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EXHIBIT(9)(d)
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this 1st day of June, 1997 between GALAXY
FUND II (the "Fund"), a Massachusetts business trust, and FIRST DATA INVESTOR
SERVICES GROUP, INC. ("FDISG"), a Massachusetts corporation.
WITNESSETH
WHEREAS, the Fund is authorized to issue Shares in separate classes and
series, with each such classes representing interests in a separate portfolio of
securities or other assets.
WHEREAS, the Fund initially intends to offer Shares in those Portfolios
identified in the attached Exhibit 1, which such Portfolios, together with all
other Portfolios subsequently established by the Fund, shall be subject to this
Agreement in accordance with Article 14;
WEEREAS, the Fund, on behalf of the Portfolios, desires to appoint
FDISG as its transfer agent, dividend disbursing agent and agent in connection
with certain other activities and FDISG desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and FDISG agree as follows:
Article 1 Definitions.
1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended
from time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not such
person is an officer or employee of the Fund, duly authorized to give
Oral Instructions or Written Instructions on behalf of the Fund as
indicated in writing to FDISG from time to time.
(c) "Board of Directors" shall mean the Board of Directors or
Board of Trustees of the Fund, as the case may be.
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(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time
deposit, or cause to be deposited or held under its name or account,
with such a custodian or subcustodian pursuant to a Custodian or
Subcustodian Agreement.
(f) "1933 Act" shall mean the Securities Act of 1933 and the
rules and regulations promulgated thereunder, all as amended from time
to time.
(g) "1934 Act" shall mean the Securities Exchange Act of 1934
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(h) "1940 Act" shall mean the Investment Company Act of 1940
and the rules and regulations promulgated thereunder, all as amended
from time to time.
(i) "Oral Instructions" shall mean instructions, other than
Written Instructions, actually received by FDISG from an Authorized
Person or from a person reasonably believed by FDISG to be an
Authorized Person.
(j) "Portfolio" shall mean each separate class of shares
offered by the Fund representing interests in a separate portfolio of
securities and other assets.
(k) "Prospectus" shall mean the most recently dated Fund
Prospectuses and Statements of Additional Information, including any
supplements thereto if any, which have become effective under the 1933
Act and the 1940 Act.
(l) "Shares" refers collectively to such shares of capital
stock or beneficial interest, as the case may be, or class or series
thereof, of each respective Portfolio of the Fund as may be issued from
time to time.
(m) "Shareholder" shall mean a record owner of at least one
Share or any fraction thereof of each respective Portfolio of the Fund.
(n) "Written Instructions" shall mean a written communication
signed by an Authorized Person or by a person reasonably believed by
FDISG to be an Authorized Person and actually received by FDISG.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a
manually executed original or other process.
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Article 2 Appointment of FDISG.
The Fund, on behalf of the Portfolios, hereby appoints and constitutes
FDISG as transfer agent and dividend disbursing agent for Shares of each
respective Portfolio of the Fund and as shareholder servicing agent for the Fund
for the period and on the terms set forth in this Agreement. The Fund may from
time to time issue separate classes or series of Shares or classify or
reclassify Shares of each class or series. FDISG shall identify to each such
class or series property belonging to such class or series and in such reports,
confirmations and notices to the Fund called for under this Agreement shall
identify the class or series to which such report, confirmation or notice
pertains. FDISG accepts such appointment and agrees to furnish the services
herein set forth and in accordance with the written procedures which may be
agreed to in writing from time to time by the Fund and FDISG, in return for the
compensation as provided in Section 6 of this Agreement, subject, however, to
the performance standards set forth in Appendix I to this Agreement.
Article 3 Duties of FDISG.
3.1 FDISG shall be responsible for:
(a) Administering and/or performing the customary services of
a transfer agent; acting as service agent in connection with dividend
and distribution functions; and performing shareholder account and
administrative agent functions in connection with the issuance,
transfer and redemption or repurchase (including coordination with the
Custodian) of Shares of each Portfolio, as more fully described in the
written schedule of Duties of FDISG annexed hereto as Schedule A and
incorporated herein, and in accordance with the terms of the Prospectus
of the Fund on behalf of the applicable Portfolio, applicable law and
the procedures agreed to in writing from time to time by FDISG and the
Fund.
(b) Recording the issuance of Shares and maintaining pursuant
to Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Portfolio which are authorized, based upon data provided
to it by the Fund, and issued and outstanding. FDISG shall provide the
Fund on a regular basis with the total number of Shares of each
Portfolio which are authorized and issued and outstanding and shall
have no obligation, when recording the issuance of Shares, to monitor
the issuance of such Shares or to take cognizance of any laws relating
to the issue or sale of such Shares, which functions shall be the sole
responsibility of the Fund.
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(c) In addition to providing the foregoing services, the Fund
hereby engages FDISG to provide the print/mail services as set forth in
Schedule B annexed hereto and incorporated herein, for the fees also
identified in Schedule B. FDISG agrees to perform such print/mail
services subject to the terms and conditions of this Agreement.
(d) Notwithstanding any of the foregoing provisions of this
Agreement, FDISG shall be under no duty or obligation to inquire into,
and shall not be liable for: (i) the legality of the issuance or sale
of any Shares or the sufficiency of the amount to be received therefor;
(ii) the legality of the redemption of any Shares, or the propriety of
the amount to be paid therefor; (iii) the legality of the declaration
of any dividend by the Board of Directors, or the legality of the
issuance of any Shares in payment of any dividend; or (iv) the legality
of any recapitalization or readjustment of the Shares.
