Exhibit (h)(2)
Execution Copy
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EACH OF THE ENTITIES LISTED ON APPENDIX A
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............. 7
3. Fees and Expenses..................................................... 8
4. Representations and Warranties of the Transfer Agent.................. 8
5. Representations and Warranties of the Fund............................ 9
6. Wire Transfer Operating Guidelines.................................... 9
7. Data Access and Proprietary Information............................... 11
8. Indemnification....................................................... 13
9. Standard of Care/Limitation on Liability.............................. 14
10. Confidentiality....................................................... 14
11. Covenants of the Fund and the Transfer Agent.......................... 15
12. Termination of Agreement.............................................. 16
13. Assignment and Third Party Beneficiaries.............................. 17
14. Subcontractors........................................................ 18
15. Miscellaneous......................................................... 18
16. Additional Funds/Portfolios........................................... 20
17. Limitations of Liability of the Trustees and
Shareholders.......................................................... 21
Appendix A Funds and Portfolios
Schedule 1.2(f) AML Delegation
Schedule 1.3 Service Level Agreement
Schedule 1.6 Simple XXX Services
Schedule 2.1 Third Party Administrator(s) Procedures
Schedule 3.1 Fees and Expenses
Schedule 9 Transfer Agent's Liability
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT made as of the 1/st/ day of October, 2005, by and between
each of the entities listed on Appendix A hereto and each being an entity of a
type as set forth on Appendix A and organized under the laws of the state as
set forth on Appendix A, each with place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 and each of which is acting on its own behalf and
on behalf of each of the portfolios listed under its name on Appendix A, but
not jointly with any other entities listed on Appendix A (each such entity,
together with its Portfolios (as defined below), shall be severally referred to
as the "Fund") and BOSTON FINANCIAL DATA SERVICES, INC., a Massachusetts
corporation having its principal office and place of business at Xxx Xxxxxxxx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer Agent").
WITNESSETH:
WHEREAS, each Fund currently set forth on Appendix A is a trust registered with
the Securities and Exchange Commission as an investment company pursuant to the
Investment Company Act of 1940, as amended; and
WHEREAS, each Fund currently set forth on Appendix A is authorized to issue
shares in separate series, with each such series representing interests in a
separate portfolio of securities and other assets (each such series, together
with all other series subsequently established by the Fund and made subject to
this Agreement in accordance with Section 16 being herein referred to severally
as the Fund's "Portfolios"); and
WHEREAS, it is contemplated that additional Funds and their Portfolios may
become parties to this Agreement by mutual consent of the parties hereto and by
execution of a counterpart signature page to this Agreement subject to the
provisions of Section 16 hereto; and
WHEREAS, the Fund (as used herein "the Fund" shall refer severally to each
entity listed on Appendix A together with its Portfolios) on behalf of the
Portfolios desires to appoint the Transfer Agent as its transfer agent,
dividend disbursing agent and agent in connection with certain other
activities, and the Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Fund, on behalf of the Portfolios, hereby employs
and appoints the Transfer Agent to act as, and the Transfer Agent agrees
to act as, its transfer agent for the Fund's authorized and issued
shares of its beneficial interest ("Shares"), dividend disbursing agent
and agent in connection with any accumulation, open-account or similar
plan provided to the shareholders of each of the respective Portfolios
of the Fund ("Shareholders") and set out in the currently effective
prospectus(es) and statement(s) of additional information ("prospectus")
of the Fund on behalf of the applicable Portfolio, including without
limitation any periodic investment plan or periodic withdrawal program.
In accordance with the prospectus and the procedures established from
time to time by agreement between the Fund on behalf of each of the
Portfolios, as applicable and the Transfer Agent, the Transfer Agent
agrees that it will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the
Custodian of the Fund authorized pursuant to the Trust Instrument of the
Fund (the "Custodian");
Appendix A - 2
(b) Pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption directions
and deliver the appropriate documentation thereof to the Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above, the
Transfer Agent shall execute transactions directly with broker-dealers
authorized by the Fund;
(e) At the appropriate time as and when it receives monies paid to it by
the Custodian with respect to any redemption, pay over or cause to be
paid over in the appropriate manner such monies as instructed by the
redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Transfer Agent
of indemnification satisfactory to the Transfer Agent and protecting the
Transfer Agent and the Fund, and the Transfer Agent at its option, may
issue replacement certificates in place of mutilated stock certificates
upon presentation thereof and without such indemnity;
(i) Issue replacement checks and place stop orders on original checks
based on Shareholder's representation that a check was not received or
was lost. Such stop orders and replacements will be deemed to have been
made at the request of the Fund, and the Fund shall be responsible for
all losses or claims resulting from such replacement;
(j) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(k) Record the issuance of Shares of the Fund and maintain pursuant to
Rule 17Ad-10(e) under the Securities and Exchange Act of 1934, as
amended, a record of the total number of Shares of the Fund which are
authorized, based upon data provided to it by the Fund, and issued and
outstanding. The Transfer Agent shall also provide the Fund on a regular
basis with the total number of Shares which are authorized and issued
and outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such Shares,
which functions shall be the sole responsibility of the Fund;
(l) Maintain such bank accounts (demand deposit accounts or "DDAs") as
the Transfer Agent shall deem necessary to the performance of its duties
hereunder, including, but not
Appendix A - 3
limited to, the processing of Share purchases and redemptions and the
payment of Portfolio dividends;
(m) Report abandoned property to state authorities as authorized by the
Fund in accordance with the policies and procedures agreed upon by the
Fund and the Transfer Agent;
(n) Provide Shareholder proxy coordination;
(o) Provide Shareholder account information through various means,
