FORM OF TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EACH OF THE ENTITIES LISTED ON APPENDIX A
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties ...........................................1
2. Third Party Administrators for Defined Contribution Plans .................6
3. Fees and Expenses .........................................................7
4. Representations and Warranties of the Transfer Agent ......................8
5. Representations and Warranties of the Fund ................................8
6. Wire Transfer Operating Guidelines ........................................9
7. Data Access and Proprietary Information ..................................10
8. Indemnification ..........................................................13
9. Standard of Care/Limitation on Liability .................................14
10. Confidentiality ..........................................................14
11. Covenants of the Fund and the Transfer Agent .............................15
12. Termination of Agreement .................................................16
13. Assignment and Third Party Beneficiaries .................................18
14. Subcontractors ...........................................................18
15. Miscellaneous ............................................................19
16. Additional Funds/Portfolios ..............................................21
17. Limitations of Liability of the Trustees and Shareholders ................21
Appendix A Funds and Portfolios
Schedule 1.2(f) AML Delegation
Schedule 1.3 Service Level Agreement
Schedule 1.6 Simple XXX Services
Schedule 2.1 Third Party Administrator(s) Procedures
Schedule 3.1 Fees and Expenses
Schedule 9 Transfer Agent's Liability
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT made as of the __ day of ________________, 2005, by and
between each of the entities listed on Appendix A hereto and each being an
entity of a type as set forth on Appendix A and organized under the laws of the
state as set forth on Appendix A, each with place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 and each of which is acting on its own
behalf and on behalf of each of the portfolios listed under its name on Appendix
A, but not jointly with any other entities listed on Appendix A (each such
entity, together with its Portfolios (as defined below), shall be severally
referred to as the "Fund") and BOSTON FINANCIAL DATA SERVICES, INC., a
Massachusetts corporation having its principal office and place of business at
Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WITNESSETH:
WHEREAS, each Fund currently set forth on Appendix A is a trust registered with
the Securities and Exchange Commission as an investment company pursuant to the
Investment Company Act of 1940, as amended; and
WHEREAS, each Fund currently set forth on Appendix A is authorized to issue
shares in separate series, with each such series representing interests in a
separate portfolio of securities and other assets (each such series, together
with all other series subsequently established by the Fund and made subject to
this Agreement in accordance with Section 16 being herein referred to severally
as the Fund's "Portfolios"); and
WHEREAS, it is contemplated that additional Funds and their Portfolios may
become parties to this Agreement by mutual consent of the parties hereto and by
execution of a counterpart signature page to this Agreement subject to the
provisions of Section 16 hereto; and
WHEREAS, the Fund (as used herein "the Fund" shall refer severally to each
entity listed on Appendix A together with its Portfolios) on behalf of the
Portfolios desires to appoint the Transfer Agent as its transfer agent, dividend
disbursing agent and agent in connection with certain other activities, and the
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 and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Fund, on behalf of the Portfolios, hereby employs
and appoints the Transfer Agent to act as, and the Transfer Agent agrees
to act as, its transfer agent for the Fund's authorized and issued shares
of its beneficial interest ("Shares"), dividend disbursing agent and
agent in connection with any accumulation, open-account or similar plan
provided to the shareholders of each of the respective Portfolios of the
Fund ("Shareholders") and set out in the currently effective
prospectus(es) and statement(s) of
additional information ("prospectus") of the Fund on behalf of the
applicable Portfolio, including without limitation any periodic
investment plan or periodic withdrawal program. In accordance with the
prospectus and the procedures established from time to time by agreement
between the Fund on behalf of each of the Portfolios, as applicable and
the Transfer Agent, the Transfer Agent agrees that it will perform the
following 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 Trust Instrument 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
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 on behalf of the applicable Portfolio;
(h) Issue replacement certificates for those certificates alleged to have
been lost, stolen or destroyed upon receipt by the Transfer Agent of
indemnification satisfactory to the Transfer Agent and protecting the
Transfer Agent and the Fund, and the Transfer Agent at its option, may
issue replacement certificates in place of mutilated stock certificates
upon presentation thereof and without such indemnity;
(i) Issue replacement checks and place stop orders on original checks
based on Shareholder's representation that a check was not received or
was lost. Such stop orders and replacements will be deemed to have been
made at the request of the Fund, and the Fund shall be responsible for
all losses or claims resulting from such replacement;
(j) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(k) Record the issuance of Shares of the Fund and maintain pursuant to
Rule 17Ad-10(e) under the Securities and Exchange Act of 1934, as
amended, a record of the total number of Shares of the Fund which are
authorized, based upon data provided to it by the Fund,
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and issued and outstanding. The 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;
(l) Maintain such bank accounts as the Transfer Agent shall deem
necessary to the performance of its duties hereunder, including, but not
limited to, the processing of Share purchases and redemptions and the
payment of Portfolio dividends;
(m) Report abandoned property to state authorities as authorized by the
Fund in accordance with the policies and procedures agreed upon by the
Fund and the Transfer Agent;
(n) Provide Shareholder proxy coordination;
(o) Provide Shareholder account information through various means,
including but not limited to, telephone calls, correspondence and
research;
(p) Monitor transactions in the Fund for market timing activity in
accordance with the specifications and procedures agreed upon by the
parties in writing, which may be amended from time to time. The services
provided under this Section 1.1(p) will be ministerial only and such
monitoring will not subject the Transfer Agent to any liability for
failure to detect market timing activity; provided, however that the
Transfer Agent shall be liable for its willful misconduct in connection
with performing the services in this Section 1.1(p); and
(q) Account for and administer the redemption fees on the redemption and
exchange of Shares.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the
Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plan (including
without limitation any periodic investment plan, DRIP 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, providing Shareholder account information
and coordinating with and overseeing the print/mail vendor in accordance
with the provisions of Section 14.1 below;
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(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 shall (i) identify to the 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 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 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 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; (iv) comply with NSCC rules and procedures applicable to
the Transfer Agent's use of Networking; (v) implement and maintain
procedures reasonably designed to ensure the accuracy of all
transmissions through Networking and to limit the access to, and the
imputing of data into, Networking to persons specifically authorized by
the Transfer Agent; and (vi) otherwise perform any and all duties,
functions, procedures and responsibilities pursuant to each NSCC matrix
level and as otherwise established by NSCC from time to time.