3.2 In addition, the Fund shall (i) identify to FDISG in writing those
transactions and assets to be treated as exempt from blue sky reporting for each
State and (ii) verify the establishment of transactions for each State on the
system prior to activation and thereafter monitor the daily activity for each
State. The responsibility of FDISG for the Fund's blue sky State registration
status is solely limited to the initial establishment of transactions subject to
blue sky compliance by the Fund and the reporting of such transactions to the
Fund as provided above.
3.3 In addition to the duties set forth herein, FDISG shall perform
such other duties and functions, and shall be paid such amounts therefor, as may
from time to time be agreed upon in writing by the Fund and FDISG.
Article 4 Recordkeeping and Other Information.
4.1 FDISG shall create and maintain all records required of it pursuant
to its duties hereunder and as set forth in Schedule A in accordance with all
applicable laws, rules and regulations, including records required by Section
31(a) of the 1940 Act. Where applicable, such records shall be maintained by
FDISG for the periods and in the places required by Rule 31a-2 under the 1940
Act.
4.2 To the extent required by Section 31 of the 1940 Act, FDISG agrees
that all such records prepared or maintained by FDISG relating to the services
to be performed by FDISG hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such Section and
other applicable securities laws and rules and regulations. The Fund,
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or the Fund's authorized representatives, shall have access to such records at
all times during FDISG's normal business hours and such records will be
surrendered promptly to the Fund on and in accordance with the Fund's request.
Upon the reasonable request of the Fund, copies of any such records shall be
provided by FDISG to the Fund or the Fund's authorized representative at the
Fund's expense.
4.3 In case of any requests or demands for the inspection of
Shareholder records of the Fund, FDISG will endeavor to notify the Fund of such
request and secure Written Instructions as to the handling of such request.
FDISG reserves the right, however, to exhibit the Shareholder records to any
person whenever it is advised by its counsel that it may be held liable for the
failure to comply with such request.
Article 5 Fund Instructions.
5.1 Subject to FDISG meeting the standard of care set forth in Article
11, FDISG will have no liability when acting upon Written or Oral Instructions
reasonably believed to have been executed or orally communicated by an
Authorized Person and will not be held to have any notice of any change of
authority of any person until receipt of a Written Instruction thereof from the
Fund. FDISG will also have no liability when processing Share certificates which
it reasonably believes to bear the proper manual or facsimile signatures of the
officers of the Fund and the proper countersignature of FDISG.
5.2 At any time, FDISG may request Written Instructions from the Fund
and may seek advice from legal counsel for the Fund, or its own legal counsel,
at its own expense, with respect to any matter arising in connection with this
Agreement, and subject to FDISG meeting the standard of care set forth in
Article 11, it shall not be liable for any action taken or not taken by it in
good faith in accordance with such Written Instructions or in accordance with
the advice of counsel for the Fund or for FDISG. Written Instructions requested
by FDISG pursuant to this Section 5.2 will be provided by the Fund within a
reasonable period of time.
5.3 Unless otherwise provided in this Agreement, FDISG, its officers,
agents or employees, shall act only upon Oral Instructions or Written
Instructions and shall be entitled to rely upon only Oral Instructions and any
Written Instructions actually received by them pursuant to this Agreement,
provided that such Oral Instructions and Written Instructions reasonably appear
to have been given by an Authorized Person. The Fund agrees that all Oral
Instructions shall be followed within one business day by confirming Written
Instructions, and that the Fund's failure to so confirm shall not impair in any
respect FDISGs right to rely on Oral Instructions.
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Article 6 Compensation.
6.1 The Fund on behalf of each of the Portfolios will compensate FDISG
for the performance of its obligations hereunder in accordance with the fees set
forth in the written Fee Schedule annexed hereto as Schedule B and incorporated
herein, subject, however, to the performance standards set forth in Appendix I
to this Agreement.
6.2 In addition to those fees set forth in Section 6.1 above, the Fund
on behalf of each of the Portfolios agrees to pay, and will be billed separately
for, out-of-pocket expenses incurred by FDISG in the performance of its duties
hereunder. Out-of-pocket expenses shall include, but shall not be limited to,
the items specified in the written schedule of out-of-pocket charges annexed
hereto as Schedule C and incorporated herein. Unspecified out-of-pocket expenses
shall be limited to those out-of-pocket expenses reasonably incurred by FDISG in
the performance of its obligations hereunder. In the event that the cost of
unspecified out-of-pocket expenses exceed one thousand dollars ($1,000) FDISG
will receive prior written approval from the Fund before incurring such
expenses.
6.3 The Fund on behalf of each of the Portfolios agrees to pay all fees
and out-of-pocket expenses within thirty (30) days following the receipt of the
respective invoice.
6.4 Any compensation payable to FDISG hereunder pursuant to Schedules B
and C hereof may be adjusted from time to time by attaching hereto a revised
Schedule B or C, as the case may be, executed and dated by the parties hereto.
