TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 20th day of September, 1997
between FIRST CHOICE FUNDS TRUST (the "Fund"), a Delaware business
trust having its principal place of business at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000, and FIRST DATA INVESTOR
SERVICES GROUP, INC. ("FDISG"), a Massachusetts corporation with
principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate
series, with each such series representing interests in a separate
portfolio of securities or other assets.
WHEREAS, the Fund initially intends to offer Shares in those
Portfolios identified in the attached Exhibit 1, each such
Portfolio, together with all other Portfolios subsequently
established by the Fund shall be subject to this Agreement in
accordance with Article 14;
WHEREAS, the Fund on behalf of the Portfolios, desires to appoint
FDISG as its transfer agent, dividend disbursing agent and agent
in connection with certain other activities and FDISG desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and
promises hereinafter set forth, the Fund and FDISG agree as
follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the
following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar
organizational document as the case may be, of the Fund as the
same may be amended from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not
such person is an officer or employee of the Fund, duly authorized
to give Oral Instructions or Written Instructions on behalf of the
Fund as indicated in writing to FDISG from time to time.
(c) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time
deposit, or cause to be deposited or held under the name or
account of such a custodian pursuant to a Custodian Agreement.
(f) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as
amended from time to time.
(g) "1940 Act" shall mean the Investment Company Act of 1940 and
the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by FDISG from a person
reasonably believed by FDISG to be an Authorized Person;
(i) "Portfolio" shall mean each separate series of shares
offered by the Fund representing interests in a separate portfolio
of securities and other assets;
(j) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information, including any
supplements thereto if any, which has become effective under the
Securities Act of 1933 and the 1940 Act.
(k) "Shares" refers collectively to such shares of capital stock
or beneficial interest, as the case may be, or class thereof, of
each respective Portfolio of the Fund as may be issued from time
to time.
(l) "Shareholder" shall mean a record owner of Shares of each
respective Portfolio of the Fund.
(m) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by FDISG to be an
Authorized Person and actually received by FDISG. Written
Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of FDISG.
The Fund, on behalf of the Portfolios, hereby appoints and
constitutes FDISG as transfer agent and dividend disbursing agent
for Shares of each respective Portfolio of the Fund and as
shareholder servicing agent for the Fund, and FDISG hereby accepts
such appointments and agrees to perform the duties hereinafter set
forth.
Article 3 Duties of FDISG.
3.1 FDISG shall be responsible for:
(a) Administering and/or performing the customary services of a
transfer agent; acting as service agent in connection with
dividend and distribution functions; and for performing
shareholder account and administrative agent functions in
connection with the issuance, transfer and redemption or
repurchase (including coordination with the Custodian) of Shares
of each Portfolio, as more fully described in the written schedule
of Duties of FDISG annexed hereto as Schedule A and incorporated
herein, and in accordance with the terms of the Prospectus of the
Fund on behalf of the applicable Portfolio, applicable law and the
procedures established from time to time between FDISG and the
Fund.
(b) Recording the issuance of Shares and maintaining pursuant to
Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Portfolio which are authorized, based upon data
provided to it by the Fund, and issued and outstanding. FDISG
shall provide the Fund on a regular basis with the total number of
Shares of each Portfolio which are authorized and issued and
outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale of such
Shares, which functions shall be the sole responsibility of the
Fund.
(c) In addition to providing the foregoing services, the Fund
hereby engages FDISG as its exclusive service provider with
respect to the Print/Mail Services as set forth in Schedule B for
the fees also identified in Schedule B. FDISG agrees to perform
the services and its obligations subject to the terms and
conditions of this Agreement.
(d) Notwithstanding any of the foregoing provisions of this
Agreement, FDISG shall be under no duty or obligation to inquire
into, and shall not be liable for: (i) the legality of the
issuance or sale of any Shares or the sufficiency of the amount to
be received therefor; (ii) the legality of the redemption of any
Shares, or the propriety of the amount to be paid therefor; (iii)
the legality of the declaration of any dividend by the Board of
Directors, or the legality of the issuance of any Shares in
payment of any dividend; or (iv) the legality of any
recapitalization or readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to FDISG in writing
those transactions and assets to be treated as exempt from blue
sky reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The
responsibility of FDISG for the Fund's blue sky State registration
status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
3.3 FDISG agrees to provide the services set forth herein
in accordance with the performance standards annexed hereto as
Exhibit 1-A of Schedule A and incorporated herein (the
"Performance Standards"). Such Performance Standards may be
amended from time to time upon written agreement of the parties.
3.4 In addition to the duties set forth herein, FDISG shall
perform such other duties and functions, and shall be paid such
amounts therefor, as may from time to time be agreed upon in
writing between the Fund and FDISG.
