TRANSFER AGENCY AND SERVICE AGREEMENT
Between
XXXXXXX XXXXX MUTUAL FUNDS, INC.
And
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Terms of Appointment and Duties .................................. 1
2. Third Party Administrators for Defined Contribution Plans ........ 3
3. Fees and Expenses ................................................ 4
4. Representations and Warranties of the Transfer Agent ............. 5
5. Representations and Warranties of the Fund ....................... 5
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code .................................................. 5
7. Data Access and Proprietary Information .......................... 7
8. Indemnification .................................................. 9
9. Standard of Care ................................................. 10
10. Year 2000 ........................................................ 10
11. Confidentiality .................................................. 10
12. Covenants of the Fund and the Transfer Agent ..................... 11
13. Termination of Agreement ......................................... 11
14. Assignment and Third Party Beneficiaries ......................... 12
15. Subcontractors ................................................... 12
16. Miscellaneous .................................................... 12
17. Additional Funds ................................................. 14
i
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 30 day of Sept., 1999, by and between XXXXXXX
XXXXX MUTUAL FUNDS, INC., a Maryland corporation, having its principal office
and place of business at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the
"Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
having its principal office and place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund intends to initially offer shares in six (6) series,
such series shall be named in the attached Schedule A which may be amended by
the parties from time to time (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Section 17, being herein referred to as a "Portfolio", and
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collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the
Transfer Agent as its transfer agent, dividend disbursing agent, custodian of
certain retirement plans and agent in connection with certain other activities,
and the Transfer Agent desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Terms of Appointment and Duties
-------------------------------
1.1 Transfer Agency Services. Subject to the terms and conditions set
forth in this Agreement, the Fund, on behalf of the Portfolios, hereby employs
and appoints the Transfer Agent to act as, and the Transfer Agent agrees to act
as its transfer agent for the Fund's authorized and issued shares of its common
stock, $.001 par value, ("Shares"), dividend disbursing agent, custodian of
certain retirement plans and agent in connection with any accumulation,
open-account or similar plan provided to the shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out in the currently
effective prospectus and statement of additional information ("prospectus") of
the Fund on behalf of the applicable Portfolio, including without limitation any
periodic investment plan or periodic withdrawal program. In accordance with
procedures established from time to time by agreement between the Fund on behalf
of each of the Portfolios, as applicable and the Transfer Agent, the Transfer
Agent agrees that it will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the
Custodian of the Fund authorized pursuant to the Articles of
Incorporation of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above,
the Transfer Agent shall execute transactions directly with
broker-dealers authorized by the Fund;
(e) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or cause
to be paid over in the appropriate manner such monies as instructed by
the redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(i) Record the issuance of Shares of the Fund and maintain pursuant
to SEC Rule 17Ad-10(e) a record of the total number of Shares of the
Fund which are authorized, based upon data provided to it by the Fund,
and issued and outstanding. The Transfer Agent shall also provide the
Fund on a regular basis with the total number of Shares which are
authorized and issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of such
Shares or to take cognizance of any laws relating to the issue or sale
of such Shares, which functions shall be the sole responsibility of the
Fund.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the Transfer
Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent, custodian of certain
retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plan (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing Shareholder
proxies, Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions
by federal authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for all
purchases and redemptions of Shares and other confirmable transactions
in Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information.
(b) Control Book (also known as "Super Sheet"). Maintain a daily
record and produce a daily report for the Fund of all transactions and
receipts and disbursements of
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money and securities and deliver a copy of such report for the Fund for
each business day to the Fund no later than 9:00 AM Eastern Time, or
such earlier time as the Fund may reasonably require, on the next
business day.
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the
Transfer Agent in writing those transactions and assets to be treated
as exempt from blue sky reporting for each State; and (ii) verify the
establishment of transactions for each State on the system prior to
activation and thereafter monitor the daily activity for each State.
The responsibility of the Transfer Agent for the Fund's blue sky State
registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and providing a
system which will enable the Fund to monitor the total number of Shares
sold in each State.
