FORM OF
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT dated as of February 17, 2005, by and between JPMorgan Value
Opportunities Fund a corporation ("Fund"), having its principal place of
business at 0000 Xxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 2005 and JPMorgan
Distribution Services, Inc. ("Shareholder Servicing Agent"), a registered
broker-dealer incorporated under the laws of the State of Delaware having its
principal place of business at 0000 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxx 00000
("Agreement"). This Agreement shall be effective , 2005.
W I T N E S S E T H:
WHEREAS, the Fund is an open-end, management investment company registered with
the Securities and Exchange Commission ("Commission") under the Investment
Company Act of 1940, as amended ("1940 Act"); and
WHEREAS, the Fund wishes to have the Shareholder Servicing Agent provide certain
services for holders or beneficial owners of Class A, Class B, Class C and
Institutional Class shares ("Shares") of the Fund, and Shareholder Servicing
Agent wishes to act as the Shareholder Servicing Agent;
NOW, THEREFORE, the Fund and Shareholder Servicing Agent hereby agree as
follows:
1. Appointment. Shareholder Servicing Agent hereby agrees to perform
certain services for holders or beneficial owners of Shares ("Shareholders") of
Class A, Class B, Class C and Institutional Class shares.
2. Services to be Performed.
2.1. Shareholder Services and Related Services. Shareholder
Servicing Agent shall provide or cause its agents to provide any combination of
the personal shareholder liaison services and Shareholder account information
services ("Shareholder Services") described in Section 2.2 of this Agreement or
other related services ("Other Related Services") described in Section 2.3 of
this Agreement.
2.2. Shareholder Services. For purposes of this Agreement,
Shareholder Services shall include: (a) answering Shareholder inquiries (through
electronic and other means) regarding account status and history, the manner in
which purchases and redemptions of the Shares may be effected and certain other
matters pertaining to the Fund; (b) providing Shareholders with information
through electronic means; (c) assisting Shareholders in completing application
forms, designating and changing dividend options, account designations and
addresses; (d) arranging for or assisting Shareholders with respect to the
wiring of the funds to and from Shareholder accounts in connection with
Shareholder orders to purchase, redeem or exchange Shares; (e) verifying
shareholder requests for changes to account information; (f) handling
correspondence from Shareholders about their accounts; (g) assisting in
establishing and maintaining Shareholder accounts with the Fund; and (h)
providing such other shareholder services as the Fund or a Shareholder may
reasonably request, to the extent permitted by applicable law.
2.3. Other Related Services. Other Related Services include:
(a) aggregating and processing purchase and redemption orders for Shares; (b)
providing Shareholders with account statements showing their purchases, sales,
and positions in the Fund; (c) processing dividend payments for the Fund; (d)
providing sub-accounting services to the Fund for Shares held for the benefit of
Shareholders; (e) forwarding communications from the Fund to Shareholders,
including proxy statements and proxy solicitation materials, shareholder
reports, dividend and tax notices, and updated Prospectuses and Statements of
Additional Information; (f) receiving, tabulating and transmitting proxies
executed by Shareholders; (g) facilitating the transmission and receipt of funds
in connection with Shareholder orders to purchase, redeem or exchange shares;
(h) developing and maintaining Fund's website; (i) developing and maintain
facilities to enable transmission of Share transactions by electronic and
non-electronic means; (j) providing support and related services to financial
intermediaries in order to facilitate their processing of orders and
communications with Shareholders; (k) providing transmission and other
functionalities for Shares included in investment, retirement, asset allocation,
cash management or sweep programs or similar programs or services; and (l)
developing and maintaining check writing functionality.
2.4. Subcontracting by Shareholder Servicing Agent.
Shareholder Servicing Agent shall perform any combination of the Shareholder
Services and Other Related Services described in Sections 2.2 and 2.3 of this
Agreement for Shareholders and may subcontract for the performance of some or
all of these services with financial intermediaries: (a) who are record owners
of Fund shares; (b) with whom Shareholders have established an account that
invests in Shares; or (c) who otherwise provide Shareholder Services and Other
Related Services for Shareholders. Such financial intermediaries may include,
without limitation, any person who is an affiliate of Shareholder Servicing
Agent. Unless the Fund otherwise expressly agrees in writing, Shareholder
Servicing Agent shall be to the same extent responsible to the Fund for the acts
or omissions of any subcontractor or sub-agent as it would be liable to the Fund
for its own acts or omissions.
2.5. Provision of Services. Shareholder Servicing Agent shall
provide such office space and equipment, telephone facilities, and personnel
(which may be any part of the space, equipment, and facilities currently used in
the Shareholder Servicing Agent's business, or any personnel employed by the
Shareholder Servicing Agent) as may be reasonably necessary or beneficial in
order to provide the services specified in Sections 2.2 and 2.3 of this
Agreement to Shareholders. Shareholder Servicing Agent and its officers and
employees will, upon request, be available during normal business hours to
consult with the Fund, the Board of Directors of the Fund, or their designees
concerning the performance of the Shareholder Servicing Agent's responsibilities
under this Agreement. In addition, Shareholder Servicing Agent will furnish such
information to the Fund, the Board of Directors of the Fund, or their designees
as they may reasonably request concerning the provision of the Shareholder
Services and Other Related Services, specified in Sections 2.2 and 2.3 of this
Agreement, and will otherwise cooperate with the Fund, the Board of Directors
and their designees (including, without limitation any auditors or counsel
designated by the Fund or its board members).
3. Fees. As full compensation for the Shareholder Services and Other
Related Services described in Sections 2.2 and 2.3 of this Agreement and
expenses incurred by the Shareholder Servicing Agent in providing such services,
the Fund shall pay the Shareholder Servicing Agent a fee at an annual rate with
respect to the daily net asset values of the Fund's Shares, as set forth on
Schedule A to this Agreement. This fee will be computed daily and will be
payable monthly in arrears.
4. Information Pertaining to the Shares; Etc. No person is authorized
to make any representations concerning the Fund or any Shares except those
representations contained in the Fund's then-current Prospectus(es) and
Statement(s) of Additional Information and in such printed information as the
Fund or the principal underwriter for the Fund may prepare or approve.
Shareholder Servicing Agent further agrees to deliver to Shareholders, upon
request of the Fund, copies of any amended Prospectuses and Statements of
Additional Information or other information prepared for distribution to
Shareholders.
During the term of this Agreement, the Fund agrees to furnish
Shareholder Servicing Agent all Prospectuses, Statements of Additional
Information, proxy statements, proxy solicitation materials, reports to
shareholders, and other material the Fund or its agents will distribute to
shareholders of the Fund.
5. Use of Shareholder Service Agent's Name. The Fund shall not use the
name of Shareholder Servicing Agent in any Prospectus, sales literature or other
material relating to the Fund in a manner not approved by Shareholder Servicing
Agent prior thereto in writing; provided, however, that the approval of
Shareholder Servicing Agent shall not be required for any use of its name in a
manner that merely refers in accurate and factual terms to its appointment
hereunder or which is required by the Commission or any state securities
authority or any other appropriate regulatory, governmental or judicial
authority; provided, further, that in no event shall such approval be
unreasonably withheld or delayed.
6. Use of the Fund's Name. Shareholder Servicing Agent shall not use
the name of the Fund on any checks, bank drafts, bank statements or forms for
other than internal use in a manner not approved by the Fund prior thereto in
writing; provided, however, that the approval of the Fund shall not be required
for the use of the Fund's name in connection with communications permitted by
Sections 2 and 4 of this Agreement or for any use of the Fund's name in a manner
that merely refers in accurate and factual terms to Shareholder Servicing
Agent's role hereunder or which is required by the Commission or any state
securities authority or any other appropriate regulatory, governmental or
judicial authority; provided, further, that in no event shall such approval be
unreasonably withheld or delayed.
7. Security. Shareholder Servicing Agent represents and warrants that
the various procedures and systems that (a) it has implemented with regard to
safeguarding from loss or damage attributable to fire, theft or any other cause
any Fund records and other data and Shareholder Servicing Agent's records, data,
equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and (b) it will make such changes in such
procedures and systems that, from time to time, in its judgment are required for
the secure performance of its obligations hereunder. The parties shall review
such systems and procedures on a periodic basis, and the Fund shall, from time
to time, specify the types of records and other data of the Fund to be
safeguarded in accordance with this Section 7.
8. Compliance with Laws; Etc. Shareholder Servicing Agent shall comply
with all applicable federal and state securities laws and regulations.
Shareholder Servicing Agent represents and warrants to the Fund that the
performance of all its obligations hereunder will comply with all applicable
securities laws and regulations, the provisions of its charter documents and by
laws and all material contractual obligations binding upon Shareholder Servicing
Agent.
9. Liability and Force Majeure. Shareholder Servicing Agent shall not
be liable or responsible for any loss, interruption, delay or error including
any loss, interruption, delay or error by reason of circumstances beyond its
control (which includes but is not limited to, acts of civil or military
authority, national emergencies, labor difficulties, fire, equipment failure,
mechanical breakdown, flood or catastrophe, acts of God, insurrection, war,
terrorism, riots or failure of communication or power supply), provided, that
any loss, interruption, delay or error is not caused by the willful misfeasance,
bad faith or gross negligence of Shareholder Servicing Agent, its officers,
employees or agents in the performance of the Shareholder Servicing Agent's
duties and obligations under this Agreement or from the reckless disregard by
the Shareholder Servicing Agent, its officers, employees or agents of the
Shareholder Servicing Agent's duties or obligations under this Agreement.
10. Indemnification.
10.1. Indemnification of Shareholder Servicing Agent. The Fund
will indemnify and hold Shareholder Servicing Agent harmless, from all losses,
claims, damages, liabilities or expenses (including reasonable fees and
disbursements of counsel) from any claim, demand, action or suit (collectively,
"Claims") (a) arising in connection with material misstatements or omissions in
the Fund's Prospectuses, Statements of Additional Information, proxy statements,
proxy solicitation materials, reports to shareholders or other materials
prepared by the Fund or its agents for distribution to the shareholders of the
Fund, actions or inactions by the Fund or any of its agents or contractors or
the performance of Shareholder Servicing Agent's obligations hereunder and (b)
not resulting from the willful misfeasance, bad faith, or gross negligence of
Shareholder Servicing Agent, its officers, employees or agents, in the
performance of Shareholder Servicing Agent's duties or obligations under this
Agreement or from the reckless disregard by Shareholder Servicing Agent, its
officers, employees or agents of Shareholder Servicing Agent's duties and
obligations under this Agreement. Notwithstanding anything herein to the
contrary, the Fund will indemnify and hold Shareholder Servicing Agent harmless
from any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any Claim as a result of
Shareholder Servicing Agent's acting in accordance with any written instructions
reasonably believed by Shareholder Servicing Agent to have been executed by any
person duly authorized by the Fund, or as a result of acting in reliance upon
any instrument or stock certificate reasonably believed by Shareholder Servicing
Agent to have been genuine and signed, countersigned or executed by a person
duly authorized by the Fund.
In any case in which the Fund may be asked to indemnify or hold
Shareholder Servicing Agent harmless, the Fund shall be advised of all pertinent
facts concerning the situation in question and Shareholder Servicing Agent shall
use reasonable care to identify and notify the Fund promptly concerning any
situation that presents or appears likely to present a claim for indemnification
by the Fund. The Fund shall have the option to defend Shareholder Servicing
Agent against any Claim which may be the subject of indemnification under this
Section 10.1. In the event that the Fund elects to defend against such Claim,
the defense shall be conducted by counsel chosen by the Fund and reasonably
satisfactory to Shareholder Servicing Agent. Shareholder Servicing Agent may
retain additional counsel at its expense. Except with the prior written consent
of the Fund, Shareholder Servicing Agent shall not confess any Claim or make any
compromise in any case in which the Fund will be asked to indemnify Shareholder
Servicing Agent.
