Exhibit h(1)
FORM OF TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT, dated as of January 1, 2006 by and between each of the
investment companies listed on Schedule A hereto, as amended from time to time
(each a "Fund" and collectively the "Funds") and each having its principal place
of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Boston Financial
Data Services, Inc. ("Transfer Agent"), a Massachusetts corporation with
principal offices at 0 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, XX 00000.
WITNESSETH
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WHEREAS, each Fund is authorized to issue Shares in one or more
separate series, with each such series representing interests in a separate
portfolio of securities or other assets. Each such series is identified in
Schedule A, as such schedule may be amended from time to time (each a
"Portfolio").
WHEREAS, each Fund desires to appoint Transfer Agent as a transfer
agent, dividend disbursing agent and shareholder servicing agent with respect to
each Portfolio and Transfer Agent desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, each Fund and Transfer Agent agree as follows:
Article 1 Definitions
1.1 Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
(a) "Articles of Incorporation" shall mean the Articles
of Incorporation, Declaration of Trust, or other similar organizational document
as the case may be, of a Fund as the same may be amended from time to time.
(b) "Authorized Person" shall be deemed to include (i)
any authorized officer of a Fund; (ii) or any person, whether or not such person
is an officer or employee of a Fund, duly authorized to give Oral Instructions
or Written Instructions on behalf of the Fund as indicated in writing to
Transfer Agent from time to time.
(c) "Board Members" shall mean the Directors or Trustees
of the governing body of the Fund, as the case may be.
(d) "Board of Directors" shall mean the Board of
Directors or Board of Trustees of the Fund, as the case may be.
(e) "Class" shall mean a class of shares of a Fund or
Portfolio.
(f) "Commission" shall mean the Securities and Exchange
Commission.
(g) "Custodian" refers to any custodian or subcustodian
of securities and other property which a Fund or Portfolio may from time to time
deposit, or cause to be deposited or held under the name or account of such a
custodian pursuant to a Custodian Agreement.
(h) "1934 Act" shall mean the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder, all as amended from
time to time.
(i) "1940 Act" shall mean the Investment Company Act of
1940 and the rules and regulations promulgated thereunder, all as amended from
time to time.
(j) "Oral Instructions" shall mean instructions
(including via electronic mail), other than Written Instructions, received by
Transfer Agent from a person reasonably believed by Transfer Agent to be an
Authorized Person, with subsequent Written Instructions confirming the
instructions (as described below);
(k) "Prospectus" shall mean the most recently dated Fund
or Portfolio Prospectus and Statement of Additional Information, including any
supplements thereto if any, which has become effective under the Securities Act
of 1933 and the 1940 Act.
(l) "Shares" refers collectively to such shares of
capital stock or beneficial interest, as the case may be, or class thereof, of a
Fund or Portfolio as may be issued from time to time.
(m) "Shareholder" shall mean a holder of Shares of a Fund
or Portfolio.
(n) "Written Instructions" shall mean (i) a written
instruction signed by an Authorized Person, including manually executed
originals and telefacsimile of a manually executed original or other process;
and (ii) trade instructions transmitted (and received by Transfer Agent) by
means of an electronic transaction reporting system access to which requires use
of a password or other authorized identifier.
Article 2 Appointment of Transfer Agent
2.1 Each Fund hereby appoints and constitutes Transfer Agent as a
transfer agent, registrar and dividend disbursing agent for Shares of the Fund
and as shareholder servicing agent for the Portfolios. Transfer Agent accepts
such appointment and agrees to perform the duties hereinafter set forth.
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Article 3 Duties of Transfer Agent
3.1 Transfer Agent shall be responsible for:
(a) Administering and/or performing the customary
services of a transfer agent and dividend disbursing agent; acting as service
agent in connection with dividend and distribution functions; and for performing
shareholder account and administrative agent functions in connection with the
issuance, transfer and redemption or repurchase (including coordination with the
Custodian) of Shares of each Fund, as more fully described in the written
schedule of Duties of Transfer Agent annexed hereto as Schedule B and
incorporated herein, and in accordance with the terms of the Prospectus of each
Fund, applicable law and the procedures established from time to time between
the Fund and Transfer Agent.
