EXHIBIT 23h(4). - FORM OF SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
between
NYLIM SERVICE COMPANY LLC
and
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
1. Terms of Appointment; Duties of the Servicing Agent..................1
2. As of Reporting and Adjustments......................................3
3. Fees and Expenses....................................................5
4. Representations and Warranties of the Servicing Agent................5
5. Representations and Warranties of the Transfer Agent.................6
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code....................................................6
7. Data Access and Proprietary Information..............................8
8. Indemnification......................................................9
9. Standard of Care....................................................11
10. Covenants of the Transfer Agent and the Servicing Agent.............11
11. Termination of Agreement............................................12
12. Assignment..........................................................12
13. Amendment...........................................................12
14. Massachusetts Law to Apply..........................................13
15. Force Majeure.......................................................13
16. Consequential Damages...............................................13
17. Merger of Agreement.................................................13
18. Counterparts........................................................13
19. Reproduction of Documents...........................................13
20. S.I.C. Inquiry......................................................14
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ___ day of ___________, 2001, by and between NYLIM
SERVICE COMPANY LLC, a Delaware limited liability company, having its principal
office and place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 (the "Transfer Agent"), and BOSTON FINANCIAL DATA SERVICES, INC. a
Massachusetts corporation having its principal office and place of business at 0
Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Servicing Agent").
WHEREAS, the Transfer Agent has been appointed by each of the investment
companies (including each series thereof) listed on Schedule A (the "Fund(s)"),
each an open-end management investment company registered under the Investment
Company Act of 1940, as amended, as transfer agent, dividend disbursing agent
and shareholder Servicing Agent in connection with certain activities, and the
Transfer Agent has accepted each such appointment as evidenced in the transfer
agency agreement between each of the Funds and the Transfer Agent dated as of
__________________, 2001;
WHEREAS, the Transfer Agent has entered into a Transfer Agency and Service
Agreement with the Funds (including each series thereof) listed on Schedule A
pursuant to which the Transfer Agent is responsible for certain transfer agency
and dividend disbursing functions and the Transfer Agent is authorized to
subcontract for the performance of its obligations and duties thereunder in
whole or in part with the Servicing Agent;
WHEREAS, the Transfer Agent wishes to have the Servicing Agent perform
certain shareholder accounting, administrative and servicing functions
(collectively "Shareholder and Record-Keeping Services");
WHEREAS, the Transfer Agent desires to appoint the Servicing Agent as its
agent, and the Servicing Agent desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Terms of Appointment; Duties of the Servicing Agent
1.1. Subject to the terms and conditions set forth in this Agreement, the
Transfer Agent hereby employs and appoints the Servicing Agent to act
as, and the Servicing Agent agrees to act as, the agent of the
Transfer Agent for the shares of each of the Funds in connection with
any accumulation, letter of intent, retirement plans or similar pure
plans provided to the shareholders of each Fund ("Shareholders") and
set out in the currently effective prospectus and statement of
additional information ("prospect") of each such Fund, including
without limitation any periodic investment plan or periodic withdrawal
program. As used herein, the term "Shares" means the authorized and
issued shares of common stock, or shares of beneficial interest, as
the case may be, for each of the Funds (including each series and
class thereof) enumerated in Schedule A.
1.2. The Servicing Agent agrees that it will perform the following
Shareholder and Record-Keeping services:
(a) In accordance with procedures established from time to time by
agreement between the Transfer Agent and the Servicing Agent, the
Servicing Agent shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation
therefor to the Custodian of the Fund authorized pursuant
to the Articles of Incorporation or Declaration of Trust
of each Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate
Shareholder account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation
therefor to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and
(iii) above, the Servicing Agent shall execute
transactions directly with broker-dealers authorized by
the Funds;
(v) At the appropriate time as and when it receives movies
paid to it by the Custodian with respect to any
redemption, pay over or cause to be paid over in the
appropriate manner such movies as instructed by the
redeeming Shareholders;
(vi) Prepare and transmit payments for dividends and
distributions declared by each Fund;
(vii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Servicing Agent of indemnification
satisfactory to the Servicing Agent and protecting the
Servicing Agent, Transfer Agent and each Fund, and the
Servicing Agent at its option, may issue replacement
certificates in place of mutilated stock certificates upon
presentation thereof and without such indemnity; and
(viii) Maintain records of account for and advise the Fund and
its Shareholders as to the foregoing.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Servicing
Agent shall: (i) perform the customary services of a transfer
agent, dividend disbursing agent, and, as relevant, agent in
connection with accumulation, letter of intent, retirement
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plans or similar purchase plans (including without limitation any
periodic investment plan or periodic withdrawal program),
including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies,
mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident
alien accounts, preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required with respect to
dividends and distributions by federal authorities for all
Shareholders, preparing and mailing confirmation forms and
statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in
Shareholder accounts, preparing and mailing activity statements
for Shareholders, and providing Shareholder account information
and (ii) provide a system which will enable each Fund to monitor
the total number of Shares sold in each State.
