exhibit h(1)
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
CITICORP BANK & TRUST, FSB
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
-----------------
Page
1. Terms of Appointment and Duties................................. 1
2. Third Party Administrators for Defined Contribution Plans....... 4
3. Fees and Expenses............................................... 5
4. Representations and Warranties of the Sub-Transfer Agent........ 6
5. Representations and Warranties of the Transfer Agent............ 6
6. Wire Transfer Operating Guidelines.............................. 7
7. Data Access and Proprietary Information......................... 8
8. Indemnification ................................................ 10
9. Standard of Care ............................................... 11
10. Confidentiality ................................................ 11
11. Covenants of the Transfer Agent and the Sub-Transfer Agent..... 11
12. Termination of Agreement....................................... 12
13. Assignment and Third Party Beneficiaries....................... 12
14. Subcontractors................................................. 13
15. Miscellaneous.................................................. 14
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ____ day of _________________, _____, by and between
CITICORP TRUST BANK, FSB, a federal savings bank, having its principal office
and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Transfer Agent"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Sub-Transfer Agent").
WHEREAS, the Transfer Agent has been assigned 507814 as its six-digit FINS
number by the Depository Trust Company of New York, NY ("DTC");
WHEREAS, the Transfer Agent registered with the Federal Reserve Board, its
appropriate regulatory authority ("ARA") and has been assigned a seven digit
number (generally beginning with an "84" or an "85") ARA number of 084 -06027;
WHEREAS, the Transfer Agent has been appointed by each of the investment
companies (including each series thereof) listed on Schedule A (the "Fund(s)"),
each an open-end diversified management investment company registered under the
Investment Company Act of 1940, as amended, as transfer agent, dividend
disbursing agent and shareholder servicing agent in connection with certain
activities, and the Transfer Agent has accepted each such appointment;
WHEREAS, the Transfer Agent has entered into a Transfer Agency and Service
Agreement with each of the Funds (including each series thereof) listed on
Schedule A pursuant to which the Transfer Agent is responsible for certain
transfer agency and dividend disbursing functions and the Transfer Agent is
authorized to subcontract for the performance of its obligations and duties
thereunder in whole or in part with the Sub-Transfer Agent;
WHEREAS, the Transfer Agent is desirous of having the Sub-Transfer Agent
perform certain shareholder accounting, administrative and servicing function
(collectively "Shareholder and Record-Keeping Services"); and
WHEREAS, the Transfer Agent desires to appoint the Sub-Transfer Agent as its
agent, and the Sub-Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment; Duties
1.1 Sub-Transfer Agency Services. Subject to the terms and conditions set
forth in this Agreement, the Transfer Agent hereby employs and
appoints the Sub-Transfer Agent to act as, and the Sub-Transfer Agent
agrees to act as, the agent of the Transfer Agent for the shares of
the Funds in connection with any accumulation, open-account,
retirement plans or similar plan provided to the shareholders of each
Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information ("prospectus") of
each such Fund, including without limitation any periodic investment
plan or periodic withdrawal program. As used herein, the term "Shares"
means the authorized and issued shares of common stock, or shares of
beneficial interest, as the case may be, for each of the Funds
(including each series thereof) enumerated in Schedule A. In
accordance with procedures established from time to time by agreement
between the Transfer Agent and the Sub-Transfer Agent, the
Sub-Transfer Agent agrees that it will perform the following
Shareholder and Record-Keeping services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the
Custodian of the Fund authorized pursuant to the Articles of
Incorporation of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above,
the Sub-Transfer Agent shall execute transactions directly with
broker-dealers authorized by the Fund;
(e) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or cause to
be paid over in the appropriate manner such monies as instructed by
the redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund;
(h) Issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Sub-Transfer
Agent of indemnification satisfactory to the Sub-Transfer Agent and
protecting the Sub-Transfer Agent and the Fund, and the Sub-Transfer
Agent at its option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof and without
such indemnity;
(i) Maintain records of account for and advise the Transfer Agent and
its Shareholders as to the foregoing; and
(j) Record the issuance of Shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares of the Fund
which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. The Sub-Transfer Agent shall also provide the
Fund on a regular basis with the total number of Shares which are
authorized and issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of such
Shares or to take cognizance of any laws relating to the issue or sale
of such Shares, which functions shall be the sole responsibility of