10.2. Indemnification of the Fund. Without limiting the rights
of the Fund under applicable law, Shareholder Servicing Agent will indemnify and
hold the Fund harmless from all losses, claims, damages, liabilities or expenses
(including reasonable fees and disbursements of counsel) from any Claim (a)
resulting from the willful misfeasance, bad faith or gross negligence of
Shareholder Servicing Agent, its officers, employees, or agents, in the
performance of Shareholder Servicing Agent's duties and obligations under this
Agreement or from the reckless disregard by Shareholder Servicing Agent, its
officers, employees, or agents of Shareholder Servicing Agent's duties and
obligations under this Agreement, and (b) not resulting from Shareholder
Servicing Agent's actions in accordance with written instructions reasonably
believed by Shareholder Servicing Agent to have been executed by any person duly
authorized by the Fund, or in reliance upon any instrument or stock certificate
reasonably believed by Shareholder Servicing Agent to have been genuine and
signed, countersigned or executed by a person authorized by the Fund.
In any case in which Shareholder Servicing Agent may be asked to
indemnify or hold the Fund harmless, Shareholder Servicing Agent shall be
advised of all pertinent facts concerning the situation in question and the Fund
shall use reasonable care to identify and notify Shareholder Servicing Agent
promptly concerning any situation that presents or appears likely to present a
claim for indemnification by Shareholder Servicing Agent. Shareholder Servicing
Agent shall have the option to defend the Fund against any Claim which may be
the subject of indemnification under this Section 10.2. In the event that
Shareholder Servicing Agent elects to defend against such Claim, the defense
shall be conducted by counsel chosen by Shareholder Servicing Agent and
reasonably satisfactory to the Fund. The Fund may retain additional counsel at
its expense. Except with the prior written consent of Shareholder Servicing
Agent, the Fund shall not confess any Claim or make any compromise in any case
in which Shareholder Servicing Agent will be asked to indemnify the Fund.
10.3. Survival of Indemnities. The indemnities granted by the
parties in this Section 10 shall survive the termination of this Agreement.
11. Insurance. Each of the parties shall maintain reasonable insurance
coverage against any and all liabilities that may arise in connection with the
performance of this Agreement.
12. Further Assurances. Each party agrees to perform such further
acts and execute further documents as are necessary to
effectuate the purposes hereof.
13. Termination. This Agreement shall become effective February 19,
2005 and, unless sooner terminated as provided herein, shall
continue until March 31, 2006. Thereafter, if not terminated,
this Agreement shall continue automatically for successive one
year terms, provided that such continuance is specifically
approved at least annually by the vote of a majority of those
members of the Fund's Board of Directors who are not parties to
this Agreement or interested persons of any such party. This
Agreement may be terminated without penalty, on not less than 60
days prior written notice, by the Fund's Board of Directors or
by the Shareholder Servicing Agent. This Agreement will also
terminate automatically in the event of its assignment. (As used
in this Agreement, the terms "majority of the outstanding voting
securities", "interested persons" and "assignment" shall have
the same meanings as ascribed to such terms in the 1940 Act.)
14. Privacy. Shareholder Servicing Agent acknowledges and agrees on
behalf of itself and its directors, officers and employees that
it may receive from financial intermediaries or the Fund other
information, or access to information, about shareholders of the
Fund who are "customers" or "consumers" generally as such terms
are defined under Regulation S-P (17 CFR 248.1 - 248.30)
(collectively, "Shareholder Information") including, but not
limited to, non-public personal information such as a customer's
name, address, telephone number, account relationships, account
numbers, account balances and account histories. All
information, including Shareholder Information, obtained
pursuant to this Agreement shall be considered confidential
information. Shareholder Servicing Agent shall not disclose such
confidential information to any other person or entity or use
such confidential information other than to carry out the
purposes of this Agreement, including its use under sections
248.14 and 248.15 of Regulation S-P in the ordinary course of
carrying out the purposes of this Agreement. Shareholder
Servicing Agent agrees to:
(a) Limit access to Shareholder Information which is obtained
pursuant to this Agreement to employees who have a need to know
such Shareholder Information to effect the purposes of this
Agreement;
(b) Safeguard and maintain the confidentiality and security of
Shareholder Information which is obtained pursuant to this
Agreement; and
(c) Use Shareholder Information obtained pursuant to this Agreement
only to carry out the purposes for which the Shareholder
Information was disclosed and for no other purpose.
Shareholder Servicing Agent shall not, directly or through an
affiliate, disclose an account number or similar form of access number or access
code for an account for use in telemarketing, direct mail marketing, or
marketing through electronic mail, except as permitted in Section 248.12 of
Regulation S-P or applicable law.
15. Non-Exclusivity. Nothing in this Agreement shall limit or restrict
the right of Shareholder Servicing Agent to engage in any other business or to
render services of any kind to any other corporation, firm, individual or
association.
16. Changes; Amendments. This Agreement may be amended only by mutual
written consent.
17. Notices. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
registered mail, postage prepaid, (1) to Shareholder Servicing Agent at 0000
Xxxxxxx Xxxxxxx, Xxxxx __, Xxxxxxxx, Xxxx 00000, or (2) to the Fund at 0000
Xxxxxxx Xxxxxx, XX Xxxxxxxxxx, XX 00000, or at such other address as either
party may designate by notice to the other party.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware.
19. Execution of Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same Agreement.
The execution and delivery of this Agreement have been authorized by
the Directors, and this Agreement has been signed and delivered by an authorized
officer of the Fund, acting as such, and neither such authorization by the
Directors nor such execution and delivery by such officer shall be deemed to
have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the property of the Fund (or particular
class thereof) as provided in the Fund's organizational documents.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
JPMORGAN VALUE OPPORTUNITIES
FUND, INC.
By: ___________________________________
Title: __________________________________
ccepted by:
JPMORGAN DISTRIBUTION SERVICES, INC.
By: ___________________________________
Title: __________________________________
SCHEDULE A
TO THE SHAREHOLDER SERVICING AGREEMENT
(Effective as of February 19, 2005)
Fee Rate per Annum
JPMorgan Value Opportunities Fund, Inc. Class A Shares 0.25%
JPMorgan Value Opportunities Fund, Inc. Class B Shares 0.25%
JPMorgan Value Opportunities Fund, Inc. Class C Shares 0.25%
JPMorgan Value Opportunities Fund, Inc. Institutional Class 0.10%
FORM OF
TRANSFER AGENCY AGREEMENT
Made as of the 18th day of February, 2005
by and between
JPMORGAN VALUE OPPORTUNITIES FUND, INC.
And
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Documents to be Filed with Appointment 3
Certain Representations and Warranties of BOSTON FINANCIAL 4
Certain Representations and Warranties of the Trust 5
Scope of Appointment 5
Limit of Authority 8
Compensation and Expenses 9
Operation of the TA2000TM System 11
Indemnification 14
Certain Covenants of BOSTON FINANCIAL and the Trust 17
Recapitalization or Readjustment 20
Certificates 20
Death, Resignation or Removal of Signing Officer 20
Future Amendments of Declaration of Trust and Bylaws 21
Instructions, Opinion of Counsel and Signatures 21
Force Majeure and Disaster Recovery Plans 21
Certification of Documents 22
Records 23
Disposition of Books, Records and Canceled Certificates 23
Provisions Relating to BOSTON FINANCIAL as Transfer Agent 23
Provisions Relating to Dividend Disbursing Agency 25
Assumption of Duties By the Trust or Agents Designated By the Trust 26
Termination of Agreement 27
Confidentiality and Information Security 28
Changes and Modifications 31
Assignment and Subcontractors 31
Limitations on Liability 32
Miscellaneous 32
Exhibit A - Fee Schedule
Exhibit B - Authorized Personnel
Appendix A
TRANSFER AGENCY AGREEMENT
THIS AGREEMENT made as of the 18th day of February, 2005, by and
between each of the entities listed on Appendix A hereto and each being an
entity of the type set for on Appendix A and organized under the laws of the
state as set forth on such Appendix, each with a principal place of business at
000 0xx Xxx., Xxx Xxxx, XX 00000 and each of which is acting on its own behalf
and on behalf of each of the portfolios listed under its name in Appendix A
(jointly and severally, such portfolios shall be referred to hereinafter as the
"Fund" or "Funds), but not jointly with any other entities listed on Appendix A
and BOSTON FINANCIAL DATA SERVICES, INC., a corporation existing under the laws
of the Commonwealth of Massachusetts, having its principal place of business at
0 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 ("BOSTON FINANCIAL"):
WITNESSETH:
WHEREAS, each Trust (as used hereinafter, the term "Trust" shall refer
jointly and severally to the trust entities set forth on Appendix A hereto, and
to each Fund listed in Appendix A, as the context requires) is a Massachusetts
or Delaware business trust or Maryland corporation registered with the
Securities and Exchange Commission as an investment company pursuant to the
Investment Company Act of 1940, as amended, which currently consists of the
Funds listed under its name on Appendix A; and
WHEREAS, the Trust desires to appoint BOSTON FINANCIAL as Transfer
Agent and Dividend Disbursing Agent for all common shares of beneficial interest
of each Fund of each Trust and, of shares of common stock of each Fund of each
corporation (the "Shares"), and BOSTON FINANCIAL desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. DOCUMENTS TO BE FILED WITH APPOINTMENT.
In connection with the appointment of BOSTON FINANCIAL as Transfer Agent
and Dividend Disbursing Agent for the Trust, there will be filed with BOSTON
FINANCIAL the following documents:
A. A certified copy of the votes of the Board of Trustees of the
Trust appointing BOSTON FINANCIAL as Transfer Agent and
Dividend Disbursing Agent, approving the form of this
Agreement, and designating certain persons to sign Shares
certificates ("Certificates"), if any, and give written
instructions and requests on behalf of the Trust;
B. A certified copy of the Declaration of Trust or other
organizational documents of the Trust and all amendments
thereto;
C. A certified copy of the Bylaws of the Trust;
D. Copies of Registration Statements and amendments thereto, filed
with the Securities and Exchange Commission;
E. Specimens of all forms of outstanding Certificates;
F. Specimens of the signatures of the officers of the Trust
authorized to sign Certificates and individuals authorized to
sign written instructions and requests;
G. An opinion of counsel for the Trust with respect to:
(1) The Trust's organization and existence under the laws of its
state of organization,
(2) The status of all Shares, whether unissued or evidenced by
Certificates of the Trust, covered by the appointment under the
Securities Act of 1933, as amended, (the "'33 Act") (to the
extent applicable) and any other applicable federal or state
statute, and
(3) That all issued Shares are, and all unissued Shares will be
when issued, validly issued, fully paid and non-assessable.
2. CERTAIN REPRESENTATIONS AND WARRANTIES OF BOSTON FINANCIAL.
BOSTON FINANCIAL represents and warrants to the Trust that:
A. It is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It is duly qualified to carry on its business in the Commonwealth
of Massachusetts.
C. It is empowered under applicable laws and by its Articles of
Organization and Bylaws to enter into and perform the services
contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934, as amended, (the "34 Act") and it will
remain so registered for the duration of this Agreement. It will
promptly notify the Trust in the event of any material change in its
status as a registered transfer agent. Should BOSTON FINANCIAL fail to
be registered with the appropriate federal agency as a transfer agent at
any time during this Agreement, the Trust may, on written notice to
BOSTON FINANCIAL, immediately terminate this Agreement.
E. All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment personnel, policies and procedures to effectively
perform its duties and obligations under this Agreement and under the
laws applicable to its business and services.
G. It will perform its obligations in compliance with industry standards
and the laws applicable to its business and services.
3. CERTAIN REPRESENTATIONS AND WARRANTIES OF THE TRUST.
The Trust represents and warrants to BOSTON FINANCIAL that:
A. It is a business trust or corporation duly organized and existing
and in good standing under the laws of the state of its organization as
set forth on Appendix A.
B. It is, and with respect to each entity set forth on Appendix I, an
open-end investment company registered under the Investment Company Act
of 940, as amended.
C. A registration statement under the '33 Act has been filed and will
be effective with respect to all Shares offered for sale. Except to the
extent that the Trust notifies BOSTON FINANCIAL that such Trust is not
required to be registered under the '33 Act.
D. All requisite steps have been and will continue to be taken to
register the Shares for sale in all applicable states and such
registration will be effective at all times Shares are offered for sale
in such state.
E. The Trust is empowered under applicable laws and by its Declaration
of Trust (or other organizational documents if applicable) and Bylaws
to enter into and perform this Agreement.
4. SCOPE OF APPOINTMENT.
A. Subject to the conditions and termination of provisions set forth in
this Agreement, the Trust hereby appoints BOSTON FINANCIAL as Transfer
Agent and Dividend Disbursing Agent for the Shares and for the Shares
of future portfolios of the Trust (Appendix I shall be automatically
deemed to be revised to include such future portfolio(s)).
