TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
ALLIANZ DRESDNER DAILY ASSET FUND
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
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Page
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1. Terms of Appointment and Duties..........................................1
2. Fees and Expenses........................................................3
3. Representations and Warranties of the Transfer Agent.....................4
4. Representations and Warranties of the Fund...............................4
5. Wire Transfer Operating Guidelines.......................................4
6. Data Access and Proprietary Information..................................5
7. Indemnification .........................................................7
8. Standard of Care/Limitation of Liability.................................8
9. Confidentiality..........................................................8
10. Covenants of the Fund and the Transfer Agent.............................9
11. Termination of Agreement.................................................9
12. Assignment and Third Party Beneficiaries................................10
13. Subcontractors..........................................................11
14. Miscellaneous...........................................................11
TRANSFER AGENCY AND SERVICE AGREEMENT
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AGREEMENT made as of the ___ day of ________, 2004, by and between ALLIANZ
DRESDNER DAILY ASSET FUND, a series of Fixed Income SHares, a Massachusetts
business trust, having its principal office and place of business at 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund"), and BOSTON FINANCIAL
DATA SERVICES, INC., a Massachusetts corporation having its principal office and
place of business at 0 Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the
"Transfer Agent").
WHEREAS, the Fund has been established as an investment vehicle for lenders
participating in the securities lending program administered by Dresdner Bank AG
("Dresdner") for the investment and reinvestment of cash collateral.
WHEREAS, Dresdner in its capacity as securities lending agent for each lender
will effect all purchase and redemption transactions in the Fund.
WHEREAS, the Fund desires to appoint the Transfer Agent as its transfer agent
and dividend disbursing agent, 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 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 beneficial
interest ("Shares") and dividend disbursing agent. In accordance with
procedures established from time to time by agreement between the Fund
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 from
Dresdner, and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Fund authorized pursuant to the
Declaration of Trust of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in an omnibus account for Dresdner;
(c) Receive for acceptance redemption requests and redemption
directions from Dresdner 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 Dresdner;
(e) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption by Dresdner, pay over
or cause to be paid over such monies to Dresdner;
(f) Effect transfers of Shares by Dresdner upon receipt of appropriate
instructions from Dresdner;
(g) Prepare and transmit payments for dividends and distributions to
Dresdner as declared by the Fund;
(h) Maintain records of account for and advise the Fund and Dresdner 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 and dividend disbursing agent, including but not limited
to: maintaining an omnibus account for Dresdner, preparing and mailing
confirmation forms and statements of account to Dresdner for all
purchases and redemptions of Shares and other confirmable transactions
in Dresdner's account, and preparing and mailing activity statements
for Dresdner;
(b) Control Book (also known as "Super Sheet"). Maintain a daily record
and produce a daily report for the Fund of all transactions and
receipts and disbursements of money and securities and deliver a copy
of such report for the Fund for each business day to the Fund no later
than 9:00 AM Eastern Time, or such earlier time as the Fund may
reasonably require, on the next business day;
(c) National Securities Clearing Corporation (the "NSCC"). (i) accept
and effectuate the registration and maintenance of accounts through
Networking and the purchase, redemption, transfer and exchange of
shares in such accounts through Fund/SERV (Networking and Fund/SERV
being programs operated by the NSCC on behalf of NSCC's participants,
including the Fund), in accordance with, instructions transmitted to
and received by the Transfer Agent by transmission from NSCC on behalf
of Dresdner; (ii) issue instructions to Fund's banks for the settlement
of transactions between the Fund and NSCC; (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 Dresdner; and (iv)
maintain an account for Dresdner on TA2000 System through Networking;
(e) New Procedures. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time to
time by agreement between the Fund and the Transfer Agent. The Transfer
Agent may at times perform only a portion of these services and the
Fund or its agent may perform these services on the Fund's behalf;
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2. 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 the fees set
forth in the attached fee schedule ("Schedule 2.1"). Such fees and
out-of-pocket expenses and advances identified under 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
out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche, records
storage, or advances incurred by the Transfer Agent for the items set
out in Schedule 2.1 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.
2.3 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective
invoice, 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 five (5) days of the day on which the parties
agree on the amount to be paid by payment of the agreed amount. If no
agreement is reached, then such disputed amounts shall be settled as
may be required by law or legal process.
2.4 Cost of Living Adjustment. Following the Initial Term, unless the
parties shall otherwise agree and provided that the service mix and
volumes remain consistent as previously provided in the Initial Term,
the total fee for all services shall equal the fee that would be
charged for the same services based on a fee rate (as reflected in a
fee rate schedule) increased by the percentage increase for the
twelve-month period of such previous calendar year of the Consumer
Price Index for Urban Wage Earners and Clerical Workers, for the Boston
area, as published bimonthly by the United States Department of Labor,
Bureau of Labor Statistics, or, in the event that publication of such
Index is terminated, any successor or substitute index, appropriately
adjusted, acceptable to both parties.
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 Transfer Agent) on the first day of
publication during the month when such amount was due. Notwithstanding
any other provision hereof, such interest rate shall be no greater than
permitted under applicable provisions of Massachusetts law.