the Fund.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the
Sub-Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent, custodian for certain
retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plan (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing Shareholder
proxies, Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions
by federal authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for all
purchases and redemptions of Shares and other confirmable transactions
in Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information;
(b) Control Book (also known as "Super Sheet"). Maintain a daily
record and produce a daily report for the Fund of all transactions and
receipts and disbursements of money and securities and deliver a copy
of such report for the Fund for each business day to the Fund no later
than 9:00 AM Eastern Time, or such earlier time as the Fund may
reasonably require, on the next business day;
(c) "Blue Sky" Reporting. The Fund or Transfer Agent shall (i)
identify to the Sub-Transfer Agent in writing those transactions and
assets to be treated as exempt from blue sky reporting for each State
and (ii) verify the establishment of transactions for each State on
the system prior to activation and thereafter monitor the daily
activity for each State. The responsibility of the Sub-Transfer Agent
for the Fund's blue sky State registration status is solely limited to
the initial establishment of transactions subject to blue sky
compliance by the Fund and providing a system which will enable the
Fund to monitor the total number of Shares sold in each State;
(d) National Securities Clearing Corporation (the "NSCC"). (i) accept
and effectuate the registration and maintenance of accounts through
Networking and the purchase, redemption, transfer and exchange of
shares in such accounts through Fund/SERV (Networking and Fund/SERV
being programs operated by the NSCC on behalf of NSCC's participants,
including the Fund), in accordance with, instructions transmitted to
and received by the Sub-Transfer Agent by transmission from NSCC on
behalf of broker-dealers and banks which have been established by, or
in accordance with the instructions of authorized persons, as
hereinafter defined on the dealer file maintained by the Sub-Transfer
Agent; (ii) issue instructions to Fund's banks for the settlement of
transactions between the Fund and NSCC (acting on behalf of its
broker-dealer and bank participants); (iii) provide account and
transaction information from the affected Fund's records on DST
Systems, Inc. computer system TA2000 ("TA2000 System") in accordance
with NSCC's Networking and Fund/SERV rules for those broker-dealers;
and (iv) maintain Shareholder accounts on TA2000 System through
Networking;
(e) New Procedures. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time to
time by agreement between the Transfer Agent and the Sub-Transfer. The
Sub-Transfer Agent may at times perform only a portion of these
services and the Transfer Agent, the Funds or their agent may perform
these services on the Fund's behalf; and
(f) Additional Telephone Support Services. If the parties elect to
have the Transfer Agent provide additional telephone support services
under this Agreement, the parties will agree to such services, fees
and sub-contracting as stated in Schedule 1.2(f) entitled "Telephone
Support Services" attached hereto.
1.3 Retirement Accounts. With respect to certain retirement plans or
accounts (such as individual retirement accounts ("IRAs"), SIMPLE
IRAs, SEP IRAs, Xxxx IRAs, 403(b) Plans (such accounts, "Retirement
Accounts") and Xxxxxxxxx Education Savings Accounts, the Sub-Transfer
Agent, at the request of the Transfer Agent, shall arrange for the
provision of appropriate prototype plans as well as provide or arrange
for the provision of various services to such plans and/or accounts,
which services may include custodial services to be provided by the
Sub-Transfer Agent, account set-up maintenance, and disbursements as
well as such other services as the parties hereto shall mutually agree
upon.
2. Third Party Administrators for Defined Contribution Plans
2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation ("Plan
or Plans") for the benefit of the individual Plan participant (the
"Plan Participant"), such Plan(s) being qualified under Section 401(a)
of the Internal Revenue Code of 1986, as amended ("Code") and
administered by third party administrators which may be plan
administrators as defined in the Employee Retirement Income Security
Act of 1974, as amended)(the "TPA(s)").
2.2 In accordance with the procedures established in the initial Schedule
2.1 entitled "Third Party Administrator Procedures", as may be amended
by the Sub-Transfer Agent and the Fund from time to time ("Schedule
2.1"), the Sub-Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name of
the Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as sub-transfer agent of the
Funds and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be
deemed exception services ("Exception Services") when such
transactions:
(a) Require the Sub-Transfer Agent to use methods and procedures other
than those usually employed by the Sub-Transfer Agent to perform
services under Section 1 of this Agreement;
(b) Involve the provision of information to the Sub-Transfer Agent
after the commencement of the nightly processing cycle of the TA2000
System; or
(c) Require more manual intervention by the Sub-Transfer Agent, either
in the entry of data or in the modification or amendment of reports
generated by the TA2000 System than is usually required by
non-retirement plan and pre-nightly transactions.