6.5 The Fund acknowledges that the fees that FDISG charges the Fund
under this Agreement reflect the allocation of risk between the parties,
including the disclaimer of warranties in Section 9.3 and the limitations on
liability in Article 12. Modifying the allocation of risk from what is stated
here would affect the fees that FDISG charges, and in consideration of those
fees, the Fund agrees to the stated allocation of risk.
Article 7 Documents.
In connection with the appointment of FDISG, the Fund shall, on or
before the date this Agreement goes into effect, but in any case within a
reasonable period of time for FDISG to prepare to perform its duties hereunder,
deliver or cause to be delivered to FDISG the documents set forth in the written
schedule of Fund Documents annexed hereto as Schedule D.
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Article 8 Transfer Agent System.
8.1 FDISG shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by FDISG in connection with the services
provided by FDISG to the Fund herein (the "FDISG System").
8.2 FDISG hereby grants to the Fund a limited license to the FDISG
System for the sole and limited purpose of having FDISG provide the services
contemplated hereunder and nothing contained in this Agreement shall be
construed or interpreted otherwise and such license shall immediately terminate
with the termination of this Agreement.
8.3 In the event that the Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the FDISG System for either account inquiry or to transit transaction
information, including but not limited to maintenance, exchanges, purchases and
redemptions, such direct access capability shall be limited to direct entry to
the FDISG System by means of on-line mainframe terminal entry or PC emulation of
such mainframe terminal entry and any other non-conforming method of
transmission of information to the FDISG System is strictly prohibited without
the prior written consent of FDISG.
Article 9 Representations and Warranties.
9.1 FDISG represents and warrants to the Fund that:
(a) it is a corporation duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory
agency as a transfer agent and such registration will remain in effect
for the duration of this Agreement; and
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(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
9.2 The Fund represents and warrants to FDISG that:
(a) it is duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize
it to enter into this Agreement;
(d) a registration statement under the 1933 Act, as amended,
and the 1940 Act on behalf of each of the Portfolios is currently
effective and will remain effective, and all appropriate state
securities law filings have been made and will continue to be made,
with respect to all Shares of the Fund being offered for sale; and
(e) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with
the terms of the Fund's Articles of Incorporation and its Prospectus
with respect to each Portfolio, such Shares shall be validly issued,
fully paid and non-assessable.
9.3 THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, FDISG DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON.
Article 10 Indemnification.
10.1 FDISG shall not be responsible for and the Fund on behalf of each
Portfolio shall indemnify and hold FDISG harmless from and against any and all
claims, costs, expenses (including reasonable attorneys' fees), losses, damages,
charges, payments and liabilities of any sort or kind which may be asserted
against FDISG or for which FDISG may be held to be liable (a "Claim") arising
out of or attributable to any of the following unless such Claim resulted from a
negligent act or omission to act or bad faith by FDISG in the performance of its
duties hereunder:
(a) any actions of FDISG required to be taken pursuant to this
Agreement;
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(b) FDISG's reasonable reliance on, or reasonable use of
information, data, records and documents (including but not limited to
magnetic tapes, computer printouts, hard copies and microfilm copies)
received by FDISG from the Fund, or any authorized third party acting
on behalf of the Fund, including but not limited to the prior transfer
agent for the Fund, in the performance of FDISG's duties and
obligations hereunder;
(c) the reliance on, or the implementation of, any Written or
Oral Instructions or any other instructions or requests of the Fund on
behalf of the applicable Portfolio;
(d) the offer or sales of Shares in violation of any
requirement under the securities laws or regulations of any state that
such Shares be registered in such state or in violation of any stop
order or other determination or ruling by any state with respect to the
offer or sale of such Shares in such state; and
(e) the Fund's refusal or failure to comply with the terms of
this Agreement, or any Claim which arises out of the Fund's negligence
or misconduct or the breach of any representation or warranty of the
Fund made herein.
10.2 In any case in which the Fund may be asked to indemnify or hold
FDISG harmless, FDISG will notify the Fund promptly after identifying any
situation which it believes presents or appears likely to present a claim for
indemnification ("Indemnification Claim") against the Fund although the failure
to do so shall not prevent recovery by FDISG and shall keep the Fund advised
with respect to all developments concerning such Indemnification Claim. The Fund
shall have the option to defend FDISG against any Indemnification Claim which
may be the subject of this indemnification, and, in the event that the Fund so
elects, such defense shall be conducted by counsel chosen by the Fund and
satisfactory to FDISG, and thereupon the Fund shall take over complete defense
of the Indemnification Claim and FDISG shall sustain no further legal or other
expenses in respect of such Indemnification Claim. FDISG will not confess any
Indemnification Claim or make any compromise in any case in which the Fund will
be asked to provide indemnification, except with the Fund's prior written
consent. Subject to Section 10.3 hereof, the obligations of the parties hereto
under this Article 10 shall survive the termination of this Agreement.
10.3 Any Indemnification Claim under this Agreement must be made prior
to the earlier of:
(a) one year after FDISG becomes aware of the event for which
indemnification is claimed; or
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(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
10.4 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
FDISG's sole and exclusive remedy for claims or other actions or proceedings to
which the Fund's indemnification obligations pursuant to this Article 10 may
apply.
Article 11 Standard of Care.
