TRANSFER AGENCY AND SERVICE AGREEMENT
TRANSFER AGENCY AND SERVICE
AGREEMENT
THIS AGREEMENT is made as of the 1st day of
April, 2010, by and between STATE STREET BANK AND TRUST COMPANY, a trust company
chartered under the laws of the Commonwealth of Massachusetts having its
principal office and place of business at Xxx Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (“State Street” or the “Transfer Agent”), and Capital
Private Client Services Funds, a Delaware statutory trust having its principal
office and place of business at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 (the
“Trust”).
WHEREAS, the Trust is authorized to issue
shares of beneficial interest (“Shares”) in separate series, with each such
series representing interests in a separate portfolio of securities and other
assets;
WHEREAS, the Trust intends to initially offer
Shares in one or more series, each as named in the attached Schedule A, which may
be amended by the parties from time to time (such series, together with all
other series subsequently established by the Trust and made subject to this
Agreement in accordance with Section 13 of this Agreement, being herein referred
to as a “Portfolio,” and collectively as the “Portfolios”);
WHEREAS, the Trust on behalf of the
Portfolios desires to appoint the Transfer Agent as its transfer agent, dividend
disbursing agent, and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment;
Now,
Therefore, in consideration of the mutual promises contained herein, the
parties hereto, intending to be legally bound, mutually covenant and agree as
follows:
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1.
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TERMS OF
APPOINTMENT
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1.1
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Subject to
the terms and conditions set forth in this Agreement, the Trust on behalf
of the Portfolios hereby employs and appoints the Transfer Agent to act
as, and the Transfer Agent agrees to act as, transfer agent for the
Trust’s authorized and issued Shares, dividend disbursing agent, and agent
in connection with any accumulation or similar plans provided to
shareholders (“Shareholders”) of each of the respective Portfolios of the
Trust and set out in the currently effective prospectus and statement of
additional information of the Trust and each Portfolio (collectively, the
“Prospectus”), including without limitation any periodic investment plan
or periodic withdrawal program.
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1.2
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Transfer Agency
Services. In accordance with procedures established from
time to time by agreement between the Trust, on behalf of each of the
Portfolios, as applicable, and the Transfer Agent, the Transfer Agent
shall:
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(i)
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Receive
orders for the purchase of Shares from the Trust, and promptly deliver
payment and appropriate documentation thereof to the custodian of a
Portfolio as identified by the Trust (the
“Custodian”);
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(ii)
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pursuant to
such purchase orders, issue the appropriate number of Shares and book such
Share issuance to the appropriate Shareholder
account;
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(iii)
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receive
redemption requests and redemption directions from the Trust and deliver
the appropriate documentation thereof to the
Custodian;
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(iv)
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with respect
to the transactions in items (i) and (iii) above, the Transfer Agent shall
process transactions received directly from broker-dealers or other
intermediaries authorized by the Trust who shall thereby be deemed to be
acting on behalf of the Trust;
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(v)
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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;
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(vi)
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process
transfer of Shares by the registered owners thereof upon receipt of proper
instruction and approval by the
Trust;
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(vii)
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process and
transmit payments for any dividends and distributions declared by the
Trust on behalf of the applicable Portfolio;
and
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(viii)
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record the
issuance of Shares of the applicable Portfolio and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares of each
Portfolio which are authorized, based upon data provided to it by the
Trust, and issued and outstanding; and provide the Trust on a regular
basis with the total number of Shares of each Portfolio which are issued
and outstanding; but Transfer Agent shall have no obligation, when
recording the issuance of Shares, to monitor the issuance of such Shares
to determine if there are authorized Shares available for issuance or to
take cognizance of any laws relating to, or corporate actions required
for, the issue or sale of such Shares, which functions shall be the sole
responsibility of the Trust.
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1.3
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Additional
Services. In addition to, and neither in lieu of nor in
contravention of the services set forth in Section 1.2 above, the Transfer
Agent shall perform the following
services:
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(i)
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Other Customary
Services. Perform certain customary services of a
transfer agent and dividend disbursing agent, including, but not limited
to: maintaining Shareholder accounts, maintaining on behalf of
the Portfolios such bank accounts as the Transfer Agent shall deem
necessary for the performance of its duties under this Agreement,
withholding taxes on U.S. resident and non-resident alien accounts,
preparing, filing and mailing Forms 1042/1042S for non-resident alien
accounts, 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;
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(ii)
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State Transaction
(“Blue Sky”) Reporting. The Trust shall be solely
responsible for its “blue sky” compliance and state registration
requirements. The Transfer Agent’s responsibility for state
transaction reporting is solely limited to providing a third-party vendor
with the total number of Shares sold in each
State;
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(iii)
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Depository Trust &
Clearing Corporation (“DTCC”)/National Securities Clearing Corporation
(“NSCC”). If applicable, the Transfer Agent shall: (a)
accept and effectuate the registration and maintenance of accounts with
DTCC/NSCC, and the purchase and redemption of Shares in such accounts, in
accordance with instructions transmitted to and received by the Transfer
Agent by transmission from DTCC or NSCC (acting on behalf of its members);
and (b) issue instructions to a Portfolio’s banks for the settlement of
transactions between the Portfolio and DTCC or NSCC (acting on behalf of
its members and bank participants).
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(iv)
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Performance of Certain
Services by the Trust or Affiliates or Agents. New
procedures as to who shall provide certain of these services described in
this Section 1 may be established in writing from time to time by
agreement between the Trust and the Transfer Agent. If agreed
to in writing by the Trust and the Transfer Agent, the Transfer Agent may
at times perform only a portion of these services, and the Trust or its
agent may perform these services on the Trust’s or a Portfolio’s
behalf.
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1.4
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Authorized
Persons. The Trust, on behalf of each Portfolio, hereby
agrees and acknowledges that the Transfer Agent may rely on the current
list of authorized persons, as provided or agreed to by the Trust and as
may be amended from time to time, in receiving instructions to issue or
redeem the Shares. The Trust, on behalf each Portfolio, agrees
and covenants for itself and each such authorized person that any order,
sale or transfer of, or transaction in the Shares received by it after the
close of the market shall be effectuated at the net asset value determined
on the next business day or as otherwise required pursuant to the
applicable Portfolio’s then-effective Prospectus, and the Trust or such
authorized person shall so instruct the Transfer Agent of the proper
effective date of the transaction.
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1.5
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Anti-Money Laundering and
Client Screening. With respect to the Trust’s or any Portfolio’s
offering and sale of Shares at any time, and for all subsequent transfers
of such interests, the Trust or its delegate shall, directly or indirectly
and to the extent required by law: (i) conduct know your
customer/client identity due diligence with respect to potential investors
and transferees in the Shares and shall obtain and retain due diligence
records for each investor and transferee; (ii) use its best efforts to
ensure that each investor’s and any transferee’s funds used to purchase
Shares shall not be derived from, nor the product of, any criminal
activity; (iii) if requested, provide periodic written verifications that
such investors/transferees have been checked against the United States
Department of the Treasury Office of Foreign Assets Control database for
any non-compliance or exceptions; and (iv) perform its obligations under
this Section in accordance with all applicable anti-money laundering laws
and regulations. In the event that the Transfer Agent has
received advice from counsel that access to underlying due diligence
records pertaining to the investors/transferees is necessary to ensure
compliance by the Transfer Agent with relevant anti-money laundering (or
other applicable) laws or regulations, the Trust shall, upon receipt of
written request from the Transfer Agent, provide the Transfer Agent copies
of such due diligence records.
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1.6
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Tax Law. The
Transfer Agent shall have no responsibility or liability for any
obligations now or hereafter imposed on the Trust, a Portfolio, the
Shares, a Shareholder or the Transfer Agent in connection with the
services provided by the Transfer Agent hereunder by the tax laws of any
country or of any state or political subdivision thereof. It
shall be the responsibility of the Trust to notify the Transfer Agent of
the obligations imposed on the Trust, a Portfolio, the Shares, a
Shareholder or the Transfer Agent in connection with the services provided
by the Transfer Agent hereunder by the tax law of countries, states and
political subdivisions thereof, including responsibility for withholding
and other taxes, assessments or other governmental charges, certifications
and governmental reporting.
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2. FEES; EXPENSES;
REIMBURSEMENT
The Transfer Agent
shall receive from the Trust such compensation for the Transfer Agent’s services
provided pursuant to this Agreement as may be agreed to from time to time in a
written Fee Schedule approved by the parties. The fees are accrued
daily and billed monthly and shall be due and payable upon receipt of the
invoice. Upon the termination of this Agreement before the end of any
month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of termination of this
Agreement. In addition, the Trust shall reimburse the Transfer Agent
for its reasonable out-of-pocket costs incurred in connection with this
Agreement. All rights of compensation and expense reimbursement under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
The Trust agrees promptly to reimburse the
Transfer Agent for any equipment and supplies specially ordered by or for the
Trust through the Transfer Agent and for any other expenses not contemplated by
this Agreement that the Transfer Agent may incur on the Trust’s behalf at the
Trust’s request or with the Trust’s consent.
The Trust will bear
all expenses that are incurred in its operation and not specifically assumed by
the Transfer Agent.
The Transfer Agent
is authorized to and may employ, associate or contract with such person or
persons as the Transfer Agent may deem desirable to assist it in performing its
duties under this Agreement; provided, however, that the compensation of such
person or persons shall be paid by the Transfer Agent and that the Transfer
Agent shall be as fully responsible to the Trust for the acts and omissions of
any such person or persons as it is for its own acts and omissions.
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3.
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TRANSFER AGENT’S
RECORDS; ACCESS TO RECORDS
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The Transfer
Agent shall provide any assistance reasonably requested by the Trust in
the preparation of reports to the Trust’s shareholders and others, audits
of accounts, and other ministerial matters of like nature. The
Transfer Agent shall maintain complete and accurate records with respect
to the services provided hereunder as required by the rules and
regulations of the U.S. Securities and Exchange Commission applicable to
investment companies registered under the 0000 Xxx. All such
books and records maintained by Transfer Agent shall be made available to
the Trust upon request and shall, where required to be maintained by Rule
31a-1 under the 1940 Act, be preserved for the periods prescribed in Rule
31a-2 under the 1940 Act. The Transfer Agent shall allow the
Trust's independent public accountant reasonable access to the records of
the Transfer Agent relating to the services provided under this Agreement
as is required in connection with their examination of books and records
pertaining to the Trust's affairs. Subject to restrictions under
applicable law, the Transfer Agent shall also obtain an undertaking to
permit the Trust's independent public accountants reasonable access to the
records of any agent which has physical possession of any records as may
be required in connection with the examination of the Trust's books and
records. Upon reasonable request of the Trust, the Transfer
Agent shall provide the Trust with a copy of the Transfer Agent’s reports
prepared in compliance with the requirements of Statement of Auditing
Standards No. 70 issued by the American Institute of Certified Public
Accountants, as it may be amended from time to time (commonly referred to
as a “SAS 70 report”). The Transfer Agent shall use
commercially reasonable efforts to obtain and furnish the Trust with such
similar reports as the Trust may reasonably request with respect to each
agent authorized by the Trust to act on the Transfer Agent’s
behalf. Except as respects the Transfer Agent’s SAS 70 Report,
as to which there shall be no charge, the Trust shall pay reasonable
expenses of the Transfer Agent and any third party agent under this
provision. The Transfer Agent shall use commercially reasonable
efforts to provide the Trust and agents with such reports as the Trust may
reasonably request or otherwise reasonably require to fulfill its duties
under Rule 38a-1 of the 1940 Act, and, in any case, provide the Trust with
at least the same level of such reporting as the Transfer Agent furnishes
to its other mutual fund clients. The Transfer Agent shall
provide the Trust, at no cost for the first year of this Agreement, the
report on the results of the most recent attestation examination with
respect to the Transfer Agent’s internal controls over compliance
performed by an independent accounting
firm.
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4.
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REPRESENTATIONS AND
WARRANTIES OF THE TRANSFER
AGENT
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The Transfer Agent
represents and warrants to the Trust that:
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4.1
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It is a trust
company duly organized and existing and in good standing under the laws of
the Commonwealth of Massachusetts.
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4.2
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It is duly
registered as a transfer agent under Section 17A(c)(2) of the Securities
Exchange Act of 1934, as amended (the “1934 Act”), it will remain so
registered for the duration of this Agreement, and it will promptly notify
the Trust in the event of any material change in its status as a
registered transfer agent.
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4.3
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It is duly
qualified to carry on its business in the Commonwealth of
Massachusetts.
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4.4
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It is
empowered under applicable laws and by its organizational documents to
enter into and perform the services contemplated in this
Agreement.
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4.5
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All requisite
corporate proceedings have been taken to authorize it to enter into and
perform this Agreement.
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4.6
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It has and
will continue to have access to the necessary facilities, equipment and
personnel to perform its duties and obligations under this
Agreement.
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4.7
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It is in
compliance with all material federal and state laws, rules and regulations
applicable to its transfer agency business and the performance of its
duties, obligations and services under this
Agreement.
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4.8
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The various
procedures and systems which it has implemented with regard to
safeguarding from loss or damage attributable to fire, theft or any other
cause, the Trust’s records and other data and the Transfer Agent’s
records, data equipment facilities and other property used in the
performance of its obligations hereunder are adequate and it will make
such changes therein from time to time as it may deem reasonably necessary
for the secure performance of its obligations
hereunder.
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5.
