with the terms below.
6
The Transfer Agent may file a Suspicious Activity Report or other appropriate
report on its own behalf with applicable regulator(s) if in attempting to
collect any requisite information it deems such action necessary or appropriate.
The trade date for the purchase of shares on a newly established account shall
be the date on which the Transfer Agent deems the application complete as to
shareholder information.
II. SCREENING AGAINST THE BLOCKED PERSONS AND OTHER RESTRICTED LISTS
Newly Established Accounts
Once the application is deemed complete by the Transfer Agent and the account is
established, the Transfer Agent will scan the application into a database,
inputting the name and address of the shareholder and any authorized signer(s)
and beneficiary(ies) on the account and shall compare it against the published
lists set forth in Exhibit C, and such other lists as the Transfer Agent may
utilize, in an effort to determine whether or not such entity is named on any of
the said lists (if so, a so-called "Positive Match").
Such scanning will result in a report of potential matches (the "Exception
Report"), which may or may not include a Positive Match. If, upon review of the
Exception Report and any information available to it, the Transfer Agent
determines in its sole discretion that any potential match(es) is not a valid
Positive Match, then such match will be deemed a False Match and the Transfer
Agent shall so document to the file without reporting it to the Fund. If the
Transfer Agent believes a potential match is a Positive Match or requires
additional information to make a determination, then such match will be reported
to the Fund. If additional information is provided by the Fund, the Transfer
Agent will make any necessary corrections and will re-evaluate such "match" by
re-scanning the updated information. If the Transfer Agent determines, in its
sole discretion, that a Positive Match exists or that it is unable to determine
with reasonable certainty that no Positive Match exists, the Transfer Agent will
notify the Fund and provide supporting documentation. It also will file the
appropriate report(s) on its own behalf with the applicable regulators and
comply with instructions of appropriate regulator(s) which may include, without
limitation, freezing the account and its assets, refusing to add an authorized
signer or beneficiary to the account, and/or closing the account.
If the Transfer Agent determines, in its sole discretion, that no Positive Match
exists on items reported, the Transfer Agent will notify the Fund and document
its review. If the Fund, in its sole discretion, believes that a Positive Match
does exist, the Transfer Agent will take instructions from the Fund, subject to
any regulatory limitations, and will document its files.
Existing Accounts
Each month, or as otherwise agreed to by the parties, the Transfer Agent shall
scan the shareholder's name and that of each authorized signer and beneficiary
on existing accounts in an effort to identify whether or not a Positive Match
exists, in which case the Transfer Agent and Fund shall act in accordance with
the applicable terms above.
7
In addition, the Transfer Agent shall performance an acceptance review for all
monetary instruments received and administer any signature guarantee or other
verification policy in accordance with prospectus requirements or pursuant to
instructions received from the Fund.
For both new and existing accounts, the Transfer Agent shall review accounts to
identify those established by known offenders attempting fraud and once
identified, freeze such accounts.
The Transfer Agent will retain records of scanning function and results, in
accordance with applicable Bank Secrecy Act regulation(s).
III. IDENTITY VERIFICATION
Upon receipt of a complete application, as described in Section I above to
establish an account or add an authorized signer or beneficiary, the Transfer
Agent will attempt to verify the identity of the shareholder and its authorized
signers and/or beneficiaries, as applicable. The extent and nature of the
information needed by the Transfer Agent to perform such verification shall
depend upon the nature of the accountholder, authorized signer or beneficiary
(e.g. corporation, individual, trust, non-U.S. resident) but shall at a minimum
include, without limitation, the entity's name, U.S. street address, social
security number and, if applicable, date of birth. The Transfer Agent shall deem
the identity verified, as to the shareholder or any authorized signers or
beneficiaries on the account, if (i) such entity's name, U.S. resident street
address, social security number and date of birth matches information in the
database utilized by the Transfer Agent or (ii) the Fund, to the Transfer
Agent's reasonable satisfaction, (a) certifies to the successful verification by
the Fund of the identity of such entity and the manner in which the Fund
verified such identity, and (b) provides copies of the detailed information
verified (i.e. passport number, drivers license number, birth certificate, etc.)
which, in the Transfer's Agent's opinion, fulfills applicable regulatory
requirements. Examples of acceptable documentary evidence, as agreed upon by the
parties, include driver's license, military driver's license or other military
identification card, alien registration card, birth certificate identification
card issued by a state within the last 6 months, certified copy of a court order
with full name and date of birth, and passport.