(b) Recording the issuance of Shares and maintaining
pursuant to Rule 17Ad-10(e) under the 1934 Act a record of the total number of
Shares of each Fund which are authorized, based upon data provided to it by the
Fund, and issued and outstanding. Transfer Agent shall provide each 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. Transfer Agent will comply with all requirements
applicable to a transfer agent for a registered investment company, under the
1934 Act, 1940 Act or other state or federal securities laws, as applicable.
(c) Upon request, Transfer Agent shall provide
information or reports to a Fund or the Fund's Chief Compliance Officer, as
necessary for the Chief Compliance Officer or Fund to comply with Rule 38a-1
under the 1940 Act.
3.2 In addition, each Fund shall (i) identify to Transfer Agent in
writing or by transmission 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 Transfer Agent
for each 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 the reporting of such transactions to the Fund as provided above.
3.3 In addition to the duties set forth in Schedule B, Transfer
Agent shall perform such other duties and functions, and shall be paid such
amounts therefor, as may from time to time be agreed upon in writing between the
Fund and the Transfer Agent. The compensation for such other duties and
functions shall be reflected in a written amendment to Schedule C and the duties
and functions shall be reflected in an amendment to Schedule B, both dated and
signed by authorized persons of the parties hereto.
3.4 In addition, it is understood and agreed that, with respect to
the Funds listed on Schedule A hereto, the Transfer Agent will maintain the
record of Shareholder Information as set forth on Schedule B to this Agreement,
and that the Funds will arrange
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for PFPC Inc. to transmit such information with respect to purchases, exchanges,
transfers and redemptions of Shares as may be necessary for the Transfer Agent
to maintain such record. The Funds will obtain the agreement of PFPC Inc. to
establish all such communications interfaces and procedures as may be necessary
for the accurate maintenance of such record. The Transfer Agent will establish
such communications interfaces and procedures as may be necessary for the
accurate maintenance of such record.
Article 4 Delegation of Responsibilities
4.1 With respect to any Fund, Transfer Agent may delegate some or
all of its duties under this Agreement to other parties that after reasonable
inquiry Transfer Agent deems to be competent to assume such duties. In the event
of any such delegation, Transfer Agent shall enter into a written agreement with
the delegatee in which the delegatee will, among other things:
(a) agree to provide the services delegated to it in
accordance with a written schedule of Performance Standards developed by
Transfer Agent; and
(b) represent and warrant that it is duly registered as
required under all federal and state securities laws.
In any such circumstance, the Transfer Agent will be responsible for the
services of the delegate, as if the Transfer Agent were performing the services
itself. The Transfer Agent may not delegate any services to Xxxxx Xxxxxx Fund
Management LLC, Salomon Brothers Asset Management, Inc., Citigroup Trust Bank,
Citigroup Inc., Citigroup Global Markets Holdings or any of their affiliates or
entities under common control without prior written authorization from the Board
of the Fund.
Article 5 Recordkeeping and Other Information
5.1 Transfer Agent shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in Schedule B in
accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act and the rules thereunder. Transfer
Agent shall prepare and maintain in complete and accurate form all books and
records necessary for it to serve as transfer agent, registrar, dividend
disbursing agent and related services agent to each Portfolio, including (a) all
those records required to be prepared and maintained by a Fund under the 1934
Act, 1940 Act, by other applicable Securities Laws, rules and regulations and by
state laws and (b) such books and records as are necessary for Transfer Agent to
perform all of the services it agrees to provide in this Agreement and the
appendices attached hereto, including but not limited to the books and records
necessary to effect the conversion of classes of shares, the calculation of any
contingent deferred sales charges and the calculation of front-end sales
charges.
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5.2 Transfer Agent agrees that all records prepared or maintained
by Transfer Agent pertaining to the Fund or relating to the services to be
performed by Transfer Agent hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such section, and
will be surrendered promptly to the Fund on and in accordance with the Fund's
request. Each Fund and Authorized Persons shall have access to such books and
records in the possession or under control of Transfer Agent at all times during
Transfer Agent's normal business hours. Upon the reasonable request of a Fund,
copies of any such books and records in the possession or under the control of
Transfer Agent shall be provided by Transfer Agent to the Fund or to an
Authorized Person. Upon reasonable notice by a Fund, Transfer Agent shall make
available during regular business hours its facilities and premises employed in
connection with its performance of this Agreement for reasonable visits by the
Fund, any agent or person designated by the Fund or any regulatory agency having
authority over the Fund. Where applicable, such records shall be maintained by
Transfer Agent for the period and in the places required by the 1940 Act and the
rules thereunder or under other applicable Securities Laws.