Article 4 Recordkeeping and Other Information.
4.1 FDISG shall create and maintain all records required of it
pursuant to its duties hereunder and as set forth in Schedule A in
accordance with all applicable laws, rules and regulations,
including records required by Section 31(a) of the 1940 Act.
Where applicable, such records shall be maintained by FDISG for
the periods and in the places required by Rule 31a-2 under the
1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act, FDISG
agrees that all such records prepared or maintained by FDISG
relating to the services to be performed by FDISG hereunder are
the property of the Fund and will be preserved, maintained and
made available in accordance with such section, and will be
surrendered promptly to the Fund on and in accordance with the
Fund's request.
4.3 In case of any requests or demands for the inspection of
Shareholder records of the Fund, FDISG will endeavor to notify the
Fund of such request and secure Written Instructions as to the
handling of such request. FDISG reserves the right, however, to
exhibit the Shareholder records to any person whenever it is
advised by its counsel that it may be held liable for the failure
to comply with such request.
Article 5 Fund Instructions.
5.1 FDISG will have no liability when acting upon Written or
Oral Instructions reasonably believed to have been executed or
orally communicated by an Authorized Person and will not be held
to have any notice of any change of authority of any person until
receipt of a Written Instruction thereof from the Fund. FDISG
will also have no liability when processing Share certificates
which it reasonably believes to bear the proper manual or
facsimile signatures of the officers of the Fund and the proper
countersignature of FDISG.
5.2 At any time, FDISG may request Written Instructions from the
Fund and may seek advice from legal counsel for the Fund, or its
own legal counsel, with respect to any matter arising in
connection with this Agreement, and it shall not be liable for any
action taken or not taken or suffered by it reasonably and in good
faith in accordance with such Written Instructions or in
accordance with the opinion of counsel for the Fund or for FDISG.
Written Instructions requested by FDISG will be provided by the
Fund within a reasonable period of time.
5.3 FDISG, its officers, agents or employees, shall accept Oral
Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said
representative is an Authorized Person. The Fund agrees that all
Oral Instructions shall be followed within one business day by
confirming Written Instructions, and that the Fund's failure to so
confirm shall not impair in any respect FDISG's right to rely on
Oral Instructions.
Article 6 Compensation.
6.1 The Fund on behalf of each of the Portfolios will compensate
FDISG for the performance of its obligations hereunder in
accordance with the fees set forth in the written Fee Schedule
annexed hereto as Schedule B and incorporated herein.
6.2 In addition to those fees set forth in Section 6.1 above,
the Fund on behalf of each of the Portfolios agrees to pay, and
will be billed separately for, out-of-pocket expenses incurred by
FDISG in the performance of its duties hereunder. Out-of-pocket
expenses shall include the items specified in the written schedule
of out-of-pocket charges annexed hereto as Schedule C and
incorporated herein. Schedule C may be modified by written
agreement between the parties. Out-of-pocket expenses shall be
limited to those out-of-pocket expenses reasonably incurred by
FDISG in the performance of its obligations hereunder.
6.3 The Fund on behalf of each of the Portfolios agrees to pay
all fees and out-of-pocket expenses to FDISG by Federal Funds Wire
within fifteen (15) business days following the receipt of the
respective invoice unless further verification or documentation is
required.
6.4 Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule B, a revised Fee Schedule
executed and dated by the parties hereto.
Article 7 Documents.
In connection with the appointment of FDISG, the Fund shall, on or
before the date this Agreement goes into effect, but in any case
within a reasonable period of time for FDISG to prepare to perform
its duties hereunder, deliver or caused to be delivered to FDISG
the documents set forth in the written schedule of Fund Documents
annexed hereto as Schedule D.
Article 8 Transfer Agent System.
8.1 FDISG shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts,
expertise, patents, copyrights, trade secrets, and other related
legal rights utilized by FDISG in connection with the services
provided by FDISG to the Fund herein (the "FDISG System").
8.2 FDISG hereby grants to the Fund a limited license to the
FDISG System for the sole and limited purpose of having FDISG
provide the services contemplated hereunder and nothing contained
in this Agreement shall be construed or interpreted otherwise and
such license shall immediately terminate with the termination of
this Agreement.
8.3 In the event that the Fund, including any affiliate or agent
of the Fund or any third party acting on behalf of the Fund, is
provided with direct access to the FDISG System for either account
inquiry or to transmit transaction information, including but not
limited to maintenance, exchanges, purchases and redemptions, such
direct access capability shall be limited to direct entry to the
FDISG System by means of on-line mainframe terminal entry or PC
emulation of such mainframe terminal entry, and any other non-
conforming method of transmission of information to the FDISG
System is strictly prohibited without the prior written consent of
FDISG.