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REPRESENTATIONS AND
WARRANTIES OF THE TRUST ON BEHALF OF THE
PORTFOLIOS
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The Trust on behalf
of the Portfolios represents and warrants to the Transfer Agent
that:
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5.1
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The Trust is
a statutory trust duly organized, existing and in good standing under the
laws of the State of Delaware.
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5.2
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The Trust is
empowered under applicable laws and by its organizational documents to
enter into and perform this
Agreement.
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5.3
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All requisite
proceedings have been taken to authorize the Trust to enter into, perform
and receive services pursuant to this
Agreement.
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5.4
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The Trust is
registered under the Investment Company Act of 1940, as amended (the “1940
Act”), as an open-end management investment
company.
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5.5
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A
registration statement under the Securities Act of 1933, as amended (the
“Securities Act”), is currently effective and will remain effective, and
all appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the Trust being offered
for sale.
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6.
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DATA ACCESS AND
PROPRIETARY INFORMATION
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6.1
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The Trust
acknowledges that the databases, computer programs, screen formats, report
formats, interactive design techniques, and documentation manuals
furnished to the Trust by the Transfer Agent as part of the Trust’s
ability to access certain Trust-related data maintained by the Transfer
Agent or another third party on databases under the control and ownership
of the Transfer Agent (“Data Access Services”) constitute copyrighted,
trade secret, or other proprietary information (collectively, “Proprietary
Information”) of substantial value to the Transfer Agent or another third
party. In no event shall Proprietary Information be deemed
Customer Information (as defined below) or the confidential information of
the Trust. The Trust, on behalf of itself and the Portfolios,
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.
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6.2
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Proprietary
Information shall not include all or any portion of any of the foregoing
items that are or become publicly available without breach of this
Agreement; that are released for general disclosure by a written release
by the Transfer Agent; or that are already in the possession of the
receiving party at the time of receipt without obligation of
confidentiality or breach of this Agreement. Proprietary Information may
be disclosed to the Trust’s officers, trustees, employees, contractors and
auditors on a strictly need-to-know basis and as required by
law.
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6.3
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If the Trust
notifies the Transfer Agent that any of the Data Access Services do not
operate in material compliance with the most recently issued user
documentation for such services, the Transfer Agent shall endeavor in a
timely manner to correct such failure. Organizations from which
the Transfer Agent may obtain certain data included in the Data Access
Services are solely responsible for the contents of such data, and the
Trust agrees to make no claim against the Transfer Agent arising out of
the contents of such third-party data, including, but not limited to, the
accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER
PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE
PROVIDED ON AN “AS IS, AS 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. FOR AVOIDANCE OF DOUBT,
NOTHING IN THIS SUB-SECTION 6.3 SHALL EXCUSE TRANSFER AGENT FOR ANY
FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THE STANDARD OF CARE
SET FORTH IN SECTION 9 AND THE TERMS OF THIS
AGREEMENT.
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6.4
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If the
transactions available to the Trust include the ability to originate
electronic instructions to the Transfer Agent in order to effect the
transfer or movement of cash or Shares, 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.
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6.5
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Each party
shall take reasonable efforts to advise its employees and agents of their
obligations pursuant to this Section 6. The obligations of this
Section shall survive any earlier termination of this
Agreement.
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6.6
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The Trust
acknowledges that the disclosure of any Proprietary Information will
immediately give rise to continuing irreparable injury to the Transfer
Agent or its third-party licensors and vendors inadequately compensable in
damages at law and that Transfer Agent shall be entitled to seek immediate
injunctive relief against the breach or threatened breach of any of the
foregoing undertakings, in addition to any other legal remedies which may
be available. The Trust agrees to discontinue use of Data
Access Services, if requested, for any security reasons cited by the
Transfer Agent. Transfer Agent may restrict access of the Data
Access Services by the Trust for security reasons or noncompliance with
the terms of this Section 6.
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7.
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WIRE TRANSFER
OPERATING GUIDELINES
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7.1
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Obligation of
Sender. The Transfer Agent is authorized to promptly
debit the appropriate Portfolio account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the “Security
Procedure”) chosen for funds transfer in the Funds Transfer Addendum to
the Custody Agreement between State Street and the Trust and in the amount
of money that the Transfer Agent has been instructed to
transfer. The Transfer Agent shall execute payment orders in
compliance with the Security Procedure and with the Trust’s instructions
on the execution date, provided that such payment order is received by the
customary deadline for processing such a request, unless the payment order
specifies a later time. All payment orders and communications
received after the customary deadline will be deemed to have been received
the next business day.
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7.2
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Security
Procedure. The Trust on behalf of the Portfolios
acknowledges that the Security Procedure it has designated on the Funds
Transfer Addendum was selected by the Trust from security procedures
offered. The Trust shall restrict access to confidential
information relating to the Security Procedure to authorized persons as
communicated to the Transfer Agent in writing. The Trust must
notify the Transfer Agent immediately if it has reason to believe
unauthorized persons may have obtained access to such information or of
any change in the Trust’s authorized personnel. The Transfer
Agent shall verify the authenticity of all instructions received from the
Trust according to the Security
Procedure.
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7.3
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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.
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7.4
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Rejection. The
Transfer Agent reserves the right to decline to process or delay the
processing of a payment order (i) which 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; (ii) if initiating such payment order would
cause the Transfer Agent, in the Transfer Agent’s sole judgment, to exceed
any volume, aggregate dollar, network, time, credit or similar limits
which are applicable to the Transfer Agent; or (iii) if the Transfer
Agent, in good faith is unable to satisfy itself that the transaction has
been properly authorized.
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7.5
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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.
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7.6
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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.
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7.7
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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.
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7.8
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ACH Credit Entries/Provisional
Payments. When a Portfolio initiates or receives
Automated Clearing House credit and debit entries pursuant to these
guidelines and the rules of the National Automated Clearing House
Association and the New England Clearing House Association, the Transfer
Agent will act as an Originating Depository Financial Institution and/or
Receiving Depository Financial Institution, as the case may be, with
respect to such entries. Credits given by the Transfer Agent
with respect to an ACH credit entry are provisional until the Transfer
Agent receives final settlement for such entry from the Federal Reserve
Bank. If the Transfer Agent does not receive such final
settlement, the Trust agrees that the Transfer Agent shall receive a
refund of the amount credited to the applicable Portfolio in connection
with such entry, and the party making payment to the Portfolio via such
entry shall not be deemed to have paid the amount of the
entry.
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7.9
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Confirmation. Confirmation
of the 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. The Trust must report any objections to
the execution of an order within thirty (30) calendar
days.
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8.
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INSTRUCTIONS AND
ADVICE
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8.1
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At any time,
the Transfer Agent may apply to any officer of the Trust or his or her
designee for instructions and may consult with its own legal counsel or
outside counsel for the Trust or the independent accountants for the Trust
with respect to any matter arising in connection with the services to be
performed by the Transfer Agent under this
Agreement.
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8.2
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The Transfer
Agent shall not be liable, and shall be indemnified by the Portfolios, for
any action taken or omitted by it in good faith in reliance upon any such
instructions or advice or upon any paper or document believed by it to be
genuine and to have been signed by the proper person or persons provided
the Transfer Agent’s actions or omissions meet the standard of care set
forth in paragraph 9. The Transfer Agent shall not be held to
have notice of any change of authority of any person until receipt of
written notice thereof from the Portfolio(s). Nothing in this
section shall be construed as imposing upon the Transfer Agent any
obligation to seek such instructions or advice, or to act in accordance
with such advice when received.
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9.
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LIMITIATION OF
LIABILITY AND
INDEMNIFICATION
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The Transfer Agent
shall exercise reasonable care and diligence in carrying out all of its duties
and obligations under this Agreement, and shall be liable to the Portfolios for
any and all direct claims, liabilities, losses, damages, fines, penalties, and
expenses, including out-of-pocket and incidental expenses and reasonable
attorneys’ fees (“Losses”) suffered or incurred by the Portfolios and to the
extent directly resulting from failure of the Transfer Agent (including any
branch thereof, regardless of location) to exercise such reasonable care and
diligence. Further, the parties agree that any encoding or payment
processing errors shall be governed by this standard of care, and that Section
4-209 of the Uniform Commercial Code is superseded by this Section
9. The Transfer Agent shall be responsible for the performance only
of such duties as are set forth in this Agreement and, except as otherwise
provided under Section 2, shall have no responsibility for the actions or
activities of any other party, including other service providers.
The Transfer Agent
shall have no liability in respect of any loss, damage or expense suffered by
the Portfolios insofar as such loss, damage or expense arises from the
performance of the Transfer Agent’s duties hereunder in reliance upon records
that were maintained for the Portfolios by entities other than the Transfer
Agent prior to the Transfer Agent’s appointment as transfer agent for the
Portfolios. The Transfer Agent shall have no liability for any error
of judgment or mistake of law or for any loss or damage resulting from the
performance or nonperformance of its duties hereunder unless solely caused by or
resulting from the negligence or willful misconduct of the Transfer Agent, its
officers, employees, or agents. The Transfer Agent shall be liable to
a Portfolio only to the extent of the Portfolio’s direct damages.
In no event shall
the Transfer Agent incur liability hereunder if it is prevented, forbidden or
delayed from performing, or omits to perform, any act or thing which this
Agreement provides shall be performed or omitted to be performed, by reason
of:
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(i)
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any provision
of any present or future law or regulation or order of the United States
of America, or any state thereof, or any other country, or political
subdivision thereof or of any court of competent jurisdiction;
or
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(ii)
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events or
circumstances beyond the reasonable control of the Transfer Agent,
including, without limitation, the interruption, suspension or restriction
of trading on or the closure of any securities market, power or other
mechanical or technological failures or interruptions, computer viruses or
communications disruptions, work stoppages, natural disasters, or other
similar events or acts, unless, in each case, such delay or nonperformance
is caused by (A) the negligence, misfeasance or misconduct of the Transfer
Agent, or (B) a malfunction or failure of equipment operated or utilized
by the Transfer Agent other than a malfunction or failure beyond the
Transfer Agent’s control and which could not be reasonably anticipated or
prevented by the Transfer Agent (each such provision, event or
circumstance being a “Force Majeure
Event”).
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Transfer Agent shall notify the Portfolios as
soon as reasonably practicable of any material performance delay or
non-performance in accordance with this paragraph.
In no event shall the Portfolios incur
liability to the Transfer Agent if it is prevented, forbidden or delayed from
performing, or omits to perform, any act or thing which this Agreement provides
shall be performed or omitted to be performed, by reason of a Force Majeure
Event.
The Trust shall
indemnify and hold the Transfer Agent and its directors, officers, agents and
employees (collectively the “Indemnitees”) harmless from and against any and all
Losses that may be imposed on, incurred by, or asserted against, the Indemnitees
or any of them for following any instructions or other directions upon which the
Transfer Agent is authorized to rely pursuant to the terms of this Agreement, or
for any action taken or omitted by it in good faith, provided that such action
or omission is consistent with the standard of care applicable to the Transfer
Agent under this Agreement and the Indemnitees have not acted with negligence or
bad faith or engaged in fraud or willful misconduct in connection with the
Losses in question.
Upon the occurrence of any event which causes
or may cause any Loss to the other party, each party shall (and shall cause its
agents to) use all commercially reasonable efforts and take all reasonable steps
under the circumstances to mitigate the effect of such event and to avoid
continuing harm to the other party.
The limitation of liability and indemnification
contained herein shall survive the termination of this Agreement.
The Transfer Agent
need not maintain any insurance for the benefit of the Trust. The
Transfer Agent shall maintain a commercially reasonable level of errors and
omissions and fidelity insurance in its reasonable discretion, and shall provide
a certificate of such insurance to the Trust upon request from time to
time.
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10.
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ADDITIONAL COVENANTS
OF THE TRUST AND THE TRANSFER
AGENT
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10.1
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The Trust
shall promptly furnish to the Transfer Agent the
following:
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(i)
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A copy of the
resolution of the Board of Trustees of the Trust authorizing the
appointment of the Transfer Agent and the execution and delivery of this
Agreement.
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(ii)
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A copy of the
Declaration of Trust and By-Laws of the Trust and all amendments
thereto.
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10.2
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The Trust
assumes full responsibility for complying with all securities, tax and
other laws, rules and regulations applicable to
it.
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10.3
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The Transfer
Agent hereby agrees to establish and maintain facilities and procedures
for safekeeping of share 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.
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10.4
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In compliance
with the requirements of Rule 31a-3 under the 1940 Act, the Transfer Agent
agrees that all records which it maintains for the Trust shall at all
times remain the property of the Trust, shall be readily accessible during
normal business hours, and shall be promptly surrendered upon the
termination of the Agreement or otherwise on written
request. The Transfer Agent further agrees that all records
that it maintains for the Trust pursuant to Rule 31a-1 under the 1940 Act
will be preserved for the periods prescribed by Rule 31a-2 under the 1940
Act unless any such records are earlier surrendered as provided
herein. Records may be surrendered in either written or
machine-readable form, at the option of the Transfer
Agent.
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11.