5.3 In case of any requests or demands for the inspection of
Shareholder records of a Fund, Transfer Agent will endeavor to notify the Fund
of such request and secure Written Instructions as to the handling of such
request. Transfer Agent reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to comply with such request.
Article 6 Fund Instructions
6.1 Transfer Agent will not be liable for its acting upon Written
or Oral Instructions reasonably believed to have been executed by an Authorized
Person and executed in accordance with the standard of care provided in Section
10, and Transfer Agent will not be held to have any notice of any change of
authority of any person until receipt of a Written Instruction thereof from a
Fund. Transfer Agent will also have no liability when processing Share
certificates which it reasonably believes to bear the proper manual or facsimile
signatures of the officers of a Fund and the proper countersignature of Transfer
Agent.
6.2 At any time, Transfer Agent may request Written Instructions
from a Fund and may seek advice from legal counsel for the Fund, or its own
legal counsel, with respect to any matter arising in connection with this
Agreement, and it shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such Written Instructions or in
accordance with the opinion of counsel for the Fund or for Transfer Agent,
provided that the Transfer Agent at its own expense communicates to the Fund
such opinion of counsel to the Transfer Agent. Written Instructions requested by
Transfer Agent will be provided by a Fund within a reasonable period of time.
6.3 Transfer Agent, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of a Fund only if said representative is an
Authorized Person. Each Fund agrees
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that all Oral Instructions shall be followed within one business day by
confirming Written Instructions.
Article 7 Compensation
7.1 Each Fund will compensate or cause Transfer Agent to be
compensated for the performance of its obligations hereunder in accordance with
the fees set forth in the written schedule of fees annexed hereto as Schedule C
and incorporated herein. Transfer Agent will transmit an invoice to the Fund as
soon as practicable after the end of each calendar month which will be detailed
in accordance with Schedule C, and the Fund will pay to Transfer Agent the
amount of such invoice within thirty (30) days after the Fund's receipt of the
invoice.
7.2 In addition, each Fund agrees to pay, and will be billed
separately for, reasonable out-of-pocket expenses incurred by Transfer Agent in
the performance of its duties hereunder. Out-of-pocket expenses shall include,
but shall not be limited to, the items specified in the written schedule of
out-of-pocket charges annexed hereto as Schedule D and incorporated herein.
Schedule D may be modified by written agreement between the parties. Unspecified
out-of-pocket expenses shall be limited to those out-of-pocket expenses
reasonably incurred by Transfer Agent in the performance of its obligations
hereunder.
7.3 If the service and account mix and volumes do not remain
consistent with those being provided at the commencement of this Agreement, then
the compensation agreed to hereunder may be adjusted from time to time by
agreement of the parties by attaching to Schedule C, a revised fee schedule
executed and dated by the parties hereto.
Article 8 Representations and Warranties
8.1 Each Fund represents and warrants to Transfer Agent that:
(a) it is duly organized, existing and in good standing
under the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its
Articles of Incorporation, By-laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles
of Incorporation, By-laws and applicable laws have been taken to authorize it to
enter into this Agreement;
(d) a registration statement under the Securities Act of
1933, as amended, and the 1940 Act on behalf of the Fund is currently effective
and will remain effective; and
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(e) all Shares hereafter shall be issued in accordance
with the terms of the Fund's organizational documents and its Prospectus, and
such Shares shall be validly issues, fully paid and non-assessable.