including but not limited to, telephone calls, correspondence and
research;
(p) Monitor transactions in the Fund for market timing activity in
accordance with the specifications and procedures agreed upon by the
parties in writing, which may be amended from time to time. The services
provided under this Section 1.1(p) will be ministerial only and such
monitoring will not subject the Transfer Agent to any liability for
failure to detect market timing activity; provided, however that the
Transfer Agent shall be liable for its willful misconduct in connection
with performing the services in this Section 1.1(p); and
(q) Account for and administer the redemption fees on the redemption and
exchange of Shares.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the
Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plan (including
without limitation any periodic investment plan, DRIP or periodic
withdrawal program), including but not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing
Shareholder proxies, Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and non-resident alien
accounts, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing and
mailing confirmation forms and statements of account to Shareholders for
all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, providing Shareholder account information
and coordinating with and overseeing the print/mail vendor in accordance
with the provisions of Section 14.1 below;
(b) Control Book (also known as "Super Sheet"). Maintain a daily record
and produce a daily report for the Fund of all transactions and receipts
and disbursements of money and securities and deliver a copy of such
report for the Fund for each business day to the Fund no later than 9:00
AM Eastern Time, or such earlier time as the Fund may reasonably
require, on the next business day;
Appendix A - 4
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the Transfer
Agent in writing those transactions and assets to be treated as exempt
from blue sky reporting for each State and (ii) verify the establishment
of transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The responsibility
of the Transfer Agent for the Fund's blue sky State registration status
is solely limited to the initial establishment of transactions subject
to blue sky compliance by the Fund and providing a system which will
enable the Fund to monitor the total number of Shares sold in each State;
(d) National Securities Clearing Corporation (the "NSCC"). (i) accept
and effectuate the registration and maintenance of accounts through
Networking and the purchase, redemption, transfer and exchange of shares
in such accounts through Fund/SERV (Networking and Fund/SERV being
programs operated by the NSCC on behalf of NSCC's participants,
including the Fund), in accordance with, instructions transmitted to and
received by the Transfer Agent by transmission from NSCC on behalf of
broker-dealers and banks which have been established by, or in
accordance with the instructions of authorized persons, as hereinafter
defined on the dealer file maintained by the Transfer Agent; (ii) issue
instructions to Fund's banks for the settlement of transactions between
the Fund and NSCC (acting on behalf of its broker-dealer and bank
participants); (iii) provide account and transaction information from
the affected Fund's records on DST Systems, Inc. computer system TA2000
("TA2000 System") in accordance with NSCC's Networking and Fund/SERV
rules for those broker-dealers; (iv) comply with NSCC rules and
procedures applicable to the Transfer Agent's use of Networking;
(v) implement and maintain procedures reasonably designed to ensure the
accuracy of all transmissions through Networking and to limit the access
to, and the imputing of data into, Networking to persons specifically
authorized by the Transfer Agent; and (vi) otherwise perform any and all
duties, functions, procedures and responsibilities pursuant to each NSCC
matrix level and as otherwise established by NSCC from time to time.
(e) New Procedures. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time to
time by agreement between the Fund and the Transfer Agent. The Transfer
Agent may at times perform only a portion of these services and the Fund
or its agent may perform these services on the Fund's behalf;
(f) Anti-Money Laundering ("AML") Delegation. The Fund has elected to
delegate to the Transfer Agent certain AML duties and customer
identification procedure ("CIP") duties under this Agreement and the
parties have agreed to such duties and terms as stated in the attached
schedule (Schedule 1.2(f) entitled "AML Delegation"), which may be
changed from time to time subject to mutual written agreement between
the parties.
(g) Laws and Regulation. The Transfer Agent will take reasonable steps
to stay informed of new securities and tax laws and regulations which
apply to the Transfer Agent's products and services hereunder and will
take reasonable steps to update its products and/or services to comply
with new securities and tax laws and regulations applicable to its
transfer agency business in the time and manner as required by such laws
and regulations. On a quarterly basis, upon request of the Fund, the
Transfer Agent shall provide the Fund with a Rule 38a-1 certification
substantially in the format previously provided to the Fund in
connection with the negotiation of this Agreement. The Transfer Agent
reserves the right to amend and update the form of its Rule 38a-1
certification from
Appendix A - 5
time to time to comply with new or amended requirements of applicable
law or to enhance its Compliance+ program.
1.3 Service Level Agreement. The Transfer Agent shall maintain a quality
control process designed to provide a consistent level of quality and
timeliness for its call center, correspondence services and transaction
processing and level of systems availability. The Transfer Agent's
performance of the services under this Agreement will be measured
against service levels and standards ("SLAs"), which will be established
in good faith by mutual written agreement of the parties and shall be
made a part of this Agreement as Schedule 1.3.
1.4 Facsimile Communications.
(a) The Fund hereby authorizes and instructs the Transfer Agent, as
transfer agent for the Portfolios listed on Appendix A: (i) to accept
facsimile transaction requests on behalf of individual Shareholders
received from broker/dealers of record, third-party administrators
("TPAs") or the Fund; (ii) that the broker/dealers, TPAs and the Fund
are duly authorized to initiate such transactions on behalf of the
Shareholders; and (iii) that the original source documentation is in
good order and the broker/dealers, TPAs or the Fund will retain such
documentation.
(b) The Transfer Agent acknowledges that requests for a change in wiring
instructions or for redemptions, the proceeds of which are to be paid to
third parties or wired to an account other than the account of record,
may not be accepted by facsimile transmission in accordance with the
Fund's current prospectus. The Transfer Agent will not accept facsimile
requests for the foregoing unless and until such time as the Fund's
prospectus permits the acceptance of such instructions by facsimile.
