SUB -TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT, dated as of October 1, 1999 between
Xxxxx Xxxxxx Private Trust Company ("Transfer Agent"),
a New York corporation having its principal place of
business at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and FIRST DATA INVESTOR SERVICES GROUP, INC.
("Investor Services Group"), a Massachusetts
corporation with principal offices at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, Transfer Agent serves as transfer
agent, dividend disbursing agent and shareholder
servicing agent for the registered investment
companies listed on Schedule A (as from time to time
amended) (each a "Fund" and collectively, the "Funds")
pursuant to Transfer Agency and Services Agreements
between the Transfer Agent and the Funds, as amended
from time to time (the "TA Agreements"); and
WHEREAS, pursuant to Article 4 ("Delegation of
Responsibilities") of the TA Agreements, the Transfer
Agent wishes to retain Investor Services Group to
render certain shareholder recordkeeping and
accounting services and functions for the Funds and
Investor Services Group is willing to render such
services;
NOW, THEREFORE, in consideration of the mutual
covenants and promises hereinafter set forth, Transfer
Agent and Investor Services Group agree as follows:
Article 1 Definitions
1.1 Whenever used in this Agreement, the
following words and phrases, unless the context
otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall
mean the Articles of Incorporation, Declaration
of Trust, or other similar organizational
document as the case may be, of a Fund as the
same may be amended from time to time.
(b) "Authorized Person" shall be deemed
to include (i) any authorized officer of a Fund
or Transfer Agent; or (ii) any person, whether
or not such person is an officer or employee of
a Fund or Transfer Agent, duly authorized to
give Oral Instructions or Written Instructions
on behalf of the Fund or Transfer Agent as
indicated in writing to Investor Services Group
from time to time.
(c) "Board Members" shall mean the
Directors or Trustees of the governing body of
the Fund, as the case may be.
(d) "Board of Directors" shall mean the
Board of Directors or Board of Trustees of the
Fund, as the case may be.
(e) "Commission" shall mean the
Securities and Exchange Commission.
(f) "Custodian" refers to any custodian
or subcustodian of securities and other property
which a Fund may from time to time deposit, or
cause to be deposited or held under the name or
account of such a custodian pursuant to a
Custodian Agreement.
(g) "1934 Act" shall mean the Securities
Exchange Act of 1934 and the rules and
regulations promulgated thereunder, all as amended
from time to time.
(h) "1940 Act" shall mean the Investment
Company Act of 1940 and the rules and
regulations promulgated thereunder, all as
amended from time to time.
(i) "Oral Instructions" shall mean
instructions, other than Written Instructions,
actually received by Investor Services Group
from a person reasonably believed by Investor
Services Group to be an Authorized Person;
(j) "Prospectus" shall mean the most
recently dated Fund Prospectus and Statement of
Additional Information, including any
supplements thereto if any, which has become
effective under the Securities Act of 1933 and
the 1940 Act.
(k) "Shares" refers collectively to such
shares of capital stock or beneficial interest,
as the case may be, or class thereof, of a Fund
as may be issued from time to time.
(l) "Shareholder" shall mean a record
owner of Shares of a Fund.
(m) "Written Instructions" shall mean a
written communication signed by a person
reasonably believed by Investor Services Group
to be an Authorized Person and actually received
by Investor Services Group. Written
Instructions shall include manually executed
originals and authorized electronic
transmissions, including telefacsimile of a
manually executed original or other process.
Article 2 Appointment of Investor Services Group
2.1 Transfer Agent hereby appoints Investor
Services Group to render shareholder recordkeeping and
accounting services and functions to Transfer Agent
with respect to the Funds and Investor Services Group
hereby accepts such appointment and agrees to perform
the duties hereinafter set forth.
Article 3 Duties of Investor Services Group
3.1 Investor Services Group shall be
responsible for:
(a) Administering and/or performing the
customary services of a transfer agent; acting
as service agent in connection with dividend and
distribution functions; and for performing
shareholder account and administrative agent
functions in connection with the issuance,
transfer and redemption or repurchase (including
coordination with the Custodian) of Shares of
each Fund, as more fully described in the
written schedule of Duties of Investor Services
Group annexed hereto as Schedule B and
incorporated herein, and in accordance with the
terms of the Prospectus of each Fund, applicable
law and the procedures established from time to
time between Investor Services Group and
Transfer Agent.
(b) Recording the issuance of Shares and
maintaining pursuant to Rule 17Ad-10(e) of the
1934 Act a record of the total number of Shares
of each Fund which are authorized, based upon
data provided to it by the Fund, and issued and
outstanding. Investor Services Group shall
provide each 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.
(c) In addition to performing the
foregoing services, the Fund hereby engages
Investor Services Group as its service provider
with respect to those Print/Mail Services as set
forth in Schedule B for the fees identified in
Schedule D. Investor Services Group agrees to
perform the services and its obligations subject
to the terms and conditions of this Agreement.
Notwithstanding the foregoing, in the event that
Investor Services Group deems it necessary to
use the services of a third party to provide
Transfer Agent with the print/mail services
described herein, Investor Services Group shall,
unless otherwise agreed to by the parties, use
the services of Transfer Agent or its affiliates
to provide such services.
(d) Notwithstanding any of the foregoing
provisions of this Agreement, Investor Services
Group shall be under no duty or obligation to
inquire into, and shall not be liable for: (i)
the legality of the issuance or sale of any
Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the
redemption of any Shares, or the propriety of
the amount to be paid therefor; (iii) the
legality of the declaration of any dividend by a
Fund's Board of Directors, or the legality of
the issuance of any Shares in payment of any
dividend; or (iv) the legality of any
recapitalization or readjustment of the Shares.
3.2 In addition, Transfer Agent shall (i)
identify to Investor Services Group in writing or by
transmission 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 Investor
Services Group 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 Funds and the reporting of such
transactions to the Funds as provided above.
3.3 In addition to the duties set forth
herein, Investor Services Group agrees to migrate the
Funds at no cost to its Full Service Retail (FSR)
application, as more fully described on Schedule C.
Investor Services Group agrees to complete such
migration within 18 months of the completion of
reciprocal key milestones, written business
requirements, functional specifications and documented
mutual test plans. In addition, Investor Services
Group shall perform such other duties and functions,
and shall be paid such amounts therefor, as may from
time to time be agreed upon in writing between
Transfer Agent and Investor Services Group.
3.4 Investor Services Group agrees to provide
the services described herein in accordance with the
written schedule of Performance Standards annexed
hereto as Exhibit 1 of Schedule B and incorporated by
reference herein.
Article 4 Recordkeeping and Other Information
4.1 Investor Services Group shall create and
maintain all records required of it pursuant to its
duties hereunder and as set forth in Schedule B in
accordance with all applicable laws, rules and
regulations, including records required by Section
31(a) of the 1940 Act. Where applicable, such
records shall be maintained by Investor Services Group
for the periods and in the places required by Rule
31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of
the 1940 Act, Investor Services Group agrees that all
such records prepared or maintained by Investor
Services Group relating to the services to be
performed by Investor Services Group hereunder are the
property of the Funds and will be preserved,
maintained and made available in accordance with such
section, and will be surrendered promptly to the Funds
on and in accordance with Transfer Agent's or the
Fund's request. The expenses associated with standard
records requests made in the normal course of business
are covered accordingly in Schedule E. The expenses
associated with extraordinary requests for records
which are not made in the ordinary course of business
shall be determined by agreement between Transfer
Agent and Investor Services Group.