11.1 In the performance of its duties hereunder, FDISG shall be
obligated to exercise care and diligence and to act in good faith and to use its
best efforts within commercially reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no responsibility for loss
or damage to the Fund unless said loss or damages are caused by FDISGs own
negligence, bad faith or willful misconduct or that of its employees, agents or
representatives.
11.2 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
Article 12 Consequential Damages.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR CONSEQUENTIAL DAMAGES.
Article 13 Term and Termination.
13.1 This Agreement shall be effective on the date first written above
and shall continue for a period of one (1) year (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
continue automatically for successive terms of one (1) year ("Renewal Terms")
each, unless the Fund or FDISG provides written notice to the other of its
intent not to renew. Such notice must be received not less than sixty (60) days
prior to the expiration of the Initial Term or the then current Renewal Term.
13.3 The Fund may terminate this Agreement in the event that the
negligent action or negligent omission to act on the part of FDISG causes
damages to the Fund in excess of one hundred thousand dollars ($100,000).
"Damages to the Fund" are defined as damages caused by a single event, or
cumulative series of events related to the same matter, which generates a
monetary loss. The Fund's right to terminate under this Section 13.3
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shall remain effective in the event FDISG has made the Fund whole with respect
to the damages caused. Unless the Fund provides FDISG with written notice of the
Fund's intent to exercise its option under this Section 13.3 within 30 days
after the Fund becomes aware of the occurrence, the Fund shall have waived its
option to terminate under this provision.
13.4 If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party"), the other party (the
"Non-Defaulting Party") may give written notice thereof to the Defaulting Party,
and if such material breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting Party may terminate
this Agreement by giving thirty (30) days written notice of such termination to
the Defaulting Party. If FDISG is the Non-Defaulting Party, its termination of
this Agreement shall not constitute a waiver of any other rights or remedies of
FDISG with respect to services performed prior to such termination or rights of
FDISG to be reimbursed for out-of-pocket expenses. In all cases, termination by
the Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting
Party of any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
13.5 The Fund shall have the right to terminate this Agreement at any
time if the Fund reorganizes into another entity, liquidates or otherwise ceases
to exist. In the event the Fund terminates the Agreement pursuant to this
Section 13.5, the Fund shall reimburse FDISG for all reasonable costs associated
with such termination.
13.6 In the event that FDISG fails to be registered as a transfer agent
with the appropriate federal agency at any time during the term of this
Agreement, the Fund may, upon written notice to FDISG, immediately terminate
this Agreement.
13.7 In the event this Agreement is terminated by the Fund pursuant to
Sections 3.3, 3.4 or 3.6 hereof or pursuant to paragraph (d) of the Performance
Standards set forth in Appendix I hereto, all reasonable expenses associated
with movement of records and materials and conversion thereof to a successor
transfer agent will be borne by the FDISG and the Fund shall not be responsible
for FDISG's costs associated with such termination. In the event of termination
of this Agreement pursuant to any other Sections of this Agreement, all
reasonable expenses associated with conversion will be borne by the Fund.
Article 14 Additional Portfolios
14.1 In the event that the Fund establishes one or more Portfolios in
addition to those identified in Exhibit 1 with respect to which the Fund desires
to have FDISG render services
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as transfer agent under the terms hereof, the Fund shall so notify FDISG in
writing, and if FDISG agrees in writing to provide such services, Exhibit 1
shall be amended to include such additional Portfolios.
Article 15 Confidentiality.
15.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The Fund
and FDISG shall exercise at least the same degree of care, but not less than
reasonable care, to safeguard the confidentiality of the Confidential
Information of the other as it would exercise to protect its own Confidential
Information. The Fund and FDISG may use the Confidential Information only to
exercise their respective rights or perform their respective duties under this
Agreement. Except as required by law and except as disclosed in the Fund's
registration statement or filed as an exhibit thereto, the Fund and FDISG shall
not duplicate, sell or disclose to others the Confidential Information of the
other, in whole or in part, without the prior written permission of the other
party. The Fund and FDISG may, however, disclose Confidential Information to
their employees who have a need to know the Confidential Information to perform
work for the other, provided that the Fund and FDISG shall use reasonable
efforts to ensure that the Confidential Information is not duplicated or
disclosed by its employees in breach of this Agreement. The Fund and FDISG may
also disclose the Confidential Information to independent contractors, auditors,
and professional advisors, provided they first agree in writing to be bound by
confidentiality obligations substantially similar to this Section 15.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
FDISG disclose the Confidential Information to any competitor of the other
without specific, prior written consent.
15.2 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationships, customer profiles, sales
estimates, business plans, and internal performance results relating to
the past, present or future business activities of the Fund or FDISG,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its
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confidentiality affords the Fund or FDISG a competitive
advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
15.3 Confidential Information includes, without limitation, all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
Article 16 Force Majeure.
16.1 No party shall be liable for any default or delay in the
performance of its obligations under this Agreement if and to the extent such
default or delay is caused, directly or indirectly, by circumstances beyond such
party's reasonable control. In any such event, the non-performing party shall be
excused from any further performance and observance of the obligations so
affected only for as long as such circumstances prevail and such party continues
to use commercially reasonable efforts to recommence performance or observance
as soon as practicable.
16.2 Notwithstanding Section 16.1, in the event of equipment failures
beyond FDISG's control, FDISG shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions but shall have no liability
with respect thereto. FDISG shall enter into and maintain in effect with
appropriate parties one or more agreements making reasonable provision for
emergency use of electronic data processing equipment to the extent appropriate
equipment is available.