1.5 E-Mail Communications.
(a) The Fund hereby instructs the Transfer Agent, as transfer agent for
the Portfolios listed on Appendix A, to accept instructions using e-mail
("E-mail Communications"), as further set out below. The Fund instructs
the Transfer Agent to accept such E-mail Communications to and from the
Fund. The Fund acknowledges that the Transfer Agent will not act on
E-mail Communications to it coming directly from Shareholders.
(b) The Fund acknowledges that the Transfer Agent is not extending any
warranties or making any representations with respect to the services of
any internet services provider. Any delays or errors attributable to the
non-functioning of the internet is at the risk of the Fund. The Fund has
been advised by the Transfer Agent that E-mail Communications to or from
the Transfer Agent may not be encrypted.
(c) The Fund, when submitting instructions via e-mail, will be
responsible for determining that any original source documentation
supporting such instructions is in good order and for retaining such
original documentation.
1.6 SIMPLE IRAs.
(a) Background. The Fund, if such Fund executes Schedule 1.6 hereto and
only in such event, intends to make available to certain of its
customers who are employers
Appendix A - 6
("Employers") SIMPLE XXX plans within the meaning of Section 408(p) of
the Internal Revenue Code of 1986, as amended (the "Code"), ("SIMPLE
IRAs") pursuant to which Employers may adopt a SIMPLE XXX for the
benefit of their individual employees ("Participants"). The Transfer
Agent, at the request of the Fund, shall arrange for the provision of
ministerial data processing and record-keeping services for such SIMPLE
IRAs as specified in Schedule 1.6.
(b) Investment Directions. The parties agree that the Transfer Agent
shall have no investment responsibility or liability for the selection
of investments made by Employers or Participants with respect to any
SIMPLE IRAs. The Transfer Agent will accept investment directions from
Participants regarding their SIMPLE XXX. Employers of the SIMPLE IRAs
shall deliver directions to Transfer Agent regarding the investment of
the SIMPLE IRAs' assets for which no Participant directions are received
or where implementing Participant directions is administratively
infeasible.
2. Third Party Administrators for Defined Contribution Plans
2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which Employers may
adopt certain plans of deferred compensation ("Plan or Plans") for the
benefit of the individual Plan participant (the "Plan Participant"),
such Plan(s) being qualified under Section 401(a) of the Code and
administered by TPA(s) which may be plan administrators as defined in
the Employee Retirement Income Security Act of 1974, as amended.
2.2 In accordance with the procedures established in the initial Schedule
2.1 entitled "Third Party Administrator Procedures", as may be amended
by the Transfer Agent and the Fund from time to time ("Schedule 2.1"),
the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name of
the trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA or
its designee as the trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as transfer agent of the Fund
and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be
deemed exception services ("Exception Services") when such transactions:
(a) Require the Transfer Agent to use methods and procedures other than
those usually employed by the Transfer Agent to perform services under
Section 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent after the
commencement of the nightly processing cycle of the TA2000 System; or
(c) Require more manual intervention by the Transfer Agent, either in
the entry of data or in the modification or amendment of reports
generated by the TA2000 System, than is usually required by
non-retirement plan and pre-nightly transactions.
Appendix A - 7
3. Fees and Expenses
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to this
Agreement, the Fund agrees to pay the Transfer Agent an annual
maintenance fee for each Shareholder account as set forth in the
attached fee schedule ("Schedule 3.1"). Such fees and out-of-pocket
expenses and advances identified under Section 3.2 below may be changed
from time to time subject to mutual written agreement between the Fund
and the Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Fund agrees to reimburse the Transfer Agent for out-of-pocket
expenses in accordance with the terms of Schedule 3.1 attached hereto.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) days prior to the mailing
date of such materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing
notice, except for any fees or expenses that are subject to good faith
dispute. In the event of such a dispute, the Fund may only withhold that
portion of the fee or expense subject to the good faith dispute. The
Fund shall notify the Transfer Agent in writing within twenty-one
(21) calendar days following the receipt of each billing notice if the
Fund is disputing any amounts in good faith. If the Fund does not
provide such notice of dispute within the required time, the billing
notice will be deemed accepted by the Fund. The Fund shall settle such
disputed amounts within five (5) days of the day on which the parties
agree on the amount to be paid by payment of the agreed amount. If no
agreement is reached, then such disputed amounts shall be settled as may
be required by law or legal process.
3.5 Cost of Living Adjustment. Unless otherwise agreed to at the time of
renewal, commencing in the initial year of the first Renewal Term (if
any), the total fee for all services for that year and for each
successive year of that or any subsequent Renewal Term shall equal the
fee that would be charged for the same services based on a fee rate (as
reflected in a fee rate schedule) increased by the percentage increase
for the twelve-month period of such previous calendar year of the CPI-W
(defined below), or, in the event that publication of such Index is
terminated, any successor or substitute index, appropriately adjusted,
acceptable to both parties. As used herein, "CPI-W" shall mean the
Consumer Price Index for Urban Wage Earners and Clerical Workers for
Boston-Brockton-Nashua, MA-NH-ME-CT, (Base Period: 1982-84 = 100), as
published by the United States Department of Labor, Bureau of Labor
Statistics.
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.
Appendix A - 8
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Articles of
Organization and By-Laws to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
5. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a trust duly organized and existing and in good standing under the
laws of the state of its organization as set forth on Appendix A.
