EXECUTION COPY
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
FIFTH THIRD FUNDS
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
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 Funds...........................9
6. Wire Transfer Operating Guidelines...................................10
7. Data Access and Proprietary Information..............................11
8. Indemnification......................................................13
9. Standard of Care.....................................................15
10. Confidentiality .....................................................16
11. Covenants of the Funds and the Transfer Agent........................17
12. Termination of Agreement.............................................19
13. Assignment and Third Party Beneficiaries.............................22
14. Subcontractors.......................................................23
15. Changes and Modifications............................................23
16. Miscellaneous........................................................24
17. Additional Funds/Portfolios..........................................26
18. Limitations of Liability of the Trustees and Shareholders............26
Schedule A Funds and Portfolios
Schedule 1.2(f) AML and CIP Delegation
Schedule 2.1 Third Party Administrator(s) Procedures
Schedule 3.1 Fees and Expenses
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT made as of the 14th day of May 2007, by and between FIFTH THIRD
FUNDS, a Massachusetts business trust, having its principal office and place of
business at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (collectively, the
"Funds" and individually, the "Fund") and BOSTON FINANCIAL DATA SERVICES, INC.,
a Massachusetts corporation having its principal office and place of business at
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, such series
shall be named in the attached Schedule A, which may be amended by the parties
from time to time, (each such series, together with all other series
subsequently established by a Fund and made subject to this Agreement in
accordance with Section 17, being herein referred to as a "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund is a Massachusetts business trust registered with the
Securities and Exchange Commission as an investment company pursuant to the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, it is contemplated that additional Portfolios may become parties to
this Agreement by written consent of the parties hereto and in accordance with
Section 17; and
WHEREAS, the Fund, on behalf of itself and its 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 itself and its
Portfolios, hereby employs and appoints the Transfer Agent to act as,
and the Transfer Agent agrees to act as, its transfer agent for each
Portfolio of the Fund's authorized and issued shares or beneficial
interest, as the case maybe, ("Shares"), dividend disbursing agent and
agent in connection with any accumulation, open-account or similar
plan provided to the shareholders of the Fund and of any Portfolios of
the Fund ("Shareholders"), including without limitation any periodic
investment plan or periodic withdrawal program. In accordance with
procedures established from time to time by agreement between the
Transfer Agent and the Fund and its Portfolios, (the "Procedures")
with such changes or deviations there from as have been (or may from
time to time be) agreed upon in writing by the parties, the Transfer
Agent agrees that it will perform the following services:
(a) Establish each Shareholder's account in the Fund on the Transfer
Agent's recordkeeping system and maintain such account for the benefit
of such Shareholder in accordance with the Procedures;
(b) Receive for acceptance and process orders for the purchase of
Shares, and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Fund authorized pursuant to the
organizational documents of the Fund (the "Custodian");
(c) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(d) Receive for acceptance and process redemption requests and
redemption directions and deliver the appropriate documentation
thereof to the Custodian;
(e) In respect to items (a) through (d) above, the Transfer Agent may
execute transactions directly with broker-dealers authorized by the
Fund;
(f) 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;
(g) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(h) Prepare and transmit payments for dividends and distributions
declared by any Portfolio of the Fund;
(i) If applicable, 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;
(j) 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, as between the Fund and the
Transfer Agent, the Fund shall be responsible for all losses or claims
resulting from such replacement;
(k) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(l) 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 Transfer Agent shall also provide the Fund
on a regular basis with the total number of Shares which are
authorized and issued and outstanding but shall have no obligation,
when recording the issuance of Shares, to monitor the issuance of such
Shares or to take cognizance of any laws relating to the issue or sale
of such Shares, which functions shall be the sole responsibility of
the Fund;
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(m) Accept any information, records, documents, data, certificates,
transaction requests by machine readable input, facsimile, CRT data
entry and electronic instructions, including e-mail communications,
which have been prepared, maintained or provided by the Fund or any
other person or firm on behalf of the Fund or from broker-dealers of
record or third-party administrators ("TPAs") on behalf of individual
Shareholders. With respect to transaction requests received in the
foregoing manner, the Transfer Agent shall not be responsible for
determining that the original source documentation is in good order,
which includes compliance with Rule 22c-1 under the 1940 Act, and it
will be the responsibility of the Fund to require its broker-dealers
or TPAs to retain such documentation. E-mail exchanges on routine
matters may be made directly with the Fund's contact at the Transfer
Agent. The Transfer Agent will not act on any e-mail communications
coming to it directly from Shareholders requesting transactions,
including, but not limited to, monetary transactions, change of
ownership, or beneficiary changes;
(n) Maintain and manage, as agent for the Fund, such bank accounts as
the Transfer Agent shall deem necessary for the performance of its
duties under this Agreement, including but not limited to, the
processing of share purchases and redemptions and the payment of Fund
dividends and distributions. The Transfer Agent may maintain such
accounts at the bank or banks deemed appropriate by the Transfer
Agent. In connection with the recordkeeping and other services
provided to the Fund hereunder, including the management of such
accounts, the Transfer Agent may receive a portion of its compensation
that is based upon the average balances of such accounts;
(o) Receive correspondence pertaining to any former, existing or new
Shareholder account, process such correspondence for proper
recordkeeping and respond to Shareholder correspondence; and
(p) Process any request from a Shareholder to change account
registration, beneficiary, beneficiary information, transfer and
rollovers in accordance with the Procedures.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraphs, 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 or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, arrange for mailing of
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
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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") and Other Reports.