(c) In addition, each Fund shall (i) identify to the Servicing Agent
in writing those transactions and assets to be treated as exempt
from blue sky reporting for each State and (ii) verify the
establishment of transactions for each State on the system prior
to activation and thereafter monitor the daily activity for each
State. The responsibility of the Servicing Agent for each Fund's
blue sky State registration status, is solely limited to the
initial establishment of transactions subject to blue sky
compliance by each Fund and the reporting of such transactions to
each Fund as provided above.
(d) Procedures as to who shall provide certain of these services in
Section 1 may be established from time to time by agreement
between the Transfer Agent and the Servicing Agent per the
attached service responsibility schedule. The Servicing Agent may
at times perform only a portion of these services and the
Transfer Agent, the Funds or their agent may perform these
services on each Fund's behalf.
(e) The Servicing Agent may provide additional services on behalf of
the Transfer Agent (i.e., escheatment services) which may be
agreed upon in writing between the Fund and the Servicing Agent.
2. As of Reporting and Adjustments
2.1. The Transfer Agent on behalf of the Funds and the Servicing Agent on
behalf of State Street Bank and Trust Company agree that all prior
adjustments for Share transactions which involve purchase, redemption
and repurchase orders processed at a time other than computation of
net asset value ("NAV") per Share next computed after receipt of such
orders shall be carried forward under this Agreement whether such
adjustments are positive or negative to the Fund.
2.2. The Servicing Agent shall:
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(a) Utilize a system to identify all Share transactions which involve
purchase, redemption, and repurchase orders that are processed at
a time other than the time of computation of NAV per Share next
computed after receipt of such orders, identify the source of
such transactions, and shall compute the net effect upon the Fund
of such transactions so identified on a daily and cumulative
basis.
(b) If on the last business day of any month the cumulative net
effect upon the Fund (adjusted by the. amount of all prior
credits by the Servicing Agent) is negative, the Transfer Agent
shall be entitled to a reduction in the fee next payable under
the Agreement by an equivalent amount, except as provided in
Section (c) below. If on the last business day in any month the
cumulative net effect upon the Fund (adjusted by the amount of
all prior payments and credits by the Servicing Agent) is
positive, the Servicing Agent shall be entitled to recover
certain past payments and reductions in fees, and to credit
against all future payments and fee reductions that may be
required under the Agreement as herein described in Section (c)
below.
(c) At the end of each month, any positive cumulative net effect upon
the Fund arising from the Servicing Agent's activity, shall be
deemed to be a credit to the Servicing Agent which shall first be
applied to permit the Servicing Agent to recover any prior fee
reductions made by it to the Transfer Agent under Section (b)
above, by increasing the amount of the monthly fee under the
Agreement next payable in an amount equal to prior fee reductions
made by the Servicing Agent, but not exceeding the sum of that
month's credit and credits arising in prior months to the extent
such prior credits have not previously been utilized as
contemplated by this Section (c). Any portion of a credit to the
Servicing Agent not so used by it shall remain as a credit to be
used as payment against the amount of any future negative
cumulative net effects that would otherwise require a fee
reduction to be made to the Transfer Agent pursuant to Section
(b) above.