5.2 It is empowered under applicable laws and by its Agreement and
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
5.3 All corporate proceedings required by said Agreement and Declaration of
Trust and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
5.4 The Fund and each of its Portfolios is an open-end management investment
company registered under the Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended,
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with
respect to all Shares being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code
6.1 Obligation of Sender. The Transfer Agent is authorized to promptly debit
the appropriate Fund account(s) upon the receipt of a payment order in
compliance with the selected security procedure (the "Security
Procedure") chosen for funds transfer and in the amount of money that
the Transfer Agent has been instructed to transfer. The Transfer Agent
shall execute payment orders in compliance with the Security Procedure
and with the Fund instructions on the execution date provided that such
payment order is received by the customary deadline for processing such
a request, unless the payment order specifies a later time. All payment
orders and communications received after the customary deadline will be
deemed to have been received the next business day.
6.2 Security Procedure. The Fund acknowledges that the Security Procedure it
has designated on the Fund Selection Form was selected by the Fund from
security procedures offered by the Transfer Agent. The Fund shall
restrict access to confidential information relating to the Security
Procedure to authorized persons as communicated to the Transfer Agent in
writing. The Fund must notify the Transfer Agent immediately if it
Appendix A - 9
has reason to believe unauthorized persons may have obtained access to
such information or of any change in the Fund's authorized personnel.
The Transfer Agent shall verify the authenticity of all Fund
instructions according to the Security Procedure.
6.3 Account Numbers. The Transfer Agent shall process all payment orders on
the basis of the account number contained in the payment order. In the
event of a discrepancy between any name indicated on the payment order
and the account number, the Transfer Agent shall use commercially
reasonable efforts to resolve the discrepancy. For all discrepancies
that remain unresolved after the use of commercially reasonable efforts,
the account number shall take precedence and govern.
6.4 Rejection. The Transfer Agent reserves the right to decline to process
or delay the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of the
Transfer Agent's receipt of such payment order; (b) if initiating such
payment order would cause the Transfer Agent, in the Transfer Agent's
sole judgement, to exceed any volume, aggregate dollar, network, time,
credit or similar limits which are applicable to the Transfer Agent; or
(c) if the Transfer Agent, in good faith, is unable to satisfy itself
that the transaction has been properly authorized.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable best
efforts to act on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided that
such requests are received in a timely manner affording the Transfer
Agent reasonable opportunity to act. However, the Transfer Agent assumes
no liability if the request for amendment or cancellation cannot be
satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the
Transfer Agent complies with the Security Procedure. The Security
Procedure is established for the purpose of authenticating payment
orders only and not for the detection of errors in payment orders.
6.7 Interest. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the unauthorized
payment order within thirty (30) days of notification by the Transfer
Agent of the acceptance of such payment order.
6.8 ACH Credit Entries/Provisional Payments. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant to
these Section 6 guidelines and the rules of the National Automated
Clearing House Association and the New England Clearing House
Association, State Street Bank and Trust Company will act as an
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.
Appendix A - 10
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, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial
value to the Transfer Agent or other third party. In no event shall
Proprietary Information be deemed to include Customer Data (as defined
in Section 10.1 below) which shall remain proprietary to the Fund. The
Fund agrees to treat all Proprietary Information as proprietary to the
Transfer Agent and further agrees that it shall not divulge any
Proprietary Information to any person or organization except as may be
provided hereunder. Without limiting the foregoing, the Fund agrees for
itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's computers
or those of the Fund's investment adviser, administrator or distributor,
or (ii) solely from equipment at the location agreed to between the Fund
and the Transfer Agent and (iii) solely in accordance with the Transfer
Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s) or
those of the Fund's investment adviser, administrator or distributor),
the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform in a timely manner of such fact and dispose of such
information in accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal or that of the Fund's
investment adviser, administrator or distributor to be retransmitted to
any other computer terminal or other device except as expressly
permitted by the Transfer Agent (such permission not to be unreasonably
withheld); and
(e) Honor all reasonable written requests made by the Transfer Agent to
protect at the Transfer Agent's expense the rights of the Transfer Agent
in Proprietary Information at common law, under federal copyright law
and under other federal or state law.
Notwithstanding the foregoing, the Transfer Agent acknowledges that the
Fund may share the Proprietary Information of the Transfer Agent with
the Fund's investment adviser, administrator or distributor or any of
their affiliates; provided that such parties are subject
Appendix A - 11
to obligations of confidentiality to the Fund with regard to such
Proprietary Information of the Transfer Agent no less stringent than
those set forth in this Agreement
7.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by a
written release by the Transfer Agent; or (iii) are already in the
possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest of
the Transfer Agent and that the disclosure of such Proprietary
Information in breach of this Agreement would cause the Transfer Agent
immediate, substantial and irreparable harm, the value of which would be
extremely difficult to determine. Accordingly, the parties agree that,
in addition to any other remedies that may be available in law, equity,
or otherwise for the disclosure or use of the Proprietary Information in
breach of this Agreement, the Transfer Agent shall be entitled to seek
and obtain a temporary restraining order, injunctive relief, or other
equitable relief against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from
which the Transfer Agent may obtain certain data included in the Data
Access Services are solely responsible for the contents of such data and
the Fund agrees to make no claim against the Transfer Agent arising out
of the contents of such third-party data, including, but not limited to,
the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN
AS IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to
(i) effect the transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information, then in such event the
Transfer Agent shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further inquiry
as long as such instruction is undertaken in conformity with security
procedures established by the Transfer Agent from time to time and
agreed to by the Fund.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of this
Section shall survive any earlier termination of this Agreement.