(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 Fund and the Transfer Agent. The Transfer
Agent may at times perform only a portion of these services and the Fund
or its agent may perform these services on the Fund's behalf;
(f) Anti-Money Laundering ("AML") Delegation. The Fund has elected to
delegate to the Transfer Agent certain AML duties under this Agreement
and the parties have agreed to such duties and terms as stated in the
attached schedule (Schedule 1.2(f) entitled "AML Delegation"), which may
be changed from time to time subject to mutual written agreement between
the parties.
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(g) Laws and Regulation. The Transfer Agent will take reasonable steps to
stay informed of new securities and tax laws and regulations which apply
to the Transfer Agent's products and services hereunder and will take
reasonable steps to update its products and/or services to comply with
new securities and tax laws and regulations applicable to its transfer
agency business in the time and manner as required by such laws and
regulations. On a quarterly basis, upon request of the Fund, the Transfer
Agent shall provide the Fund with a Rule 38a-1 certification
substantially in the format previously provided to the Fund in connection
with the negotiation of this Agreement. The Transfer Agent reserves the
right to amend and update the form of its Rule 38a-1 certification from
time to time to comply with new or amended requirements of applicable law
or to enhance its Compliance+ program.
1.3 Service Level Agreement. The Transfer Agent shall maintain a quality
control process designed to provide a consistent level of quality and
timeliness for its call center, correspondence services and transaction
processing and level of systems availability. The Transfer Agent's
performance of the services under this Agreement will be measured against
service levels and standards ("SLAs"), which will be established in good
faith by mutual written agreement of the parties and shall be made a part
of this Agreement as Schedule 1.3.
1.4 Facsimile Communications.
(a) The Fund hereby authorizes and instructs the Transfer Agent, as
transfer agent for the Portfolios listed on Appendix A: (i) to accept
facsimile transaction requests on behalf of individual Shareholders
received from broker/dealers of record, third-party administrators
("TPAs") or the Fund; (ii) that the broker/dealers, TPAs and the Fund are
duly authorized to initiate such transactions on behalf of the
Shareholders; and (iii) that the original source documentation is in good
order and the broker/dealers, TPAs or the Fund will retain such
documentation.
(b) The Transfer Agent acknowledges that requests for a change in wiring
instructions or for redemptions, the proceeds of which are to be paid to
third parties or wired to an account other than the account of record,
may not be accepted by facsimile transmission in accordance with the
Fund's current prospectus. The Transfer Agent will not accept facsimile
requests for the foregoing unless and until such time as the Fund's
prospectus permits the acceptance of such instructions by facsimile.
1.5 E-Mail Communications.
(a) The Fund hereby instructs the Transfer Agent, as transfer agent for
the Portfolios listed on Appendix A, to accept instructions using e-mail
("E-mail Communications"), as further set out below. The Fund instructs
the Transfer Agent to accept such E-mail Communications to and from the
Fund. The Fund acknowledges that the Transfer Agent will not act on
E-mail Communications to it coming directly from Shareholders.
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(b) The Fund acknowledges that the Transfer Agent is not extending any
warranties or making any representations with respect to the services of
any internet services provider. Any delays or errors attributable to the
non-functioning of the internet is at the risk of the Fund. The Fund has
been advised by the Transfer Agent that E-mail Communications to or from
the Transfer Agent may not be encrypted.
(c) The Fund, when submitting instructions via e-mail, will be
responsible for determining that any original source documentation
supporting such instructions is in good order and for retaining such
original documentation.
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 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 Code and administered
by TPA(s) which may be plan administrators as defined in the Employee
Retirement Income Security Act of 1974, as amended.
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
Transfer Agent and the Fund from time to time ("Schedule 2.1"), the
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 transfer agent of the Fund
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 Transfer Agent to use methods and procedures other than
those usually employed by the Transfer Agent to perform services under
Section 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent after the
commencement of the nightly processing cycle of the TA2000 System; or
(c) Require more manual intervention by the 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 Transfer Agent pursuant to this
Agreement, the Fund agrees to pay the 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 Fund and the
Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Fund agrees to reimburse the Transfer Agent for out-of-pocket
expenses in accordance with the terms of Schedule 3.1 attached hereto.
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 Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing
notice, except for any fees or expenses that are subject to good faith
dispute. In the event of such a dispute, the Fund may only withhold that
portion of the fee or expense subject to the good faith dispute. The Fund
shall notify the Transfer Agent in writing within twenty-one (21)
calendar days following the receipt of each billing notice if the Fund is
disputing any amounts in good faith. If the Fund does not provide such
notice of dispute within the required time, the billing notice will be
deemed accepted by the Fund. 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 as may be required by law or
legal process.
3.5 Cost of Living Adjustment. Unless otherwise agreed to at the time of
renewal, commencing in the initial year of the first Renewal Term (if
any), the total fee for all services for that year and for each
successive year of that or any subsequent Renewal Term shall equal the
fee that would be charged for the same services based on a fee rate (as
reflected in a fee rate 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, appropriately adjusted,
acceptable to both parties. As used herein, "CPI-W" shall mean the
Consumer Price Index for Urban Wage Earners and Clerical Workers for
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.
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4. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a corporation 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 Articles of Organization
and By-Laws to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
5. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a trust duly organized and existing and in good standing under the
laws of the state of its organization as set forth on Appendix A.
5.2 It is empowered under applicable laws and by its Agreement and
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
5.3 All corporate proceedings required by said Agreement and Declaration of
Trust and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
5.4 The Fund and each of its Portfolios is an open-end 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 being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code
6.1 Obligation of Sender. The Transfer Agent is authorized to promptly debit
the appropriate Fund account(s) upon the receipt of a payment order in
compliance with the selected security procedure (the "Security
Procedure") chosen for funds transfer and in the amount of money that the
Transfer Agent has been instructed to transfer. The Transfer Agent shall
execute payment orders in compliance with the Security Procedure and with
the Fund instructions on the execution date provided that such payment
order is received by the customary deadline for processing such a
request, unless the payment order specifies a later time. All payment
orders and communications received after the customary deadline will be
deemed to have been received the next business day.