B. BOSTON FINANCIAL hereby accepts such appointment and agrees that it
will act as the Trust's Transfer Agent and Dividend Disbursing Agent.
BOSTON FINANCIAL agrees that it will also act as agent in connection
with the Trust's periodic withdrawal payment accounts and other open
accounts or similar plans for shareholders, if any.
C. The Trust agrees to use its best efforts to deliver to BOSTON
FINANCIAL in Quincy, Massachusetts, as soon as they are available, all
of its shareholder account records for any new Fund of the Trust.
D. BOSTON FINANCIAL, utilizing TA2000TM, a computerized data processing
system for securityholder accounting (the "TA2000TM System") licensed
from BOSTON FINANCIAL's affiliate, DST Systems, Inc. ("DST"), will
perform the following services as transfer and dividend disbursing
agent for the Trust, and as agent of the Trust for shareholder accounts
thereof, in a timely manner: (i) issuing (including countersigning),
transferring and canceling Certificates; (ii) maintaining all
shareholder accounts; (iii) providing transaction journals; (iv) once
annually preparing shareholder meeting lists for use in connection with
the annual meeting and certifying the shareholder votes of the Trust;
(v) mailing shareholder reports and prospectuses; (vi) withholding, as
required by federal law, taxes on shareholder accounts, disbursing
income dividends and capital gains distributions to shareholders,
preparing, filing and mailing U.S. Treasury Department Forms 1099,
1042, and 1042S and performing and paying backup withholding as
required for all shareholders; (vii) preparing and mailing confirmation
forms to shareholders and dealers, as instructed, for all purchases and
liquidations of shares of the Trust and other transactions in
shareholders' accounts requiring confirmation under applicable law;
(viii) recording reinvestment of dividends and distributions in Shares;
(ix) providing or making available on-line daily and monthly reports as
both are regularly provided by the TA2000TM System and as requested by
the Trust or its management company; (x) maintaining those records
necessary to carry out BOSTON FINANCIAL's duties hereunder, including
all information reasonably required by the Trust to account for all
transactions in the Shares, (xi) calculating the appropriate sales
charge with respect to each purchase of the Shares as set forth in the
prospectus for the Trust, determining the portion of each sales charge
payable to the dealer participating in a sale in accordance with
schedules delivered to BOSTON FINANCIAL by the Trust's principal
underwriter or distributor (hereinafter "principal underwriter") from
time to time, disbursing dealer commissions collected to such dealers,
determining the portion of each sales charge payable to such principal
underwriter and disbursing such commissions to the principal
underwriter; (xii) receiving correspondence pertaining to any former,
existing or new shareholder account, processing such correspondence for
proper recordkeeping, and responding promptly to shareholder
correspondence; (xiii) mailing to dealers confirmations of wire order
trades; mailing copies of shareholder statements to shareholders and
dealers in accordance with the Trust's instructions; (xiv) processing,
generally on the date of receipt, purchases or redemptions or
instructions to settle any mail or wire order purchases or redemptions
received in proper order as set forth in the prospectus, rejecting
promptly any requests not received in proper order (as defined by the
Trust, the Trust's agents or prospectus, or the Procedures, as
hereinafter defined), and causing exchanges of shares to be executed in
accordance with the Trust's instructions and prospectus, the Procedures
and the general exchange privilege applicable; (xv) operating the order
desk on behalf of the Trust for the purpose of taking trade orders from
broker-dealers and institutions, confirming orders on "T+1" (Trade Date
Plus One), monitoring the settlement of such orders and advising the
Trust once such orders become delinquent based upon the Trust's
guidelines; and (xvi) monitoring "as of's" and advising broker-dealers
of the necessity to reimburse the Trust when the as of loss from a
transaction exceeds the thresholds established by the Trust.
E. At the request of Trust, BOSTON FINANCIAL shall use reasonable
efforts to provide the services set forth in Section 4.D. other than
through BOSTON FINANCIAL's usual methods and procedures to utilize the
TA2000 System, that is by performing services requiring more manual
intervention by BOSTON FINANCIAL, either in the entry of data or in the
modification or amendment of reports generated by the TA2000 System, or
where information is provided to BOSTON FINANCIAL after the
commencement of the nightly processing cycle of the TA2000 System,
thereby decreasing the effective time for performance by BOSTON
FINANCIAL (the "Exception Services").
F. BOSTON FINANCIAL shall use reasonable efforts to provide, reasonably
promptly under the circumstances, the same services with respect to any
new, additional functions or features or any changes or improvements to
existing functions or features as provided for in the Trust's
instructions, prospectus or application as amended from time to time,
for the Trust; provided (i) BOSTON FINANCIAL is advised in advance by
the Trust of any changes therein and (ii) the TA2000TM System and the
mode of operations utilized by BOSTON FINANCIAL, as then constituted,
supports such additional functions and features. If any addition to,
improvement of or change in the features and functions currently
provided by the TA2000TM System or the operations as requested by the
Trust requires an enhancement or modification to the TA2000TM System or
to operations as presently conducted by BOSTON FINANCIAL, BOSTON
FINANCIAL shall not be liable therefor until such modification or
enhancement is installed on the TA2000TM System or new mode of
operation is instituted. If any new, additional function or feature or
change or improvement to existing functions or features or new service
or mode of operation requested by the Trust (and which is not covered
by Section 24 of this Agreement) measurably increases BOSTON
FINANCIAL's cost of performing the services required hereunder at the
current level of service, BOSTON FINANCIAL shall advise the Trust of
the amount of such increase and if the Trust elects to utilize such
function, feature or service, BOSTON FINANCIAL shall be entitled to
increase its fees by the amount of the increase in costs. In no event
shall BOSTON FINANCIAL be responsible for or liable to provide any
additional function, feature, improvement or change in method of
operation requested by the Trust until it has consented thereto in
writing.
G. The Trust shall have the right to add all new Funds of the Trust to
the TA2000TM System, provided that the Trust provides BOSTON FINANCIAL
with at least thirty (30) days' prior written notice and provided,
further, that the requirements of the new series are generally
consistent with services then being provided by BOSTON FINANCIAL under
this Agreement. Rates or charges for additional Funds shall be as set
forth in Exhibit A, as hereinafter defined, for the remainder of the
contract term except as such Fund uses functions, features or
characteristics for which BOSTON FINANCIAL has imposed an additional
charge as part of its standard pricing schedule. In the latter event,
rates and charges shall be in accordance with BOSTON FINANCIAL's
then-standard pricing schedule.
H. BOSTON FINANCIAL shall maintain a quality control process designed
to provide a consistent level of quality and timeliness for its
transaction processing. BOSTON FINANCIAL's performance of the Services
under this Agreement will be measured against service level standards
("SLAs"), which will be established in good faith by mutual written
agreement of the parties and shall be made a part of this Agreement as
Schedule 4.H once completed and agreed to by all parties. Following the
establishment and implementation of the SLAs, BOSTON FINANCIAL shall
provide to the Trust, a monthly report with respect to BOSTON
FINANCIAL's processing against the SLAs. In order that BOSTON FINANCIAL
may reasonably estimate the staffing needed to maintain the SLAs, the
Trust agrees to use its best efforts to communicate to BOSTON FINANCIAL
all sales and volume projections prior to the beginning of each quarter
and to provide the BOSTON FINANCIAL with advance notice of any product
development, sales or marketing campaigns that the Trust determines may
materially impact the volume of transactions in the Funds. The parties
agree to work together to resolve any performance issues in good faith.
The parties annually shall review and discuss the SLAs and shall make
such changes therein as to which they mutually agree. The parties agree
that the SLAs shall not apply to, and shall not be calculated for, any
particular day when: (i) the TA2000(TM) System or any computer hardware
or software, which is substantially required for the performance of the
Services, is unavailable for more than sixty (60) minutes, provided
that such unavailability is beyond BOSTON FINANCIAL's reasonable
control and BOSTON FINANCIAL notifies the Trust promptly of such
unavailability; (ii) there is a failure or unavailability of
communication lines outside of BOSTON FINANCIAL's facilities; (iii)
there is a disaster that requires BOSTON FINANCIAL to process at its
disaster recovery site or when BOSTON FINANCIAL's transaction
processing is impeded by an event described in Section 15 hereof; or
(iv) the failure to perform is caused by third parties (including the
Trust) whose actions are beyond BOSTON FINANCIAL's reasonable control.
5. LIMIT OF AUTHORITY.
Unless otherwise expressly limited by the resolution of appointment or by
subsequent action by the Trust, the appointment of BOSTON FINANCIAL as
Transfer Agent will be construed to cover the full amount of authorized
Shares of the class or classes for which BOSTON FINANCIAL is appointed as
the same will, from time to time, be constituted, and any subsequent
increases in such authorized amount.
In case of such increase the Trust will file with BOSTON FINANCIAL:
A. If the appointment of BOSTON FINANCIAL was theretofore expressly
limited, a certified copy of a resolution of the Board of Trustees of
the Trust increasing the authority of BOSTON FINANCIAL;
B. A certified copy of the amendment to the Declaration of Trust of the
Trust authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of the
increased stock, or an opinion of counsel that the order or consent of
no other governmental or regulatory authority is required;
D. Opinion of counsel for the Trust stating:
(1) The status of the additional Shares of the Trust under the `33 Act
and any other applicable federal or state statute; and
(2) That the additional shares are, or when issued will be, validly
issued, fully paid and non-assessable.
6. COMPENSATION AND EXPENSES.
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Trust will pay to BOSTON FINANCIAL,
from time to time, a reasonable compensation for all services rendered
as Agent and, also, all BOSTON FINANCIAL's reasonable billable
out-of-pocket expenses or disbursements ("Compensation and Expenses")
incurred in connection with the agency. "Expenses" are more fully
described in Section 6.B. of this Agreement. Such Compensation and
Expenses are set forth in a separate schedule previously agreed to by
the Trust and BOSTON FINANCIAL, a copy of which is attached hereto as
Exhibit A. If the Trust has not paid such Compensation and Expenses to
BOSTON FINANCIAL within a reasonable time, BOSTON FINANCIAL may charge
against any monies held under this Agreement, the amount of any
Compensation and Expenses for which it shall be entitled to
reimbursement under this Agreement.
B. The Trust also agrees promptly to reimburse BOSTON FINANCIAL for
all reasonable billable out-of-pocket expenses or disbursements
incurred by BOSTON FINANCIAL in connection with the performance of
services under this Agreement including, but not limited to: expenses
for postage; express delivery services; freight charges; envelopes,
checks, drafts, forms (continuous or otherwise); specially requested
reports and statements; telephone calls; telegraphs; stationery
supplies; counsel fees incurred in connection with the review of the
legal sufficiency of documentation provided by a shareholder or
otherwise as to the advisability of complying with the request or
instruction of a shareholder or person purporting to act on behalf of
a shareholder (provided that BOSTON FINANCIAL provides the Trust with
reasonable advance notice of any such request and permits the Trust to
elect to undertake its own review of the legal sufficiency of such
documentation or as to the advisability of complying with such request
or instruction); outside printing and mailing firms (including DST
Output, Inc. and its affiliates ("DST Output"); magnetic tapes, reels
or cartridges (if sent to the Trust or to a third party at the Trust's
request) and magnetic tape handling charges; off-site record storage
and media for storage of records (e.g., microfilm, microfiche, optical
platters, computer tapes); computer equipment installed at the Trust's
request at the Trust's or a third party's premises; telecommunications
equipment and telephone/telecommunication lines between the Trust and
its agents, on one hand, and BOSTON FINANCIAL on the other; proxy
soliciting, processing and/or tabulating costs; transmission of
statement data for remote printing or processing other than by DST
Output (at a charge of .035/record); and National Securities Clearing
Corporation ("NSCC") transaction fees to the extent any of the
foregoing are paid or incurred by BOSTON FINANCIAL. The Trust agrees
to pay postage expenses at least one day in advance if so requested.
In addition, any other expenses incurred by BOSTON FINANCIAL at the
request or with the consent of the Trust will be promptly reimbursed
by the Trust.