(d) The Servicing Agent shall supply to the Transfer Agent monthly
report summarizing the transactions identified pursuant to
Section (a) above, and the daily and cumulative net effects of
such transactions, and shall advise the Transfer Agent at the end
of each month of the net cumulative effect at such time. The
Servicing Agent shall promptly advise the Transfer Agent which
shall advise the Fund if at any time the cumulative net effect
exceeds a dollar amount equivalent to 1/2% of 1 cent per Share.
(e) In the event that this Agreement is terminated for whatever
cause, or sections 2.2 (b), (c) and (d) are terminated pursuant
to Section (f) below, the Transfer Agent shall promptly pay to
the Servicing Agent an amount in cash equal to the amount by
which the cumulative net effect upon the Fund is positive or, if
the cumulative net effect upon the Fund is negative, the
Servicing Agent shall promptly pay to the Transfer Agent an
amount in cash equal to the amount of such cumulative net effect.
The Transfer
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Agent will seek reimbursement from the Funds for payment
hereunder to the Servicing Agent, provided however, that the
Transfer Agent's duty to pay hereunder is due regardless of where
the Funds choose to reimburse the Transfer Agent.
(f) Sections 2.2 (b), (c) and (d) of the Agreement may be terminated
by the Servicing Agent at any time for reasonable cause and upon
60 days prior written notice to the Transfer Agent.
3. Fees and Expenses
3.1. For the performance by the Servicing Agent pursuant to this Agreement,
the Transfer Agent agrees to pay the Servicing Agent an annual
maintenance fee for each Shareholder account as set out in the initial
fee schedule attached hereto. Such fees and out-of-pocket expenses and
advances identified under Section 3.2 below may be changed from time
to time subject to mutual written agreement between the Transfer Agent
and the Servicing Agent.
3.2. In addition to the fee paid under Section 3.1 above, the Transfer
Agent agrees to reimburse the Servicing Agent for reasonable
out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche,
tabulating proxies, records storage, or advances incurred by the
Servicing Agent for the items set out in the fee schedule attached
hereto. In addition, any other expenses reasonably incurred by the
Servicing Agent at the request or with the consent of the Transfer
Agent, will be reimbursed by the Fund.
3.3. The Transfer Agent agrees to pay all fees and reimbursable expenses
promptly following the receipt of the respective billing notice.
Postage for mailing of dividends, proxies, Fund reports and other
mailings to all shareholder accounts shall be advanced to the
Servicing Agent by the Transfer Agent at least seven (7) days prior to
the mailing date of such materials.
4. Representations and Warranties of the Servicing Agent
The Servicing Agent represents and warrants to the Transfer Agent that:
4.1. It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended ("Section 17A(c)(2)")
4.2. It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3. It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
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4.4. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
5. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Servicing Agent that:
5.1. It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Delaware.
5.2. It is empowered under applicable laws and by its Articles of
Organization, Operating Agreement and By-Laws to enter into and
perform this Agreement.
5.3. All corporate proceedings required by said Articles of Organization,
Operating Agreement and By-Laws have been taken to authorize it to
enter into and perform this Agreement. 5.4. Each Fund is an open-end
management investment company registered under the Investment Company
Act of 1940, as amended.
5.5. A registration statement under the Securities Act of 1933, as amended
for each Fund is currently effective and will remain effective, and
appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of each Fund being
offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
Code
6.1. The Servicing Agent is authorized to promptly debit the appropriate
Transfer Agent account(s) upon the receipt of a payment order in
compliance with the selected security procedure (the "Security
Procedure") chosen for funds transfer and in the amount of money that
the Servicing Agent has been instructed to transfer. The Servicing
Agent shall execute payment orders in compliance with the Security
procedure and with the Transfer Agent 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.
6.2. The Transfer Agent acknowledges that the Security Procedure it has
designated on the Transfer Agent Selection Form was selected by the
Transfer Agent from security procedures offered by the Servicing
Agent. The Transfer Agent shall restrict access to confidential
information relating to the Security Procedure to authorized persons
as communicated to the Servicing Agent in writing. The Transfer Agent
must notify the Servicing Agent immediately if it has reason to
believe unauthorized persons may have obtained access to such
information or of
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any change in the Transfer Agent's authorized personnel. The Servicing
Agent shall verify the authenticity of all Transfer Agent instructions
according to the Security Procedure.