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CONFIDENTIALITY AND
PRIVACY
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11.1
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The parties
hereto agree that each shall treat confidentially all confidential
information provided by each party to the other regarding its business and
operations in accordance with this Agreement and represent that each has
implemented controls that are reasonably designed to achieve the purposes
of this Section. All confidential information provided by a
party hereto shall be used by the other party hereto solely for the
purpose of rendering services pursuant to this Agreement and, except as
may be required in carrying out this Agreement, shall not be disclosed to
any affiliated division or entity or third party in any form without the
prior written consent of such providing party. Confidential
information for purposes hereof shall include information traditionally
recognized as confidential, such as financial information, strategies,
security practices, portfolio holdings, portfolio trades, product and
business proposals, business plans, and the like. The
foregoing shall not be applicable to any information that is publicly
available when provided or thereafter becomes publicly available other
than through a breach of this Agreement, that is generally furnished to
third parties by the providing party without confidentiality restriction,
or that is required to be disclosed by any regulator or any auditor of the
parties hereto, by judicial or administrative process or otherwise by
applicable law or regulation. For this purpose, the Portfolios
and any person authorized by the Portfolios shall be permitted to disclose
any information provided by Transfer Agent hereunder to the U.S. SEC (or
its staff) in connection with any inspection or examination or other
action or proceeding. If a party becomes aware that it or its
agents have breached the confidentiality obligations under this Section
11, it will promptly notify the other party in writing of the nature and
extent of such breach.
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The undertakings
and obligations contained in this Section 11.1 shall survive the termination or
expiration of this Agreement.
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11.2
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The Transfer
Agent affirms that it has, and will continue to have throughout the term
of this Agreement, procedures in place that are reasonably designed to
protect the privacy of non-public personal consumer/customer financial
information to the extent required by applicable laws, rules and
regulations.
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11.3
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The Transfer
Agent will implement and maintain a written information security program
that contains appropriate security measures to safeguard the personal
information of the Portfolios’ shareholders, employees, directors and/or
officers that the Transfer Agent receives, stores, maintains, processes or
otherwise accesses in connection with the provision of services
hereunder. For these purposes, “personal information” shall
mean (i) an individual’s name (first initial and last name or first name
and last name), address or telephone number plus (a) social
security number, (b) drivers license number, (c) state identification card
number, (d) debit or credit card number, (e) financial account number or
(f) personal identification number or password that would permit access to
a person’s account or (ii) any combination of the foregoing that would
allow a person to log onto or access an individual’s
account. Notwithstanding the foregoing “personal information”
shall not include information that is lawfully obtained from publicly
available information, or from federal, state or local government records
lawfully made available to the general
public.
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12.
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TERM AND TERMINATION
OF AGREEMENT
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12.1
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This
Agreement shall become effective as of the date first written
above. The Agreement shall remain in effect unless terminated
by either party on one hundred twenty (120) days written
notice. Termination of this Agreement with respect to any given
Portfolio shall in no way affect the continued validity of this Agreement
with respect to any other
Portfolio.
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12.2
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Upon
termination of this Agreement, the Trust shall pay to the Transfer Agent
such compensation and any reimbursable expenses as may be due under the
terms hereof as of the date of such termination, including reasonable
out-of-pocket expenses associated with such
termination.
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13.
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ADDITIONAL
PORTFOLIOS
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The Trust currently
consists of the Portfolio(s) and their respective classes of shares as listed in
Schedule A to this Agreement. In the event that the Trust establishes
one or more additional Portfolio(s) with respect to which it wishes to retain
the Transfer Agent to act as transfer agent hereunder, the Trust shall notify
the Transfer Agent in writing. Upon written acceptance by the
Transfer Agent, such Portfolio(s) shall become subject to the provisions of this
Agreement to the same extent as the existing Portfolio, except to the extent
that such provisions (including those relating to compensation and expenses
payable) may be modified with respect to such Portfolio in writing by the Trust
and the Transfer Agent at the time of the addition of such
Portfolio.
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14.
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NON-ASSIGNABILITY;
SUCCESSORS; PARTNERSHIP
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14.1
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This
Agreement shall not be assigned by either party hereto without the prior
consent in writing of the other
party.
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14.2
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Except as
explicitly stated elsewhere in this Agreement, nothing under this
Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Transfer Agent and the Trust on behalf
of the Portfolios, and the duties and responsibilities undertaken pursuant
to this Agreement shall be for the sole and exclusive benefit of the
Transfer Agent and the Trust on behalf of the Portfolios. This
Agreement shall be binding on and shall inure to the benefit of the
Transfer Agent and the Trust and their respective successors and permitted
assigns.
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14.3
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This
Agreement does not constitute an agreement for a partnership or joint
venture between the Transfer Agent and the
Trust.
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15. MISCELLANEOUS
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15.1
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Amendment. This
Agreement may be modified or amended from time to time by mutual written
agreement of the parties hereto.
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15.2
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15.3
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Services Not
Exclusive. The services of the Transfer Agent are not to
be deemed exclusive, and the Transfer Agent shall be free to render
similar services to others. The Transfer Agent shall be deemed
to be an independent contractor and shall, unless otherwise expressly
provided herein or authorized by the Trust from time to time, have no
authority to act or represent the Trust in any way or otherwise be deemed
an agent of the Trust.
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15.4
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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.
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15.5
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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.
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15.6
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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.
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15.7
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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.
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15.8
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Entire
Agreement. This Agreement (including any supplements,
schedules and attachments hereto) constitutes the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all previous representations, warranties or commitments
regarding the services to be performed hereunder whether oral or
written.
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15.9
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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.
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15.10
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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 all/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 of such reproduction shall likewise be admissible in
evidence.
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15.11
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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.
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(a) If
to Transfer Agent, to:
State Street Bank
and Trust Company
000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Xxxxxx
XxXxxxxx, Transfer Agent Vice President
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
With a copy
to:
State Street Bank
and Trust Company
0
Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx (XXX/0)
Xxxxxx, XX
00000-0000
Attn: Xxxx Xxxxx
Zeven, Esq.
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
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(b)
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If to the
Trust, to:
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0000 Xxxxxx Xxxxxx
Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxxxxx
X. Xxxxxx
Telephone:
000-000-0000
Telecopy: 000-000-0000
With a copy
to:
c/o Capital
Guardian Trust Company
000 X. Xxxx
Xxxxxx
Xxx Xxxxxxx, XX
00000
Attention: Xxx
XxXxxx
Telephone:
000-000-0000
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15.12
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RESERVED.
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15.13
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Limitation of Liability of the
Trustees. A copy of the Certificate of Trust of the
Trust is on file with the Secretary of the State of Delaware, and notice
is hereby given that the Trust’s Agreement and Declaration of Trust is
executed on behalf of the Trustees of the Trust as Trustees and not
individually and that the obligations of the Agreement and Declaration of
Trust is not binding upon any of the Trustees individually but is binding
only upon the assets and property of the applicable
Portfolio.
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15.14
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Several Obligations of each
Portfolio. WITH RESPECT TO ANY OBLIGATIONS OF A
PORTFOLIO OF THE TRUST ARISING OUT OF THIS AGREEMENT, THE TRANSFER AGENT
SHALL LOOK FOR PAYMENT OR SATISFACTION OF ANY SUCH OBLIGATION SOLELY TO
THE ASSETS AND PROPERTY OF THE PORTFOLIO TO WHICH SUCH OBLIGATION RELATES
AS THOUGH THAT PORTFOLIO HAD SEPARATELY CONTRACTED WITH THE TRANSFER AGENT
BY SEPARATE WRITTEN AGREEMENT. THE RIGHTS AND BENEFITS TO WHICH
A GIVEN PORTFOLIO IS ENTITLED HEREUNDER SHALL BE SOLELY THOSE OF SUCH
PORTFOLIO AND NO OTHER PORTFOLIO HEREUNDER SHALL RECEIVE SUCH
BENEFITS.
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[Remainder
of Page Intentionally Left Blank]
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.
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STATE STREET
BANK AND TRUST COMPANY
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By:
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Name:
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Xxxxxxx
Xxxxxxxx
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Title:
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Senior Vice
President, duly authorized
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By:
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Name:
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Xxxxxxx X.
Xxxxxxx
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Title:
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President,
duly authorized
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Schedule
A
LIST OF
PORTFOLIOS
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Fund
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Classes of Shares
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Capital Core
Municipal Fund
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Capital
Short-Term Municipal Fund
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Capital
California Core Municipal Fund
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Capital
California Short-Term Municipal Fund
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Capital Core Bond
Fund
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Accounting
Services Agreement
This Agreement is made
as of April 1, 2010 by and between State Street Bank and Trust
Company, a Massachusetts trust company (the "Accounting
Agent"), and each management investment company identified on Appendix A
hereto (each such management investment company and each management investment
company made subject to this Agreement in accordance with Section 7.10 shall
hereinafter be referred to as a “Fund” and
sometimes collectively as the “Funds”).
W
i t n e s s e t h:
Whereas, each Fund
desires to retain the Accounting Agent to perform certain accounting and
recordkeeping duties on behalf of each Fund and the Accounting Agent is willing
to perform such services upon the terms and conditions hereinafter set
forth.
Whereas, each Fund may
or may not be authorized to issue common stock or shares of beneficial interest
(“Shares”)
in separate series, with each such series representing interests in a separate
portfolio of securities and other assets;
Whereas, each Fund so
authorized intends that this Agreement be applicable to its series of Shares (as
identified on Appendix A hereto (such series together with all other series
subsequently established by such Fund and made subject to this Agreement in
accordance with Section 7.10 below, shall hereinafter be referred to as the
“Portfolio(s)”);
and
Whereas, each Fund not
so authorized intends that this Agreement be applicable to it and that all
references hereinafter to one or more “Portfolio(s)” shall be deemed to refer to
such Fund(s);
Now Therefore, in
consideration of the mutual covenants and agreements contained herein (the
adequacy of which consideration with respect to each party is hereby mutually
admitted), the parties hereto hereby agree as follows:
Section
1. Duties of
the Accounting Agent.
Section
1.1 Books of
Account.
The Accounting
Agent shall maintain the books of account of each Fund and shall perform the
following duties in the manner prescribed by the Fund's currently effective
prospectus, statement of additional information or other governing document,
complete and accurate copies of which have been supplied to the Accounting Agent
(with respect to each Fund, the "Constitutive
Documents"):
(i) Record
general ledger entries;
(ii) Calculate
daily net income;
(iii) Reconcile
activity to the trial balance;
(iv) Calculate
and publish daily net asset value;
(v) Perform
daily cash reconciliations;
(vi) Perform
daily asset reconciliations;
(vii) Process
purchases and redemptions-in-kind;
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(viii)
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Prepare
account balances; and
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(ix)
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Provide
sub-certificates in connection with the certification requirements of the
Xxxxxxxx-Xxxxx Act of 2002 with respect to the services provided by the
Accounting Agent;
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(x)
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Such
additional functions as are agreed upon in writing from time to time by
the Accounting Agent and the applicable
Fund.
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The Fund shall
provide timely prior notice to the Accounting Agent of any modification in the
manner in which such calculations are to be performed pursuant to any revision
to the Constitutive Documents of a Fund and shall supply the Accounting Agent
with complete and accurate copies of all amendments and/or supplements to each
Fund's Constitutive Documents in a timely manner. For purposes of
calculating the net asset value of each Fund, the Accounting Agent shall value
such Fund's portfolio securities utilizing prices obtained from sources
designated by the Fund on a Price Source Authorization substantially in the form
attached hereto as Exhibit A, as the same may be amended by the Fund and the
Accounting Agent from time to time, or otherwise designated by means of Proper
Instructions (as such term is defined in Section 2.2 below) (collectively, the
"Authorized
Price Sources"). The Accounting Agent shall not be responsible
for any revisions to the methods of calculation prescribed by the Constitutive
Documents of any Fund unless and until such revisions are communicated in
writing by the Fund to the Accounting Agent.
Section
1.2 Records.
The Accounting
Agent shall create and maintain all records relating to its activities and
obligations under this Agreement with respect to each Fund as may be required by
an accounting services agent under the Investment Company Act of 1940, as
amended, and in a manner which shall meet the obligations of such Fund under its
Constitutive Documents. All such records shall be the property of the
relevant Fund and shall at all times during the regular business hours of the
Accounting Agent be open for inspection by duly authorized officers, employees
or agents of the Fund and employees and agents of the regulatory agencies having
jurisdiction over the Fund. Subject to Section 3 below, the
Accounting Agent shall preserve the records required to be maintained thereunder
for the period required by law.
Section
1.3 Appointment of
Agents.
The Accounting
Agent may at is own expense employ agents in the performance of its duties and
the exercise of its rights under this Agreement, provided that the employment of
such agents shall not reduce the Accounting Agent's obligations or liabilities
hereunder. No Authorized Price Source, Third Party Agent, any other
agent of a Fund or the Investment Adviser, or any agent that a Fund directs the
Accounting Agent to appoint (a “Directed
Agent”) shall be considered an agent of the Accounting
Agent.
Section
2. Duties of
the Fund.
Section
2.1 Provision
of Information.
The Fund shall
provide to the Accounting Agent, or shall cause a third party to so provide,
certain data with respect to each Fund as a condition to the Accounting Agent's
obligations under Section 1 above. The data required to be provided
with respect to each Fund pursuant to this Section is set forth on Schedule A
hereto, which schedule may be separately amended or supplemented by the Fund and
the Accounting Agent from time to time.
The Accounting
Agent is authorized and instructed to rely upon the information it receives from
the Fund, Authorized Price Sources or any third party (including, without
limitation, the Investment Adviser (as defined below)) authorized by the Fund (a
"Third
Party Agent") to provide such information to the Accounting Agent. The
Accounting Agent shall use reasonable care in processing information. Unless
otherwise provided for in this Agreement, the Accounting Agent shall have no
responsibility to review, confirm or otherwise assume any duty with respect to
the accuracy or completeness of any information supplied to it by a Fund,
Authorized Price Sources or any Third Party Agent.
Section
2.2 Proper
Instructions.