3. Fees and Expenses
3.1 Fee Schedule. For the performance by the Sub-Transfer Agent pursuant
to this Agreement, the Transfer Agent agrees to pay the Sub-Transfer
Agent an annual maintenance fee for each Shareholder account as set
forth in the attached fee schedule ("Schedule 3.1"). Such fees and
out-of-pocket expenses and advances identified under Section 3.2 below
may be changed from time to time subject to mutual written agreement
between the Transfer Agent and the Sub-Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Transfer Agent agrees to reimburse the Sub-Transfer Agent
for out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche, mailing
and tabulating proxies, records storage, or advances incurred by the
Sub-Transfer Agent for the items set out in Schedule 3.1 attached
hereto. In addition, any other expenses incurred by the Sub-Transfer
Agent at the request or with the consent of the Transfer Agent, will
be reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) days prior to the
mailing date of such materials.
3.4 Invoices. The Transfer Agent agrees to pay all fees and reimbursable
expenses within thirty (30) days following the receipt of the
respective billing notice, except for any fees or expenses which are
subject to good faith dispute. In the event of such a dispute, the
Transfer Agent may only withhold that portion of the fee or expense
subject to the good faith dispute. The Transfer Agent shall notify the
Sub-Transfer Agent in writing within twenty-one (21) calendar days
following the receipt of each billing notice if the Transfer Agent is
disputing any amounts in good faith. If the Transfer Agent does not
provide such notice of dispute within the required time, the billing
notice will be deemed accepted by the Transfer Agent. The Fund shall
settle such disputed amounts within five (5) days of the day on which
the parties agree on the amount to be paid by payment of the agreed
amount. If no agreement is reached, then such disputed amounts shall
be settled by law or legal process.
3.5 Cost of Living Adjustment. Following the last day of each year, unless
the parties shall otherwise agree in a writing and provided that the
service mix and volumes remain consistent, the total fee for all
services shall equal the fee set forth on the Fee Schedule, increased
by the percentage increase for the twelve-month period of such
previous calendar year of the CPI-W (defined below) or, in the event
that publication of such index is terminated, any successor or
substitute index. As used herein, "CPI-W" shall mean the Consumer
Price Index for Urban Wage Earners and Clerical Workers (Area:
Boston-Brockton-Nashua, MA-NH-ME-CT; Base Period: 1982-84=100), as
published by the United States Department of Labor, Bureau of Labor
Statistics (the "cost of living adjustments").
3.6 Late Payments. If any undisputed amount in an invoice of the
Sub-Transfer Agent (for fees or reimbursable expenses) is not paid
when due, the Transfer Agent shall pay the Sub-Transfer Agent interest
thereon (from the due date to the date of payment) at a per annum rate
equal to one percent (1.0%) plus the prime Rate (that is, the base
rate on corporate loans posted by large domestic banks) published by
The Wall Street Journal (or, in the event such rate is not so
published, a reasonably equivalent published rate selected by the
Transfer Agent on the first day of publication during the month when
such amount was due. Notwithstanding any other provision hereof, such
interest rate shall be no greater than permitted under applicable
provision of Massachusetts law.
4. Representations and Warranties of the Sub-Transfer Agent
The Sub-Transfer Agent represents and warrants to the Transfer Agent that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
5. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Sub-Transfer Agent that:
5.1 It is a federal savings bank duly organized and existing and in good
standing under the laws of the United States.
5.2 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement
5.3 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement
5.4 Each Fund is an open-end, diversified management investment company
registered under the Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue to be
made, with respect to all Shares of the Fund being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code
6.1 Obligation of Sender. The Sub-Transfer Agent is authorized to promptly
debit the appropriate Transfer Agent account(s) upon the receipt of a
payment order in compliance with the selected security procedure (the
"Security Procedure") chosen for funds transfer and in the amount of
money that the Sub-Transfer Agent has been instructed to transfer. The
Sub-Transfer Agent shall execute payment orders in compliance with the
Security Procedure and with the Transfer Agent instructions on the
execution date provided that such payment order is received by the
customary deadline for processing such a request, unless the payment
order specifies a later time. All payment orders and communications
received after this the customary deadline will be deemed to have been
received the next business day.
6.2 Security Procedure. The Transfer Agent acknowledges that the Security
Procedure it has designated on the Transfer Agent Selection Form was
selected by the Transfer Agent from security procedures offered by the
Sub-Transfer Agent. The Transfer Agent shall restrict access to
confidential information relating to the Security Procedure to
authorized persons as communicated to the Sub-Transfer Agent in
writing. The Transfer Agent must notify the Sub-Transfer Agent
immediately if it has reason to believe unauthorized persons may have
obtained access to such information or of any change in the Transfer
Agent's authorized personnel. The Sub-Transfer Agent shall verify the
authenticity of all Transfer Agent instructions according to the
Security Procedure.
6.3 Account Numbers. The Sub-Transfer Agent shall process all payment
orders on the basis of the account number contained in the payment
order. In the event of a discrepancy between any name indicated on the
payment order and the account number, the account number shall take
precedence and govern.