4.3 In case of any requests or demands for the
inspection of Shareholder records of a Fund, Investor
Services Group will endeavor to notify Transfer Agent
of such request and secure Written Instructions as to
the handling of such request. Investor Services Group
reserves the right, however, to exhibit the
Shareholder records to any person whenever it is
advised by its counsel that it may be held liable for
the failure to comply with such request.
Article 5 Fund Instructions
5.1 Investor Services Group will have no
liability when acting upon Written or Oral
Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be
held to have any notice of any change of authority of
any person until receipt of a Written Instruction
thereof from the Fund or Transfer Agent. Investor
Services Group will also have no liability when
processing Share certificates which it reasonably
believes to bear the proper manual or facsimile
signatures of the officers of a Fund and the proper
countersignature of Investor Services Group.
5.2 At any time, Investor Services Group may
request Written Instructions from a Fund or Transfer
Agent and may seek advice from legal counsel for the
Fund, or its own legal counsel, with respect to any
matter arising in connection with this Agreement, and
it shall not be liable for any action taken or not
taken or suffered by it in good faith in accordance
with such Written Instructions or in accordance with
the opinion of counsel for the Fund or for Investor
Services Group. Written Instructions requested by
Investor Services Group will be provided by a Fund or
Transfer Agent within a reasonable period of time.
5.3 Investor Services Group, its officers,
agents or employees, shall accept Oral Instructions or
Written Instructions given to them by any person
representing or acting on behalf of a Fund or Transfer
Agent only if said representative is an Authorized
Person. Transfer Agent agrees that all Oral
Instructions shall be followed within one business day
by confirming Written Instructions, and that the
Fund's failure to so confirm shall not impair in any
respect Investor Services Group's right to rely on
Oral Instructions.
Article 6 Compensation
6.1 Transfer Agent will compensate Investor
Services Group for the performance of its obligations
hereunder in accordance with the fees set forth in the
written Fee Schedule annexed hereto as Schedule D and
incorporated herein. Investor Services Group will
transmit an invoice to Transfer Agent as soon as
practicable after the end of each calendar month which
will be detailed in accordance with Schedule D.
6.2 In addition to those fees set forth in
Section 6.1 above, Transfer Agent agrees to arrange
for payment by the Funds, and will be billed
separately for, reasonable out-of-pocket expenses
incurred by Investor Services Group in the performance
of its duties hereunder. Out-of-pocket expenses shall
include, but shall not be limited to, the items
specified in the written schedule of out-of-pocket
charges annexed hereto as Schedule E and incorporated
herein. Schedule E may be modified by written
agreement between the parties. Unspecified
out-of-pocket expenses shall be limited to those
out-of-pocket expenses reasonably incurred by Investor
Services Group in the performance of its obligations
hereunder.
6.3 Transfer Agent agrees to pay or arrange
for the payment of all fees and out-of-pocket expenses
by Federal Funds Wire within five (5) business days
following the receipt of the respective invoice.
6.4 Any compensation agreed to hereunder may
be adjusted from time to time by attaching to Schedule
D, a revised Fee Schedule and by written agreement
executed and dated by the parties hereto.
Article 7 Documents
7.1 In connection with the appointment of
Investor Services Group, Transfer Agent shall, on or
before the date this Agreement goes into effect, but
in any case within a reasonable period of time for
Investor Services Group to prepare to perform its
duties hereunder, deliver or caused to be delivered to
Investor Services Group the documents set forth in the
written schedule of Fund Documents annexed hereto as
Schedule F.
Article 8 Transfer Agent System
8.1 Investor Services Group shall retain title
to and ownership of any and all data bases, computer
programs, screen formats, report formats, interactive
design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters,
concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by
Investor Services Group in connection with the core
transfer agency services provided by Investor Services
Group to the Funds herein (the "Investor Services
Group System") and the other products or services
provided by Investor Services Group hereunder. It is
expressly understood that all data pertaining to the
Funds remains the exclusive property of the Funds.
8.2 Investor Services Group hereby grants to
Transfer Agent on behalf of the Funds a limited
license to the Investor Services Group System for the
sole and limited purpose of having Investor Services
Group provide the services contemplated hereunder and
nothing contained in this Agreement shall be construed
or interpreted otherwise and such license shall
immediately terminate with the termination of this
Agreement.
8.3 In the event that Transfer Agent, the
Funds, including any affiliate or agent of the Funds
or any third party acting on behalf of the Fund is
provided with direct access to the Investor Services
Group System for either account inquiry or to transmit
transaction information, including but not limited to
maintenance, exchanges, purchases and redemptions,
such direct access capability shall be limited to
direct entry to the Investor Services Group System by
means of on-line mainframe terminal entry or PC
emulation of such mainframe terminal entry and any
other non-conforming method of transmission of
information to the Investor Services Group System is
strictly prohibited without the prior written consent
of Investor Services Group.
8.4 Investor Services Group agrees to commit
to a systems development headcount of forty (40)
persons dedication to Transfer Agent.
8.5 During the term of this Agreement Investor
Services Group will use on behalf of the Funds at no
additional cost all modifications, enhancements, or
changes which Investor Services Group may make to the
Investor Services Group System in the normal course of
its business ("Systems Modifications") and which are
applicable to functions and features offered by the
Funds.
8.6 Investor Services Group shall have the
right, at any time, and from time to time, to alter
and modify any systems, programs, procedures or
facilities used or employed in performing its duties
and obligations hereunder, provided that no such
alteration or modification shall, without the consent
of Transfer Agent, materially adversely change or
affect the operations and procedures of the Funds in
using or employing the Investor Services Group System
hereunder or the reports to be generated by such
system and facilities hereunder.
Article 9 Representations and Warranties and
Condition Precedent
9.1 Investor Services Group represents and
warrants to Transfer Agent that:
(a) it is a corporation duly organized,
existing and in good standing under the laws of
the Commonwealth of Massachusetts;
(b) it is empowered under applicable
laws and by its Articles of Incorporation and
By-Laws to enter into and perform this
Agreement;
(c) all requisite corporate proceedings
have been taken to authorize it to enter into
this Agreement;
(d) it is duly registered with its
appropriate regulatory agency as a transfer
agent and such registration will remain in
effect for the duration of this Agreement; and
(e) it has and will continue to have
access to the necessary facilities, equipment
and personnel to perform its duties and
obligations under this Agreement.