(d) National Securities Clearing Corporation (the "NSCC"). The
Transfer Agent shall (i) accept and effectuate the registration and
maintenance of accounts through Networking and the purchase,
redemption, transfer and exchange of shares in such accounts through
Fund/SERV (networking and Fund/SERV being programs operated by the NSCC
on behalf of NSCC's participants, including the Fund), in accordance
with, instructions transmitted to and received by the Transfer Agent by
transmission from NSCC on behalf of broker-dealers and banks which have
been established by, or in accordance with the instructions of
authorized persons, as hereinafter defined on the dealer file
maintained by the Transfer Agent; (ii) issue instructions to Fund's
banks for the settlement of transactions between the Fund and NSCC
(acting on behalf of its broker-dealer and bank participants); (iii)
provide account and transaction information from the affected Fund's
records on DST Systems, Inc. computer system TA2000 ("TA2000 System")
in accordance with NSCC's Networking and Fund/SERV rules for those
broker-dealers; and (iv) maintain Shareholder accounts on TA2000 System
through Networking.
(e) New Procedures. New procedures as to who shall provide certain
of these services in Section 1 may be established in writing from time
to time by agreement between the Fund and the Transfer Agent. The
Transfer Agent may at times perform only a portion of these services
and the Fund or its agent may perform these services on the Fund's
behalf.
(f) Additional Telephone Support Services. If the parties elect to
have the Transfer Agent provide additional telephone support services
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under this Agreement, the parties will agree to such services, fees and
sub-contracting as stated in Schedule 1.2(f) entitled "Telephone
Support Services" attached hereto.
2. Third Party Administrators for Defined Contribution Plans
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2.1 The Fund may decide to make available to certain of its customers,
a qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation ("Plan" or
"Plans") for the benefit of the individual Plan participant (the "Plan
Participant"), such Plan(s) being qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended ("Code") and administered by third party
3
administrators which may be plan administrators as defined in the Employee
Retirement Income Security Act of 1974, as amended) (the "TPA(s)").
2.2 In accordance with the procedures established in the initial Schedule
2.1 entitled "Third Party Administrator Procedures", as may be amended by the
Transfer Agent and the Fund from time to time ("Schedule 2.1"), the Transfer
Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name of
the Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as transfer agent of the
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Funds and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be
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deemed exception services ("Exception Services") when such transactions:
(a) Require the Transfer Agent to use methods and procedures other
than those employed by the Transfer Agent to perform services under Section
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1 of this Agreement;
-
(b) Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000 System; or
(c) Require more manual intervention by the Transfer Agent, either in
the entry of data or in the modification or amendment of reports generated
by the TA2000 System than is usually required by non-retirement plan and
pre-nightly transactions.
3. Fees and Expenses
-----------------
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent an annual maintenance
fee for each Shareholder account as set forth in the attached fee schedule
("Schedule 3.1"). Such fees and out-of-pocket expenses and advances identified
under Section 3.2 below may be changed from time to time subject to mutual
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written agreement between the Fund and the Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
-----------
above, the Fund agrees to reimburse the Transfer Agent for out-of-pocket
expenses, including but not limited to confirmation production, postage, forms,
telephone, microfilm, microfiche, mailing and tabulating proxies, records
storage, or advances incurred by the Transfer Agent for the items set out in
Schedule 3.1 attached hereto. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the Fund will be reimbursed
by the Fund.
3.3 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing notice,
except for any fees or expenses which are subject to good faith dispute. In the
event of such a dispute, the Fund may
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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.
4. Representations and Warranties of the Transfer Agent
----------------------------------------------------
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
5. Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a corporation duly organized and existing and in good standing
under the laws of the State of Maryland.
5.2 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
5.3 All corporate-proceedings required by said Articles of Incorporation
and By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares of the Fund being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
------------------------------------------------------------------------
Code
----
6.1 The Transfer Agent is authorized to promptly debit the appropriate
Fund account(s) upon the receipt of a payment order in compliance with the
selected security
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procedure (the "Security Procedure") chosen for funds transfer and in the amount
of money that the Transfer Agent has been instructed to transfer. The Transfer
Agent shall execute payment orders in compliance with the Security Procedure and
with the Fund instructions on the execution date provided that such payment
order is received by the customary deadline for processing such a request,
unless the payment order specifies a later time. All payment orders and
communications received after this the customary deadline will be deemed to have
been received the next business day. Upon execution and completion such Security
Procedures shall be attached as Schedule 6.1 and may be updated by the parties
from time to time.