C. Amounts due hereunder shall be due and paid on or before the
sixtieth (60th) calendar day after receipt of the invoice therefor by
the Trust (the "Due Date"). The Trust is aware that its failure to pay
all amounts in a timely fashion so that they will be received by
BOSTON FINANCIAL on or before the Due Date will give rise to costs to
BOSTON FINANCIAL not contemplated by this Agreement, including but not
limited to carrying, processing and accounting charges. Accordingly,
subject to Section 6.D. hereof, in the event that during any twelve
(12) month period the Trust pays any four (4) or more of its invoices
after their respective Due Dates, then BOSTON FINANCIAL may charge and
the Trust shall pay a late charge for any future invoices paid after
the applicable Due Date and such late charge shall be equal to the
lesser of the maximum amount permitted by applicable law or the London
Interbank Overnight Rate times the amount overdue, times the number of
days from the Due Date up to and including the day on which payment is
received by BOSTON FINANCIAL. The parties hereby agree that such late
charge represents a fair and reasonable computation of the costs
incurred by reason of late payment or payment of amounts not properly
due. Acceptance of such late charge shall in no event constitute a
waiver of the Trust's or BOSTON FINANCIAL's default or prevent the
non-defaulting party from exercising any other rights and remedies
available to it.
D. In the event that any charges are disputed, the Trust shall, on or
before the Due Date, pay all undisputed amounts due hereunder and
notify BOSTON FINANCIAL in writing of any disputed charges for
billable expenses that it is disputing in good faith. Payment for such
disputed charges shall be due on or before the close of the fifth
(5th) business day after the day on which BOSTON FINANCIAL provides to
the Trust documentation which an objective observer would agree
reasonably supports the disputed charges (the "Revised Due Date").
Late charges shall not begin to accrue as to charges disputed in good
faith until the first business day after the Revised Due Date.
E. The fees and charges set forth on Exhibit A shall increase or may
be increased as follows:
(1) On the first day of each anniversary of this Agreement,
subject to Note E of Exhibit A;
(2) BOSTON FINANCIAL may increase the fees and charges set forth
on Exhibit A upon at least ninety (90) days prior written notice,
if changes in existing laws, rules or regulations: (i) require
substantial system modifications or (ii) materially increase
BOSTON FINANCIAL's cost of performance hereunder;
(3) BOSTON FINANCIAL may charge for additional features of TA2000
used by the Trust which features are not consistent with the
Trust's current processing requirements; and
(4) In the event BOSTON FINANCIAL, at the Trust's request or
direction, performs Exception Services, BOSTON FINANCIAL shall be
entitled to increase the fees and charges for such Exception
Services from those set forth on Exhibit A to the extent such
Exception Services increase BOSTON FINANCIAL's cost of
performance. This provision shall not apply to the Exception
Services, if any, being provided as of the date of this
Agreement, which the parties shall mutually agree upon and set
forth on Schedule 6.E.(4) to this Agreement.
If BOSTON FINANCIAL notifies the Trust of an increase in fees or
charges pursuant to subparagraph (2) of this Section 6.E., the parties
shall confer, diligently and in good faith and agree upon a new fee to
cover the amount necessary, but not more than such amount, to reimburse
BOSTON FINANCIAL for the Trust's aliquot portion of the cost of
developing the new software to comply with regulatory charges and for
the increased cost of operation.
If BOSTON FINANCIAL notifies the Trust of an increase in fees or
charges under subparagraphs (3) or (4) of this Section 6.E., the
parties shall confer, diligently and in good faith, and agree upon a
new fee to cover such new Trust feature.
7. OPERATION OF THE TA2000(TM) SYSTEM.
In connection with the performance of its services under this Agreement, BOSTON
FINANCIAL is responsible for such items as:
A. That entries in BOSTON FINANCIAL's records, and in the Trust's
records on the TA2000(TM) System created by BOSTON FINANCIAL and
BOSTON FINANCIAL's affiliates, accurately reflect the orders,
instructions, and other information received by BOSTON FINANCIAL and
such affiliates from the Trust, the Trust's distributor, manager or
principal underwriter, or any successor of any of the foregoing (all
hereinafter referred to as "JPM") and its affiliates, entities from
whom JPM or the Trust have directed BOSTON FINANCIAL to accept orders,
instructions or other information, the Trust's investment adviser,
banks or other entities which BOSTON FINANCIAL has been advised by the
Trust or JPM are affiliated with or a correspondent of JPM, or the
Trust's administrator (each of the foregoing being an "Authorized
Person"), broker-dealers or shareholders (existing or new). BOSTON
FINANCIAL has currently been instructed, by way of example and not
limitation, to accept telephone instructions from any person
reasonably believed by BOSTON FINANCIAL to be a representative of an
Authorized Person, to accept third party checks initiated by or
received from or through a broker/dealer or a JPM-customer
relationship, to accept transactions and documentation by fax in
accordance with the guidelines established by an Authorized Person, to
allow corporations, partnerships, trusts and other accounts not
registered in the name of a single individual and individually owned
accounts to have telephone or "VOICE" transaction processing
privileges (the "Privileges"), to establish Privileges on all accounts
unless the establishing shareholder explicitly directs that telephone
exchanges and redemptions not be permitted and to accept and to
effectuate transmissions and trades entered on a remote basis by JPM
and banks affiliated with JPM (without verification of the contents of
such transmissions and trades);
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be produced
from its records or data be available and accurately reflect the data
in the Trust's records on the TA2000TM System;
C. The accurate and timely issuance of dividend and distribution
checks in accordance with instructions received from the Trust and the
data in the Trust's records on the TA2000TM System;
D. That redemption transactions and payments be effected timely, to be
processed under normal circumstances on the day of receipt, and
accurately in accordance with redemption instructions received by
BOSTON FINANCIAL from Authorized Persons, broker-dealers or
shareholders and the data in the Trust's records on the TA2000TM
System;
E. The deposit daily in the Trust's appropriate special bank account
of all checks and payments received by BOSTON FINANCIAL from NSCC,
broker-dealers or shareholders for investment in shares;
F. Notwithstanding anything herein to the contrary, with respect to
"as of" adjustments, BOSTON FINANCIAL will not assume one hundred
percent (100%) responsibility for losses resulting from "as of's" due
to clerical errors or misinterpretations of shareholder instructions,
but BOSTON FINANCIAL will discuss with the Fund BOSTON FINANCIAL's
accepting liability for an "as of" on a case-by-case basis and will
accept financial responsibility for a particular situation resulting
in a financial loss to the Fund where such loss is "material", as
hereinafter defined, and, under the particular facts at issue, BOSTON
FINANCIAL's conduct was culpable and BOSTON FINANCIAL's conduct is the
sole cause of the loss. A loss is "material" for purposes of this
Section 7.F. when it results in a pricing error on a particular
transaction which is (i) greater than a negligible amount per
shareholder, (ii) equals or exceeds one ($.01) full cent per share
times the number of shares outstanding or (iii) equals or exceeds the
product of one-half of one percent (1/2%) times the Fund's Net Asset
Value per share times the number of shares outstanding (or, in case of
(ii) or (iii), such other amounts as may be adopted by applicable
accounting or regulatory authorities from time to time). If the net
effect of the "as of" transactions that are determined to be caused by
BOSTON FINANCIAL is negative and exceeds the above limit, then BOSTON
FINANCIAL shall promptly contact the Trust and the Fund accountants.
BOSTON FINANCIAL will work with the Trust and the Fund accountants to
determine what, if any, impact the threshold break has on the Fund's
Net Asset Value and what, if any, further action is required. These
further actions may include but are not limited to, the Fund
re-pricing the affected day(s), BOSTON FINANCIAL re-processing, at its
expense, all affected transactions in the Fund that took place during
the period or a payment to the Fund. The Fund agrees to work in good
faith with BOSTON FINANCIAL and wherever possible, absent a regulatory
prohibition or other mutually agreed upon reason, the Fund agrees to
re-price the affected day(s) and to allow BOSTON FINANCIAL to
re-process the affected transactions. When such re-pricing and
re-processing is not possible, and when BOSTON FINANCIAL must
contribute to the settlement of a loss, BOSTON FINANCIAL's
responsibility will commence with that portion of the loss over
$0.0049 per share calculated on the basis of the total value of all
shares owned by the affected portfolio (i.e., on the basis of the
value of the shares of the total portfolio, including all classes of
that portfolio, not just those of the affected class) and BOSTON
FINANCIAL will make such account adjustments and take such other
action as is necessary to compensate shareholders for shareholder
losses and reimburse the Fund for the amount of Fund losses in
accordance with the foregoing standards. If BOSTON FINANCIAL
contributes to the settlement of a loss, the amount paid by BOSTON
FINANCIAL shall be deducted from the amount of any accumulated losses
calculated in the fiscal year monitoring process described below.
BOSTON FINANCIAL will monitor all portfolios across share classes to
determine the accumulated gain or loss effect of "as-of trades" caused
solely by the transfer agent. At the fiscal year end of each
portfolio, if the portfolio has an accumulated loss across share
classes that is attributed to the transfer agent, then BOSTON
FINANCIAL shall pay to the Fund the amount of such loss in excess of
$.0049 per share calculated on the basis of the total value of all
shares owned by the affected portfolio (i.e., on the basis of the
value of the shares of the total portfolio, including all classes of
that portfolio, not just those of the affected class). If at the end
of the fiscal year, a portfolio has accumulated a gain across share
classes, that gain will remain with the Fund.
G. The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
opening of shareholder accounts, transfers, redemptions and other
shareholder account transactions, all in conformance with BOSTON
FINANCIAL's present procedures as set forth in its Legal Manual
(collectively the "Procedures") with such changes or deviations
therefrom as may be from time to time required or approved by the
Trust, its investment adviser or principal underwriter, or its or
BOSTON FINANCIAL's counsel and the rejection of orders or instructions
not in good order in accordance with the applicable prospectus or the
Procedures; and
H. The maintenance of a current, duplicate set of the Trust's
essential records at a secure separate location, in a form available
and usable forthwith in the event of any breakdown or disaster
disrupting its main operation.
8. INDEMNIFICATION.
A. BOSTON FINANCIAL shall at all times use reasonable care, due
diligence and act in good faith in performing its duties under this
Agreement and agrees to use its best efforts within reasonable limits
to insure the accuracy of all services performed under this Agreement.
BOSTON FINANCIAL shall provide its services hereunder in accordance
with the '34 Act, and other laws, rules and regulations of
governmental authorities having jurisdiction over BOSTON FINANCIAL. In
the absence of bad faith, willful misconduct, knowing or reckless
violations of applicable law pertaining to the manner in which
transfer agency services are to be performed by BOSTON FINANCIAL
(excluding any violations arising directly or indirectly out of the
actions or omissions to act of third parties unaffiliated with BOSTON
FINANCIAL), reckless disregard of the performance of its duties, or
negligence on its part, BOSTON FINANCIAL shall not be liable for any
action taken, suffered, or omitted by it or for any error of judgment
made by it in the performance of its duties under this Agreement. For
those activities or actions delineated in the Procedures, BOSTON
FINANCIAL shall be presumed to have used reasonable care, due
diligence and acted in good faith if it has acted in accordance with
the Procedures, copies of which have been provided to the Trust and
reviewed and approved by the Trust's counsel, as amended from time to
time with approval of Trust's counsel, or for any deviation therefrom
approved by the Trust or BOSTON FINANCIAL counsel.