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. Provide
the Fund with such other reports as the parties may mutually agree
from time to time;
(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 authorized broker-dealers on the Fund 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.'s 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 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 if such an arrangement is set forth in said written procedures;
(f) Anti-Money Laundering ("AML") Delegation. If the Fund elects to
delegate to the Transfer Agent certain AML duties under this
Agreement, the parties will agree 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. In consideration of the performance of
the duties by the Transfer Agent pursuant to this Section 1.2(f), the
Fund agrees to pay the Transfer Agent for the reasonable
administrative expense that may be associated with such additional
duties;
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(g) Call Center Services. Answer telephone inquiries from 8 a.m. to 5
p.m., central time, each day on which the New York Stock Exchange is
open for trading and on such other days as the parties shall mutually
agree. The Transfer Agent shall answer and respond to inquiries from
existing Shareholders, prospective Shareholders of the Fund and
broker-dealers on behalf of such Shareholders in accordance with the
telephone scripts provided by the Fund to the Transfer Agent, such
inquiries may include requests for information on account set-up and
maintenance, general questions regarding the operation of the Fund,
general account information including dates of purchases, redemptions,
exchanges and account balances, requests for account access
instructions and literature requests. In consideration of the
performance of the duties by the Transfer Agent pursuant to this
Section, the Fund agrees to pay the Transfer Agent the fee set forth
on Schedule 3.1 attached hereto and the reasonable out-of-pocket
expenses that may be associated with these additional duties;
(h) Short Term Trader. Upon request of the Fund, the Transfer Agent
will provide the Fund with periodic reports on trading activity in the
Fund based on parameters provided to the Transfer Agent by the Fund,
as amended from time to time. The services to be performed by the
Transfer Agent for the Fund hereunder will be ministerial only and the
Transfer Agent shall have no responsibility for monitoring or
reviewing market-timing activities. In consideration of the
performance of the duties by the Transfer Agent pursuant to this
Section, the Fund agrees to pay the Transfer Agent the fee set forth
on Schedule 3.1 attached hereto and the reasonable out-of-pocket
expenses that may be associated with these additional duties;
(i) Escheatment, Orders, Etc. If requested by the Fund (and as
mutually agreed upon by the parties as to any reasonable out-of-pocket
expenses), provide any additional related services (i.e., pertaining
to escheatments, abandoned property, garnishment orders, bankruptcy
and divorce proceedings, Internal Revenue Service or state tax
authority tax levies and summonses and all matters relating to the
foregoing; and
(j) Performance of Certain Services by the Fund or Affiliates or
Agents. New procedures as to who shall provide certain of the transfer
agency and record-keeping related services may be established in
writing from time to time by agreement between the Fund and the
Transfer Agent. The Transfer Agent may at time perform only a portion
of the services and the Fund, its affiliates or agents may perform
certain services on the Fund's behalf.
1.3 Site Visits and Inspections; Regulatory Examinations. During the term
of this Agreement, authorized representatives of the Funds may conduct
reasonable periodic site visits of the Transfer Agent's facilities and
inspect the Transfer Agent's records and procedures solely as they
pertain to the Transfer Agent's services for the Fund under or
pursuant to this Agreement. Such inspections shall be conducted at the
Funds' expense (which shall include costs related to providing
materials, copying, faxing, retrieving stored materials, and similar
expenses), upon reasonable notice, and shall occur during the Transfer
Agent's regular business hours. In connection with such site visit
and/or
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inspection, the Fund shall not attempt to access, nor will it review,
the records of any other clients of the Transfer Agent and the Fund
shall conduct the visit/inspection in a manner that will not interfere
with the Transfer Agent's normal and customary conduct of its business
activities, including the provision of services to the Fund and to
other clients. The Transfer Agent shall have the right to immediately
require the removal of any Fund representatives from its premises in
the event that their actions, in the reasonable opinion of the
Transfer Agent, jeopardize the information security of its systems
and/or other client data or otherwise are disruptive to the business
of the Transfer Agent. The Transfer Agent may require any persons
seeking access to its facilities to provide reasonable evidence of
their authority. The Transfer Agent will also provide reasonable
access to the Fund's governmental regulators, at the Fund's expense,
solely to (i) the Fund's records held by the Transfer Agent and (ii)
the procedures of the Transfer Agent directly related to its provision
of services to the Fund under the Agreement.
1.4 Service Levels. The parties agree that the Services under this
Agreement shall be carried out in accordance with the provisions of
the mutually agreed upon service level standards as set forth on
Schedule 1.4 attached hereto, which Schedule may be amended by the
parties from time to time upon mutual written agreement.
2. Third Party Administrators ("TPAs") 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 TPAs 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
Funds and not as a record-keeper for the Plans.
2.3 Transactions identified under Sections 1 and 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
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employed by the Transfer Agent to perform transfer agency and
recordkeeping services;
(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 normally required.
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 the fee and
expenses 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. The parties
agree that the fees set forth on Schedule 3.1 shall apply with respect
to the Portfolios set forth on Schedule A hereto as of the date hereof
and to any newly created portfolios of the Fund added to this
Agreement under Section 17 that have requirements consistent with
services then being provided by the Transfer Agent under this
Agreement. The fees set forth on Schedule 3.1, however, shall not
automatically apply to any funds resulting from acquisition or merger
subsequent to the execution of this Agreement. In the event that a
fund is to become a party to this Agreement as the result of an
acquisition or merger then the parties shall confer diligently and in
good faith, and agree upon fees applicable to such fund.
3.2 Out-of-Pocket Expenses. In addition to the fees paid under Section 3.1
above, the Fund agrees to reimburse the Transfer Agent for
out-of-pocket expenses, including but not limited to: AML/CIP annual
fee, audio response, checkwriting, CIP-related database searches,
commission fee application, data communications equipment, disaster
recovery, escheatment, express mail and delivery services, federal
wire charges, forms and production, freight, household tape
processing, lost shareholder searches, lost shareholder tracking,
manual check pulls, microfiche/COOL, network products, new fund
implementation, NSCC processing, postage, offsite storage, P.O. box
rental, print/mail services, programming hours, regulatory compliance
fee per CUSIP, reporting (on request and scheduled), returned checks,
Short Term Trader, special mailing, statements, supplies, tax
reporting (federal and state), telephone (telephone and fax lines),
training, transcripts, travel, vax payroll processing, year-end
processing and other expenses incurred at the specific direction of
the Fund or with advance written notice to the Fund.
