FORM OF SUB-TRANSFER AGENCY AND SERVICE AGREEMENT BETWEEN NYLIM SERVICE COMPANY LLC AND BOSTON FINANCIAL DATA SERVICES, INC.
FORM OF
BETWEEN
NYLIM SERVICE COMPANY
LLC
AND
BOSTON FINANCIAL DATA SERVICES,
INC.
TABLE OF
CONTENTS
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Page
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1.
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Terms of Appointment and
Duties
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1
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2.
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Exception
Services
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5
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3.
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Fees and
Expenses
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5
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4.
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Representations and Warranties of
the Sub-Transfer Agent
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6
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5.
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Representations and Warranties of
the Transfer Agent
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6
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6.
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Wire Transfer Operating
Guidelines
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7
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7.
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Data Access and Proprietary
Information
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8
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8.
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Indemnification
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10
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9.
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Standard of Care/Limitation of
Liability
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11
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10.
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Confidentiality
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11
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11.
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Covenants of the Transfer Agent
and the Sub-Transfer Agent
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13
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12.
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Termination of
Agreement
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14
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13.
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Assignment and Third Party
Beneficiaries
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15
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14.
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Subcontractors
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15
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15.
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Miscellaneous
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16
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AGREEMENT made as of the 1st day of October, 2005, by and between
NYLIM SERVICE COMPANY LLC, a Delaware corporation, having its principal office
and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
(the “Transfer Agent”), and BOSTON FINANCIAL DATA SERVICES, INC., a
Massachusetts corporation having its principal office and place of business at ▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Sub-Transfer
Agent”).
WHEREAS, the Transfer Agent has been
assigned 758128 as its six-digit FINS number by the Depository Trust Company of
New York, NY (“DTC”);
WHEREAS, the Transfer Agent registered
with U.S. Securities and Exchange Commission, its appropriate regulatory
authority (“ARA”) and has been assigned a seven digit number (generally
beginning with an “84” or an “85”) ARA number of 84-5844;
WHEREAS, the Transfer Agent has been
appointed by each of the investment companies (including each series thereof)
listed on Schedule A (the “Fund(s)”), each an open-end diversified management
investment company registered under the Investment Company Act of 1940, as
amended, as transfer agent, dividend disbursing agent and shareholder servicing
agent in connection with certain activities, and the Transfer Agent has accepted
each such appointment;
WHEREAS, the Transfer Agent has entered
into a Transfer Agency and Service Agreement with each of the Funds (including
each series thereof) listed on Schedule A pursuant to which the Transfer Agent
is responsible for certain transfer agency and dividend disbursing functions and
the Transfer Agent is authorized to subcontract for the performance of its
obligations and duties thereunder in whole or in part with the Sub-Transfer
Agent;
WHEREAS, the Transfer Agent is desirous
of having the Sub-Transfer Agent perform certain shareholder accounting,
administrative and servicing function (collectively “Shareholder and
Record-Keeping Services”); and
WHEREAS, the Transfer Agent desires to
appoint the Sub-Transfer Agent as its agent, and the Sub-Transfer Agent desires
to accept such appointment.