The Fund or any
other person duly authorized by the Fund shall communicate to the Accounting
Agent by means of "Proper
Instructions." The term Proper Instructions shall mean
instructions received by the Accounting Agent from the Fund, Capital Guardian
Trust Company (the "Investment
Adviser"), or any person duly authorized in writing by
them. Such instructions may be in writing signed by the authorized
person or may be in a tested communication or in a communication utilizing
access codes effected between electro-mechanical or electronic devices or may be
by such other means as may be agreed upon from time to time by the Accounting
Agent and the party giving such instructions (including, without limitation,
oral instructions). All oral instructions shall be promptly confirmed
in writing. The Fund and the Investment Adviser shall each cause its
duly authorized representative to certify to the Accounting Agent in writing the
names and specimen signatures of persons authorized to give Proper
Instructions. The Accounting Agent shall be entitled to rely upon the
identity and authority of such persons until it receives written notice from the
Fund or the Investment Adviser, as the case may be, to the
contrary. The Accounting Agent may rely upon any Proper Instruction
reasonably believed by it to be genuine through the exercise of reasonable care
and to have been properly issued by or on behalf of the Fund or the Investment
Adviser, as the case may be. The Fund shall give timely Proper
Instructions to the Accounting Agent in regard to matters affecting accounting
practices and the Accounting Agent's performance pursuant to this
Agreement.
Section
3. Successor
Agent.
If a successor
accounting agent for the Funds shall be appointed, the Accounting Agent shall
upon termination of this Agreement deliver to such successor agent at the office
of the Accounting Agent all books and records of account of each Fund maintained
by the Accounting Agent hereunder. In the event this Agreement is
terminated by either party without the appointment of a successor agent, the
Accounting Agent shall, upon receipt of Proper Instructions, deliver all
properties of the Funds held by the Accounting Agent at the Funds’ office in
accordance with such instructions.
In the event that
no written order designating a successor agent or Proper Instructions shall have
been delivered to the Accounting Agent on or before the effective date of such
termination, then the Accounting Agent shall have the right to deliver to a bank
or trust company, of its own selection, having aggregate capital, surplus and
undivided profits, as shown by its last published report, of not less than
$25,000,000, all property of the Funds held by the Accounting Agent
hereunder. Thereafter, such bank or trust company shall be the
successor of the Accounting Agent under this Agreement.
Section
4. Standard
of Care; Limitation on Liability.
The Accounting
Agent shall exercise reasonable care and diligence in carrying out all of its
duties and obligations under this Agreement, and shall be liable to a Fund for
any and all direct claims, liabilities, losses, damages, fines, penalties, and
expenses, including out-of-pocket and incidental expenses and reasonable
attorneys’ fees (“Losses”) suffered or incurred by such Fund and to the extent
directly resulting from failure of the Accounting Agent (including any branch
thereof, regardless of location) to exercise such reasonable care and
diligence. The
Accounting Agent shall be liable to a Fund only to the extent of the Fund’s
direct damages.
Accounting Agent
shall be liable to a Fund for any direct Losses resulting from the action or
inaction of any agent appointed by Accounting Agent (other than Directed Agents)
in accordance with Section 1.3 to the same extent that Accounting Agent would be
liable to such Fund hereunder if the Accounting Agent had performed such action
or inaction.
In no event shall the Accounting Agent incur
liability hereunder if it is prevented, forbidden or delayed from performing, or
omits to perform, any act or thing which this Agreement provides shall be
performed or omitted to be performed, by reason of: (i) any provision
of any present or future law or regulation or order of the United States of
America, or any state thereof, or any other country, or political subdivision
thereof or of any court of competent jurisdiction; or (ii) events or
circumstances beyond the reasonable control of the Accounting Agent, including,
without limitation, the interruption, suspension or restriction of trading on or
the closure of any securities market, power or other mechanical or technological
failures or interruptions, computer viruses or communications disruptions, work
stoppages, natural disasters, or other similar events or acts, unless, in each
case, such delay or nonperformance is caused by (A) the negligence, misfeasance
or misconduct of the Accounting Agent, or (B) a malfunction or failure of
equipment operated or utilized by the Accounting Agent other than a malfunction
or failure beyond the Accounting Agent’s control and which could not be
reasonably anticipated or prevented by the Accounting Agent (each such
provision, event or circumstance being a “Force Majeure
Event”). Accounting Agent shall notify the Funds as soon as
reasonably practicable of any material performance delay or non-performance in
accordance with this paragraph.
In no event shall the Funds incur liability to
the Accounting Agent if it is prevented, forbidden or delayed from performing,
or omits to perform, any act or thing which this Agreement provides shall be
performed or omitted to be performed, by reason of a Force Majeure
Event.
Each Fund and any
Third Party Agents or Authorized Price Sources from which the Accounting Agent
shall receive or obtain certain records, reports and other data included in the
accounting services provided hereunder are solely responsible for the contents
of such information, including, without limitation, the accuracy
thereof. The Accounting Agent shall have no responsibility to review,
confirm or otherwise assume any duty with respect to the accuracy or
completeness of any such information, but shall exercise reasonable
care in using such information and shall be without liability for any loss or
damage suffered by any Fund as a result of the Accounting Agent's reasonable
reliance on and utilization of such information, except as otherwise required by
the terms of the Price Source Authorization form attached hereto as Exhibit A
with respect to the use of data obtained from Authorized Price
Sources. The Accounting Agent shall have no responsibility and shall
be without liability for any loss or damage caused by the failure of a Fund, an
Authorized Price Source or any Third Party Agent to provide it with the
information required by Section 2.1 hereof except as may arise from the
Accounting Agent’s lack of reasonable care in performing the agreed-upon
tolerance checks as to the data furnished and calculating the net asset value of
a Fund in accordance with the data furnished and the Accounting Agent’s
performance of the agreed upon tolerance checks.
The Accounting
Agent need not maintain any insurance for the benefit of the
Funds. The Accounting Agent shall maintain a commercially reasonable
level of errors and omissions and fidelity insurance in its reasonable
discretion, and shall provide a certificate of such insurance to the Funds upon
request from time to time.
Upon the occurrence
of any event which causes or may cause any Loss to the other party, each party
shall (and shall cause its agents to) use all commercially reasonable efforts
and take all reasonable steps under the circumstances to mitigate the effects of
such event and to avoid continuing harm to the other party.
Section
5. Indemnification.
Each Fund shall
indemnify and hold the Accounting Agent and its directors, officers, agents and
employees (collectively the “Indemnitees”) harmless from and against any and all
Losses that may be imposed on, incurred by, or asserted against, the Indemnitees
or any of them for following any instructions or other directions upon which the
Accounting Agent is authorized to rely pursuant to the terms of this Agreement,
or for any action taken or omitted by it in good faith, provided that such
action or omission is consistent with the standard of care applicable to the
Accounting Agent under this Agreement and the Indemnitees have not acted with
negligence or bad faith or engaged in fraud or willful misconduct in connection
with the Losses in question.
Section
6. Data
Access and Proprietary Information.
Each Fund
acknowledges that the data bases, computer programs, screen formats, report
formats, interactive design techniques, documentation manuals and other
information which may be furnished to it by the Accounting Agent as
part of the Fund's ability to access certain Funds-related data ("Customer
Data") maintained by the Accounting Agent on data bases under the control
and ownership of the Accounting Agent ("Data Access
Services") constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary
Information") of substantial value to the Accounting
Agent. Each Fund agrees to treat all Proprietary Information as
proprietary to the Accounting Agent and further agrees that it shall not divulge
any Proprietary Information to any person or organization except as may be
provided hereunder.
Proprietary
Information shall not include all or any portion of any of the foregoing items
that are or become publicly available without breach of this Agreement; that are
released for general disclosure by a written release by the Accounting Agent; or
that are already in the possession of the receiving party at the time of receipt
without obligation of confidentiality or breach of this Agreement. Proprietary
Information may be disclosed to the Funds’ officers, trustees, employees,
agents, contractors, auditors on a strictly need-to-know basis and as required
by law.
Each party shall
take reasonable efforts to advise its employees and agents of their obligations
pursuant to this Section 6. The obligations of this Section shall
survive any earlier termination of this Agreement.
Each Fund hereby
acknowledges that the data and information it may access from the Accounting
Agent utilizing the Data Access Services will be unaudited if on a real time
basis. All information available on a current day basis will be considered real
time other than the provision of the net asset value and net asset value per
unit.
If the transactions
available to the Fund include the ability to originate electronic instructions
to the Accounting Agent in order to (i) effect the transfer or movement of cash
or shares or (ii) transmit shareholder information or other information (such
transactions constituting a "COEFI"),
then in such event the Accounting 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 Accounting Agent from time to time and the
Accounting Agent has met the standard of care required of it under Section 4
hereof.
Each Fund
acknowledges that the disclosure of any Proprietary Information will immediately
give rise to continuing irreparable injury to the Accounting Agent or its
third-party licensors and vendors inadequately compensable in damages at law and
that Accounting Agent shall be entitled to seek immediate injunctive relief
against the breach or threatened breach of any of the foregoing undertakings, in
addition to any other legal remedies which may be available. Each
Fund agrees to discontinue use of Data Access Services, if requested, for any
security reasons cited by the Accounting Agent. Accounting Agent may restrict
access of the Data Access Services by the Fund for security reasons or
noncompliance with the terms of this Section 6.
Section
7. General.
Section
7.1 Term of
Agreement.
This Agreement shall be effective from the date
first stated above and shall remain in full force and effect until terminated as
hereinafter provided. Either party may, in its discretion, terminate
this Agreement for any reason by giving the other party at least one hundred
twenty (120) days prior written notice of termination. If the
Accounting Agent terminates this Agreement and the Fund notifies the Accounting
Agent that the Fund is unable, despite its diligent efforts, to appoint a
successor Accounting Agent within such one hundred twenty (120) day period, the
Accounting Agent shall at the Fund’s written request continue to provide
services hereunder for up to an additional one hundred twenty (120)-day period
and shall be entitled to reasonable compensation for its services during such
period. Termination of this Agreement with respect to any one
particular Fund or Portfolio shall in no way affect the rights and duties under
this Agreement with respect to any other Fund or Portfolio.
Section
7.2 Fees and
Expenses.
Each Fund agrees to
pay the Accounting Agent such reasonable compensation for its services and
expenses as may be agreed upon from time to time in a written fee schedule
approved by the Funds and the Accounting Agent.
Section
7.3 Confidentiality.
The parties hereto
agree that each shall treat confidentially all confidential information provided
by each party to the other regarding its business and operations in accordance
with this Agreement and represent that each has implemented controls that are
reasonably designed to achieve the purposes of this section. All confidential
information provided by a party hereto shall be used by the other party hereto
solely for the purpose of rendering services pursuant to this Agreement and,
except as may be required in carrying out this Agreement, shall not be disclosed
to any affiliated division or entity or third party in any form without the
prior written consent of such providing party. Confidential
information for purposes hereof shall include information traditionally
recognized as confidential, such as financial information, strategies, security
practices, portfolio holdings, portfolio trades, product and business proposals,
business plans, and the like. The foregoing
shall not be applicable to any information that is publicly available when
provided or thereafter becomes publicly available other than through a breach of
this Agreement, that is generally furnished to third parties by the providing
party without confidentiality restriction, or that is required to be disclosed
by any regulator or any auditor of the parties hereto, by judicial or
administrative process or otherwise by applicable law or
regulation. For this purpose, the Funds and any person authorized by
the Funds shall be permitted to disclose any information provided by Accounting
Agent hereunder to the U.S. Securities and Exchange Commission (or its staff) in
connection with any inspection or examination or other action or
proceeding. If a party becomes aware that it or its agents have
breached the confidentiality obligations under this Section 7.3, it will
promptly notify the other party in writing of the nature and extent of such
breach.
Section 7.4 Accounting Agent’s Records;
Access to Records.
The Accounting
Agent shall provide any assistance reasonably requested by the Funds in the
preparation of reports to the Funds’ shareholders and others, audits of
accounts, and other ministerial matters of like nature. The
Accounting Agent shall maintain complete and accurate records with respect to
the services provided hereunder as required by the rules and regulations of the
U.S. Securities and Exchange Commission applicable to investment companies
registered under the 0000 Xxx. All such books and records maintained
by Accounting Agent shall be made available to the Funds upon request and shall,
where required to be maintained by Rule 31a-1 under the 1940 Act, be preserved
for the periods prescribed in Rule 31a-2 under the 1940 Act. The
Accounting Agent shall allow the Funds' independent public accountant reasonable
access to the records of the Accounting Agent relating to the services provided
under this Agreement as is required in connection with their examination of
books and records pertaining to the Funds' affairs. Subject to
restrictions under applicable law, the Accounting Agent shall also obtain an
undertaking to permit the Funds' independent public accountants reasonable
access to the records of any agents which has physical possession of any records
as may be required in connection with the examination of the Funds' books and
records. Upon reasonable request of the Funds, the Accounting Agent
shall provide the Funds with a copy of the Accounting Agent’s reports prepared
in compliance with the requirements of Statement of Auditing Standards No. 70
issued by the American Institute of Certified Public Accountants, as it may be
amended from time to time (commonly referred to as a “SAS 70
report”). The Accounting Agent shall use commercially reasonable
efforts to obtain and furnish the Funds with such similar reports as the Funds
may reasonably request with respect to each agent authorized by the Funds to act
on the Accounting Agent’s behalf. Except as respects the Accounting
Agent’s SAS 70 Report, as to which there shall be no charge, the the Funds shall
pay reasonable expenses of the Accounting Agent and any third party agent under
this provision. The Accounting Agent shall use commercially
reasonable efforts to provide the Funds and agents with such reports as the the
Funds may reasonably request or otherwise reasonably require to fulfill its
duties under rule 38a-1 of the 1940 Act, and, in any case, provide the Funds
with at least the same level of such reporting as the Accounting Agent furnishes
to its other mutual fund clients.