The Transfer Agent also shall attempt to so verify the identity of any
authorized signer or beneficiary which the Fund and/or shareholder requests to
be added to any existing account established after October 1, 2003.
In cases where the Fund has not certified to the entity's identity as described
above and the Transfer Agent is unable to verify such information, the Transfer
Agent shall so notify the Fund, furnish supporting documentation to it and
request that additional evidence or such certification from the Fund.
In cases where the shareholder's identity cannot be verified by the Transfer
Agent and the Fund has failed to provide a certification with respect to the
shareholder's identity to the Transfer Agent's reasonable satisfaction, the
Transfer Agent, in its sole discretion or upon the Fund's request, may close the
account. If it is an authorized signer or beneficiary's identity that cannot be
verified to the Transfer Agent's reasonable satisfaction, the Transfer Agent, in
its sole discretion or at the Fund's request, may close the account or refuse to
add such entity(ies) to the account. In either case, the
8
Transfer Agent may file the appropriate report(s) on its own behalf with the
applicable regulators and comply with instructions of appropriate regulator(s)
which may include, without limitation, freezing the account and its assets,
refusing to add an authorized signer or beneficiary to the account, and/or
closing the account.
The Transfer Agent shall redeem any shares in a closed account with the opening
net asset value as of the date on which such account was closed, with the
proceeds forwarded to the shareholder when available.
The restrictions against redemption transactions with respect to an account or
any authorized signer or beneficiary on such account shall be removed only when
the Transfer Agent determines that (i) no Positive Match exists with respect to
the shareholder, authorized signer or beneficiary, as the case may be, and (ii)
such entity's identity has been verified by the Transfer Agent as described
above.
IV. SUSPICIOUS ACTIVITY MONITORING:
The Transfer Agent, for each shareholder account, will establish an activity
pattern (the account "Profile") based on its transactional history for the
immediately preceding twelve month time period or such shorter period if the
account has been established for less than a year. The Profile will be based
upon the number of purchases and redemptions, as well as the average dollar
amount of such purchase and redemptions during such period. Exchange
transactions may or may not be a part of the Profile, as determined by the Fund.
The Profile shall not include other transactional activity including, but not
limited to, dividends, share adjustments and stock splits. The Fund shall
provide written approval of their acceptance of such Profiles.
On a daily basis, the Transfer Agent will input a file of the purchase,
redemption, exchange, and transfer transactions on a shareholder account into
its database in an effort to analyze and report any transaction (an "Exception
Report') that does not correspond to the established account Profile or, upon
request by Fund, upon rules established by Fund (e.g. report on any transaction
below a dollar minimum) and agreed upon by the Transfer Agent.
The Transfer Agent will review each Exception Report produced by the database.
If the Transfer Agent, upon review of the information available to it,
determines an item listed on the Exception Report is not suspicious, it will
document its findings. Any item which the Transfer Agent, in its reasonable
opinion, determines is or may be suspicious will be reported to the Fund. Upon
receipt of such notice, the Fund shall promptly provide any additional
information which it would like the Transfer Agent to consider. Upon review of
such additional information, the Transfer Agent may determine that the item is
not suspicious in nature, in which case the Transfer Agent will report its
findings to the Fund. If, however, the Transfer Agent cannot, in its sole
judgment, determine the nature/cause of the suspicious transaction, the Transfer
Agent will consider the item to be "suspicious" in nature and notify the Fund,
unless prohibited by applicable law, rule or regulation. The Transfer Agent may
file the appropriate report(s) on its own behalf with the applicable regulators
and comply with instructions of appropriate regulator(s) which may include,
without limitation, freezing the account and its assets, refusing to add an
authorized signer or beneficiary to the account, and/or closing the account.
9
With respect to any newly established account, the Transfer Agent will review
the account for thirty (30) days following the initial deposit into such account
any and all redemptions that occur and determine, in its sole discretion,
whether or not any such redemptions are "suspicious" in nature. If the Transfer
Agent determines that any redemption is suspicious, it will promptly notify the
Fund, unless prohibited by applicable law, rule or regulation, file the
appropriate report(s) on its own behalf with the applicable regulators and
comply with instructions of appropriate regulator(s) which may include, without
limitation, freezing the account and its assets, refusing to add an authorized
signer or beneficiary to the account, and/or closing the account.