B. BOSTON FINANCIAL shall not be responsible for, and the Trust shall
indemnify and hold BOSTON FINANCIAL harmless from and against, any and
all losses, damages, reasonable costs, reasonable charges, reasonable
counsel fees, payments, reasonable expenses and liability (the
"Adverse Consequences") which may be asserted against BOSTON FINANCIAL
or for which BOSTON FINANCIAL may be held to be liable, arising out of
or attributable to:
(1) All actions of BOSTON FINANCIAL required to be taken by BOSTON
FINANCIAL pursuant to this Agreement, provided that BOSTON FINANCIAL
has acted in good faith and with due diligence and reasonable care;
(2) The Trust's refusal or failure to comply with the terms of this
Agreement, the Trust's negligence or willful misconduct, or the
breach of any representation or warranty of the Trust hereunder;
(3) The good faith reliance on, or the carrying out of, any written
or oral instructions or requests of persons designated by the Trust
in writing (see Exhibit B) from time to time as authorized to give
instructions on its behalf or representatives of an Authorized
Person or BOSTON FINANCIAL's good faith reliance on, or use of,
information, data, records and documents received from, or which
have been prepared and/or maintained by the Trust, its investment
advisor, its sponsor or its principal underwriter;
(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered;
(5) The offer or sale of Shares in violation of any requirement
under federal securities laws or regulations or the securities laws
or regulations of any state or in violation of any stop order or
other determination or ruling by any federal agency or state with
respect to the offer or sale of such shares in such state (unless
such violation results from BOSTON FINANCIAL's failure to comply
with written instructions of the Trust or of any officer of the
Trust that no offers or sales be input into the Trust's
securityholder records in or to residents of such state);
(6) Any error or mistake of the Trust, any Authorized Person, and
any agent designated by the Trust in the use of the TA2000TM System,
the data center, computer and related equipment used to access the
TA2000TM System (the "DST Facilities"), and control procedures
relating thereto in the verification of output and in the remote
input of data;
(7) Errors, inaccuracies, and omissions in, or errors, inaccuracies
or omissions of BOSTON FINANCIAL arising out of or resulting from
such errors, inaccuracies and omissions in, the Trust's records,
shareholder and other records, delivered to BOSTON FINANCIAL
hereunder by the Trust or its prior agent(s);
(8) Actions or omissions to act by the Trust or agents designated by
the Trust with respect to duties assumed thereby as provided for in
Section 21 hereof; and
(9) BOSTON FINANCIAL's performance of Exception Services except
where BOSTON FINANCIAL acted or omitted to act in bad faith, with
reckless disregard of its obligations or with negligence.
(10) The Trust's breach or violation of the Ethical Hack Guidelines
(as hereinafter defined) of BOSTON FINANCIAL and/or its affiliates.
C. Except where BOSTON FINANCIAL is entitled to indemnification under
Section 8.B. hereof and with respect to "as of's" set forth in Section
7.F., BOSTON FINANCIAL shall indemnify and hold the Trust harmless
from and against any and all Adverse Consequences arising out of
BOSTON FINANCIAL's failure to comply with the terms of this Agreement
or arising out of or attributable to BOSTON FINANCIAL's negligence,
willful misconduct or reckless disregard of its obligations under this
Agreement or BOSTON FINANCIAL's breach of any of its representations
or warranties under this Agreement. In the event that any claim is
asserted against BOSTON FINANCIAL under this Agreement for any reason
other than BOSTON FINANCIAL's bad faith or willful misconduct, BOSTON
FINANCIAL's aggregate liability during any term of this Agreement with
respect to, arising from or arising in connection with this Agreement,
or from all services provided or omitted to be provided under this
Agreement, whether in contract, or in tort, or otherwise, shall be
limited and shall be determined as set forth on Schedule 8.C. attached
hereto.
D. EXCEPT FOR INTENTIONAL MALEVOLENT VIOLATIONS1 OF SECTION 23, IN NO
EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT
BE LIABLE TO ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY,
FOR CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER ANY
PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE POSSIBILITY
THEREOF.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a claim
in respect thereto is to be made against an indemnifying party
hereunder, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying
Party will not relieve an indemnifying party from any liability that
it may have to any indemnified person for contribution or otherwise
under the indemnity agreement contained herein except to the extent it
is prejudiced as a proximate result of such failure to timely notify.
In case any such action is brought against any indemnified person and
such indemnified person seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, assume the
defense thereof (in its own name or in the name and on behalf of any
indemnified party or both with counsel reasonably satisfactory to such
indemnified person); provided, however, if the defendants in any such
action include both the indemnified person and an indemnifying party
and the indemnified person shall have reasonably concluded that there
may be a conflict between the positions of the indemnified person and
an indemnifying party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other
indemnified persons which are inconsistent with those available to an
indemnifying party, the indemnified person or indemnified persons
shall have the right to select one separate counsel (in addition to
local counsel) to assume such legal defense and to otherwise
participate in the defense of such action on behalf of such
indemnified person or indemnified persons at such indemnified party's
sole expense. Upon receipt of notice from an indemnifying party to
such indemnified person of its election so to assume the defense of
such action and approval by the indemnified person of counsel, which
approval shall not be unreasonably withheld (and any disapproval shall
be accompanied by a written statement of the reasons therefor), the
indemnifying party will not be liable to such indemnified person
hereunder for any legal or other expenses subsequently incurred by
such indemnified person in connection with the defense thereof. An
indemnifying party will not settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
persons are actual or potential parties to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified person from all liability
arising out of such claim, action, suit or proceeding. An indemnified
party will not, without the prior written consent of the indemnifying
party, settle or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder. If it does so, it waives its right to
indemnification therefor.
F. In any case an indemnifying person may be asked to indemnify or
save an indemnified person harmless, the indemnified person shall use
reasonable care to (i) fully and promptly advise the indemnifying
person of all pertinent facts concerning the situation in question,
and (ii) timely advise the indemnifying person of any matter as to
which the indemnified person is aware that a claim which may give rise
to Adverse Consequences has been asserted or is being threatened and
appears reasonably likely to be asserted.
9. CERTAIN COVENANTS OF BOSTON FINANCIAL AND THE TRUST.
A. All requisite steps will be taken by the Trust from time to time
when and as necessary to register the Shares for sale in all states in
which the Shares shall at the time be offered for sale and require
registration. If at any time the Trust receives notice of any stop
order or other proceeding in any such state affecting such
registration or the sale of the Shares, or of any stop order or other
proceeding under the federal securities laws affecting the sale of the
Shares, the Trust will give prompt notice thereof to BOSTON FINANCIAL.
B. BOSTON FINANCIAL hereby agrees to perform such transfer agency
functions as are set forth in Section 4.D. above, to establish and to
maintain facilities and procedures reasonably acceptable to the Trust
for safekeeping of Certificates, check forms, and facsimile signature
imprinting devices, if any, and for the preparation or use, and the
keeping account of, such Certificates, forms and devices, and to carry
such insurance as BOSTON FINANCIAL considers adequate and reasonably
available, such consideration to be consistent with standards of
commercial reasonableness.
C. To the extent required by Section 31 of the Investment Company Act
of 1940, as amended, and Rules thereunder, BOSTON FINANCIAL agrees
that all records maintained by BOSTON FINANCIAL relating to the
services to be performed by BOSTON FINANCIAL under this Agreement are
the property of the Trust and will be preserved and will be
surrendered promptly to the Trust on request.
D. BOSTON FINANCIAL agrees to furnish the Trust with a report in
accordance with Statements on Auditing Standards No. 70 (the "SAS 70
Report") as well as such other publicly available financial
information about itself or its affiliates and any reports and
information relating to BOSTON FINANCIAL's policies and procedures and
its compliance with such policies and procedures and with the laws
applicable to its business and services as the Trust may reasonably
request. BOSTON FINANCIAL further agrees that upon request by the
Trust, not more than once each year, it will review with the Trust
such information as is necessary to demonstrate BOSTON FINANCIAL's
current financial status. As a continuing obligation of BOSTON
FINANCIAL throughout the term of this Agreement, BOSTON FINANCIAL
agrees to notify the Trust (unless legally prohibited from so doing)
of any claims that BOSTON FINANCIAL reasonably believes would
materially adversely affect the ability of BOSTON FINANCIAL to provide
the services required under this Agreement.
E. BOSTON FINANCIAL represents and agrees that it will use its best
efforts within reasonable limits to keep current on the trends of the
investment company industry relating to shareholder services and will
use its best efforts to continue to modernize and improve.
Notwithstanding the foregoing, (i) BOSTON FINANCIAL shall not be
liable for failing to make any modification or improvement as to the
necessity of which the Trust has not advised BOSTON FINANCIAL in
writing and (ii) for any delay in the implementation of such
modification or improvement where BOSTON FINANCIAL reasonably requires
more time than was permitted by circumstances or such regulations.
F. BOSTON FINANCIAL will permit the Trust and its authorized
representatives, including its chief compliance officer, to make
periodic inspections of its operations and its policies and procedures
as such would involve the Trust at reasonable times during business
hours subject to such authorized representatives' execution of a
confidentiality agreement provided by BOSTON FINANCIAL.
G. BOSTON FINANCIAL agrees to use its best efforts to provide in
Kansas City, MO at the Trust's expense two (2) man weeks of training
for designated personnel in connection with use and operation of the
TA2000TM System for the Trust. All travel and reimbursable expenses
incurred by the Trust's personnel in connection with and during
training at BOSTON FINANCIAL's Facility or DST's Facility shall be
borne by the Trust. At the Trust's option and expense, BOSTON
FINANCIAL also agrees to use its best efforts to provide an additional
two (2) man weeks of training at the Trust's facility for the Trust's
personnel in connection with the conversion to the TA2000TM System.
Reasonable travel, per diem and reimbursable expenses incurred by
BOSTON FINANCIAL personnel in connection with and during training at
the Trust's facility or in connection with the conversion shall be
borne by the Trust.
H. BOSTON FINANCIAL shall reasonably cooperate with the Trust's
independent public accountants and the Trust's chief compliance
officer and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that access to all readily
necessary information and compliance personnel is made available to
such accountants and to the Trust's chief compliance officer, for the
expression of the accountants' opinion and the evaluation of the
effectiveness of BOSTON FINANCIAL's compliance controls, as such may
be required from time to time. Special reports or information may be
charged for. A report is "Special" if it is not regularly produced by
TA2000TM or requires special programming.
I. Ethical Hack. The parties have agreed that the Trust may conduct an
Ethical Hack, as part of the Trust's normal information security due
diligence review and compliance solely in accordance with the Ethical
Hack Guidelines or BOSTON FINANCIAL and/or its affiliates (the
"Ethical Hack Guidelines") a copy of which are attached hereto and
incorporated herein by reference as if fully set forth as Exhibit E.
The Trust agrees that any such Ethical Hack shall be performed
strictly in accordance with such Ethical Hack Guidelines. If
vulnerabilities are identified, then as part of the Services BOSTON
FINANCIAL and/or its affiliates shall promptly (i) document the system
remediation proposal, (ii) provide the Trust with such documentation
and reports on the status of modifications to correct such
vulnerabilities, and (iii) implement such remediation modifications as
may be required.
J. BOSTON FINANCIAL will provide assistance to and cooperate with the
Trust during any government or Trust directed audits (including audits
arranged by the Trust in connection with the implementation and
administration of the Trust's compliance policies and procedures) and
regulatory examinations of the Trust's records and accounts maintained
by BOSTON FINANCIAL in accordance with reasonable procedures and at
reasonable frequencies. For purposes of such regulatory examinations
or audits, at the request the Trust, BOSTON FINANCIAL will make
available, during normal business hours, all reasonably required
records, data and operating processes for review by (i) the
representatives of the appropriate regulatory agencies and/or (ii) any
auditors. The Trust understands and agrees that all auditors will be
required by BOSTON FINANCIAL to execute a confidentiality agreement
prior to being given access to such records, data and operating
processes.
K. Upon request of the Trust, BOSTON FINANCIAL will provide to the
Trust on a semi-annual or quarterly basis a Xxxxxxxx-Xxxxx
certification with respect to BOSTON FINANCIAL's performance of the
services and its internal controls related thereto. In addition, upon
request of the Trust, BOSTON FINANCIAL will provide to the Trust a
certification under Rule 38a-1 of the federal securities rules with
respect to the compliance provisions required by that Rule.
10. RECAPITALIZATION OR READJUSTMENT.
In case of any recapitalization, readjustment or other change in the capital
structure of the Trust requiring a change in the form of Certificates, BOSTON
FINANCIAL will issue or register Certificates in the new form in exchange for,
or in transfer of, the outstanding Certificates in the old form, upon receiving:
A. Written instructions from an officer of the Trust;
B. Certified copy of the amendment to the Declaration of Trust or other
document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the stock in
the new form, and an opinion of counsel that the order or consent of no
other government or regulatory authority is required;
D. Specimens of the new Certificates in the form approved by the Board
of Trustees of the Trust, with a certificate of the Secretary of the
Trust as to such approval;
E. Opinion of counsel for the Trust stating:
(1) The status of the shares of stock of the Trust in the new
form under the '33 Act, as amended and any other applicable
federal or state statute; and
(2) That the issued shares in the new form are, and all
unissued shares will be when registered, validly issued, fully
paid and nonassessable.