9.2 Transfer Agent represents and warrants to
Investor Services Group that:
(a) it is duly organized, existing and
in good standing under the laws of the state of
New York;
(b) it is empowered under applicable
laws and by its Article of Incorporation and By-
Laws to enter into this Agreement;
(c) all corporate proceedings required
by said Articles of Incorporation, By-Laws and
applicable laws have been taken to authorize it
to enter into this Agreement;
(d) a registration statement under the
Securities Act of 1933, as amended, and the 1940
Act on behalf of each Fund is currently
effective and will remain effective, and all
appropriate state securities law filings have
been made and will continue to be made, with
respect to all Shares of the Fund being offered
for sale; and
(e) all outstanding Shares are validly
issued, fully paid and non-assessable and when
Shares are hereafter issued in accordance with
the terms of each Fund's Articles of
Incorporation and its Prospectus, such Shares
shall be validly issued, fully paid and
non-assessable.
9.3 Year 2000 Compliance. (a) For purposes
of this Agreement, "Year 2000 Compliant" means:
(i) date data will process in the same
manner and without error or interruption due
solely to the change in century, in any level of
computer hardware or software Investor Services
Group provides, including, but not limited to,
microcode, firmware, system and application
programs, files and databases; and
(ii) there will be no loss of any
functionality, accuracy, data integrity and
performance of the Investor Services Group
System due solely to the change in century, with
respect to the introduction, processing or
output of date records.
(b) Investor Services Group represents and
warrants that:
(i) The Investor Services Group System
will be Year 2000 Compliant by December 31,
1998; provided, however, that Investor Services
Group will be in a process of testing the
Investor Services Group System in regard to Year
2000 Compliance throughout calendar year 1999
and any temporary and immaterial loss of
functionality occurring during the ordinary
course of this testing and fixing process shall
not be considered a failure of Investor Services
Group to be Year 2000 Compliant.
(ii) The Investor Services Group System
will continue to be interoperable, in the same
manner as it is prior to January 1, 2000, with
software and hardware of Transfer Agent and the
Funds which may deliver records to, receive
records from or interact with the Investor
Services Group System in the course of
processing data, provided that such software and
hardware of Transfer Agent and the Funds is Year
2000 Compliant as defined herein and complies
with the interface and format standards mutually
agreed to by Investor Services Group and
Transfer Agent.
(c) Transfer Agent agrees to cooperate
fully, and to ensure that its vendors cooperate fully,
with Investor Services Group to ensure the
interoperability of the Investor Services Group System
with hardware and software of Transfer Agent and its
vendors. Investor Services Group shall have the
right, at its discretion, to reject any data file
which it in good faith believes will interfere with
the ability of the Investor Services Group System to
be Year 2000 Compliant.
(d) Investor Services Group agrees that
Transfer Agent shall have the right to conduct such
testing as Transfer Agent reasonably deems necessary
to ensure that the Investor Services Group System
complies with the foregoing representations and
warranties, and Investor Services Group agrees to
cooperate with, support and participate in such
testing as reasonably required by Transfer Agent.
(e) The term "Year 2000 Compliance
Warranty" shall mean, collectively, the warranties set
forth in this section.
(f) Waiver of Limitation of Liability.
With the exception of the disclaimer of consequential
damages provision of this Agreement, any provisions of
this Agreement which tend to limit or eliminate the
liability of either party shall have no application
with respect to the Year 2000 Compliance Warranty set
forth herein.
Article 10 Indemnification
10.1 Investor Services Group shall not be
responsible for and Transfer Agent shall indemnify and
hold Investor Services Group harmless from and against
any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges,
payments and liabilities of any sort or kind not
specifically deemed to be the responsibility of
Investor Services Group which may be asserted against
Investor Services Group or for which Investor Services
Group may be held to be liable (a "Claim"), arising
out of or attributable to any of the following:
(a) any actions of Investor Services
Group required to be taken pursuant to this
Agreement, provided that Investor Services Group
has acted in good faith and with due diligence
and reasonable care, unless such Claim resulted
from a negligent act or omission to act or bad
faith by Investor Services Group in the
performance of its duties hereunder;
(b) Investor Services Group's reasonable
reliance on, or reasonable use of information,
data, records and documents (including but not
limited to magnetic tapes, computer printouts,
hard copies and microfilm copies) received by
Investor Services Group from a Fund, or any
authorized third party acting on behalf of the
Fund in the performance of Investor Services
Group's duties and obligations hereunder;
(c) the reliance on, or the
implementation of, any Written or Oral
Instructions or any other instructions or
requests of a Fund;
(d) the offer or sale of shares in
violation of any requirement under the
securities laws or regulations of any state that
such shares be registered in such state or in
violation of any stop order or other
determination or ruling by any state with
respect to the offer or sale of such shares in
such state; and
(e) Transfer Agent's refusal or failure
to comply with the terms of this Agreement, or
any Claim which arises out of Transfer Agent's
negligence or misconduct or the breach of any
representation or warranty of Transfer Agent
made herein.
10.2 Transfer Agent shall not be responsible
for and Investor Services Group shall indemnify and
hold Transfer Agent, the Funds, their affiliates and
their respective directors, officers, employees and
agents harmless from and against any and all claims,
costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and
liabilities of any sort or kind which may be asserted
against Transfer Agent or for which Transfer Agent may
be held to be liable (a "Claim"), arising out of or
attributable to (a) any negligent act or omission to
act or bad faith by Investor Services Group in the
performance of its duties hereunder; or (b) Investor
Services Group's refusal or failure to comply with the
terms of this Agreement; (c) the breach of any
representation or warranty of Investor Services Group
made herein.
10.3 In any case in which a party (the
"Indemnifying Party") may be asked to indemnify or
hold harmless any other party (or parties) (the
"Indemnified Party"), the Indemnifying Party shall be
advised of all pertinent facts concerning the
situation in question. The Indemnified Party will
notify the Indemnifying Party promptly after
identifying any situation which it believes presents
or appears likely to present a claim for
indemnification against the Indemnifying Party
although the failure to do so shall not prevent
recovery by the Indemnified Party except to the extent
that the Indemnifying Party is prejudiced as a result
of such failure to timely notify. The Indemnifying
Party shall have the option to defend the Indemnified
Party against any Claim which may be the subject of
this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be
conducted by counsel chosen by the Indemnifying Party
and satisfactory to the Indemnified, and thereupon the
Indemnifying Party shall take over complete defense of
the Claim and the Indemnified Party shall sustain no
further legal or other expenses in respect of such
Claim. The Indemnified party will not confess any
Claim or make any compromise in any case in which the
Indemnifying Party will be asked to provide
indemnification, except with the Indemnifying Party's
prior written consent. The obligations of the parties
hereto under this Section shall survive the
termination of this Agreement.
10.4 Except for remedies that cannot be waived
as a matter of law (and injunctive or provisional
relief), the provisions of this Article 10 shall be a
party's sole and exclusive remedy for claims or other
actions or proceedings to which the other party's
indemnification obligations pursuant to this Article
10 may apply.
Article 11 Standard of Care
11.1 Investor Services Group shall provide its
services as Sub-Transfer Agent in accordance with the
applicable provisions of Section 17A of the 1934 Act.