Article 9 Representations and Warranties.
9.1 FDISG represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory agency
as a transfer agent and such registration will remain in effect
for the duration of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.2 The Fund represents and warrants to FDISG that:
(a) it is duly organized, existing and in good standing under
the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to
authorize it to enter into this Agreement;
(d) a registration statement under the Securities Act of 1933,
as amended, and the 1940 Act on behalf of each of the Portfolios
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 Fund being
offered for sale; and
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance
with the terms of the Fund's Articles of Incorporation and its
Prospectus with respect to each Portfolio, such Shares shall be
validly issued, fully paid and non-assessable.
Article 10 Indemnification.
10.1 FDISG shall not be responsible for and the Fund on behalf of
each Portfolio shall indemnify and hold FDISG harmless from and
against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and
liabilities of any sort or kind which may be asserted against
FDISG or for which FDISG may be held to be liable (a "Claim")
arising out of or attributable to any of the following:
(a) any actions of FDISG required to be taken pursuant to this
Agreement unless such Claim resulted from a negligent act or
omission to act or bad faith by FDISG in the performance of its
duties hereunder;
(b) FDISG's reasonable reliance on, or reasonable use of
information, data, records and documents (including but not
limited to magnetic tapes, computer printouts, hard copies and
microfilm copies) received by FDISG from the Fund, or any
authorized third party acting on behalf of the Fund, including but
not limited to the prior transfer agent for the Fund, in the
performance of FDISG's duties and obligations hereunder;
(c) the reasonable reliance on, or the implementation of, any
Written or Oral Instructions or any other instructions or requests
of the Fund on behalf of the applicable Portfolio;
(d) the offer or sales of shares in violation of any requirement
under the securities laws or regulations of any state that such
shares be registered in such state or in violation of any stop
order or other determination or ruling by any state with respect
to the offer or sale of such shares in such state; and
(e) the Fund's refusal or failure to comply with the terms of
this Agreement, or any Claim which arises out of the Fund's
negligence or misconduct or the breach of any representation or
warranty of the Fund made herein.
10.2 The Fund shall not be responsible for and FDISG shall
indemnify and hold the Fund harmless from and against any and all
claims, costs, expenses (including reasonable attorneys' fees),
losses, damages, charges, payments and liabilities of any sort or
kind which may be asserted against the Fund or for which the Fund
may be held to be liable (a "Claim") arising out of or
attributable to any of the following:
(a) any actions of FDISG required to be taken pursuant to this
Agreement provided that such Claim resulted from a negligent act
or omission to act, bad faith, willful misfeasance or reckless
disregard by FDISG in the performance of its duties hereunder; and
(b) FDISG's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises out of the FDISG's negligence
or misconduct or the breach of any representation or warranty of
FDISG made herein.
10.3 In any case in which the one party (the "Indemnifying
Party") may be asked to indemnify or hold the other party (the
"Indemnified Party") harmless, the Indemnified Party will notify
the Indemnifying Party promptly after identifying any situation
which it believes presents or appears likely to present a claim
for indemnification against the Indemnifying Party although the
failure to do so shall not prevent recovery by the Indemnified
Party and shall keep the Indemnifying Party advised with respect
to all developments concerning such situation. The Indemnifying
Party shall have the option to defend the Indemnified Party
against any Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so
elects, such defense shall be conducted by counsel chosen by the
Indemnifying Party and satisfactory to the Indemnified Party, and
thereupon the Indemnifying Party shall take over complete defense
of the Claim and the Indemnified Party shall sustain no further
legal or other expenses in respect of such Claim. The Indemnified
Party will not confess any Claim or make any compromise in any
case in which the Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's prior
written consent. The obligations of the parties hereto under this
Article 10 shall survive the termination of this Agreement.
10.4 Any claim for indemnification under this Agreement must be
made prior to the earlier of:
(a) one year after the Indemnifying Party becomes aware of the
event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.5 Except for remedies that cannot be waived as a matter of law
(and injunctive or provisional relief), the provisions of this
Article 10 shall be FDISG's sole and exclusive remedy for claims
or other actions or proceedings to which the Fund's
indemnification obligations pursuant to this Article 10 may apply.
Article 11 Standard of Care.
11.1 FDISG shall at all times act in good faith and agrees to use
its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but
assumes no responsibility for loss or damage to the Fund unless
said errors are caused by FDISG's own negligence, bad faith or
willful misconduct or that of its employees.
11.2 Each party shall have the duty to mitigate damages for which
the other party may become responsible.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE
FOR CONSEQUENTIAL DAMAGES.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first
written above and shall continue for a period of three (3) years
(the "Initial Term"), unless earlier terminated pursuant to the
terms of this Agreement.