11. CERTIFICATES.
The Trust will furnish BOSTON FINANCIAL with a sufficient supply of blank
Certificates and from time to time will renew such supply upon the request of
BOSTON FINANCIAL. Such Certificates will be signed manually or by facsimile
signatures of the officers of the Trust authorized by law and by bylaws to sign
Certificates, and if required, will bear the corporate seal or facsimile
thereof.
12. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER.
The Trust will file promptly with BOSTON FINANCIAL written notice of any change
in the officers authorized to sign Certificates, written instructions or
requests, together with a revised Exhibit B. In case any officer of the Trust
who will have signed manually or whose facsimile signature will have been
affixed to blank Certificates will die, resign, or be removed prior to the
issuance of such Certificates, BOSTON FINANCIAL may issue or register such
Certificates as the Certificates of the Trust notwithstanding such death,
resignation, or removal, until specifically directed to the contrary by the
Trust in writing. In the absence of such direction, the Trust will file promptly
with BOSTON FINANCIAL such approval, adoption, or ratification as may be
required by law.
13. FUTURE AMENDMENTS OF DECLARATION OF TRUST AND BYLAWS.
The Trust will promptly file with BOSTON FINANCIAL copies of all material
amendments to its Declaration of Trust or Bylaws made after the date of this
Agreement.
14. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES.
Any time BOSTON FINANCIAL shall be in doubt as to any proposed or requested
action to be taken or omitted by it, BOSTON FINANCIAL may consult with any
person authorized by the Trust to give instructions to BOSTON FINANCIAL relating
to the particular proposed or requested action to be taken or omitted. BOSTON
FINANCIAL may with the approval of a Trust officer consult with legal counsel
for the Trust or may consult with BOSTON FINANCIAL's own legal counsel at BOSTON
FINANCIAL's own expense, with respect to any matter involving a question of law
involved in any action to be taken or omitted by BOSTON FINANCIAL in connection
with the agency. BOSTON FINANCIAL will not be liable for any action taken or
omitted by it in good faith in reliance upon such instructions or upon the
opinion of such counsel. Notwithstanding the foregoing, the Trust shall
reimburse BOSTON FINANCIAL for outside counsel fees incurred in connection with
the review of the legal sufficiency of documentation provided by a shareholder
or otherwise as to the advisability of complying with the request of a
shareholder or person purporting to act on behalf of a shareholder so long as
BOSTON FINANCIAL has complied with the requirements set forth in Section 6.B.
BOSTON FINANCIAL will be protected in acting upon any paper or document
reasonably believed by it to be genuine and to have been signed by the proper
person or persons and will not be held to have notice of any change of authority
of any person, until receipt of written notice thereof from the Trust. It will
also be protected in recognizing Certificates which it reasonably believes to
bear the proper manual or facsimile signatures of the officers of the Trust, and
the proper countersignature of any former Transfer Agent or Registrar, or of a
co-Transfer Agent or co-Registrar.
15. FORCE MAJEURE AND DISASTER RECOVERY PLANS.
A. BOSTON FINANCIAL shall not be responsible or liable for its failure
or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including, without limitation: any
interruption, loss or malfunction or any utility, transportation,
computer (hardware or software) or communication service; a delay in
mails; governmental or exchange action, statute, ordinance, rulings,
regulations or direction; war, strike, riot, emergency, civil
disturbance, terrorism, vandalism, explosions, labor disputes,
freezes, floods, fires, tornadoes, acts of God or public enemy,
revolutions, or insurrection; or any other cause, contingency,
circumstance or delay not subject to BOSTON FINANCIAL's reasonable
control which prevents or hinders BOSTON FINANCIAL's performance
hereunder.
B. BOSTON FINANCIAL will maintain a comprehensive business continuity
plan and will provide an executive summary of such plan upon
reasonable request of the Trust. BOSTON FINANCIAL will test the
adequacy of its business continuity plan at least annually and upon
request, the Trust may participate in such test. Upon request by the
Trust, BOSTON FINANCIAL will provide the Trust with a letter assessing
the most recent business continuity test results. In the event of a
business disruption that materially impacts BOSTON FINANCIAL's
provision of services under this Agreement, BOSTON FINANCIAL will
notify the Trust of the disruption and the steps being implemented
under the business continuity plan. If the Trust reasonably determines
that BOSTON FINANCIAL has not or cannot put its disaster recovery plan
in place quickly enough to meet the Trust's needs or is otherwise
unable to provide equal access to such Services, BOSTON FINANCIAL
shall promptly provide reasonable assistance and support to the Trust,
at the Trust's expense, in seeking such services from an alternative
source.
C. BOSTON FINANCIAL's affiliate, DST, currently maintains a recovery
facility for use in event of a disaster rendering the DST Facilities
inoperable (the "DST Recovery Facility"). DST has developed and is
continually revising business contingency plans (the "DST Business
Contingency Plan") detailing which, how, when, and by whom data
maintained at DST Facilities will be installed and operated at the
Recovery Facility. BOSTON FINANCIAL will provide an executive summary
of the DST Business Contingency Plan upon reasonable request of the
Trust. Provided the Trust is paying its pro rata portion of the charge
therefor, BOSTON FINANCIAL would, in event of a disaster rendering the
DST's Facility inoperable, instruct DST to use reasonable efforts to
convert the TA2000TM System containing the designated Trust data to
the computers at the Recovery Facility in accordance with the then
current DST Business Contingency Plan.
D. BOSTON FINANCIAL also currently maintains, separate from the area
in which the operations that provides the services to the Trust
hereunder are located, a Crisis Management Center consisting of
phones, computers and the other equipment necessary to operate a full
service transfer agency business in the event one of its operations
areas is rendered inoperable. The transfer of operations to other
operating areas or to the Crisis Management Center is covered in
BOSTON FINANCIAL's Business Contingency Plan.
16. CERTIFICATION OF DOCUMENTS.
The required copy of the Declaration of Trust or Articles of Incorporation of
the Trust and copies of all amendments thereto will be certified by the
Secretary of State (or other appropriate official) of the State of
Incorporation, and if such Declaration of Trust and amendments are required by
law to be also filed with a county, city or other officer of official body, a
certificate of such filing will appear on the certified copy submitted to BOSTON
FINANCIAL, provided, however, that if the Trust is not required to file the
Declaration of Trust with the State of Incorporation, but is required to file a
Certificate of Trust with such state, a copy of the Certificate of Trust and
copies of all amendment thereto will be certified by the Secretary of State (or
other appropriate official) of the State of Incorporation. A copy of the order
or consent of each governmental or regulatory authority required by law to the
issuance of the stock will be certified by the Secretary or Clerk of such
governmental or regulatory authority, under proper seal of such authority. The
copy of the Bylaws and copies of all amendments thereto, and copies of
resolutions of the Board of Trustees of the Trust, will be certified by the
Secretary or an Assistant Secretary of the Trust under the Trust's seal.
17. RECORDS.
BOSTON FINANCIAL will maintain customary records in connection with its agency,
and particularly will maintain those records required to be maintained pursuant
to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 under the Investment
Company Act of 1940, if any.
18. DISPOSITION OF BOOKS, RECORDS AND CANCELED CERTIFICATES.
BOSTON FINANCIAL may send periodically to the Trust, or to where designated by
the Secretary or an Assistant Secretary of the Trust, all books, documents, and
all records no longer deemed needed for current purposes and Certificates which
have been canceled in transfer or in exchange, upon the understanding that such
books, documents, records, and Certificates will be maintained by the Trust
under and in accordance with the requirements of Rule 17Ad-7 adopted under the
`34. Such materials will not be destroyed by the Trust without the consent of
BOSTON FINANCIAL (which consent will not be unreasonably withheld), but will be
safely stored for possible future reference.
19. PROVISIONS RELATING TO BOSTON FINANCIAL AS TRANSFER AGENT.
A. BOSTON FINANCIAL will make original issues of Certificates upon
written request of an officer of the Trust and upon being furnished
with a certified copy of a resolution of the Board of Trustees
authorizing such original issue, an opinion of counsel as outlined in
subparagraphs 1.G and 5.D of this Agreement, any documents required by
Sections 5 or 10 of this Agreement, and necessary funds for the payment
of any original issue tax.
B. Before making any original issue of Certificates of the Trust will
furnish BOSTON FINANCIAL with sufficient funds to pay all required
taxes on the original issue of the stock, if any. The Trust will
furnish BOSTON FINANCIAL such evidence as may be required by BOSTON
FINANCIAL to show the actual value of the stock. If no taxes are
payable BOSTON FINANCIAL will be furnished with a certified statement
from an officer of the Trust to that effect.
C. Shares of stock represented by Certificates will be transferred and
new Certificates issued in transfer, or Shares of stock accepted for
redemption and funds remitted therefor, or book entry transfer be
effected, upon surrender of the old Certificates in form or receipt by
BOSTON FINANCIAL of instructions deemed by BOSTON FINANCIAL properly
endorsed for transfer or redemption accompanied by such documents as
BOSTON FINANCIAL may deem necessary to evidence the authority of the
person making the transfer or redemption. BOSTON FINANCIAL reserves the
right to refuse to transfer or redeem Shares until it is satisfied that
the endorsement or signature on the Certificate or any other document
is valid and genuine, and for that purpose it may require a guaranty of
signature in accordance with the Procedures. BOSTON FINANCIAL will
incur no liability and shall be indemnified and held harmless by the
Fund for any action taken by it in accordance with an instruction
bearing what purports to be a signature guarantee or medallion of an
Eligible Guarantor Institution or otherwise in accordance with BOSTON
FINANCIAL's Signature Guarantee Procedures adopted pursuant to Rule
17Ad-15 under the '34 Act. BOSTON FINANCIAL also reserves the right to
refuse to transfer or redeem shares until BOSTON FINANCIAL is satisfied
that the requested transfer or redemption is legally authorized, and it
will incur no liability for the refusal in good faith to make transfers
or redemptions which, in its reasonable judgment, are improper or
unauthorized. Authority to perform a redemption shall be suspended when
the Trust suspends the shareholders' right of redemption provided that
the Trust delivers written notice of such suspension to BOSTON
FINANCIAL. BOSTON FINANCIAL may, in effecting transfers or redemptions,
rely upon Simplification Acts, Uniform Commercial Code or other
statutes that protect it and the Trust in not requiring complete
fiduciary documentation. In cases in which BOSTON FINANCIAL is not
directed or otherwise required to maintain the consolidated records of
shareholder's accounts, BOSTON FINANCIAL will not be liable for any
loss that may arise by reason of not having such records.
D. When mail is used for delivery of Certificates, BOSTON FINANCIAL
will forward Certificates in "nonnegotiable" form by first class or
registered mail and Certificates in "negotiable" form by registered
mail, all such mail deliveries to be covered while in transit to the
addressee by insurance arranged for by BOSTON FINANCIAL.
E. BOSTON FINANCIAL will issue and mail subscription warrants,
Certificates representing stock dividends, exchanges or split ups, or
act as Conversion Agent upon receiving written instructions from any
officer of the Trust and such other documents as BOSTON FINANCIAL deems
necessary.
F. BOSTON FINANCIAL will issue, transfer, and split up Certificates and
will issue Certificates of stock representing full Shares upon
surrender of scrip certificates aggregating one full share or more when
presented to BOSTON FINANCIAL for that purpose upon receiving written
instructions from an officer of the Trust and such other documents as
BOSTON FINANCIAL may deem necessary.
G. BOSTON FINANCIAL may issue new Certificates in place of Certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken upon receiving instructions from the Trust and
indemnity satisfactory to BOSTON FINANCIAL and the Trust, and may issue
new Certificates in exchange for, and upon surrender of, mutilated
Certificates. Such instructions from the Trust will be in such form as
will be approved by the Board of Trustees of the Trust and will be in
accordance with the provisions of law and the bylaws of the Trust
governing such matter.
H. BOSTON FINANCIAL will supply a shareholder's list to the Trust for
its annual meeting upon receiving a request from an officer of the
Trust. It will also, at the expense of the Trust, supply lists at such
other times as may be requested by an officer of the Trust.
I. Upon receipt of written instructions of an officer of the Trust,
BOSTON FINANCIAL will, at the expense of the Trust, address and mail
notices to shareholders.