Investor Services Group shall at all times act in
good faith and agrees to use its best efforts within
commercially reasonable limits to ensure the accuracy
of all services performed under this Agreement, but
assumes no responsibility for loss or damage to
Transfer Agent or the Funds unless said errors are
caused by Investor Services Group's own negligence,
bad faith, willful misconduct or that of its employees
or knowing violations of applicable law pertaining to
the manner in which transfer agency services are to be
performed by Investor Services Group.
11.2 Each party shall have the duty to mitigate
damages for which the other party may become
responsible.
Article 12 Consequential Damages
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY, IN NO EVENT SHALL EITHER PARTY TO THIS
AGREEMENT, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY UNDER ANY
THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY,
PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY
EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF
WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER
EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
Article 13 Term and Termination
13.1 This Agreement shall be effective on the
date first written above and shall continue until May
31, 2004 (the "Initial Term"), provided Transfer Agent
or any of its affiliates continues to serve as
transfer agent during such period.
13.2 Upon the expiration of the Initial Term,
this Agreement shall automatically renew for
successive annual periods ending on May 31st of each
such renewal period (each a "Renewal Term"), unless
Transfer Agent or Investor Services Group provides
written notice to the other of its intent not to
renew. Such notice must be received not less than
ninety (90) days and not more than one-hundred eighty
(180) days prior to the expiration of the Initial Term
or the then current Renewal Term.
13.3 In the event a termination notice is given
by the Fund, all reasonable expenses associated with
movement of records and materials and conversion
thereof to a successor transfer agent will be borne by
the Fund.
13.4 If a party hereto is guilty of a material
failure to perform its duties and obligations
hereunder (a "Defaulting Party") the other party (the
"Non-Defaulting Party") may give written notice
thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30)
days after such written notice is given, then the
Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such
termination to the Defaulting Party. If Investor
Services Group is the Non-Defaulting Party, its
termination of this Agreement shall not constitute a
waiver of any other rights or remedies of Investor
Services Group with respect to services performed
prior to such termination of rights of Investor
Services Group to be reimbursed for out-of-pocket
expenses. In all cases, termination by the
Non-Defaulting Party shall not constitute a waiver by
the Non-Defaulting Party of any other rights it might
have under this Agreement or otherwise against the
Defaulting Party.
13.5 Notwithstanding the foregoing, Transfer
Agent may terminate this Agreement if either: (i) one
quarter or more of the Performance Standards listed in
Exhibit 1 of Schedule B are not met by Investor
Services Group for three (3) consecutive monthly
periods, or (ii) any one performance standard is not
met by Investor Services Group for any four (4)
consecutive monthly periods. Transfer Agent shall
notify Investor Services Group in writing within 120
days of any such failure. If Investor Services Group
is unable to correct its failure to meet the
performance standard(s) identified in such notice
within sixty (60) days following receipt of such
notice, Transfer Agent may terminate this Agreement
upon written notice to Investor Services Group.
Unless Transfer Agent provides Investor Services Group
with the written notice of Investor Services Group's
failure to meet the applicable performance standard as
described above, Transfer Agent shall have waived its
option to terminate the Agreement under this
provision.
Article 14 Confidentiality
14.1 The parties agree that the Proprietary
Information (defined below) and the contents of this
Agreement (collectively "Confidential Information")
are confidential information of the parties and their
respective licensors. Transfer Agent and Investor
Services Group shall exercise at least the same degree
of care, but not less than reasonable care, to
safeguard the confidentiality of the Confidential
Information of the other as it would exercise to
protect its own confidential information of a similar
nature. Transfer Agent and Investor Services Group
shall not duplicate, sell or disclose to others the
Confidential Information of the other, in whole or in
part, without the prior written permission of the
other party. Transfer Agent and Investor Services
Group may, however, disclose Confidential Information
to their respective parent corporation, their
respective affiliates, their subsidiaries and
affiliated companies and employees, provided that each
shall use reasonable efforts to ensure that the
Confidential Information is not duplicated or
disclosed in breach of this Agreement. Transfer Agent
and Investor Services Group may also disclose the
Confidential Information to independent contractors,
auditors, and professional advisors, provided they
first agree in writing to be bound by the
confidentiality obligations substantially similar to
this Section 14.1. Notwithstanding the previous
sentence, in no event shall either Transfer Agent or
Investor Services Group disclose the Confidential
Information to any competitor of the other without
specific, prior written consent.
14.2 Proprietary Information means:
(a) any data or information that is
competitively sensitive material, and not
generally known to the public, including, but
not limited to, information about product plans,
marketing strategies, finance, operations,
customer relationships, customer profiles, sales
estimates, business plans, and internal
performance results relating to the past,
present or future business activities of
Transfer Agent, the Funds or Investor Services
Group, their respective subsidiaries and
affiliated companies and the customers, clients
and suppliers of any of them;
(b) any scientific or technical
information, design, process, procedure,
formula, or improvement that is commercially
valuable and secret in the sense that its
confidentiality affords Transfer Agent, the
Funds or Investor Services Group a competitive
advantage over its competitors; and
(c) all confidential or proprietary
concepts, documentation, reports, data,
specifications, computer software, source code,
object code, flow charts, databases, inventions,
know-how, show-how and trade secrets, whether or
not patentable or copyrightable.
14.3 Confidential Information includes, without
limitation, all documents, inventions, substances,
engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material,
equipment, prototypes and models, and any other
tangible manifestation of the foregoing of either
party which now exist or come into the control or
possession of the other.
14.4 The obligations of confidentiality and
restriction on use herein shall not apply to any
Confidential Information that a party proves:
(a) Was in the public domain prior to
the date of this Agreement or subsequently came
into the public domain through no fault of such
party; or
(b) Was lawfully received by the party
from a third party free of any obligation of
confidence to such third party; or
(c) Was already in the possession of the
party prior to receipt thereof, directly or
indirectly, from the other party; or
(d) Is required to be disclosed in a
judicial or administrative proceeding after all
reasonable legal remedies for maintaining such
information in confidence have been exhausted
including, but not limited to, giving the other
party as much advance notice of the possibility
of such disclosure as practical so the other
party may attempt to stop such disclosure or
obtain a protective order concerning such
disclosure; or
(e) Is subsequently and independently
developed by employees, consultants or agents of
the party without reference to the Confidential
Information disclosed under this Agreement.
Article 15 Force Majeure
15.1 No party shall be liable for any default
or delay in the performance of its obligations under
this Agreement if and to the extent such default or
delay is caused, directly or indirectly, by (i) fire,
flood, elements of nature or other acts of God; (ii)
any outbreak or escalation of hostilities, war, riots
or civil disorders in any country, (iii) any act or
omission of the other party or any governmental
authority; (iv) any labor disputes beyond the
reasonable control of such party; or (v)
nonperformance by a third party or any similar cause
beyond the reasonable control of such party, including
without limitation, failures or fluctuations in
telecommunications or other equipment. Except to the
extent that the non-performing party shall have failed
to use its reasonable best efforts to minimize the
likelihood of occurrence of such circumstances or to
mitigate any loss or damage to the other party or the
Funds caused by such circumstances. In any such
event, the non-performing party shall be excused from
any further performance and observance of the
obligations so affected only for as long as such
circumstances prevail and such party continues to use
commercially reasonable efforts to recommence
performance or observance as soon as practicable.