NOW, THEREFORE, in consideration of the
mutual covenants herein contained, the parties hereto agree as
follows:
1. Terms of
Appointment; Duties
1.1
Sub-Transfer Agency
Services. Subject to
the terms and conditions set forth in this Agreement, the Transfer Agent hereby
employs and appoints the Sub-Transfer Agent to act as, and the Sub-Transfer
Agent agrees to act as, the agent of the Transfer Agent for the shares of the
Funds in connection with any accumulation, open-account, retirement plans or
similar plan provided to the shareholders of each Fund (“Shareholders”) and set
out in the currently effective prospectus and statement of additional
information (“prospectus”) of each such Fund, including without limitation any
periodic investment plan or periodic withdrawal program. As used herein,
the term “Shares” means the authorized and issued shares of common stock, or
shares of beneficial interest, as the case may be, for each of the Funds
(including each series thereof) enumerated in Schedule A. In accordance with
procedures established from time to time by agreement between the Transfer Agent
and the Sub-Transfer Agent, the Sub-Transfer Agent agrees that it will perform
the following Shareholder and Record-Keeping services:
(a) Receive for acceptance, orders
for the purchase of Shares, and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Fund authorized pursuant to the
Articles of Incorporation of the Fund (the “Custodian”);
(b) Pursuant to purchase orders,
issue the appropriate number of Shares and hold such Shares in the appropriate
Shareholder account;
(c) Receive for acceptance
redemption requests and redemption directions and promptly deliver the
appropriate documentation thereof to the Custodian;
(d) In respect to the transactions
in items (a), (b) and (c) above, the Sub-Transfer Agent shall execute
transactions directly with broker-dealers authorized by the
Fund;
(e) At the appropriate time as and
when it receives monies paid to it by the Custodian with respect to any
redemption, pay over or cause to be paid over in the appropriate manner
such monies as instructed by the redeeming Shareholders;
(f) Effect transfers of Shares by
the registered owners thereof upon receipt of appropriate
instructions;
(g) Prepare and transmit payments
for dividends and distributions declared by the Fund;
(h) If applicable, issue
replacement certificates for those certificates alleged to have been lost,
stolen or destroyed upon receipt by the Sub-Transfer Agent of indemnification
satisfactory to the Sub-Transfer Agent and protecting the Sub-Transfer Agent and
the Fund, and the Sub-Transfer Agent at its option, may issue replacement
certificates in place of mutilated stock certificates upon presentation thereof
and without such indemnity;
(i) 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 Transfer Agent, and the
Transfer Agent shall be responsible for all losses or claims resulting from such
replacement;
(j) Maintain records of account
for and advise the Transfer Agent and its Shareholders as to the
foregoing;
(k) Record the issuance of Shares
of the Fund and maintain pursuant to SEC Rule 17Ad-10(e) a record of the total
number of Shares of the Fund which are authorized, based upon data provided to
it by the Fund, and issued and outstanding. The Sub-Transfer Agent shall
also provide the Fund on a regular basis with the total number of Shares which
are authorized and issued and outstanding and shall have no obligation, when
recording the issuance of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund;
(l) Perform tax-reporting and
statement production for closed accounts;
(m) Maintain and manage, as agent
for the Transfer Agent, such bank accounts as the Sub-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 Sub-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 Transfer Agent hereunder, including the management of such
accounts, the Sub-Transfer Agent may receive a portion of its compensation that
is based upon the average balances of such accounts; and
(n) 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 to the
Sub-Transfer Agent by the Transfer Agent or the Fund or any other person or firm
on behalf of the Transfer Agent or the Fund or from broker-dealers of record on
behalf of individual Shareholders. With respect to transaction requests
received in the foregoing manner, the Sub-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 Transfer Agent or the Fund to require its
broker-dealers to retain such documentation. E-mail exchanges on routine
matters may be made directly with the Transfer Agent's or Fund's contact at the
Sub-Transfer Agent. The Sub-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; and
(o) For the reasonable
administrative expenses thereof, report and escheat abandoned property to state
authorities as authorized by the Transfer Agent in accordance with the policies
and procedures agreed upon by the Sub-Transfer Agent and the Transfer Agent.
1.2
Additional Services.
In addition to, and
neither in lieu nor in contravention of, the services set forth in the above
paragraph, the Sub-Transfer Agent shall perform the following
services:
(a) Other
Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent 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: (1) maintaining all Shareholder accounts; (2) preparing Shareholder
meeting lists; (3) mailing Shareholder proxies, Shareholder reports and
prospectuses to current Shareholders; (4) withholding taxes on U.S. resident and
non-resident alien accounts; (5) 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; (6) 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; (7) preparing and mailing activity statements for
Shareholders; and (8) providing Shareholder account
information;
(b) Control Book (also
known as “Super Sheet”).