6.3. The Servicing Agent shall process all payment orders on the basis of
the account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the
account number, the account number shall take precedence and govern.
6.4. The Servicing Agent reserves the tight to decline to process or delay
the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of the
Servicing Agent's receipt of such payment order; (b) if initiating
such payment order would cause the Servicing Agent, in the Servicing
Agent's sole judgement, to exceed any volume, aggregate dollar;
network, time, credit or similar limits which are applicable to the
Servicing Agent; or (c) if the Servicing Agent, in good faith, is
unable to satisfy itself that the transaction has been properly
authorized.
6.5. The Servicing 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 Servicing Agent reasonable
opportunity to act. However, the Servicing Agent assumes no liability
if the request for amendment or cancellation cannot be satisfied.
6.6. The Servicing Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Servicing Agent
complies with the payment order instructions as received and the
Servicing Agent complies with the Security Procedure. The Security
Procedure is established for the purpose of authenticating payment
orders only and not for the detection of errors in payment orders.
6.7. The Servicing Agent shall assume no responsibility for lost interest
with respect to the refundable amount of any unauthorized payment
order, unless the Servicing Agent is notified of the unauthorized
payment order within thirty (30) days of notification by the Servicing
Agent of the acceptance of such payment order. In no event (including
failure to execute a payment order) shall the Servicing Agent be
liable for special, indirect or consequential damages, even if advised
of the possibility of such damages.
6.8. When the Transfer Agent 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 Servicing 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 Servicing Agent with respect to an
ACH credit entry are provisional until the Servicing Agent receives
final
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settlement for such entry from the Federal Reserve Servicing Agent. If
the Servicing Agent does not receive such final settlement, the
Transfer Agent agrees that the Servicing Agent shall receive a refund
of the amount credited to the Transfer Agent in connection with such
entry, and the party malting payment to the Transfer Agent via such
entry shall not be deemed to have paid the amount of the entry.
6.9. Confirmation of Servicing Agent's execution of payment orders shall
ordinarily be provided within twenty four (24) hours notice which may
be delivered through the Servicing Agent's proprietary information
systems, or by facsimile or call-back. Transfer Agent must report any
objections to the execution of an order within thirty (30) days.
6.10.The Bank shall use commercially reasonable efforts, on the Transfer
Agent's behalf, to obtain through banking channels any payments made
in error for whatever reason.
7. Data Access and Proprietary Information
7.1. The Transfer Agent acknowledges that the data bases, computer
programs, screen formats, report formats, interactive design
techniques, and documentation manuals furnished to the Transfer Agent
by the Servicing Agent in connection with the Fund's ability to access
certain Fund-related data ("Customer Data") maintained by the
Servicing Agent on data bases under the control and ownership of the
Servicing Agent ("Data Access Services") constitute copyrighted, trade
secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Servicing Agent or other
third party. In no event shall Proprietary Information be deemed
Customer Data. The Transfer Agent agrees to treat all Proprietary
Information as proprietary to the Servicing Agent and further agrees
that it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder or as required by
law. Without limiting the foregoing, the Transfer Agent agrees for
itself and its employees and agents:
(a) to access Customer Data solely from locations as may be
designated in writing by the Servicing Agent and solely in
accordance with the Servicing Agent's applicable user
documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any portion of
the Proprietary Information, and if such access is inadvertently
obtained, to inform the Servicing Agent in a timely manner of
such fact and dispose of such information in accordance with the
Servicing Agent's instructions;
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(d) to refrain from causing or allowing the data acquired hereunder
from being retransmitted to any other computer facility or other
location, except with the prior written consent of the Servicing
Agent;
(e) to honor all reasonable written requests made by the Servicing
Agent to protect at the Servicing Agent's expense the rights of
the Servicing Agent in Proprietary Information at common law,
under federal copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 7. The obligations of this Section shall
survive any earlier termination of this Agreement.
7.2. If the Transfer Agent notifies the Servicing 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
Servicing Agent shall endeavor in a timely manner to correct such
failure. Organizations from which the Servicing Agent may obtain
certain data included in the Data Access Services are solely
responsible for the contents of such data and the Transfer Agent
agrees to make no claim against the Servicing 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 SERVICING AGENT EXPRESSLY DISCLAIMS
ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE.