The Fund shall instruct the Transfer Agent with respect to the acceptance of
cash equivalents (bank drafts, bank notes, etc.) subject to the Transfer Agent's
policies with respect to receipt of cash equivalents, in connection with any
shareholder accounts. The Transfer Agent shall monitor and track all purchase
transactions made with cash equivalents under $10,000 for a rolling 12-month
period and file Form 8300 reports as necessary.
The Transfer Agent will notify the Fund of any change in payment instructions
(including wires sent to banking institutions other than those on file) which in
the sole discretion of the Transfer Agent is deemed to be "suspicious" in nature
and await instruction from the Fund as to whether or not such change should be
implemented by the Transfer Agent.
The Transfer Agent will review any changes to shareholders' account statement
address or name and notify Fund of any such changes that it deems to be
"suspicious" in nature, unless prohibited by applicable law, rule or regulation.
Upon such notice or upon instruction from the Fund, the Transfer Agent may file
the appropriate report(s) on its own behalf with the applicable regulators and
comply with instructions of appropriate regulator(s) which may include, without
limitation, freezing the account and its assets, refusing to add an authorized
signer or beneficiary to the account, and/or closing the account.
ALPS MUTUAL FUNDS SERVICES, INC.
STATE STREET INSTITUTIONAL INVESTMENT TRUST
By: ____________________________ By:________________________________________
Name: Xxxxxx X. May Name:______________________________________
Title: Managing Director Title:_____________________________________
Date: _______________________
10
EXHIBIT B - FUND LIST
State Street Institutional Investment Trust
State Street Institutional Liquid Reserves Fund
11
EXHIBIT C
OFAC SDN list
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OFAC Blocked Countries
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Bank of New England
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Canadian Consolidated List (OSFI)
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12
FORM OF TRANSFER AGENT INTERACTIVE CLIENT SERVICES AGREEMENT
AGREEMENT made this 1st day of February, 2005 (the "Effective Date"),
between State Street Institutional Investment Trust, a trust established under
the laws of the State of Massachusetts (the "Fund") and ALPS Mutual Funds
Services, Inc., a
Colorado corporation having its principal office at 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 ("ALPS"). ALPS and the Fund are
collectively referred to herein as the "Parties" and individually as the
"Party".
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940.
WHEREAS, ALPS is a provider of transfer agency services to the mutual fund
industry utilizing proprietary and licensed computer software programs to allow
shareholders to access their account information and real-time transaction
processing.
WHEREAS, the Fund desires to utilize ALPS' Interactive Client Services
("ICS") to provide the Fund's shareholders with access to shareholder account
information and real-time transaction processing capabilities in accordance with
the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Parties hereby agree as follows.
ARTICLE I
DEFINITIONS
The following definitions shall apply to this Agreement. Additional terms
may be defined in the Agreement and in the exhibits, which describe the ICS to
be provided by ALPS for the Fund.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person.
"Portfolio(s)" shall mean the various registered investment companies
(mutual funds) which the Fund has designated to participate in ICS, and as
listed on Schedule 1, attached hereto.
"Investment Company Web Site" shall mean the web page or pages developed
and maintained by ALPS, for the benefit and at the direction of the Fund,
residing on the computer system of an Internet Service Provider ("ISP") hired by
ALPS connected to the Internet and accessible by hypertext link through the
World Wide Web, where Persons may view information about the Portfolios and
access the various Transaction screens provided by the Fund.
"Person" shall mean an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Security Procedures" shall mean the procedures, including the use of
encryption technology, implemented for purposes of protecting the integrity,
confidentiality or secrecy of, and the unauthorized interception, corruption,
use of, or access to, any data or information transmitted via ICS.
"Transactions" shall mean account inquiries, purchases, redemptions
through Automated Clearing House, fed wire, or check to the address of record
for the Portfolio account, exchanges and other transactions offered through ICS.
"User(s)" shall mean record owners or authorized agents of record owners
of shares of a Portfolio, including brokers, investment advisors and other
financial intermediaries.
ARTICLE II
USE OF ICS BY THE FUND
Section 2.1 Selection of ICS, ALPS will perform and the Fund has selected,
the ICS services described on Exhibit A-1 attached to this Agreement.