Maintain a daily record and produce a daily report for the Fund of all
transactions and receipts and disbursements of money and securities and deliver
a copy of such report for each business day to the Fund no later than 9:00 AM
Eastern Time, or such earlier time as the Fund may reasonably require, on the
next business day;
(c) “Blue Sky”
Reporting. The Fund
or Transfer Agent shall (i) identify to the Sub-Transfer Agent in writing those
transactions and assets to be treated as exempt from blue sky reporting for each
State and (ii) verify the establishment of transactions for each State on
the system prior to activation and thereafter monitor the daily activity for
each State. The responsibility of the Sub-Transfer Agent for the Fund’s
blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and
providing a system which will enable the Fund to monitor the total number of
Shares sold in each State;
(d) National Securities
Clearing Corporation (the “NSCC”). (i) accept and effectuate the
registration and maintenance of accounts through Networking and the purchase,
redemption, transfer and exchange of shares in such accounts through Fund/SERV
(Networking and Fund/SERV being programs operated by the NSCC on behalf of
NSCC’s participants, including the Fund), in accordance with instructions
transmitted to and received by the Sub-Transfer Agent by transmission from NSCC
on behalf of broker-dealers and banks which have been established by, or in
accordance with the instructions of authorized persons, as hereinafter defined
on the dealer file maintained by the Sub-Transfer Agent; (ii) issue
instructions to Fund’s banks for the settlement of transactions between the Fund
and NSCC (acting on behalf of its broker-dealer and bank participants); (iii)
provide account and transaction information from the affected Fund’s records on
DST Systems, Inc. computer system TA2000 (“TA2000 System”) in accordance with
NSCC’s Networking and Fund/SERV rules for those broker-dealers; and (iv)
maintain Shareholder accounts on TA2000 System through
Networking;
(e) New
Procedures. New
procedures as to who shall provide certain of these services in Section
1 may be established in
writing from time to time by agreement between the Transfer Agent and the
Sub-Transfer. The Sub-Transfer Agent may at times perform only a portion
of these services and the Transfer Agent, the Funds or their agent may perform
these services on the Fund’s behalf;
(f) Anti-Money
Laundering (“AML”) Delegation. If the Transfer Agent elects to
delegate to the Sub-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 Sub-Transfer Agent
pursuant to this Section
1.2(f), the Transfer Agent
agrees to pay the Sub-Transfer Agent for the reasonable administrative expense
that may be associated with such additional duties in the amount as the parties
may from time to time agree in writing in accordance with Section
3 (Fees and Expenses)
below.
1.3
Fiduciary
Accounts. With
respect to certain retirement plans (such as individual retirement accounts
(“IRAs”)) or accounts, SIMPLE IRAs, SEP IRAs, ▇▇▇▇ IRAs, ▇▇▇▇▇▇▇▇▇ Education
Savings Accounts, and 403(b) Plans (collectively, such accounts, “Fiduciary
Accounts”), the Sub-Transfer Agent, at the request of the Transfer Agent, shall
arrange for the provision of appropriate prototype plans as well as provide or
arrange for the provision of various services to such plans and/or accounts,
which services may include custodial services to be provided by New York Life
Trust Company, account set-up maintenance, and disbursements as well as such
other services as the parties hereto shall mutually agree
upon.
2. Exception
Services
2.1
Transactions shall be deemed exception
services (“Exception Services”) when such transactions:
(a) Require the Sub-Transfer Agent
to use methods and procedures other than those usually employed by the
Sub-Transfer Agent to perform services under Section
1 of this
Agreement;
(b) Involve the provision of
information to the Sub-Transfer Agent after the commencement of the nightly
processing cycle of the TA2000 System; or
(c) Require more manual
intervention by the Sub-Transfer Agent, either in the entry of data or in the
modification or amendment of reports generated by the TA2000 System than is
usually required by non-retirement plan and pre-nightly
transactions.
3. Fees and
Expenses
3.1
Fee Schedule.
For the performance
by the Sub-Transfer Agent pursuant to this Agreement, the Transfer Agent agrees
to pay the Sub-Transfer Agent an annual maintenance fee for each Shareholder
account as set forth in the attached fee schedule (“Schedule 3.1”).
Such fees and out-of-pocket expenses and advances identified under
Section
3.2 below may be changed
from time to time subject to mutual written agreement between the Transfer Agent
and the Sub-Transfer Agent.