6.4 Rejection. The Sub-Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a) is in
excess of the collected balance in the account to be charged at the
time of the Sub-Transfer Agent's receipt of such payment order; (b) if
initiating such payment order would cause the Sub-Transfer Agent, in
the Sub-Transfer Agent's sole judgement, to exceed any volume,
aggregate dollar, network, time, credit or similar limits which are
applicable to the Sub-Transfer Agent; or (c) if the Sub-Transfer
Agent, in good faith, is unable to satisfy itself that the transaction
has been properly authorized.
6.5 Cancellation Amendment. The Sub-Transfer Agent shall use reasonable
efforts to act on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided
that such requests are received in a timely manner affording the
Sub-Transfer Agent reasonable opportunity to act. However, the
Sub-Transfer Agent assumes no liability if the request for amendment
or cancellation cannot be satisfied.
6.6 Errors. The Sub-Transfer Agent shall assume no responsibility for
failure to detect any erroneous payment order provided that the
Sub-Transfer Agent complies with the payment order instructions as
received and the Sub-Transfer Agent complies with the Security
Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of errors
in payment orders.
6.7 Interest. The Sub-Transfer Agent shall assume no responsibility for
lost interest with respect to the refundable amount of any
unauthorized payment order, unless the Sub-Transfer Agent is notified
of the unauthorized payment order within thirty (30) days of
notification by the Sub-Transfer Agent of the acceptance of such
payment order. In no event (including failure to execute a payment
order) shall the Sub-Transfer Agent be liable for special, indirect or
consequential damages, even if advised of the possibility of such
damages.
6.8 ACH Credit Entries/Provisional Payments. When the Sub-Transfer Agent
initiates or receives Automated Clearing House credit and debit
entries pursuant to these guidelines and the rules of the National
Automated Clearing House Association and the New England Clearing
House Association, the Sub-Transfer Agent will act as an Originating
Depository Financial Institution and/or Receiving Depository Financial
Institution, as the case may be, with respect to such entries. Credits
given by the Sub-Transfer Agent with respect to an ACH credit entry
are provisional until the Sub-Transfer Agent receives final settlement
for such entry from the Federal Reserve Bank. If the Sub-Transfer
Agent does not receive such final settlement, the Transfer Agent
agrees that the Sub-Transfer Agent shall receive a refund of the
amount credited to the Transfer Agent in connection with such entry,
and the party making payment to the Transfer Agent via such entry
shall not be deemed to have paid the amount of the entry.
6.9 Confirmation. Confirmation of Sub-Transfer Agent's execution of
payment orders shall ordinarily be provided within twenty four (24)
hours notice of which may be delivered through the Sub-Transfer
Agent's proprietary information systems, or by facsimile or call-back.
Transfer Agent must report any objections to the execution of an order
within thirty (30) days.
7. Data Access and Proprietary Information
7.1 The Transfer Agent acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Transfer Agent by the
Sub-Transfer Agent as part of the Fund's ability to access certain
Fund-related data ("Customer Data") maintained by the Sub-Transfer
Agent on databases under the control and ownership of the Sub-Transfer
Agent or other third party ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to the
Sub-Transfer Agent or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Transfer Agent agrees to
treat all Proprietary Information as proprietary to the Sub-Transfer
Agent and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be provided
hereunder. Without limiting the foregoing, the Transfer Agent agrees
for itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Transfer Agent's
computers, or (ii) solely from equipment at the location agreed to
between the Sub-Transfer Agent and the Transfer Agent and (iii) solely
in accordance with the Sub-Transfer Agent's applicable user
documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Transfer Agent's
computer(s)), the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform in a timely manner of such fact and dispose of such
information in accordance with the Sub-Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Sub-Transfer Agent's computer to the Transfer Agent's terminal to be
retransmitted to any other computer terminal or other device except as
expressly permitted by the Transfer Agent (such permission not to be
unreasonably withheld);
(e) Allow the Transfer Agent to have access only to those authorized
transactions as agreed to between the Sub-Transfer Agent and the
Transfer Agent; and
(f) Honor all reasonable written requests made by the Sub-Transfer
Agent to protect at the Sub-Transfer Agent's expense the rights of the
Sub-Transfer Agent in Proprietary Information at common law, under
federal copyright law and under other federal or state law.
7.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by
a written release by the Transfer Agent; or (iii) are already in the
possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement.