Article 17 Assignment and Subcontracting.
This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that FDISG
may, in its sole discretion, assign all its right, title and interest in this
Agreement to an affiliate, parent or subsidiary, provided that, in the
reasonable judgment of the Board of Trustees of the Fund acting in its sole
discretion: (i) the financial capacity of such assignee is not materially less
than that of FDISG; (ii) the nature and quality
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of the services to be provided hereunder, including the Performance Standards
set forth in Appendix I, are not materially adversely affected by such
assignment; and (iii) the quality and capability of the personnel and facilities
of the assignee are not materially less than those of FDISG. FDISG may, in its
sole discretion, engage subcontractors to perform any non-material or
non-substantive obligations contained in this Agreement that it is otherwise
required to perform hereunder, provided that FDISG shall be responsible for all
compensation payable to such subcontractors and shall remain responsible for the
acts and omissions of such subcontractors to the extent that it is hereunder.
Article 18 Notice.
Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Fund or FDISG, shall be sufficiently given if
addressed to that party and received by it at its office set forth below or at
such other place as it may from time to time designate in writing.
To the Fund:
Xxxx X. X'Xxxxx, President
Galaxy Fund II
c/o HASBRO, Inc.
000 Xxxxxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxx 00000
with a copy to:
W. Xxxxx XxXxxxxx, III
Drinker Xxxxxx & Xxxxx LLP
Philadelphia National Bank Building
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to FDISG's General Counsel
Article 19 Governing Law/Venue.
The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this Agreement. All actions arising from or related to this Agreement shall be
brought in the state
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and federal courts sitting in the City of Boston, and FDISG and the Fund hereby
submit themselves to the exclusive jurisdiction of those courts.
Article 20 Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 21 Captions.
The captions of this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
Article 22 Publicity.
Neither FDISG nor the Fund shall release or publish news releases,
public announcements, advertising or other publicity relating to this Agreement
or to the transactions contemplated by it without the prior review and written
approval of the other party; provided, however, that either party may make such
disclosures as are required by legal, accounting or regulatory requirements
after making reasonable efforts in the circumstances to consult in advance with
the other party.
Article 23 Relationship of Parties.
The parties agree that they are independent contractors and not
partners or co-venturers and nothing contained herein shall be interpreted or
construed otherwise.
Article 24 Cooperation with Accountants
FDISG shall cooperate with the Fund's independent certified public
accountants and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion as such
may be required from time to time by the Fund.
Article 26 Entire Agreement; Severability.
26.1 This Agreement, including the Schedules, Addenda, and Exhibits
hereto, constitutes the entire Agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
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16
No change, termination, modification, or waiver of any term or condition of the
Agreement shall be valid unless in writing signed by each party. No such writing
shall be effective as against the Fund unless said writing is executed by the
President of the Fund. No such writing shall be effective as against FDISG
unless said writing is executed by a Senior Vice President, Executive Vice
President, or President of FDISG. A party's waiver of a breach of any term or
condition in the Agreement shall not be deemed a waiver of any subsequent breach
of the same or another term or condition.
26.2 The parties intend every provision of this Agreement to be
severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
26.3 The names "Galaxy Fund II" and "Trustees of Galaxy Fund II" refer
respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated February 22, 1990 which is hereby referred to and a copy of which is
on file at the office of the State Secretary of the Commonwealth of
Massachusetts and at the principal office of the Fund. The obligations of
"Galaxy Fund II" entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, Shareholders, or
representatives of the Fund personally, but bind only the Trust Property, and
all persons dealing with any class of Shares of the
-16-
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Fund must look solely to the Trust Property belonging to such class for the
enforcement of any claims against the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
GALAXY FUND II
By:________________________________
Title:_____________________________
FIRST DATA INVESTOR SERVICES GROUP,
INC.
By:________________________________
Title:_____________________________
-17-
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Exhibit 1
LIST OF PORTFOLIOS
Large Company Index Fund
Small Company Index Fund
U.S. Treasury Index Fund
Utility Index Fund
Municipal Bond Fund
-18-
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Schedule A
DUTIES OF FDISG
1. Shareholder Information. (a) FDISG shall maintain a record of the
number of Shares held by each Shareholder of record which shall include name,
address, taxpayer identification numbers and which shall indicate whether such
Shares are held in certificated or uncertificated form and shall include
historical information regarding the account of each Shareholder, including
dividends and distributions paid and the date and price for all transactions in
a Shareholder's account; any stop or restraining order placed against a
Shareholder's account; information with respect to withholdings; any information
required for FDISG to perform any calculations contemplated or required by the
Agreement to which this is a Schedule (the "Agreement"); FDISG shall keep a
record of all redemption checks and dividend checks returned by the postal
authorities, and shall maintain such records as are required by law.
(b) FDISG shall keep subaccounts for each Shareholder requesting
such service in connection with Shares held by such Shareholder for separate
accounts, containing the same information for each subaccount as required by
subparagraph (a) above.