8.2 Transfer Agent represents and warrants to each Fund that:
(a) it is duly organized, existing and in good standing
under the laws of the Commonwealth of Massachusetts;
(b) it is qualified to carry on its business in the
jurisdictions in which it is present;
(c) it is empowered under applicable laws and by its
Articles of Incorporation and By-laws to enter into and perform this Agreement;
(d) all corporate proceedings required by said Articles
of Incorporation, By-laws and applicable laws have been taken to authorize it to
enter into this Agreement; and
(e) it is a transfer agent fully registered as a transfer
agent pursuant to Section 17A(c)(2) of the 1934 Act, and such registration will
remain in effect for the duration of this Agreement; and
(f) it has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
Article 9 Indemnification
9.1 The Transfer Agent shall not be responsible for, and the
relevant 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 (collectively referred to as "Losses") arising out of or
attributable to:
(a) All actions of the Transfer Agent or its agents or
delegatees required to be taken pursuant to this Agreement (including the
defense of any lawsuit 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 and are not violations of applicable law and
regulation pertaining to the manner transfer agency services are performed or
not otherwise a material breach of the Transfer Agent's obligations under this
Agreement;
(b) The reasonable reliance upon, and any subsequent use
of or action taken or omitted, by the Transfer Agent or its agents or delegatees
on: (i) any Written Instructions of the Fund or any of its officers; or (ii) any
paper or document, reasonably believed to be genuine, authentic, or signed by
the proper person or persons; unless such Losses are due to the negligence of
the Transfer Agent arising out of its failure to perform in accordance with
procedures established with the Fund;
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(c) 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 to the extent that such violation resulted from the provision of
information from the Transfer Agent in contravention of the standard of care
provided in Article 10 or the Transfer Agent received Written Instructions
notifying it of the violation or determination);
(d) A material breach by the Fund of its obligations
under this Agreement; or
(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; provided, however, that the Fund's obligation
to indemnify the Transfer Agent shall only apply in the event that the Transfer
Agent has acted in a commercially reasonable manner in negotiating and
processing such checks, and such action was consistent with the Transfer Agent's
standard of care and with the disclosure in the Fund's prospectus. Provided,
further that the Transfer Agent agrees to work with the Fund to pursue available
avenues with the depositing and/or originating bank, as appropriate, in order to
mitigate the losses, wherever possible, related to such checks for which
indemnification from the Fund may be sought.
9.2 A Fund shall not be responsible for, and the Transfer Agent
shall indemnify and hold each Fund harmless from and against any and all Losses
arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents taken
outside of the scope of this Agreement or caused by the Transfer Agent's
negligence, bad faith, willful misconduct or violations of applicable law or
regulation pertaining to the manner in which transfer agency services are
performed or otherwise are a breach of the Agreement.
9.3 In any case in which a party hereto (the "Indemnifying Party')
may be asked to indemnify or hold the other party (the "Indemnified Party")
harmless, the Indemnifying Party shall be promptly advised of all pertinent
facts concerning the situation in question. The Indemnified Party will notify
the Indemnifying Party promptly after identifying any situation which it
believes presents or appears likely to present a claim for indemnification
against the Indemnifying Party although the failure to do so shall not prevent
recovery by the Indemnified Party. The Indemnifying Party shall keep the
Indemnified Party advised with respect to all such developments concerning any
claim, demand, action or suit or other proceeding (a "Claim"), which may be the
subject of this indemnification. The Indemnifying Party shall have the option to
participate with the Indemnified Party in defending against any Claim which may
be the subject of this indemnification, and, in the event that the Indemnifying
Party so elects, such defense shall be conducted by counsel chosen by the
Indemnifying Party and satisfactory to the Indemnified Party, and thereupon
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the Indemnifying Party shall take over complete defense of the Claim and the
Indemnified Party shall sustain no further legal or other expenses in respect of
such Claim. The Indemnified Party will not confess any Claim or make any
compromise in any case in which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior written consent. The
obligations of the parties hereto under this Section 9 shall survive the
termination of this Agreement.
9.4 Except for remedies that cannot be waived as a matter of law
(and injunctive or provisional relief), the provisions of this Article 9 shall
be a party's sole and exclusive remedy for claims or other actions or
proceedings to which the other party's indemnification obligations pursuant to
this Article 9 may apply.
9.5 The members of the Board of a Fund, its officers and
Shareholders, or of any Portfolio thereof, shall not be liable for any
obligations of the Fund, or any such Portfolio, under this Agreement, and
Transfer Agent agrees that in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Fund or the
particular Portfolio in settlement of such rights or claims and not to such
members of the Board, its officers or Shareholders. Transfer Agent further
agrees that it will look only to the assets and property of a particular
Portfolio of a Fund, should the Fund have established separate series, in
asserting any rights or claims under this Agreement with respect to services
rendered with respect to that Portfolio and will not seek to obtain settlement
of such rights or claims from the assets of any other Portfolio of the Fund.