Appendix A - 12
8. Indemnification
8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless, and with respect to
Section 8.1(f) herein, also State Street Bank and Trust Company ("State
Street"), from and against, any and all losses, damages, costs, charges,
reasonable counsel fees (including the defense of any law suit in which
the Transfer Agent or its affiliate is a named party), payments,
expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such
actions are taken in good faith and without negligence or willful
misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on:
(i) any information, records, documents, data, stock certificates or
services, which are received by the Transfer Agent or its agents or
subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions or other similar means authorized by the Fund,
and which have been prepared, maintained or performed by the Fund or any
other person or firm on behalf of the Fund including but not limited to
any broker-dealer, TPA or previous transfer agent; (ii) any instructions
or requests of the Fund or any of its officers; (iii) any instructions
or opinions of legal counsel with respect to any matter arising in
connection with the services to be performed by the Transfer Agent under
this Agreement which are provided to the Transfer Agent after
consultation with such legal counsel; or (iv) any paper or document,
reasonably believed to be genuine, authentic, or signed by the proper
person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be registered
or in violation of any stop order or other determination or ruling by
any federal or any state agency with respect to the offer or sale of
such Shares;
(e) The acceptance of facsimile transaction requests on behalf of
individual Shareholders received from broker-dealers, TPAs or the Fund,
and the reliance by the Transfer Agent on the broker-dealer, TPA or the
Fund ensuring that the original source documentation is in good order
and properly retained;
(f) The negotiation and processing of any checks, wires or ACH
transmissions (including in connection with payroll or MSA
transmissions) including without limitation for deposit into, or credit
to, the Fund's demand deposit account maintained by the Transfer Agent;
(g) Upon the Fund's request entering into any agreements required by the
NSCC for the transmission of Fund or Shareholder data through the NSCC
clearing systems; or
(h) The breach of any representation or warranty set forth in Section 5
above.
Appendix A - 13
8.2 To the extent the Transfer Agent is not entitled to indemnification
pursuant to Section 8.1 above, the Fund shall not be responsible for,
and the Transfer Agent shall indemnify and hold the Fund, its Board of
Trustees, officers, employees and agents, harmless from and against any
losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising directly out of or attributable to any
action or failure of the Transfer Agent to act as a result of the
Transfer's Agent's lack of good faith, negligence or willful misconduct
in the performance of its services hereunder or the breach of any
representation or warranty set forth in Section 4 above.
8.3 In order that the indemnification provisions contained in this Section 8
shall apply, upon the assertion of an indemnification claim, the party
seeking the indemnification shall promptly notify the other party of
such assertion, and shall keep the other party advised with respect to
all developments concerning such claim. The Fund shall have the option
to participate with the Transfer Agent in the defense of such claim or
to defend against said claim in its own name or that of the Transfer
Agent. The party seeking indemnification shall in no case confess any
claim or make any compromise in any case in which the other party may be
required to indemnify it except with the indemnifying party's written
consent, which consent shall not be unreasonably withheld.
9. Standard of Care/Limitation of Liability
The Transfer Agent shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no responsibility and
shall not be liable for loss or damage due to errors, including encoding and
payment processing errors, unless said errors are caused by its negligence,
bad faith, or willful misconduct or that of its employees or agents. The
parties agree that any encoding or payment processing errors shall be
governed by this standard of care and Section 4-209 of the Uniform
Commercial Code is superseded by Section 9 of this Agreement. This standard
of care also shall apply to Exception Services, as defined in Section 2.3
herein, but such application shall take into consideration the manual
processing involved in, and time sensitive nature of, Exception Services.
Notwithstanding the foregoing, the Transfer Agent's aggregate liability
during any term of this Agreement, whether in contract, or in tort, or
otherwise shall be as determined and as set forth on Schedule 9 to this
Agreement.
10. Confidentiality
10.1 (a) The Transfer Agent and the Fund agree that they will not, at any
time during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other
business organization, any customers' lists, trade secrets, cost figures
and projections, profit figures and projections, or any other secret or
confidential information whatsoever, whether of the Transfer Agent or of
the Fund, used or gained by the Transfer Agent or the Fund during
performance under this Agreement (such party's "Confidential
Information"). The Fund and the Transfer Agent further covenant and
agree to retain all such Confidential Information of the other party
whatsoever in trust for the sole benefit of the Transfer Agent or the
Fund and their successors and assigns. In the event of breach of the
foregoing by either party, the remedies provided by Section 7.3 shall be
available to the party whose confidential information is disclosed. The
Transfer Agent acknowledges that the Fund may share the Confidential
Information of the
Appendix A - 14
Transfer Agent with the Fund's investment adviser, administrator and
distributor and any of their affiliates, agents, legal counsel and
consultants provided that such parties are subject to obligations of
confidentiality to the Fund with regard to such Confidential Information
of the Transfer Agent no less stringent than those set forth in this
Agreement.
(b) The Transfer Agent represents, covenants, and warrants that Transfer
Agent will use the nonpublic personal information of the Fund's
Shareholders ("Customer Data") only in compliance with (i) this
Agreement, (ii) its own Privacy and Information Sharing Policy, as
amended from time to time, (iii) the Xxxxx-Xxxxx-Xxxxxx Act (the "GLB
Act") and Regulation S-P promulgated thereunder to the extent each is
specifically applicable to its transfer agency business, and (iv) as
directed by authorized persons of the Fund in writing and will not,
except as set forth above, at any time during the term of this Agreement
or after its termination, reveal, divulge or make known to any person,
firm or other business organization any Customer Data as obtained by the
Transfer Agent in performance of its services pursuant to this Agreement.
10.2 In the event that any requests or demands are made for the inspection of
the Shareholder records of the Fund, other than request for records of
Shareholders pursuant to standard subpoenas from state or federal
government authorities (i.e., divorce and criminal actions), the
Transfer Agent will use best efforts to notify the Fund and to secure
instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by
counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person or if required by law or court order.
11. Covenants of the Fund and the Transfer Agent
11.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the execution
and delivery of this Agreement; and
(b) A copy of the Agreement and Declaration of Trust and By-Laws of the
Fund and all amendments thereto.