Section 2.2 Responsibilities of ALPS. During the term of this Agreement
and subject to the provisions of this Agreement, ALPS shall, at its expense
(unless otherwise provided for herein): (i) provide, or hire other Persons to
provide, all computers, telecommunications equipment and other equipment and
software reasonably necessary to develop and maintain the ICS and Investment
Company Web Site; and (ii) deliver a monthly billing report to the Fund, which
shall include a report of Transactions, by type, processed through ICS.
Section 2.3 Responsibilities of the Fund. During the term of this
Agreement and subject to the provisions of this Agreement, the Fund shall at its
expense (unless otherwise provided for herein) fulfill the Fund's obligations,
if any, set forth in this Agreement.
Section 2.4 Change in Designated Portfolios. Upon thirty (30) days prior
notice to ALPS, the Fund may change the Portfolios designated to participate in
ICS by delivering to ALPS, in writing, a revised list of participating
Portfolios.
Section 2.5 Scope of ALPS' Obligations. ALPS shall at all times use
reasonable commercial efforts in performing ICS under this Agreement. In the
absence of willful misconduct, knowing violations of applicable law, reckless
disregard of its duties under this Agreement, or negligence on its part in the
performance of ICS, ALPS shall not be liable for any loss or damage suffered in
connection with the use of the ICS under this Agreement. With respect to those
actions or services delineated in Exhibit A-1 and all other instructions given
to ALPS by the Fund, ALPS shall be presumed to have exercised reasonable
commercial efforts if it has acted in accordance with Exhibit A-1 and other
instructions provided by the Fund. With
2
respect to any claims for losses, damages, costs or expenses which may arise
directly or indirectly from Security Procedures which ALPS has implemented or
omitted, ALPS shall be presumed to have used reasonable commercial efforts if it
has followed, in all material respects, at least those Security Procedures
described in Exhibit B-1 to this Agreement. ALPS may, but shall not be required
to, modify such Security Procedures from time to time to the extent it believes,
in good faith, that such modifications will enhance the security of ICS. All
data and information transmissions via ICS are for informational purposes only,
and are not intended to satisfy regulatory requirements or comply with any laws,
rules, requirements or standards of any federal, state or local governmental
authority, agency or industry regulatory body, including the securities
industry, which compliance is the sole responsibility of the Fund. The Fund
acknowledges and agrees that its Users are responsible for verifying the
accuracy and receipt of all data or information transmitted via ICS.
ARTICLE III
FEES
As consideration for the performance by ALPS of the ICS, the Fund will pay
ALPS the fees as set forth on Exhibit C-1 to this Agreement.
ARTICLE IV
PROPRIETARY RIGHTS
Section 4.1 ALPS' Property. The Fund acknowledges and agrees that it
obtains no rights in or to any of the software, hardware, processes, trade
secrets, proprietary information or distribution and communication networks of
ALPS. Any software ALPS provides to the Fund pursuant to this Agreement shall be
used by the Fund only during the term of this Agreement and only in accordance
with the provisions of this Agreement to provide connectivity to and through
ALPS, and shall not be used by the Fund to provide connectivity to or through
any other system or Person. Any interfaces and software developed by ALPS shall
not be used to connect the Fund to any transfer agency system or any other
Person without ALPS' prior written approval. Except with ALPS' consent or in
conformity with Federal copyright laws, the Fund shall not copy, decompile or
reverse engineer any software provided to the Fund by ALPS. The Fund also agrees
not to take any action which would mask, delete or otherwise alter any of ALPS'
on-screen disclaimers and copyright, trademark and service xxxx notifications
provided by ALPS, in writing, from time to time, or any "point and click"
features relating to User acknowledgment and acceptance of such disclaimers and
notifications.
Section 4.2 Investment Company Web Site. The web pages that make up the
Investment Company Web Site contain intellectual property, including, but not
limited to, copyrighted works, trademarks, and trade dress, that is the property
of the Fund. The Fund retains all rights in the intellectual property that
resides on the Investment Company Web Site, not including any intellectual
property provided by or otherwise obtained from ALPS. To the extent that the
intellectual property of the Fund is duplicated within the ALPS Web Site to
3
replicate the "look and feel," trade dress or other aspect of the appearance or
functionality of the Investment Company Web Site, the Fund grants to ALPS a
non-exclusive, non-transferable license to such intellectual property for the
duration of this Agreement. This license is limited to the intellectual property
of the Fund needed to replicate the appearance of the Investment Company Web
Site and does not extend to any other intellectual property owned by the Fund.