3.3 Increases. The fees and charges set forth on Schedule 3.1 shall
increase or may be increased (i) in accordance with Section 3.6 below;
or (ii) in connection with new or additional functions or features or
new services or modes of operation of the TA2000 system, desired by
the Fund and agreed to by the Transfer Agent, or if changes in
applicable laws require unforeseen costs to the Transfer Agent in
connection with servicing the Fund. If the Transfer Agent notifies the
Fund of a planned or proposed
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increase in fees under subparagraph (ii) of this Section 3.3, the
parties shall confer, diligently and in good faith and agreed upon a
new fee to cover such new function, feature, service, mode of
operation or the increased cost due to applicable law changes.
3.4 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.
3.5 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within forty-five (45) days following the receipt of the respective
invoice, 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
thirty (30) calendar days following the receipt of each invoice 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 invoice
will be deemed accepted by the Fund. Once the parties agree on the
resolution of any disputed amount, the Fund agrees to pay such agreed
upon amount within ten (10) business days following such mutual
agreement. If no agreement is reached, then such disputed amounts
shall be settled as may be required by law or legal process.
3.6 Cost of Living Adjustment. After the first year of the Initial Term,
the total fee for all services for each succeeding year 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-U (defined below), or, in the event that publication of such
Index is terminated, any successor or substitute index, appropriately
adjusted, acceptable to both parties, but in no event shall such
increase exceed five percent (5.0%) annually. As used herein, "CPI-U"
shall mean the Consumer Price Index (CPI-U) in the Kansas City,
Missouri-Kansas Standard Metropolitan Statistical Area, All Items,
Base 1982-1984=100, as last reported by the United States Department
of Labor, Bureau of Labor Statistics.
3.7 Late Payments. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due, the
Transfer Agent shall have the right to charge the Fund interest on
such overdue amount (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
provisions of Massachusetts law.
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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 a duly registered as a transfer agent under Section 17A(c)(2) of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
it will remain so registered for the duration of this Agreement. It
will promptly notify the Fund in the event of any material change in
its status as a registered transfer agent.
4.3 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.4 It is empowered under applicable laws and by its Articles of
Organization and By-Laws to enter into and perform the services
contemplated in this Agreement.
4.5 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.6 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
4.7 It will perform its obligations in compliance with the federal and
state laws, rules and regulations applicable to its business and
services and with such other rules or standards that may be requested
by the Fund from time to time and agreed upon by the Transfer Agent.
4.8 The execution, delivery and performance of this Agreement by the
Transfer Agent (1) has been duly authorized by the Transfer Agent, and
(2) will not conflict with, result in a breach of or constitute a
default under any other agreement to which the Transfer Agent is a
party or by which the Transfer Agent is bound.
5. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a Massachusetts business trust duly organized and existing and
in good standing under the laws of the state of its organization.
5.2 It is empowered under applicable laws and by its organizational
documents to enter into and perform this Agreement.
5.3 All corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
5.4 The Fund is an open-end and diversified management investment company
registered under the 1940 Act.
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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 by the Fund.
5.6 It will comply with the federal and state laws, rules and regulations
applicable to its business.
5.7 The execution, delivery and performance of this Agreement by the Fund
(1) has been duly authorized by the Fund, and (2) will not conflict
with, result in a breach of or constitute a default under any other
agreement to which the Fund is a party or by which the Fund is bound.
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.
6.2 Security Procedure. The Fund acknowledges that the Security Procedure
it has designated on the 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 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 judgment, to exceed any volume, aggregate dollar, network, time,
credit or
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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
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 guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association, the
Transfer Agent's bank affiliate 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 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 call-back. 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,
11
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 Customer Information (as defined in Section 10.2 below) or the
confidential information of 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, (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)), 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 the Transfer Agent in a timely manner of such fact and
dispose of such information in accordance with the Transfer Agent's
instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's computer to be retransmitted
to any other computer or other device except as expressly permitted by
the Transfer Agent (such permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent; and
(f) 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.
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
12
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. EXCEPT THOSE
EXPRESSLY STATED HEREIN THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL
WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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.
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, and with respect to Section
8.1(f) herein, also State Street Bank and Trust Company ("State
Street"), harmless, from and against, any and all losses, damages,
costs, charges, counsel fees (including the defense of any lawsuit 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 intentional misconduct;
(b) The Fund 's lack of good faith or intentional misconduct;
(c) The reliance upon, and any subsequent reasonable 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,
13
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 by counsel to the Fund after consultation with such legal
counsel and upon which instructions or opinion the Transfer Agent is
expressly permitted to rely or opinions of legal counsel that are
obtained by the Transfer Agent; or (iv) any paper or document,
reasonably believed to be genuine, authentic, or signed by the proper
person or persons so authorized by the Fund;
(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 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 and ACH
transmissions including without limitation for deposit into, or credit
to, the Fund's demand deposit accounts maintained by the Transfer
Agent; or
(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.
8.2 To the extent that the Transfer Agent is not entitled to
indemnification pursuant to Section 8.1 above and only to the extent
of such right, the Fund shall not be responsible for, and the Transfer
Agent shall indemnify and hold the Fund 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. For those
activities or actions delineated in the Procedures, the Transfer Agent
shall be presumed to have used reasonable care, acted without
negligence, and acted in good faith if it has acted in accordance with
the Procedures.
8.3 In order that the indemnification provisions contained in this Section
8 shall apply, upon the assertion of a claim for which one party may
be required to indemnify the other party, the indemnified party shall
promptly notify the indemnifying party of such assertion, and shall
keep the indemnifying party advised with respect to all developments
concerning such claim. The indemnifying party shall have the option to
participate with the indemnified party in the defense of such claim or
to defend against said claim in its own name or in the name of the
indemnified party. The indemnified
14
party shall in no case confess any claim or make any compromise in any
case in which the indemnifying party may be required to indemnify the
indemnified party except with the indemnifying party's prior written
consent. In the event that the indemnifying party shall be handling
the defense of a claim, the indemnified party may participate in the
defense at its own expense.