2. Shareholder Services. FDISG shall respond as appropriate to all
inquiries and communications from Shareholders, securities brokers and others
relating to Shareholder accounts with respect to its duties hereunder and such
other information and communications as may be from time to time mutually agreed
upon in writing by FDISG and the Fund.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply FDISG with an
adequate supply of blank share certificates to meet FDISG requirements therefor.
Such Share certificates shall be properly signed by facsimile. The Fund agrees
that, notwithstanding the death, resignation, or removal of any officer of the
Fund whose signature appears on such certificates, FDISG or its agent may
continue to countersign certificates which bear such signatures until otherwise
directed by Written Instructions.
(b) FDISG shall issue replacement Share certificates in lieu of
certificates which have been lost, stolen or destroyed, upon receipt by FDISG of
properly executed affidavits and lost certificate bonds, in form satisfactory to
FDISG, with the Fund and FDISG named as obligees under the bond.
(c) FDISG shall also maintain a record of each certificate issued,
the number of Shares represented thereby and
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the Shareholder of record. With respect to Shares held in open accounts or
uncertificated form (i.e., no certificate being issued with respect thereto),
FDISG shall maintain comparable records of the Shareholders thereof, including
their names, addresses and taxpayer identification numbers. FDISG shall further
maintain a stop transfer record on lost and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials. FDISG will
address and mail all communications by then Fund to Shareholders or their
authorized representatives, including reports to Shareholders, dividend and
distribution notices and proxy material for the Fund's meetings of Shareholders.
In connection with meetings of Shareholders, FDISG will prepare Shareholder
lists, mail and certify as to the mailing of proxy materials, process and
tabulate returned proxy cards, report on proxies voted prior to meetings, act as
inspector of election at meetings and certify Shares voted at meetings.
5. Sales of Shares.
(a) FDISG shall not be required to issue any Shares of the Fund
where it has received Written Instructions from the Fund or official notice from
any appropriate authority that the sale of the Shares of the Fund has been
suspended or discontinued. The existence of such Written Instructions or such
official notice shall be conclusive evidence of the right of FDISG to rely on
such Written Instructions or official notice.
(b) In the event that any check or other order for the payment of
money is returned unpaid for any reason, FDISG will endeavor to: (i) give prompt
notice of such return to the Fund or its designee; (ii) place a stop transfer
order against all Shares issued as a result of such check or order; and (iii)
take such actions as FDISG may from time to time deem appropriate.
6. Transfer and Repurchase.
(a) FDISG shall process all requests to transfer or redeem Shares in
accordance with the transfer or repurchase procedures set forth in the Fund's
Prospectus.
(b) FDISG will transfer or repurchase Shares upon receipt of Oral or
Written Instructions or otherwise pursuant to the Prospectus and Share
certificates, if any, properly endorsed for transfer or redemption, accompanied
by such documents as FDISG reasonably may deem necessary.
(c) FDISG reserves the right to refuse to transfer or repurchase
Shares until it is satisfied that the endorsement on the instructions is valid
and genuine. FDISG also reserves the
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right to refuse to transfer or repurchase Shares until it is satisfied that the
requested transfer or repurchase is legally authorized, and it shall incur no
liability for the refusal, in good faith, to make transfers or repurchases which
FDISG, in its good judgment, deems improper or unauthorized, or until it is
reasonably satisfied that there is no basis to any claims adverse to such
transfer or repurchase.
(d) When Shares are redeemed, FDISG shall, upon receipt of the
instructions and documents in proper form, deliver to the Custodian and the Fund
or its designee a notification setting forth the number of Shares to be
repurchased. Such repurchased shares shall be reflected on appropriate accounts
maintained by FDISG reflecting outstanding Shares of the Fund and Shares
attributed to individual accounts.
(e) FDISG, upon receipt of the monies provided to it by the
Custodian for the repurchase of Shares, shall disburse the redemption proceeds
to the person entitled to such proceeds, all in accordance with the procedures
and controls as are mutually agreed to in writing from time to time by the Fund,
FDISG and the Custodian.
(f) FDISG shall not process or effect any repurchase with respect to
Shares of the Fund after receipt by FDISG or its agent of notification of the
suspension of the determination of the net asset value of the Fund.
7. Dividends
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to Shares of the
Fund, the Fund shall furnish or cause to be furnished to FDISG Written
Instructions setting forth the date of the declaration of such dividend or
distribution, the ex-dividend date, the date of payment thereof, the record date
as of which Shareholders entitled to payment shall be determined, the amount
payable per Share to the Shareholders of record as of that date, the total
amount payable on the payment date and whether such dividend or distribution is
to be paid in Shares at net asset value.
(b) On or before the payment date specified in such resolution of
the Board of Directors, the Fund will provide FDISG with sufficient cash to make
payment on the payment date to the Shareholders as of the record date.
(c) If FDISG does not receive sufficient cash from the Fund to make
total dividend and/or distribution payments on the date of payment to all
Shareholders of the Fund as of the record date, FDISG will notify the Fund. The
Fund hereby instructs FDISG to process dividend and/or distribution payments to
all
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Shareholders as of the record date regardless of whether sufficient cash is
available on the payment date. Subject to FDISG meeting the standard of care set
forth in Article 11 hereof, the Fund shall be responsible for and shall
indemnify and hold FDISG harmless from all claims asserted by others with
respect to the actions of FDISG in complying with the foregoing sentence.