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6.2 Security Procedure. The Fund acknowledges that the Security Procedure it
has designated on the Fund Selection Form was selected by the Fund from
security procedures offered by the Transfer Agent. The Fund shall
restrict access to confidential information relating to the Security
Procedure to authorized persons as communicated to the Transfer Agent in
writing. The Fund must notify the Transfer Agent immediately if it has
reason to believe unauthorized persons may have obtained access to such
information or of any change in the Fund's authorized personnel. The
Transfer Agent shall verify the authenticity of all Fund instructions
according to the Security Procedure.
6.3 Account Numbers. The 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 Transfer Agent shall use commercially
reasonable efforts to resolve the discrepancy. For all discrepancies that
remain unresolved after the use of commercially reasonable efforts, the
account number shall take precedence and govern.
6.4 Rejection. The 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
Transfer Agent's receipt of such payment order; (b) if initiating such
payment order would cause the Transfer Agent, in the Transfer Agent's
sole judgement, to exceed any volume, aggregate dollar, network, time,
credit or similar limits which are applicable to the Transfer Agent; or
(c) if the Transfer Agent, in good faith, is unable to satisfy itself
that the transaction has been properly authorized.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable best
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 Transfer
Agent reasonable opportunity to act. However, the Transfer Agent assumes
no liability if the request for amendment or cancellation cannot be
satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the 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 Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the unauthorized
payment order within thirty (30) days of notification by the Transfer
Agent of the acceptance of such payment order.
6.8 ACH Credit Entries/Provisional Payments. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant to
these Section 6 guidelines and the rules of the National Automated
Clearing House Association and the New England Clearing House
Association, State Street Bank and Trust Company will act as an
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Originating Depository Financial Institution and/or Receiving Depository
Financial Institution, as the case may be, with respect to such entries.
Credits given by the Transfer Agent with respect to an ACH credit entry
are provisional until the Transfer Agent receives final settlement for
such entry from the Federal Reserve Bank. If the Transfer Agent does not
receive such final settlement, the Fund agrees that the Transfer Agent
shall receive a refund of the amount credited to the Fund in connection
with such entry, and the party making payment to the Fund via such entry
shall not be deemed to have paid the amount of the entry.
6.9 Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours notice
of which may be delivered through the Transfer Agent's proprietary
information systems, or by facsimile or callback. Fund must report any
objections to the execution of an order within thirty (30) days.
7. Data Access and Proprietary Information
7.1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent as part of the Fund's
ability to access certain Fund-related data maintained by the Transfer
Agent on databases under the control and ownership of the 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 Transfer Agent or
other third party. In no event shall Proprietary Information be deemed to
include Customer Data (as defined in Section 10.1 below) which shall
remain proprietary to the Fund. The Fund agrees to treat all Proprietary
Information as proprietary to the 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 Fund agrees for itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's computers or
those of the Fund's investment adviser, administrator or distributor, or
(ii) solely from equipment at the location agreed to between the Fund and
the Transfer Agent and (iii) solely in accordance with the 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 Fund's computer(s) or those
of the Fund's investment adviser, administrator or distributor), 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 Transfer Agent's instructions;
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(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal or that of the Fund's
investment adviser, administrator or distributor 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);
and
(e) Honor all reasonable written requests made by the Transfer Agent to
protect at the Transfer Agent's expense the rights of the Transfer Agent
in Proprietary Information at common law, under federal copyright law and
under other federal or state law.
Notwithstanding the foregoing, the Transfer Agent acknowledges that the
Fund may share the Proprietary Information of the Transfer Agent with the
Fund's investment adviser, administrator or distributor or any of their
affiliates; provided that such parties are subject to obligations of
confidentiality to the Fund with regard to such Proprietary Information
of the Transfer Agent no less stringent than those set forth in this
Agreement
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 Fund acknowledges that its obligation to protect the Transfer Agent's
Proprietary Information is essential to the business interest of the
Transfer Agent and that the disclosure of such Proprietary Information in
breach of this Agreement would cause the 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 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 Fund notifies the 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 Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from
which the Transfer Agent may obtain certain data included in the Data
Access Services are solely responsible for the contents of such data and
the Fund agrees to make no claim against the 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 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.
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7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the 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
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 Transfer Agent from time to time and agreed to by the
Fund.
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 Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless, and with respect to
Section 8.1(f) herein, also State Street Bank and Trust Company ("State
Street"), from and against, any and all losses, damages, costs, charges,
reasonable counsel fees (including the defense of any law suit in which
the Transfer Agent or affiliate is a named party), payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such
actions are taken in good faith and without negligence or willful
misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on: (i)
any information, records, documents, data, stock certificates or
services, which are received by the Transfer Agent or its agents or
subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions or other similar means authorized by the Fund,
and which have been prepared, maintained or performed by the Fund or any
other person or firm on behalf of the Fund including but not limited to
any broker-dealer, TPA or previous transfer agent; (ii) any instructions
or requests of the Fund or any of its officers; (iii) any instructions or
opinions of legal counsel with respect to any matter arising in
connection with the services to be performed by the Transfer Agent under
this Agreement which are provided to the 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;
12
(e) The acceptance of facsimile transaction requests on behalf of
individual Shareholders received from broker-dealers, TPAs or the Fund,
and the reliance by the Transfer Agent on the broker-dealer, TPA or the
Fund ensuring that the original source documentation is in good order and
properly retained;
(f) The negotiation and processing of any checks, wires or ACH
transmissions (including in connection with payroll or MSA transmissions)
including without limitation for deposit into, or credit to, the Fund's
demand deposit account maintained by the Transfer Agent;
(g) 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; or
(h) The breach of any representation or warranty set forth in Section 5
above.
8.2 To the extent the Transfer Agent is not entitled to indemnification
pursuant to Section 8.1 above, the Fund shall not be responsible for, and
the Transfer Agent shall indemnify and hold the Fund, its Board of
Trustees, officers, employees and agents, harmless from and against any
losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising directly out of or attributable to any
action or failure of the Transfer Agent to act as a result of the
Transfer's Agent's lack of good faith, negligence or willful misconduct
in the performance of its services hereunder or the breach of any
representation or warranty set forth in Section 4 above.