8.4 As-of Adjustments. Notwithstanding anything herein to the contrary,
with respect to "as of" adjustments, the Transfer Agent will not
assume one hundred percent (100%) responsibility for losses resulting
from "as ofs" due to clerical errors or misinterpretations of
shareholder instructions, but the Transfer Agent will discuss with the
Fund the Transfer Agent's accepting liability for an "as of" on a
case-by-case basis and will accept financial responsibility for a
particular situation resulting in a financial loss to the Fund where
such loss is "material", as hereinafter defined, and, under the
particular facts at issue, the Transfer Agent's conduct was culpable
and the Transfer Agent's conduct is the sole cause of the loss. A loss
is "material" for purposes of this Section 8.4 when it results in a
pricing error on a particular transaction which is (i) greater than a
negligible amount per shareholder, (ii) equals or exceeds one ($.01)
full cent per share times the number of shares outstanding or (iii)
equals or exceeds the product of one-half of one percent (1/2%) times
the Fund's net asset value per share times the number of shares
outstanding (or, in case of (ii) or (iii), such other amounts as may
be adopted by applicable accounting or regulatory authorities from
time to time).
(a) If the net effect of the "as of" transactions that are determined
to be caused by the Transfer Agent is negative and exceeds the above
limit, then the Transfer Agent shall promptly contact the Fund
accountants. The Transfer Agent will work with the Fund accountants to
determine what, if any, impact the threshold break has on the Fund's
Net Asset Value and what, if any, further action is required. These
further actions may include but are not limited to, the Fund
re-pricing the affected day(s), the Transfer Agent re-processing, at
its expense, all affected transactions in the Fund that took place
during the period or a payment to the Fund. The Fund agrees to work in
good faith with the Transfer Agent and wherever possible, absent a
regulatory prohibition or other mutually agreed upon reason, the Fund
agrees to re-price the affected day(s) and to allow the Transfer Agent
to re-process the affected transactions. When such re-pricing and
re-processing is not possible, and when the Transfer Agent must
contribute to the settlement of a loss, the Transfer Agent's
responsibility will commence with that portion of the loss over $0.01
per share calculated on the basis of the total value of all shares
owned by the affected portfolio (i.e., on the basis of the value of
the shares of the total portfolio, including all classes of that
portfolio, not just those of the affected class) and the Transfer
Agent will make such account adjustments and take such other action as
is necessary to compensate shareholders for shareholder losses and
reimburse the Fund for the amount of Fund losses in accordance with
the foregoing standards. If the Transfer Agent contributes to the
settlement of a loss, the amount paid by the Transfer Agent shall be
deducted from the amount of any accumulated losses calculated in the
fiscal year monitoring process described below.
(b) The Transfer Agent will monitor all portfolios across share
classes to determine the accumulated gain or loss effect of "as-of
trades" caused solely by the transfer agent. A
15
threshold limit of one-half of one cent ($.005) per share is
calculated systematically and this amount is used as a threshold limit
for monitoring purposes.
9. Standard of Care
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 that 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 shall take into consideration and make allowances for the
manual processing and non-standard work involved in Exception
Services. Notwithstanding the foregoing, the Transfer Agent's
aggregate liability during any term of this Agreement with respect to,
arising from or arising in connection with this Agreement, or from all
services provided or omitted to be provided by the Transfer Agent
under this Agreement for all of the Funds subject this Agreement,
whether in contract, or in tort, or otherwise, is limited to, and
shall not exceed the aggregate of the amounts actually received
hereunder by the Transfer Agent as fees and charges, but not including
reimbursable expenses, for all of the Funds covered by this Agreement
during the twelve (12) calendar months immediately preceding the first
event for which recovery from the Transfer Agent is being sought. The
foregoing limitation on liability shall not apply to any loss or
damage resulting from any fraud committed by the Transfer Agent's
employees or any intentional malevolent acts by the Transfer Agent's
employees. For purposes of this Section 9, "intentional malevolent
acts" shall mean those acts undertaken purposefully under the
circumstances in which the person knows or has reason to believe that
such acts violates this Agreement and are likely to cause damage or
harm.
10. Confidentiality
10.1 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. The Fund 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 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 above prohibition of disclosure shall
not apply to the extent that the Transfer Agent must
16
disclose such data to its sub-contractor or Fund agent for purposes of
providing services under this Agreement, provided that such
sub-contractors or agents have been advised of and agree to be, or
are, bound by similar confidentiality obligations.
10.2 As between the Fund and Transfer Agent, Customer Information (as
defined below) is and will remain the sole and exclusive property of
the Fund. "Customer Information" means all the customer identifying
data however collected or received, including without limitation,
through "cookies" or non-electronic means pertaining to or
identifiable to the Fund's customer(s) or prospective customer(s) and
plan administrators (collectively, "Fund Customers"), including
without limitation, (i) name, address, email address, passwords,
account numbers, personal financial information, personal preferences,
demographic data, marketing data, data about securities transactions,
credit data or any other identification data; (ii) any information
that reflects the use of or interactions with a Fund service,
including the Fund's web site; or (iii) any data otherwise submitted
in the process of registering for a Fund service. For the avoidance of
doubt, Customer Information shall include all "nonpublic personal
information," as defined under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999
(Public Law 106-102, 113 Stat. 1138) ("GLB Act"). This Agreement shall
not be construed as granting any ownership rights in Transfer Agent to
Customer Information.