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3. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund that:
3.1 It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
3.3 It is empowered under applicable laws and by its Articles of
Organization 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.
4. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
4.1 It is a business trust duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 The Fund is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
4.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.4 It is an open-end and diversified 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 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.
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") 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.
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5.2 Security Procedure. 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.
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 judgement, to exceed any volume, aggregate dollar, network, time,
credit or similar limits which are applicable to the Transfer Agent; or
(c) if the Transfer Agent, in good faith, is unable to satisfy itself
that the transaction has been properly authorized.
5.5 Cancellation Amendment. The Transfer Agent shall use reasonable efforts
to act on all authorized requests to cancel or amend payment orders
received in compliance with the Security Procedure provided that such
requests are received in a timely manner affording the Transfer Agent
reasonable opportunity to act. However, the Transfer Agent assumes no
liability if the request for amendment or cancellation cannot be
satisfied.
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. 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. 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 Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours
notice of which may be delivered through the Transfer Agent's
proprietary information systems, or by facsimile or call-back. Fund
must report any objections to the execution of an order within thirty
(30) days.
6. Data Access and Proprietary Information
6.1 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
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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 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.
6.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by a
written release by the Transfer Agent; or (iii) are already in the
possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement.
6.3 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.
6.4 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.
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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.
6.5 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.
6.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 6. The obligations of this
Section shall survive any earlier termination of this Agreement.
7. Indemnification
7.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent (and the Bank, solely with
respect to Section 7.1(e)), 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, 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 Dresdner; (ii) any instructions or requests of the Fund or
Dresdner or any of their respective officers; (iii) any instructions or
opinions of legal counsel with respect to any matter arising in
connection with the services to be performed by the Transfer Agent
under this Agreement which are provided to the Transfer Agent after
consultation with such legal counsel; or (iv) any paper or document,
reasonably believed to be genuine, authentic, or signed by the proper
person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be registered
or in violation of any stop order or other
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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; or
(f) Upon the Fund's request entering into any agreements required by
the NSCC for the transmission of Fund or Dresdner data through the NSCC
clearing systems.
7.2 In order that the indemnification provisions contained in this Section
7 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.
8. Standard of Care/Limitation of Liability
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to ensure the accuracy of
all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to
errors, including encoding and payment processing errors, unless said
errors are caused by its negligence, bad faith, or willful misconduct
or that of its employees or agents. The parties agree that any encoding
or payment processing errors shall be governed by this standard of care
and Section 4-209 of the Uniform Commercial Code is superseded by
Section 8 of this Agreement. Notwithstanding the foregoing, the
Transfer Agent's aggregate liability during any term of this Agreement
with respect to, arising from or arising in connection with this
Agreement, or from all services provided or omitted to be provided by
the Transfer Agent under this Agreement, whether in contract, or in
tort, or otherwise, is limited to, and shall not exceed, the aggregate
of the amounts actually received hereunder by the Transfer Agent as
fees and charges, but not including reimbursable expenses, during the
six (6) calendar months immediately preceding the event for which
recovery from the Transfer Agent is being sought.
9. Confidentiality
9.1 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 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 6.3 shall be available to the party whose confidential
information is disclosed. The above prohibition
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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.
9.2 In the event that any requests or demands are made for the inspection
of the records of the Fund, other than request for records pursuant to
standard subpoenas from state or federal government authorities (i.e.,
divorce and criminal actions), the Transfer Agent will endeavor to
notify the Fund and 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 records to any person
whenever it is advised by counsel that it may be held liable for the
failure to exhibit the records to such person or if required by law or
court order.
10. Covenants of the Fund and the Transfer Agent
10.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto.
10.2 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 forms and
devices.
10.3 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.
11. Termination of Agreement
11.1 Term. The initial term of this Agreement (the "Initial Term") shall be
three years from the date first stated above unless terminated pursuant
to the provisions of this Section 11. Unless a terminating party gives
written notice to the other party one hundred and twenty (120) days
before the expiration of the Initial Term or any Renewal Term, this
Agreement will renew automatically from year to year (each such
year-to-year renewal term a "Renewal Term"). One hundred and twenty
(120) days before the expiration of the Initial Term or a Renewal Term
the parties to this Agreement will agree upon a Fee Schedule for the
upcoming Renewal Term. Otherwise, the fees shall be increased pursuant
to Section 2.4 of this Agreement.
11.2 Early Termination. Notwithstanding anything contained in this Agreement
to the contrary, should the Fund desire to move any of its services
provided by the Transfer Agent hereunder to a successor service
provider prior to the expiration of the then current Initial
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or Renewal Term, or without the required notice, the Transfer Agent
shall make a good faith effort to facilitate the conversion on such
prior date; however, there can be no guarantee or assurance that the
Transfer Agent will be able to facilitate a conversion of services on
such prior date. In connection with the foregoing, should services be
converted to a successor service provider, or if the Fund is liquidated
or its assets merged or purchased or the like with or by another entity
which does not utilize the services of the Transfer Agent, the fees
payable to the Transfer Agent shall be calculated as if the services
had been performed by the Transfer Agent until the expiration of the
then current Initial or Renewal Term and calculated in the same manner
as used in the then current Schedule 2.1, on the date notice of
termination was given to the Transfer Agent, and the payment of all
fees to the Transfer Agent as set forth herein shall be accelerated to
the business day immediately prior to the conversion or termination of
services.