8.3 In order that the indemnification provisions contained in this Section 8
shall apply, upon the assertion of an indemnification claim, the party
seeking the indemnification shall promptly notify the other party of such
assertion, and shall keep the other party advised with respect to all
developments concerning such claim. The Fund shall have the option to
participate with the Transfer Agent in the defense of such claim or to
defend against said claim in its own name or that of the Transfer Agent.
The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be required
to indemnify it except with the indemnifying party's written consent,
which consent shall not be unreasonably withheld.
13
9. Standard of Care/Limitation of Liability
The 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 standard of care also 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. Notwithstanding the foregoing, the Transfer Agent's
aggregate liability during any term of this Agreement, whether in
contract, or in tort, or otherwise shall be as determined and as set
forth on Schedule 9 to this Agreement.
10. Confidentiality
10.1 (a) The Transfer Agent and the Fund agree that they will not, at any time
during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, 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 Transfer Agent or of
the Fund, used or gained by the Transfer Agent or the Fund during
performance under this Agreement (such party's "Confidential
Information"). The Fund and the Transfer Agent further covenant and agree
to retain all such Confidential Information of the other party whatsoever
in trust for the sole benefit of the Transfer Agent or the Fund and their
successors and assigns. In the event of breach of the foregoing by either
party, the remedies provided by Section 7.3 shall be available to the
party whose confidential information is disclosed. The Transfer Agent
acknowledges that the Fund may share the Confidential Information of the
Transfer Agent with the Fund's board of trustees, investment adviser,
administrator and distributor and any of their affiliates and agents,
provided that such parties are subject to obligations of confidentiality
to the Fund with regard to such Confidential Information of the Transfer
Agent no less stringent than those set forth in this Agreement.
(b) The Transfer Agent represents, covenants, and warrants that Transfer
Agent will use the nonpublic personal information of the Fund's
Shareholders ("Customer Data") only in compliance with (i) this
Agreement, (ii) its own Privacy and Information Sharing Policy, as
amended from time to time, (iii) the Xxxxx-Xxxxx-Xxxxxx Act (the "GLB
Act") and Regulation S-P promulgated thereunder to the extent each is
specifically applicable to its transfer agency business, and (iv) as
directed by authorized persons of the Fund in writing.
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
14
actions), the Transfer Agent will use best efforts to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. The 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 Fund and the Transfer Agent
11.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the execution
and delivery of this Agreement; and
(b) A copy of the Agreement and Declaration of Trust and By-Laws of the
Fund and all amendments thereto.
11.2 The Transfer Agent hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
11.3 The 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 Transfer Agent agrees that all
such records prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are the property
of the Fund and will be preserved, maintained and made available in
accordance with such Section and rules thereunder, and will be
surrendered promptly to the Fund on and in accordance with its request.
11.4 The Transfer Agent shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors' and
officers' errors and omissions coverage in amounts that are appropriate
in light of its duties and responsibilities hereunder. Upon the request
of the Fund, the Transfer Agent shall provide evidence that coverage is
in place. The Transfer Agent shall notify the Fund should its insurance
coverage with respect to professional liability or errors and omissions
be canceled. Such notification shall include the date of cancellation and
the reasons therefore. The Transfer Agent shall notify the Fund of any
material claims against it with respect to the services provided under
this Agreement to the Fund, whether or not they may be covered by
insurance, and shall notify the Fund should the total outstanding claims
made by the Transfer Agent under its insurance coverage materially
impair, or threaten to materially impair, the adequacy of its coverage.
15
12. Termination of Agreement
12.1 Term. The initial term of this Agreement (the "Initial Term") shall be
three (3) 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 at least one hundred and twenty
(120) days before the expiration of the Initial Term or any Renewal Term
(as defined herein), this Agreement will renew automatically for an
additional year term and, thereafter, for successive one-year terms (each
such year-to-year renewal term, a "Renewal Term"). Notwithstanding the
foregoing, during a Renewal Term, this Agreement may be terminated by
either party upon at least one hundred and twenty (120) days' written
notice to the other party. The notification requirements herein shall not
apply to a termination for cause, which shall be governed by the
provisions of Section 12.6 below. 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 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 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 Transfer Agent will be able to
facilitate a conversion of services on such prior date. In connection
with the foregoing, if during the Initial Term, the Fund should convert
any of such services to a successor service provider, or if 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 Transfer Agent,
its affiliates or the TA2000 platform as set forth below, the fees
payable to the Transfer Agent shall be calculated as if the services had
been performed by the Transfer Agent until the expiration of the Initial
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
Transfer Agent, and the payment of all fees to the Transfer Agent as set
forth herein shall be accelerated to the business day immediately prior
to the conversion or termination of services (the "Early Termination
Fee"). In the event that (i) the Fund terminates this Agreement as the
result of its acquisition by or merger into another fund and such other
fund's shareholder records are, at the time of such acquisition or
merger, maintained by the Transfer Agent or its affiliates, or (ii) the
Fund wishes to move its transfer agency servicing operation from the
Transfer Agent to an affiliated entity or another DST TA2000 platform
(i.e., become a remote user of DST's TA2000 system) as the result of
Fund's acquisition by or merger into another fund, then the parties agree
to negotiate in good faith to determine whether or to what extent the
Early Termination Fee shall apply to such termination.
12.3 Termination Expenses and Costs. During the Initial Term or Renewal Term,
whichever currently is in effect, should 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 Fund. Additionally,
the Transfer Agent reserves the right to charge for any other reasonable
expenses associated with such termination.
16
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. Each party hereby agrees to dispose of
any "consumer report information," as such term is defined under
Regulation S-P promulgated under the GLB Act, in accordance with the
provisions of Regulation S-P and the GLB Act applicable to its respective
business.
12.5 Unpaid Invoices. Except with respect to any amount subject to a good
faith dispute within the meaning of Section 3.4 of this Agreement, the
Transfer Agent may terminate this Agreement in the event that an invoice
payable by the Fund to the Transfer Agent remains outstanding for more
than ninety (90) days; provided that the Transfer Agent has provided
written notice to the Fund at least thirty (30) days prior to such
termination (which notice may be provided prior to the expiration of the
ninety (90) day period).