11.2 The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signature imprinting
devices, if any; and for the preparation or use, and for keeping account
of, such certificates, forms and devices.
11.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To
the extent required by Section 31 of the Investment Company Act of 1940,
as amended, and the rules thereunder, the Transfer Agent agrees that all
such records prepared or maintained by the Transfer Agent relating to
the services to be performed by the Transfer Agent hereunder are the
property of the Fund and will be preserved, maintained and made
available in accordance with such Section and rules thereunder, and will
be surrendered promptly to the Fund on and in accordance with its
request.
Appendix A - 15
11.4 The Transfer Agent shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors' and
officers' errors and omissions coverage in amounts that are appropriate
in light of its duties and responsibilities hereunder. Upon the request
of the Fund, the Transfer Agent shall provide evidence that coverage is
in place. The Transfer Agent shall notify the Fund should its insurance
coverage with respect to professional liability or errors and omissions
be canceled. Such notification shall include the date of cancellation
and the reasons therefore. The Transfer Agent shall notify the Fund of
any material claims against it with respect to the services provided
under this Agreement to the Fund, whether or not they may be covered by
insurance, and shall notify the Fund should the total outstanding claims
made by the Transfer Agent under its insurance coverage materially
impair, or threaten to materially impair, the adequacy of its coverage.
12. Termination of Agreement
12.1 Term. The initial term of this Agreement (the "Initial Term") shall be
three (3) years from the date first stated above unless terminated
pursuant to the provisions of this Section 12. Unless a terminating
party gives written notice to the other party at least one hundred and
twenty (120) days before the expiration of the Initial Term or any
Renewal Term (as defined herein), this Agreement will renew
automatically for an additional one-year term and, thereafter, for
successive one-year terms (each such year-to-year renewal term, a
"Renewal Term"). Notwithstanding the foregoing, during a Renewal Term,
this Agreement may be terminated by either party upon at least one
hundred and twenty (120) days' written notice to the other party. The
notification requirements herein shall not apply to a termination for
cause, which shall be governed by the provisions of Section 12.6 below.
One hundred and twenty (120) days before the expiration of the Initial
Term or a Renewal Term the parties to this Agreement will agree upon a
Fee Schedule for the upcoming Renewal Term. Otherwise, the fees shall be
increased pursuant to Section 3.5 of this Agreement.
12.2 Early Termination. Notwithstanding anything contained in this Agreement
to the contrary, should the Fund desire to move any of its services
provided by the Transfer Agent hereunder to a successor service provider
prior to the expiration of the then-current Initial or Renewal Term, or
without the required notice, the Transfer Agent shall make a good faith
effort to facilitate the conversion on such prior date; however, there
can be no guarantee or assurance that the Transfer Agent will be able to
facilitate a conversion of services on such prior date. In connection
with the foregoing, if during the Initial Term, the Fund should convert
all or substantially all of such services to a successor service
provider, or if the Fund or substantially all of its Portfolios are
liquidated or all or substantially all of its assets are merged or
purchased or the like with or by another entity which does not utilize
the services of the Transfer Agent, its affiliates or the TA2000
platform as set forth below, the fees payable to the Transfer Agent
shall be calculated as if the services had been performed by the
Transfer Agent until the expiration of the Initial Term and calculated
at the asset and/or Shareholder account levels, as the case may be, on
the date notice of termination was given to the Transfer Agent, and the
payment of all fees to the Transfer Agent as set forth herein shall be
accelerated to the business day immediately prior to the conversion or
termination of services (the "Early Termination Fee"). In the event that
(i) the Fund terminates this Agreement as the result of its acquisition
by or merger into another fund and such other fund's shareholder records
are, at
Appendix A - 16
the time of such acquisition or merger, maintained by the Transfer Agent
or its affiliates, or (ii) the Fund wishes to move its transfer agency
servicing operation from the Transfer Agent to an affiliated entity or
another DST TA2000 platform (i.e., become a remote user of DST's TA2000
system) as the result of Fund's acquisition by or merger into another
fund, then the parties agree to negotiate in good faith to determine
whether or to what extent the Early Termination Fee shall apply to such
termination.
12.3 Termination Expenses and Costs. During the Initial Term or Renewal Term,
whichever currently is in effect, should either party exercise its right
to terminate, all out-of-pocket expenses or costs associated with the
movement of records and material will be borne by the Fund.
Additionally, the Transfer Agent reserves the right to charge for any
other reasonable expenses associated with such termination.
12.4 Confidential Information. Upon termination of this Agreement, each party
shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be retained
by such party under applicable laws or regulations. Each party hereby
agrees to dispose of any "consumer report information," as such term is
defined under Regulation S-P promulgated under the GLB Act, in
accordance with the provisions of Regulation S-P and the GLB Act
applicable to its respective business.
12.5 Unpaid Invoices. Except with respect to any amount subject to a good
faith dispute within the meaning of Section 3.4 of this Agreement, the
Transfer Agent may terminate this Agreement in the event that an invoice
payable by the Fund to the Transfer Agent remains outstanding for more
than ninety (90) days; provided that the Transfer Agent has provided
written notice to the Fund at least thirty (30) days prior to such
termination (which notice may be provided prior to the expiration of the
ninety (90) day period).