7.3. If the transactions available to the Transfer Agent include the
ability to originate electronic instructions to the Servicing Agent in
order to (i) effect the transfer or movement of cash or Shares or (ii)
transmit Shareholder information or other information, then in such
event the Servicing 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 Servicing Agent from time to
time.
8. Indemnification
8.1. The Servicing Agent shall not be responsible for, and the Transfer
Agent shall indemnify and hold the Servicing Agent harmless from and
against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to:
(a) All actions of the Servicing Agent or its agent or subcontractors
required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith and without negligence or
willful misconduct.
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(b) The Transfer Agent's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or
warranty of the Transfer Agent provided under Section 5 hereof.
(c) The reliance on or use by the Servicing Agent or its agents or
subcontractors of information, records, documents or services
which (i) are received by the Servicing Agent or its agents or
subcontractors, and (ii) have been prepared, maintained or
performed by the Transfer Agent or each Fund or any other person
or firm on behalf of the Transfer Agent or each Fund including
but not limited to any previous transfer agent or registrar.
(d) The reliance on, or the carrying out by the Servicing Agent or
its agents or subcontractors of any instructions or requests of
the Transfer Agent or each Fund.
(e) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other
determination or ruling by any federal or any state agency with
respect to the offer or sale of such Shares unless the Transfer
Agent has provided the Servicing Agent with three days written
notice to stop accepting orders for any Fund or class of a Fund
or in any jurisdiction.
(f) The negotiations and processing of checks made payable to
prospective or existing Shareholders tendered to the Servicing
Agent for the purchase of Shares, such checks are commonly known
as "third party checks."
8.2. The Servicing Agent shall indemnify and hold the Transfer Agent
harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or
attributable to the Servicing Agent's lack of good faith, negligence
or willful misconduct in complying with the terms of this Agreement or
which arise out of the breach of any representation or warranty of the
Servicing Agent provided under Section 4 hereof.
8.3. At any time the Servicing Agent may apply to any officer of the
Transfer Agent for instructions, and may consult with legal counsel of
the Transfer Agent with respect to any matter arising in connection
with the services to be performed by the Servicing Agent under this
Agreement, and the Servicing Agent and its agents or subcontractors
shall not be liable and shall be indemnified by the Transfer Agent for
any action taken or omitted by it in reliance upon such instructions
or upon the opinion of such counsel. The Servicing Agent, its agents
and subcontractors shall be protected and indemnified in acting upon
any paper or document, reasonably believed to be genuine and to have
been signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided the Servicing Agent
or its agents or subcontractors by machine readable input, telex, CRT
data entry or other similar means authorized
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by the Transfer Agent, and shall not be held to have notice of any
change of authority of any person, until receipt of written notice
thereof from the Transfer Agent. The Servicing Agent, its agents and
subcontractors shall also be protected and indemnified in recognizing
stock certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of each Fund, and the
proper countersignature of the Transfer Agent or any former transfer
agent or former registrar, or of a co-transfer agent or co-registrar.
8.4. In order that the indemnification provisions contained in this Section
8 shall apply, upon the assertion of a claim for which either party
may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such
assertion, and shall keep the other party advised with respect to all
developments concerning such claim. The party who may be required to
indemnify shall have the option to participate with the party seeking
indemnification in the defense of such claim or to defend against said
claim in its own name. The party seeking indemnification shall in no
case confess any claim or make any compromise in any case in which the
other party may be required to indemnify except with the other party's
prior written consent.
9. Standard of Care
The Servicing Agent shall at all times act in good faith and agrees to use
its best effort within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees.
10. Covenants of the Transfer Agent and the Servicing Agent
10.1.The Transfer Agent shall promptly furnish to the Servicing Agent the
following:
(a) A certified copy of the resolution of the Members of the Transfer
Agent authorizing the appointment of the Servicing Agent and the
execution and delivery of this Agreement.
10.2.The Servicing Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Transfer Agent
for safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or use,
and for keeping account of, such certificates, forms and devices.
10.3.The Servicing Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable.