6.2 The Fund acknowledges that the Security Procedure it has designated on
the Fund Selection Form was selected by the Fund from security procedures
offered by the Transfer Agent. The Fund shall restrict access to confidential
information relating to the Security Procedure to authorized persons as
communicated to the Transfer Agent in writing. The Fund must notify the Transfer
Agent immediately if it has reason to believe unauthorized persons may have
obtained access to such information or of any change in the Fund's authorized
personnel. The Transfer Agent shall verify the authenticity of all Fund
instructions according to the Security Procedure.
6.3 The Transfer Agent shall process all payment orders on the basis of the
account number contained in the payment order. In the event of a discrepancy
between any name indicated on the payment order and the account number, the
account number shall take precedence and govern.
6.4 The Transfer Agent reserves the right to decline to process or delay
the processing of a payment order which (a) is in excess of the collected
balance in the account to be charged at the time of the Transfer Agent's receipt
of such payment order; (b) if initiating such payment order would cause the
Transfer Agent, in the Transfer Agent's reasonable 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.
6.5 The Transfer Agent shall use reasonable efforts to act on all
authorized requests to cancel or amend payment orders received in compliance
with the Security Procedure provided that such requests are received in a timely
manner affording the Transfer Agent reasonable opportunity to act. However, the
Transfer Agent assumes no liability if the request for amendment or cancellation
cannot be satisfied.
6.6 The Transfer Agent shall assume no responsibility for failure to detect
any erroneous payment order provided that the Transfer Agent complies with the
payment order instructions as received and the Transfer Agent complies with the
Security Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of errors in
payment orders.
6.7 The Transfer Agent shall assume no responsibility for lost interest
with respect to the refundable amount of any unauthorized payment order, unless
the Transfer Agent is notified of the unauthorized payment order within thirty
(30) days of notification by the Transfer Agent of the acceptance of such
payment order. In no event (including failure to execute a payment
6
order) shall the Transfer Agent be liable for special, indirect or consequential
damages, even if advised of the possibility of such damages.
6.8 When the Fund initiates or receives Automated Clearing House credit
and debit entries pursuant to these guidelines and the rules of the National
Automated Clearing House Association and the New England Clearing House
Association, the Transfer Agent will act as an Originating Depository Financial
Institution and/or receiving depository Financial Institution, as the case may
be, with respect to such entries. Credits given by the Transfer Agent with
respect to an ACH credit entry are provisional until the Transfer Agent receives
final settlement for such entry from the Federal Reserve Bank. If the Transfer
Agent does not receive such final settlement, the Fund agrees that the Transfer
Agent shall receive a refund of the amount credited to the Fund in connection
with such entry, and the party making payment to the Fund via such entry shall
not be deemed to have paid the amount of the entry.
6.9 Confirmation of Transfer Agent's execution of payment orders shall
ordinarily be provided within twenty four (24) hours notice of which may be
delivered through the Transfer Agent's proprietary information systems, or by
facsimile or call-back. Fund must report any objections to the execution of an
order within thirty (30) days.
7. Data Access and Proprietary Information
---------------------------------------
7.1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent as part of the Fund's
ability to access certain Fund-related data ("Customer Data") maintained by the
Transfer Agent on databases under the control and ownership of the Transfer
Agent or other third party ("Data Access Services") constitute copyrighted,
trade secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other third party.
In no event shall Proprietary Information be deemed Customer Data. The Fund
agrees to treat all Proprietary Information as proprietary to the Transfer Agent
and further agrees that it shall not divulge any Proprietary Information to any
person or organization except as may be provided hereunder. Without limiting the
foregoing, the Fund agrees for itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's
computers, or (ii) solely from equipment at the location agreed to between
the Fund and the Transfer Agent and (iii) solely in accordance with the
Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)), the
Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained, to
inform in a timely manner of such fact and dispose of such information in
accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal to be retransmitted to any
other
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(d) computer terminal or other device except as expressly permitted by
the Transfer Agent (such permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent; and
(f) Honor all reasonable written requests made by the Transfer Agent
to protect at the Transfer Agent's expense the rights of the Transfer Agent
in Proprietary Information at common law, under federal copyright law and
under other federal or state law.
7.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without breach of
this Agreement; (ii) are released for general disclosure by a written release by
the Transfer Agent; or (iii) are already in the possession of the receiving
party at the time or receipt without obligation of confidentiality or breach of
this Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest of the
Transfer Agent and that the disclosure of such Proprietary Information in breach
of this Agreement would cause the Transfer Agent immediate, substantial and
irreparable harm, the value of which would be extremely difficult to determine.