J. In case of any request or demand for the inspection of the
securityholder files or stock books of the Trust or any other books or
records in the possession of the Trust in BOSTON FINANCIAL's
possession, BOSTON FINANCIAL will not permit such inspection, except
(i) after prior notification to and approval in writing by the Trust or
Advisor as appropriate, which approval shall not be unreasonably
withheld and may not be withheld or delayed where BOSTON FINANCIAL may
be exposed to civil or criminal contempt proceedings for failure to
comply when requested to divulge such information by duly constituted
authorities, or (ii) when so requested by the Trust or an Authorized
Person. Nothing in the foregoing is intended to, nor does it, prohibit
or deny to BOSTON FINANCIAL the right to disclose information requested
by subpoena, Court Order, administrative order or request issued by a
federal, state or local authority purporting to be issued under
statutory authority or a self-regulatory organization registered under
the '34 Act. BOSTON FINANCIAL shall use reasonable efforts to advise
the Trust concerning subpoenas received for records of the Trust and,
upon being so advised, the Trust shall be responsible for handling and
responding thereto.
K. If the Trust elects to delegate to BOSTON FINANCIAL certain
Anti-Money Laundering and customer identification duties under this
Agreement, the parties will agree to such duties and terms as stated in
the attached schedule ("Schedule19 K. entitled "AML Delegation" which
may be changed from time to time subject to mutual written agreement
between the parties. In consideration of the performance of the duties
by BOSTON FINANCIAL pursuant to this Section 19 K., the Trust agrees to
pay BOSTON FINANCIAL the fees applicable to such services as the
parties may from time to time agree.
20. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
A. BOSTON FINANCIAL will, at the expense of the Trust, provide a
special form of check containing the imprint of any device or other
matter desired by the Trust. Said checks must, however, be of a form
and size convenient for use by BOSTON FINANCIAL.
B. If the Trust desires to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be furnished
BOSTON FINANCIAL within a reasonable time prior to the date of mailing
of the dividend checks, at the expense of the Trust.
C. If the Trust desires its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to BOSTON
FINANCIAL but the size and form of said envelopes will be subject to
the approval of BOSTON FINANCIAL. If stamped envelopes are used, they
must be furnished by the Trust; or if postage stamps are to be affixed
to the envelopes, the stamps or the cash necessary for such stamps must
be furnished by the Trust.
D. BOSTON FINANCIAL shall establish and maintain, and is hereby
authorized to establish and to maintain, under the usual terms and
conditions prevalent in the industry and on behalf of the Trust as
agent of the Trust, in BOSTON FINANCIAL's own name or under the X.X.
Xxxxxx name (or that of the Trusts as a group or of an Affiliate
thereof), one or more deposit accounts, into which BOSTON FINANCIAL
shall deposit the funds BOSTON FINANCIAL receives for payment of
dividends, distributions, redemptions or other disbursements provided
for hereunder and to draw checks against such accounts.
E. BOSTON FINANCIAL is authorized and directed to stop payment of
checks theretofore issued hereunder, but not presented for payment,
when the payees thereof allege either that they have not received the
checks or that such checks have been mislaid, lost, stolen, destroyed
or through no fault of theirs, are otherwise beyond their control, and
cannot be produced by them for presentation and collection, and, to
issue and deliver duplicate checks in replacement thereof.
21. ASSUMPTION OF DUTIES BY THE TRUST OR AGENTS DESIGNATED BY THE TRUST.
A. The Trust or its designated agents other than BOSTON FINANCIAL may
assume certain duties and responsibilities with respect to the
operations of the Trust, including (with BOSTON FINANCIAL's agreement)
providing all, or a portion, of those services which BOSTON FINANCIAL
is obligated to provide under Section 4.D of this Agreement.
B. To the extent the Trust or its agent or affiliate assumes BOSTON
FINANCIAL's duties and responsibilities (which assumption should be
embodied in writing), BOSTON FINANCIAL shall be relieved from all
responsibility and liability therefore (including any Adverse
Consequences directly or indirectly arising out of or resulting from
the actions or omissions of the Trust or its designees, as well as from
any "as of" liability or withholding reversals in connection therewith)
and BOSTON FINANCIAL is hereby indemnified and held harmless against
any liability therefrom in the same manner and degree as provided for
in Section 8 hereof.
C. Initially, with respect to accounts serviced by JPM or banks
affiliated with or a correspondent of JPM, the Trust or its designees
shall be responsible for the following: (i) answering and responding to
telephone inquiries from shareholders and brokers; (ii) accepting
shareholder and broker instructions (either or both oral and written)
and (A) transmitting to BOSTON FINANCIAL orders (transactions and
maintenance) based on such instructions for input into TA2000 by BOSTON
FINANCIAL or (B) themselves inputting such orders into TA2000 on a
remote basis; (iii) preparing and mailing confirmations; (iv)
classifying the status of shareholders and shareholder accounts under
applicable tax law and in accordance with the capabilities provided on
TA2000, and performing all compliance functions with respect thereto,
including without limitation obtaining certified TIN's, Form W-8's and
other documentation, and properly coding accounts (social codes, tax
status, foreign accounts and so forth) as provided for on TA2000; (v)
on a remote basis establishing shareholder accounts on the TA2000TM
System, establishing the appropriate privileges thereupon and assigning
social codes and Taxpayer Identification Number codes thereof; (vi)
disbursing monies of the Trust; (vii) sending redemption and dividend
wires in accordance with instructions received; and (viii) following up
and collecting upon unsettled trade orders and unpaid broker-dealer,
institutional or shareholder "as of's."
22. TERMINATION OF AGREEMENT.
A. This Agreement shall be in effect from the 18th day of February,
2005, through the 31st day of August 2009 (the "Initial Term" of this
Transfer Agency Agreement"). This Agreement shall thereafter
automatically extend for additional, successive one (1) year terms upon
the expiration of any term hereof, unless terminated as of the end of
any term by either party on not less than one hundred and twenty (120)
days prior written notice to the other party. Each additional one (1)
year period shall be an additional term of this Agreement. However,
notwithstanding anything in this Agreement to the contrary, the
effective date of any termination shall not occur during the period
from December 15 through March 30 of any year to avoid adversely
impacting year end, except if pursuant to Section 22.B of this
Agreement. One hundred and twenty (120) days before the expiration of
the Initial Term or a renewal term, the parties agree to negotiate in
good faith and agree upon a fee schedule for the upcoming renewal term.
Notwithstanding the termination or non-renewal of this Agreement, the
terms and conditions of this Agreement shall continue to apply until
the completion of the deconversion. The parties will mutually agree
upon the timing and other details of the actual deconversion of the
Trust's business.
B. Each party, in addition to any other rights and remedies, shall have
the right to terminate this Agreement forthwith upon the occurrence at
any time of any of the following events with respect to the other
party:
(1) The bankruptcy of the other party or its assigns or the appointment
of a receiver for the other party or its assigns;
(2) failure by the other party or its assigns to perform its duties
(including any material interruption or cessation of its operations) in
accordance with the Agreement, which failure materially adversely
affects the business operations of the first party and which failure
continues for thirty (30) days after receipt of written notice from the
first party, unless such failure is excused under Section 15 of this
Agreement; or
(3) merger, consolidation or sale of substantially all of the assets of
the other party or its assigns; provided, however, that this Section
22.B.3 shall not apply to any mergers, consolidations or sales of
substantially all of the assets of the Trust constituting a "shell
reorganization;" or
(4) acquisition of a controlling interest in the other party or its
assigns by any third party except as may presently exist within the
previous sixty (60) days.
In the event of a termination under this Section 22.B, the notice of
termination for the reasons provided in this Section 22.B must be
provided within sixty (60) days of a party's learning of a reason
permitting termination, and shall take effect within not less than
ninety (90) and more than one hundred eighty (180) days from the date
of receipt of the notice of termination. Any termination by reasons set
forth in Section 22.B(1) and (2) shall not be subject to any
termination fees or penalties relating to or arising out of
termination, including without limitation any such fees or penalties
relating to or arising out of termination set forth in "NOTES TO THE
FEE SCHEDULE, " Paragraph E on Exhibit A attached to this Agreement. In
the event that (i) one or more Trusts terminate this Agreement as the
result of an acquisition by or merger into another fund and the
remaining Trusts wish to continue the Agreement, or (ii) the Trusts
terminate this Agreement as the result of their acquisition by or
merger into another fund and such other fund's shareholder records are,
at the time of such acquisition or merger, maintained by BOSTON
FINANCIAL or its affiliates, or (iii) one or more Trusts wish to move
its transfer agency servicing operation from BOSTON FINANCIAL to an
affiliated entity or another DST TA2000 platform (i.e., become a remote
user of DST's TA2000 system) as the result of such Trusts acquisition
by or merger into another fund, then the parties agree to negotiate in
good faith to determine whether or to what extent the termination fees
under this Agreement shall apply to such termination.
C. BOSTON FINANCIAL may, on written notice to such Trust, immediately
terminate this Agreement as to any Trust which itself or its Shares
fail to be registered as provided in Section 3 of this Agreement at any
time during this Agreement.
D. In the event of termination, the Trust will promptly pay BOSTON
FINANCIAL all amounts due to BOSTON FINANCIAL hereunder, including any
termination fee set forth in Exhibit A to this Agreement.
E. In the event of termination, BOSTON FINANCIAL will use its best
efforts to transfer the records of the Trust to the designated
successor transfer agent, to provide reasonable assistance to the Trust
and its designated successor transfer agent, and to provide other
information relating to its services provided hereunder (subject to the
recompense of BOSTON FINANCIAL for such assistance at its standard
rates and fees for personnel then in effect at that time); provided,
however, as used herein "reasonable assistance" and "other information"
shall not include assisting any new service or system provider to
modify, alter, enhance, or improve its system or to improve, enhance,
or alter its current system, or to provide any new functionality or to
require BOSTON FINANCIAL to disclose any BOSTON FINANCIAL Confidential
Information, as hereinafter defined, or any information which is
otherwise confidential to BOSTON FINANCIAL.
23. CONFIDENTIALITY AND INFORMATION SECURITY.
A. BOSTON FINANCIAL agrees on behalf of itself, its affiliates, its
officers and employees, except as provided in Section 19.J. hereof, or
as otherwise required by law, BOSTON FINANCIAL will keep confidential
all records and data of and information in its possession relating to
the Trust or its shareholders or shareholder accounts in any form
disclosed to BOSTON FINANCIAL hereunder, including but not limited to
any data and information in any form disclosed by the Trust, anyone
acting on behalf of the Trust, or the Trust's customers, prospective
customers, or employees to BOSTON FINANCIAL, BOSTON FINANCIAL Personnel
or any Subcontractor including Consumer Information (as "Consumer
Information" is defined in SEC Regulation S-P) and non-public
information which is learned by BOSTON FINANCIAL without the Trust's
intentional disclosure to it. Such information includes all Trust
software, specifications, documentation, product proposals, financial
information, data, source or object code, documentation, manuals,
studies, internally devised technology, system or network architecture
or topology, security mechanisms, product or processing capacities,
revenues, information relating to the business of the Trust (including
internal procedures and policies, businesses plans, and products of the
Trust), and all other trade secret, confidential or proprietary
information and documentation of the Trust or its customers,
prospective customers, employees, directors, outside directors,
retirees and their respective spouses and families received in
connection with this Agreement (whether or not it is designated as
such). BOSTON FINANCIAL shall not disclose the same to any person
except at the instruction (standing or specific), request or with the
consent of the Trust. Notwithstanding the foregoing, BOSTON FINANCIAL
shall be permitted in the ordinary course of business to provide such
information to third parties providing services to BOSTON FINANCIAL
which BOSTON FINANCIAL utilizes in connection with the services BOSTON
FINANCIAL provides to the Trust under this Agreement or in accordance
with Section 19.J. of this Agreement.
B. BOSTON FINANCIAL has provided the Trust with a summary of its
information security standards, which are subject to change by BOSTON
FINANCIAL from time to time to meet industry changes. BOSTON FINANCIAL
agrees to comply with such information security standards in the
performance of its services under this Agreement. BOSTON FINANCIAL
acknowledges receipt of the Trust's information security standards and,
to the extent that BOSTON FINANCIAL does not comply with the Trust's
standards, BOSTON FINANCIAL shall inform the Trust of the standards it
has adopted in lieu thereof.