7.3 The Transfer Agent acknowledges that its obligation to protect the
Sub-Transfer Agent's Proprietary Information is essential to the
business interest of the Sub-Transfer Agent and that the disclosure of
such Proprietary Information in breach of this Agreement would cause
the Sub-Transfer Agent immediate, substantial and irreparable harm,
the value of which would be extremely difficult to determine.
Accordingly, the parties agree that, in addition to any other remedies
that may be available in law, equity, or otherwise for the disclosure
or use of the Proprietary Information in breach of this Agreement, the
Sub-Transfer Agent shall be entitled to seek and obtain a temporary
restraining order, injunctive relief, or other equitable relief
against the continuance of such breach.
7.4 If the Transfer Agent notifies the Sub-Transfer Agent that any of the
Data Access Services do not operate in material compliance with the
most recently issued user documentation for such services, the
Sub-Transfer Agent shall endeavor in a timely manner to correct such
failure. Organizations from which the Sub-Transfer Agent may obtain
certain data included in the Data Access Services are solely
responsible for the contents of such data and the Transfer Agent
agrees to make no claim against the Sub-Transfer Agent arising out of
the contents of such third-party data, including, but not limited to,
the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS
AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED
ON AN AS IS, AS AVAILABLE BASIS. THE SUB-TRANSFER AGENT EXPRESSLY
DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.5 If the transactions available to the Transfer Agent include the
ability to originate electronic instructions to the Sub-Transfer Agent
in order to (i) effect the transfer or movement of cash or Shares or
(ii) transmit Shareholder information or other information, then in
such event the Sub-Transfer Agent shall be entitled to rely on the
validity and authenticity of such instruction without undertaking any
further inquiry as long as such instruction is undertaken in
conformity with security procedures established by the Sub-Transfer
Agent from time to time.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of this
Section shall survive any earlier termination of this Agreement.
8. Indemnification
8.1 The Sub-Transfer Agent shall not be responsible for, and the Transfer
Agent shall indemnify and hold the Sub-Transfer Agent and with respect
to Section 8.1(e) herein, also the Bank, harmless from and against,
any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to:
(a) All actions of the Sub-Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement,
(including the defense of any law suit in which the Sub-Transfer Agent
or affiliate is a named party), provided that such actions are taken
in good faith and without negligence or willful misconduct;
(b) The Transfer Agent's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or
warranty of the Transfer Agent hereunder;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Sub-Transfer Agent, or its agents or subcontractors
on: (i) any information, records, documents, data, stock certificates
or services, which are received by the Sub-Transfer Agent or its
agents or subcontractors by machine readable input, facsimile, CRT
data entry, electronic instructions or other similar means authorized
by the Transfer Agent, and which have been prepared, maintained or
performed by the Transfer Agent or each Fund or any other person or
firm on behalf of the Transfer Agent or each Fund including but not
limited to any broker-dealer, TPA or previous transfer agent or
registrar; (ii) any instructions or requests of the Transfer Agent or
each Fund or any of its officers; (iii) any instructions or opinions
of legal counsel with respect to any matter arising in connection with
the services to be performed by the Sub-Transfer Agent under this
Agreement which are provided to the Sub-Transfer Agent after
consultation with such legal counsel; or (iv) any paper or document
reasonably believed to be genuine, authentic, or signed by the proper
person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination or
ruling by any federal or any state agency with respect to the offer or
sale of such Shares;
(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account
maintained at the Bank; or
(f) Upon the Fund's request entering into any agreements required by
the NSCC for the transmission of Fund or Shareholder data through the
NSCC clearing systems
8.2 In order that the indemnification provisions contained in this Section
8 shall apply, upon the assertion of a claim for which the Transfer
Agent may be required to indemnify the Sub-Transfer Agent, the
Sub-Transfer Agent shall promptly notify the Transfer Agent of such
assertion, and shall keep the Transfer Agent advised with respect to
all developments concerning such claim. The Transfer Agent shall have
the option to participate with the Sub-Transfer Agent in the defense
of such claim or to defend against said claim in its own name or in
the name of the Sub-Transfer Agent. The Sub-Transfer Agent shall in no
case confess any claim or make any compromise in any case in which the
Transfer Agent may be required to indemnify the Sub-Transfer Agent
except with the Transfer Agent's prior written consent.
9. Standard of Care
The Sub-Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within reasonable limits to ensure the
accuracy of all services performed under this Agreement, but assumes
no responsibility and shall not be liable for loss or damage due to
errors, including encoding and payment processing errors, unless said
errors are caused by its negligence, bad faith, or willful misconduct
or that of its employees or agents. The parties agree that any
encoding or payment processing errors shall be governed by this
standard of care and Section 4-209 of the Uniform Commercial Code is
superseded by Section 9 of this Agreement. This shall apply to
Exception Services as defined in Section 2.3 herein, but such
application shall take into consideration the manual processing
involved in, and time sensitive nature of, Exception Services.