Accordingly, the parties agree that, in addition to any other remedies that may
be available in law, equity, or otherwise for the disclosure or use of the
Proprietary Information in breach of this Agreement, the Transfer Agent shall be
entitled to seek and obtain a temporary restraining order, injunctive relief, or
other equitable relief against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently issued
user documentation for such services, the Transfer Agent shall endeavor in a
timely manner to correct such failure. Organizations from which the Transfer
Agent may obtain certain data included in the Data Access Services are solely
responsible for the contents of such data and the Fund agrees to make no claim
against the Transfer Agent arising out of the contents of such third-party data,
including, but not limited to, the accuracy thereof. DATA ACCESS SERVICES AND
ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH
ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY
DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to: (i) effect
the transfer or movement of cash or Shares; or (ii) transmit Shareholder
information or other information, then in such event the Transfer Agent shall be
entitled to rely on the validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is undertaken in
conformity with security procedures established by the Transfer Agent from time
to time.
8
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of this Section
---------
shall survive any earlier termination of this Agreement.
8. Indemnification
---------------
8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement, provided
that such actions are taken in good faith and without negligence or
willful misconduct;
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representations or
warranty of the Fund hereunder;
(c) The reasonable reliance upon, and any reasonable subsequent
use of or action taken or omitted, by the Transfer Agent, or its agents
or subcontractors on: (i) any information, records, documents, data,
stock certificates or services, which are received by the Transfer Agent
or its agents or subcontractors by machine readable input, facsimile, CRT
data entry, electronic instructions or other similar means authorized by
the Fund, and which have been prepared, maintained or performed by the
Fund or any other person or firm on behalf of the Fund including but not
limited to any previous transfer agent or registrar; (ii) any
instructions or requests of the Fund or any of its officers; (iii) except
for Transfer Agent's violation of the law, any instructions or opinions
of Transfer Agent's in-house counsel for routine items and of duly
qualified legal counsel acceptable to the Fund for non-routine items with
respect to any matter arising in connection with the services to be
performed by the Transfer Agent under this Agreement which are provided
to the Transfer Agent after consultation with such legal counsel; or (iv)
any paper or document, reasonably believed to be genuine, authentic, or
signed by the proper person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be registered
or in violation of any stop order or other determination or ruling by any
federal or any state agency with respect to the offer or sale of such
Shares except for the negligence and willful misconduct of the Transfer
Agent in performing its duties under Section 1.2 (c);
---------------
(e) The negotiation and processing of any checks including
without limitation for deposit into the Fund's demand deposit account
maintained by the Transfer Agent; or
(f) Upon the Fund's request entering into any agreements required
by the National Securities Clearing Corporation (the "NSCC") for the
transmission of Fund or Shareholder data through the NSCC clearing
systems; or
(g) Providing Exception Services under Section 2.3 provided that
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the Transfer Agent has not operated negligently.
9
8.2 In order that the indemnification provisions contained in this
Section 8 shall apply, upon the assertion of a claim for which the Fund may be
---------
required to indemnify the Transfer Agent, the Transfer Agent shall promptly
notify the Fund of such assertion, and shall keep the Fund advised with respect
to all developments concerning such claim. The Fund shall have the option to
participate with the Transfer Agent in the defense of such claim or to defend
against said claim in its own name or in the name of the Transfer Agent. The
Transfer Agent shall in no case confess any claim or make any compromise in any
case in which the Fund may be required to indemnify the Transfer Agent except
with the Fund's prior written consent.
9. Standard of Care
----------------
The Transfer Agent shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees. The
parties agree that any encoding and payment processing errors and the liability
arising under Section 4-209 of the Uniform Commercial Code shall be governed by
this Section 9.
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10. Year 2000
---------
The Transfer Agent will take reasonable steps to ensure that its products
(and those of its third-party suppliers) reflect the available technology to
offer products that are Year 2000 ready, including, but not limited to, century
recognition of dates, calculations that correctly compute same century and multi
century formulas and date values, and interface values that reflect the date
issues arising between now and the next one-hundred years, and if any changes
are required, the Transfer Agent will make the changes to its products at a
price to be agreed upon by the parties and in a commercially reasonable time
frame and will require third-party suppliers to do likewise.