12.6 Termination by either Party for Cause. In the event that: (i) the
Transfer Agent defaults in the performance of its obligations under
Schedule 1.3 "Service Level Agreement" in accordance with the terms of
such schedule and, as a result thereof, the Fund is entitled to exercise
a Service Level Termination Right as defined in such schedule or (ii)
either party fails perform its duties hereunder (including any material
interruption or cessation of its operations), which failure materially
adversely affects the business operations of the other party and which
failure continues for thirty (30) days after receipt of written notice
from the first party, unless such failure is excused under the terms of
Schedule 1.3 or Section 15.3 (Force Majeure) of this Agreement, such
non-defaulting party may terminate this Agreement by giving written
notice to the other party as of the termination date specified in the
notice of termination. The Transfer Agent shall make a good faith effort
to facilitate conversion as described in Section 12.2 above. In the event
of a termination by the Fund for cause, the Fund shall not be obligated
to pay the Early Termination Fee as defined in Section 12.2 above.
13. Assignment and Third Party Beneficiaries
13.1 Except as provided in Section 14.1 below neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without
the written consent of the other party. Any attempt to do so in violation
of this Section shall be void. Unless specifically stated to the contrary
in any written consent to an assignment, no assignment will release or
discharge the assignor from any duty or responsibility under this
Agreement. For the avoidance of doubt, a transaction involving a merger
or sale of substantially all of the assets of a Portfolio or a Fund shall
not require the written consent of the Transfer Agent.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement
17
shall be construed to give any rights or benefits in this Agreement to
anyone other than the Transfer Agent and the Fund, and the duties and
responsibilities undertaken pursuant to this Agreement shall be for the
sole and exclusive benefit of the Transfer Agent and the Fund. 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 Transfer Agent and the Fund. 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 Transfer Agent may, without further consent on the part of the Fund,
subcontract for the performance hereof with an affiliate of the Transfer
Agent duly registered as a transfer agent or, with regard to print/mail
services, with another affiliate or provider; provided, however, that
consent of the Fund shall be required with regard to print/mail services
which the Fund currently maintains by a separate agreement. The Transfer
Agent shall be fully responsible to the Fund for the acts and omissions
of its affiliate as it is for its own acts and omissions. With regard to
print/mail services that are provided by a vendor not affiliated with the
Transfer Agent, the Transfer Agent will use all reasonable commercial
efforts to coordinate with such outside print/mail vendor and to timely
and accurately provide all information requested by such print/mail
vendor; provided, however, that the Transfer Agent shall not be held
liable to the Fund or any affiliated party of the Fund for any act or
failure to act by such outside print/mail vendor except where the
Transfer Agent's negligent acts or omissions were the proximate cause of
such vendor's non-performance.
14.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the 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 that, if the Transfer Agent selected such company, the Transfer
Agent shall have exercised due care in selecting the same.
15. Miscellaneous
15.1 Amendment. This Agreement may be amended or modified only by a written
agreement executed by both parties.
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,
acts of war or terrorism, strikes,
18
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; provided, however,
that this provision shall not imply that the Transfer Agent is excused
from maintaining reasonable business continuity plans to address
potential service outages.
15.4 Consequential Damages. Neither party to this Agreement shall be liable to
the other party for special, indirect or consequential damages under any
provision of this Agreement or for any special, indirect or consequential
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 The Parties. All references herein to the "Fund" are to each of the
management investment companies listed on Appendix A hereto, and each
management company made subject to this Agreement in accordance with
Section 16 below, individually, as if the Agreement were between each
such Fund and the Transfer Agent. In the case of a series trust, all
references to "Portfolio" are to the individual series or portfolio of
such trust or to such trust on behalf of the individual series or
portfolio, as appropriate.
15.8 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.
15.9 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.
15.10 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.
15.11 Counterparts. This Agreement may be executed by the parties hereto in any
number of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
15.12 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
19
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.
15.13 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 Boston Financial Data Services, Inc., to:
Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to an entity set forth on Appendix A hereto, to:
Secretary of the Fund
c/o General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
16. Additional Funds/Portfolios
In the event that the Fund establishes one or more series of Shares, in
addition to those listed on the attached Appendix A, with respect to
which it desires to have the Transfer Agent render services as transfer
agent under the terms hereof, it shall so notify the Transfer Agent in
writing, and if the Transfer Agent agrees in writing to provide such
services, such series of Shares shall become a Portfolio hereunder.
Furthermore, in the event that one or more additional funds affiliated
with the Fund desire(s) to have the Transfer Agent render services as
transfer agent under the terms hereof, such fund or funds shall so notify
the Transfer Agent in writing, and if the Transfer Agent agrees in
writing to provide such services, such fund or funds, together with their
portfolios, may become parties to this Agreement by execution of a
counterpart signature page hereto.
In the event that new affiliated funds and their portfolios become
parties to this Agreement, the fees and expenses set forth on Schedule
3.1 shall apply to such funds and portfolios for their applicable initial
term or renewal term, provided that the requirements of such funds and
portfolios are generally consistent with the services then being provided
by the Transfer Agent under this Agreement to the Fund and its
Portfolios. Notwithstanding the foregoing, however, at such time as the
number of CUSIPs serviced by the Transfer Agent for all Xxxxxxxxxx
Institutional Series funds and their affiliated funds has increased by
forty percent (40%) or more from the number of CUSIPs serviced
20
by the Transfer Agent on the first date of this Agreement (as to all
Xxxxxxxxxx Institutional Series funds and their affiliates together) the
parties agree to review and, if necessary, negotiate the fees and
expenses set forth on Schedule 3.1 for the Fund and its Portfolios and
any new affiliated funds and their portfolios in light of the additional
administrative, technical and other service costs imposed on the Transfer
Agent by such additional services.
17. Limitations of Liability of the Trustees and Shareholders
A copy of the Agreement and Declaration of Trust of each Fund listed on
Appendix A is on file with the Secretary of the Commonwealth of
Massachusetts, and notice is hereby given that this instrument is
executed by an officer of the Trust on behalf of the Trustees of the
Trust as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or
Shareholders individually but are binding only upon the assets and
property of the Fund.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
21
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.