12.6 Termination by either Party for Cause. In the event that: (i) the
Transfer Agent defaults in the performance of its obligations under
Schedule 1.3 "Service Level Agreement" in accordance with the terms of
such schedule and, as a result thereof, the Fund is entitled to exercise
a Service Level Termination Right as defined in such schedule or
(ii) either party fails perform its duties hereunder (including any
material interruption or cessation of its operations), which failure
materially adversely affects the business operations of the other party
and which failure continues for thirty (30) days after receipt of
written notice from the first party, unless such failure is excused
under the terms of Schedule 1.3 or Section 15.3 (Force Majeure) of this
Agreement, such non-defaulting party may terminate this Agreement by
giving written notice to the other party as of the termination date
specified in the notice of termination. The Transfer Agent shall make a
good faith effort to facilitate conversion as described in Section 12.2
above. In the event of a termination by the Fund for cause, the Fund
shall not be obligated to pay the Early Termination Fee as defined in
Section 12.2 above.
13. Assignment and Third Party Beneficiaries
13.1 Except as provided in Section 14.1 below neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without
the written consent of the other party. Any attempt to do so in
violation of this Section shall be void. Unless specifically stated to
the contrary in any written consent to an assignment, no assignment
Appendix A - 17
will release or discharge the assignor from any duty or responsibility
under this Agreement. For the avoidance of doubt, a transaction
involving a merger or sale of substantially all of the assets of a
Portfolio or a Fund shall not require the written consent of the
Transfer Agent.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Transfer Agent and the Fund, and the
duties and responsibilities undertaken pursuant to this Agreement shall
be for the sole and exclusive benefit of the Transfer Agent and the
Fund. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
13.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in Section 14.1 and Schedule 1.2(f), neither party shall make
any commitments with third parties that are binding on the other party
without the other party's prior written consent.
14. Subcontractors
14.1 The Transfer Agent may, without further consent on the part of the Fund,
subcontract for the performance hereof with an affiliate of the Transfer
Agent duly registered as a transfer agent or, with regard to print/mail
services, with another affiliate or provider; provided, however, that
consent of the Fund shall be required with regard to print/mail services
which the Fund currently maintains by a separate agreement. The Transfer
Agent shall be fully responsible to the Fund for the acts and omissions
of its affiliate as it is for its own acts and omissions. With regard to
print/mail services that are provided by a vendor not affiliated with
the Transfer Agent, the Transfer Agent will use all reasonable
commercial efforts to coordinate with such outside print/mail vendor and
to timely and accurately provide all information requested by such
print/mail vendor; provided, however, that the Transfer Agent shall not
be held liable to the Fund or any affiliated party of the Fund for any
act or failure to act by such outside print/mail vendor except where the
Transfer Agent's negligent acts or omissions were the proximate cause of
such vendor's non-performance.
14.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties such as by way of example
and not limitation, Airborne Services, Federal Express, United Parcel
Service, the U.S. Mails, the NSCC and telecommunication companies,
provided that, if the Transfer Agent selected such company, the Transfer
Agent shall have exercised due care in selecting the same.
15. Miscellaneous
15.1 Amendment. This Agreement may be amended or modified only by a written
agreement executed by both parties.
15.2 Massachusetts Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
Appendix A - 18
15.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
acts of war or terrorism, strikes, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond
its control, such party shall not be liable for damages to the other for
any damages resulting from such failure to perform or otherwise from
such causes; provided, however, that this provision shall not imply that
the Transfer Agent is excused from maintaining reasonable business
continuity plans to address potential service outages.
15.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other party for special, indirect or consequential damages under
any provision of this Agreement or for any special, indirect or
consequential damages arising out of any act or failure to act hereunder.
15.5 Survival. All provisions regarding indemnification, warranty, liability,
and limits thereon, and confidentiality and/or protections of
proprietary rights and trade secrets shall survive the termination of
this Agreement.
15.6 Severability. If any provision or provisions of this Agreement shall be
held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
15.7 The Parties. All references herein to the "Fund" are to each of the
management investment companies listed on Appendix A hereto, and each
management company made subject to this Agreement in accordance with
Section 16 below, individually, as if the Agreement were between each
such Fund and the Transfer Agent. In the case of a series trust, all
references to "Portfolio" are to the individual series or portfolio of
such trust or to such trust on behalf of the individual series or
portfolio, as appropriate.
15.8 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement
and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
15.9 Waiver. No waiver by either party or any breach or default of any of the
covenants or conditions herein contained and performed by the other
party shall be construed as a waiver of any succeeding breach of the
same or of any other covenant or condition.
15.10 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
15.11 Counterparts. This Agreement may be executed by the parties hereto in
any number of counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
15.12 Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other
similar process. The parties hereto each
Appendix A - 19
agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or
not the original is in existence and whether or not such reproduction
was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction shall likewise be
admissible in evidence.
15.13 Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a)If to Boston Financial Data Services, Inc., to:
Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b)If to an entity set forth on Appendix A hereto, to:
Secretary of the Fund
c/o General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
16. Additional Funds/Portfolios
In the event that the Fund establishes one or more series of Shares, in
addition to those listed on the attached Appendix A, with respect to which
it desires to have the Transfer Agent render services as transfer agent
under the terms hereof, it shall so notify the Transfer Agent in writing,
and if the Transfer Agent agrees in writing to provide such services, such
series of Shares shall become a Portfolio hereunder. Furthermore, in the
event that one or more additional funds affiliated with the Fund desire(s)
to have the Transfer Agent render services as transfer agent under the terms
hereof, such fund or funds shall so notify the Transfer Agent in writing,
and if the Transfer Agent agrees in writing to provide such services, such
fund or funds, together with their portfolios, may become parties to this
Agreement by execution of a counterpart signature page hereto.
In the event that new affiliated funds and their portfolios become parties
to this Agreement, the fees and expenses set forth on Schedule 3.1 shall
apply to such funds and portfolios for their applicable initial term or
renewal term, provided that the requirements of such funds and portfolios
are generally consistent with the services then being provided by the
Transfer Agent under this Agreement to the Fund and its Portfolios.