(d) FDISG shall prepare and file with the Internal Revenue Service
and/or other appropriate taxing authorities, and address and mail to
Shareholders or their authorized representatives, such returns and information
relating to dividends and distributions paid by the Fund as are required to be
so prepared, filed and mailed by applicable laws, rules and regulations, or such
substitute form of notice as may from time to time be permitted or required by
the Internal Revenue Service and/or other appropriate taxing authorities. On
behalf of the Fund, FDISG shall pay on a timely basis to the appropriate federal
authorities any taxes required by applicable federal tax laws to be withheld by
the Fund on dividends and distributions paid by the Fund.
8. Ongoing Functions. FDISG will perform the following functions on an
ongoing basis for each class or series of Shares of the Fund:
(a) furnish state-by-state registration reports to the Fund;
(b) calculate dealer commissions for the Fund, as applicable, if
any;
(c) provide toll-free lines for direct Shareholder use, plus
customer liaison staff with on-line inquiry capacity;
(d) mail duplicate confirmations to dealers of their clients'
activity, whether executed through the dealer or directly with FDISG, if any;
(e) provide detail for underwriter or broker confirmations and other
participating dealer Shareholder accounting, in accordance with such procedures
as may be agreed upon from time to time by the Fund and FDISG;
(f) provide Shareholder lists and statistical information concerning
accounts to the Funds; and
(g) provide timely notification of Fund activity, and such other
information as may be agreed upon from time to time by FDISG and the Custodian,
to the Fund or the Custodian.
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9. In addition to and neither in lieu nor in contravention of the
services set forth above, FDISG shall: (i) perform all the customary services of
a transfer agent, registrar, dividend disbursing agent and agent of the dividend
reinvestment and cash purchase plan as described herein consistent with those
requirements in effect as at the date of this Agreement. The detailed
definition, frequency, limitations and associated costs (if any) set out in the
attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
tabulating proxies, mailing Shareholder reports to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts where
applicable, preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders.
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Schedule B
FEE SCHEDULE
For the services to be rendered, the facilities to be furnished and the
payments to be made by FDISG, as provided for in this Agreement, the Fund, on
behalf of each Portfolio, will pay FDISG on the first business day of each month
a fee for the previous month at the rates listed below. Upon any termination of
this Agreement before the end of any month, the fee for such part of a month
shall be prorated according to the proportion which such period bears to the
full monthly period and shall be payable upon the date of termination of this
Agreement.
Shareholder Services
ANNUAL FUND MINIMUM
Fees are based on annual per shareholder account charge for account maintenance
and fees for certain shareholder generated transactions plus all out-of-pocket
expenses. There is a minimum annual fee per Portfolio of $5,000 per year.
ANNUAL MAINTENANCE FEE
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. A
charge is made for an account in the month that an account opens or closes. The
Annual Maintenance Charge is $14.00 per account.
NEW ACCOUNT SET-UP CHARGE
$5.00 per account
PRODUCTION AND MASS MAIL
The per piece fees for production and mass mail exclude postage which will be
invoiced as an out-of-pocket expense at cost.
DAILY, MONTHLY AND DIVIDEND STATEMENTS
Printing, folding, inserting, metering and mailing (includes return envelope
inserting) $ .075/ea
Additional Inserts
1st .002/ea
2nd .005/ea
3rd .010/ea
4th .010/ea
5th .010/ea
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FIDUCIARY FEE STATEMENTS
Printing, inserting, metering, mailing and
return envelope inserting $ .11/ea
W-8 STATEMENTS
Printing, folding, inserting, metering, mailing,
mailer or return envelope inserting $ .155/ea
W-8 STATEMENTS (BULK)
Printing, folding, inserting, metering, mailing,
mailer or return envelope inserting $1.305/ea
Credit for return handling and processing $ .70/ea
Additional inserts
1st .002/ea
2nd .005/ea
3rd .010/ea
4th .010/ea
5th .010/ea
W-9 STATEMENTS
Printing, folding, inserting, metering, mailing
and mailer or return envelope inserting $ .155/ea
W-9 SOLICITATIONS (BULK)
Solicitation printing, folding, inserting, metering,
mailing and mailer or return envelope inserting $ .905/ea
Credit for return handling and processing $ .50/ea
Additional inserts
1st .002/ea
2nd .005/ea
3rd .010/ea
4th .010/ea
5th .010/ea
LASER CHECKS
Printing, folding, inserting, metering and mailing
(includes return envelope inserting) $ .085/ea
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Additional inserts
1st .002/ea
2nd .005/ea
3rd .010/ea
4th .010/ea
5th .010/ea
PROXIES
Proxy Base Stock .0238/ea
Printing plate charge 25.00/side
Copy setting fees 50.00/ea
Proxy printing
1 to 9,999 .15/ea
10,000 to 49,999 .05/ea
50,000 plus .025/ea
Inserting, bursting, metering and mailing
over 3,501 pieces .0105/ea
2,501 to 3,500 .12/ea
1,501 to 2,500 .15/ea
1 to 1,500 .17/ea
Additional inserts
1st .002/ea
2nd .005/ea
3rd .010/ea
4th .010/ea
5th .010/ea
Manual processing/counting $13.00/hr
NEW ACCOUNT LETTERS
Printing, folding, inserting, metering .070/pg
Additional inserts
1st .002/ea
2nd .005/ea
3rd .010/ea
4th .010/ea
5th .010/ea
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Schedule C
OUT-OF-POCKET EXPENSES
The Fund shall reimburse FDISG monthly for applicable out-of-pocket
expenses, including, but not limited to the following items:
- Microfiche/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes,
checks and stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class)
direct pass through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including all
lease, maintenance and line costs
- Ad hoc reports
- Proxy solicitations, mailings and tabulations
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end forms and mailings
- Terminals, communication lines, printers and other
equipment and any expenses incurred in connection with
such terminals and lines
- Duplicating services
- Courier services
- Incoming and outgoing wire charges
- Federal Reserve charges for check clearance
- Overtime, as approved in advance by the Fund
- Temporary staff, as approved in advance by the Fund
- Travel and entertainment, as approved in advance by the
Fund
- Record retention as required by the Fund, retrieval and
destruction costs, including, but not limited to exit fees
charged by third party record keeping vendors
- Third party audit reviews
- Ad hoc SQL time
- Insurance
- Such other miscellaneous expenses reasonably incurred
by FDISG in performing its duties and responsibilities
under this Agreement.