3.2
Out-of-Pocket
Expenses. In addition
to the fee paid under Section
3.1 above, the Transfer
Agent agrees to reimburse the Sub-Transfer Agent for out-of-pocket expenses,
including but not limited to confirmation production, postage, forms, telephone,
microfilm, microfiche, mailing and tabulating proxies, records storage and
advances incurred by the Sub-Transfer Agent for the items set out in Schedule
3.1 attached hereto. In addition, any other expenses incurred by the
Sub-Transfer Agent at the request or with the consent of the Transfer Agent,
will be reimbursed by the Fund.
3.3
Invoices. The Transfer Agent agrees to pay
all fees and reimbursable expenses within thirty (30) days following the receipt
of the respective billing notice, except for any fees or expenses that are
subject to good faith dispute. In the event of such a dispute, the
Transfer Agent may only withhold that portion of the fee or expense subject to
the good faith dispute. The Transfer Agent shall notify the Sub-Transfer
Agent in writing within twenty-one (21) calendar days following the receipt of
each billing notice if the Transfer Agent is disputing any amounts in good
faith. If the Transfer Agent does not provide such notice of dispute
within the required time, the billing notice will be deemed accepted by the
Transfer Agent. The Fund shall settle such disputed amounts by payment of
the agreed amount within five (5) days of the day on which the parties agree on
the amount to be paid. If no agreement is reached, then such disputed
amounts shall be settled by law or legal process.
3.4
Cost of Living
Adjustment. Following
the first anniversary of the date first written above, 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-NU, 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-NU” shall mean the
Consumer Price Index for all Urban Consumers, Northeast Urban region, as
published by the United States Department of Labor, Bureau of Labor
Statistics.
4. Representations
and Warranties of the Sub-Transfer Agent
The Sub-Transfer Agent represents and
warrants to the Transfer Agent that:
4.1
It is a corporation duly organized and
existing and in good standing under the laws of The Commonwealth of
Massachusetts.
4.2
It is duly qualified to carry on its
business in The Commonwealth of Massachusetts.
4.3
It is empowered under applicable laws
and by its Articles of Incorporation and By-Laws to enter into and perform the
services contemplated in this Agreement.
4.4
It is a transfer agent fully registered
as a transfer agent pursuant to Section 17A(c)(2) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”).
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.
5. Representations
and Warranties of the Transfer Agent
The Transfer Agent represents and
warrants to the Sub-Transfer Agent that:
5.1
It is a corporation duly organized and
existing and in good standing under the laws of the State of
Delaware.
5.2
It is empowered under applicable laws
and by its Articles of Incorporation and By-Laws to enter into and perform this
Agreement.
5.3
All corporate proceedings required by
said Articles of Incorporation and By-Laws have been taken to authorize it to
enter into and perform this Agreement.
5.4
Each Fund is an open-end, diversified
management investment company registered under the Investment Company Act of
1940, as amended.
5.5
A registration statement under the
Securities Act of 1933, as amended, is currently effective and will remain
effective, and appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the Fund being offered for
sale.
6. Wire
Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
Code
6.1
Obligation of
Sender. The
Sub-Transfer Agent is authorized to promptly debit the appropriate Transfer
Agent account(s) upon the receipt of a payment order in compliance with the
selected security procedure (the “Security Procedure”) chosen for funds transfer
and in the amount of money that the Sub-Transfer Agent has been instructed to
transfer. The Sub-Transfer Agent shall execute payment orders in
compliance with the Security Procedure and with the Transfer Agent instructions
on the execution date provided that such payment order is received by the
customary deadline for processing such a request, unless the payment order
specifies a later time. All payment orders and communications received
after the customary deadline will be deemed to have been received the next
business day.
6.2
Security
Procedure. The
Transfer Agent acknowledges that the Security Procedure it has designated on the
Transfer Agent Selection Form was selected by the Transfer Agent from security
procedures offered by the Sub-Transfer Agent. The Transfer Agent shall
restrict access to confidential information relating to the Security Procedure
to authorized persons as communicated to the Sub-Transfer Agent in writing.
