TRANSFER AGENCY AGREEMENT
Agreement made as of the 7th of August, 1992 between BNY Xxxxxxxx Funds, Inc.,
("Fund") a Maryland corporation, having its principal office and place of
business at 000 Xxxx 00xx Xx., Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 and
Investors Financial Services Company, ("IFSC") a Delaware corporation having
its principal office and place of business at 000 Xxxxx XxXxxxx, Xxxxxxx XX
00000 (hereinafter referred to as the "Transfer Agent").
WITNESSETH:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
1. "Approved Institution" shall mean an entity so named in a Certificate.
From time to time the Fund may amend a previously delivered Certificate by
delivering to the Transfer Agent a Certificate naming an additional entity or
deleting any entity named in a previously delivered Certificate.
2. The "Board of Directors" shall mean the Board of Directors of the Fund.
3. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to the Transfer
Agent by the Fund which is signed by any Officer, as hereinafter defined, and
actually received by the Transfer Agent.
4. "Class" shall mean the various portfolios of the Fund as described from
time to time in the current and effective Prospectuses.
5. "Custodian" shall mean the financial institution appointed as custodian
under the terms and conditions of the Custody Agreement between the financial
institution and the Fund, or its successor(s).
6. "Fund Business Day" shall be deemed to be each day on which the New York
Stock Exchange, Inc. and the Fund are open for trading.
7. "Officer" shall be deemed to be the Fund's Chairman of the Board, the
Fund's President, any Vice President of the Fund, the Fund's Secretary, the
Fund's Treasurer, the Fund's Controller, any Assistant Controller of the Fund,
any Assistant Treasurer of the Fund and any Assistant Secretary of the Fund, and
any other person duly authorized by the Board of Directors of the Fund to
execute any Certificate, instruction, notice or other instrument on behalf of
the Fund and named in the Certificate annexed hereto as Appendix A, as such
Certificate may be amended from time to time, and any person reasonably believed
by the Transfer Agent to be such a person.
8. "Prospectus" shall mean the last Fund prospectus actually received by
the Transfer Agent from the Fund with respect to which the Fund has indicated a
registration statement under the Federal Securities Act of 1933 has becomes
effective, including the Statement of Additional Information, incorporated by
reference
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therein.
9. "Series" shall mean a subclass of shares within a particular Class.
10. "Shares" shall mean all or any part of each class or series of the
shares of beneficial interest of the Fund or Portfolio listed in the Certificate
as to which the Transfer Agent acts as transfer agent hereunder, as may be
amended from time to time, which are authorized and/or issued by the Fund.
11. "Transfer Agent" shall mean Investors Financial Services Company, as
transfer agent and dividend disbursing agent under the terms and conditions of
this Agreement, its successor(s) or assign(s).
12. "0ut-of-Pocket Expenses" means amounts reasonably necessary and
actually incurred by Transfer Agent in the provision of Transfer Agent services
or pursuant to this Agreement for the following purposes: postage (and first
class mail insurance in connection with mailing share certificates), envelopes,
check forms, continuous forms, forms for reports and statements, stationery, and
other similar items, telephone and telegraph charges incurred in answering
inquiries from dealers or shareholders, microfilm used to record transactions in
shareholder accounts and computer tapes used for permanent storage of records
and cost of insertion of materials in mailing envelopes by outside firms.
Transfer Agent may, at its option, arrange to have various service providers
submit invoices directly to the Fund for payment of out-of-pocket expenses
reimbursable hereunder; and such other
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expenses paid or incurred by Transfer Agent at the request of the Fund.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Fund hereby constitutes and appoints the Transfer Agent as transfer
agent of all the Shares of the Fund and as dividend disbursing agent during the
period of this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform duties thereof as hereinafter
set forth.
3. In connection with such appointment, the Fund upon the request of the
Transfer Agent, shall deliver the following documents to the Transfer Agent:
(i) A copy of the Articles of Incorporation of the Fund and all
amendments thereto certified by the Secretary of the Fund;
(ii) A copy of the By-Laws of the Fund certified by the Secretary of
the Fund;
(iii) A copy of a resolution of the Board of Directors of the Fund
certified by the Secretary of the Fund appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Fund specifying: the
number of authorized Shares, the number of such authorized Shares issued, the
number of such authorized Shares issued and currently outstanding; the names and
specimen signatures
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of the officers of the Fund; and the name and address of the legal counsel for
the Fund;
(v) Specimen Share certificate for each or series class of Shares in
the form approved by the Board of Directors of the Fund, together with a
Certificate signed by the Secretary or Assistant Secretary of the Fund as to
such approval;
(vi) Copies of the Fund's Registration Statement, as amended to date,
and the most recently filed Post-Effective Amendment thereto, filed by the Fund
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and under the Investment Company Act of 1940, as amended, together with
any applications filed in connection therewith; and
(vii) Opinion of counsel for the Fund with respect to the validity of
the authorized and outstanding Shares, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become effective or, if exempt, the specific grounds therefor.)
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Fund shall deliver to the Transfer Agent the following documents on
or before the effective date of any increase or decrease in the total number of
Shares authorized to be issued:
(a) A certified copy of the amendment to the Articles of
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Incorporation giving effect to such increases or decreases;
(b) In the case of an increase, an opinion of counsel for the Fund
with respect to the validity of the Shares of the Fund and the status of such
Shares under the Securities Act of 1933, as amended, and any other applicable
federal law or regulation (ie., if subject to registration, that they have been
registered and that the Registration Statement has become effective or, if
exempt, the specific grounds therefor); and
(c) In the case of an increase, if the appointment of the Transfer
Agent was theretofore expressly limited, a certified copy of a resolution of the
Board of Directors of the Fund increasing the authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares of the Fund pursuant to
stock dividends or stock splits, etc., and prior to any reduction in the number
of shares outstanding, the Fund shall deliver the following documents to the
Transfer Agent:
(a) A certified copy of the resolution (s) adopted by the Board of
Directors and/or the shareholders of the Fund authorizing such issuance of
additional Shares of the Fund or such reduction, as the case may be, and
(b) An opinion of counsel for the Fund with respect to the validity of
the Shares of the Fund and the status of such Shares under the Securities Act of
1933, as amended, and any other applicable federal law or regulation (i.e., if
subject to registration, that they have been registered and that the
Registration Statement has become effective, or, if exempt, the
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specific grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other
capital adjustment requiring a change in the form of Share certificates, the
Transfer Agent will issue Share certificates in the new form in exchange f or,
or upon transfer of, outstanding Share certificates in the old form, upon
receiving:
(a) A Certificate authorizing the issuance of the Share certificates in
the new form;
(b) A certified copy of any amendment to the Articles of Incorporation
with respect to the change;
(c) Specimen Share certificates for each class of Shares in the new
form approved by the Board of Directors of the Fund, with a Certificate signed
by the Secretary of the Fund as to such approval; and
(d) An opinion of counsel for the Fund with respect to the validity of
the Shares in the new form and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable federal law or
regulation (i.e., if subject to registration, that the Shares have been
registered and that the Registration Statement has become effective or, if
exempt, the specific grounds therefor.)
2. The Fund at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form and from time to
time will replenish such supply upon the
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request of the Transfer Agent. Such blank Share certificates shall be properly
signed by facsimile or otherwise by Officers of the Fund authorized by law or
by the By-Laws to sign Share certificates and, if required shall bear the
corporate Seal or facsimile thereof. The Fund agrees to indemnify and exonerate,
save and hold the Transfer Agent harmless, from and against any and all claims
or demands that may be asserted against the Transfer Agent with respect to
whether the supply of Share certificates provided to the Transfer Agent pursuant
to this section constitutes validly issued Shares of the Fund.
ARTICLE V
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of the
Fund's prospectuses which prospectuses describe how sales and redemption of
shares of the Fund shall be made, and the Transfer Agent agrees to accept
purchase orders and redemption requests with respect to Fund shares on each Fund
Business Day in accordance with such prospectuses. The Fund agrees to notify the
Transfer Agent as soon as possible under the circumstances of any changes in the
procedures set forth in the prospectuses regarding such purchase and redemption
procedure.
(b) The Transfer Agent shall also accept with respect to each Fund
Business Day, at such times as are agreed upon from time to time by the
Transfer Agent and the Fund, a computer tape consistent in all respects with the
Transfer Agent's tape layout
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package, as amended from time to time upon prior written notice to the Fund or
its Distributor which is believed by the Transfer Agent to be furnished by or on
behalf of any Approved Institution. In the event such tape or electronic data
transmission cannot be processed, Transfer Agent shall as soon as practicable
notify the Fund and shall endeavor, in good faith, to process any substitute
computer tape or electronic data transmission. The Transfer Agent shall not be
liable for any losses or damages to the Fund or its shareholders in the event
that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason beyond the reasonable
control of the Transfer Agent, or if any of the information on such tape or
transmission is found to be incorrect, provided, that the Transfer Agent was
unaware that the information was incorrect at the time it took action. Transfer
Agent shall notify Fund and sender as soon as practicable upon discovery of
errors in such information.
2. On each Fund Business Day a duly authorized officer or employee of the
Transfer Agent shall furnish the following information by telephone call to an
Officer of the Fund or by such other form to such other person as shall be
agreed upon from time to time by the Fund and the Transfer Agent:
(a) The total dollar amount to be applied to the purchase of Shares of
each Class or Series on such day, computed by aggregating the amount so
specified in (i) such of the purchase orders described in preceding paragraph 1
(a) of this Article with respect to which payment has been, or will be, credited
by the
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Custodian to the Fund's custody account with the Custodian on such day, and (ii)
all computer tapes described in preceding paragraph 1(b) of this Article timely
received by the Transfer Agent with respect to such day and with respect to
which payment has been, or will be, credited by the Custodian on such day.
(b) The total dollar amount of Shares of each Class or Series to be
redeemed on such day, computed by aggregating the amount so specified in (i)
such of the redemption requests described in preceding paragraph 1(a) of this
Article with respect to which the amount payable as redemption proceeds has
been, or will be, charged by the Custodian on such day, and (ii) all computer
tapes described in preceding paragraph 1(b) of this Article with respect to
which the amount payable as redemption proceeds has been, or will be, charged by
the Custodian on such day.
3. On each Fund Business Day the Transfer Agent shall, as of the time at
which the Fund computes the net asset value of each Class or Series of the Fund,
issue to and redeem from the shareholder accounts specified in a purchase order,
redemption request, or computer tape, which in accordance with the Prospectuses
is effective on such Fund Business Day, the appropriate number of full and
fractional Shares based on the net asset value per Share of such Class or Series
specified in an advice received on such Fund Business Day from the Fund or its
Fund Accountant. Notwithstanding the foregoing, if a redemption specified in a
computer tape is for a dollar value of Shares in
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excess of the dollar value of uncertificated Shares in the specified account,
the Transfer Agent shall not effect such redemption in whole or in part and
shall within twenty-four hours orally advise both the Fund and the Approved
Institution which supplied such tape of the discrepancy.
4. In connection with a reinvestment of a dividend or distribution on
Shares of any Class or Series of the Fund, the Transfer Agent shall as of each
Fund Business Day, as specified in a Certificate or resolution described in
paragraph 1 of succeeding Article VI, issue Shares of a Class or Series to the
appropriate shareholder account based on the net asset value per Share of such
Class or Series specified in an advice received from the Fund or its Fund
Accountant on such Fund Business Day.
5. On each Fund Business Day the Transfer Agent shall supply the Fund's
designated Fund Accountant with a statement specifying with respect to the
immediately preceding Fund Business Day (or the same day if a money market
portfolio): the total number of Shares of each Class or Series (including
fractional Shares) issued and outstanding at the opening of business on such
day; the total number of Shares of each Class or Series of the Fund sold on such
day, pursuant to preceding paragraph 3 of this Article; the total number of
Shares of each Class or Series redeemed by the Transfer Agent on such day; the
total number of Shares of each Class or Series if any, issued on such day
pursuant to preceding paragraph 3 of this Article, and the total number of
Shares of each Class or Series of the Fund issued and outstanding.
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6. In connection with each purchase and each redemption of Shares, and each
reinvestment of a dividend or distribution of shares the Transfer Agent shall
send to the shareholder involved such statements as are prescribed by the
Federal Securities laws applicable to transfer agents and/or as required by the
Prospectuses. If the Prospectuses indicate that certificates for Shares are
available and if specifically requested in writing by any shareholder, or if
otherwise required hereunder, the Transfer Agent will countersign, issue and
mail by not less than first class mail to such shareholder at the address set
forth in the records of the Transfer Agent a Share certificate for any full
Shares requested.
7. As of each Fund Business Day the Transfer Agent shall furnish the
Custodian with an advice setting forth the number and dollar amount of each
Class or Series of Shares to be redeemed on such Fund Business Day in accordance
with paragraph 3 of this Article.
8. Upon receipt of a proper redemption request as defined in the
Prospectuses and moneys paid to it by the Custodian in connection with a
redemption of Shares, the Transfer Agent shall cancel the redeemed Shares and
after making appropriate deduction for any withholding of taxes required of it
by applicable law (a) in the case of a redemption of Shares pursuant to a
redemption described in preceding paragraph 1(a) of this Article, make payment
in accordance with the Fund's redemption and payment procedures described in the
Prospectuses, and (b) in the case of a redemption
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of Shares pursuant to a computer tape described in preceding paragraph 1(b) of
this Article, make payment by directing a federal funds wire order to the
account previously designated by the Approved Institution specified in said
computer tape.
9. The Transfer Agent shall not be required to issue any Shares after it
has received from an Officer of the Fund or from an appropriate federal or state
authority written notification that the sale of Shares has been suspended or
discontinued, and the Transfer Agent shall be entitled to rely upon such written
notification.
10. Upon the issuance of any Shares in accordance with this Agreement the
Transfer Agent shall not be responsible f or the payment of any original issue
or other taxes required to be paid by the Fund in connection with such issuance
of any Shares.
11. The Transfer Agent shall accept a computer tape consistent with the
Transfer Agent's tape layout package, as amended from time to time upon prior
written notice to the Fund or its Distributor, which is reasonably believed by
the Transfer Agent to be furnished by or on behalf of any Approved Institution
and is represented to be instructions with respect to the transfer of Shares
from one account of such Approved Institution to another such account, and shall
effect the transfers specified in said computer tape. In the event such tape or
electronic data transmission cannot be processed, Transfer Agent shall as soon
as practicable notify the Fund and shall endeavor, in good faith, to process any
substitute computer tape or electronic data transmission provided to it. The
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Transfer Agent shall not be liable for any losses to the Fund or its
shareholders in the event that a computer tape or electronic data transmission
from an Approved Institution is unable to be processed for any reason beyond the
reasonable control of the Transfer Agent, or if any of the information on such
tape or transmission is found to be incorrect, provided, that the Transfer Agent
was unaware that the information was incorrect at the time it took action.
12.(a) Except as otherwise provided in sub-paragraph (b) of this paragraph
and in paragraph 13 of this Article, Shares will be transferred or redeemed upon
presentation to the Transfer Agent of Share certificates or instructions
properly endorsed for transfer or redemption, accompanied by such documents as
the Transfer Agent deems necessary to evidence the authority of the person
making such transfer or redemption, and bearing satisfactory evidence of the
payment of stock transfer taxes. In the case of small estates where no
administration is contemplated, the Transfer Agent may, when furnished with an
appropriate surety bond, and without further approval of the Fund, transfer or
redeem Shares registered in the name of a decedent where the current market
value of the Shares being transferred does not exceed such amount as may from
time to time is prescribed by various states. The Transfer Agent reserves the
right to refuse to transfer or redeem Shares until it is satisfied that the
endorsement on the stock certificate or instructions is valid and genuine, and
for that purpose it will require a guarantee of signature by an eligible
guarantor
14
[MANUSCRIPT MISSING]
15
Transfer Agent reasonably believes that requiring the same would be inconsistent
with the transfer and redemption procedures as described in the Prospectuses.
13. Notwithstanding any provision contained in this agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer of any Shares pursuant to paragraph 11 of this Article
or any redemption of any Shares pursuant to a computer tape described in this
Agreement, any documents, including, without limitation, any documents of the
kind described in sub-paragraph (a) of paragraph 12 of this Article, to evidence
the authority of the person requesting the transfer or redemption and/or the
payment of any stock transfer taxes, and shall be fully protected in acting in
accordance with the applicable provisions of this Article.
14. (a) As used in this Agreement, the terms "computer tape" and "computer
tape believed by the Transfer Agent to be furnished by an Approved Institution",
shall include any tapes generated by the Transfer Agent to reflect information
reasonably believed by the Transfer Agent to have been inputted by an Approved
Institution, via a remote terminal or other similar link, into a data
processing, storage, or collection system, or similar system (the "System"),
located on the Transfer Agent's premises or utilized by the Transfer Agent. For
purposes of paragraph 1 of this Article, such a computer tape shall be deemed to
have been furnished at such times as are agreed upon from time to time by the
Transfer Agent and Fund only if the information reflected thereon
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was inputted into the System at such times as are agreed upon from time to time
by the Transfer Agent and the Fund.
(b) Nothing contained in this Agreement shall constitute any agreement
or representation by the Transfer Agent to permit, or to agree to permit, any
Approved Institution to input information into a System.
(c) If Transfer Agent objects to the designation by the Fund of any
Approved Institution, the Transfer Agent and Fund shall in good xxxxx xxxxxx
with regard to approval of such institution as an Approved Institution and the
parties shall confer in good faith to resolve such objection. The Transfer Agent
reserves the right to terminate any and all auto-mated data communications, at
its discretion, upon a reasonable and good faith attempt to notify the Fund when
in the opinion of the Transfer Agent continuation of such communications would
jeopardize the accuracy and/or integrity of the Fund's records on the System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a resolution of
its Board of Directors, certified by the Secretary or any Assistant Secretary,
either (i) setting forth with respect to a Class or Series of Shares the date of
the declaration of a dividend or distribution, the date of accrual or payment,
as the case may be, thereof, the record date as of which Shareholders entitled
to payment, or accrual, as the case may be, shall be determined, the amount per
Share of such dividend or distribution,
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the payment date on which all previously accrued and unpaid dividends are to be
paid, and the total amount, if any, payable to the Transfer Agent on such
payment date, or (ii) authorizing the declaration of dividends and distributions
on a daily or other periodic basis and authorizing the Transfer Agent to rely on
a Certificate setting forth the information described in subsection (i) of this
paragraph.
2. Upon the payment date specified in such Certificate or resolution, as
the case may be, the Fund shall, in the case of a cash dividend or distribution,
cause the Custodian to deposit into accounts maintained by the Fund an amount of
cash, sufficient for the Transfer Agent to make the payment, if any, specified
in such Certificate or resolution, as the case may be, to the Shareholders who
were of record on the record date who are entitled to receive the cash dividend
or distribution. The Transfer Agent will, upon receipt of any such cash, make
payment of such cash dividends or distributions to the shareholders of record as
of the record date by: (i) mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address, or
transmitting payment through the Automated Clearing House System or (ii) wiring
such amounts or transmitting such amounts through the Automated Clearing House
System to the accounts previously designated by an Approved Institution, as
the case may be. The Transfer Agent shall not be responsible for assuring that
there are sufficient funds in the Fund's bank account to make such payments.
3. It is understood that the Transfer Agent shall in no way
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be responsible for the determination of the rate or form of dividends or capital
gain distributions due to the shareholders. It is expressly agreed and
understood that the Transfer Agent is not liable for any loss as a result of
processing a distribution based on information provided in the Certificate that
is incorrect. The Fund agrees to pay the Transfer Agent for any and all costs,
both direct and out-of-pocket expenses, incurred in such corrective work as
necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such appropriate
information returns concerning the payment of dividend and capital gain
distributions with the proper federal, state and local authorities as are
required by law to be filed by the Fund but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or distributions
due to shareholders, except and only to the extent, required by applicable law.
To the extent such collection or withholding of taxes is required of the
Transfer Agent, it shall pay on a timely basis to the appropriate authority any
amounts required to be remitted to the authority.
ARTICLE VII
CONCERNING THE FUND
1. The Fund represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing under the laws of
the State of Maryland.
(b) It is empowered under applicable laws and by its Articles of
Incorporation and by-laws to enter into and perform
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this Agreement.
(c) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
(d) It is an investment company registered under the Investment Company
Act of 1940, as amended.
(e) A registration statement under the Securities Act of 1933, as
amended, with respect to the Shares is effective. The Fund shall notify the
Transfer Agent if such registration statement or any state securities
registrations have been terminated or a stop order has been entered with respect
to the Shares.
2. Each copy of the Articles of Incorporation of the Fund and copies of all
amendments thereto shall be certified by the Secretary of State (or other
appropriate official) of the state of organization, and if such Articles of
Incorporation and/or amendments are required by law also to be filed with a
county or other officer or official body, a certificate of such filing shall be
filed with a certified copy submitted to the Transfer Agent. Each copy of the
By-Laws and copies of all amendments thereto, and copies of resolutions of the
Board of Directors of the Fund, shall be certified by the Secretary or Assistant
Secretary of the Fund under seal.
3. The Fund shall promptly deliver to the Transfer Agent written notice of
any change in the Officers authorized to sign Share Certificates, notifications
or requests, together with a specimen signature of each new officer. In the
event any Officer who shall have signed manually or whose facsimile signature
shall
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have been affixed to blank Share certificates shall die, resign or be removed
prior to issuance of such Share certificates, the Transfer Agent may issue such
Share certificates of the Fund notwithstanding such death, resignation or
removal, and the Fund shall promptly deliver to the Transfer Agent such
approval, adoption or ratification as may be required by law.
4. It shall be the sole responsibility of the Fund to deliver to the
Transfer Agent the Fund's currently effective Prospectuses and, for purposes of
this Agreement, the Transfer Agent shall not be deemed to have notice of any
information contained in such Prospectuses until a reasonable time after it is
actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Fund that:
(a) It is a corporation duly organized and existing under the laws of
the State of Delaware.
(b) It is empowered under applicable law and by its Charter and By-laws
to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934, as amended.
(e) The execution, delivery and performance of this Agreement by
Transfer Agent do not and will not violate any
21
applicable law or regulation and do not require the consent of any governmental
or other regulatory body except for such consents and approvals which have been
obtained.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape, writing or document reasonably believed by it to
be genuine and to have been signed or made by the proper person or persons and
shall not be held to have any notice of any change of authority of any person
until receipt of written notice thereof from the Fund or such person. It shall
also be protected in processing Share certificates which bear the proper
countersignature of the Transfer Agent and which it reasonably believes to bear
the proper manual or facsimile signature of the Officers of the Fund.
3. The Transfer Agent upon notice to the Fund may establish such additional
procedures, rules and regulations governing the transfer or registration of
Share certificates as it may reasonably deem advisable and consistent with such
rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as are specified in Schedules
I and II hereto in the form and manner, and for such period, as it may deem
advisable and is agreeable to the Fund but not inconsistent with the rules and
regulations of appropriate government authorities, in particular Rules 31a-2
and 31a-3 under the Investment Company Act of 1940, as amended. The Transfer
Agent acknowledges that such records are the property of the Fund. The Transfer
Agent may deliver to the Fund from time to
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time at its discretion, for safekeeping or disposition by the Fund in accordance
with law, such records, papers, share certificates which have been cancelled in
transfer, exchange or redemption or other documents accumulated in the execution
of its duties as such Transfer Agent, as the Transfer Agent may deem expedient,
other than those which the Transfer Agent is itself required to maintain
pursuant to applicable laws and regulations. The Fund shall assume all
responsibility for any failure thereafter to produce any record, paper,
cancelled Share certificate, or other document so returned, if and when
required. The records specified in Schedule II hereto maintained by the Transfer
Agent pursuant to this paragraph 4, which have not been previously delivered to
the Fund pursuant to the foregoing provisions of this paragraph 4, shall be
considered to be the property of the Fund, shall be made available upon request
for inspection by the officers, employees, and auditors of the Fund, and records
shall be delivered to the Fund upon request and in any event upon the date of
termination of this Agreement, as specified in Article IX of this Agreement, in
the form and manner kept by the Transfer Agent on such date of termination or
such earlier date as may be requested by the Fund. Upon reasonable request by
the Fund, the Transfer Agent shall provide in hard copy or on microfilm,
whichever the Transfer Agent shall elect, any records included in any such
delivery, which are maintained by the Transfer Agent on a computer disk or are
similarly maintained.
5. The Transfer Agent may employ agents or attorneys-in-fact
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to provide non-essential services at the expense of the Fund, and shall not be
liable for any loss or expense arising out of, or in connection with, the
actions or omissions to act of its agents or attorneys-in-fact so long as the
Transfer Agent acts in good faith and without negligence or willful misconduct
in connection with the selection of such agents or attorneys-in-fact.
Non-essential services as used herein shall mean those services which are not
material to the daily operation of the Fund and are not part of the core product
measured in Schedule I hereto.
6. The Transfer Agent shall not be liable for any loss or damage, including
counsel fees, resulting from its actions or omissions to act or otherwise,
except for any loss or damage arising out of its bad faith, negligence, willful
misfeasance, gross negligence or reckless disregard of its duties under this
agreement.
7a. The Fund shall indemnify and exonerate, save and hold harmless the
Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including reasonable attorney's fees)
and liabilities of any and every nature (herein collectively referred to as
"Claims") which the Transfer Agent may sustain or incur which may be asserted
against the Transfer Agent by any person by reason of or as a result of any
action taken or omitted to be taken by the Transfer Agent in good faith and in
reliance upon (i) any provision of this Agreement; (ii) the Prospectus; (iii)
any instruction or order including, without limitation, any computer tape
reasonably
24
believed by the Transfer Agent to have been received from an Approved
Institution; (iv) any instrument, order or Share certificate reasonably believed
by it to be genuine and signed, countersigned or executed by any duly authorized
Officer of the Fund; (v) any Certificate or other instructions of an Officer; or
(vi) any opinion of legal counsel for the Fund. Notwithstanding anything to the
contrary contained herein, the Fund shall have no duty, obligation or liability
to, and shall not, indemnify or exonerate, save or hold harmless the Transfer
Agent from any Claims arising from or reasonably related to the Transfer Agent's
bad faith, negligence, gross negligence, willful misfeasance, or reckless
disregard of its duties hereunder.
7b. If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought from the Fund pursuant to paragraph
7(a) above ("Indefinable Claim") is brought or asserted against the Transfer
Agent, the Transfer Agent shall promptly (and in no event more than ten(10) days
after receipt of notice of such Proceeding, claim or dispute) notify the Fund of
such Proceeding. The failure of the Transfer Agent to so notify the Fund shall
not impair the Transfer Agent's ability to seek indemnification from the Fund
(but only for costs, expenses and liabilities incurred after such notice) unless
such failure adversely affects the Fund's ability to adequately oppose or defend
such Proceeding. Upon receipt of such notice from the Transfer Agent, the Fund
shall be entitled to participate in such Proceeding
25
and, to the extent that it shall so desire, to assume the defense thereof with
counsel reasonably satisfactory to the Transfer Agent (in which case all
attorneys' fees and expenses shall be borne by the Fund and the Fund shall
defend the Transfer Agent). The Transfer Agent shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be borne by the
Transfer Agent unless (a) the Fund agrees in writing to pay such fees and
expenses, (b) the Transfer Agent shall have reasonably and in good faith
concluded that there is a conflict of interest between the Fund and the Transfer
Agent in the conduct of the defense of such action or (c) the Fund fails, within
ten (10) days prior to the date the first response or appearance is required to
be made in such Proceeding, to assume the defense of such Proceeding with
counsel reasonably satisfactory to the Transfer Agent. No compromise or
settlement of such Proceeding may be effected by either party without the other
party's consent unless (i) there is no finding or admission of any violation of
law and no effect on any other claims that may be made against such other party
and (ii) the sole relief provided is monetary damages that are paid in full by
the party seeking the settlement. Neither party shall have any liability with
respect to any compromise or settlement effected without its consent, which
shall not be unreasonably withheld. The Fund shall have no obligation to
indemnify and hold harmless the Transfer Agent from any loss, expense or
liability incurred by the Transfer Agent as a result of
26
a default judgment entered by a court of competent jurisdiction against the
Transfer Agent unless such judgment was entered after the Fund agreed, in
writing, to assume the defense of such Proceeding. If the Fund shall fail or
refuse to defend an Indemnifiable Claim, the Transfer Agent may provide its own
defense at the cost and expense of the Fund. The Transfer Agent shall indemnify
and hold the Fund harmless from and against any and all losses, damages, costs,
charges, expenses (including reasonable attorney's fees) payments, and
liabilities arising out of or attributable to any action or failure or omission
to act by the Transfer Agent as a result of the Transfer Agent's negligence,
gross negligence, wilful misfeasance or reckless disregard of its duties
hereunder.
8. In performing its services hereunder the Transfer Agent will seek to
attain the Performance objectives set forth in Schedule IV hereto. The Transfer
Agent's failure to meet any Transfer Agent Objective or its performance at a
level giving rise to the Fund's right to terminate this Agreement as a result of
the Transfer Agent's failure to meet the minimum levels of performance as such
right to terminate is enumerated in Schedule IV shall not constitute negligence
or a breach of the Agreement nor constitute an inference of the foregoing.
9. For purposes of this Agreement, the Transfer Agent shall not be deemed
to have acted negligently or to have breached this Agreement, if the Transfer
Agent's performance is materially affected by circumstances beyond its control
and not due to its
27
negligence or wilful misconduct (collectively, "Causes"), including, without
limitation (except as provided below), (a) mechanical breakdowns of equipment
(including any alternative power supply and operating systems software), flood
or catastrophe, acts of God, failures of transportation, communication or power
supply, strikes, lockouts, work stoppages or other similar circumstances.
10. At any time the Transfer Agent may apply to an Officer of the Fund
for written instructions with respect to any matter arising in connection with
the Transfer Agent's duties and obligations under this Agreement, and the
Transfer Agent shall not be liable for any action taken or omitted by it in good
faith in accordance with such written instructions. If the Transfer Agent
applies to a Fund Officer for written instructions with respect to any action
which Transfer Agent desires to take or refrain from taking under this Agreement
and which is not otherwise required by this Agreement, specifying the date on
and/or after which such action shall be taken, and if no Officer of the Fund
responds to such request, Transfer Agent shall not be liable for taking (or not
taking as the case may be) the action set forth in the application. The Transfer
Agent may consult counsel of the Fund, at the expense of the Fund and shall be
fully protected with respect to anything done or omitted by it in good faith in
accordance with the advice or opinion of counsel to the Fund.
11. The Transfer Agent may issue new Share certificates in place of Share
certificates represented to have been lost, stolen, destroyed or not received
upon receiving written instructions from
28
the shareholder accompanied by proof of an indemnity or surety bond issued by a
recognized insurance institution specified by the Fund or the Transfer Agent.
The Transfer Agent may also reissue certificates which are represented as lost,
stolen, destroyed or not received without requiring a surety bond provided that
the notification is in writing and accompanied by an indemnification signed on
behalf of a member firm of the New York Stock Exchange and signed by an officer
of said firm with the signature guaranteed. Notwithstanding the foregoing, the
Transfer Agent will reissue a certificate upon written authorization from an
Officer of the Fund. The Transfer Agent represents that it is bonded for the
full value of all Share certificates sent by first class mail or otherwise to
Fund shareholders and will continue to be so bonded.
12. The Transfer Agent will issue and mail subscription warrants for
Shares of capital stock, Shares representing stock dividends, exchanges or
splits, or act as conversion agent upon receiving written instructions from an
Officer and such other documents as the Transfer Agent may deem necessary.
13. The Transfer Agent will supply shareholder lists to the Fund upon
receiving a request therefor from an officer of the Fund.
14. The Transfer Agent shall treat confidentially and as proprietary
information the Fund records and other information relative to the Fund and to
persons who are at any time shareholders of the Fund, and will not use such
records and information f or any purpose other than the performance of its
responsibilities and duties hereunder. In case of any requests or
29
demands for the inspection, of the shareholder records of the Fund, the Transfer
Agent will endeavor to notify the Fund promptly and to secure instructions from
an officer as to such inspection. The Transfer Agent reserves the right,
however, to exhibit the shareholder records to any person whenever it receives
an opinion from its counsel that there is a reasonable likelihood that the
Transfer Agent will be held liable for the failure to exhibit the shareholder
records to such person; provided, however, that in connection with any such
disclosure the Transfer Agent shall promptly notify the Fund that such
disclosure has been made or is to be made.
15. At the request of an Officer of the Fund the Transfer Agent will
address and mail such appropriate notices to shareholders as the Fund may
direct.
16. Notwithstanding any of the foregoing provisions of this Agreement, the
Transfer Agent shall be under no duty or obligation to inquire into, and shall
not be liable for:
(a) The legality of the issue or sale of any Shares, the sufficiency of
the amount to be received therefor, or the authority of the Approved Institution
or of the Fund, as the case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a redemption of any
Shares, the propriety of the amount to be paid therefor, or the authority of the
Approved Institution or of the Fund, as the case may be, to request such
transfer or redemption;
(c) The legality of the declaration of any dividend by
30
the Fund, or the legality of the issue of any Shares in payment of any stock
dividend; or
(d) The legality of any recapitalization or readjustment of Shares.
17. The Transfer Agent shall be entitled to receive and the Fund hereby
agrees to pay to the Transfer Agent for its performance hereunder, including its
performance of the duties and functions set forth in Schedule I hereto, (i) its
reasonable out-of-pocket expenses incurred in connection with its performance
hereunder and (ii) such compensation as may be agreed upon in writing from time
to time by the Transfer Agent and the Fund.
18. The Transfer Agent shall not have any duties, responsibilities or
obligations under this Agreement except for such duties, responsibilities or
obligations which are specifically set forth in this Agreement, which are
incidental to fulfilling its duties, responsibilities and obligations under this
Agreement, or which are agreed upon in writing by the parties subsequent to the
date of this Agreement.
19. (a) The Fund will compensate the Transfer Agent for, and Transfer Agent
will provide, beginning on the date shares are first BNY sold, other than to BKY
Xxxxxxxx Distributors, Inc. and continuing until the termination of this
Agreement as provided hereinafter, the Services set forth in Schedule I.
(b) The current unit prices for the Services are set forth in Schedule
III (the "Schedule III Fee Schedule"). Once in each calendar year, the Transfer
Agent may elect to raise the
31
Schedule III Fees upon one hundred eighty (180) days prior notice to the Fund
Notwithstanding the annual right to raise the Schedule III Fees, the Transfer
Agent may increase prices due to changes in legal or regulatory requirements;
provided that such increased fees or one time charges shall be subject to the
approval of the Fund, which approval shall not be unreasonably withheld.
20. Billing and Payment.
(a) The Transfer Agent shall xxxx the Fund as follows: (i) monthly in
arrears for Accounts maintained and in arrears for any Out-of-Pocket Expenses
incurred by the Transfer Agent, provided, however, that with respect to
Out-of-Pocket Expenses the Transfer Agent shall provide the Fund monthly with an
amount to be advanced to the Transfer Agent for estimated postage expenses for
the following month. Documentation to support reconciliation of actual postal
charges will be provided to the Fund monthly. The Transfer Agent may from time
to time request the Fund to make additional advances when appropriate.
(b) The Fund shall pay the Transfer Agent within thirty (30) days of
the date of the xxxx, provided that the xxxx is received in proper order and on
a timely basis. All amounts which are Out-of-Pocket expenses and not the
subject of a good faith dispute shall be paid within thirty (30) days of the
date of the xxxx.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement
32
by giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than 180 days after the date of receipt of
such notice. Notwithstanding the foregoing, the Fund may at any time terminate
this Agreement in accordance with the provisions of Schedule IV hereto. In the
event such notice is given by the Fund, it shall be accompanied by a copy of a
resolution of the Board of Directors of the Fund, certified by the Secretary or
any Assistant Secretary, electing to terminate this Agreement and designating
the successor transfer agent or transfer agents. In the event such notice is
given by the Transfer Agent, the Fund shall, on or before the termination date,
deliver to the Transfer Agent a copy of a resolution of its Board of Directors
certified by the Secretary or any Assistant Secretary designating a successor
transfer agent or transfer agents. In the absence of such designation by the
Fund, the Fund shall upon the date specified in the notice of termination of
this Agreement and delivery of the records maintained hereunder, be deemed to be
its own transfer agent and the Transfer Agent shall thereby be relieved of all
duties and responsibilities pursuant to this Agreement.
In the event this Agreement is terminated as provided herein, the Transfer
Agent, upon the written request of the Fund, shall deliver any and all records
of the Fund (except duplicate records, if any, maintained by Transfer Agent for
archival purposes) on electromagnetic media to the Fund or its successor
transfer agent. The Fund shall be responsible to the Transfer Agent for the
reasonable costs and expenses associated with the preparation and
33
delivery of such media.
ARTICLE X
MISCELLANEOUS
1. Representatives of the Fund's independent outside auditors ("Auditors")
shall have the right from time to time to perform on-site audits at the facility
of the Transfer Agent which do not result in an unreasonable disruption of the
business of the Transfer Agent. Such audits shall be conducted in accordance
with an audit program, the scope and frequency of which shall be agreed upon
from time to time in good faith by the parties. The Auditors may obtain a
reasonable number of copies of records and accounts directly related to the
services to be supplied hereunder by the Transfer Agent. Except as provided in
clause (c) below, nothing in this paragraph shall be deemed to permit the
Auditors to have access to any records or information concerning (a) any other
customer of the Transfer Agent, (b) the manner or method used by the Transfer
Agent in establishing the fees it charges any customer, including the Fund or
(c) the Transfer Agent's internal operating procedures, provided that the
Transfer Agent shall permit officers or employees of the Auditors to have access
to such internal operating procedures to the extent necessary for the proper
completion of such audit and the expression of their unqualified opinion of the
Fund's semi-annual report on Form N-SAR, provided such Auditors have agreed to
keep such internal operating procedures confidential and treat the same as
proprietary information of the Transfer Agent.
34
2. During the term of this Agreement, at no additional cost to the Fund,
the Transfer Agent shall provide a facility capable of safeguarding the transfer
agency and dividend disbursing records of the Fund in case of damage to the
primary facility providing those services (the "Back-Up Facility"). Transfer of
the transfer agency and dividend records of the Fund to the Back-Up Facility
shall be at the Transfer Agent's expense, shall commence immediately after
damage to the primary facility results in an inability to provide the transfer
agency and dividend disbursing services, and shall be completed within 72
hours of commencement. After the primary facility has recovered, the Transfer
Agent shall again utilize it to provide the transfer agency and dividend
disbursing services to the Fund at no additional cost to the Fund. The Transfer
Agent shall use reasonable efforts to provide the services described in this
Agreement from the Back-Up Facility.
3. The Transfer Agent represents that it has and is currently registered as
a transfer agent with the Securities and Exchange Commission ("SEC") and has
complied with the SEC's regulations for registered transfer agents. The Transfer
Agent agrees that it will continue to be registered with the SEC as a transfer
agent for the duration of this Agreement. Should the Transfer Agent fail to be
registered with the SEC as transfer agent at any time during this Agreement, the
Fund may, on written notice to the Transfer Agent, immediately terminate this
Agreement.
4. The Fund agrees that prior to effecting any change in the Prospectus
which would increase or alter the duties and obligations
35
of the Transfer Agent hereunder, it shall advise the Transfer Agent of such
proposed change at least 30 days prior to the intended date of the same, and
shall proceed with such change only if it shall have received the written
consent of the Transfer Agent thereto, which shall not be unreasonably withheld.
5. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if addressed
to the Fund and mailed certified, registered or delivered via overnight courier
to it at its office at the address first above written, or at such other place
as the Fund may from time to time designate in writing.
6. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Transfer Agent shall be sufficiently given if
addressed to the Transfer Agent and mailed certified, registered or delivered
via overnight courier to the Secretary at 000 Xxxxx XxXxxxx, Xxxxxxx, 0X, with a
copy to the President at the same address, or at such other place as the
Transfer Agent may from time to time designate in writing.
7. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the formality of this Agreement.
8. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns. This Agreement shall not be
assignable by either party without the written consent of the other party.
9. This Agreement shall be governed by and construed in
36
accordance with the laws of the State of New York.
10. 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.
11. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Fund, and no rights shall be granted to any other person
by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as the day and year
first above written.
Investors Financial Services Company BNY Xxxxxxxx Funds, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------- ---------------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxxxxx Xxxxxxx Xxxxxxxxx
---------------------------- ---------------------------
(Name) (Name)
President Chief Executive Officer
---------------------------- ---------------------------
(Title) (Title)
September 9, 1992 August 24, 1992
---------------------------- ---------------------------
(Date Signed) (Date Signed)
37
SCHEDULE I
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at such times as
Fund and Transfer Agent may agree, Transfer Agent will provide the services set
forth below:
Examine and Process New Accounts, Subsequent Payments, Liquidations,
Exchanges, Telephone Transactions, Check Redemptions, Automatic Withdrawals,
Certificate Issuance, Wire Order Trades, Dividends, Dividend Statements, Dealer
Statements.
DAILY ACTIVITY
Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
Name and Address, including Zip Code
Balance of Uncertificated Shares
Balance of Certificated Shares
Certificate number, number of shares, issuance date of each certificate
outstanding and cancellation date for each certificate date for each
certificate no longer outstanding, if issued
Balance of dollars available for redemption
Dividend code (daily accrual, monthly reinvest, monthly cash or quarterly
cash)
Type of account code
Dealer, Branch and Salesman information
Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available
Original establishment date for accounts opened by exchange
W-9 withholding status and periodic reporting
State of residence code
Social Security or taxpayer identification number, and indication of
certification
Historical transactions on the account for the most recent 18 months, or
other period as mutually agreed to from time-to-time
38
Indication as to whether phone transactions can be accepted for this
account. Beneficial owner code, i.e. male, female, joint tenant, etc.
An alternate or "secondary" account number issued by a dealer (or bank,
etc.) to a customer for use, inquiry and transaction input by "remote
assessors"
FUNCTIONS
Answer investor and dealer telephone and/or written inquiries, except those
concerning Fund policy, or requests for investment advice which will be
referred to the Fund, or those which the Fund chooses to answer
Deposit Fund share certificates into accounts upon receipt of instructions
from the investor or other authorized person, if issued
Examine and process transfers of shares insuring that all transfer
requirements and legal documents have been supplied
Process and confirm address changes
Process standard account record changes as required, i.e. Dividend Codes,
etc.
Microfilm source documents for transactions, such as account applications
and correspondence
Use of master account application to establish individual participant
accounts
Perform backup withholding for those accounts which federal government
regulations indicate is necessary
Perform withholdings on liquidations, if applicable, for employee benefit
plans. Prepare and mail 5498s and 1099R
Handle bad purchase check processing by notifying Fund prior to trade
reversal
Solicit missing taxpayer identification numbers
Provide remote access inquiry to Fund records via Fund supplied hardware
Perform certain recordkeeping functions with respect to individual
retirement accounts in the Fund as more fully described in the Agency
Agreement dated as of August 7, 1992 between Transfer Agent and Bank of New
York.
39
REPORTS PROVIDED
Daily Journals Reflecting all shares and
dollar activity for the
previous day
Blue Sky Report Supply information monthly
for Fund's preparation of
Blue Sky Reporting
N-SAR Report Supply monthly correspondence,
redemption and liquidation
information for use in fund's
N-SAR Report
Single Rate
12b-1 Report/
Average Asset Reporting Supply monthly dealer
reallowance, commission and
other fee reporting (as
available)
Additionally, the following will be provided at the Fund's request to the
Fund at no charge:
o Shareholder listings:
- by Beneficial Owner Code
- by Tax Status Code
- by State Code
- by Establishment Date
- by Dividend Code
- by Account Plan Type
- Top Ten Shareholders
o Dealer Transaction Totals
o Monthly average daily balance reports
Prepare and mail copies of summary statements to dealers and investment
advisers.
Generate and mail confirmation statements for financial transactions. Send
copies of financial transaction confirmations to the dealer main office or
branch specified, and possibly a third party.
Monthly management report as Fund and Transfer Agent agree upon that will
provide summary information of Fund activity and quality of services
delivered.
DIVIDEND ACTIVITY
Reinvest or pay in cash including reinvesting in other funds
40
within the fund group serviced by the Transfer Agent as described in each
Fund prospectus
Distribute capital gains simultaneously with income dividends
DEALER SERVICES
Prepare and mail confirmation statements to dealers daily
Prepare and mail copies of statements to dealers, same frequency as investor
statements
Allow on-line access to institutions designated by the Fund from time to time
(Institutional Interface)
ANNUAL MEETINGS
One Proxy mailing per year per fund
Address and mail proxies and related material. Tabulate returned proxies and
supply daily reports when sufficient proxies have been received (material
must be adaptable to mechanical equipment as reasonably specified by the
Transfer Agent)
Prepare certified list of stockholders, hard copy or microform
PERIODIC ACTIVITIES
Mail transaction confirmation statements daily to investors
Address and mail four (4) periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably specified by
the Transfer Agent)
Mail periodic statement to investors
Compute, prepare and furnish all necessary reports to Governmental
authorities: Forms 1096, 1099DIV, 1099B, 1042 and 1042S
Enclose various marketing material as designated by the Fund in statement
mailings, i.e. monthly and quarterly statements (material must be adaptable
to mechanical equipment as reasonably specified by the Transfer Agent)
41
SCHEDULE II
RECORDS MAINTAINED BY TRANSFER AGENT
- Account applications
- Cancelled certificates plus stock powers and supporting documents
- Checks including check registers, reconciliation records, any adjustment
records and tax withholding documentation
- Indemnity bonds for replacement of lost or missing stock certificates and
checks
- Liquidation, redemption, withdrawal and transfer requests including stock
powers, signature guarantees and any supporting documentation
- Proxy records for annual meetings held within the previous nine months
- State and federal tax records
- Journals (or other records of original entry) containing itemized daily
record of all sales and redemptions
- Separate ledger accounts (or other records) showing number of shares held by
each shareholder of record (including details with respect to periodic
investment plans, dividend reinvestment plans, etc.)
42
SCHEDULE III
FEE SCHEDULE - BNY XXXXXXXX FUNDS, INC.
Open Accounts
-- Money Market Funds $24.00 per Account/per Year
-- Fixed Income Funds $20.00 per Account/per Year
-- Equity Funds $17.00 per Account/per Year
Closed Accounts $3.00 per Account/per Year
Minimum Charge per Fund (Portfolio) $2,000.00 per Month
Ad Hoc Reports
-- Development Charge $400.00 per Report
-- Handling Charge $25.00 per Hour per Report
(Minimum $25.00)
-- Print Charges $25.00 per 1,000 Sheets of Print
(Minimum of $25.00)
Institutional Interface
-- User $200.00 per Month per User ID
-- Trades Processing $1.50 per Trade
Remote Report Printing $50.00 per Report
In addition to the above, charges for Cash Management services, out-of-pocket
expenses and any specialized interfaces and/or enhancements to the existing
processing routines will be billed as incurred.
TRANSACTION FEES:
TRANSACTIONS CHARGE
------------ ------
CHECK PROCESSING:
Cashier's Check $7.00
Foreign Collection
(A U.S. Dollar check drawn on a
foreign bank) $25.00
Returned Check
(New account deposit check returned
in addition to bank fees) $10.00
43
Stop Payment requests for drafts $10.00
STATEMENTS:
Account Transcripts (prior years) $5.00
per year
Paid Copies of Payment Checks $7.00
Paid Copies of Draft Checks $7.00
ELECTRONIC FUNDS TRANSFER:
All wires, in or out $9.00
44
Schedule IV
Transfer Agent Performance objectives
Retail Funds
The performance objectives set forth below represent what the Fund believes
should be reasonably obtainable by the Transfer Agent, given the typical daily
variables associated within any transfer agent operation (ie. transaction volume
fluctuations), This Agreement may be immediately terminated upon written notice
by the Fund to the Transfer Agent in the event the performance objectives herein
are repeatedly and materially not met for a period of 30 days and not cured by
Transfer Agent within a subsequent period of 30 days. Notice of such failure to
meet the performance objectives shall be provided in writing by the Fund to the
Transfer Agent.
Turnaround
Function Objective Excellent Acceptable Unacceptable
-------- --------- --------- ---------- ------------
New account processing Same day 100% 95% less than 95%; over 2 days old
Transaction processing ($) Same day 100% 95% less than 95%; over 2 days old
Maintenance processing (no $) 2 days 100% 75% anything over 4 days old
Quality of entry-new accounts error rate of: 0% .5% anything more
Quality of entry-other ($) error rate of: 0% 2% anything more
Quality of entry-other (non $) error rate of: 0% 4% anything more
Research 48 Hours 100% 80% anything over 5 days
Response to correspondence* 4 days 100% 80% anything over 5 days
Page 2
Transfer Agent Performance Objectives
Retail Funds
Turnaround
Function Objective Excellent Acceptable Unacceptable
-------- --------- --------- ---------- ------------
Telephone Excellent: 95% calls answered within 30 seconds; 1% abandon rate
Acceptable: 90% calls answered within 45 seconds; 2% abandon rate
Unacceptable: less than 75% calls answered within 45 seconds; 5% abandon rate
Telephone problem resolution* 2 days 100% 80% anything over 3 days old
Corr./telephone problems completed 5 days 100% 75% anything over 10 days
Mailing of confirms 1 day 100% 80% anything over 2 days
Mailing of dividend/redemption checks one day 100% 90% anything less than 95% in 48 hours
Mailing of CWR books 7 days 100% 80% anything over 10 days
System availability 8:00 am to 90% 95% anything less than 90%
8:00 pm EST
weekdays
*At minimum, contact shareholder with problem status update
Schedule IV
Transfer Agent Performance Objectives
Institutional Funds
The performance objectives set forth below represent what the Fund believes
should be reasonably obtainable by the Transfer Agent, given the typical daily
variables associated within any transfer agent operation (ie. transaction volume
fluctuations). This Agreement may be immediately terminated upon written notice
by the Fund to the Transfer Agent in the event the performance objectives herein
are repeatedly and materially not met for a period of 30 days and not cured by
Transfer Agent within a subsequent period of 30 days. Notice of such failure to
meet the performance objectives shall be provided in writing by the Fund to the
Transfer Agent.
Turnaround
Function Objective Excellent Acceptable Unacceptable
-------- --------- --------- ---------- ------------
New account processing Same day 100% 99.5 anything less
Transaction processing ($) Same day 100% 99.5 anything less
Maintenance processing (no $) 2 days 100% 90% less than 90% 3 days old
Quality of entry-new accounts error rate of: 0% .5% anything more
Quality of entry-other ($) error rate of: 0% .5% anything more
Quality of entry other (non $) error rate of: 0% 2% anything more
Research ($) Same day 100% 95% anything over 2 days
(no $) 50% within 100% 80% anything over 2 days
one day
Page 2
Transfer Agent Performance Objectives
Institutional Funds
Turnaround
Function Objective Excellent Acceptable Unacceptable
-------- --------- --------- ---------- ------------
Telephone Excellent: 100% calls answered within 30 seconds; 1% abandon rate
Acceptable: 95% calls answered within 45 seconds; 2% abandon rate
Unacceptable: less than 85% calls answered within 45 seconds; 5% abandon rate
Telephone problem resolution ($) same day 100% 95% anything over 1 day old
(no $) same day 100% 80% anything over 2 days old
Mailing of confirms 1 day 100% 100% anything over 2 days
System availability 8:00 am to 99% 97% anything less; delays at month-end
8:00 pm EST
week days
Delivery of Mgt. Report/ By 5th Business 100% 80% past 10th Business day
12b-1 information day of next month of next month
12b-1 checks mailed By 5th Business 100% 80% past 7th Business day
day of next month of next month
AGENCY AGREEMENT
This Agency Agreement is made as of August 7, 1992, by and between THE BANK
OF NEW YORK, a bank organized under the laws of the State of New York having its
principal office and place of business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (hereinafter referred to as the "Bank"), and INVESTORS FINANCIAL SERVICES
COMPANY, a Delaware corporation, having its principal office and place of
business at 000 Xxxxx XxXxxxx, Xxxxxxx, XX (hereinafter referred to as the
"Agent").
WHEREAS, Agent is the transfer agent of certain mutual funds ("Funds")
listed on the attached Exhibit A; and
WHEREAS, the Bank acts as the Custodian of the Xxxxxxxx Funds Individual
Retirement Accounts (the "Accounts"), which are invested in the Funds; and
WHEREAS, Bank wishes to retain Agent to perform certain recordkeeping
duties which Bank is required to perform as Custodian for the Accounts and
Agent wishes to perform such duties.
NOW, THEREFORE, Bank in its capacity as Custodian and Agent agree as
follows:
1. Bank hereby retains and employs Agent to perform the duties described
herein in addition to those set forth in schedules to the Agent's Transfer
Agency Agreement with the Funds. Agent accepts such employment and agrees to
perform such duties.
2. Agent shall, in fulfilling its duties hereunder, act in good faith,
with due diligence, and without negligence. Agent shall perform its duties in
accordance with the copy of the Individual Retirement Account Custodial
Agreement (IRS Form 5305-A ) which is attached hereto and made a part hereof
("Custodial Agreement"), as amended from time to time, and present and future
requirements of Section 408(a), of the Internal Revenue Code and any rule or
regulation issued in interpretation of Section 408(a) and applicable law ("IRS
Requirements").
3. The duties of Agent will include the following:
(a) Receiving all Accounts which are in existence, opening new
Accounts and receiving cash contributions for Accounts;
(b) Making distributions from Accounts (including distributions
required by Form 5305-A) as well as withholding tax in accordance with
the provisions of the Custodial Agreement and IRS Requirements.
(c) Preparing and delivering all returns, reports, proxies, valuations,
and accounting in accordance with IRS Requirements and as reasonably
required by the Funds or by Bank.
(d) Maintaining all records for the Accounts in accordance with IRS
Requirements and as reasonably required by the Funds or by Bank.
(e) Answering investor and dealer telephone and/or written inquiries,
except those that (i) concern Fund Policy, (ii) are requests for
investment advice, (iii) are requests for tax advice, or (iv) concern
other issues which the Funds have notified Agent to refer to the Funds.
Under no circumstances shall the Agent give investment advice or tax
advice.
4. Agent agrees to permit Bank to conduct review procedures as it deems
necessary to monitor the activities of Agent under this Agreement. Agent also
agrees to perform or have performed the audit review procedures and provide
reports in connection therewith described on Exhibit B attached hereto (the
"Audit Review Procedures") at the expense of the Bank. Bank may revise the Audit
Review Procedures as it deems reasonable and necessary on thirty (30) days prior
written notice to Agent and subject to the Agent's consent, which consent may
not be withheld unreasonably.
5. Agent agrees to indemnify and exonerate, save and hold Bank harmless
from and against any and all claims (whether with or without basis in fact or
law), demands, expenses (including reasonable attorneys' fees) and liabilities
of any nature which Bank may sustain or incur which are caused as a result of
Agent's bad faith or willful misconduct or negligent performance of its duties
hereunder.
6. Except as specifically set forth in Paragraphs 2 and 3, no provision of
this Agreement shall modify or supersede any provision of the Transfer Agency
Agreement between Agent and the Funds, and no provisions of this Agreement shall
relieve the Agent of any responsibility assumed by the Agent in its Transfer
Agency Agreement with the Funds.
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7. This Agreement may be terminated at any time by mutual consent of Bank
and Agent or upon thirty-(30) days' written notice by either party. Further,
this Agreement may be immediately terminated by either party in the event the
Funds appoint a successor Custodian as provided in the Custodial Agreement. Upon
termination, Agent shall transfer the records of the Accounts as directed by
Bank at Bank's expenses.
8. Agent shall forward to Bank a certified list of the Accounts, itemizing
account numbers, holders, assets, and such other information as Bank may
reasonably request.
9. Agent shall be entitled to charge an annual maintenance fee of $10.00
per Account and shall be entitled to 75% of said fee for each Account, and shall
remit the remaining 25% to Bank. Annual maintenance fees may be increased upon
the mutual agreement of the parties hereto. Agent will be entitled to 75% of any
increase in the annual maintenance fee. Agent shall be entitled to the
acceptance fee, which shall be $10.00 per Account.
10. No modification or amendment of this Agreement shall be valid or
binding on the parties unless made in writing and signed on behalf of each of
the parties by there respective duly authorized officers or representatives.
11. Notices shall be communicated by first class mail, or by such other
means as the parties may agree, to the persons and address specified below or to
such other persons and addresses as the parties may specify in writing.
If to Bank: The Bank of New York
c/o BNY Xxxxxxxx Distributors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: The Bank of New York
c/o Xxxxxxx Xxxxxxxx
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Agent: Investors Financial Services Company
Attn: Xxxxxx X. Ciarielli
000 Xxxx Xxxxxx
Xxxxxx xxxx, Xxxxxxxx 00000
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with a copy to: Investors Financial Services Company
Legal Department
Attn: Xxxxxxxxxxx Xxxxxxxxx
000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
12. This Agreement shall be governed by the laws of the State of New York
applicable laws of the United States.
13. This Agreement may be executed in any number of counterparts, and by
the parties hereto on separate counterparts, each of which when so executed
shall be deemed an original and all of which when taken together shall
constitute one and the same agreement.
14. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns, including successors and
assigns resulting from merger or operation of law.
Executed by the parties on the date(s) set forth below.
THE BANK OF NEW YORK "Bank"
By: /s/
--------------------------
Its: Executive Vice President
-------------------------
Date: Dec 7, 1992
-----------------------
INVESTORS FINANCIAL SERVICES COMPANY
"Agent"
By: /s/
-------------------------
Its: Vice President
-------------------------
Date: Dec 3, 1992
-----------------------
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Exhibit A
---------
BNY Xxxxxxxx Intermediate Government Fund
BNY Xxxxxxxx Intermediate New York Tax-Exempt Fund
BNY Xxxxxxxx Equity Income Fund
BNY Xxxxxxxx Money Fund
Exhibit B
BNY Xxxxxxxx Fund XXX - Audit Procedures
----------------------------------------
A. Account Documentation
---------------------
Ensure executed XXX agreement is on hand, is adequately safeguarded and is
easily retrievable.
B. Receipt of Funds
----------------
Review of control procedures over the receipt of monies and detailed testing
to ensure:
- accuracy of posting to customer account
- timeliness of posting to customer account
- recording of payment in correct tax year and in compliance to applicable
regulations
C. Disbursement of Funds
---------------------
Review of control procedures over the disbursement of proceeds and detailed
testing to ensure:
- proper documentation is on file to substantiate disbursement of monies and
age of holder
- monies are disbursed accurately and in a timely manner
- exchanges are carried out timely and in accordance with customer
instructions
- customer authorization is on file for any instructions received
telephonically
D. Dividend/Capital Gain Distributions
-----------------------------------
Review of control procedures to ensure reinvested distributions are posted
accurately and in a timely manner.
E. Tax Matters
------------
1) Review of compliance with any IRS rules or regulations relating (i) to the
reporting of tax information to customers and to the IRS and (ii) to
providing any notices or forms to customers with respect to any election
concerning withholding of tax, and any related reporting requirement.
2) Review of compliance with any IRS rules or regulations with respect to
providing information to transferors of qualified plan assets.
F. Fees
-----
Review to ensure correctness and timeliness of fees charged to customers.
G. System Review
-------------
Review to ensure data is adequately safeguarded.
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