10.3 The Transfer Agent represents, covenants, and warrants that Transfer
Agent will use Customer Information only in compliance with (i) the
provisions of this Agreement, (ii) its own Privacy and Information
Sharing Policy, as amended and updated from time to time and (iii)
privacy laws applicable to its business, including the GLB Act as such
is applicable to its transfer agency business.
10.4 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
Transfer Agent will use reasonable efforts to notify the Fund (except
where prohibited by law) 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.
10.5 Any breach of this Section 10 will be handled in accordance with the
provisions of Section 11.7 of this Agreement.
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 or the
Board of Directors, as the case may be, of the Fund authorizing the
appointment of the Transfer Agent and the execution and delivery of
this Agreement; and
17
(b) A copy of the organizational documents 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 Records. The Transfer Agent shall keep records relating to the
services to be performed hereunder, in the form, manner and for such
periods, as it may deem advisable and as may be required by the laws
and regulations applicable to its business as a Transfer Agent,
including those set forth in 17 CFR 240.17Ad-6 and 17 CFR 240.17Ad-7,
as such regulations may be amended from time to time. The Transfer
Agent shall also maintain customary records in connection with its
agency for the Fund; particularly those records required to be
maintained pursuant to subparagraph (2)(iv) of paragraph (b) of Rule
31a-1 under the Investment Company Act of 1940 and such records shall
remain the property of the Fund while in the possession, or under the
control, of the Transfer Agent. Records maintained by the Transfer
Agent on behalf of the Fund shall be made available for reasonable
examinations by the SEC upon reasonable request and shall be
maintained by the Transfer Agent for such period as required by
applicable law or until such earlier time as the Transfer Agent has
delivered such records into the Fund's possession or destroyed them at
the Fund's request. The Fund shall have access to such records, upon
reasonable request, during the Transfer Agent's normal business hours.
Upon the reasonable request of the Fund, copies of any such records
shall be provided by the Transfer Agent to the Fund in a mutually
agreeable format, at the Fund's expense.
11.4 Service Locations. The Transfer Agent may provide the services
hereunder from service locations within or outside of the United
States. The Transfer Agent will provide the Fund with reasonable prior
notice of any proposed change in service location, including a general
description of the services that will be provided at any new service
location and such other information as the Fund may reasonably
request.
11.5 Compliance Program. The Transfer Agent maintains and will contain to
maintain a comprehensive compliance program reasonably designed to
prevent violations of the federal securities laws pursuant to Rule
38a-1 under the 1940 Act. Pursuant to its compliance program, the
Transfer Agent will provide periodic measurement reports to the Fund.
Upon request of the Fund, the Transfer Agent will provide to the Fund
in connection with any periodic annual or semi-annual shareholder
report filed by the Fund or, in the absence of the filing of such
reports, on quarterly basis, a sub-certification pursuant to the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 with respect to the Transfer Agent's
performance of the services set forth in this Agreement and its
internal controls related thereto. In addition, on a quarterly basis,
the Transfer Agent will provide to the Fund a certification in
connection with Rule 38a-1 under the 1940 Act. The Transfer Agent
reserves the right to amend and update its compliance program and the
measurement tools and certifications provided thereunder from time to
time in order to address changing regulatory and industry
developments. The Transfer Agent shall keep the Fund informed in a
timely manner of any material amendments or updates.
18
11.6 SAS70 Reports. The Transfer Agent will furnish to the Fund, on a
semi-annual basis, a report in accordance with Statements on Auditing
Standards No. 70 (the "SAS70 Report") as well as such other reports
and information relating to the Transfer Agent's policies and
procedures and its compliance with such policies and procedures and
with the laws applicable to its business and its services, as the Fund
may reasonable request.
11.7 Information Security. The Transfer Agent maintains and will continue
to maintain at each service location physical and information security
safeguards against the destruction, loss, theft or alteration of the
Fund's Confidential Information, including Customer Information, in
the possession of the Transfer Agent that will be no less rigorous
than those in place at the effective date of this Agreement, and from
time to time enhanced in accordance with changes in regulatory
requirements. The Transfer Agent will, at a minimum, update its
policies to remain compliant with regulatory requirements. The
Transfer Agent will meet with the Fund, at its request, on an annual
basis to discuss information security safeguards. If the Transfer
Agent or its agents discover or are notified of that someone has
violated security relating to the Fund's Confidential Information,
including Customer Information, the Transfer Agent will promptly (a)
notify the Fund of such violation, and (b) if the applicable
Confidential Information was in the possession or under the control of
the Transfer Agent or its agents at the time of such violation, the
Transfer Agent will promptly (i) investigate, contain and address the
violation, and (ii) provide the Fund with assurance reasonably
satisfactory to the Fund that such violation will not recur.
11.8 Business Continuity/Disaster Recovery. The Transfer Agent will
maintain a comprehensive business continuity/disaster recovery plan
(the "BC/DR Plan") and will provide an executive summary of such plan
upon reasonable request of the Fund. The Transfer Agent will test the
adequacy of its BC/DR Plan at least annually and upon request, the
Fund may participate in such test. Upon request by the Fund, the
Transfer Agent will provide the Fund with a letter assessing the most
recent BC/DR Plan test results. In the event of a business disruption
that materially impacts the Transfer Agent's provision of services
under this Agreement, the Transfer Agent will promptly notify the Fund
of the disruption and the steps being implemented under the BC/DR
Plan. The Transfer Agent will maintain, at a location other than its
normal location, appropriate redundant facilities for operational
back-up in the event of a power failure, disaster or other
interruption. The Transfer Agent shall have no liability with respect
to the loss of data or service interruptions caused by equipment
failure, provided such loss or interruption is not caused by the
Transfer Agent's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement.