The Transfer Agent must notify the Sub-Transfer Agent immediately if
it has reason to believe unauthorized persons may have obtained access to such
information or of any change in the Transfer Agent’s authorized personnel.
The Sub-Transfer Agent shall verify the authenticity of all Transfer Agent
instructions according to the Security Procedure.
6.3
Account
Numbers. The
Sub-Transfer Agent shall process all payment orders on the basis of the account
number contained in the payment order. In the event of a discrepancy
between any name indicated on the payment order and the account number, the
account number shall take precedence and govern.
6.4
Rejection. The Sub-Transfer Agent reserves
the right to decline to process or delay the
processing of a payment order which (a)
is in excess of the collected balance in the account to be charged at the time
of the Sub-Transfer Agent’s receipt of such payment order; (b) if initiating
such payment order would cause the Sub-Transfer Agent, in the Sub-Transfer
Agent’s sole judgement, to exceed any volume, aggregate dollar, network, time,
credit or similar limits which are applicable to the Sub-Transfer Agent; or (c)
if the Sub-Transfer Agent, in good faith, is unable to satisfy itself that the
transaction has been properly authorized.
6.5
Cancellation
Amendment. The
Sub-Transfer Agent shall use reasonable efforts to act on all authorized
requests to cancel or amend payment orders received in compliance with the
Security Procedure provided that such requests are received in a timely manner
affording the Sub-Transfer Agent reasonable opportunity to act. However,
the Sub-Transfer Agent assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6.6
Errors. The Sub-Transfer Agent shall
assume no responsibility for failure to detect any erroneous payment order
provided that the Sub-Transfer Agent complies with the payment order
instructions as received and the Sub-Transfer Agent complies with the Security
Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of errors in
payment orders.
6.7
ACH Credit
Entries/Provisional Payments. When the Transfer Agent
initiates or receives Automated Clearing House credit and debit entries pursuant
to these guidelines and the rules of the National Automated Clearing House
Association and the New England Clearing House Association, the Sub-Transfer
Agent will act as an Originating Depository Financial Institution and/or
Receiving Depository Financial Institution, as the case may be, with respect to
such entries. Credits given by the Sub-Transfer Agent with respect to an
ACH credit entry are provisional until the Sub-Transfer Agent receives final
settlement for such entry from the Federal Reserve Bank. If the
Sub-Transfer Agent does not receive such final settlement, the Transfer Agent
agrees that the Sub-Transfer Agent shall receive a refund of the amount credited
to the Transfer Agent in connection with such entry, and the party making
payment to the Transfer Agent via such entry shall not be deemed to have paid
the amount of the entry.
6.8
Confirmation. Confirmation of Sub-Transfer
Agent’s execution of payment orders shall ordinarily be provided within twenty
four (24) hours notice of which may be delivered through the Sub-Transfer
Agent’s proprietary information systems, or by facsimile or call-back.
Transfer Agent must report any objections to the execution of an order
within thirty (30) days.