10. Confidentiality
10.1 The Sub-Transfer Agent and the Transfer Agent agree that they will
not, at any time during the term of this Agreement or after its
termination, reveal, divulge, or make known to any person, firm,
corporation or other business organization, any customers' lists,
trade secrets, cost figures and projections, profit figures and
projections, or any other secret or confidential information
whatsoever, whether of the Sub-Transfer Agent or of the Transfer
Agent, used or gained by the Sub-Transfer Agent or the Transfer Agent
during performance under this Agreement. The Sub-Transfer Agent and
the Transfer Agent further covenant and agree to retain all such
knowledge and information acquired during and after the term of this
Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of
the Sub-Transfer Agent or the Transfer Agent and their successors and
assigns. In the event of breach of the foregoing by either party, the
remedies provided by Section 7.3 shall be available to the party whose
confidential information is disclosed. The above prohibition of
disclosure shall not apply to the extent that the Sub-Transfer Agent
must disclose such data to its sub-contractor or Fund agent for
purposes of providing services under this Agreement.
10.2 In the event that any requests or demands are made for the inspection
of the Shareholder records of the Fund, other than request for records
of Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the
Sub-Transfer Agent will endeavor to notify the Transfer Agent and to
secure instructions from an authorized officer of the Transfer Agent
as to such inspection. The Sub-Transfer Agent expressly reserves the
right, however, to exhibit the Shareholder records to any person
whenever it is advised by counsel that it may be held liable for the
failure to exhibit the Shareholder records to such person or if
required by law or court order.
11. Covenants of the Transfer Agent and the Sub-Transfer Agent
11.1 The Transfer Agent shall promptly furnish to the Sub-Transfer Agent a
certified copy of the resolution of the Board of Directors of the
Transfer Agent authorizing the appointment of the Sub-Transfer Agent
and the execution and delivery of this Agreement.
11.2 The Sub-Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Transfer Agent
for safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or use,
and for keeping account of, such certificates, forms and devices.
11.3 The Sub-Transfer Agent shall keep records relating to the services to
be performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the Investment
Company Act of 1940, as amended, and the Rules thereunder, the
Sub-Transfer Agent agrees that all such records prepared or maintained
by the Sub-Transfer Agent relating to the services to be performed by
the Sub-Transfer Agent hereunder are the property of the Fund and will
be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to the Fund on and
in accordance with its request.
12. Termination of Agreement
12.1 Term. The initial term of this Agreement (the "Initial Term") shall be
three years from the date first stated above unless terminated
pursuant to the provisions of this Section 12. Unless a terminating
party gives written notice to the other party one hundred and twenty
(120) days before the expiration of the Initial Term or any Renewal
Term, this Agreement will renew automatically from year to year (each
such year-to-year renewal term a "Renewal Term"). One hundred and
twenty (120) days before the expiration of the Initial Term or a
Renewal Term the parties to this Agreement will agree upon a Fee
Schedule for the upcoming Renewal Term. Otherwise the fees shall be
increased pursuant to Section 3.5 of this Agreement.
12.2 Early Termination. Notwithstanding anything contained in this
Agreement to the contrary, should the Fund desire to move any of its
services provided by the Sub-Transfer Agent hereunder to a successor
service provider prior to the expiration of the then current Initial
or Renewal Term, or without the required notice, the Sub-Transfer
Agent shall make a good faith effort to facilitate the conversion on
such prior date; however, there can be no guarantee or assurance that
the Sub-Transfer Agent will be able to facilitate a conversion of
services on such prior date. In connection with the foregoing, should
services be converted to a successor service provider, or it the Fund
is liquidated or its assets merged or purchased or the like with or by
another entity which does not utilize the services of the Sub-Transfer
Agent, the fees payable to the Sub-Transfer Agent shall be calculated
as if the services had been performed by the Sub-Transfer Agent until
the expiration of the then current Initial or Renewal Term and
calculated at the asset and/or Shareholder account levels, as the case
may be, on the date notice of termination was given to the
Sub-Transfer Agent, and the payment of all fees to the Sub-Transfer
Agent as set forth shall be accelerated to the business day
immediately prior to the conversion or termination of services.
12.3 Expiration of Term. During the Initial Term or Renewal Term, whichever
currently is in effect, should the either party exercise its right to
terminate, all out-of-pocket expenses or costs associated with the
movement of records and material will be borne by the Transfer Agent.
Additionally, the Sub-Transfer Agent reserves the right to charge for
any other reasonable expenses associated with such termination.