11. Confidentiality
---------------
11.1 The Transfer Agent and the Fund agree that they will not, at any
time during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other business
organization, the Fund's book and records, any customers' lists, trade secrets,
cost figures and projections, profit figures and projections, or any other
secret or confidential information whatsoever, whether of the Transfer Agent or
of the Fund, used or gained by the Transfer Agent or the Fund during performance
under this Agreement. The Fund and the Transfer Agent further covenant and agree
to retain all such knowledge and information acquired during and after the term
of this Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of the
Transfer Agent or the Fund and their successors and assigns. In the event of
breach of the foregoing by either party, the remedies provided by Section 7.3
-----------
shall be available to the party whose confidential information is disclosed. The
above prohibition of disclosure shall not apply to the extent that the Transfer
Agent must disclose such data to its sub-contractor or Fund agent for purposes
of providing services under this Agreement.
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11.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Fund, other than request for
records of Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the Transfer Agent
will promptly notify the Fund and to secure instructions from an authorized
officer of the Fund as to such inspection. The Transfer Agent expressly reserves
the right, however, to exhibit the Shareholder records to any person whenever it
is advised by counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person or if required by law or court order.
12. Covenants of the Fund and the Transfer Agent
--------------------------------------------
12.1 The Fund shall promptly furnish to the Transfer Agent the
following:
(a) A certified copy of the resolution of the Board of Directors
of the Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
12.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
12.3 The Transfer Agent shall keep records relating to the services to
be performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940, as amended,
and the Rules thereunder, the Transfer Agent agrees that all such records
prepared or maintained by the Transfer Agent relating to the services to be
performed by the Transfer Agent hereunder are the property of the Fund and will
be preserved, maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Fund on and in accordance with
its request.
13. Termination of Agreement
------------------------
13.1 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
13.2 Should the Fund exercise its right to terminate, all out-of-pocket
expenses or costs associated with the movement of records and material will be
borne by the Fund. Additionally, the Transfer Agent reserves the right to charge
for any other reasonable expenses associated with such termination and/or a
charge equivalent to the average of three (3) months' fees. Payment of such
expenses or costs shall be in accordance with Section 3.4 of this Agreement.
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13.3 Upon termination of this Agreement, each party shall return to the
other party all copies of confidential or proprietary materials or information
received from such other party hereunder, other than materials or information
required to be retained by such party under applicable laws or regulations.
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14. Assignment and Third Party Beneficiaries
----------------------------------------
14.1 Except as provided in Section 15.1 below and the Additional
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Telephone Support Services Schedule 1.2(f) attached, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party. Any attempt to do so in violation of this
Section shall be void. Unless specifically stated to the contrary in any written
consent to an assignment, no assignment will release or discharge the assignor
from any duty or responsibility under this Agreement.
14.2 Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Transfer Agent and the Fund, and the duties
and responsibilities undertaken pursuant to this Agreement shall be for the sole
and exclusive benefit of the Transfer Agent and the Fund. This Agreement shall
inure to the benefit of and be binding upon the parties and their respective
permitted successors and assigns.
14.3 This Agreement does not constitute an agreement for a partnership
or joint venture between the Transfer Agent and the Fund. Other than as provided
in Section 15.1 and Schedule 1.2(f), neither party shall make any commitments
------------
with third parties that are binding on the other party without the other party's
prior written consent.
15. Subcontractors
--------------
15.1 The Transfer Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("Boston Financial") which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the Securities
Exchange Act of 1934, as amended, (ii) a Boston Financial subsidiary duly
registered as a transfer agent or (iii) a Boston Financial affiliate duly
registered as a transfer agent; provided, however, that the Transfer Agent shall
be fully responsible to the Fund for the acts and omissions of Boston Financial
or its subsidiary or affiliate as it is for its own acts and omissions.
15.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or omissions
to act of unaffiliated third parties such as by way of example and not
limitation, Airborne Services, Federal Express, United Parcel Service, the U.S.
Mails, the NSCC and telecommunication companies, provided, if the Transfer Agent
selected such company, the Transfer Agent shall have exercised due care in
selecting the same.
16. Miscellaneous
-------------
16.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Directors of the Fund.
16.2 Massachusetts Law to Apply. This Agreement shall be construed and
the provisions thereof interpreted under and in accordance with the laws of The
Commonwealth of Massachusetts.