13.2 Either party may terminate this Agreement at the end
of the Initial Term upon not than less than sixty (60) days or
more than one hundred-eighty (180) days prior written notice to
the other party.
13.3 This Agreement may be terminated by the Fund prior to
the expiration of the Initial Term in the event FDISG has failed
to meet the Performance Standards, as set forth in Exhibit 1-A to
Schedule A, in three consecutive quarters. The Fund will provide
FDISG with sixty (60) days written notice after the third
consecutive quarter of FDISG's failure to meet the Performance
Standards if the Fund intends to exercise this option under this
Section 13.3. Notwithstanding the foregoing, the Fund's right
under this Section 13.3 shall not be effective until ninety (90)
days after FDISG has begun providing services under this
Agreement. In the event that the Administration Agreement dated
September 20, 1997 (the "Administration Agreement"), between FDISG
and the Fund is terminated by the Fund because of a breach by
FDISG of certain performance standards as provided in Section 7(b)
of the Administration Agreement, this Agreement may be terminated
by the Fund upon sixty (60) prior written notice to FDISG.
13.4 In the event a termination notice is given by the Fund, all
reasonable expenses associated with movement of records and
materials and conversion thereof to a successor transfer agent
("Conversion Costs") will be borne by the Fund; provided, however,
that in the event that such termination notice is given as a
result of a breach of the Performance Standards by FDISG with
respect to the services to be provided under this Agreement as
outlined in Section 13.3 of this Agreement or Section 7(b) of the
Administration Agreement or a material breach by FDISG of its
duties and obligations hereunder as outlined in Section 13.5 of
this Agreement or Section 7(d) of the Administration Agreement,
the Conversion Costs shall not exceed $15,000.
13.4 If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party") the
other party (the "Non-Defaulting Party") may give written notice
thereof to the Defaulting Party, and if such material breach shall
not have been remedied within thirty (30) days after such written
notice is given, then the Non-Defaulting Party may terminate this
Agreement by giving thirty (30) days written notice of such
termination to the Defaulting Party. If FDISG is the
Non-Defaulting Party, its termination of this Agreement shall not
constitute a waiver of any other rights or remedies of FDISG with
respect to services performed prior to such termination of rights
of FDISG to be reimbursed for out-of-pocket expenses. In all
cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against the
Defaulting Party.
Article 14 Additional Portfolios
14.1 In the event that the Fund establishes one or more
Portfolios in addition to those identified in Exhibit 1, with
respect to which the Fund desires to have FDISG render services as
transfer agent under the terms hereof, the Fund shall so notify
FDISG in writing, and if FDISG agrees in writing to provide such
services, Exhibit 1 shall be amended to include such additional
Portfolios.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information
(defined below) and the contents of this Agreement (collectively
"Confidential Information") are confidential information of the
parties and their respective licensers. The Fund and FDISG shall
exercise reasonable care to safeguard the confidentiality of the
Confidential Information of the other. The Fund and FDISG may
each use the Confidential Information only to exercise its rights
or perform its duties under this Agreement. The Fund and FDISG
shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior
written permission of the other party. The Fund and FDISG may,
however, disclose Confidential Information to its employees who
have a need to know the Confidential Information to perform work
for the other, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or
disclosed by its employees in breach of this Agreement. The Fund
and FDISG may also disclose the Confidential Information to
independent contractors, auditors and professional advisors and as
legally required or requested by regulators. Notwithstanding the
previous sentence, in no event shall either the Fund or FDISG
disclose the Confidential Information to any competitor of the
other without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is completely
sensitive material, and not generally known to the public,
including, but not limited to, information about product plans,
marketing strategies, finance, operations, customer relationships,
customer profiles, sales estimates, business plans, and internal
performance results relating to the past, present or future
business activities of the Fund or FDISG, their respective
subsidiaries and affiliated companies and the customers, clients
and suppliers of any of them;
(b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality affords
the Fund or FDISG a competitive advantage over its competitors;
and
(c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inventions,
know-how, show-how and trade secrets, whether or not patentable or
copyrightable.
15.3 Confidential Information includes, without limitation,
all documents, inventions, substances, engineering and laboratory
notebooks, drawings, diagrams, specifications, bills of material,
equipment, prototypes and models, and any other tangible
manifestation of the foregoing of either party which now exist or
come into the control or possession of the other.
15.4 Each party acknowledges that breach of the
restrictions on use, dissemination or disclosure of any
Confidential Information of the other party would result in
immediate and irreparable harm, and money damages would be
inadequate to compensate the other party for that harm. Each party
shall be entitled to equitable relief, in addition to all other
available remedies, to redress any such breach.