15.2 Investor Services Group in conjunction
with its affiliate, First Data Technologies ("FDT"),
has developed a comprehensive disaster recovery plan
that ensures critical applications of daily data
processing functions are recoverable at an alternate
processing facility. A disaster recovery test is
conducted with FDT on at least an annual basis. The
tests include systems restoration, batch processing
and network connectivity. The mainframe operating
systems and customer network connectivity are
established at an alternate processing hot site
located in North Bergen New Jersey. In addition,
Investor Services Group's sites located in Westboro,
Ma and King of Prussia Pa., provide redundant backup
for critical business processes, and local data
processing.
Article 16 Assignment and Subcontracting
16.1 This Agreement, its benefits and
obligations shall be binding upon and inure to the
benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement may
not be assigned or otherwise transferred by either
party hereto, without the prior written consent of the
other party, which consent shall not be unreasonably
withheld; provided, however, that either party may, in
its sole discretion, assign all its right, title and
interest in this Agreement to an affiliate, parent or
subsidiary of the assigning party who is qualified to
act under the 1940 Act. Investor Services Group may,
in its sole discretion, engage subcontractors to
perform any of the obligations contained in this
Agreement to be performed by Investor Services Group.
Article 17 Arbitration
17.1 Any claim or controversy arising out of or
relating to this Agreement, or breach hereof, shall be
settled by arbitration administered by the American
Arbitration Association in New York, New York in
accordance with its applicable rules, except that the
Federal Rules of Evidence and the Federal Rules of
Civil Procedure with respect to the discovery process
shall apply.
17.2 The parties hereby agree that judgment
upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
17.3 The parties acknowledge and agree that the
performance of the obligations under this Agreement
necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general
choice of law provisions in this Agreement, the
parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of
this Article 17.
Article 18 Notice
18.1 Any notice or other instrument authorized
or required by this Agreement to be given in writing
to Transfer Agent or Investor Services Group, shall be
sufficiently given if addressed to that party and
received by it at its office set forth below or at
such other place as it may from time to time designate
in writing.
To Transfer Agent:
Xxxxx Xxxxxx Private Trust Company
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's
General Counsel
Article 19 Governing Law/Venue
19.1 The laws of the State of New York,
excluding the laws on conflicts of laws, shall govern
the interpretation, validity, and enforcement of this
agreement.
Article 20 Counterparts
20.1 This Agreement may be executed in any
number of counterparts, each of which shall be deemed
to be an original; but such counterparts shall,
together, constitute only one instrument.
Article 21 Captions
21.1 The captions of this Agreement are
included for convenience of reference only and in no
way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 22 Publicity
22.1 Neither Investor Services Group nor
Transfer Agent shall release or publish news releases,
public announcements, advertising or other publicity
relating to this Agreement or to the transactions
contemplated by it without the prior review and
written approval of the other party; provided,
however, that either party may make such disclosures
as are required by legal, accounting or regulatory
requirements after making reasonable efforts in the
circumstances to consult in advance with the other
party.
Article 23 Relationship of Parties
23.1 The parties agree that they are
independent contractors and not partners or
co-venturers and nothing contained herein shall be
interpreted or construed otherwise.
Article 24 Entire Agreement; Severability
24.1 This Agreement, including Schedules,
Addenda, and Exhibits hereto, constitutes the entire
Agreement between the parties with respect to the
subject matter hereof and supersedes all prior and
contemporaneous proposals, agreements, contracts,
representations, and understandings, whether written
or oral, between the parties with respect to the
subject matter hereof. No change, termination,
modification, or waiver of any term or condition of
the Agreement shall be valid unless in writing signed
by each party. No such writing shall be effective as
against Investor Services Group unless said writing is
executed by a Senior Vice President, Executive Vice
President, or President of Investor Services Group. A
party's waiver of a breach of any term or condition in
the Agreement shall not be deemed a waiver of any
subsequent breach of the same or another term or
condition.
24.2 The parties intend every provision of this
Agreement to be severable. If a court of competent
jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or
invalidity shall not affect the validity of the
remainder of this Agreement. In such case, the
parties shall in good faith modify or substitute such
provision consistent with the original intent of the
parties. Without limiting the generality of this
paragraph, if a court determines that any remedy
stated in this Agreement has failed of its essential
purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion
of damages, shall remain fully effective.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their duly
authorized officers, as of the 1st day of October
1999, subject to approval by the Funds' Board of
Directors.
XXXXX XXXXXX PRIVATE
TRUST COMPANY
By:
Title:
FIRST DATA INVESTOR
SERVICES GROUP, INC.
By:
Title:
SCHEDULE A
XXXXXXX XXXXX BARNEY FUNDS
Concert Investment Series
Emerging Growth Fund
Government Fund
Growth Fund
Growth and Income Fund
International Equity Fund
Municipal Fund
Consulting Group Capital Markets Funds
Balanced Investment
Emerging Market Equity Investment
Government Money Investments
High Yield Investments
Intermediate Fixed Income Investments
International Equity Investments
International Fixed Income Investments
Large Capitalization Growth Investments
Large Capitalization Value Equity Investments
Long-Term Bond Investments
Mortgage Backed Investments
Municipal Bond Investments
Small Capitalization Growth Investments
Small Capitalization Value Equity Investments
Greenwich Street Series Fund (variable annuity)
Appreciation Portfolio
Diversified Strategic Income Portfolio
Emerging Growth Portfolio
Equity Income Portfolio
Equity Index Portfolio
Growth & Income Portfolio
Intermediate High Grade Bond Portfolio
International Equity Portfolio
Money Market Portfolio
Total Return Portfolio
Xxxxx Xxxxxx Adjustable Rate Government Income Fund
Xxxxx Xxxxxx Aggressive Growth Fund Inc.
Xxxxx Xxxxxx Appreciation Fund Inc
Xxxxx Xxxxxx Arizona Municipals Fund Inc.
Xxxxx Xxxxxx California Municipals Fund Inc
Xxxxx Xxxxxx Concert Allocation Series, Inc.
Balanced Portfolio
Conservative Portfolio
Growth Portfolio
High Growth Portfolio
Income Portfolio
Global Portfolio
Select Balanced Portfolio (variable annuity)
Select Conservative Portfolio (variable
annuity)
Select Growth Portfolio (variable annuity)
Select High Growth Portfolio (variable annuity)
Select Income Portfolio (variable annuity)
Xxxxx Xxxxxx Equity Funds
Concert Social Awareness Fund
Xxxxx Xxxxxx Large Cap Blend Fund
Xxxxx Xxxxxx Fundamental Value Fund Inc
Xxxxx Xxxxxx Funds, Inc
Large Cap Value Fund
Short-Term High Grade Bond Fund
US Government Securities Fund
Xxxxx Xxxxxx Income Funds
Xxxxx Xxxxxx Balanced Fund
Xxxxx Xxxxxx Convertible Fund
Xxxxx Xxxxxx Diversified Strategic Income Fund
Xxxxx Xxxxxx Exchange Reserve Fund
Xxxxx Xxxxxx High Income Fund
Xxxxx Xxxxxx Municipal High Income Fund
Xxxxx Xxxxxx Premium Total Return Fund
Xxxxx Xxxxxx Total Return Bond Fund
Xxxxx Xxxxxx Institutional Cash Management Fund, Inc
Cash Portfolio
Government Portfolio
Municipal Portfolio
Xxxxx Xxxxxx Investment Funds Inc.