Section 4.3 IP Warranty. Except with respect to the design and graphical
elements and Web pages provided to ALPS by the Fund, ALPS warrants to the Fund
that ALPS owns or has sufficient license or other legal rights in all software
and intellectual property used by ALPS at its facilities to provide the ICS, and
such use by ALPS does not infringe or otherwise violate the U.S. copyrights of
any other party. In the event one or more ICS features are not useable by the
Fund as a result of a breach of the foregoing warranty, then ALPS will use
reasonable commercial efforts to: (a) procure for the Fund the right to continue
using the ICS or infringing portion thereof, or (b) modify the ICS so that it
becomes non-infringing but has substantially the same capabilities, or (c)
replace the ICS or infringing part thereof by other systems of similar
capability within a reasonable period of time under the circumstances. If ALPS
is not able to satisfy the foregoing requirements, then, as the sole remedy, the
Fund will be entitled to terminate this Agreement immediately.
ARTICLE V
TERM AND TERMINATION
Section 5.1 Term. The term of this Agreement shall be two (2) years
("Initial Term") from the date first stated above unless terminated pursuant to
the provisions of this Article V. After the Initial Term, this Agreement may be
terminated by either party upon at least sixty (60) days' written notice to the
other party.
Section 5.2 Termination. Throughout the Initial Term, either Party shall
have the right to terminate this Agreement on written notice to the other Party
of the other Party's material breach of this Agreement and stating its intention
to termination this Agreement in sixty (60) days from the date of such notice if
such failure or breach has not been cured within thirty (30) days after receipt
of such written notice. This Agreement shall automatically terminate upon the
termination of the
Transfer Agency and Service Agreement between the Fund and
ALPS.
Section 5.3 Effect of Termination. In the event of a termination under the
provisions of this Article V, the Parties will have no continuing obligations to
one another other than the obligation to return to one another the confidential
or proprietary materials of the other in their possession.
ARTICLE VI
INDEMNIFICATION; LIABILITY LIMITATIONS
Section 6.1 No Other Warranties. Except as otherwise expressly stated in
section 2.5
4
of this Agreement, the ICS and all software and systems described in this
Agreement and its Exhibits are provided "as is," on an "as available" basis, and
ALPS hereby specifically disclaims any and all representations or warranties,
express or implied, regarding services provided by ALPS hereunder, including any
implied warranty of title, merchantability or fitness for a particular purpose
and implied warranties arising from course of dealing or course of performance.
Section 6.2 Limitation of Liability. Under no circumstances shall ALPS be
liable for indirect, incidental, consequential, special, exemplary or punitive
damages (even if ALPS has been advised of or has foreseen the possibility of
such damages), arising from the use or inability to use the ICS or under any
provision of this Agreement, such as, but not limited to, loss of revenue or
anticipated profits or lost business. Without limiting any of the foregoing
terms of this Section, in no event shall ALPS be liable under this Agreement in
tort or otherwise for an amount exceeding the aggregate fees actually received
by ALPS pursuant to Article III during the most recent twelve (12) month period
(the "Compensation Period"). Notwithstanding the foregoing, the amount
representing the aggregate fees actually received by ALPS during the
Compensation Period commencing as of the date of this Agreement through January
31, 2006 shall be annualized.
Section 6.3 Indemnity. The Fund hereby indemnifies and holds ALPS harmless
from, and shall defend it against any and all claims, demands, costs, expenses
and other liabilities, including reasonable attorneys' fees, arising in
connection with the use of, or inability to use, the ICS by the Fund, its
investment adviser and their agents, except to the extent such liabilities
result directly from the negligence or intentional misconduct of ALPS in the
performance of the ICS.
ARTICLE VII
CONFIDENTIALITY
Section 7.1 Confidential Information. Each of the Parties hereby
acknowledges that in the course of performing its obligations hereunder, the
other may disclose to it certain information and know-how of a technical,
financial, operational or other sort, that is nonpublic and otherwise
confidential or proprietary to the disclosing Party. This Agreement, and in
particular, all ALPS' Security Procedures and fee schedules, shall be considered
confidential and proprietary, except to the extent the Fund disclosure this
Agreement and related fee schedules and exhibits in any regulatory filings,
which may be publicly available, or upon the request of any regulatory agency.