XXXXXXXXXX INSTITUTIONAL SERIES
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
As an Authorized Officer on behalf of
each of the Funds listed above.
ATTEST:
--------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
ATTEST:
-------------------------------
22
APPENDIX A
Funds and Portfolios
Xxxxxxxxxx Institutional Series, a business trust organized under the laws of
the Commonwealth of Massachusetts
Xxxxxxxxxx Emerging Markets Fund
Xxxxxxxxxx International Growth Fund
Xxxxxxxxxx International Core Fund
Xxxxxxxxxx International Value Fund
Xxxxxxxxxx All Countries Fund
XXXXXXXXXX INSTITUTIONAL SERIES BOSTON FINANCIAL DATA SERVICES, INC.
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
Appendix A - 1
SCHEDULE 1.2(f)
AML DELEGATION
Dated _____________
1. Delegation.
1.1 Subject to the terms and conditions set forth in this Agreement, the Fund
hereby delegates to the Transfer Agent those aspects of the Fund's
Program that are set forth in Section 4 below (the "Delegated Duties").
The Delegated Duties set forth in Section 4 may be amended, from time to
time, by mutual agreement of the Fund and the Transfer Agent upon the
execution by such parties of a revised Schedule 1.2(f) bearing a later
date than the date hereof.
1.2 The Transfer Agent agrees to perform such Delegated Duties, with respect
to the ownership of shares in the Fund for which the Transfer Agent
maintains the applicable shareholder information, subject to and in
accordance with the terms and conditions of this Agreement.
2. Consent to Examination. In connection with the performance by the
Transfer Agent of the Delegated Duties, the Transfer Agent understands
and acknowledges that the Fund remains responsible for assuring
compliance with the USA PATRIOT Act and that the records the Transfer
Agent maintains for the Fund relating to the AML Program may be subject,
from time to time, to examination and/or inspection by federal regulators
in order that the regulators may evaluate such compliance. The Transfer
Agent hereby consents to such examination and/or inspection and agrees to
cooperate with such federal examiners in connection with their review.
For purposes of such examination and/or inspection, the Transfer Agent
will use its best efforts to make available, during normal business hours
and on reasonable notice all required records and information for review
by such examiners.
3. Limitation on Delegation. The Fund acknowledges and agrees that in
accepting the delegation hereunder, the Transfer Agent is agreeing to
perform only the Delegated Duties, as may be amended from time to time,
and is not undertaking and shall not be responsible for any other aspect
of the AML Program or for the overall compliance by the Fund with the USA
PATRIOT Act or for any other matters that have not been delegated
hereunder. Additionally, the parties acknowledge and agree that the
Transfer Agent shall only be responsible for performing the Delegated
Duties with respect to the ownership of, and transactions in, shares in
the Fund for which the Transfer Agent maintains the applicable
shareholder information.
4. Delegated Duties
4.1 Consistent with the services provided by the Transfer Agent and with
respect to the ownership of shares in the Fund for which the Transfer
Agent maintains the applicable shareholder information, the Transfer
Agent shall:
(a) Submit all new account and registration maintenance transactions
through the Office of Foreign Assets Control ("OFAC") database and such
other lists or databases of trade restricted individuals or entities as
may be required from time to time by applicable regulatory authorities;
Schedule 1.2(f) - 1
(b) Submit special payee checks through OFAC database;
(c) Review redemption transactions that occur within thirty (30) days
of account establishment or maintenance;
(d) Review wires sent pursuant to instructions other than those
already on file with the Transfer Agent;
(e) Review accounts with small balances followed by large purchases;
(f) Review accounts with frequent activity within a specified date
range followed by a large redemption;
(g) On a daily basis, review purchase and redemption activity per tax
identification number ("TIN") within the Fund to determine if activity
for that TIN exceeded the $100,000 threshold on any given day;
(h) Compare all new accounts and registration maintenance through the
Known Offenders database and notify the Fund of any match.
(i) Monitor and track cash equivalents under $10,000 for a rolling
twelve- month period and file IRS Form 8300 and issue the Shareholder
notices required by the IRS;
(j) Determine when a suspicious activity report ("SAR") should be filed
as required by regulations applicable to mutual funds and prepare and
file the SAR. Provide the Fund with a copy of the SAR within a reasonable
time after filing; notify the Fund if any further communication is
received from U.S. Department of the Treasury or other law enforcement
agencies regarding the SAR;
(k) Compare account information to any FinCEN request received by the
Fund and provided to the Transfer Agent pursuant to USA PATRIOT Act Sec.
314(a). Provide the Fund with documents/information necessary to respond
to requests under USA PATRIOT Act Sec. 314(a) within required time
frames; and
(l) (i) Verify the identity of any person seeking to open an account with
the Fund, (ii) Maintain records of the information used to verify the
person's identity in accordance with applicable regulations and (iii)
Determine whether the person appears on any lists of known or suspected
terrorists or terrorist organizations provided to the Fund by any
government agency.
4.2 In the event that the Transfer Agent detects activity as a result of the
foregoing procedures, which necessitates the filing by the Transfer Agent
of a SAR, a Form 8300 or other similar report or notice to OFAC, then the
Transfer Agent shall timely file such report and also immediately notify
the Fund, unless prohibited by applicable law.
Schedule 1.2(f) - 2
4.3 AML Reporting
(a) On a quarterly basis, the Transfer Agent shall provide a report to
the Fund on its performance of the AML Delegated Duties, among
other compliance items, which report shall include information
regarding the number of: (i) potential incidents involving cash
and cash equivalents or unusual or suspicious activity, (ii) Forms
8300 and SARs filed on behalf of the Fund, (iii) outstanding
customer verification items, (iv) potential and confirmed matches
against the known offender and OFAC databases and (v) potential
and confirmed matches in connection with FinCen requests.
Notwithstanding anything in this Section 4.3(a) to the contrary,
the Transfer Agent reserves the right to amend and update the form
of its AML reporting from time to time to comply with new or
amended requirements of applicable law or to enhance its
Compliance+ program.