12.4 Confidential Information. Upon termination of this Agreement, each
party shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be retained
by such party under applicable laws or regulations.
12.5 Unpaid Invoices. The Sub-Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Transfer Agent to
the Sub-Transfer Agent being outstanding for more than ninety (90)
days, except with respect to any amount subject to a good faith
dispute within the meaning of Section 3.4 of this Agreement.
12.6 Bankruptcy. Either party hereto may terminate this Agreement by notice
to the other party, effective at any time specified therein, in the
event that (a) the other party ceases to carry on its business or (b)
an action is commenced by or against the other party under Title 11 of
the United States Code or a receiver, conservator or similar officer
is appointed for the other party and such suit, conservatorship or
receivership is not discharged within thirty (30) days.
13. Assignment and Third Party Beneficiaries
13.1 Except as provided in Section 14.1 below and the Additional Telephone
Support Services Schedule 1.2(f) attached, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party. Any attempt to do so
in violation of this Section shall be void. Unless specifically stated
to the contrary in any written consent to an assignment, no assignment
will release or discharge the assignor from any duty or responsibility
under this Agreement.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in
this Agreement to anyone other than the Sub-Transfer Agent and the
Transfer Agent, and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive benefit
of the Sub-Transfer Agent and the Transfer Agent. This Agreement shall
inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
13.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Sub-Transfer Agent and the Transfer Agent.
Other than as provided in Section 14.1 and Schedule 1.2(f), neither
party shall make any commitments with third parties that are binding
on the other party without the other party's prior written consent.
14. Subcontractors
14.1 The Sub-Transfer Agent may, without further consent on the part of the
Transfer Agent, subcontract for the performance hereof with a
Sub-Transfer Agent affiliate duly registered as a transfer agent under
Section 17A(c)(2) of the Securities Exchange Act of 1934; provided,
however, that the Sub-Transfer Agent shall be fully responsible to the
Transfer Agent for the acts and omissions of the Sub-Transfer Agent or
its affiliate as it is for its own acts and omissions.
14.2 Nothing herein shall impose any duty upon the Sub-Transfer Agent in
connection with or make the Sub-Transfer Agent liable for the actions
or omissions to act of unaffiliated third parties such as, by way of
example and not limitation, Airborne Services, Federal Express, United
Parcel Service, the U.S. Mails, the NSCC and telecommunication
companies, provided, if the Sub-Transfer Agent selected such company,
the Sub-Transfer Agent shall have exercised due care in selecting the
same.
15. Miscellaneous
15.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Transfer Agent.
15.2 Massachusetts Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws
of The Commonwealth of Massachusetts.
15.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond
its control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes.
15.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other party for consequential, indirect or special damages
under any provision of this Agreement or for any consequential,
indirect or special damages arising out of any act or failure to act
hereunder.
15.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or protections
of proprietary rights and trade secrets shall survive the termination
of this Agreement.
15.6 Severability. If any provision or provisions of this Agreement shall
be held invalid, unlawful, or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be
affected or impaired.
15.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement
and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
15.8 Waiver. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the
other party shall be construed as a waiver of any succeeding breach of
the same or of any other covenant or condition.
15.9 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
15.10 Counterparts. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
15.11 Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each agree
that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether
or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
15.12 Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a) If to State Street Bank and Trust Company to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Transfer Agent, to:
Citicorp Bank & Trust, FSB
Attention:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
CITICORP BANK & TRUST, FSB
BY:
-----------------------------
ATTEST:
------------------------------
STATE STREET BANK AND TRUST COMPANY
BY:
-----------------------------
ATTEST:
------------------------------
SCHEDULE A
Citi Institutional Cash Reserves
Citi Cash Reserves
Citi Tax Free Reserves
Citi New York Tax-Free Reserves
Citi Connecticut Tax-Free Reserves
Citi U.S. Treasury Reserves
Citi Premium Liquid Reserves
Citi Institutional U.S. Treasury Reserves
Citi Institutional Liquid Reserves
Citi California Tax Free Reserves
Citi Premium U.S. Treasury Reserves
Citi Institutional Cash Reserves
Citi Institutional Tax Free Reserves
Citi Institutional Enhanced Income Fund
Citi Institutional Money Reserves
SCHEDULE 1.2(f)
ADDITIONAL TELEPHONE SUPPORT FEES AND SERVICES
Dated ____________
I. SERVICES
1. Transfer Agent and Telephone Support Functions
a. Answer telephone inquiries from [XXX 8 a.m. to 8 p.m. Boston time
Monday through Friday except Christmas Day XXX] [XXX OTHER HOLIDAY
COVERAGE AVAILABLE? XXX] from [XXX existing customers and prospective
customers XXX] of the Fund [XXX for sales literature XXX] in
accordance with the telephone script provided by the Fund.