To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Servicing Agent agrees
that all such records prepared or maintained by the Servicing Agent
relating to the services to be performed by the Servicing Agent
hereunder are the property of each Fund and will be preserved,
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maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to each Fund on and in
accordance with its request. 10.4. The Servicing Agent and the
Transfer Agent agree that all books, records, information and data
pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
00.0.Xx case of any requests or demands for the inspection of the
Shareholder records of any of the Funds, the Servicing Agent will
endeavor to notify the Transfer Agent and to secure instructions from
an authorized officer of the Transfer Agent as to such inspection. The
Servicing Agent reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
11. Termination of Agreement
11.1.This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other or upon such shorter
period of time as may be agreed to in writing by the parties or as may
be required by operation of law.
11.2.Should the Transfer Agent exercise its right to terminate other than
for cause, all out-of-pocket expenses associated with the movement of
records and material will be borne by the Transfer Agent.
Additionally, the Servicing Agent reserves the right to charge for any
other reasonable expenses associated with such termination and/or a
charge equivalent to the average of three (3) months' fees.
12. Assignment
12.1.Except as provided in Section 12.3 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party.
12.2.This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
12.3.The Servicing Agent may, without further consent on the part of the
Transfer Agent, subcontract for the performance hereof with (i) a
Boston Financial Data Services, Inc. ("BFDS") subsidiary duly
registered as a transfer agent pursuant to Section 17A(c)(2) or (ii) a
BFDS affiliate; provided, however, that the Servicing Agent shall be
as fully responsible to the Transfer Agent for the acts and omissions
of any subcontractor as it is for its own acts and omissions.
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13. Amendment
This Agreement may be amended or modified by a written agreement executed
by both parties and authorized or approved by a resolution of the Transfer
Agent.
14. New York Law to Apply
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of New York.
15. Force Majeure
In the event either party is unable to perform its obligations under the
terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes. Notwithstanding the above, the Servicing Agent shall not be excused
from liability in the event any telecommunications, power or equipment (of the
Servicing Agent, its agents or subcontractors) failures could have been avoided
or minimized by such parties having maintained adequate industry standard backup
systems.
16. Consequential Damages
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
17. Merger of Agreement
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject matter hereof
whether oral or written.
18. 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.
19. Reproduction of Documents
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not
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such reproduction was made by a party in the regular course of business, and
that any enlargement, facsimile or further reproduction shall likewise be
admissible in evidence.
20. S.I.C. Inquiry
At the time of receipt of securities from any entity the Servicing Agent
shall comply with applicable inquiry requirements with the Securities
Information Center ("SIC") pursuant to SEC Exchange Act Rule 17f-1. The
Servicing Agent shall promptly advise the Transfer Agent of any such security
reported by the SIC as lost, stolen, missing or counterfeit, and await further
instructions.
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.
NYLIM SERVICE COMPANY LLC
BY:
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---------------------------
ATTEST:
BOSTON FINANCIAL DATA SERVICES, INC.
BY:
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ATTEST:
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BOSTON FINANCIAL DATA SERVICES
TRANSFER AGENT SERVICE RESPONSIBILITIES*
Responsibility Transfer
Service Performed Servicing Agent Agent
1. Receives orders for the purchase of Shares. X X
2. Issue Shares and hold Shares in Shareholders X X
accounts.
3. Receive redemption requests. X X
4. Effect transactions 1-3 above directly with X X
broker-dealers.
5. Pay over movies to redeeming Shareholders. X
6. Effect transfers of Shares. X X
7. Prepare and transmit dividends and distributions. X
8. Issue Replacement Certificates. X X
9. Reporting of abandoned property. X
10. Maintain records of account. X X
11. Maintain and keep a current and accurate control X
book for each issue of securities.
12. Mail proxies. X
13. Mail Shareholder reports. X
14. Prepare and mail written correspondence. X
15. Mail prospectuses to current Shareholders. X
16. Withhold taxes on U.S. resident and non-resident X
alien accounts.
17. Prepare and file U.S. Treasury Department forms. X
Responsibility Transfer
Service Performed Servicing Agent Agent
18. Prepare and mail account and confirmation statements X
for Shareholders.