Concert Peachtree Growth Fund
Xxxxx Xxxxxx Contrarian Fund
Xxxxx Xxxxxx Government Securities Fund
Xxxxx Xxxxxx Xxxxxxxxxx Global Small Cap Value
Fund
Xxxxx Xxxxxx Xxxxxxxxxx Global Value Fund
Xxxxx Xxxxxx Investment Grade Bond Fund
Xxxxx Xxxxxx Special Equities Fund
Xxxxx Xxxxxx Investment Trust
Xxxxx Xxxxxx Intermediate Maturity California
Municipals Fund
Xxxxx Xxxxxx Intermediate Maturity New York
Municipals Fund
Xxxxx Xxxxxx Large Capitalization Growth Fund
Xxxxx Xxxxxx S&P Index Fund
Xxxxx Xxxxxx Mid Cap Blend Fund
Xxxxx Xxxxxx Managed Governments Fund Inc.
Xxxxx Xxxxxx Managed Municipals Fund Inc.
Xxxxx Xxxxxx Massachusetts Municipals Fund Inc.
Xxxxx Xxxxxx Money Funds, Inc.
Cash Portfolio
Government Portfolio
Retirement Portfolio
Xxxxx Xxxxxx Muni Funds
California Money Market Portfolio
Florida Portfolio
Georgia Portfolio
Limited Term Portfolio
National Portfolio
New York Money Market Portfolio
New York Portfolio
Pennsylvania Portfolio
Xxxxx Xxxxxx Municipal Money Market Fund, Inc.
Xxxxx Xxxxxx Natural Resources Fund Inc.
Xxxxx Xxxxxx New Jersey Municipals Fund Inc.
Xxxxx Xxxxxx Oregon Municipals Fund
Xxxxx Xxxxxx Principal Return Fund
Zeros Plus Emerging Growth Series 2000
Xxxxx Xxxxxx Security and Growth Fund 2005
Xxxxx Xxxxxx Small Cap Blend Fund, Inc
Xxxxx Xxxxxx Telecommunications Trust
Xxxxx Xxxxxx Telecommunications Income Fund
Xxxxx Xxxxxx Variable Account Funds (variable
annuity)
Income and Growth Portfolio
Reserve Account Portfolio
U.S. Government/High Quality Securities
Portfolio
Xxxxx Xxxxxx World Funds, Inc.
Emerging Markets Portfolio
European Portfolio
Global Government Bond Portfolio
International Balanced Portfolio
International Equity Portfolio
Pacific Portfolio
Travelers Series Fund (variable annuity)
AIM Capital Appreciation Portfolio
Alliance Growth Portfolio
GT Global Strategic Income Portfolio
MFS Total Return Portfolio
Xxxxxx Diversified Income Portfolio
Xxxxx Xxxxxx High Income Portfolio
Xxxxx Xxxxxx Large Cap Value Portfolio
Xxxxx Xxxxxx International Equity Portfolio
Xxxxx Xxxxxx Large Capitalization Growth
Portfolio
Xxxxx Xxxxxx Money Market Portfolio
Xxxxx Xxxxxx Pacific Basin Portfolio
TBC Managed Income Portfolio
Xxx Xxxxxx American Capital Enterprise
Portfolio
Federated High Yield Portfolio (variable annuity)
Federated Stock Portfolio (variable annuity)
Lazard International Equity Portfolio (variable
annuity)
MFS Emerging Growth Portfolio (variable annuity)
Travelers Series Trust (variable annuity)
Travelers 0 Coupon Xxxx XX 1998
Travelers 0 Coupon Xxxx XX 2000
Travelers 0 Coupon Xxxx XX 2005
Social Awareness Stock Portfolio
US Government Securities Portfolio
Utilities Portfolio
Convertible Bond Portfolio
Disciplined Small Cap Stock Portfolio
Strategic Stock Portfolio
MFS Research Portfolio
MFS Mid Cap Growth Portfolio
NWQ Large Cap Portfolio
Juriak & Xxxxxx Core Equity Portfolio
Travelers Funds (variable annuity)
Capital Appreciation Fund
Money Market Portfolio
High Yield Bond Trust
Mid Cap Disciplined Equity Fund
Managed Assets Trust
Travelers Quality Bond Portfolio (variable annuity)
The Fund For Stable Value Investments
SCHEDULE B
DUTIES OF INVESTOR SERVICES GROUP
1. Shareholder Information Investor Services
Group shall maintain a record of the number of Shares
held by each Shareholder of record which shall include
name, address, taxpayer identification and which shall
indicate whether such Shares are held in certificates
or uncertificated form.
2. Shareholder Services Investor Services
Group shall respond as appropriate to all inquiries
and communications from Shareholders relating to
Shareholder accounts with respect to its duties
hereunder and as may be from time to time mutually
agreed upon between Investor Services Group and
Transfer Agent.
3. Share Certificates
(a) At the expense of each Fund,
Transfer Agent shall supply Investor Services Group
with an adequate supply of blank share certificates to
meet Investor Services Group requirements therefor.
Such Share certificates shall be properly signed by
facsimile. Transfer Agent agrees that,
notwithstanding the death, resignation, or removal of
any officer of a Fund whose signature appears on such
certificates, Investor Services Group or its agent may
continue to countersign certificates which bear such
signatures until otherwise directed by Written
Instructions.
(b) With respect to each Fund, Investor
Services Group shall issue replacement Share
certificates in lieu of certificates which have been
lost, stolen or destroyed, upon receipt by Investor
Services Group of properly executed affidavits and
lost certificate bonds, in form satisfactory to
Investor Services Group, with the Fund and Investor
Services Group as obligees under the bond.
(c) With respect to each Fund, Investor
Services Group shall also maintain a record of each
certificate issued, the number of Shares represented
thereby and the Shareholder of record. With respect
to Shares held in open accounts or uncertificated form
(i.e., no certificate being issued with respect
thereto) Investor Services Group shall maintain
comparable records of the Shareholders thereof,
including their names, addresses and taxpayer
identification. Investor Services Group shall further
maintain a stop transfer record on lost and/or
replaced certificates.
4. Mailing Communications to Shareholders;
Proxy Materials Investor Services Group will address
and mail to Shareholders of Funds, all reports to
Shareholders, dividend and distribution notices and
proxy material for the Fund's meetings of
Shareholders. In connection with meetings of
Shareholders, Investor Services Group will prepare
Shareholder lists, mail and certify as to the mailing
of proxy materials, process and tabulate returned
proxy cards, report on proxies voted prior to
meetings, act as inspector of election at meetings and
certify Shares voted at meetings.