Notwithstanding the foregoing, however, at such time as the number of CUSIPs
serviced by the Transfer Agent for all IXIS Advisor and Xxxxxx Xxxxxx funds
and their affiliated funds has increased by forty percent (40%) or more from
the number of CUSIPs serviced by the Transfer Agent on the first date of
this Agreement (as to all IXIS Advisor and
Appendix A - 20
Xxxxxx Xxxxxx funds and their affiliates together) the parties agree to
review and, if necessary, negotiate the fees and expenses set forth on
Schedule 3.1 for the Fund and its Portfolios and any new affiliated funds
and their portfolios in light of the additional administrative, technical
and other service costs imposed on the Transfer Agent by such additional
services.
17. Limitations of Liability of the Trustees and Shareholders
A copy of the Agreement and Declaration of Trust of each Fund listed on
Appendix A is on file with the Secretary of the Commonwealth of
Massachusetts, and notice is hereby given that this instrument is executed
by an officer of the Trust on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument
are not binding upon any of the Trustees, officers or Shareholders
individually but are binding only upon the assets and property of the Fund.
[THE REMAINDER OF THE PAGE IS INTENTIONALLY LEFT BLANK]
Appendix A - 21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
IXIS ADVISOR CASH MANAGEMENT TRUST
IXIS ADVISOR FUNDS TRUST I
IXIS ADVISOR FUNDS TRUST II
IXIS ADVISOR FUNDS TRUST III
IXIS ADVISOR FUNDS TRUST IV
XXXXXX XXXXXX FUNDS I
XXXXXX XXXXXX FUNDS II
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: Chief Operating Officer
As an Authorized Officer on behalf of
each of the Funds listed above.
ATTEST:
/s/ Xxxxxx Xxxxx Xxxxxxx
---------------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxxxx Xxx
--------------------------------
Name: Xxxxxxx Xxx
Title: Senior Vice President
ATTEST:
/s/ Xxxxxxxxx Xxxxx
---------------------------------------
Appendix A - 22
APPENDIX A
Funds and Portfolios
Dated: October 1, 2005
IXIS Advisor Cash Management Trust, a business trust organized under the laws
of the Commonwealth of Massachusetts
IXIS Cash Management Trust - Money Market Series (formerly, CDC Nvest Cash
Management Trust - Money Market Series)
IXIS Advisor Funds Trust I, a business trust organized under the laws of the
Commonwealth of Massachusetts
CGM Advisor Targeted Equity Fund
Xxxxxxxxxx International Fund
IXIS U.S. Diversified Portfolio (formerly, CDC Nvest Star Advisers Fund)
IXIS Value Fund (formerly, CDC Nvest Star Value Fund)
Xxxxxx Xxxxxx Core Plus Bond Fund
Xxxxxxx Xxxxxx Small Cap Value Fund
Westpeak Capital Growth Fund
IXIS Advisor Funds Trust II , a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Associates Large Cap Value Fund
Xxxxxx Xxxxxx Massachusetts Tax Free Income Fund
IXIS Advisor Funds Trust III, a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Associates Focused Value Fund
IXIS Equity Diversified Portfolio
IXIS Moderate Diversified Portfolio (formerly, CDC IXIS Moderate Diversified
Portfolio)
IXIS Advisor Funds Trust IV, a business trust organized under the laws of the
Commonwealth of Massachusetts
AEW Real Estate Fund
Xxxxxx Xxxxxx Funds I, a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Xxxxxx Bond Fund
Xxxxxx Xxxxxx Fixed Income Fund
Schedule 9 - 1
Xxxxxx Xxxxxx Global Bond Fund
Xxxxxx Xxxxxx High Income Opportunities Fund
Xxxxxx Xxxxxx Inflation Protected Securities Fund
Xxxxxx Xxxxxx Institutional High Income Fund
Xxxxxx Xxxxxx Intermediate Duration Fixed Income Fund
Xxxxxx Xxxxxx Investment Grade Fixed Income Fund
Xxxxxx Xxxxxx Securitized Asset Fund
Xxxxxx Xxxxxx Small Cap Value Fund
Xxxxxx Xxxxxx Funds II, a business trust organized under the laws of the
Commonwealth of Massachusetts
Xxxxxx Xxxxxx Aggressive Growth Fund
Xxxxxx Xxxxxx Growth Fund
Xxxxxx Xxxxxx High Income Fund
Xxxxxx Xxxxxx Investment Grade Bond Fund (except for Class J shares)
Xxxxxx Xxxxxx Limited Term Government and Agency Fund
Xxxxxx Xxxxxx Municipal Income Fund
Xxxxxx Xxxxxx Research Fund
Xxxxxx Xxxxxx Small Cap Growth Fund
Xxxxxx Xxxxxx Strategic Income Fund
Xxxxxx Xxxxxx Tax-Managed Equity Fund
Xxxxxx Xxxxxx Value Fund
Xxxxxx Xxxxxx Worldwide Fund
IXIS ADVISOR CASH MANAGEMENT TRUST
IXIS ADVISOR FUNDS TRUST I
IXIS ADVISOR FUNDS TRUST II
IXIS ADVISOR FUNDS TRUST III
IXIS ADVISOR FUNDS TRUST IV
XXXXXX XXXXXX FUNDS I
XXXXXX XXXXXX FUNDS II BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxx
-------------------------------- -------------------------------
Name: Xxxx Xxxxxxxxx Name: Xxxxxxx Xxx
Title: Chief Operating Officer Title: Senior Vice President
As an Authorized Officer on behalf of
each of the Funds listed above.
Schedule 9 - 2