19. Provide Shareholder account information. X X
20. Blue sky reporting. X
21. Maintain fiduciary accounting and beneficiary records X
22. Prepare and mail required tax forms to shareholders. X
23. File shareholder tax reports with the IRS. X
* Such services are more fully described in Section 1.2 (a), (b) and (c) of the
Agreement.
NYLIM SERVICE COMPANY LLC
BY:
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-------------------------
ATTEST:
BOSTON FINANCIAL DATA SERVICES, INC
BY:
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ATTEST:
2
SCHEDULE A
NYLIM INSTITUTIONAL FUNDS
Effective _____________, 2001
FUND NAME
NYLIM Institutional U.S. Government Cash Fund
NYLIM Institutional Treasury Cash Fund
NYLIM Institutional Prime Cash Fund
FEE SCHEDULE
1) Maintenance and Transaction Charges - Billable monthly
A) Per Account Annual Fee:
The following funds will be billed at a rate of 1 1/2 of the annual
fee for each Fund account serviced during the month. Accounts serviced
is defined as all open accounts at month end and accounts which close
during the month.
Funds Account Rates
NYLIM Institutional U.S. Government Cash Fund $_____
NYLIM Institutional Treasury Cash Fund $_____
NYLIM Institutional Prime Cash Fund $_____
B) Transaction Fees:
1) Transaction Activity
$0.67 per account - automated purchase transactions
$1.23 per account - non-automated transactions
2) ACH Transactions/Checkwriting
$0.50 for each ACH transaction
$1.00 for each checkwriting item
3) Telephone Calls
$2.15 per account
4) Fund Minimum (Cusip/Class/Fund)
$1,000 per month per cusip
The fees and charges set forth shall increase annually over the
fees and charges during the prior 12 months in an amount equal to
the annual percentage of change in the Northeastern Consumer Price
Index as last reported by the U.S. Bureau of Labor Statistics.
These fees are subject to change as NYLIM Service Company LLC
continues to internalize Transfer Agent functions.
2) Out-Of-Pocket
A) Out-of-pocket
Out-of-pocket expenses include but are not limited to:
Confirmation production, postage, forms, telephone, microfilm,
microfiche and expenses incurred at the specific direction of the
fund. Postage for mass mailings is due seven days in advance of
the mailing date.
IN WITNESS WHEREOF, NYLIM Service Company LLC and Boston Financial Data
Services, Inc. have agreed upon this fee schedule and have caused this fee
schedule to be executed in their names and on their behalf through duly
authorized officers.
NYLIM SERVICE COMPANY LLC BOSTON FINANCIAL
DATA SERVICES, INC.
NAME: NAME:
-------------------------- ---------------------------
TITLE: TITLE:
------------------------- ---------------------------
DATE: DATE:
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2
NYLIM Institutional Funds
Fee Schedule
Effective as of _____________, 2001
2) Institutional Funds
A) Per Account Annual Fee:
1) Daily Dividend Funds $15.00
2) Non-Daily Dividend Funds $10.00
The above rates are to be incremented $.25 per dividend
payment cycle (e.g., monthly dividend, add $3.00 to the per
account annual).
B) Closed Accounts $.20 - per account, per month
C) Fund Minimum (Cusip/Class/Fund) $1,024 per month per cusip
The fees and charges set forth shall increase annually over the
fees and charges during the prior 12 months in an amount equal to
the annual percentage of change in the Northeastern Consumer
Price Index as last reported by the U.S. Bureau of Labor
Statistics.
Out-Of-Pocket
A) Out-of-pocket Out-of-pocket expenses include but are not limited
to:
Confirmation production, postage, forms, telephone, microfilm,
microfiche and expenses incurred at the specific direction of the
fund. Postage for mass mailings is due seven days in advance of
the mailing date.
IN WITNESS WHEREOF, NYLIM Service Company LLC and Boston Financial Data
Services, Inc. have agreed upon this fee schedule and have caused this fee
schedule to be executed in their names and on their behalf through duly
authorized officers.
NYLIM SERVICE COMPANY LLC BOSTON FINANCIAL
DATA SERVICES, INC.
NAME: NAME:
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TITLE: TITLE:
------------------------- ---------------------------
DATE: DATE:
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