Article 16 Force Majeure.
No party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the
extent such default or delay is caused, directly or indirectly, by
(i) fire, flood, elements of nature or other acts of God; (ii) any
outbreak or escalation of hostilities, war, riots or civil
disorders in any country, (iii) any act or omission of the other
party or any governmental authority; (iv) any labor disputes
(whether or not the employees' demands are reasonable or within
the party's power to satisfy); or (v) nonperformance by a third
party or any similar cause beyond the reasonable control of such
party, including without limitation, failures or fluctuations in
telecommunications or other equipment. In any such event, the
non-performing party shall be excused from any further performance
and observance of the obligations so affected only for as long as
such circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or
observance as soon as practicable.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon
and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement may
not be assigned or otherwise transferred by either party hereto,
without the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided, however,
that FDISG may, in its sole discretion, assign all its right,
title and interest in this Agreement to an affiliate, parent or
subsidiary, or to the purchaser of substantially all of its
business. With the consent of the Fund, FDISG may engage
subcontractors to perform any of the obligations contained in this
Agreement to be performed by FDISG.
Article 18 Arbitration.
18.1 Any claim or controversy arising out of or relating to this
Agreement, or breach hereof, shall be settled by arbitration
administered by the American Arbitration Association in Boston,
Massachusetts in accordance with its applicable rules, except that
the Federal Rules of Evidence and the Federal Rules of Civil
Procedure with respect to the discovery process shall apply.
18.2 The parties hereby agree that judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
18.3 The parties acknowledge and agree that the performance of
the obligations under this Agreement necessitates the use of
instrumentalities of interstate commerce and, notwithstanding
other general choice of law provisions in this Agreement, the
parties agree that the Federal Arbitration Act shall govern and
control with respect to the provisions of this Article 18.
Article 19 Notice.
Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or FDISG, shall be
sufficiently given if addressed to that party and received by it
at its office set forth below or at such other place as it may
from time to time designate in writing.
To the Fund:
First Choice Funds Trust
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to:
Xxxxx & XxXxxxxx
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 20 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws
on conflicts of laws, shall govern the interpretation, validity,
and enforcement of this agreement. All actions arising from or
related to this Agreement shall be brought in the state and
federal courts sitting in the City of Boston, and FDISG and Client
hereby submit themselves to the exclusive jurisdiction of those
courts.
Article 21 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original; but such counterparts
shall, together, constitute only one instrument.
Article 22 Captions.
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect.
Article 23 Publicity.
Neither FDISG nor the Fund shall release or publish news releases,
public announcements, advertising or other publicity relating to
this Agreement or to the transactions contemplated by it without
the prior review and written approval of the other party;
provided, however, that either party may make such disclosures as
are required by legal, accounting or regulatory requirements after
making reasonable efforts in the circumstances to consult in
advance with the other party.
Article 24 Relationship of Parties.
24.1 The parties agree that they are independent contractors and
not partners or co-venturers and nothing contained herein shall be
interpreted or construed otherwise.
Article 25 Entire Agreement; Severability.
25.1 This Agreement, including Schedules, Addenda, and Exhibits
hereto, constitutes the entire Agreement between the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous proposals, agreements, contracts, representations,
and understandings, whether written or oral, between the parties
with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of
the Agreement shall be valid unless in writing signed by each
party. A party's waiver of a breach of any term or condition in
the Agreement shall not be deemed a waiver of any subsequent
breach of the same or another term or condition.
25.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that
any term or provision is illegal or invalid for any reason, the
illegality or invalidity shall not affect the validity of the
remainder of this Agreement. In such case, the parties shall in
good faith modify or substitute such provision consistent with the
original intent of the parties. Without limiting the generality
of this paragraph, if a court determines that any remedy stated in
this Agreement has failed of its essential purpose, then all other
provisions of this Agreement, including the limitations on
liability and exclusion of damages, shall remain fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers, as of the day
and year first above written.
FIRST CHOICE FUNDS TRUST
XXXX X. XXXXXXX
By:Xxxx X. Xxxxxxx
Title: Trustee
FIRST DATA INVESTOR SERVICES GROUP, INC.
XXXX XXXXXXX
By: Xxxx Xxxxxxx
Title:Vice President and General Manager
Exhibit 1
LIST OF PORTFOLIOS
U.S. Treasury Reserve Fund
Cash Reserve Fund
Schedule A
DUTIES OF FDISG
1. Shareholder Information. FDISG shall maintain a record
of the number of Shares held by each Shareholder of record which
shall include name, address, taxpayer identification and which
shall indicate whether such Shares are held in certificates or
uncertificated form.