The Fund agrees that postage and mailing expenses will be paid on the
day of or prior to mailing as agreed with FDISG. In addition, the Fund will
promptly reimburse FDISG for any other unscheduled expenses incurred by FDISG
whenever the Fund and FDISG mutually agree that such expenses are not otherwise
properly bome by FDISG as part of its duties and obligations under the
Agreement.
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Schedule D
FUND DOCUMENTS
- Certified copy of the Articles of Incorporation of the
Fund, as amended
- Certified copy of the By-laws of the Fund, as amended,
- Copy of the resolutions of the Board of Directors
authorizing the execution and delivery of this
Agreement
- Specimens of the certificates for Shares of the Fund, if
applicable, in the form approved by the Board of Directors of
the Fund, with a certificate of the Secretary of the Fund as
to such approval
- All account application forms and other documents
relating to Shareholder accounts or to any plan,
program or service offered by the Fund
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Appendix I
Pursuant to Section 2 of this Agreement, FDISG has agreed to perform
the services described in this Agreement in accordance with the Performance
Standards set forth in this Appendix I. The parties agree that such Performance
Standards, which are described below, may be revised from time to time upon the
mutual agreement of the parties.
Each of the performance standards will be monitored by a Quality
Assurance Team:
(a) In the event that FDISG fails to meet a particular Performance
Standard (except any failure due to circumstances beyond its control) in any
particular month, FDISG agrees to take appropriate corrective action within the
following thirty (30) day period.
(b) In the event that FDISG fails to meet a particular Performance
Standard (except for any failure due to circumstances beyond its control) in two
(2) consecutive months, the fee payable to FDISG hereunder for such service
shall be reduced by one percent (1%) for the second of those two months.
(c) In the event that FDISG fails to meet a particular Performance
Standard (except for any failure due to circumstances beyond its control) for
any three (3) consecutive months, the fee payable to FDISG hereunder for such
service shall be reduced by one and one-half percent (1.5%) for the third of
those three months.
(d) In the event that FDISG fails to meet a particular Performance
Standard (except for any failure due to circumstances beyond its control) for
any three (3) months within any six (6) month period, the Fund shall have the
right to terminate this Agreement upon forty-five (45) days' written notice to
FDISG.
(e) In the event that there is no specific fee for a particular service
set forth in Schedule A hereto, then any reduction in the fee payable to FDISG
as a result of a failure to meet a particular performance standard for that
service hereunder shall be taken as a reduction in the annual per account
maintenance fee.
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(f) The Performance Standards shall be as follows:
------------------------------------------------------------------------------------------
ITEM STANDARD
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
GENERAL PROCESSING
------------------------------------------------------------------------------------------
New Account Set-Up 100% processed same day
------------------------------------------------------------------------------------------
Financial Quality Control 100% processed same day
------------------------------------------------------------------------------------------
Non-Financial Correspondence 100% acknowledged by telephone
within 24 hours of receipt;
items less than 30 days old
resolved within 3 business
days; items older than 30 days
resolved within 5 business day
------------------------------------------------------------------------------------------
Maintenance Items 3 business days
------------------------------------------------------------------------------------------
Not In Good Order Items 100% called on same day
------------------------------------------------------------------------------------------
Research Received by Phone 100% called with
status report within
48 hours of receipt;
100% resolved within
3 business days
------------------------------------------------------------------------------------------
Research Received by Mail 100% acknowledged by
telephone within 24
hours of receipt;
100% resolved within
4 business days
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
PHONES
------------------------------------------------------------------------------------------
Abandonment Rate 3% or less
------------------------------------------------------------------------------------------
Average Speed of Answer 20 seconds or less
------------------------------------------------------------------------------------------
Service Level 90% of calls will be answered
in 20 seconds or less
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
FULFILLMENT within 24 hours
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
PRINT/MAIL
------------------------------------------------------------------------------------------
Monthly Statements 5 business days
------------------------------------------------------------------------------------------
Daily Confirmations T + 2
------------------------------------------------------------------------------------------
Checks T + 1
------------------------------------------------------------------------------------------
Ad hoc Projects 5 business days from receipt
of request
------------------------------------------------------------------------------------------
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