5. Sales of Shares
(a) Investor Services Group shall not be
required to issue any Shares of a Fund where it has
received a Written Instruction from the Fund or
official notice from any appropriate authority that
the sale of the Shares of the Fund has been suspended
or discontinued. The existence of such Written
Instructions or such official notice shall be
conclusive evidence of the right of Investor Services
Group to rely on such Written Instructions or official
notice.
(b) In the event that any check or other
order for the payment of money is returned unpaid for
any reason, Investor Services Group will endeavor to:
(i) give prompt notice of such return to the Fund or
Transfer Agent; (ii) place a stop transfer order
against all Shares issued as a result of such check or
order; and (iii) take such actions as Investor
Services Group may from time to time deem appropriate.
6. Transfer and Repurchase
(a) Investor Services Group shall
process all requests to transfer or redeem Shares in
accordance with the transfer or repurchase procedures
set forth in each Fund's Prospectus.
(b) Investor Services Group will
transfer or repurchase Shares upon receipt of Oral or
Written Instructions or otherwise pursuant to the
Prospectus and Share certificates, if any, properly
endorsed for transfer or redemption, accompanied by
such documents as Investor Services Group reasonably
may deem necessary.
(c) Investor Services Group reserves the
right to refuse to transfer or repurchase Shares until
it is satisfied that the endorsement on the
instructions is valid and genuine. Investor Services
Group also reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the
requested transfer or repurchase is legally
authorized, and it shall incur no liability for the
refusal, in good faith, to make transfers or
repurchases which Investor Services Group, in its good
judgment, deems improper or unauthorized, or until it
is reasonably satisfied that there is no basis to any
claims adverse to such transfer or repurchase.
(d) When Shares are redeemed, Investor
Services Group shall, upon receipt of the instructions
and documents in proper form, deliver to the Custodian
and each Fund or Transfer Agent a notification setting
forth the number of Shares to be repurchased. Such
repurchased shares shall be reflected on appropriate
accounts maintained by Investor Services Group
reflecting outstanding Shares of each Fund and Shares
attributed to individual accounts.
(e) Investor Services Group shall, upon
receipt of the monies provided to it by the Custodian
for the repurchase of Shares, pay such monies as are
received from the Custodian, all in accordance with
the procedures described in the written instruction
received by Investor Services Group from the Fund.
(f) Investor Services Group shall not
process or effect any repurchase with respect to
Shares of a Fund after receipt by Investor Services
Group or its agent of notification of the suspension
of the determination of the net asset value of the
Fund.
7. Dividends
(a) Upon the declaration of each
dividend and each capital gains distribution by the
Board of Directors of a Fund with respect to Shares of
the Fund, Transfer Agent shall furnish or cause to be
furnished to Investor Services Group Written
Instructions setting forth the date of the declaration
of such dividend or distribution, the ex-dividend
date, the date of payment thereof, the record date as
of which Shareholders entitled to payment shall be
determined, the amount payable per Share to the
Shareholders of record as of that date, the total
amount payable on the payment date and whether such
dividend or distribution is to be paid in Shares at
net asset value.
(b) On or before the payment date
specified in such resolution of the Board of
Directors, a Fund will provide Investor Services Group
with sufficient cash to make payment to the
Shareholders of record as of such payment date.
(c) If Investor Services Group does not
receive sufficient cash from a Fund to make total
dividend and/or distribution payments to all
Shareholders of the Fund as of the record date,
Investor Services Group will, upon notifying Transfer
Agent, withhold payment to all Shareholders of record
as of the record date until sufficient cash is
provided to Investor Services Group.
8. Cash Management Services. Funds
received by Investor Services Group in the course of
performing its services hereunder will be held in
demand deposit bank accounts or money market fund
accounts in the name of Investor Services Group (or
its nominee) as agent for Transfer Agent. Investor
Services Group shall be entitled to retain any
interest, dividends, balance credits or fee reductions
or other concessions or benefits earned or generated
by or associated with such accounts or made available
by the institution with which such accounts are
maintained.
9. Lost Shareholders. Investor Services
Group shall perform such services as are required in
order to comply with Rules 17a-24 and 17Ad-17 of the
34 Act (the Lost Shareholder Rules"), including, but
not limited to those set forth below. Investor
Services Group may, in its sole discretion, use the
services of a third party to perform the some or all
such services.
(a) documentation of electronic search
policies and procedures;
(b) execution of required searches;
(c) creation and mailing of confirmation
letters;
(d) taking receipt of returned verification
forms;
(e) providing confirmed address corrections in
batch via electronic media;;
(f) tracking results and maintaining data
sufficient to comply with the Lost
Shareholder Rules; and
(g) preparation and submission of data
required under the Lost Shareholder Rules.
10. Miscellaneous.
In addition to and neither in lieu nor in
contravention of the services set forth above,
Investor Services Group shall: (i) perform all the
customary services of a transfer agent, registrar,
dividend disbursing agent and agent of the dividend
reinvestment and cash purchase plan as described
herein consistent with those requirements in effect as
at the date of this Agreement; (ii) require proper
forms of instructions, signatures and signature
guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers and
redemptions and other shareholder account
transactions, all in conformance with Investor
Services Group's present procedures with such changes
or deviations therefrom as may be from time to time
required or approved by Transfer Agent, or the Fund's
counsel or Investor Services Group's counsel and the
rejection of orders or instructions not in good order
in accordance with the applicable Fund prospectus;
(iii) provide tot he person designated by Transfer
Agent daily Blue Sky reports generated by the Investor
Services Group; (iv) provide to Transfer Agent
escheatment reports as reasonably requested by
Transfer Agent with respect to the status of the
Funds' accounts and outstanding checks on the Investor
Services Group System; and (v) maintain a current,
duplicate set of the Funds' essential records at a
secure separate location in a form available and
usable forthwith in the event of any breakdown or
disaster disruption Investor Service Group's main
operation The detailed definition, frequency,
limitations and associated costs (if any) set out in
the attached fee schedule, include but are not limited
to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, tabulating
proxies, mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts where applicable,
preparing and filing U.S. Treasury Department Forms
1099 and other appropriate forms required with respect
to dividends and distributions by federal authorities
for all Shareholders.
11. Print/Mail Services. Investor Services
Group shall perform print/mail services on behalf of
the Funds with respect to the following items:
(a) Daily, Monthly Quarterly and Annual Output
? Confirmations
-Brokerage SB money market fund
SWEEP transactions
-Direct Accounts (non-brokerage) all
transactions
-New account and Change of
Allocation
? Welcome letters
? Checks:
-Dividend
-ACW
-Commission
-Daily Redemption
? Statements:
-All Non Brokerage Accounts
-Shareholder Statements
-Dealer Statements
-Dealer Statements (non-Transfer
Agent)
-Commission Statements
? Y/E Tax Forms
-Non-brokerage Accounts
-Non-networked accounts
(b) Special Mailings ( includes, 6700, proxy
except NSCC NT3)
? Report Mailings, (quarterly, annual and
semi-annual)
? Prospectus Fulfillment & Mailings
? Shareholder / Information Letters
EXHIBIT 1 OF SCHEDULE B
Performance Standards
? Except as otherwise set forth below,
measurement of standards will be measured in
the aggregate with respect to all Xxxxxxx
Xxxxx Xxxxxx Funds. Investor Services Group
will provide Transfer Agent with a monthly
report tracking compliance with the
performance standards identified below in the
aggregate with respect to all of the Funds.