11.3 Expiration of Term. During the Initial Term or Renewal Term, whichever
currently is in effect, should either party 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.
11.4 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.
11.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the Transfer
Agent being outstanding for more than ninety (90) days, except with
respect to any amount subject to a good faith dispute within the
meaning of Section 2.4 of this Agreement.
11.5 Bankruptcy. Either party hereto may terminate this Agreement by notice
to the other party, effective at any time specified therein, in the
event that (a) the other party ceases to carry on its business or (b)
an action is commenced by or against the other party under Title 11 of
the United States Code or a receiver, conservator or similar officer is
appointed for the other party and such suit, conservatorship or
receivership is not discharged within thirty (30) days.
12. Assignment and Third Party Beneficiaries
12.1 Except as provided in Section 13.1 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party. Any attempt to do so in
violation of this Section shall be void. Unless specifically stated to
the contrary in any written consent to an assignment, no assignment
will release or discharge the assignor from any duty or responsibility
under this Agreement.
12.2 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.
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12.3 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 13.1, neither party shall make any commitments with
third parties that are binding on the other party without the other
party's prior written consent.
13. Subcontractors
13.1 The Transfer Agent may, without further consent on the part of the
Fund, subcontract for the performance hereof with a subsidiary or
affiliate, which is duly registered as a transfer agent pursuant to
Section 17A(c)(2) of the Securities Exchange Act of 1934, as amended;
provided, however, that the Transfer Agent shall be fully responsible
to the Fund for the acts and omissions of its subsidiary or affiliate
as it is for its own acts and omissions.
13.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties such as by way of
example and not limitation, Airborne Services, Federal Express, United
Parcel Service, the U.S. Mails, the NSCC and telecommunication
companies, provided, if the Transfer Agent selected such company, the
Transfer Agent shall have exercised due care in selecting the same.
14. Miscellaneous
14.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Trustees of the Fund.
14.2 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.
14.3 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.
14.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other party for special, indirect or consequential damages under
any provision of this Agreement or for any special, indirect or
consequential damages arising out of any act or failure to act
hereunder.
14.5 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.
14.6 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.
11
14.7 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.
14.8 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.
14.9 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.
14.10 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.
14.11 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.
14.12 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) If to Boston Financial Data Services, Inc., to:
0 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Allianz Dresdner Daily Asset Fund
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention:
14.13 Limitations of Liability of the Trustees and Shareholders. A copy of
the Declaration of Trust of the Fund 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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
ALLIANZ DRESDNER DAILY ASSET FUND
BY: _______________________________
Name: _____________________________
Title: ____________________________
ATTEST:
---------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY: _______________________________
Name: _____________________________
Title: ____________________________
ATTEST:
---------------------------------
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SCHEDULE 2.1
FEE SCHEDULE
Effective: __________, 2004
ANNUAL ACCOUNT SERVICE FEES:
DAILY NET ASSETS BASIS POINTS
$0.00 - $1,500,000,000 2.0
$1.500,000,001 + 1.5
(1) FUND MINIMUM $12,000/YEAR
IF THE NUMBER OF OPEN ACCOUNTS EXCEEDS TEN, THE FUND MINIMUM WILL INCREASE TO
$24,000 PER YEAR IN ADDITION TO A CHARGE OF $6.00 PER ACCOUNT.
(1) THE FUND MINIMUM WILL BE WAIVED FOR ANY MONTH THAT THE FUND'S ASSETS EXCEED
$600,000,000.
OUT OF POCKET EXPENSES: BILLED AS INCURRED
OUT-OF-POCKET EXPENSES INCLUDE BUT ARE NOT LIMITED TO: CONFIRMATION STATEMENTS,
INVESTOR STATEMENTS, POSTAGE, STATIONERY, SUPPLIES, SUPER SELECTS AND INVESTOR
STATEMENTS, AML DELEGATED DUTIES, EQUIPMENT, TELEPHONE, MICROFICHE, DISASTER
RECOVERY, DST AUDIO RESPONSE, NSCC PROCESSING, OTS PRINT AND MAIL - FUND DIRECT,
FORMS, VOICE RESPONSE, TELEPHONE, BANK SERVICES, RECORDS RETENTION, CUSTOMIZED
PROGRAMMING/ ENHANCEMENTS, FEDERAL WIRE, TRANSCRIPTS, MICROFILM, MICROFICHE, AND
EXPENSES INCURRED AT THE SPECIFIC DIRECTION OF THE FUND.
ALLIANZ DRESDNER DAILY BOSTON FINANCIAL DATA
ASSET FUND SERVICES, INC.
BY: BY:
-------------------------------- --------------------------------
Name: Name:
Title: Title:
