EXHIBIT 9(a)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
(Name of Mutual Fund, Trust or Company)
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
-----------------
Page
----
1. Terms of Appointment; Duties of the Bank.................... 1
2. Third Party Administrators for Defined Contribution Plans... 4
3. Fees and Expenses........................................... 5
4. Representations and Warranties of the Bank.................. 5
5. Representations and Warranties of the Fund.................. 5
6. Wire Transfer Operating Guidelines.......................... 6
7. Data Access and Proprietary Information..................... 7
8. Indemnification............................................. 9
9. Standard of Care............................................ 10
10. Year 2000................................................... 10
11. Confidentiality............................................. 11
12. Covenants of the Fund and the Bank.......................... 11
13. Termination of Agreement.................................... 12
14. Assignment and Third Party Beneficiaries................... 12
15. Subcontractors............................................. 13
16. Miscellaneous.............................................. 13
17. Additional Funds........................................... 13
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the ____ day of __________, 199__, by and between
_______________, a corporation, having its principal office and place of
business at ___________________ (the "Fund"), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company having its principal office and place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, the Fund intends to initially offer shares in _____ series, such
series shall be named in the attached Schedule A which may be amended by the
parties from time to time (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Article 13, being herein referred to as a "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Bank as its
transfer agent, dividend disbursing agent, custodian of certain retirement plans
and agent in connection with certain other activities, and the Bank desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. Terms of Appointment; Duties of the Bank
----------------------------------------
1.1 Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Fund, on behalf of the Portfolios, hereby employs
and appoints the Bank to act as, and the Bank agrees to act as its
transfer agent for the Fund's authorized and issued shares of its common
stock, $___ par value, ("Shares"), dividend disbursing agent, custodian of
certain retirement plans and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out in the
currently effective prospectus and statement of additional information
("prospectus") of the Fund on behalf of the applicable Portfolio,
including without limitation any periodic investment plan or periodic
withdrawal program. The Bank agrees that it will perform the following
services:
(a) In accordance with procedures established from time to time by
agreement between the Fund on behalf of each of the Portfolios, as
applicable and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Fund
authorized pursuant to the Articles of Incorporation of
the 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 thereof to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and
(iii) above, the Bank shall execute transactions
directly with broker-dealers authorized by the Fund;
(v) At the appropriate time as and when it receives monies
paid to it by the Custodian with respect to any
redemption, pay over or cause to be paid over in the
appropriate manner such monies as instructed by the
redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the
applicable Portfolio;
(viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Bank of indemnification satisfactory to
the Bank and protecting the Bank and the Fund, and the
Bank at its option, may issue replacement certificates
in place of mutilated stock certificates upon
presentation thereof and without such indemnity;
(ix) Maintain records of account for and advise the Fund and
its Shareholders as to the foregoing and
(x) Record the issuance of shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total
number of shares of the Fund which are authorized, based
upon data provided to it by the Fund, and issued and
outstanding. The Bank shall also provide the Fund on a
regular basis with the total number of shares which are
authorized and issued and outstanding and shall have no
obligation, when recording the issuance of shares, to
monitor the issuance of such shares or to take
cognizance of any laws relating to the issue or sale of
such shares, which functions shall be the sole
responsibility of the Fund.
2
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the Bank
shall perform the following services:
(a) Other Customary Services. (i) Perform the customary services of a
transfer agent, dividend disbursing agent, custodian of certain
retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar 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 Shareholder
proxies, 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.
(b) Control Book (also known as "Super Sheet"). Maintain a daily record and
produce a daily report for each Fund of all transactions and receipts
and disbursements of money and securities and deliver a copy of such
report for each Fund for each business day to the Fund no later than
9:00 AM, or such earlier time as the Fund may reasonably require, on
the next business day;
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the Bank 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 Bank for the Fund's blue sky State registration
status is solely limited to the initial establishment of transactions
subject to blue sky compliance by the Fund and providing a system which
will enable the Fund to monitor the total number of Shares sold in each
State;
(d) National Securities Clearing Corporation (the "NSCC"). (i) accept and
effectuate the registration and maintenance of accounts through
Networking and the purchase, redemption, transfer and exchange of
shares in such accounts through Fund/SERV (networking and Fund/SERV
being programs operated by the NSCC on behalf of NSCC's participants,
including the Fund), in accordance with, instructions transmitted to
and received by the Bank by transmission from NSCC on behalf of broker-
dealers and banks which have been established by, or in accordance with
the instructions of authorized persons, as hereinafter defined on the
dealer file maintained by the Bank; (ii) issue instructions to Fund's
banks for the settlement of transactions between the Fund and NSCC
(acting on behalf of its broker-dealer and bank participants); (iii)
provide account and transaction information from affected Fund's
records on DST Systems, Inc. computer system TA2000 ("TA2000 System")
in accordance with NSCC's Networking and Fund/SERV rules for those
broker-dealers; (iii) maintain Shareholder accounts on TA2000 System
through Networking.
3
(e) Responsibility Schedule. Procedures as to who shall provide certain of
these services in Section 1 may be established from time to time by
agreement between the Fund and the Bank per the attached service
responsibility schedule ("Schedule 1.2(e)"). The Bank may at times
perform only a portion of these services and the Fund or its agent may
perform these services on the Fund's behalf.
2. Third Party Administrators for Defined Contribution Plans
---------------------------------------------------------
The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation ("Plan or
Plans") for the benefit of the individual Plan participant (the "Plan
Participant"), such Plan(s) being qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended ("Code") and administered by
third party administrators which may be plan administrators as defined in
the Employee Retirement Income Security Act of 1974, as amended)(the
"TPA(s)").
In accordance with the procedures established in the initial Schedule 2.1
entitled "Third Party Administrator Procedures", as may be amended by the
Bank and the Fund from time to time ("Schedule 2.1"), the Bank shall:
(a) Treat Shareholder accounts established by the Plans in the name
of the Trustees, Plans or TPAs as the case may be as omnibus
accounts;
Maintain omnibus accounts on its records in the name of the TPA
or its designee as the Trustee for the benefit of the Plan; and
Perform all services under Section 1 as transfer agent of the
---------
Funds and not as a record-keeper for the Plans.
Transactions identified under Section 2 of this Agreement shall
---------
be deemed exception services ("Exception Services") when such
transactions:
Require the Bank to use methods and procedures other than those
usually employed by the Bank to perform services under Section 1
---------
of this Agreement;
Involve the provision of information to the Bank after the
commencement of the nightly processing cycle of the TA2000
System; or
(c) Require more manual intervention by the Bank, either in the
entry of data or in the modification or amendment of reports
generated by the TA2000 System than is usually required by non-
retirement plan and pre-nightly transactions.
3. Fees and Expenses
-----------------
3.1 Fee Schedule. For the performance by the Bank pursuant to this
Agreement, the Fund
4
agrees to pay the Bank an annual maintenance fee for each Shareholder
account as set forth in the attached fee schedule ("Schedule 3.1").
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 Fund and the Bank.
Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Fund agrees to reimburse the Bank for out-of-pocket expenses,
including but not limited to confirmation production, postage, forms,
telephone, microfilm, microfiche, mailing and tabulating proxies,
records storage, or advances incurred by the Bank for the items set out
in Schedule 3.1 attached hereto. In addition, any other expenses
incurred by the Bank at the request or with the consent of the Fund,
will be reimbursed by the Fund.
Postage. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the Bank
by the Fund at least seven (7) days prior to the mailing date of such
materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing
notice, except for any fees or expenses which are subject to good faith
dispute. In the event of such a dispute, the Fund may only withhold that
portion of the fee or expense subject to the good faith dispute. The
Fund shall notify the Bank in writing within twenty-one (21) calendar
days following the receipt of each billing notice if the Fund is
disputing any amounts in good faith. If the Fund does not provide such
notice of dispute within the required time, the billing notice will be
deemed accepted by the Fund.
4. Representations and Warranties of the Bank
------------------------------------------
The Bank represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
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.
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 Fund
------------------------------------------
The Fund represents and warrants to the Bank that:
5
5.1 It is a corporation duly organized and existing and in good standing
under the laws of _______________.
5.2 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Articles of Incorporation and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end and diversified 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 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 the Fund being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
------------------------------------------------------------------------
Code
----
6.1 The Bank is authorized to promptly debit the appropriate Fund 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 Bank has been instructed to
transfer. The Bank shall execute payment orders in compliance with the
Security Procedure and with the Fund 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 this
the customary deadline will be deemed to have been received the next
business day.
6.2 The Fund acknowledges that the Security Procedure it has designated on
the Fund Selection Form was selected by the Fund from security
procedures offered by the Bank. The Fund shall restrict access to
confidential information relating to the Security Procedure to
authorized persons as communicated to the Bank in writing. The Fund must
notify the Bank immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any change in
the Fund's authorized personnel. The Bank shall verify the authenticity
of all Fund instructions according to the Security Procedure.
6.3 The Bank 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 Bank reserves the right 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 Bank's receipt
of such payment order; (b) if initiating such payment order would cause
the Bank, in the Bank's sole judgement, to exceed any volume, aggregate
6
dollar, network, time, credit or similar limits which are applicable to
the Bank; or (c) if the Bank, in good faith, is unable to satisfy itself
that the transaction has been properly authorized.
6.5 The Bank 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 Bank reasonable opportunity to act. However, the
Bank assumes no liability if the request for amendment or cancellation
cannot be satisfied.
6.6 The Bank shall assume no responsibility for failure to detect any
erroneous payment order provided that the Bank complies with the payment
order instructions as received and the Bank 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 Bank shall assume no responsibility for lost interest with respect
to the refundable amount of any unauthorized payment order, unless the
Bank is notified of the unauthorized payment order within thirty (30)
days of notification by the Bank of the acceptance of such payment
order. In no event (including failure to execute a payment order) shall
the Bank be liable for special, indirect or consequential damages, even
if advised of the possibility of such damages.
6.8 When the Fund 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 Bank 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 Bank
with respect to an ACH credit entry are provisional until the Bank
receives final settlement for such entry from the Federal Reserve Bank.
If the Bank does not receive such final settlement, the Fund agrees that
the Bank shall receive a refund of the amount credited to the Fund in
connection with such entry, and the party making payment to the Fund via
such entry shall not be deemed to have paid the amount of the entry.
6.9 Confirmation of Bank's execution of payment orders shall ordinarily be
provided within twenty four (24) hours notice of which may be delivered
through the Bank's proprietary information systems, or by facsimile or
call-back. Fund must report any objections to the execution of an order
within thirty (30) days.
7. Data Access and Proprietary Information
---------------------------------------
7.1 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Bank as part of the
Fund's ability to access certain Fund-related data ("Customer Data")
maintained by the Bank on data bases under the control and ownership of
the Bank or other third party ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial
7
value to the Bank or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Fund agrees to treat all
Proprietary Information as proprietary to the Bank and further agrees
that it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting the
foregoing, the Fund agrees for itself and its employees and agents to:
(a) Access Customer Data solely from locations as may be designated
in writing by the Bank and solely in accordance with the Bank's
applicable user documentation;
(b) Refrain from copying or duplicating in any way the Proprietary
Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose
of such information in accordance with the Bank's instructions;
(d) 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 Bank;
(e) Allow the Fund shall have access only to those authorized
transactions agreed upon by the parties;
Honor all reasonable written requests made by the Bank to protect at the
Bank's expense the rights of the Bank in Proprietary Information at
common law, under federal copyright law and under other federal or state
law.
Neither Proprietary Information or Customer Data shall include all or
any portion of any of the foregoing items that: (i) are or become
publicly available without breach of this Agreement; (ii) are released
for general disclosure by a written release by the Bank; or (iii) are
already in the possession of the receiving party at the time or receipt
without obligation of confidentiality or breach of this Agreement.
7.3 The parties acknowledge that their obligation to protect the other's
Proprietary Information or Customer Data is essential to the business
interest of the Bank and the other party and that the disclosure of such
Proprietary Information or Customer Data in breach of this Agreement
would cause the other party immediate, substantial and irreparable harm,
the value of which would be extremely difficult to determine.