2. Shareholder Services. FDISG shall respond as appropriate
to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as
may be from time to time mutually agreed upon between FDISG and
the Fund.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply FDISG with
an adequate supply of blank share certificates to meet FDISG
requirements therefor. Such Share certificates shall be properly
signed by facsimile. The Fund agrees that, notwithstanding the
death, resignation, or removal of any officer of the Fund whose
signature appears on such certificates, FDISG or its agent may
continue to countersign certificates which bear such signatures
until otherwise directed by Written Instructions.
(b) FDISG shall issue replacement Share certificates in lieu of
certificates which have been lost, stolen or destroyed, upon
receipt by FDISG of properly executed affidavits and lost
certificate bonds, in form satisfactory to FDISG, with the Fund
and FDISG as obligees under the bond.
(c) FDISG shall also maintain a record of each certificate
issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open
accounts or uncertificated form (i.e., no certificate being issued
with respect thereto) FDISG shall maintain comparable records of
the Shareholders thereof, including their names, addresses and
taxpayer identification. FDISG shall further maintain a stop
transfer record on lost and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials.
FDISG will address and mail to Shareholders of the Fund, all
reports to Shareholders, dividend and distribution notices and
proxy material for the Fund's meetings of Shareholders. In
connection with meetings of Shareholders, FDISG will prepare
Shareholder lists, mail and certify as to the mailing of proxy
materials, process and tabulate returned proxy cards, report on
proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
5. Sales of Shares
(a) FDISG shall not be required to issue any Shares of the Fund
where it has received a Written Instruction from the Fund or
official notice from any appropriate authority that the sale of
the Shares of the Fund has been suspended or discontinued. The
existence of such Written Instructions or such official notice
shall be conclusive evidence of the right of FDISG to rely on such
Written Instructions or official notice.
(b) In the event that any check or other order for the payment of
money is returned unpaid for any reason, FDISG will endeavor to:
(i) give prompt notice of such return to the Fund or its designee;
(ii) place a stop transfer order against all Shares issued as a
result of such check or order; and (iii) take such actions as
FDISG may from time to time deem appropriate.
6. Transfer and Repurchase
(a) FDISG shall process all requests to transfer or redeem Shares
in accordance with the transfer or repurchase procedures set forth
in the Fund's Prospectus.
(b) FDISG will transfer or repurchase Shares upon receipt of Oral
or Written Instructions or otherwise pursuant to the Prospectus
and Share certificates, if any, properly endorsed for transfer or
redemption, accompanied by such documents as FDISG reasonably may
deem necessary.
(c) FDISG reserves the right to refuse to transfer or repurchase
Shares until it is satisfied that the endorsement on the
instructions is valid and genuine. FDISG also reserves the right
to refuse to transfer or repurchase Shares until it is satisfied
that the requested transfer or repurchase is legally authorized,
and it shall incur no liability for the refusal, in good faith, to
make transfers or repurchases which FDISG, in its good judgment,
deems improper or unauthorized, or until it is reasonably
satisfied that there is no basis to any claims adverse to such
transfer or repurchase.
(d) When Shares are redeemed, FDISG shall, upon receipt of the
instructions and documents in proper form, deliver to the
Custodian and the Fund or its designee a notification setting
forth the number of Shares to be repurchased. Such repurchased
shares shall be reflected on appropriate accounts maintained by
FDISG reflecting outstanding Shares of the Fund and Shares
attributed to individual accounts.
(e) FDISG shall upon receipt of the monies provided to it by the
Custodian for the repurchase of Shares, pay such monies as are
received from the Custodian, all in accordance with the procedures
described in the written instruction received by FDISG from the
Fund.
(f) FDISG shall not process or effect any repurchase with respect
to Shares of the Fund after receipt by FDISG or its agent of
notification of the suspension of the determination of the net
asset value of the Fund.
7. Dividends
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to
Shares of the Fund, the Fund shall furnish or cause to be
furnished to FDISG Written Instructions setting forth the date of
the declaration of such dividend or distribution, the ex-dividend
date, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined, the amount
payable per Share to the Shareholders of record as of that date,
the total amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at net asset
value.
(b) On or before the payment date specified in such resolution of
the Board of Directors, the Fund will provide FDISG with
sufficient cash to make payment to the Shareholders of record as
of such payment date.
(c) If FDISG does not receive sufficient cash from the Fund to
make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, FDISG will, upon
notifying the Fund, withhold payment to all Shareholders of record
as of the record date until sufficient cash is provided to FDISG.