12. Termination of Agreement
12.1 Term. The initial term of this Agreement (the "Initial Term") shall be
five (5) years from the date first stated above unless terminated
pursuant to the provisions of this Section 12. The term may be renewed
by mutual agreement of the Transfer Agent and the individual Fund for
successive periods of one year each ("Renewal Term"). Either the
Transfer Agent or the Fund shall give written notice to the other
party ninety (90) days before the expiration of the Initial Term or of
a Renewal Term if such party desires
19
not to renew the term for an additional one year period and in the
absence of such notice the Agreement shall renew automatically for
such one year term. In the event a Fund wishes to terminate this
Agreement as to the Fund prior to the expiration of the Initial Term
or a Renewal Term, the Fund shall give ninety (90) days prior written
notice to the Transfer Agent and shall be subject to the terms of this
Section, including the payments applicable under Section 12.3. Ninety
(90) days before the expiration of the Initial Term or a Renewal Term,
the Transfer Agent and the Fund will agree upon a Fee Schedule for the
upcoming Renewal Term. In the event the parties fail to agree upon a
new Fee Schedule as of such date, the Fee Schedule set forth as
Schedule 3.1 hereto shall remain in effect subject to increase under
Section 3.6. Notwithstanding the termination or non-renewal of this
Agreement, the terms and conditions of this Agreement shall continue
to apply until the completion of Deconversion (defined below).
12.2 Deconversion. In the event that this Agreement is terminated or not
renewed for any reason by the Fund, the Transfer Agent agrees that, in
order to provide for uninterrupted service to the Fund, the Transfer
Agent, at Fund's request, shall offer reasonable assistance to the
Fund in converting the Fund's records from the Transfer Agent's
systems to whatever services or systems are designated by Fund (the
"Deconversion"). Such Deconversion is subject to the recompense of the
Transfer Agent for such assistance at its standard rates and fees in
effect at the time and to a reasonable time frame for performance as
agreed to by the parties. As used herein "reasonable assistance" and
"transitional assistance" shall not include requiring the Transfer
Agent (i) to assist any new service or system provider to modify, to
alter, to enhance, or to improve such provider's system, or to provide
any new functionality to such provider's system, (ii) to disclose any
protected information of the Transfer Agent, including the Proprietary
Information as defined in Section 7.1, or (iii) to develop
Deconversion software, to modify any of the Transfer Agent's software,
or to otherwise alter the format of the data as maintained on any
provider's systems.
12.3 Termination or Non Renewal.
(a) Outstanding Fees and Charges. In the event of termination or
non-renewal of this Agreement by the Fund, the Fund will promptly pay
the Transfer Agent all fees and charges for the services provided
under this Agreement (i) which have been accrued and remain unpaid as
of the date of such notice of termination or non-renewal and (ii)
which thereafter accrue for the period through and including the date
of Fund's Deconversion.
(b) Deconversion Costs and Post-Deconversion Support Fees. In the
event of termination or non-renewal of this Agreement by the Fund, the
Fund shall pay the Transfer Agent for the Deconversion costs as noted
in Section 12.2 and all reasonable fees and expenses for providing any
support services that the Fund requests the Transfer Agent to provide
post Deconversion, including but not limited to tax reporting and open
issue resolution. With respect to a termination of this Agreement (i)
at the election of the Transfer Agent without the mutual agreement of
the Fund, or (ii) for cause by the Fund pursuant to Section 12.7, the
parties shall confer in good faith and mutually agree upon the
appropriate allocation of such Deconversion costs.
20
(c) Early Termination for Convenience. In addition to the foregoing,
in the event that the Fund terminates this Agreement prior to the end
of the Initial Term or any Renewal Term other than due to the Transfer
Agent's bankruptcy under Section 12.6 or for cause under Section 12.7,
the Fund shall pay the Transfer Agent an amount equal to the average
monthly fee paid by the Fund to the Transfer Agent under the Agreement
multiplied by the number of months remaining in the Initial or Renewal
Term (not to exceed six (6) months) and calculated as set forth on the
then current Fee Schedule, on the date notice of termination was given
to the Transfer Agent (the "Early Termination Payment"). The Transfer
Agent may, in its discretion, waive the Early Termination Payment in
the event of a termination by one or more Portfolios of the Fund in
connection with the liquidation or merger of such Portfolios in the
ordinary course of business, so long as the total number of CUSIPS and
accounts remaining to be serviced by the Transfer Agent under this
Agreement immediately after such liquidation or merger are not
substantially less than the number in effect as of the date of the
most recent Fee Schedule. The termination of this Agreement with
respect to any given Portfolio shall in no way affect the continued
validity of this Agreement with respect to any other Portfolio.
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. An officer of each
party shall provide a certification of such return to the other party.
12.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement upon
an unpaid invoice payable by the Fund to the Transfer Agent being
outstanding for more than ninety (90) days after receipt by the Fund,
except with respect to any amount subject to a good faith dispute
within the meaning of Section 3.5 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.
12.7 Cause. (a) If either of the parties hereto becomes in default in the
performance of its duties or obligations hereunder and such default
has a material adverse effect on the other party, then the
non-defaulting party may give notice to the defaulting party
specifying the nature of the default in sufficient detail to permit
the defaulting party to identify and cure such default. If the
defaulting party fails to cure such default within thirty (30) days of
receipt of such notice, or within such other period of time as the
parties may agree is necessary for such cure, then the non-defaulting
party may terminate this Agreement upon notice of not less than five
(5) days to the defaulting party.
21
(b) Either party may terminate this Agreement upon the provision of
ninety (90) days advance written notice upon (i) a final finding or
determination of fault or culpability of the party not alleging cause
(the "Affected Party") or its affiliates following formal proceedings
against such Affected Party or its affiliates by the SEC, NASD, or any
federal or state regulatory body, which finding or determination,
relates to or affects Transfer Agent's or the Fund's obligations under
this Agreement, if the party seeking termination reasonably determines
that such finding or determination, or the facts on which such finding
or determination are based (A) has a material likelihood of preventing
or materially impacting the Transfer Agent's or the Fund's performance
of, or ability to perform, its obligations under this Agreement or (B)
relates to or involves criminal behavior by the Affected Party; or
(ii) a final, unappealable judicial, regulatory or administrative
ruling or order in which the Affected Party has been found guilty of
criminal behavior in the conduct of its business.