Section
7.5 Notices.
All notices shall
be in writing and shall be deemed given when delivered in person, by facsimile,
by overnight delivery through a commercial courier service, or by registered or
certified mail, return receipt requested. Notices shall be addressed
to each party at its address set forth below, or such other address as the
recipient may have specified by earlier notice to the sender.
If to the
Accounting Agent: State Street Bank and Trust
Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Senior Vice
President
Telephone: 000-000-0000
Telecopy: 000-000-0000
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If to a
Fund:
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c/o Capital
Guardian Trust Company
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0000 Xxxxxx Xxxxxx
Xxxxx
Xxxxxx,
XX 00000
Attention: Xxxxxxxx
X. Xxxxxx
Telephone:
000-000-0000
Telecopy: 000-000-0000
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with a copy
to:
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c/o Capital
Guardian Trust Company
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000 X. Xxxx
Xxxxxx
Xxx Xxxxxxx,
XX 00000
Attention: Xxx
XxXxxx
Telephone:
000-000-0000
Section
7.6 Assignment;
Successors.
This Agreement
shall not be assigned by either party without the prior written consent of the
other party.
Section
7.7 Entire
Agreement.
This Agreement
(including all schedules and attachments hereto) constitutes the entire
Agreement between the parties with respect to its subject matter.
Section
7.8 Amendments.
No amendment to
this Agreement shall be effective unless it is in writing and signed by a duly
authorized representative of each party. The term "Agreement", as
used herein, includes all schedules and attachments hereto and any future
written amendments, modifications, or supplements made in accordance
herewith.
Section
7.9 reserved.
Section 7.10 Additional
Funds.
In the event that any management investment
company in addition to those listed on Appendix A hereto desires to have the
Accounting Agent render services as accounting agent under the terms hereof, it
shall so notify the Accounting Agent in writing, and if the Accounting Agent
agrees in writing to provide such services, such management investment company
shall become a Fund hereunder and be bound by all terms and conditions and
provisions hereof with respect to such Fund.
Section
7.11 Additional
Portfolios.
In the event that any Fund establishes one or
more series of Shares in addition to those set forth on Appendix A hereto with
respect to which it desires to have the Accounting Agent render services as
accounting agent under the terms hereof, it shall so notify the Accounting Agent
in writing, and if the Accounting Agent agrees in writing to provide such
services, such series of Shares shall become a Portfolio hereunder.
Section
7.12 Headings
Not Controlling.
Headings used in
this Agreement are for reference purposes only and shall not be deemed a part of
this Agreement.
Section
7.13 Survival.
All provisions
regarding indemnification, confidentiality, warranty, liability and limits
thereon shall survive following the expiration or termination of this
Agreement.
Section
7.14 Severability.
In the event any
provision of this Agreement is held illegal, void or unenforceable, the balance
shall remain in effect.
Section
7.15 Counterparts.
This Agreement may
be simultaneously executed in several counterparts, each of which shall be
deemed to be an original, and all such counterparts shall together constitute
but one and the same Agreement.
Section
7.16 Governing
Law.
This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York.
Section
7.17 Limitation of Liability of the
Trustees.
A copy of the
Certificate of Trust of the Fund is on file with the Secretary of the State of
Delaware, and notice is hereby given that the Fund’s Agreement and Declaration
of Trust is executed on behalf of the Trustees of the Funds as Trustees and not
individually and that the obligations of the Fund’s Agreement and Declaration of
Trust is not binding upon any of the Trustees individually but is binding only
upon the assets and property of the applicable Fund.
Section
7.18 Several Obligations of each
Portfolio.
WITH RESPECT TO ANY OBLIGATIONS OF A PORTFOLIO
OF A FUND ARISING OUT OF THIS AGREEMENT, ACCOUNTING AGENT SHALL LOOK FOR PAYMENT
OR SATISFACTION OF ANY SUCH OBLIGATION SOLELY TO THE ASSETS AND PROPERTY OF THE
PORTFOLIO TO WHICH SUCH OBLIGATION RELATES AS THOUGH THAT PORTFOLIO HAD
SEPARATELY CONTRACTED WITH ACCOUNTING AGENT BY SEPARATE WRITTEN
AGREEMENT. THE RIGHTS AND BENEFITS TO WHICH A GIVEN PORTFOLIO IS
ENTITLED HEREUNDER SHALL BE SOLELY THOSE OF SUCH PORTFOLIO AND NO OTHER
PORTFOLIO HEREUNDER SHALL RECEIVE SUCH BENEFITS.
Section
7.19 Personal
Information.
The Accounting Agent will implement and
maintain a written information security program that contains appropriate
security measures to safeguard the personal information of the Funds’
shareholders, employees, directors and/or officers that the Accounting Agent
receives, stores, maintains, processes or otherwise accesses in connection with
the provision of services hereunder. For these purposes, “personal
information” shall mean (i) an individual’s name (first initial and last name or
first name and last name), address or telephone number plus (a) social
security number, (b) drivers license number, (c) state identification card
number, (d) debit or credit card number, (e) financial account number or (f)
personal identification number or password that would permit access to a
person’s account or (ii) any combination of the foregoing that would allow a
person to log onto or access an individual’s account. Notwithstanding the
foregoing “personal information” shall not include information that is lawfully
obtained from publicly available information, or from federal, state or local
government records lawfully made available to the general public.
[Remainder of Page Intentionally
Blank]
Signature Page
In Witness Whereof, the
parties hereto have duly executed this Agreement as of the day and year first
written above.
State
Street Bank and Trust Company
By:
____________________________________
Name:
Xxxxxx X. Xxxxxxxxxx
Title:
Vice Chairman
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Each
of the Entities Set Forth on
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Appendix A
Hereto
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By:
____________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
President
Appendix
A
Management Investment
Companies and Portfolios thereof
Capital Core
Municipal Fund
Capital Short-Term
Municipal Fund
Capital California
Core Municipal Fund
Capital California
Short-Term Municipal Fund
Capital Core Bond
Fund
Schedule
A
Required
Information Responsible
Party
Portfolio Trade
Authorizations Investment
Adviser
Currency
Transactions Investment
Adviser
Cash Transaction
Report
Custodian for the
Fund
Portfolio
Prices
Third Party
Vendors/Investment Adviser
Exchange
Rates
Third Party
Vendors/Investment Adviser
Capital Stock
Activity
Report Transfer
Agent of the Fund
Dividend/Distribution
Schedule Investment
Adviser
Dividend/Distribution
Declaration Investment
Adviser/Manager
Dividend
Reconciliation/Confirmation Transfer
Agent for the Fund
Corporate
Actions
Third Party Vendors/Custodian
Service Provider
Fee
Schedules Investment
Adviser
Expense
Budget
Investment Adviser/Manager
Amortization
Policy
Investment Adviser
Accounting
Policy/Complex
Investments Investment
Adviser
Audit Management
Letter
Auditor for the Fund
Annual Shareholder
Letter
Investment Advisor
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Annual/Semi-Annual
Reports
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Investment
Adviser
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Exhibit
A
to Accounting Services
Agreement
Dated as of April 1,
2010
Price Source
Authorization
Pursuant to the
terms of the Accounting Services Agreement, each Fund has directed the
Accounting Agent to calculate the net asset value of each Fund as is included
thereunder (the “Fund”)
and to perform certain other accounting services in accordance with the
Constitutive Documents (as such term is defined therein) of each
Fund. Each Fund hereby authorizes and instructs the Accounting Agent
to utilize the pricing sources specified on the attached Authorization Matrix
(as amended from time to time) as sources for securities prices in calculating
the net asset value of each Fund and acknowledges and agrees that the Accounting
Agent shall have no liability for any incorrect data provided by pricing sources
selected by the Fund or otherwise authorized by Proper Instructions (as such
term is defined in the Accounting Services Agreement), except as may arise from
the Accounting Agent’s lack of reasonable care in performing the agreed-upon
tolerance checks as to the data furnished and calculating the net asset value of
a Fund in accordance with the data furnished and the Accounting Agent’s
performance of the agreed upon tolerance checks.
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EACH FUND
LISTED ON APPENDIX A HERETO
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By: _________________________________
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Name: Xxxxxxx
X. Xxxxxxx
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Title:
President
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The foregoing
authorization is hereby accepted.
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STATE STREET
BANK AND TRUST COMPANY
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By: _________ _
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Name:
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Title:
This Administration Agreement (“Agreement”)
dated and effective as of April 1, 2010, is by and between State Street Bank and
Trust Company, a Massachusetts trust company (the “Administrator”), and Capital
Private Client Services Funds, a Delaware statutory trust (the
“Trust”).
WHEREAS, the Trust is an open-end management
investment company currently comprised of multiple series (each, a “Fund” and
collectively, the “Funds”), and is registered with the U.S. Securities and
Exchange Commission (“SEC”) by means of a registration statement (“Registration
Statement”) under the Securities Act of 1933, as amended (“1933 Act”), and the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Trust desires to retain the
Administrator to furnish certain administrative services to the Trust, and the
Administrator is willing to furnish such services, on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the
premises and mutual covenants herein contained, the parties hereto agree as
follows:
1. Appointment
of Administrator
The Trust hereby appoints the Administrator to
act as administrator to the Trust for purposes of providing certain
administrative services for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to
render the services stated herein.
The Trust currently consists of the Fund(s) and
their respective classes of shares as listed in Schedule A to this
Agreement. In the event that the Trust establishes one or more
additional Fund(s) with respect to which it wishes to retain the Administrator
to act as administrator hereunder, the Trust shall notify the Administrator in
writing. Upon written acceptance by the Administrator, such Fund(s)
shall become subject to the provisions of this Agreement to the same extent as
the existing Fund, except to the extent that such provisions (including those
relating to compensation and expenses payable) may be modified with respect to
such Fund in writing by the Trust and the Administrator at the time of the
addition of such Fund.
2. Delivery of
Documents
The Trust will promptly deliver to the
Administrator copies of each of the following documents and all future
amendments and supplements, if any:
a. The
Trust’s Declaration of Trust and By-laws;
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b.
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The Trust’s
currently effective Registration Statement under the 1933 Act and the 1940
Act and each Prospectus and Statement of Additional Information (“SAI”)
relating to the Fund(s) and all amendments and supplements thereto as in
effect from time to time;
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c.
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Copies of the
resolutions of the Board of Trustees of the Trust (the “Board”) certified
by the Trust’s Secretary authorizing (1) the Trust to enter into this
Agreement and (2) certain individuals on behalf of the Trust to (a) give
instructions to the Administrator pursuant to this Agreement and (b) sign
checks and pay expenses;
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d.
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A copy of the
investment advisory and service agreement between the Trust and its
investment adviser; and
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e.
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Such other
certificates, documents or opinions which the Administrator may, in its
reasonable discretion, deem necessary or appropriate in the proper
performance of its duties.
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3. Representations
and Warranties of the Administrator
The Administrator represents and warrants to
the Trust that:
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a.
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It is a
Massachusetts trust company, duly organized and existing under the laws of
The Commonwealth of Massachusetts;
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b.
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It has the
corporate power and authority to carry on its business in The Commonwealth
of Massachusetts;
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c.
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All requisite
corporate proceedings have been taken to authorize it to enter into and
perform this Agreement;
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d.
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No legal or
administrative proceedings have been instituted or threatened which would
materially impair the Administrator’s ability to perform its duties and
obligations under this Agreement;
and
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e.
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Its entrance
into this Agreement shall not cause a material breach or be in material
conflict with any other agreement or obligation of the Administrator or
any law or regulation applicable to
it.
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4. Representations
and Warranties of the Trust
The Trust represents and warrants to the
Administrator that:
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a.
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It is a
statutory trust, duly organized, existing and in good standing under the
laws of the State of Delaware;
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b.
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It has the
requisite power and authority under applicable laws and by its Declaration
of Trust and By-laws to enter into and perform this
Agreement;
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c.
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All requisite
proceedings have been taken to authorize it to enter into and perform this
Agreement;
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d.
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It is an
investment company properly registered with the SEC under the 1940
Act;
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e.
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The
Registration Statement has been filed and will be effective and remain
effective during the term of this Agreement. The Trust also
warrants to the Administrator that as of the effective date of this
Agreement, all necessary filings under the securities laws of the states
in which the Trust offers or sells its shares have been
made;
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f.
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No legal or
administrative proceedings have been instituted or threatened which would
materially impair the Trust’s ability to perform its duties and
obligations under this Agreement;
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g.
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Its entrance
into this Agreement will not cause a material breach or be in material
conflict with any other agreement or obligation of the Trust or any law or
regulation applicable to it; and
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h.
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As of the
close of business on the date of this Agreement, the Trust is authorized
to issue unlimited shares of beneficial
interest.
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5.
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Administration
Services
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The Administrator shall provide the following
services, subject to the authorization and direction of the Trust and, in each
case where appropriate, the review and comment by the Trust’s independent
accountants and legal counsel and in accordance with procedures which may be
established from time to time between the Trust and the
Administrator:
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Fund Administration
Treasury Services
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a.