12
16.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
16.4 Consequential Damages. Neither party to this Agreement shall be
liable to the other party for consequential damages under any provision of this
Agreement or for any consequential damages arising out of any act or failure to
act hereunder.
16.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or protections of
proprietary rights and trade secrets shall survive the termination of this
Agreement.
16.6 Severability. If any provision or provisions of this Agreement shall
be held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
16.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement and any
Schedules or attachments hereto, the terms and conditions contained in this
Agreement shall take precedence.
16.8 Waiver. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the other party
shall be construed as a waiver of any succeeding breach of the same or of any
other covenant or condition.
16.9 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
16.10 Counterparts. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
16.11 Reproduction of Documents. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties hereto each agree that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
16.12 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.
13
(a) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Xxxxxxx Xxxxx Mutual Funds, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
17. Additional Funds
----------------
In the event that the Fund establishes one or more series of Shares in
addition to the attached Schedule A with respect to which it desires to have the
Transfer Agent render services as transfer agent under the terms hereof, it
shall so notify the Transfer Agent in writing, and if the Transfer Agent agrees
in writing to provide such services, such series of Shares shall become a
Portfolio hereunder.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through the duly authorized
officers, as of the day and year first above written.
XXXXXXX XXXXX MUTUAL FUNDS, INC.
BY: /s/Xxxxx Xxxxx
------------------------------
ATTEST:
/s/Xxxxx X. Xxxxxxxx
-------------------------------
STATE STREET BANK AND TRUST COMPANY
BY: signature illegible
------------------------------
Vice Chairman
ATTEST:
signature illegible
-------------------------------
15
SCHEDULE A
Xxxxxxx Xxxxx Ready Reserves Fund
Xxxxxxx Xxxxx Income Fund
Xxxxxxx Xxxxx Growth Fund
Xxxxxxx Xxxxx International Growth Fund
Xxxxxxx Xxxxx Value Discovery Fund
Xxxxxxx Xxxxx Emerging Markets Growth Fund
XXXXXXX XXXXX MUTUAL FUNDS, INC. STATE STREET BANK AND TRUST COMPANY
BY: /s/Xxxxx Xxxxx BY: signature illegible
------------------------------ -------------------------------
A-1
SCHEDULE 1.2(f)
ADDITIONAL TELEPHONE SUPPORT FEES AND SERVICES
Dated _________________
I. SERVICES
1. Transfer Agent and Telephone Support Functions
a. Answer telephone inquiries from [XXX 8 a.m. to 8 p.m. Boston time
Monday through Friday EXCEPT Christmas Day XXX][XXX OTHER HOLIDAY COVERAGE
AVAILABLE? XXX] from [XXX existing customers and prospective customers XXX]
of the Fund [XXX for sales literature XXX] in accordance with the telephone
script provided by the Fund.
b. Answer questions pertaining thereto the extent that such questions
are answerable based upon the information supplied to the Transfer Agent by
the Fund.
c. [XXX As the Fund and the Transfer Agent may agree in writing, the
Transfer Agent will receive calls and take written transaction requests
from shareholders of the Fund. Transfer Agent transactions include: [XXX
telephone redemptions, account maintenance, exchanges, transfers, confirmed
purchases, account balances and general inquiries XXX]. Some transactions
may result in research which will be done by the Fund. Other calls may be
referred directly to the Fund. Fax any referrals to [XXX name of company
XXX] on the same day the telephone call is received XXX];
2. Incorporate new information into the above referenced script upon
written instructions from the Fund;
3. Maintain prospect detail information for six (6) months thereafter,
provide such information to the Fund in the form that the Fund may reasonably
request;
4. Send all literature orders for information from Boston Financial/DST
[XXX [how?] [to whom?] XXX] a minimum of [XXX one XXX] transmission per day;
5. Provide the Fund with a [XXX daily/weekly/monthly XXX] telephone report
detailing the calls received during the [XXX day/week/month XXX];
6. [XXX Provide the Fund with monthly conversion reports as selected by the
Fund from DST's standard report package. XXX]
7. TARGET SERVICE LEVELS: Average speed of answer is fifteen (15) seconds,
abandon rate of no more than 2%, and an overall service level of 85%. The
averages will be calculated on a weekly basis.
S1.2(f)-1
II. SUBCONTRACTORS
1. The Transfer Agent may, without further consent on the part of the
Fund, subcontract ministerial telephone support services for the performance
hereof.