12.8 In the event that the Fund terminates this Agreement prior to the end
of the Initial Term or any Renewal Term, other than by reason of the
Transfer Agent's bankruptcy under Section 12.6 or for cause under
Section 12.7, then effective as of the first day of any month in which
the Transfer Agent receives notice of such termination, all discounts
of fees and charges or fee concessions provided under this Agreement
and any related agreements shall cease and the Fund shall thereafter
pay full, undiscounted fees and charges for the services.
12.9 The parties agree that the effective date of any Deconversion as a
result of termination hereof shall not occur during the period from
December 15th through March 1st of any year to avoid adversely
impacting a year-end.
12.10 Within thirty (30) days after completion of a Deconversion, the Funds
will give notice to the Transfer Agent containing reasonable
instructions regarding the disposition of tapes, data files, records,
original source documentation or other property belonging to the Fund
and then in the Transfer Agent's possession and shall make payment for
the Transfer Agent's reasonable costs to comply with such notice. If
the Fund fails to give that notice within thirty (30) days after
termination of this Agreement, then the Transfer Agent may dispose of
such property as it sees fit. The reasonable costs of any such
disposition or of the continued storage of such tapes, data files,
records, original source documentation or other properties shall be
billed to, and within thirty (30) days of receipt of such invoice paid
by, the Fund. Failure to pay such sums when due shall incur a late
charge in accordance with Section 3.7 of this Agreement. In no event
shall the Transfer Agent be required to keep archived versions of Fund
records beyond the requirements of law applicable to its transfer
agency business and the terms of this Section 12.10. In no event shall
the Transfer Agent be required to keep archived versions of Fund
records beyond the requirements of law applicable to its transfer
agency business and the terms of this Section 12.10. In the event the
Fund terminates this Agreement and later requests that the Transfer
Agent search for, recover and provide to the Funds any records that at
such time are in the Transfer Agent's possession and which relate to
the prior services performed by the Transfer Agent for the Fund, the
Fund agrees to pay the reasonable administrative costs for the search,
recovery and provision of any such records.
22
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.
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 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
Funds, subcontract for the performance hereof with an affiliate of the
Transfer Agent which is duly registered as a transfer agent pursuant
to Section 17A(c)(2) of the 1934 Act or, with regard to print/mail
services, to DST Output, Inc., an affiliate of the Transfer Agent;
provided, however, that the Transfer Agent shall be fully responsible
to the Funds for the acts and omissions of its affiliate as it is for
its own acts and omissions. The foregoing shall not be deemed to apply
to any direct contracts between the Fund and any affiliate of the
Transfer Agent as to which the Transfer Agent is not a party.
14.2 For purposes of this Agreement, 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, shall not be deemed to be subcontractors of the Transfer
Agent.
15. Changes and Modifications
23
15.1 During the term of this Agreement the Transfer Agent will use on
behalf of the Fund, without additional cost, all modifications,
enhancements, or changes which its affiliate DST Systems, Inc. may
make to the TA2000 System in the normal course of its business and
which are applicable to functions and features offered by the Fund,
unless substantially all clients of the Transfer Agent are charged
separately for such modifications, enhancements or changes, including,
without limitation, substantial system revisions or modifications
necessitated by changes in existing laws, rules or regulations. The
Fund agrees to pay the Transfer Agent promptly for modifications and
improvements which are charged for separately at the rate provided for
in the Transfer Agent's standard pricing schedule which shall be
identical for substantially all clients, if a standard pricing
schedule shall exist. If there is no standard pricing schedule, the
parties shall mutually agree upon the rates to be charged.
15.2 The Transfer Agent shall have the right, at any time and from time to
time, to alter and modify any systems, programs, procedures or
facilities used or employed in performing its duties and obligations
hereunder. The Fund will be notified as promptly as possible prior to
implementation of such alterations and modifications. No such
alteration or modification or deletion shall materially change or
affect the operations and procedures of the Fund in using or employing
the TA2000 System or the Transfer Agent's facilities hereunder or the
reports to be generated by such system and facilities hereunder,
unless the Fund is given thirty (30) days prior notice to allow the
Fund to change its procedures and unless the Transfer Agent provides
the Fund with revised operating procedures and controls.
15.3 All enhancements, improvements, changes, modifications or new features
added to the TA2000 System however developed or paid for shall be, and
shall remain, the confidential and exclusive property of, and
proprietary to, DST Systems, Inc., an affiliate of the Transfer Agent.
16. Miscellaneous
16.1 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 Board of Trustees of the Fund.
16.2 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.
16.3 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, 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.
16.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other
24
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.
16.5 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.
16.6 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.
16.7 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.
16.8 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.
16.9 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.
16.10 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.
16.11. 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.
16.12 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 the Transfer Agent, to:
Boston Financial Data Services, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
25
(b) If to the Funds, to:
Fifth Third Funds
c/o Fifth Third Asset Management, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
17. Additional Portfolios/ Funds
17.1 Additional Portfolios. In the event that a Fund establishes one or
more Portfolios, in addition to those listed on the attached Schedule
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 portfolio shall become a
Portfolio hereunder by the parties amending the Schedule A to include
the additional Portfolio.
17.2 Conditions re: Additional Portfolios. In the event that the Transfer
Agent is to become the transfer agent for newly created portfolios,
the Transfer Agent shall add them to the TA2000 System upon at least
thirty (30) days' prior written notice to the Transfer Agent provided
that the requirements of such portfolios are generally consistent with
services then being provided by the Transfer Agent under this
Agreement, in which case the fees and expenses for such additional
portfolios shall be as set forth on Schedule 3.1 for the remainder of
the then-current term. To the extent such funds or portfolios use
functions, features or services not set forth in Section 1.1, Section
1.2 or Schedule 3.1, the rates and charges applicable to such new
functions, features or characteristics may be established or increased
in accordance with Section 3.3. The fees with respect to additional
portfolios resulting from acquisition or merger shall be determined in
accordance with Section 3.1 of this Agreement.