Each Party acknowledges that any such proprietary or confidential information
disclosed to it is of considerable commercial value and that the disclosing
Party would likely be economically or otherwise disadvantaged or harmed by the
direct or indirect use or disclosure thereof, except as specifically authorized
by the disclosing Party. Each Party therefore agrees to keep in strict
confidence all such information that may from time to time be disclosed to it,
and agrees not to use such information except as expressly permitted hereby or
to disclose such information to any third Party for any purpose without the
prior consent of the other. The provisions of this Section 7.1 shall not apply
to any information if and to the extent it
5
was (i) independently developed by the receiving Party as evidenced by
documentation in such Party's possession, (ii) lawfully received by it free of
restrictions from another source having the right to furnish the same, (iii)
generally known or available to the public without breach of this Agreement by
the receiving Party or (iv) known to the receiving Party free of restriction at
the time of such disclosure. The Parties agree that immediately upon termination
of this Agreement, without regard to the reason for such termination, the
Parties shall forthwith return to one another all written materials and computer
software, which are the property of the other Party.
Section 7.2 Specific Performance. Each of the Parties agrees that the
non-breaching Party would not have an adequate remedy at law in the event of the
other Party's breach or threatened breach of its obligations under Section 7.1,
and that the non-breaching Party would suffer irreparable injury and damage as a
result of any such breach. Accordingly, in the event either Party breaches or
threatens to breach the obligations set forth in Section 7.1, in addition to and
not in lieu of any legal or other remedies such Party may pursue hereunder or
under applicable law, each Party hereby consents to the granting of equitable
relief (including the issuance of a temporary restraining order, preliminary
injunction or permanent injunction) against it by a court of competent
jurisdiction, without the necessity of proving actual damages or posting any
bond or other security therefor, prohibiting any such breach or threatened
breach. In any proceeding upon a motion for such equitable relief, a Party's
ability to answer in damages shall not be interposed as a defense to the
granting of such equitable relief.
ARTICLE VIII
FORCE MAJEURE
The Fund acknowledges that the Internet is an insecure, unstable,
unregulated, unorganized and unreliable environment, and that the ability of
ALPS to deliver ICS is dependent upon the Internet and equipment, software,
systems, data and services provided by various telecommunications carriers,
equipment manufacturers, firewall providers and encryption system developers and
other vendors and third parties. ALPS shall not be liable for any delays or
failures to perform any of its obligations hereunder to the extent that such
delays or failures are due to circumstances beyond its reasonable control,
including acts of God, strikes, riots, acts of war, power failures, functions or
malfunctions of the Internet, telecommunications services, firewalls, encryption
systems and security devices, or governmental regulations imposed after the date
of this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Governing Law; Jurisdiction. This Agreement shall be
interpreted, construed and enforced in all respects in accordance with the laws
of the state of
Colorado, without reference to the conflict of laws provisions
thereof.
Section 9.2 Headings. Headings used herein are for convenience of
reference only, and shall not be used in the construction or interpretation
hereof.
6
Section 9.3 Counterparts: This Agreement may be executed in counterparts,
all of which together shall be deemed one and the same Agreement.
Section 9.4 Parties' Independent Contractors. The Parties to this
Agreement are and shall remain independent contractors, and nothing herein shall
be construed to create a partnership or joint venture between them, and none of
them shall have the power of authority to bind or obligate the others in any
manner not expressly set forth herein.
Section 9.5 Severability. If any provision or provisions of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby unless either of the Parties shall, in its reasonable
determination, conclude that it shall be materially prejudiced by such holding
of invalidity, illegality or unenforceability, in which case such Party may
terminate this Agreement by thirty (30) days written notice to the other.
Section 9.6 No Waiver. No term or provision hereof shall be deemed waived
and no breach excused unless such waiver or consent shall be in writing and
signed by the Party claimed to have waived or consented. Any consent by any
Party to, or waiver of, a breach by the other, whether express or implied, shall
not constitute a consent to, waiver of, or excuse for any other different or
subsequent breach.
Section 9.7 Assignment. Neither this Agreement nor all or any of the
rights and obligations of either Party hereunder shall be assigned, whether by
agreement or by operation of law to any Person other than an Affiliate of the
assigning Party, without the prior written consent of the other Party, and any
attempt to do so shall be void. No such permitted assignment shall relieve the
assigning Party of its obligations under this Agreement. This Agreement shall be
binding upon and inure to the benefit of the respective successors, permitted
assigns and legal representatives of the Parties hereto.