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Prepare for
the review by designated officer(s) of the Trust financial information
regarding the Fund(s) that will be included in the Trust’s semi-annual and
annual shareholder reports, Form N-Q reports and other quarterly reports
(as mutually agreed upon), including tax footnote disclosures where
applicable;
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b.
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Participate
in the audit of the Trust’s financial statements by the Trust’s
independent accountants, including the preparation of supporting audit
workpapers and other schedules, and make such reports to the Board (or the
Audit Committee of the Board (“Audit Committee”)) concerning the
performance of the independent accountants as the Board or the Audit
Committee may reasonably request;
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c.
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Prepare for
the review by designated officer(s) of the Trust the Trust’s periodic
financial reports required to be filed with the SEC on Form N-SAR and
financial information required by Form N-1A, proxy statements and such
other reports, forms or filings as may be mutually agreed
upon;
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d.
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As mutually
agreed, provide financial and other data on a quarterly basis for
presentation to the Board;
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e.
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As mutually
agreed, prepare for the review by designated officer(s) of the Trust
annual fund expense budgets, perform accrual analyses and rollforward
calculations and recommend changes to fund expense accruals on a periodic
basis, arrange for payment of the Trust’s expenses, review calculations of
fees paid to the Trust’s investment adviser, custodian, fund accountant
and transfer agent, obtain authorization of accrual changes and expense
payments, and provide expense examples for the Trust’s
Prospectus;
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f.
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Provide
dividend and distribution projections for the
Funds;
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g.
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To the extent
requested by the Funds, prepare and disseminate vendor survey
information;
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h.
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Provide
information, including information related to the calculation of fees, to
be included in the Funds’ Rule 24f-2
filings;
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i.
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Provide
sub-certificates in connection with the certification requirements of the
Xxxxxxxx-Xxxxx Act of 2002 with respect to the services provided by the
Administrator;
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j.
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Maintain
certain books and records of the Trust as required under Rule 31a-1(b) of
the 1940 Act, as may be mutually agreed
upon;
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k.
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Consult with
the Trust’s officers, independent accountants, legal counsel, custodian,
fund accountant, distributor, and transfer agent in establishing the
accounting policies of the Trust;
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Fund Administration
Tax Services
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a. Compute
tax basis provisions for both excise and income tax purposes;
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b.
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Prepare for
the review by designated officer(s) of the Trust certain year-end
shareholder reporting information as mutually agreed upon, including
income by state, treasury income and tax adjustments as they pertain to
the Investment Company Institute year-end dividend reclass
schedule;
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c.
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Prepare the
Fund(s)’ federal, state, and local income tax returns and extension
requests for review and for execution and filing by the Trust’s
independent accountants and execution and filing by the Trust’s treasurer,
including Form 1120-RIC and Form 8613;
and
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d.
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Review annual
minimum distribution calculations (income and capital gain) prior to their
declaration.
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The Administrator
shall perform such other services for the Trust that are mutually agreed to by
the parties from time to time, for which the Trust will pay such fees as may be
mutually agreed upon, including the Administrator’s reasonable out-of-pocket
expenses. The provision of such services shall be subject to the
terms and conditions of this Agreement.
The Administrator shall provide the office
facilities and the personnel determined by it to perform the services
contemplated herein.
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6.
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Fees;
Expenses; Expense
Reimbursement
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The Administrator shall receive from the Trust
such compensation for the Administrator’s services provided pursuant to this
Agreement as may be agreed to from time to time in a written Fee Schedule
approved by the parties. The fees are accrued daily and billed
monthly and shall be due and payable upon receipt of the
invoice. Upon the termination of this Agreement before the end of any
month, the fee for the part of the month before such termination shall be
prorated according to the proportion which such part bears to the full monthly
period and shall be payable upon the date of termination of this
Agreement. In addition, the Trust shall reimburse the Administrator
for its reasonable out-of-pocket costs incurred in connection with this
Agreement. All rights of compensation and expense reimbursement under
this Agreement for services performed as of the termination date shall survive
the termination of this Agreement.
The Trust agrees promptly to reimburse the
Administrator for any equipment and supplies specially ordered by or for the
Trust through the Administrator and for any other expenses not contemplated by
this Agreement that the Administrator may incur on the Trust’s behalf at the
Trust’s request or with the Trust’s consent.
The Trust will bear all expenses that are
incurred in its operation and not specifically assumed by the
Administrator. Expenses to be borne by the Trust, include, but are
not limited to: organizational expenses; cost of services of
independent accountants and outside legal and tax counsel (including such
counsel’s review of the Registration Statement, Form N-CSR, Form N-Q, Form N-PX,
Form N-SAR, proxy materials, federal and state tax qualification as a regulated
investment company and other notices, registrations, reports, filings and
materials prepared by the Administrator under this Agreement); cost of any
services contracted for by the Trust directly from parties other than the
Administrator; cost of trading operations and brokerage fees, commissions and
transfer taxes in connection with the purchase and sale of securities for the
Trust; investment advisory fees; taxes, insurance premiums and other fees and
expenses applicable to its operation; costs incidental to any meetings of
shareholders including, but not limited to, legal and accounting fees, proxy
filing fees and the costs of preparation (e.g., typesetting, page changes and
all other print vendor and XXXXX charges, collectively referred to herein as
“Preparation”), printing, distribution and mailing of any proxy materials; costs
incidental to Board meetings, including fees and expenses of Board members; the
salary and expenses of any officer, trustee or employee of the Trust; costs of
Preparation, printing, distribution and mailing, as applicable, of the Trust’s
Registration Statements and any amendments and supplements thereto and
shareholder reports; cost of Preparation and filing of the Trust’s tax returns,
Form N-1A, Form N-CSR, Form N-Q, Form N-PX and Form N-SAR, and all notices,
registrations and amendments associated with applicable federal and state tax
and securities laws; all applicable registration fees and filing fees required
under federal and state securities laws; the cost of fidelity bond and
D&O/E&O liability insurance; and the cost of independent pricing
services used in computing the Fund(s)’ net asset value.
The Administrator is authorized to and may
employ, associate or contract with such person or persons as the Administrator
may deem desirable to assist it in performing its duties under this Agreement;
provided, however, that the compensation of such person or persons shall be paid
by the Administrator and that the Administrator shall be as fully responsible to
the Trust for the acts and omissions of any such person or persons as it is for
its own acts and omissions.
7. Administrator’s
Records; Access to Records.
The Administrator
shall provide any assistance reasonably requested by the Trust in the
preparation of reports to the Trust’s shareholders and others, audits of
accounts, and other ministerial matters of like nature. The
Administrator shall maintain complete and accurate records with respect to the
services provided hereunder as required by the rules and regulations of the U.S.
Securities and Exchange Commission applicable to investment companies registered
under the 0000 Xxx. All such books and records maintained by
Administrator shall be made available to the Trust upon request and shall, where
required to be maintained by Rule 31a-1 under the 1940 Act, be preserved for the
periods prescribed in Rule 31a-2 under the 1940 Act. The
Administrator shall allow the Trust's independent public accountant reasonable
access to the records of the Administrator relating to the services provided
under this Agreement as is required in connection with their examination of
books and records pertaining to the Trust's affairs. Subject to restrictions
under applicable law, the Administrator shall also obtain an undertaking to
permit the Trust's independent public accountants reasonable access to the
records of any agents which has physical possession of any records as may be
required in connection with the examination of the Trust's books and
records. Upon reasonable request of the Trust, the Administrator
shall provide the Trust with a copy of the Administrator’s reports prepared in
compliance with the requirements of Statement of Auditing Standards No. 70
issued by the American Institute of Certified Public Accountants, as it may be
amended from time to time (commonly referred to as a “SAS 70
report”). The Administrator shall use commercially reasonable efforts
to obtain and furnish the Trust with such similar reports as the Trust may
reasonably request with respect to each agent authorized by the Trust to act on
the Administrator’s behalf. Except as respects the Administrator’s
SAS 70 Report, as to which there shall be no charge, the Trust shall pay
reasonable expenses of the Administrator and any third party agent under this
provision. The Administrator shall use commercially reasonable
efforts to provide the Trust and agents with such reports as the Trust may
reasonably request or otherwise reasonably require to fulfill its duties under
Rule 38a-1 of the 1940 Act, and, in any case, provide the Trust with at least
the same level of such reporting as the Administrator furnishes to its other
mutual fund clients. The Administrator shall provide the Trust, at no cost for
the first year of this Agreement, the report on the results of the most recent
attestation examination with
respect to the Administrator’s internal controls over compliance performed by an
independent accounting firm.
8. Instructions
and Advice
a. At
any time, the Administrator may apply to any officer of the Trust or his or her
designee for instructions and may consult with its own legal counsel or outside
counsel for the Trust or the independent accountants for the Trust with respect
to any matter arising in connection with the services to be performed by the
Administrator under this Agreement.
b. The
Administrator shall not be liable, and shall be indemnified by the Trust, for
any action taken or omitted by it in good faith in reliance upon any such
instructions or advice or upon any paper or document believed by it to be
genuine and to have been signed by the proper person or persons provided the
Administrator’s actions or omissions meet the standard of care set forth in
paragraph 9. The Administrator shall not be held to have notice of
any change of authority of any person until receipt of written notice thereof
from the Fund(s). Nothing in this section shall be construed as
imposing upon the Administrator any obligation to seek such instructions or
advice, or to act in accordance with such advice when received.
9. Limitation
of Liability and Indemnification
The Administrator shall exercise reasonable
care and diligence in carrying out all of its duties and obligations under this
Agreement, and shall be liable to the Funds for any and all direct claims,
liabilities, losses, damages, fines, penalties, and expenses, including
out-of-pocket and incidental expenses and reasonable attorneys’ fees (“Losses”)
suffered or incurred by the Funds and to the extent directly resulting from
failure of the Administrator (including any branch thereof, regardless of
location) to exercise such reasonable care and diligence. The Administrator shall
be responsible for the performance only of such duties as are set forth in this
Agreement and, except as otherwise provided under Section 6, shall have no
responsibility for the actions or activities of any other party, including other
service providers.
The Administrator
shall have no liability in respect of any loss, damage or expense suffered by
the Trust insofar as such loss, damage or expense arises from the performance of
the Administrator’s duties hereunder in reliance upon records that were
maintained for the Trust by entities other than the Administrator prior to the
Administrator’s appointment as administrator for the Trust. The
Administrator shall have no liability for any error of judgment or mistake of
law or for any loss or damage resulting from the performance or nonperformance
of its duties hereunder unless solely caused by or resulting from the negligence
or willful misconduct of the Administrator, its officers, employees, or agents.
The Administrator shall be liable to the Trust only to the extent of the Trust’s
direct damages.
In no event shall the Administrator incur
liability hereunder if it is prevented, forbidden or delayed from performing, or
omits to perform, any act or thing which this Agreement provides shall be
performed or omitted to be performed, by reason of:
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(i)
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any provision
of any present or future law or regulation or order of the United States
of America, or any state thereof, or any other country, or political
subdivision thereof or of any court of competent jurisdiction;
or
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(ii)
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events or
circumstances beyond the reasonable control of the Administrator,
including, without limitation, the interruption, suspension or restriction
of trading on or the closure of any securities market, power or other
mechanical or technological failures or interruptions, computer viruses or
communications disruptions, work stoppages, natural disasters, or other
similar events or acts, unless, in each case, such delay or nonperformance
is caused by (A) the negligence, misfeasance or misconduct of the
Administrator, or (B) a malfunction or failure of equipment operated or
utilized by the Administrator other than a malfunction or failure beyond
the Administrator’s control and which could not be reasonably anticipated
or prevented by the Administrator (each such provision, event or
circumstance being a “Force Majeure
Event”).
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Administrator shall notify the Trust as soon as
reasonably practicable of any material performance delay or non-performance in
accordance with this paragraph.
In no event shall the Trust incur liability to
the Administrator if it is prevented, forbidden or delayed from performing, or
omits to perform, any act or thing which this Agreement provides shall be
performed or omitted to be performed, by reason of a Force Majeure
Event.
The Trust shall
indemnify and hold the Administrator and its directors, officers, agents and
employees (collectively the “Indemnitees”) harmless from and against any and all
Losses that may be imposed on, incurred by, or asserted against, the Indemnitees
or any of them for following any instructions or other directions upon which the
Administrator is authorized to rely pursuant to the terms of this Agreement, or
for any action taken or omitted by it in good faith, provided that such action
or omission is consistent with the standard of care applicable to the
Administrator under this Agreement and the Indemnitees have not acted with
negligence or bad faith or engaged in fraud or willful misconduct in connection
with the Losses in question.
Upon the occurrence of any event which causes
or may cause any Loss to the other party, each party shall (and shall cause its
agents to) use all commercially reasonable efforts and take all reasonable steps
under the circumstances to mitigate the effect of such event and to avoid
continuing harm to the other party.
The limitation of liability and indemnification
contained herein shall survive the termination of this Agreement.
The Administrator
need not maintain any insurance for the benefit of the Trust. The
Administrator shall maintain a commercially reasonable level of errors and
omissions and fidelity insurance in its reasonable discretion, and shall provide
a certificate of such insurance to the Trust upon request from time to
time.