18. Limitations of Liability of the Trustees and Shareholders
18.1 Each Portfolio will be regarded for all purposes hereunder as a
separate party apart from each other Portfolio. Unless the context
otherwise requires, with respect to every transaction covered hereby,
every reference herein to the Fund is deemed to relate solely to the
particular Portfolio to which such transaction relates. Under no
circumstances will the rights, obligations or remedies with respect to
a particular Portfolio constitute a right, obligation or remedy
applicable to any other Portfolio. The use of this single document to
memorialize the separate agreement as to each Portfolio is understood
to be for clerical convenience only and will not constitute any basis
for joining the other Portfolios for any reason.
26
18.2 The parties expressly agree that the obligations of the Fund hereunder
shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Fund personally, but shall bind
only the trust property of the Fund. The execution and delivery of
this Agreement have been authorized by the Trustees, and this
Agreement has been signed and delivered by an authorized officer of
the Fund, acting as such, and neither such authorization by the
Trustees nor such execution and deliver by such officer shall be
deemed to have been made by any of them individually or to impose any
liability on them personally, but shall bind only the trust property
of the Fund as provided in the Fund's Declaration of Trust.
27
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.
FIFTH THIRD FUNDS
By: ____________________________________
Name: __________________________________
Title: _________________________________
Authorized Officer on behalf of the Fund
and each of the Portfolios indicated
on Schedule A
ATTEST:
________________________________
BOSTON FINANCIAL DATA
SERVICES, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
ATTEST:
________________________________
28
SCHEDULE A
FUND TYPE OF ENTITY JURISDICTION
FIFTH THIRD FUNDS Business Trust Massachusetts
Small Cap Growth Fund
Mid Cap Growth Fund
Quality Growth Fund
Large Cap Core Fund
Equity Index Fund
Balanced Fund
Micro Cap Value Fund
Small Cap Value Fund
Multi Cap Value Fund
Disciplined Large Cap Value Fund
LifeModel Aggressive Fund
LifeModel Moderately Aggressive Fund
LifeModel Moderate Fund
LifeModel Moderately Conservative Fund
LifeModel Conservative Fund
Strategic Income Fund
Dividend Growth Fund
Technology Fund
International Equity Fund
High Yield Bond Fund
Bond Fund
Intermediate Bond Fund
Short Term Bond Fund
U.S. Government Bond Fund
Municipal Bond Fund
Intermediate Municipal Bond Fund
Ohio Municipal Bond Fund
Michigan Municipal Bond Fund
Prime Money Market Fund
Government Money Market Fund
Michigan Municipal Money Market Fund
Municipal Money Market Fund
Schedule A - 1
SCHEDULE A (continued)
FUND TYPE OF ENTITY JURISDICTION
FIFTH THIRD FUNDS Business Trust Massachusetts
Institutional Money Market Fund
Institutional Government Money Market Fund
U.S. Treasury Money Market Fund
FIFTH THIRD FUNDS BOSTON FINANCIAL DATA SERVICES, INC.
By: ____________________________________ By: _________________________________
Name: __________________________________ Name: _______________________________
Title: _________________________________ Title: ______________________________
Authorized Officer on behalf of the Fund
and each Of the Portfolios indicated on
Schedule A
Schedule A - 2
SCHEDULE 1.2(F)
AML DELEGATION
DATED: MAY 14, 2007
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(g)
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. The
Transfer Agent will also make the records relating to the Delegated Duties
subject to inspection and examination by the Fund's Chief Compliance
Officer during normal business hours and upon reasonable notice.
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:
Schedule 1.2(f) - 1
SCHEDULE 1.2(F) (continued)
AML DELEGATION
DATED: MAY 14, 2007
(a) Submit all new account and registration maintenance transactions
through the Office of Foreign Assets Control ("OFAC") database and
such other lists or databases as may be required from time to time by
applicable regulatory authorities;
(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 banking instructions other than
those 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) 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;
(i) Determine when a suspicious activity report ("SAR") should be
filed as required by regulations applicable to mutual funds; 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;
(j) 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
(k) (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 and (iii) Determine whether the person appears
on any lists of known or suspected terrorists or terrorists
organizations provided to the Fund by any government agency.
Schedule 1.2(f) - 2
SCHEDULE 1.2(F) (continued)
AML DELEGATION
DATED: MAY 14, 2007
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 also immediately notify the
Fund, unless prohibited by applicable law.
FIFTH THIRD FUNDS BOSTON FINANCIAL DATA SERVICES, INC.
By: ____________________________________ By: ________________________________
Name: __________________________________ Name: ______________________________
Title: _________________________________ Title: _____________________________
Authorized Officer on behalf of the Fund
and each of the Portfolios indicated on
Schedule A
Schedule 1.2(f) - 3
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated: May 14, 2007
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 the 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 term of the Plan, but not later than the time of day at which the net
asset value of the 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 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 the
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 the Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information
provided by the Fund for delivery to its shareholders.
Schedule 2.1 - 1
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
(continued)
Dated: May 14, 2007
8. The TPA(s) shall, at the request of the Fund, prepare and transmit to the
Fund or any agent designated by it such periodic reports covering Shares of
each Plan as the 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 the Fund be
furnished to Participants in which event the Transfer Agent or the 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 the 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.
FIFTH THIRD FUNDS BOSTON FINANCIAL DATA SERVICES,
INC.
By: ____________________________________ By: ________________________________
Name: __________________________________ Name: ______________________________
Title: _________________________________ Title: _____________________________
Authorized Officer on behalf of the Fund
and each of the Portfolios indicated on
Schedule A
Schedule 2.1 - 2