(b) At least annually, the Transfer Agent will arrange for independent
testing (an audit) of the AML services it provides to its clients
on an organization-wide basis by a qualified independent auditing
firm. The Transfer Agent will provide the AML compliance officer
of the Fund with the results of the audit and testing, including
any material deficiencies or weaknesses identified and any
remedial steps that will be taken or have been taken by the
Transfer Agent to address such material deficiencies or
weaknesses.
XXXXXXXXXX INSTITUTIONAL SERIES BOSTON FINANCIAL DATA SERVICES, INC.
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
Schedule 1.2(f) - 3
SCHEDULE 1.3
SERVICE LEVEL AGREEMENT
Overview
The standards below represent the levels and standards which the Transfer Agent
is generally achieving in its day-to-day operations and which the Fund may
reasonably expect the Transfer Agent to generally achieve. Notwithstanding
anything in the Transfer Agency and Service Agreement or any schedule or exhibit
thereto (the "Agreement") to the contrary, this does not mean, and, the Transfer
Agent neither represents, warrants or covenants that, nor does the Fund
necessarily expect, that the Transfer Agent shall always meet, fulfill or comply
with the levels and standards set forth below at all times. Rather, it is the
expectation of the parties that, in the event of a failure to meet, fulfill or
comply with the levels and standards set forth below, the parties shall
coordinate and cooperate to correct the inadequacies as set forth immediately
below in "Service Level Standard Resolution".
Service Level Standard Resolution
Notwithstanding the Transfer Agent's best efforts to achieve the levels and
standards herein, the Fund acknowledges that such levels and standards may not
be met at all times. In the event that there is a failure to meet a service
level or standard, the Transfer Agent shall promptly notify the senior officer
designated by the Fund. Thereafter, the parties shall meet to discuss the
reason(s) that the Transfer Agent failed to meet such service level or standard
with a view to restoring compliance with such level as quickly as reasonably
possible under the circumstances to avoid a repeated failure by the Transfer
Agent. As part of the resolution process, the parties may, as agreed upon, amend
the service level or standard listed below. The parties agree that if the
Transfer Agent does not meet (i) the majority of timeliness standards or (ii)
the overall quality standard for a period of three (3) consecutive months and
the Transfer Agent, after receiving written notice of such failure from the
Fund, does not remedy the failure to meet such service level or standard for
forty-five (45) days following such consecutive three (3) month period (or such
longer period of time as the parties may agree upon) then the Fund may terminate
the Agreement for cause upon at least sixty (60) days' advance written notice to
the Transfer Agent (the foregoing, a "Service Level Termination Right").
Compliance Measurement
The parties agree that measurement of the service levels and standards set forth
herein for purposes of the Service Level Termination Right or otherwise shall
not commence until January 1, 2006 in order to provide for an orderly transition
of services to the Transfer Agent.
Beginning in January 2006, the Transfer Agent will utilize its own internal
quality review process (or, any third party quality review process as the
Transfer Agent may elect from time to time to utilize, such process, "Quality
Review") to monitor the quality of services provided under the Agreement and the
Transfer Agent's satisfaction of the standards and levels set forth herein. The
Transfer Agent will measure its performance in accordance with industry
standards for (i) timeliness and accuracy of Financial and Non Financial
transactions and Call Centers and Correspondence and (ii) systems availability
through its Quality Review.
The Fund may, at any time, elect to retain, at its own expense, NQR (or, such
other industry-recognized, external quality review process as the Fund may elect
from time to time to utilize).
Schedule 1.6 - 1
In the event the Fund retains NQR or another third party quality review process,
the Transfer Agent will use all reasonable commercial efforts to assist and
cooperate with NQR (or such other industry recognized external quality review
process as the Fund may elect from time to time to utilize). In addition, the
Transfer Agent will provide to the Funds detail from the Quality Review on a
monthly basis. The Transfer Agent and the Fund agree to review the Quality
Review scores to implement process improvements going forward in the event that
improvements are necessary.
Call Center and Processing Standards.
ACTIVITY MONTHLY REPORTING STANDARDS
-------- ---------------------------
TIMELINESS STANDARDS
Call Center
Average Speed of Answer 15 seconds
Abandonment Rate 2%
Service Levels 85% within 15 seconds
Correspondence
Financial Inquiries 3 days
Non-Financial Inquiries 6 days
XXX Acct Transfer Request Notices 3 days
XXX Acct Transfer Reminder Notices 15,30, and 45 days
Transactions
Adjustments 98% within 2 days
Exchanges 100% date of receipt
Maintenance 98% within 3 days
New Accounts 100% date of receipt
Purchases 100% date of receipt
Redemptions 100% date of receipt
Transfers 98% within 2 days
Commission runs 3 business days
Trail commissions 5 business days
ACCURACY STANDARDS
Adjustments 95%
Exchanges 98%
Maintenances 98%
New Accounts 93%
Purchases 98%
Redemptions 97%
Transfers 97%
Overall Quality Standard 96%
Schedule 1.6 - 2
Systems Availability:
System/ System
Applications Hours of Availability* Availability
*Holidays with 7 calendar days advance notice
AS/400 99.0%
Boston Financial Monday-Friday 6:00 AM to 11:00 PM (EST)
AWD Databases Saturday 1:30 AM to 5:00 PM (EST)
Sunday 1:30 AM to 11:00 PM (EST)
TA2000 99.0%
Monday-Friday 7:00 AM to 11:00 PM (EST)
Please refer to our response below for
additional information
Saturday-Sunday
Generally available, other than for scheduled
maintenance or events
AS400:
Server availability is defined as the monthly availability rate that the
Transfer Agent (through its parent DST Systems, Inc., "DST") guarantees to
maintain for servers in the AWD Data Center in regard to server hardware,
operating system, and AWD applications. The monthly availability rate does not
include any third party applications, including any custom code.
TA2000 Availability:
TA2000 is generally available in some capacity on 24 hours a day, 7 days a week
basis. Below we have provided a description of general availability:
Service level agreements between DST and Boston Financial require that the CICS
regions be fully functional between the hours of 7:00 AM EST to the agreed upon
start of nightly, generally 10:00 PM EST on all days during which the New York
Stock Exchange is open for business however, in actuality the system is much
more widely available than the service level agreement implies.