9.6 The Transfer Agent agrees to provide each Fund with
certificates of insurance for errors and omissions insurance and fidelity bonds,
and agrees to provide updated certificates annually or as requested by the Fund.
Article 10 Standard of Care
10.1 Transfer Agent shall provide its services as transfer agent in
accordance with the applicable provisions of Section 17A under the 1934 Act. In
performing the responsibilities delegated to it under this Agreement, Transfer
Agent shall at all times act in good faith and agrees to exercise reasonable
care, diligence and expertise of a professional transfer agent having
responsibility for providing transfer agent services to investment companies
registered under the 1940 Act, but shall not be liable for any damages arising
out of Transfer Agent's performance of or failure to perform its duties under
this Agreement, except to the extent such damages arise out of Transfer Agent's
own negligence, bad faith, willful misconduct or that of its employees, agents
or delegatees or violations of applicable law pertaining to the manner in which
transfer agency services are to be performed by Transfer Agent or otherwise from
a material breach of the Transfer Agent's obligations under this Agreement.
Article 11 Consequential Damages
Notwithstanding anything in this Agreement to the contrary, neither
Transfer Agent nor the Fund shall be liable to the other party for any
consequential, special or indirect
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losses or damages which the party may incur or suffer by or as a consequence of
the other party's performance of the services provided hereunder.
Article 12 Insurance
12.1 Transfer Agent shall maintain insurance of the types and in
the amounts deemed by it to be appropriate. To the extent that policies of
insurance may provide for coverage of claims for liability or indemnity by the
parties set forth in this Agreement, the contracts of insurance shall take
precedence, and no provision of this Agreement shall be construed to relieve an
insurer of any obligation to pay claims to the Fund, Transfer Agent or other
insured party which would otherwise be a covered claim in the absence of any
provision of this Agreement.
Article 13 Security
13.1 Transfer Agent represents and warrants that, to the best of
its knowledge, the various procedures and systems which Transfer Agent has
implemented with regard to the safeguarding from loss or damage attributable to
fire, theft or any other cause (including provision for twenty-four hours a day
restricted access) of a Fund's blank checks, records and other data and Transfer
Agent's equipment, facilities and other property used in the performance of its
obligations hereunder are adequate, and that it will make such changes therein
from time to time as in its judgment are required for the secure performance of
its obligations hereunder. Transfer Agent shall review such systems and
procedures on a periodic basis, and each Fund shall have reasonable access to
review these systems and procedures.
Article 14 Disaster Recovery
14.1 Transfer Agent shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provisions for
periodic backup of computer files and data with respect to a Fund and emergency
use of electronic data processing equipment. In the event of equipment failures,
Transfer Agent shall, at no additional expense to a Fund, take reasonable steps
to minimize service interruptions caused by equipment failure, provided such
loss or interruption is not caused by Transfer Agent's own willful misfeasance,
bad faith, negligence or reckless disregard of its duties or obligations under
this Agreement and provided further that Transfer Agent has complied with the
provisions of this paragraph 14.
14.2 Transfer Agent shall: (i) maintain a comprehensive business
recovery plan that: (A) is not less protective than the plan provided to the
Fund as of the effective date of the Fund under regulation and/or applicable
law; and (B) provides for sufficient recovery of its back office and
administrative operations to enable Transfer Agent, within 24 hours or such
lesser period as may be agreed upon in writing between the parties after any
event necessitating the use of such plan to fulfill its obligations hereunder,
and (ii) test such business recovery plan no less frequently than annually and
upon request, the Fund may participate in such test. Transfer Agent will make
the results of such test available to the
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Fund upon request for review and inspection. Transfer Agent shall maintain, at a
location other than its normal location, appropriate redundant facilities for
operational back-up in the event of a power failure, disaster or other
interruption. Transfer Agent shall back-up the Fund's records maintained by
Transfer Agent, and shall store the backup in a secure manner at a location
other than its normal location, so that, in the event of a power failure,
disaster or other interruption at such normal location, the records will be
maintained intact and will enable Transfer Agent to perform the Services under
this Agreement. In the event of a business disruption that materially impacts
Transfer Agent's provision of Services under this Agreement, Transfer Agent will
notify the Fund of the disruption and the steps being implemented under the
business continuity plan.