Accordingly, the parties agree that, in addition to any other remedies
that may be available in law, equity, or otherwise for the disclosure or
use of the Proprietary Information or Customer Data in breach of this
Agreement, the party whose Proprietary Information or Customer Data is
disclosed shall be entitled to seek and obtain a temporary restraining
order, injunctive relief, or other equitable relief against the
continuance of such breach.
8
7.4 If the Fund notifies the Bank that any of the Data Access Services do
not operate in material compliance with the most recently issued user
documentation for such services, the Bank shall endeavor in a timely
manner to correct such failure. Organizations from which the Bank may
obtain certain data included in the Data Access Services are solely
responsible for the contents of such data and the Fund agrees to make no
claim against the Bank 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
BANK 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.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Bank 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 Bank 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
Bank from time to time.
7.4 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.
8. Indemnification
---------------
8.1 The Bank shall not be responsible for, and the Fund shall indemnify and
hold the Bank 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 Bank 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;
(b) The Fund's lack of good faith, negligence or willful misconduct
which arise out of the breach of any representation or warranty
of the Fund hereunder;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Bank, or its agents or subcontractors on: (i)
any information, records, documents, data, stock certificates or
services, which are received by the Bank or its agents or
subcontractors by machine readable input, facsimile, CRT data
entry, electronic instructions or other similar means authorized
by the Fund, and which have been prepared, maintained or
performed by the Fund or any other person or firm on behalf of
the Fund including but not limited to any previous transfer
agent or registrar; (ii) any instructions or requests of the
Fund or any of its officers; (iii) any instructions or opinions
of legal counsel with respect to any
9
matter arising in connection with the services to be performed
by the Bank under this Agreement which are provided to the Bank
after consultation with such legal counsel; or (iv) any paper or
document, reasonably believed to be genuine, authentic, or
signed by the proper person or persons;
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;
The negotiation and processing of checks made payable to
prospective or existing Shareholders tendered to the Bank for
the purchase of Shares, such checks are commonly known as "third
party checks";
Upon the Fund's request entering into any agreements required by
the National Securities Clearing Corporation (the "NSCC")
required by the NSCC for the transmission of Fund or Shareholder
data through the NSCC clearing systems;
8.2 In order that the indemnification provisions contained in this Section 8
---------
shall apply, upon the assertion of a claim for which the Fund may be
required to indemnify the Bank, the Bank shall promptly notify the Fund
of such assertion, and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have the option to
participate with the Bank in the defense of such claim or to defend
against said claim in its own name or in the name of the Bank. The Bank
shall in no case confess any claim or make any compromise in any case in
which the Fund may be required to indemnify the Bank except with the
Fund's prior written consent.
9. Standard of Care
----------------
The Bank shall at all times act in good faith and agrees to use its best
efforts 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, except as provided in Section 9.2 below.
-----------
In the case of Exception Services as defined in Section 2.3 herein,
-----------
the Bank shall be held to a standard of gross negligence and encoding
and payment processing errors shall not be deemed negligence.
10. Year 2000
---------
The Bank will take reasonable steps to ensure that its products (and
those of its third-party suppliers) reflect the available technology to
offer products that are Year 2000 ready, including, but not limited to,
century recognition of dates, calculations that correctly compute same
century and multi century formulas and date values, and interface values
that reflect the date issues arising between now and the next one-
hundred years, and if any changes are required, the Bank will make the
changes to its
10
products at a price to be agreed upon by the parties and in a
commercially reasonable time frame and will require third-party
suppliers to do likewise.
11. Confidentiality
---------------
11.1 The Bank and the Fund agree that they will not, at any time during the
term of this Agreement or after its termination, reveal, divulge, or
make known to any person, firm, corporations or other business
organization, any customers' lists, trade secrets, cost figures and
projections, profit figures and projections, or any other secret or
confidential information whatsoever, whether of the Bank or of the Fund,
used or gained by the Bank or the Fund during performance under this
Agreement. The Fund and the Bank further covenant and agree to retain
all such knowledge and information acquired during and after the term of
this Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of the
Bank or the Fund and their successors and assigns. In the event of
breach of the foregoing by either party, the remedies provided by
Section 7.3 shall be available to the party whose confidential
-----------
information is disclosed. The above prohibition of disclosure shall not
apply to the extent that the Bank must disclose such data to its sub-
contractor or Fund agent for purposes of providing services under this
Agreement.