During the nightly cycle, certain files are sporadically unavailable for batch
updates. When the shareowner master and history files are unavailable, alternate
files are allocated to the on-lines to allow some limited lookup and transaction
functionality.
Unless there is scheduled maintenance or other activity, such as a purge or
conversion, CICS regions are fully available and functional on all non-business
days. Scheduled DST maintenance occurs routinely, generally late on a Saturday
night or early on a Sunday morning. Purge and conversion events occur over
weekends, generally early Saturday morning through mid-afternoon. When these
xxxxx occur, the system is usually unavailable. For most purge and conversion
events, it is possible to implement the alternate file process. All scheduled
maintenance and other scheduled activities are reported via change control at
least two weeks in advance of the event.
Schedule 1.6 - 3
FanWeb and Voice Response Unit (VRU) Availability
Internet websites and VRU will be available 99.5% of the time on a 7 day/24 hour
basis, excluding for regularly scheduled maintenance to the Website and VRU.
Additional Information:
The Transfer Agent shall not be obligated to meet the foregoing levels and
standards during such periods where the Transfer Agent's failure to meet such
levels and standards arises out of, results from or is proximately caused by:
(i) a failure, inadequacy in the performance of or unavailability of
communication lines or communication facilities (including the equipment or
computer being used to access the communication lines) outside of the Transfer
Agent's facilities; (ii) a Force Majeure event as set forth in Section 15.3 of
the Agreement, (iii) an event which requires the Transfer Agent to process at
its disaster recovery facility, (iv) a failure to perform properly or timely by
a third party whose performance is a prerequisite for the Transfer Agent's
performance, (v) a failure, unavailability, disruption or circumstances arising
out of or resulting from the Internet if any service hereunder involves or
entails utilization of the Internet to transmit to or from the Transfer Agent's
facilities, (vi) a pre-planned extraordinary event (e.g., a hardware or software
installation), and/or (vii) failures to perform caused by third parties
(including the Fund) whose actions are beyond the Transfer Agent's reasonable
control. The Transfer Agent shall have no responsibility or liability for the
unavailability of a system or service where such unavailability was caused or
contributed to by inadequacies of the Fund's equipment.
The Transfer Agent's performance during periods affected by any one or more of
the foregoing conditions shall not be measured and included in any Quality
Review report provided by the Transfer Agent to the Fund; provided, however,
that as soon as any of the foregoing circumstances is rectified or alleviated,
the measurement of the Transfer Agent's performance under the foregoing levels
and standards shall recommence.
From time to time, business environment changes may necessitate updates to the
levels and standards contained within this document. The Transfer Agent and the
Fund agree to negotiate in good faith to reach agreement on such additional
requirements.
Schedule 1.6 - 4
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 Portfolio (i) orders by the
Plan for the purchases of Shares, and (ii) requests by the Plan for the
redemption of Shares; in each case based on the Plan's receipt of
purchase orders and redemption requests by Participants in proper form by
the time required by the term of the Plan, but not later than the time of
day as of which the net asset value of a Portfolio is calculated, as
described from time to time in that Portfolio'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 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 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 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 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.
Schedule 2.1 - 1
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 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 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.
XXXXXXXXXX INSTITUTIONAL SERIES BOSTON FINANCIAL DATA SERVICES, INC.
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
Schedule 2.1 - 2
SCHEDULE 3.1
XXXXXXXXXX INSTITUTIONAL SERIES
FEES AND EXPENSES
Effective 10/12/05 to 9/30/08
General: 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.
Annual Account Service Fees
Greater of the following account fees or $15,000 minimum per CUSIP:
Open Accounts*:
Networked $9.00/account
Non-Networked $15.00/account
Closed Accounts
All $2.00/account
*NOTE: Includes AML/CIP Services.
Activity Based Fees
Marketing/Sales Calls** $1.25/minute
**NOTE: Billed to the investment adviser of the Fund.
Fiduciary Fees
Effective January 1, 2006, all fiduciary fees (including set-up, maintenance and
closeout) paid by Shareholders or swept from current accounts (based on current
rates and terms with each Fund) will be retained by the Transfer Agent.
DDA Balance Earnings Credits
The Transfer Agent shall retain all DDA balance earnings credits in lieu of
additional fees hereunder.
Programming Hours $125 per hour
Out-of-Pocket Expenses Billed as Incurred***
Out-of-Pocket expenses include but are not limited to: postage, post office box
rental, supplies, statements, checkwriting, print and mailing services,
information disc (year end), COOL (computer output on-line), freight, telephone
charges, fax lines, 800 line charges, Powerselect,
Schedule 3.1 - 1
TA2000 voice, disaster recovery, offsite storage, Vax payroll processing, state
tax reporting, NSCC processing, Fund/SERV, literature requests, lost shareholder
searches, lost shareholder tracking, Short Term Trader, escheatment, year-end
forms, programming hours, on-request and scheduled reports, CIP-related search
charges and other expenses incurred at the specific direction of the Fund or
with advance written notice to the Fund.
***NOTE: The Transfer Agent reserves the right to introduce specific fee
increases, as necessary, to cover increases in the costs of out-of-pocket
expenses or regulatory changes; provided, that such fee increases are applied on
a universal basis to other clients of the Transfer Agent and that the Transfer
Agent provides 90 days advance written notice to the Fund of each such increase.
E-mail communication shall be deemed a written communication for purposes of the
notice provisions herein.
XXXXXXXXXX INSTITUTIONAL SERIES BOSTON FINANCIAL DATA SERVICES, INC.
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
As an Authorized Officer on behalf of
each of the Funds indicated on
Appendix A
Schedule 3.1 - 2
SCHEDULE 9
TRANSFER AGENT'S LIABILITY
In accordance with the provisions of Section 6 of the Agreement to which this
Schedule 9 is attached, the parties hereto agree that as of the date of this
Agreement, no separate limitation on the liability of Boston Financial has been
established by the parties and Boston Financial's liability, if any, hereunder
shall be determined in accordance with the terms of the Agreement.
Schedule 9 - 1