Article 15 Term and Termination
15.1 This Agreement shall be effective on the date first written
above and shall continue until December 31, 2008, and thereafter shall
automatically continue for successive annual periods ending on the anniversary
of the date first written above. Either party shall give written notice to the
other party ninety (90) days before the expiration of the Initial Term or
Renewal Term if such party desires not to renew the term for an additional one
year period. The Fund shall have the right to terminate this Agreement for cause
upon sixty (60) days notice in the event of a material breach of this Agreement
by the Transfer Agent. In the event that the Fund terminates this Agreement for
cause, it shall not be obligated to pay the amounts set forth in Section 15.3(c)
and (d) below. For purposes of this Agreement the merger or liquidation of a
fund shall not be deemed a termination of the Agreement. The parties shall agree
upon a Fee Schedule for an upcoming Renewal Term before the expiration of the
Initial Term or a Renewal Term, however, if the service and account mix and
volumes do not remain consistent with those being provided at the commencement
of this Agreement, then the compensation agreed to hereunder may be adjusted
from time to time by agreement of the parties by attaching to Schedule C, a
revised fee schedule executed and dated by the parties hereto. Notwithstanding
the termination or non-renewal of this Agreement, the terms and conditions of
this Agreement shall continue to apply until the completion of deconversion.
15.2 In the event a termination notice is given by a Fund, it shall
be accompanied by a resolution of the Board of Directors, certified by the
Secretary of the Fund, designating a successor transfer agent or transfer
agents. Upon such termination and at the expense of the Fund, Transfer Agent
will deliver to such successor a certified list of shareholders of the Fund
(with names and addresses), and all other relevant books, records,
correspondence and other Fund records or data in the possession of Transfer
Agent, and Transfer Agent will cooperate with the Fund and any successor
transfer agent or agents in the substitution process.
15.3 (a) In the event of termination or non-renewal of this
Agreement, the Fund will promptly pay the Transfer Agent all amounts accrued but
unpaid as of the date of such termination. (b) In addition, in the event of
termination or non-renewal of this Agreement, the Fund shall pay to the Transfer
Agent the deconversion costs and all reasonable fees and expenses for providing
any support services requested by the Fund post
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deconversion, including but not limited to tax reporting and open issue
resolution. (c) In addition, in the event of a termination of this Agreement,
the Fund shall pay to the Transfer Agent the reasonable and documented aggregate
costs incurred by the Transfer Agent to convert the Funds to the Transfer
Agent's system and which amount is subject to a pro rata monthly reduction over
the Initial Term of the Agreement. (d) In addition, in the event that the Fund
terminates this Agreement prior to the end of the Initial Term, then the Fund
shall pay to the Transfer Agent monthly for a period of three months following
the termination an amount equal to the fully allocated costs related the
Transfer Agent's employees that are solely dedicated to providing services to
the Fund; provided, however, that the amount for any month shall be reduced to
reflect the removal from the calculation of any such dedicated employee that
obtains another position with the Transfer Agent.
Article 16 Confidentiality/Privacy
16.1 The parties agree that any non-public information obtained
hereunder concerning the other party is confidential and may not be disclosed to
any other person without the consent of the other party, except as may be
required by applicable law or at the request of the Commission or other
governmental agency. The parties further agree that a breach of this provision
would irreparably damage the other party and accordingly agree that each of them
is entitled, without bond or other security, to an injunction or injunctions to
prevent breaches of this provision.
16.2 The Transfer Agent has adopted and implemented procedures to
safeguard customer information and records that are reasonably designed to
ensure the security and confidentiality of customer records and information in
accordance with applicable state and federal standards and to ensure compliance
with Regulation S-P. Information about the Fund's customers shall not be
disclosed, sold, or used in any way, except: (1) to carry out the terms of this
Agreement; and (2) disclosure pursuant to law, rule, regulation or court or
administrative order.
16.3 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 16 shall be available to the party whose
confidential information is disclosed. 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 endeavor to notify the Fund and to secure instructions from
an authorized officer of the
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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.