11.2 In the event of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the
Fund and to secure instructions from an authorized officer of the Fund
as to such inspection. The Bank 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.
11.3 In the event that any requests or demands are made for the inspection of
the Shareholder records of the Company, other than request for records
------------------------------
of Shareholders pursuant to standard subpoenas from state or federal
--------------------------------------------------------------------
government authorities (i.e., divorce and criminal actions), the Bank
-----------------------------------------------------------
will endeavor to notify the Company and to secure instructions from an
authorized officer of the Company as to such inspection. The Bank
expressly reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by counsel that it may be
held liable for the failure to exhibit the Shareholder records to such
person.
12. Covenants of the Fund and the Bank
----------------------------------
12.1 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Directors of
the Fund authorizing the appointment of the Bank and the
execution and delivery of this Agreement; and
(b) A copy of the Articles of Incorporation and By-Laws of the Fund
and all amendments thereto.
11
12.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund 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.
12.3 The Bank 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 Fund Act of 1940, as
amended, and the Rules thereunder, the Bank agrees that all such records
prepared or maintained by the Bank relating to the services to be
performed by the Bank hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such Section
and Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
13. Termination of Agreement
------------------------
13.1 This Agreement may be terminated by either party upon one hundred twenty
(120) days written notice to the other.
Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be
borne by the Fund. Additionally, the Bank reserves the right to charge
for any other reasonable expenses associated with such termination and a
charge equivalent to the average of three (3) months' fees.
Upon termination of this Agreement, each party shall return to the other
party all copies of confidential or proprietary materials or information
received from such other party hereunder, other than materials or
information required to be retained by such party under applicable laws
or regulations.
14. Assignment and Third Party Beneficiaries
----------------------------------------
14.1 Except as provided in Section 15.1 below, neither this Agreement nor any
------------
rights or obligations hereunder may be assigned by either party without
the written consent of the other party. Any attempt to do so in
violation of this Section shall be void. Unless specifically stated to
the contrary in any written consent to an assignment, no assignment will
release or discharge the assignor from any duty or responsibility under
this Agreement.
14.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Bank and the Fund, and the duties and
responsibilities undertaken pursuant to this Agreement shall be for the
sole and exclusive benefit of the Bank and the Fund. This Agreement
shall inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
14.3 This Agreement does not constitute an agreement for a partnership or
joint venture
12
between the Bank and the Fund. Other than as provided in Section 15.1,
------------
neither party shall make any commitments with third parties that are
binding on the other party without the other party's prior written
consent.
15. Subcontractors
--------------
The Bank may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended, (ii) a BFDS subsidiary duly
registered as a transfer agent or (iii) a BFDS affiliate duly registered
as a transfer agent; provided, however, that the Bank shall be fully
responsible to the Fund for the acts and omissions of BFDS or its
subsidiary or affiliate as it is for its own acts and omissions.
Nothing herein shall impose any duty upon the Bank in connection with or
make the Bank liable for the actions or omissions to act of unaffiliated
third parties such as by way of example and not limitation, Airborne
Services, Federal Express, United Parcel Service, the U.S. mails, the
NSCC and telecommunication companies, provided, if the Bank selected
such company, the Bank shall have exercised due care in selecting the
same.
16. Miscellaneous
-------------
16.1 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 Board of Directors of the Fund.
16.2 Massachusetts Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
16.3 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.
16.4 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.
16.5 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement
and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
16.6 Waiver. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the other
party shall be construed as a
13
waiver of any succeeding breach of the same or of any other covenant or
condition.
16.7. 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 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.
16.8 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.
16.9 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.
17. Additional Funds
----------------
In the event that the Fund establishes one or more series of Shares in
addition to the attached Schedule A with respect to which it desires to
have the Bank render services as transfer agent under the terms hereof,
it shall so notify the Bank in writing, and if the Bank agrees in
writing to provide such services, such series of Shares shall become a
Portfolio hereunder.