10. Confidentiality
The parties hereto
agree that each shall treat confidentially all confidential information provided
by each party to the other regarding its business and operations in accordance
with this Agreement and represent that each has implemented controls that are
reasonably designed to achieve the purposes of this section. All confidential
information provided by a party hereto shall be used by the other party hereto
solely for the purpose of rendering services pursuant to this Agreement and,
except as may be required in carrying out this Agreement, shall not be disclosed
to any affiliated division or entity or third party in any form without the
prior written consent of such providing party. Confidential
information for purposes hereof shall include information traditionally
recognized as confidential, such as financial information, strategies, security
practices, portfolio holdings, portfolio trades, product and business proposals,
business plans, and the like. The foregoing
shall not be applicable to any information that is publicly available when
provided or thereafter becomes publicly available other than through a breach of
this Agreement, that is generally furnished to third parties by the providing
party without confidentiality restriction, or that is required to be disclosed
by any regulator or any auditor of the parties hereto, by judicial or
administrative process or otherwise by applicable law or
regulation. For this purpose, the Funds and any person authorized by
the Funds shall be permitted to disclose any information provided by the
Administrator hereunder to the U.S. SEC (or its staff) in connection with any
inspection or examination or other action or proceeding. If a party
becomes aware that it or its agents have breached the confidentiality
obligations under this Section 10, it will promptly notify the other party in
writing of the nature and extent of such breach.
The undertakings
and obligations contained in this Section 10 shall survive the termination or
expiration of this Agreement.
11. Compliance
with Governmental Rules and Regulations; Records
The Trust assumes full responsibility for
complying with all securities, tax, commodities and other laws, rules and
regulations applicable to it.
In compliance with the requirements of Rule
31a-3 under the 1940 Act, the Administrator agrees that all records which it
maintains for the Trust shall at all times remain the property of the Trust,
shall be readily accessible during normal business hours, and shall be promptly
surrendered upon the termination of the Agreement or otherwise on written
request. The Administrator further agrees that all records that it
maintains for the Trust pursuant to Rule 31a-1 under the 1940 Act will be
preserved for the periods prescribed by Rule 31a-2 under the 1940 Act unless any
such records are earlier surrendered as provided above. Records may
be surrendered in either written or machine-readable form, at the option of the
Administrator.
The Administrator
will implement and maintain a written information security program that contains
appropriate security measures to safeguard the personal information of the
Funds’ shareholders, employees, directors and/or officers that the Administrator
receives, stores, maintains, processes or otherwise accesses in connection with
the provision of services hereunder. For these purposes, “personal
information” shall mean (i) an individual’s name (first initial and last name or
first name and last name), address or telephone number plus (a) social
security number, (b) drivers license number, (c) state identification card
number, (d) debit or credit card number, (e) financial account number or (f)
personal identification number or password that would permit access to a
person’s account or (ii) any combination of the foregoing that would allow a
person to log onto or access an individual’s account. Notwithstanding the
foregoing “personal information” shall not include information that is lawfully
obtained from publicly available information, or from federal, state or local
government records lawfully made available to the general public.
12. Services
Not Exclusive
The services of the Administrator are not to be
deemed exclusive, and the Administrator shall be free to render similar services
to others. The Administrator shall be deemed to be an independent
contractor and shall, unless otherwise expressly provided herein or authorized
by the Trust from time to time, have no authority to act or represent the Trust
in any way or otherwise be deemed an agent of the Trust.
13. Term,
Termination and Amendment
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(a)
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This
Agreement shall become effective as of the date first above
written. The Agreement shall remain in effect unless terminated
by either party on one hundred twenty (120) days’ prior written
notice. Termination of this Agreement with respect to any given
Fund shall in no way affect the continued validity of this Agreement with
respect to any other Fund.
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(b)
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Upon
termination of this Agreement, the Trust shall pay to the Administrator
such compensation and any reimbursable expenses as may be due under the
terms hereof as of the date of such termination, including reasonable
out-of-pocket expenses associated with such
termination.
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(c)
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This
Agreement may be modified or amended from time to time by mutual written
agreement of the parties hereto.
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14. Notices
Any notice or other communication authorized or
required by this Agreement to be given to either party shall be in writing and
deemed to have been given when delivered in person or by confirmed facsimile, by
overnight delivery through a commercial courier service, or posted by certified
mail, return receipt requested, to the following address (or such other address
as a party may specify by written notice to the other): if to the
Trust: Capital Private Client Services Funds, 0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxx, XX 00000, Attn: Xxxxxxxx X. Xxxxxx, Secretary, fax: 000-000-0000; with a copy to Xxx
XxXxxx, Capital Guardian Trust Company 000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx, XX
00000; if to the Administrator: State Street Bank and Trust Company,
X.X. Xxx 0000, Xxxxxx, XX 00000-0000, Attn: Fund
Administration Legal Department, fax: 000-000-0000.
15. Non-Assignability
This Agreement shall not be assigned by either
party hereto without the prior consent in writing of the other
party.
16. Successors
This Agreement shall be binding on and shall
inure to the benefit of the Trust and the Administrator and their respective
successors and permitted assigns.
17. Entire
Agreement
This Agreement (including any supplements,
schedules and attachments hereto) constitutes the entire understanding between
the parties hereto with respect to the subject matter hereof and supersedes all
previous representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
18. Waiver
The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver nor shall it deprive such party of the right thereafter to insist upon
strict adherence to that term or any term of this Agreement. Any
waiver must be in writing signed by the waiving party.
19. Severability
If any provision of this Agreement is invalid
or unenforceable, the balance of the Agreement shall remain in effect, and if
any provision is inapplicable to any person or circumstance it shall
nevertheless remain applicable to all other persons and
circumstances.
20. Governing
Law
This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of the
State of New York.
21. Reproduction
of Documents
This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic,
xerographic, photostatic, microfilm, micro-card, miniature photographic or other
similar process. The parties hereto all/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 of such
reproduction shall likewise be admissible in evidence.
22. 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.
22. Reserved.
23. Limitation
of Liability of the Trustees.
A
copy of the Certificate of Trust of the Trust is on file with the Secretary of
the State of Delaware, and notice is hereby given that the Trust’s Agreement and
Declaration of Trust is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of the Trust’s Agreement
and Declaration of Trust is not binding upon any of the Trustees individually
but is binding only upon the assets and property of the applicable
Fund.
24. Several
Obligations of each Fund.
WITH RESPECT TO ANY OBLIGATIONS OF A FUND OF
THE TRUST ARISING OUT OF THIS AGREEMENT, THE ADMINISTRATOR SHALL LOOK FOR
PAYMENT OR SATISFACTION OF ANY SUCH OBLIGATION SOLELY TO THE ASSETS AND PROPERTY
OF THE FUND TO WHICH SUCH OBLIGATION RELATES AS THOUGH THAT FUND HAD SEPARATELY
CONTRACTED WITH THE ADMINISTRATOR BY SEPARATE WRITTEN AGREEMENT. THE
RIGHTS AND BENEFITS TO WHICH A GIVEN FUND IS ENTITLED HEREUNDER SHALL BE SOLELY
THOSE OF SUCH FUND AND NO OTHER FUND HEREUNDER SHALL RECEIVE SUCH
BENEFITS.
[Remainder of page
intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their officers designated below as of the date first written above.
By:
Name: Xxxxxxx X.
Xxxxxxx
Title: President
STATE STREET BANK AND TRUST
COMPANY
By:
Name:
Title:
SCHEDULE
A
Listing
of Fund(s) and Classes of Shares
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Fund
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Classes of Shares
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Capital Core
Municipal Fund
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Capital
Short-Term Municipal Fund
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Capital
California Core Municipal Fund
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Capital
California Short-Term Municipal Fund
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Capital Core
Bond Fund
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INDEMNIFICATION
AGREEMENT
This Indemnification Agreement (the
“Agreement”) is made as of the date set forth on the signature page by and
between [FUND], a Delaware statutory trust (the “Fund”), and the trustee of the
Fund whose name is set forth on the signature page (the “Board
Member”).
WHEREAS, the Board Member is a trustee of the
Fund, and the Fund wishes the Board Member to continue to serve in that
capacity; and
WHEREAS, the Agreement and Declaration of Trust
of the Fund (the “Trust Instrument”) and By-Laws of the Fund and applicable
federal and Delaware laws permit the Fund to contractually obligate itself to
indemnify and hold the Board Member harmless to the fullest extent permitted by
law;
NOW, THEREFORE, in consideration of the
foregoing recitals and the mutual agreements set forth herein, the parties
hereby agree as set forth below. Certain capitalized terms used
herein are defined in Section 5.
1. Indemnification. The Fund shall
indemnify and hold harmless the Board Member against any liabilities or Expenses
(collectively, “Liability”) actually and reasonably incurred by the Board Member
in any Proceeding arising out of or in connection with the Board Member’s
service to the Fund, to the fullest extent permitted by the Trust Instrument and
By-Laws of the Fund and the laws of the State of Delaware, the Securities Act of
1933, and the Investment Company Act of 1940, as now or hereafter in force,
subject to the provisions of paragraphs (a), (b) and (c) of this Section
1. The Fund’s Board of Trustees shall take such actions as may be
necessary to carry out the intent of these indemnification provisions and shall
not amend the Fund’s Trust Instrument or By-laws to limit or eliminate the right
to indemnification provided herein with respect to acts or omissions occurring
prior to such amendment or repeal.
(a) Special
Condition. With respect to Liability to the Fund or its
shareholders, and subject to applicable state and federal law, the Board Member
shall be indemnified pursuant to this Section 1 against any Liability unless
such Liability arises by reason of the Board Member’s willful misfeasance, bad
faith, gross negligence, or reckless disregard of the duties involved in the
conduct of his or her office as defined in such Section 17(h) of the Investment
Company Act of 1940, as amended (“Disabling Conduct”).
(b) Special Process
Condition. With respect to Liability to the Fund or its
shareholders, no indemnification shall be made unless a determination has been
made by reasonable and fair means that the Board Member has not engaged in
Disabling Conduct. Such reasonable and fair means shall be
established in conformity with then applicable federal and Delaware law and
administrative interpretations. In any determination with respect to
Disabling Conduct, a trustee requesting indemnification who is not an
“interested person” of the Fund, as defined in Section 2(a)(19) of the
Investment Company Act of 1940, as amended, shall be afforded a rebuttable
presumption that such trustee did not engage in such conduct while acting in his
or her capacity as a trustee.
(c) State Law
Restrictions. In accordance with the Delaware Statutory Trust
Act, the Board Member shall not be indemnified and held harmless pursuant to
this Section 1 if the substantive and procedural standards for indemnification
under such law have not been met.
2. Advancement
of Expenses. The Fund shall
promptly advance funds to the Board Member to cover any and all Expenses the
Board Member incurs with respect to any Proceeding arising out of or in
connection with the Board Member’s service to the Fund, to the fullest extent
permitted by the laws of the State of Delaware, the Securities Act of 1933, and
the Investment Company Act of 1940, as such statutes are now or hereafter in
force, subject to the provisions of paragraphs (a) and (b) of this Section
2.
(a) Affirmation of
Conduct. A request by the Board Member for advancement of
funds pursuant to this Section 2 shall be accompanied by the Board Member’s
written affirmation of his or her good faith belief that he or she met the
standard of conduct necessary for indemnification, and such other statements,
documents or undertakings as may be required under applicable federal and
Delaware law.
(b) Special Conditions to
Advancement. With respect to Liability to the Fund or its
shareholders, and subject to applicable state and federal law, the Board Member
shall be entitled to advancements of Expenses pursuant to this Section 2 against
any Liability to the Fund or its shareholders if (1) the Fund has obtained
assurances to the extent required by applicable federal and Delaware law, such
as by obtaining insurance or receiving collateral provided by the Board Member,
to the reasonable satisfaction of the Board, that the advance will be repaid if
the Board Member is found to have engaged in Disabling Conduct, or (2) the Board
has a reasonable belief that the Board Member has not engaged in Disabling
Conduct and ultimately will be entitled to indemnification. In
forming such a reasonable belief, the Board of Trustees shall act in conformity
with then applicable federal and Delaware law and administrative
interpretations, and shall afford a trustee requesting an advance who is not an
“interested person” of the Fund, as defined in Section 2(a)(19) of the
Investment Company Act of 1940, as amended, a rebuttable presumption that such
trustee did not engage in Disabling Conduct while acting in his or her capacity
as a trustee.
3. Procedure
for Determination of Entitlement to Indemnification and Advancements. A request by the
Board Member for indemnification or advancement of Expenses shall be made in
writing, and shall be accompanied by such relevant documentation and information
as is reasonably available to the Board Member. The Secretary of the
Fund shall promptly advise the Board of such request.
(a) Methods of
Determination. Upon the Board Member’s request for
indemnification or advancement of Expenses, a determination with respect to the
Board Member’s entitlement thereto shall be made by the Board or Independent
Counsel in accordance with applicable federal and Delaware law. The
Board Member shall have the right, in his or her sole discretion, to have
Independent Counsel make such a determination. The Board Member shall
cooperate with the person or persons making such determination, including
without limitation providing to such persons upon reasonable advance request any
documentation or information that is not privileged or otherwise protected from
disclosure and is reasonably available to the Board Member and reasonably
necessary to such determination. Any Expenses incurred by the Board
Member in so cooperating shall be borne by the Fund, irrespective of the
determination as to the Board Member’s entitlement to indemnification or
advancement of Expenses.
(b) Independent
Counsel. If the determination of entitlement to
indemnification or advancement of Expenses is to be made by Independent Counsel,
the Board of Trustees shall select the Independent Counsel, and the Secretary of
the Fund shall give written notice to the Board Member advising the Board Member
of the identity of the Independent Counsel selected. The Board Member
may, within five days after receipt of such written notice, deliver to the
Secretary of the Fund a written objection to such selection. Such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirement of independence set forth in Section 4,
and shall set forth with particularity the factual basis of such
assertion. Upon such objection, the Board of Trustees, acting in
conformity with applicable federal and Delaware law, shall select another
Independent Counsel.