Section 9.8 Notices. All notices, requests or communications required
hereunder shall be in writing and shall be deemed to have been duly given (i)
upon delivery, if delivered personally against written receipt, (ii) three (3)
days after posting by certified mail, postage prepaid, return receipt requested,
(iii) upon confirmed receipt, if delivered by telecopier or (iv) the next day if
delivered by a recognized overnight commercial courier, such as Federal Express
or Airborne, addressed in each instance to the Parties at the addresses set
forth below or at such other addresses as shall be given by either of the
Parties to the other in accordance with this Section 9.8.
a. if to the Fund at:
Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax:
Attention: President
7
b. if to ALPS at:
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx, 00000
Fax: 000.000.0000
Attn: General Counsel
Section 9.9 Entire Agreement. This Agreement and its Exhibits together
constitute the complete understanding and agreement of the Parties with respect
to the subject matter hereof, and shall supersede all prior communications with
respect thereto. They may not be modified, amended or in any way altered, except
in a writing signed by both Parties. No agent of any Party hereto is authorized
to make any representation, promise or warranty inconsistent with the terms
hereof.
IN WITNESS WHEREOF, the Parties hereto have set their hands by their
authorized representatives as of the year and date first written above.
State Street Institutional Investment Trust
By: _______________________________________
Name:
Title:
ALPS MUTUAL FUNDS SERVICES, INC.
By: _______________________________________
Name: Xxxxxx X. May
Title: Senior Vice President
8
SCHEDULE 1
LIST OF PORTFOLIOS
State Street Institutional Investment Trust
State Street Institutional Liquid Reserves Fund
9
EXHIBIT A-1
TRANSFER AGENT WEB SERVICES
1. Transfer Agent Web Services. The Fund has requested, and ALPS will provide
Transfer Agent Web Services ("TA Web") as one of the Interactive Client
Services ("ICS") provided pursuant to the terms of the ALPS ICS Agreement
(the "Agreement") between the Fund and ALPS. Through TA Web, Shareholders
may submit Transaction requests directly to the Fund's transfer agent via
the Internet as described further in this Service Exhibit.
2. Definitions. For purposes of this Exhibit, the following additional
definitions shall apply (in addition to all other defined terms in the
Agreement):
"Shareholder" shall mean the record owner or authorized agent of the owner
of shares of a Fund.
3. ALPS Responsibilities. In connection with its performance of TA Web, ALPS
shall:
(a) provide all computers, telecommunications equipment and other
equipment and software reasonably necessary to develop and
maintain the Investment Company Web Site (which is not
designed for use by the public) such website will not contain
any marketing materials, but will contain brand graphics
provided by the Fund;
(b) design and develop the Investment Company Web Site
functionality necessary to facilitate and maintain the
hypertext links to the ALPS Web Site and the various
Transaction Web pages and otherwise make the Investment
Company Web Site available to Shareholders;
(c) receive Transaction requests electronically transmitted to the
ALPS Web Site via the Internet following execution of a link
from the Investment Company Web Site to the ALPS Web Site and
route Transaction requests to ALPS' transfer agency system;
(d) for each Transaction request received, route Transaction
information from the ALPS' transfer agency system to ALPS' Web
Site to be viewed by Users;
(e) perform all other ALPS obligations as set forth in the
Agreement.
4. Fund Responsibilities. In connection with its use of TA Web, the Fund,
through its service providers, shall:
(a) provide ALPS with such other written instructions as it may
request from time to time relating to the performance of ALPS'
obligations hereunder;
A-1
and
(b) perform all other Fund obligations as set forth in the
Agreement.
5. Package Selection. TA Web is offered in a Basic Package and Basic Package
with custom graphical and/or functional design changes. The Fund has
selected the: Basic Package.
6. Fees. The current fees payable to ALPS by the Fund for TA Web are set
forth on the Fee Schedule. ALPS reserves the right to change billable
rates as it deems necessary upon 30 days written notice to the Fund.
X-0
XXXXXXX X-0
SECURITY PROCEDURES - TRANSFER AGENT WEB SERVICES ("TA WEB")
1. PASSWORD REQUIREMENTS
Initial Authentication of a Shareholder in TA Web is accomplished through entry
of the account number and social security number. The Shareholder then creates a
User ID and Password (PIN) to access TA Web. The PIN must be 4-10 characters in
length and may consist of alpha-numeric characters and symbols.