8. In addition to and neither in lieu nor in contravention of
the services set forth above, FDISG shall: (i) perform all the
customary services of a transfer agent, registrar, dividend
disbursing agent and agent of the dividend reinvestment and cash
purchase plan as described herein consistent with those
requirements in effect as at the date of this Agreement. The
detailed definition, frequency, limitations and associated costs
(if any) set out in Schedule B, include but are not limited to:
maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, tabulating proxies, mailing
Shareholder reports to current Shareholders, withholding taxes on
U.S. resident and non-resident alien accounts where applicable,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders.
Schedule B
FEE SCHEDULE
1. Standard Fees
$15.00 per account with a $6,000 minimum fee per Fund per
annum
After the one year anniversary of the effective date of this
Agreement, FDISG may adjust the above fees once per calendar year,
upon thirty (30) days prior written notice in an amount not to
exceed the cumulative percentage increase in the Consumer Price
Index for All Urban Consumers (CPI-U) U.S. City Average, All items
(unadjusted) - (1982-84=100), published by the U.S. Department of
Labor since the last such adjustment in the Client's monthly fees
(or the Effective Date absent a prior such adjustment).
2. Programming Costs
(a) Dedicated Team:
Programmer $100,000 per annum
BSA $ 85,000 per annum
Tester $ 65,000 per annum
(b) System Enhancements (Non Dedicated Team):
Programmer $135.00 per hour
The above rates are subject to an annual 5% increase after the one
year anniversary of the effective date of this Agreement.
3. PRINT/MAIL CHARGES
1. Daily Output
(a) Shareholder Statements:
Base stock, laser printing, folding, inserting and mailing,
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
Set up Fee: $15.00 per work
order
(b) Combined Statements (Householding multiple statements in one
envelope):
Base stock, laser printing, folding, inserting and mailing,
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per
image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
Set up Fee: $15.00 per work
order
(c) Combined Exchange Statements (To and from exchange on one
confirm):
Base stock, laser printing, folding, inserting and mailing
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
2. Dividend Output
(a) Shareholder Statements:
Base stock, laser printing, folding, inserting and mailing,
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
(b) Dividend Checks:
Base stock, laser printing, folding, inserting and mailing,
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.179 per image
3,500 - 10,000 $.169 per
image
10,001 and above $.16 per image
Minimum Charge $25.00 per work
order
3. Consolidated Statements
Shareholder & Dealer Statements:
Base stock, laser printing, folding, inserting and mailing
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
Selective Inserting Charges $.03 per
envelope
(minimum $250)
4. On-Request 'Super Select* Statements
Shareholder Statements:
Base stock, laser printing, folding inserting and mailing,
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
Set up Fee: $15.00 per work
order
5. New Account Letters
Base stock, laser printing, folding, inserting and mailing,
(excluding postage and envelopes)
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
Set up Fee: $15.00 per work
order
6. T.I.N. Solicitations
Daily Statements, Educational TIN, B-Notice, Second B-notice:
Base stock, laser printing, folding, inserting and mailing
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
(excluding postage and envelopes) $15.00 per
work order
7. Wire Order Invoice Statements
Base stock, laser printing, folding, inserting and mailing
Number of Items Per Fund Price
1 - 3,500 $.135 per image
3,501 - 10,000 $.125 per
image
10,001 - and above $.12 per
image
Minimum Charge $25.00 per work
order
(excluding postage and envelopes) $15.00 per
work order
8. Label List Mailings
Cheshire labeling and mail first class
$29.00/thousand
Labeling, inserting and mailing $50.00
set up charge
(excludes postage and envelopes)
9. Miscellaneous Services
Charge Per Unit
1 Additional Insert $20
1,000
2 Additional Inserts $40
1,000
3 Additional Inserts $60
1,000
4 Additional Inserts $80
1,000
5 Additional Inserts $100
1,000
6 Additional Inserts $120
1,000
7 Additional Inserts $140
1,000
8 Additional Inserts $160
1,000
Folding $20
1,000
Manual Processing $25 Per Hour
NOTE: Costs of all materials used are in addition to all prices.
Postage is in addition, (50-50 split of postal savings).
After the one year anniversary of the effective date of this
Agreement, FDISG may adjust the above fees once per calendar year,
upon thirty (30) days prior written notice in an amount not to
exceed the cumulative percentage increase in the Consumer Price
Index for All Urban Consumers (CPI-U) U.S. City Average, All items
(unadjusted) - (1982-84=100), published by the U.S. Department of
Labor since the last such adjustment in the Client's monthly fees
(or the Effective Date absent a prior such adjustment).
Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse FDISG monthly for applicable
out-of-pocket expenses, including the following items:
Microfiche/microfilm production
Magnetic media tapes and freight
Printing costs, including certificates, envelopes, checks and
stationery
Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct
pass through to the Fund
Due diligence mailings
Telephone and telecommunication costs, including all lease,
maintenance and line costs
Ad hoc reports as approved by the Fund
Proxy solicitations, mailings and tabulations
Daily & Distribution advice mailings
Shipping, Certified and Overnight mail and insurance
Year-end form production and mailings
Terminals, communication lines, printers and other equipment and
any expenses incurred in connection with such terminals and lines
Duplicating services
Courier services
Incoming and outgoing wire charges
Federal Reserve charges for check clearance
Overtime, as approved by the Fund
Temporary staff, as approved by the Fund
Travel and entertainment, as approved by the Fund
Record retention, retrieval and destruction costs, including, but
not limited to exit fees charged by third party record keeping
vendors
Third party audit reviews
Ad hoc SQL time as approved by the Fund
The Fund agrees that postage and mailing expenses will be paid on
the day of or prior to mailing as agreed with FDISG. In addition,
the Fund will promptly reimburse FDISG for any other unscheduled
expenses incurred by FDISG whenever the Fund and FDISG mutually
agree that such expenses are not otherwise properly borne by FDISG
as part of its duties and obligations under the Agreement.
Schedule D
FUND DOCUMENTS
Certified copy of the Articles of Incorporation of the Fund, as
amended
Certified copy of the By-laws of the Fund, as amended,
Copy of the resolution of the Board of Directors authorizing the
execution and delivery of this Agreement
Specimens of the certificates for Shares of the Fund, if
applicable, in the form approved by the Board of Directors of the
Fund, with a certificate of the Secretary of the Fund as to such
approval
All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by
the Fund
Certified list of Shareholders of the Fund with the name, address
and taxpayer identification number of each Shareholder, and the
number of Shares of the Fund held by each, certificate numbers and
denominations (if any certificates have been issued), lists of any
accounts against which stop transfer orders have been placed,
together with the reasons therefore, and the number of Shares
redeemed by the Fund
All notices issued by the Fund with respect to the Shares in
accordance with and pursuant to the Articles of Incorporation or
By-laws of the Fund or as required by law and shall perform such
other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or
annual meetings of shareholders and any other notices required
thereby.
Exhibit 1-A to Schedule A
Performance Standards
Pursuant to Section 3.3 of this Agreement, FDISG has agreed
to perform the services described in this Agreement in accordance
with the Performance Standards set forth in this Exhibit 1 to
Schedule A. The parties agree that the measurement of the
Performance Standards will not begin until ninety (90) days after
FDISG has begun providing services under this Agreement. The
parties agree that each quarterly period, as described below, will
be measured on a rolling three calendar month period. The parties
agree that such Performance Standards, which are described below,
may be revised from time to time upon the mutual agreement of the
parties. The parties agree that any new Funds that may be added
to the Fund from time to time will be entitled to similar
Performance Standards and measuring periods.
(a) In the event that FDISG fails to meet a particular
Performance Standard (except any failure due to circumstances
beyond its control) in any particular quarter, the Fund will
provide FDISG with written notice of such failure, and FDISG
agrees to take appropriate corrective action as soon as reasonably
possible.
(b) In the event that FDISG fails to meet a particular
Performance Standard (except for any failure due to circumstances
beyond its control) in two (2) consecutive quarters, the fee
payable to FDISG hereunder for such service shall be reduced by
thirty percent (30%) for the second of those two quarters.
(c) In the event that FDISG fails to meet a particular
Performance Standard (except for any failure due to circumstances
beyond its control) for any three (3) consecutive quarters, the
Fund shall have the right to terminate this Agreement upon sixty
(60) days' written notice to FDISG.
(d) Compliance with the Performance Standards shall be
measured quarterly based on the average performance during that
quarter. In the event that volumes shall exceed 500 wires per
day, compliance with the Performance Standards shall then be
measured monthly based on the average performance during that
month. A month shall be defined as a calendar month.
(e) The Performance Standards shall be as follows:
Wire Room and Operations
1)
Redemption
call in by
Wires
pulled by
First Data
Wires Sent
out by
First Data
12:00 pm
Eastern
(9:00 am
Pacific)
12:20 pm
Eastern
(9:20 am
Pacific)
1:00 pm
Eastern
(10:00 am
Pacific)
2:00 pm
Eastern
(11:00 am
Pacific)
2:20 pm
Eastern
(11:20 am
Pacific)
3:00 pm
Eastern
(12:00 pm
Pacific)
3:00 pm
Eastern
(12:00 pm
Pacific)
3:15 pm
Eastern
(12:15 pm
Pacific)
4:00 pm
Eastern
(1:00 pm
Pacific)
2) Accurate ACH and wires sent to correct location 98% of the
time.