C. The Trust on behalf of itself, its affiliates, its officers and
employees and all entities which it directs BOSTON FINANCIAL to provide
any of the following information agrees to keep confidential all
financial statements and other financial records (other than statements
and records relating solely to the Trust's business dealings with
BOSTON FINANCIAL) and all manuals, systems and other technical
information and data, not publicly disclosed, relating to the
operations and programs of BOSTON FINANCIAL and DST furnished to it by
BOSTON FINANCIAL pursuant to this Agreement and will not disclose the
same to any person except at the request or with the consent of BOSTON
FINANCIAL.
D. (1) The Trust acknowledges that BOSTON FINANCIAL and/or its
affiliates have proprietary rights in and to the TA2000TM System used
to perform services hereunder including, but not limited to the
maintenance of shareholder accounts and records, processing of related
information and generation of output, including, without limitation any
changes or modifications of the TA2000TM System and any other programs,
data bases, supporting documentation, or procedures and all software,
specifications, documentation, product proposals, financial
information, data, source or object code, documentation, manuals,
studies, internally devised technology, system or network architecture
or topology, security mechanisms, product or processing capacities,
revenues, information relating to the business of BOSTON FINANCIAL
and/or its affiliates (including internal procedures and policies,
businesses plans, and products of BOSTON FINANCIAL and/or its
affiliates), and all other trade secret, confidential or proprietary
information and documentation of BOSTON FINANCIAL and/or its Affiliates
or its customers, prospective customers, employees, directors, outside
directors, retirees and their respective spouses and families (whether
or not it is designated as such) and non-public information which is
learned by the Trust without BOSTON FINANCIAL's intentional disclosure
to it (collectively "BOSTON FINANCIAL Confidential Information") which
the Trust's access to the TA2000TM System or computer hardware or
software may permit the Trust or its agents or the Trust's employees,
directors, outside directors, retirees, their respective spouses and
families to become aware of or to access and that the BOSTON FINANCIAL
Confidential Information constitutes confidential material and trade
secrets of BOSTON FINANCIAL and/or its affiliates. The Trust agrees to
maintain the confidentiality of the BOSTON FINANCIAL Confidential
Information of which it is, or becomes, aware or to which it has
access.
(2) The Trust acknowledges that any unauthorized use, misuse,
disclosure or taking of BOSTON FINANCIAL Confidential Information which
is confidential as provided by law, or which is a trade secret,
residing or existing internal or external to a computer, computer
system, or computer network, or the knowing and unauthorized accessing
or causing to be accessed of any computer, computer system, or computer
network, may be subject to civil liabilities and criminal penalties
under applicable state law. The Trust will advise all of its employees
and agents who have access to any BOSTON FINANCIAL Confidential
Information or to any computer equipment capable of accessing BOSTON
FINANCIAL hardware or software of the foregoing.
(3) The Trust acknowledges that disclosure of the BOSTON FINANCIAL
Confidential Information may give rise to an irreparable injury to
BOSTON FINANCIAL and/or its affiliates inadequately compensable in
damages. Accordingly, BOSTON FINANCIAL may seek (without the posting of
any bond or other security) injunctive relief against the breach of the
foregoing undertaking of confidentiality and nondisclosure, in addition
to any other legal remedies which may be available, and the Trust
consents to the obtaining of such injunctive relief. All of the
undertakings and obligations relating to confidentiality and
nondisclosure, whether contained in this Section or elsewhere in this
Agreement shall survive the termination or expiration of this Agreement
for a period of ten (10) years.
24. CHANGES AND MODIFICATIONS.
A. During the term of this Agreement BOSTON FINANCIAL will use on
behalf of the Trust without additional cost all modifications,
enhancements, or changes which BOSTON FINANCIAL or its affiliates may
make to the TA2000TM System in the normal course of its business and
which are applicable to functions and features offered by the Trust to
its shareholders, unless those BOSTON FINANCIAL clients having
substantially similar service and billing arrangements to the Trust are
charged separately for such modifications, enhancements or changes,
including, without limitation, substantial system revisions or
modifications necessitated by changes in existing laws, rules or
regulations. The Trust agrees to pay BOSTON FINANCIAL promptly for
modifications and improvements that are charged for separately at the
rate provided for in BOSTON FINANCIAL's standard pricing schedule,
which shall be identical for those BOSTON FINANCIAL clients which have
substantially similar service and billing arrangements to the Trust, if
a standard pricing schedule shall exist. If there is no standard
pricing schedule, the parties shall mutually agree upon the rates to be
charged.
B. BOSTON FINANCIAL and/ or its affiliates 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 the Trust will be notified as
promptly as possible prior to implementation of such alterations and
modifications and that no such alteration or modification or deletion
shall materially adversely change or affect the operations and
procedures of the Trust in using or employing the TA2000TM System or
BOSTON FINANCIAL Facilities hereunder or the reports to be generated by
such system and facilities hereunder, unless the Trust is given thirty
(30) days prior notice to allow the Trust to change its procedures and
BOSTON FINANCIAL provides the Trust with revised operating procedures
and controls.
C. All enhancements, improvements, changes, modifications or new
features added to the TA2000TM System however developed or paid for
shall be, and shall remain, the confidential and exclusive property of,
and proprietary to, BOSTON FINANCIAL and/or its affiliates.
25. ASSIGNMENT AND SUBCONTRACTORS.
A. Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party hereto without the written consent of the
other party. In the event of a mutually agreed to assignment, each
party shall remain liable for the performance of its assignee(s).
BOSTON FINANCIAL may, however, employ agents to assist it in performing
its duties hereunder; provided, however, that BOSTON FINANCIAL shall be
fully responsible to the Trust for the acts and omissions of any agent
employed by it to the same extent as it is for its own acts and
omissions and BOSTON FINANCIAL shall obtain the Trust's prior approval
for the employment of any such agent that is not an affiliate of BOSTON
FINANCIAL.
B. Notwithstanding anything in this Agreement to the contrary, nothing
herein shall impose any duty upon BOSTON FINANCIAL in connection with
or make BOSTON FINANCIAL liable for the actions or omissions to act of
unaffiliated third parties such as, by way of example and not
limitation, Airborne Services, the U.S. mails, the National Securities
Clearing Commission and telecommunication companies, provided, if
BOSTON FINANCIAL selected such company, BOSTON FINANCIAL shall have
exercised due care in selecting the same.
26. LIMITATIONS ON LIABILITY.
A. Notwithstanding anything in this Agreement to the contrary, each
Trust that executed this Agreement is and shall be regarded for all
purposes hereunder as a separate party apart from each other Trust and
any Fund of any such other Trust. To the extent that a Trust is
comprised of more than one Fund, each Fund shall be regarded for all
purposes hereunder as a separate party apart from each other Fund.
Unless the context otherwise requires, with respect to every
transaction covered by this Agreement, every reference herein to the
Trust shall be deemed to relate solely to the particular Fund or Trust
to which such transaction relates. Under no circumstances shall the
rights, obligations or remedies with respect to a particular Trust or a
particular Fund constitute a right, obligation or remedy applicable to
any other Trust or Fund. The use of this single document to memorialize
the separate agreement of each Trust and each Fund herein is understood
to be for clerical convenience only and shall not constitute any basis
for joining the Trusts or Funds for any reason.
B Notice is hereby given that a copy of each Trust's Declaration of
Trust or Certificate of Trust and all amendments thereto is on file
with the Secretary of State of the state of its organization; that this
Agreement has been executed on behalf of the Trust by the undersigned
duly authorized representative of the Trust in his/her capacity as such
and not individually; and that the obligations of this Agreement shall
only be binding upon the assets and property of the Trust and shall not
be binding upon any trustee, officer or shareholder of the Trust
individually.
27. MISCELLANEOUS.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the
Commonwealth of Massachusetts, excluding that body of law applicable to
choice of law.
B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
C. The representations and warranties, and the indemnification extended
hereunder, if any, are intended to and shall continue after and survive
the execution, expiration, termination or cancellation of this
Agreement or the performance of services hereunder until any statute of
limitations applicable to the matter at issues shall have expired.
D. No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed
by each party hereto.
E. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
F. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall
constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the courts
held to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
H. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between the
Trust and BOSTON FINANCIAL. It is understood and agreed that all
services performed hereunder by BOSTON FINANCIAL shall be as an
independent contractor and not as an employee of the Trust. This
Agreement is between BOSTON FINANCIAL and the Trust and neither this
Agreement nor the performance of services under it shall create any
rights in any third parties. There are no third party beneficiaries
hereto.
I. Except as specifically provided herein, this Agreement does not in
any way affect any other agreements entered into among the parties
hereto and any actions taken or omitted by any party hereunder shall
not affect any rights or obligations of any other party hereunder.
J. The failure of either party to insist upon the performance of any
terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed as
a continuing or permanent waiver of any such terms, conditions, rights
or privileges, but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred.
K. (a) During the term of this Agreement, the Trust hereby grants to
BOSTON FINANCIAL a nonexclusive, worldwide and royalty-free right and
license to store, reproduce, display, perform, transmit and use the
Trust intellectual property and the Trust software in connection with
the Services, solely for the purposes necessary for BOSTON FINANCIAL to
fulfill its obligations pursuant to this Agreement (and not for the
benefit of any third party). BOSTON FINANCIAL acknowledges and agrees
that its use of the Trust intellectual property solely for the purposes
necessary for BOSTON FINANCIAL to fulfill its obligations pursuant to
this Agreement shall not create any right, title or interest in or to
such the Trust intellectual property. Except for the licenses expressly
granted hereunder by the Trust to BOSTON FINANCIAL, neither this
Agreement nor any disclosure made hereunder grants any license by the
Trust to BOSTON FINANCIAL of any Trust intellectual property.
(b) Except as may be otherwise expressly provided in this
Agreement, the Trust does not grant to BOSTON FINANCIAL any right or
license, express or implied, in or to the Trust intellectual property,
the Trust software or the Trust's operating environment. BOSTON
FINANCIAL agrees that the Trust and/or the Trust's licensors', as the
case may be, are the exclusive owners of, and hold and shall retain,
all right, title and interest in and to the Trust intellectual
property, the Trust software, and the trust's operating environment,
and BOSTON FINANCIAL shall have no ownership or use rights therein
except as set forth herein.
L. Without the consent of the Trust, BOSTON FINANCIAL shall not use the
Trust's trade name, trademark, service xxxx or logo in BOSTON
FINANCIAL's public sales, marketing, or publicity activities including,
but not limited to, press releases, interviews with representatives of
any written publication, television station or network, or radio
station or network.
M. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement, draft or agreement or
proposal with respect to the subject matter hereof, whether oral or
written, and this Agreement may not be modified except by written
instrument executed by both parties.
N. All notices to be given hereunder shall be deemed properly given if
delivered in person or if sent by U.S. mail, first class, postage
prepaid, or if sent by facsimile and thereafter confirmed by mail as
follows: If to BOSTON FINANCIAL:
BOSTON FINANCIAL DATA SERVICES, INC.
The Xxxxxxxxxx Building
000 X. 0xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Facsimile: (000) 000-0000
With a copy of non-operational notices to:
BOSTON FINANCIAL DATA SERVICES, INC.
0 Xxxxxxxx Xxxxx - 0xx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attn: Legal Department
Facsimile No.: 000 000-0000
If to the Trust:
JPMORGAN (Each of the entities listed on Exhibit A hereto)
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Fund Secretary
Facsimile No.: 000 000-0000
With a copy to:
JPMORGAN FUNDS
0000 Xxxxxxx Xxxxxxx, Xxxxx 0X
Xxxxxxxx, Xxxx 00000
Attention: Head of Shareholder Services
Facsimile No.: 000-000-0000
or to such other address as shall have been specified in writing by the
party to whom such notice is to be given.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officers, to be effective as of the day and
year first above written.
FUND (Each of the entities listed on Exhibit A hereto)
BY: ___________________________________
Title:-----------------------------------
as an Authorized Officer on behalf of each
of the Funds indicated on Appendix A
BOSTON FINANCIAL DATA SERVICES, INC.
By: --------------------------------------
Title:-----------------------------------
--------
1 For purposes of Schedule 8.C. and Section 8.D, "intentional malevolent
violations" shall mean those acts undertaken purposefully under circumstances in
which the person acting knows or has reason to believe that such act violates
such person's obligations under this Agreement and is likely to cause danger or
harm to the other party or its shareholders.