7. Data Access
and Proprietary Information
7.1
The Transfer Agent acknowledges that the
databases, computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals furnished to the Transfer Agent by the
Sub-Transfer Agent as part of the Fund’s ability to access certain Fund-related
data (“Customer Data”) maintained by the Sub-Transfer Agent on databases under
the control and ownership of the Sub-Transfer Agent or other third party (“Data
Access Services”) constitute copyrighted, trade secret, or other proprietary
information (collectively, “Proprietary Information”) of substantial value to
the Sub-Transfer Agent or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Transfer Agent agrees to treat
all Proprietary Information as proprietary to the Sub-Transfer Agent and further
agrees that it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting the
foregoing, the Transfer Agent agrees for itself and its employees and agents
to:
(a) Use such programs and
databases (i) solely on the Transfer Agent’s computers, or (ii) solely from
equipment at the location agreed to between the Sub-Transfer Agent and the
Transfer Agent and (iii) solely in accordance with the Sub-Transfer Agent’s
applicable user documentation;
(b) Refrain from copying or
duplicating in any way (other than in the normal course of performing processing
on the Transfer Agent’s computer(s)), the Proprietary
Information;
(c) Refrain from obtaining
unauthorized access to any portion of the Proprietary Information, and if such
access is inadvertently obtained, to inform in a timely manner of such fact and
dispose of such information in accordance with the Sub-Transfer Agent’s
instructions;
(d) Refrain from causing or
allowing information transmitted from the Sub-Transfer Agent’s computer to the
Transfer Agent’s terminal to be retransmitted to any other computer terminal or
other device except as expressly permitted by the Transfer Agent (such
permission not to be unreasonably withheld);
(e) Allow the Transfer Agent to
have access only to those authorized transactions as agreed to between the
Sub-Transfer Agent and the Transfer Agent; and
(f) Honor all reasonable written
requests made by the Sub-Transfer Agent to protect at the Sub-Transfer Agent’s
expense the rights of the Sub-Transfer Agent in Proprietary Information at
common law, under federal copyright law and under other federal or state
law.
7.2
Proprietary Information shall not
include all or any portion of any of the foregoing items that: (i) are or
become publicly available without breach of this Agreement; (ii) are released
for general disclosure by a written release by the Sub-Transfer Agent; or (iii)
are already in the possession of the receiving party at the time of receipt
without obligation of confidentiality or breach of this
Agreement.
7.3
The Transfer Agent acknowledges that its
obligation to protect the Sub-Transfer Agent’s Proprietary Information is
essential to the business interest of the Sub-Transfer Agent and that the
disclosure of such Proprietary Information in breach of this Agreement would
cause the Sub-Transfer Agent immediate, substantial and irreparable harm, the
value of which would be extremely difficult to determine. Accordingly, the
parties agree that, in addition to any other remedies that may be available in
law, equity, or otherwise for the disclosure or use of the Proprietary
Information in breach of this Agreement, the Sub-Transfer Agent shall be
entitled to seek and obtain a temporary restraining order, injunctive relief, or
other equitable relief against the continuance of such
breach.
7.4
If the Transfer Agent notifies the
Sub-Transfer Agent that any of the Data Access Services do not operate in
material compliance with the most recently issued user documentation for such
services, the Sub-Transfer Agent shall endeavor in a timely manner to correct
such failure. Organizations from which the Sub-Transfer Agent may obtain
certain data included in the Data Access Services are solely responsible for the
contents of such data and the Transfer Agent agrees to make no claim against the
Sub-Transfer Agent arising out of the contents of such third-party data,
including, but not limited to, the accuracy thereof. DATA ACCESS SERVICES
AND ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION
THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE SUB-TRANSFER
AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
7.5
If the transactions available to the
Transfer Agent include the ability to originate electronic instructions to the
Sub-Transfer Agent in order to (i) effect the transfer or movement of cash or
Shares or (ii) transmit Shareholder information or other information, then in
such event the Sub-Transfer Agent shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further inquiry as long
as such instruction is undertaken in conformity with security procedures
established by the Sub-Transfer Agent from time to time.
7.6
Each party shall take reasonable efforts
to advise its employees of their obligations pursuant to this Section
7. The obligations of
this Section shall survive any earlier termination of this
Agreement.