Article 17 Force Majeure
17.1 No party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the extent such
default or delay is caused, directly or indirectly, by (i) fire, flood, elements
of nature or other acts of God; (ii) any outbreak or escalation of hostilities,
war, riots or civil disorders in any country; (iii) any act or omission of the
other party or any governmental authority; (iv) any labor disputes beyond the
reasonable control of such party; or (v) nonperformance by a third party or any
similar cause beyond the reasonable control of such party, including without
limitation, failures or fluctuations in telecommunications or other equipment;
except to the extent that the non-performing party shall have failed to use its
reasonable best efforts to minimize the likelihood of occurrence of such
circumstances or to mitigate any loss or damage to the other party caused by
such circumstances. In any such event, the non-performing party shall be excused
from any further performance and observance of the obligations so affected only
for as long as such circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or observance as soon
as practicable.
Article 18 Assignment
18.1 This Agreement may not be assigned or otherwise transferred by
Transfer Agent, without the prior written consent of a Fund, which consent shall
not be unreasonably withheld; provided, however, that Transfer Agent may, in its
sole discretion, assign all its right, title and interest in this Agreement to
an affiliate, parent or subsidiary of Transfer Agent who is qualified to act
under the 1934 Act and 1940 Act.
Article 19 Notices
19.1 Any notice or other instrument authorized or required by this
Agreement to be given in writing to a Fund or Transfer Agent, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Funds:
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Secretary
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To Transfer Agent:
Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: President
Article 20 Governing Law/Venue
20.1 The laws of the State of New York, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this agreement.
Article 21 Counterparts
21.1 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original; but such counterparts shall,
together, constitute only one instrument.
Article 22 Captions
22.1 The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
Article 23 Publicity
23.1 Neither a Fund nor Transfer Agent shall release or publish
news releases, public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without the prior
review and written approval of the other party; provided, however, that either
party may make such disclosures as are required by legal, accounting or
regulatory requirements after making reasonable efforts in the circumstances to
consult in advance with the other party.
Article 24 Relationship of Parties
24.1 The parties agree that they are independent contractors and
not partners or co-venturers and nothing contained herein shall be interpreted
or construed otherwise.
Article 25 Entire Agreement; Severability
25.1 This Agreement, including Schedules and Exhibits hereto,
constitutes the entire agreement of the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by the party affected. A party's
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waiver of a breach of any term or condition in the Agreement shall not be deemed
a waiver of any subsequent breach of the same or another term or condition.
25.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
Article 26 Customer Identification Program Notice
26.1 To help the U.S. government fight the funding of terrorism and
money laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that identifies
each person who initially opens an account with that financial institution on or
after October 1, 2003. Certain of Transfer Agent's affiliates are financial
institutions, and Transfer Agent may, as a matter of policy, request (or may
have already requested) the Fund's name, address and taxpayer identification
number or other government-issued identification number. Transfer Agent may also
ask (and may have already asked) for additional identifying information, and
Transfer Agent may take steps (and may have already taken steps) to verify the
authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
Each of the Investment Companies Listed On Schedule A Hereto,
Each of Which Is Acting On Its Own Behalf And
Not On Behalf Of Any Other Investment Company
By: ______________________________
R. Xxx Xxxxxx
President and
Chief Executive Officer
Boston Financial Data Services, Inc.
By:
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SCHEDULE A
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CITIFUNDS TRUST III
Citi Cash Reserves (Co-Transfer Agent)
Citi US Treasury Reserves (Co-Transfer Agent)
Citi California Tax Free Reserves (Co-Transfer Agent)
Citi Connecticut Tax Free Reserves (Co-Transfer Agent)
(INCLUDES XXXXX XXXXXX CONNECTICUT MONEY MARKET PORTFOLIO CLASS A AND CLASS Y)
Citi New York Tax Free Reserves (Co-Transfer Agent)
Citi Tax Free Reserves (Co-Transfer Agent)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CITIFUNDS INSTITUTIONAL TRUST
Citi Institutional Liquid Reserves (Co-Transfer Agent) Citi Institutional
Cash Reserves (Co-Transfer Agent) Citi Institutional US Treasury Reserves
(Co-Transfer Agent) Citi Institutional Tax Free Reserves (Co-Transfer
Agent) Citi Institutional Enhanced Income Fund
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
CITIFUNDS PREMIUM TRUST
Citi Premium Liquid Reserves
Citi Premium U.S. Treasury Reserves
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Xxxxx Xxxxxx Investment Trust
Xxxxx Xxxxxx S&P 500 Index Fund
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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