2. ENCRYPTION
The ALPS Web server runs Secure Sockets Layer ("SSL"). The purpose of using SSL
is to encrypt data transmissions through the ALPS Web Site and block
communications through the ALPS Web Site from Internet browsers which do not
support SSL data encryption. The standard level of encryption supported by the
ALPS Web Site is 128-bit. Further, ALPS uses a certificate from a major provider
of server authentication services.
3. NETWORK ACCESS CONTROL
A computer referred to as a "firewall router" is located between the Internet
backbone connection and the ALPS Web server. The purpose of the router is to
control the connectivity to the ALPS Web server at the port level. This
equipment is located at ALPS' Denver data center. Changes to the configuration
of this computer are administered by authorized IT staff. This equipment will
not interrogate data, and its only function is to limit the type of traffic
accessing the ALPS Web server to the suite of Hyper-Text Transfer Protocols
("HTTP") transmissions. Ports on the router are configured to be consistent with
ports on the ALPS Web server. All other ports on the router other than those
configured for the ALPS Web server are not accessible from the Internet.
The ALPS Web server utilizes adequate and appropriate software and hardware. All
services and functions within the ALPS Web server operating system are
deactivated with the exception of services and functions which support TA Web.
The general purpose of this feature is to prevent external users from entering
commands or running processes on the ALPS Web server. All ports on the ALPS Web
server, except those required by TA Web, are disabled. Directory structures are
"hidden" from the user. Services which provide directory information are also
deactivated.
ALPS administrators gain access to the ALPS Web server through the physical
console connected to the ALPS Web server, or through the internal network via
ALPS Secure ID.
TA Web is programmed to terminate the session/Transaction between the
Shareholder and TA Web if data authentication fails. All successful and
unsuccessful sessions are logged.
B-1
4. LIMITATION OF USERS
Access by ALPS personnel to the ALPS Web server is restricted within ALPS to a
limited number of users based upon ALPS system administration requirements, as
determined by appropriate ALPS systems managers from time to time.
5. INDEPENDENCE OF EACH FUND'S LOCATION ON THE WEB SERVER
Independence of Fund's presence on the ALPS Web server is accomplished by
establishing individual data set partitions on the ALPS Web server that are
designed to be separate from other partitions. The Fund's presence resides
within a separate data and directory structure on the ALPS Web server. The base
transaction code required by ICS is, however, shared by all data set partitions.
Each Fund URL on the ALPS Web server will identify a separate Fund presence.
Access to the Fund presence on the ALPS Web server must be through the
Investment Company Web Site.
Book marking of HTML pages within the Fund's site on the ALPS Web server is not
allowed.
6. RIGHT TO AUDIT
The Fund is allowed to audit, at their expense, the collection of electronic
documents or pages residing on ALPS' computer system relating to the Fund
implementation of the TA Web service, if any, linked to the Internet and
accessible by hypertext link through the World Wide Web, where the Transaction
data fields and related screens provided by ALPS may be viewed by Users who
access such site ("ALPS Web Site") once in each 12 month period and any
associated systems or networks within TA Web relating to the Fund's
implementation, after providing an audit plan to ALPS and upon ALPS' consent
thereto. The audit may include review of configurations, audit trails, and
maintenance of systems and software within TA Web associated with the Fund's TA
Web site on the ALPS Web server. Tools which may be used for the audit may
include network security tools; provided, that ALPS may specify the time at
which any tool is used, if ALPS reasonably believes that such tool may affect
system performance. The audit will be coordinated through ALPS and ALPS will be
entitled to observe all audit activity. Additionally, ALPS shall be entitled to
all results of an audit. The Fund will not perform any action that may interfere
with the uptime or stability of ALPS systems or networks. The Fund and its
review team will be considered authorized users and ALPS will not seek
prosecution under any computer crime or other applicable statutes for such
activity, as long as the Fund has provided ALPS a written audit plan, ALPS has
approved the written audit plan, and the audit was executed in accordance with
the written audit plan.
B-2
EXHIBIT C-1
TA WEB
FEE SCHEDULE
Initial Fees
Setup (includes basic package)(1) $5,000
Monthly Fees $1,000
(1) Basic package includes simple user interface with the fund group logo at the
top of each page. Authorized shareholders are able to place purchases,
redemptions and exchanges via the website. They are also entitled to view
account balances, transaction history and historical fund prices.