8. Indemnification
8.1
The Sub-Transfer Agent shall not be
responsible for, and the Transfer Agent shall indemnify and hold the
Sub-Transfer Agent harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of the
Sub-Transfer Agent or its agents or subcontractors required to be taken pursuant
to this Agreement, (including the defense of any law suit in which the
Sub-Transfer Agent or affiliate is a named party), provided that such actions
are taken in good faith and without negligence or willful
misconduct;
(b) The Transfer Agent’s lack
of good faith, negligence or willful misconduct which arise out of the breach of
any representation or warranty of the Transfer Agent
hereunder;
(c) The reliance upon, and
any subsequent use of or action taken or omitted, by the Sub-Transfer Agent, or
its agents or subcontractors on: (i) any information, records, documents, data,
stock certificates or services, which are received by the Sub-Transfer Agent or
its agents or subcontractors by machine readable input, facsimile, CRT data
entry, electronic instructions or other similar means authorized by the Transfer
Agent, and which have been prepared, maintained or performed by the Transfer
Agent or each Fund or any other person or firm on behalf of the Transfer Agent
or each Fund including but not limited to any broker-dealer, TPA or previous
transfer agent or registrar; (ii) any instructions or requests of the Transfer
Agent or each Fund or any of its officers; (iii) any instructions or opinions of
legal counsel with respect to any matter arising in connection with the services
to be performed by the Sub-Transfer Agent under this Agreement which are
provided to the Sub-Transfer Agent after consultation with such legal counsel;
or (iv) any paper or document reasonably believed to be genuine, authentic, or
signed by the proper person or persons;
(d) The acceptance of e-mail
and facsimile transaction requests on behalf of individual Shareholders received
from broker-dealers, TPAs, the Funds or the Transfer Agent, and the reliance by
the Sub-Transfer Agent on the broker-dealer, TPA, the Fund or the Transfer Agent
ensuring that the original source documentation is in good order and properly
retained;
(e) 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;
(f) The negotiation and
processing of any checks, wires and ACH payments including without limitation
for deposit into the Fund’s demand deposit account maintained at the Bank;
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
In order that the indemnification
provisions contained in this Section
8 shall apply, upon the
assertion of a claim for which the Transfer Agent may be required to indemnify
the Sub-Transfer Agent, the Sub-Transfer Agent shall promptly notify the
Transfer Agent of such assertion, and shall keep the Transfer Agent advised with
respect to all developments concerning such claim. The Transfer Agent
shall have the option to participate with the Sub-Transfer Agent in the defense
of such claim or to defend against said claim in its own name or in the name of
the Sub-Transfer Agent. The Sub-Transfer Agent shall in no case confess
any claim or make any compromise in any case in which the Transfer Agent may be
required to indemnify the Sub-Transfer Agent except with the Transfer Agent’s
prior written consent.
9. Standard of
Care/Limitation of Liability
The Sub-Transfer Agent shall at all
times act in good faith and agrees to use its best efforts within reasonable
limits to ensure the accuracy of all services performed under this Agreement,
but assumes no responsibility and shall not be liable for loss or damage due to
errors, including encoding and payment processing errors, unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of its
employees or agents. The parties agree that any encoding or payment
processing errors shall be governed by this standard of care and Section 4-209
of the Uniform Commercial Code is superseded by Section
9 of this Agreement.
This shall apply to Exception Services as defined in Section 2.3 herein, but such application shall take
into consideration the manual processing involved in, and time sensitive nature
of, Exception Services. Notwithstanding the foregoing, Sub-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 Sub-Transfer Agent under 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 Sub-Transfer Agent as
fees and charges, but not including reimbursable expenses, during the six (6)
calendar months immediately preceding the event for which recovery from
Sub-Transfer Agent is being sought.
10. Confidentiality
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10.1
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The Sub-Transfer Agent and the
Transfer Agent each agrees that it 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
Customer Information (as defined in Section
10.3), trade secrets,
cost figures and projections, profit figures, business processes or
procedures, Proprietary Information (as defined above) or any other secret
or confidential information whatsoever, whether of the Sub-Transfer Agent
or of the Transfer Agent, used or acquired by the Sub-Transfer Agent or
the Transfer Agent during performance under this Agreement except in
accordance with this Agreement (such party’s, “Confidential Information”).
Each of the Sub-Transfer Agent and the Transfer Agent further
covenants and agrees to retain all such Confidential Information acquired
during and after the term of this Agreement whatsoever in trust for the
sole benefit of the Sub-Transfer Agent or the Transfer Agent and their
successors and assigns. In the event of breach of the foregoing by
either party, the remedies provided by Section
7.3 shall be
available to the party whose Confidential Information is disclosed.