14
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.
BY:
-----------------------------
ATTEST:
-----------------------------
STATE STREET BANK AND TRUST
COMPANY
BY:
-----------------------------
ATTEST:
-----------------------------
15
SCHEDULE A
[Fund List]
STATE STREET BANK AND TRUST
COMPANY
BY: BY:
----------------------------- -----------------------------
16
SCHEDULE 1.2(E)
STATE STREET BANK & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Dated ____________
Service Performed Responsibility
----------------- --------------
Bank Fund
---- ----
1. Receives orders for the purchase
of Shares.
2. Issue Shares and hold Shares in
Shareholders accounts.
3. Receive redemption requests.
4. Effect transactions 1-3 above
directly with broker-dealers.
5. Pay over monies to redeeming
Shareholders.
6. Effect transfers of Shares.
7. Prepare and transmit dividends
and distributions.
8. Issue Replacement Certificates.
9. Reporting of abandoned property.
10. Maintain records of account.
11. Maintain and keep a current and
accurate control book for each
issue of securities.
12. Mail proxies.
13. Mail Shareholder reports.
14. Mail prospectuses to current
Shareholders.
17
SCHEDULE 1.2(e)
STATE STREET BANK & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Dated ____________
Service Performed Responsibility
----------------- --------------
Bank Fund
---- ----
15. Withhold taxes on U.S. resident
and non-resident alien accounts.
16. Prepare and file U.S. Treasury
Department forms.
17. Prepare and mail account and
confirmation statements for
Shareholders.
18. Provide Shareholder account
information.
19. Blue Sky reporting.
* Such services are more fully described in Section 1.2 of the Agreement.
STATE STREET BANK AND TRUST
COMPANY
BY: BY:
------------------------------ -----------------------------
Executive Vice President
18
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated ____________
1. On each Business Day, the TPA(s) shall receive, on behalf of and as agent
of the Fund(s), Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the
purchases of Shares, and (ii) requests by the Plan for the redemption of
Shares; in each case based on the Plan's receipt of purchase orders and
redemption requests by Participants in proper form by the time required by
the term of the Plan, but not later than the time of day at which the net
asset value of a Fund is calculated, as described from time to time in that
Fund's prospectus. Each Business Day on which the TPA receives
Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions,
to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Bank of the net amount of such purchases or
redemptions, as the case may be, for each of the Plans. In the case of net
purchases by any Plan, the TPA(s) shall instruct the Trustees of such Plan
to transmit the aggregate purchase price for Shares by wire transfer to the
Bank on (TD+1). In the case of net redemptions by any Plan, the TPA(s)
shall instruct the Fund's custodian to transmit the aggregate redemption
proceeds for Shares by wire transfer to the Trustees of such Plan on
(TD+1). The times at which such notification and transmission shall occur
on (TD+1) shall be as mutually agreed upon by each Fund, the TPA(s), and
the Bank.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Bank and such
account shall be in the name of that Plan, the TPA(s), or the nominee of
either thereof as the record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan as
of the statement closing date, purchases and redemptions of Shares by the
Plan during the period covered by the statement, and the dividends and
other distributions paid to the Plan on Shares during the statement period
(whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to the
Plans
19
prospectuses, proxy materials, reports, and other information provided by
each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to each
Fund or any agent designated by it such periodic reports covering Shares of
each Plan as each Fund shall reasonably conclude are necessary to enable
the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses, proxy
materials, periodic reports and other materials relating to each Fund be
furnished to Participants in which event the Bank or each Fund shall mail
or cause to be mailed such materials to Participants. With respect to any
such mailing, the TPA(s) shall, at the request of the Bank or each Fund,
provide at the TPA(s)'s expense complete and accurate set of mailing labels
with the name and address of each Participant having an interest through
the Plans in Shares.
STATE STREET BANK AND TRUST
COMPANY
BY: BY:
------------------------------ -----------------------------
20
SCHEDULE 3.1
FEES
Dated ____________
STATE STREET BANK AND TRUST
COMPANY
BY: BY:
------------------------------ -----------------------------
21