A. Telephones:
To be measured on a monthly basis.
? The average speed of answering calls will be
twenty (20) seconds or less
? The abandonment rate for teleservicing calls
will be three (3) percent or less
(Calculation: calls abandoned over 20
seconds/calls offered).
? The Service Level will be eighty-five percent
(85%) or higher. The Service Level shall be
derived using the following formula:
Calls answered in less than 20 seconds + Calls
abandoned within less than 20 seconds
Total Calls Received
? Representatives will be monitored and graded
by their manager at least five (5) times per
month. Grading of representatives shall be
based on the criteria set forth in the
Service Checklist attached hereto.
Representatives that fail to receive an
average Quality Score of at least 95% in any
quarterly period shall be subject to Investor
Services Group's internal Performance
Evaluation Plan.
B. Processing:
The following standards will be met 95% of the
time measured on a monthly basis, minimum of 50
items per standard measured.
? New accounts in good order will be
established on Investor Services Group System
on the same day received.
? Correspondence will be completed within five
(5) business days of receipt
? Maintenance items and transfers in good order
will be completed within five (5) business
days of receipt
? Research will be completed within four (4)
business days from receipt.
C. Print/Mail:
The following standards will be met 95% of the
time measured on a monthly basis, minimum of 50
items per standard measured.
? Daily confirmations will be mailed to
shareholders on Trade Date plus two (2)
business days.
? Check requests will be mailed to shareholders
on Trade Date plus two (2) business days.
? Quarterly Statements will be mailed to
shareholders within five (5) business days
from quarter end.
D. Systems Transmission/Daily Processing Window:
? Meet the daily processing windows required by
Transfer Agent Systems and Operations
typically described as the nightly
"processing window" within two hours of
receipt of the nightly Transfer Agent
Brokerage transmission and/or receipt of
N.A.V.'s, accrual rates and distribution
rates for all Funds.
? 95% with the exception of TRAK reallocations
and dividend processing nights, measured
monthly.
? 98% accuracy with respect to processing such
information.
E. Manual Pricing.
Investor Services Group shall accurately process
exception pricing information relating to the
Funds received in a manual format from Transfer
Agent 95% of the time with respect to all of the
Funds in the aggregate and seventy-five percent
(75%) with respect to each individual Fund,
measured on a monthly basis, provided that
Transfer Agent has provided the information in
an accurate, complete and timely basis in
accordance with established procedures.
SCHEDULE C
Migration of Funds to Investor Services Group's Full
Service Retail (FSR) application:
FSR will provide Transfer Agent on behalf of the Funds
with a platform providing functionality available to
all of Investor Services Group's broker/dealer and
retail clients including:
? Expanded functionality and features in demand by
non-brokerage Transfer Agent investors, Xxxxxxxx
Associates, Inc., Tower Square Securities, Inc. and
the 401(k) marketplace.
? State-of-the-art pricing capability providing table
driven load and 12b-1 schedules by dealer, branch
or representative regardless of trade source (i.e.,
NSCC, proprietary transmissions, on-line
transactions, VRU or Internet).
? Full integration with IMPRESSPlus, Investor
Services Group's comprehensive workflow management,
document imaging and customer service system.
IMPRESSPlus consists of four major components - a
sophisticated workflow management tool, an imaging
processing system, a Customer Relationship Manager
(CRM), and Computer Output to Laser Disk (COLD).
Each of these products, used independently or in
tandem, will provide an integrated solution for
automating all follow-up activities resulting from
any type of customer contact - sales, marketing,
general inquiry, and the transaction requested or
problem resolution. In particular, the CRM
addresses the requirements of providing a sing
front-end system for delivering customer service
across operating platforms.
? Providing the Funds with a single platform to
support Transfer Agent's proprietary brokerage
business and portability. Additionally, FSR will
provide Transfer Agent with the ability to
distribute through the Financial Planner channel by
utilizing First Investors Group's DAZL and DAZL
Direct interfaces. Actual use of DAZL and DAZL
Direct by the Funds shall be at Investor Services
Group standard pricing.
? Enhanced access to the Funds data through a
mutually agreed upon comprehensive information
delivery solution whether Transfer Agent decides to
have the data transmitted to its own data base
tools or have Investor Services Group provide
Transfer Agent with a business tool to access the
information resident on Investor Services Group's
transfer agency application.
SCHEDULE D
FEE SCHEDULE
SCHEDULE E
OUT-OF-POCKET EXPENSES
1. Out-of Pockets. Each of the Funds shall
reimburse Investor Services Group monthly for
applicable out-of-pocket expenses, including, but not
limited to the following items:
? Microfiche/microfilm production
? Magnetic media tapes and freight
? Postage - direct pass through to the Fund
? Telephone and telecommunication costs,
including all lease, maintenance and line
costs
? Proxy solicitations, mailings, tabulations
and reports relating thereto
? Shipping, Certified and Overnight mail and
insurance - prior approval from Transfer
Agent shall be required except for (i) items
shipped to Transfer Agent; and (ii) shipping
of share certificates
? Terminals, communication lines, printers and
other equipment and any expenses incurred in
connection with such terminals and lines
? Duplicating services
? Courier services
? Federal Reserve charges for check clearance
? Overtime, as approved by Transfer Agent
? Temporary staff, as approved by Transfer
Agent
? Travel, as approved in advance by the Fund
? Record retention, retrieval and destruction
costs, including, but not limited to exit
fees charged by third party record keeping
vendors
? Such other miscellaneous expenses reasonably
incurred by Investor Services Group in
performing its duties and responsibilities
under this Agreement provided they are
approved in advance by Transfer Agent.
Each of the Funds shall pay postage and mailing
expenses on the day of or prior to mailing as agreed
with Investor Services Group. In addition, each of
the Funds will promptly reimburse Investor Services
Group for any other unscheduled expenses incurred by
Investor Services Group whenever Transfer Agent and
Investor Services Group mutually agree that such
expenses are not otherwise properly borne by Investor
Services Group as part of its duties and obligations
under the Agreement.
2. Other Charges.
? Pre-Printed Stock, including business forms,
certificates, envelopes, checks and
stationery
? COLD Storage
? Digital Recording
? Incoming and outgoing wire charges
SCHEDULE F
FUND DOCUMENTS
? Certified copy of the Articles of Incorporation of
the Fund, as amended
? Certified copy of the By-laws of the Fund, as
amended,
? Specimens of the certificates for Shares of the
Fund, if applicable, in the form approved by the
Board of Directors of the Fund, with a certificate
of the Secretary of the Fund as to such approval
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