III. FEES
STATE STREET BANK AND TRUST COMPANY
BY: /s/Xxxxx Xxxxx BY:________________________________
-------------------------------
S1.2(f)-2
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated ________________
1. On each Business Day, the TPA(s) shall receive, on behalf of and as
agent of the Fund(s), Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the purchases
of Shares, and (ii) requests by the Plan for the redemption of Shares; in each
case based on the Plan's receipt of purchase orders and redemption requests by
Participants in proper form by the time required by the term of the Plan, but
not later than the time of day at which the net asset value of a Fund is
calculated, as described from time to time in that Fund's prospectus. Each
Business Day on which the TPA receives Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such
Instructions, to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1), the
TPA(s) shall notify the Transfer Agent of the net amount of such purchases or
redemptions, as the case may be, for each of the Plans. In the case of net
purchases by any Plan, the TPA(s) shall instruct the Trustees of such Plan to
transmit the aggregate purchase price for Shares by wire transfer to the
Transfer Agent on (TD+1). In the case of net redemptions by any Plan, the TPA(s)
shall instruct the Fund's custodian to transmit the aggregate redemption
proceeds for Shares by wire transfer to the Trustees of such Plan on (TD+1). The
times at which such notification and transmission shall occur on (TD+1) shall be
as mutually agreed upon by each Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price for
all transactions, and Share balances. The TPA(s) shall maintain on behalf of
each of the Plans a single master account with the Transfer Agent and such
account shall be in the name of that Plan, the TPA(s), or the nominee of either
thereof as the record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of
Shares and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan as of
the statement closing date, purchases and redemptions of Shares by the Plan
during the period covered by the statement, and the dividends and other
distributions paid to the Plan on Shares during the statement period (whether
paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to
the Plans prospectuses, proxy materials, reports, and other information provided
by each Fund for delivery to its shareholders.
S2.1-1
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to
each Fund or any agent designated by it such periodic reports covering Shares of
each Plan as each Fund shall reasonably conclude are necessary to enable the
Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders
and redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries expressed
in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses,
proxy materials, periodic reports and other materials relating to each Fund be
furnished to Participants in which event the Transfer Agent or each Fund shall
mail or cause to be mailed such materials to Participants. With respect to any
such mailing, the TPA(s) shall, at the request of the Transfer Agent or each
Fund, provide at the TPA(s)'s expense complete and accurate set of mailing
labels with the name and address of each Participant having an interest through
the Plans in Shares.
XXXXXXX XXXXX MUTUAL FUNDS, INC. STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxx Xxxxx BY: signature illegible
----------------------------- --------------------------------
S2.1-2
SCHEDULE 3.1
FEES
Dated: October 1, 1999 through September 30, 2001
Annual Account Service Fees
---------------------------
Daily Dividend Fund $16.20 per account
Non-Daily Dividend Fund $12.00 per account
Closed Account Fee $ 2.40 per account
Minimum per Fund
Funds with 1 class $15,000.00
Funds with 2 classes $22,500.00
Funds with 3 classes $30,000.00
Funds with 4 classes $35,000.00
Funds with 5 classes $40,000.00
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. A
charge is made for an account in the month that an account opens or closes.
Account service fees are the higher of: open account charges plus closed account
charges or the fund minimum.
Activity Based Fees
-------------------
New Account Set-Up $4.00
Manual Transactions $1.00
Telephone Calls $1.00
Correspondence $1.00
Other Fees
----------
Commission Reporting
12b-1 $1.00 per account
Contingent deferred sales charge $1.00 per account
Disaster Recovery/Emergency $0.25 per account
back up per year.
All fees will be subject to an annual Cost of Living Adjustment based on
regional consumer price index.
S3.1-1
SCHEDULE 3.1
FEES
Dated: October 1, 1999 through September 30, 2001
(continued)
Out-of-Pocket Expenses
----------------------
Out-of-Pocket expenses include but are not limited to: confirmation
----------------------
statements, investor statements, postage, forms, audio response, telephone,
record retention, customized programming/enhancements, federal wire,
transcripts, microfilm, microfiche and expenses incurred at the specific
direction of the Fund.
XXXXXXX XXXXX MUTUAL FUNDS, INC. STATE STREET BANK AND TRUST COMPANY
BY: /s/Xxxxx Xxxxx BY: signature illegible
----------------------------- --------------------------------
S3.1-1