b. Answer questions pertaining thereto the extent that such questions are
answerable based upon the information supplied to the Transfer Agent
by the Fund.
c. [XXX As the Fund and the Transfer Agent may agree in writing, the
Transfer Agent will receive calls and take written transaction
requests from shareholders of the Fund. Transfer Agent transactions
include: [XXX telephone redemptions, account maintenance, exchanges,
transfers, confirmed purchases, account balances and general inquiries
XXX]. Some transactions may result in research which will be done by
the Fund. Other calls may be referred directly to the Fund. Fax any
referrals to [XXX name of company XXX] on the same day the telephone
call is received XXX];
2. Incorporate new information into the above referenced script upon
written instructions from the Fund;
3. Maintain prospect detail information for six (6) months thereafter,
provide such information to the Fund in the form that the Fund may
reasonably request;
4. Send all literature orders for information from BFDS/DST [XXX [how?]
[to whom?] XXX] a minimum of [XXX one XXX] transmission per day;
5. Provide the Fund with a [XXX daily/weekly/monthly XXX] telephone report
detailing the calls received during the [XXX day/week/month XXX];
6. [XXX Provide the Fund with monthly conversion reports as selected by
the Fund from DST's standard report package. XXX]
7. TARGET SERVICE LEVELS: Average speed of answer is fifteen (15)
seconds, abandon rate of no more than 2%, and an overall service level
of 85%. The averages will be calculated on a weekly basis.
II. SUBCONTRACTORS
1. The Transfer Agent may, without further consent on the part of the
Fund, subcontract ministerial telephone support services for the
performance hereof.
III. FEES
BY: BY:
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SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated ____________
1. On each day on which both the New York Stock Exchange and the Fund are
open for business (a "Business Day"), the TPA(s) shall receive, on
behalf of and as agent of the Fund, Instructions (as hereinafter
defined) from the Plan. Instructions shall mean as to each Fund (i)
orders by the Plan for the purchases of Shares, and (ii) requests by
the Plan for the redemption of Shares; in each case based on the
Plan's receipt of purchase orders and redemption requests by
Participants in proper form by the time required by the terms of the
Plan, but not later than the time of day at which the net asset value
of a Fund is calculated, as described from time to time in that Fund's
prospectus. Each Business Day on which the TPA receives Instructions
shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such
Instructions, to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which
it accepted Instructions for the purchase and redemption of Shares,
(TD+1), the TPA(s) shall notify the Sub-Transfer Agent of the net
amount of such purchases or redemptions, as the case may be, for each
of the Plans. In the case of net purchases by any Plan, the TPA(s)
shall instruct the Trustees of such Plan to transmit the aggregate
purchase price for Shares by wire transfer to the Sub-Transfer Agent
on (TD+1). In the case of net redemptions by any Plan, the TPA(s)
shall instruct the Fund's custodian to transmit the aggregate
redemption proceeds for Shares by wire transfer to the Trustees of
such Plan on (TD+1). The times at which such notification and
transmission shall occur on (TD+1) shall be as mutually agreed upon by
each Fund, the TPA(s), and the Sub-Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and
price for all transactions, and Share balances. The TPA(s) shall
maintain on behalf of each of the Plans a single master account with
the Sub-Transfer Agent and such account shall be in the name of that
Plan, the TPA(s), or the nominee of either thereof as the record owner
of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of
Shares and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that
Plan as of the statement closing date, purchases and redemptions of
Shares by the Plan during the period covered by the statement, and the
dividends and other distributions paid to the Plan on Shares during
the statement period (whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to
the Plans prospectuses, proxy materials, reports, and other
information provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to
each Fund or any agent designated by it such periodic reports covering
Shares of each Plan as each Fund shall reasonably conclude are
necessary to enable the Fund to comply with state Blue Sky
requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders
and redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses,
proxy materials, periodic reports and other materials relating to each
Fund be furnished to Participants in which event the Sub-Transfer
Agent or each Fund shall mail or cause to be mailed such materials to
Participants. With respect to any such mailing, the TPA(s) shall, at
the request of the Sub-Transfer Agent or each Fund, provide at the
TPA(s)'s expense a complete and accurate set of mailing labels with
the name and address of each Participant having an interest through
the Plans in Shares.
CITICORP BANK & TRUST, FSB STATE STREET BANK AND TRUST COMPANY
BY: BY:
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Schedule 3.1
Fees