If within fourteen days after submission by the
Board Member of a written request for indemnification or advancement of Expenses
no such Independent Counsel shall have been selected without objection, then
either the Board or the Board Member may petition the Chancery Court of the
State of Delaware or any other court of competent jurisdiction for resolution of
any objection that shall have been made to the selection of Independent Counsel
and/or for the appointment as Independent Counsel of a person selected by the
court or by such other person as the court shall designate, and the person with
respect to whom an objection is favorably resolved or the person so appointed
shall act as Independent Counsel.
The Fund shall pay all reasonable fees and
Expenses charged or incurred by Independent Counsel in connection with his or
her determinations pursuant to this Agreement, and shall pay all reasonable fees
and Expenses incident to the procedures described in this paragraph, regardless
of the manner in which such Independent Counsel was selected or
appointed.
(c) Failure to Make Timely
Determination. If the person or persons empowered or selected
to determine whether the Board Member is entitled to indemnification or
advancement of Expenses shall not have made such determination within thirty
days after receipt by the Secretary of the Fund of the request therefor, the
requisite determination of entitlement to indemnification or advancement of
Expenses shall be deemed to have been made, and the Board Member shall be
entitled to such indemnification or advancement, absent (i) an intentional
misstatement by the Board Member of a material fact, or an intentional omission
of a material fact necessary to make the Board Member’s statement not materially
misleading, in connection with the request for indemnification or advancement of
Expenses, or (ii) a prohibition of such indemnification or advancements under
applicable federal and Delaware law; provided, however, that such period may be
extended for a reasonable period of time, not to exceed an additional thirty
days, if the person or persons making the determination in good faith require
such additional time to obtain or evaluate documentation or information relating
thereto.
(d) Payment Upon Determination
of Entitlement. If a determination is made pursuant to Section
1 or Section 2 (or is deemed to be made pursuant to paragraph (c) of this
Section 3) that the Board Member is entitled to indemnification or advancement
of Expenses, payment of any indemnification amounts or advancements owing to the
Board Member shall be made within ten days after such determination (and, in the
case of advancements of further Expenses, within ten days after submission of
supporting information). If such payment is not made when due, the
Board Member shall be entitled to an adjudication in a court of competent
jurisdiction of the Board Member’s entitlement to such indemnification or
advancements. The Board Member shall commence such proceeding seeking
an adjudication within one year following the date on which he or she first has
the right to commence such proceeding pursuant to this paragraph
(d). In any such proceeding, the Fund shall be bound by the
determination that the Board Member is entitled to indemnification or
advancements, absent (i) an intentional misstatement by the Board Member of a
material fact, or an intentional omission of a material fact necessary to make
his or her statement not materially misleading, in connection with the request
for indemnification or advancements, or (ii) a prohibition of such
indemnification or advancements under applicable federal and Delaware
law.
(e) Appeal of Adverse
Determination. If a determination is made that the Board
Member is not entitled to indemnification or advancements, the Board Member
shall be entitled to an adjudication of such matter in any court of competent
jurisdiction. Alternatively, the Board Member, at his or her option,
may seek an award in arbitration to be conducted by a single arbitrator pursuant
to the rules of the American Arbitration Association. The Board
Member shall commence such proceeding or arbitration within one year following
the date on which the adverse determination is made. Any such
judicial proceeding or arbitration shall be conducted in all respect as a de
novo trial or arbitration on the merits, and the Board Member shall not be
prejudiced by reason of such adverse determination.
(f) Expenses of
Appeal. If the Board Member seeks a judicial adjudication of
or an award in arbitration to enforce his or her rights under, or to recover
damages for breach of, the indemnification or Expense advancement provisions of
this Agreement, the Board Member shall be entitled to recover from the Fund, and
shall be indemnified by the Fund against, any and all Expenses actually and
reasonably incurred by the Board Member in such judicial adjudication or
arbitration, but only if the Board Member prevails therein. If it
shall be determined in such judicial adjudication or arbitration that the Board
Member is entitled to receive part but not all of the indemnification or
advancement of Expenses sought, the Expenses incurred by the Board Member in
connection with such judicial adjudication or arbitration shall be prorated as
the court or arbitrator determines to be appropriate.
(g) Validity of
Agreement. In any judicial proceeding or arbitration commenced
pursuant to this Section 3, the Fund shall be precluded from asserting that the
procedures and presumptions set forth in this Agreement are not valid, binding
and enforceable against the Fund, and shall stipulate in any such court or
before any such arbitrator that the Fund is bound by all the provisions of this
Agreement.
4. General
Provisions.
(a) Non-Exclusive
Rights. The provisions for indemnification of, and advancement
of Expenses to, the Board Member set forth in this Agreement shall not be deemed
exclusive of any other rights to which the Board Member may otherwise be
entitled. Notwithstanding the previous sentence, the indemnification
provided for in this Agreement is in lieu of, and not in addition to, the
indemnification set forth in the Trust Instrument. The Fund shall not
be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that the Board Member has otherwise
actually received such payment under any insurance policy, contract, agreement
or otherwise.
(b) Continuation of
Provisions. This Agreement shall be binding upon all
successors of the Fund, including without limitation any transferee of all or
substantially all assets of the Fund and any successor by merger, consolidation,
or operation of law, and shall inure to the benefit of the Board Member’s
spouse, heirs, assigns, devisees, executors, administrators and legal
representatives. The provisions of this Agreement shall continue
until the later of (1) ten years after the Board Member has ceased to provide
any service to the Fund, and (2) the final termination of all Proceedings in
respect of which the Board Member has asserted, is entitled to assert, or has
been granted rights of indemnification or advancement of Expenses hereunder and
of any proceeding commenced by the Board Member pursuant to Section 3 relating
thereto. Unless required by applicable federal or Delaware law, no
amendment of the Trust Instrument or By-Laws of the Fund shall limit or
eliminate the right of the Board Member to indemnification and advancement of
Expenses set forth in this Agreement with respect to acts or omissions occurring
prior to such amendment or repeal. In the event the Fund or any
successor shall discontinue its operations within the term of this Agreement,
adequate provision shall be made to honor the Fund’s obligations under this
Agreement.
(c) Selection of
Counsel. Counsel selected by the Board shall be entitled to
assume the defense of any Proceeding for which the Board Member seeks
indemnification or advancement of Expenses under this
Agreement. However, counsel selected by the Board Member shall
conduct the defense of the Board Member to the extent reasonably determined by
such counsel to be necessary to protect the interests of the Board Member, and
the Fund shall indemnify the Board Member therefor to the extent otherwise
permitted under this Agreement, if (1) the Board Member reasonably determines
that there may be a conflict in the Proceeding between the positions of the
Board Member and the positions of the Fund or the other parties to the
Proceeding that are indemnified by the Fund and not represented by separate
counsel, or the Board Member otherwise reasonably concludes that representation
of both the Board Member, the Fund and such other parties by the same counsel
would not be appropriate, or (2) the Proceeding involves the Board Member but
neither the Fund nor any such other party and the Board Member reasonably
withholds consent to being represented by counsel selected by the
Fund. If the Board has not selected counsel to assume the defense of
any such Proceeding for the Board Member within thirty days after receiving
written notice thereof from the Board Member, the Fund shall be deemed to have
waived any right it might otherwise have to assume such defense.
(d) D&O
Insurance. For a period of at least six years after the Board
Member has ceased to provide services to the Fund, the Fund shall purchase and
maintain in effect, through “tail” or other appropriate coverage, one or more
policies of insurance on behalf of the Board Member to the maximum extent of the
coverage provided to the active members of the Board of Trustees of the
Fund.
(e) Subrogation. In
the event of any payment by the Fund pursuant to this Agreement, the Fund shall
be subrogated to the extent of such payment to all of the rights of recovery of
the Board Member, who shall, upon reasonable written request by the Fund and at
the Fund’s expense, execute all such documents and take all such reasonable
actions as are necessary to enable the Fund to enforce such
rights. Nothing in this Agreement shall be deemed to diminish or
otherwise restrict the right of the Fund or the Board Member to proceed or
collect against any insurers and to give such insurers any rights against the
Fund under or with respect to this Agreement, including without limitation any
right to be subrogated to the Board Member’s rights hereunder, unless otherwise
expressly agreed to by the Fund in writing, and the obligation of such insurers
to the Fund and the Board Member shall not be deemed to be reduced or impaired
in any respect by virtue of the provisions of this Agreement.
(f) Notice of
Proceedings. The Board Member shall promptly notify the
Secretary of the Fund in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding which may be subject to indemnification or advancement of expense
pursuant to this Agreement, but no delay in providing such notice shall in any
way limit or affect the Board Member’s rights or the Fund’s obligations under
this Agreement.
(g) Notices. All
notices, requests, demands and other communications to a party pursuant to this
Agreement shall be in writing, addressed to such party at the address specified
on the signature page of this Agreement (or such other address as may have been
furnished by such party by notice in accordance with this paragraph), and shall
be deemed to have been duly given when delivered personally (with a written
receipt by the addressee) or two days after being sent (1) by certified or
registered mail, postage prepaid, return receipt requested, (2) by nationally
recognized overnight courier service or (3) by tested electronic
means.
(h) Severability. If
any provision of this Agreement shall be held to be invalid, illegal, or
unenforceable, in whole or in part, for any reason whatsoever, (1) the validity,
legality and enforceability of the remaining provisions of this Agreement
(including, without limitation, each portion of any Section of this Agreement
containing any provision that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby, and (2) to the fullest
extent possible, the remaining provisions of this Agreement shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
(i) Modification and
Waiver. This Agreement supersedes any existing or prior
agreement between the Fund and the Board Member pertaining to the subject matter
of indemnification, advancement of Expenses and insurance. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both parties or their respective successors or legal
representatives. Any waiver by either party of any breach by the
other party of any provision contained in this Agreement to be performed by the
other party must be in writing and signed by the waiving party or such party’s
successor or legal representative, and no such waiver shall be deemed a waiver
of similar or other provisions at the same or any prior or subsequent
time.
(j) Headings. The
headings of the Sections of this Agreement are for convenience only and shall
not be deemed to control or affect the meaning or construction of any provision
of this Agreement.
(k) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be an
original, and all of which when taken together shall constitute one
document.
(l) Applicable
Law. This Agreement shall be governed by and construed and
enforce in accordance with the laws of the State of Delaware without reference
to principles of conflict of laws.
5. Definitions. For
purposes of this Agreement, the following terms shall have the following
meanings:
(a) “Board” means the board of
trustees of the Fund, excluding those members of the board of trustees who are
not eligible under applicable federal or Delaware law to participate in making a
particular determination pursuant to Section 3 of this Agreement; provided,
however, that if no two members of the Board of Trustees are eligible to
participate, Board shall mean Independent Counsel.
(b) “Disabling
Conduct” shall be as defined in Section 1.
(c) “Expenses” shall include without
limitation all judgments, penalties, fines, amounts paid or to be paid in
settlement, ERISA excise taxes, liabilities, losses, interest, expenses of
investigation, attorneys’ fees, retainers, court costs, transcript
costs, fees of experts and witnesses, expenses of preparing for and attending
depositions and other proceedings, travel expenses, duplicating costs, printing
and binding costs, telephone charges, postage, delivery service fees, and all
other costs, disbursements or expenses of the type customarily incurred in
connection with prosecuting, defending, preparing to prosecute or
defend, investigating, or acting as a witness in a
Proceeding.
(d) “Final termination of a
Proceeding” shall mean a final adjudication by court order or judgment of the
court or other body before which a matter is pending, from which no further
right of appeal or review exists.
(e) “Independent Counsel” shall mean
a law firm, or a member of a law firm, that is experienced in matters of
investment company law and neither at the time of designation is, nor in the
five years immediately preceding such designation was, retained to represent (A)
the Fund or the Board Member in any matter material to either, or (B) any
other party to the Proceeding giving rise to a claim for indemnification or
advancements hereunder. Notwithstanding the foregoing, however, the
term “Independent Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Fund or the Board Member in an
action to determine the Board Member’s rights pursuant to this Agreement,
regardless of when the Board Member’s act or failure to act
occurred.
(f) “Independent Board Member” shall
mean a trustee of the Fund who is neither an “interested person” of the Fund as
defined in Section 2(a)(19) of the Investment Company Act of 1940, as amended,
nor a party to the Proceeding with respect to which indemnification or advances
are sought.
(g) “Liability shall be as defined
in Section 1.
(h) “Proceeding” shall include
without limitation any threatened, pending or completed claim, demand, threat,
discovery request, request for testimony or information, action, suit,
arbitration, alternative dispute mechanism, investigation, hearing, or other
proceeding, including any appeal from any of the foregoing, whether civil,
criminal, administrative or investigative, and shall also include any proceeding
brought by the Board Member against the Fund.
(i) The Board Member’s “service to
the Fund” shall include without limitation the Board Member’s service as a
trustee, officer, employee, agent or representative of the Fund, and his or her
service at the request of the Fund as a director, trustee, officer, employee,
agent or representative of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of the date set forth below.
Dated:
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[FUND]
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a Delaware
Statutory Trust
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By:
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Name:
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Title:
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Secretary
|
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Address for
notices:
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Name:
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«FirstName»
«LastName»
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Address for
notices:
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«Company»
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«PreferredAddress»
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«CityStZip»
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