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10.2
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Each of the Sub-Transfer Agent and
Transfer Agent agrees that it shall not (a) use any Confidential
Information of the other party (including Customer Information) in any way
for its own account or an account of a third party, except for the
exercise of its rights and performance of its obligations under this
Agreement or (b) disclose any such Confidential Information to any person
other than (i) to its employees, agents and subcontractors who require
access to such Confidential Information in connection with the exercise
and performance of their obligations under this Agreement or (ii) to any
other third party upon the written or e-mail instructions of the owner of
the Confidential Information. Any employee, agent or subcontractor
to whom the Confidential Information of the other party is disclosed shall
be subject to confidentiality obligations with respect to such
Confidential Information at least as restrictive as those set forth in
this Agreement. Each of the Sub-Transfer Agent and Transfer Agent
agrees that it shall not knowingly allow any unauthorized person access to
the other party’s Confidential Information and that it shall take
commercially reasonable actions to protect the confidentiality of the
other party’s Confidential Information, including implementing and
enforcing procedures to minimize the possibility of unauthorized use or
copying of such Confidential
Information.
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10.3
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For purposes of this Agreement,
“Customer Information” shall mean 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,
including without limitation, 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. 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). This Agreement shall not be construed
as granting any ownership rights to the Sub-Transfer Agent to Customer
Information.
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10.4
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In the event that any requests or
demands are made for the inspection of the Shareholder records of the
Fund, other than request for records of Shareholders pursuant to standard
subpoenas from state or federal government authorities (i.e., divorce and
criminal actions), the Sub-Transfer Agent will endeavor to notify the
Transfer Agent and to secure instructions from an authorized officer of
the Transfer Agent as to such inspection. The Sub-Transfer Agent
expressly reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by counsel that it may be held liable
for the failure to exhibit the Shareholder records to such person or if
required by law or court
order.
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11. Covenants of
the Transfer Agent and the Sub-Transfer Agent
11.1
The Transfer Agent shall promptly
furnish to the Sub-Transfer Agent a certified copy of the resolution of the
Board of Directors of the Transfer Agent authorizing the appointment of the
Sub-Transfer Agent and the execution and delivery of this
Agreement.
11.2
The Sub-Transfer Agent hereby agrees to
establish and maintain facilities and procedures reasonably acceptable to the
Transfer Agent for safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or use, and for
keeping account of, such certificates, forms and devices.
11.3
The Sub-Transfer Agent shall keep
records relating to the services to be performed hereunder, in the form and
manner as it may deem advisable. To the extent required by Section 31 of
the Investment Company Act of 1940, as amended, and the Rules thereunder, the
Sub-Transfer Agent agrees that all such records prepared or maintained by the
Sub-Transfer Agent relating to the services to be performed by the Sub-Transfer
Agent hereunder are the property of the Fund and will be preserved, maintained
and made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its
request.
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11.4
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The Sub-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 Transfer Agent’s Confidential Information, including
Customer Information, in the possession of the Sub-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 Sub-Transfer Agent will, at a minimum,
update its policies to remain compliant with regulatory
requirements. The Sub-Transfer Agent will meet with the Transfer
Agent, at its request, on an annual basis to discuss information security
safeguards. If the Sub-Transfer Agent or its agents discover or are
notified of that someone has violated security relating to the Transfer
Agent’s Confidential Information, including Customer Information, the
Sub-Transfer Agent will promptly (a) notify the Transfer Agent of such
violation, and (b) if the applicable Confidential Information was in
the possession or under the control of the Sub-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
Transfer Agent with assurance reasonably satisfactory to the Transfer
Agent that such violation will not recur.
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11.5
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The Sub-Transfer Agent shall
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 Sub-Transfer Agent shall
continuously back-up Fund records, and shall store the back-up in a secure
manner at a location other than its normal location, so that, in the event
of a power failure, disaster or other interruption at such normal
location, the records will be maintained intact and will enable the
Sub-Transfer Agent to perform the services under this Agreement. The
Sub-Transfer Agent will maintain a comprehensive business continuity plan
and will provide an executive summary of such plan upon reasonable request
of the Transfer Agent. The Sub-Transfer Agent will test the adequacy
of its business continuity plan at least annually and upon request, the
Transfer Agent may participate in such test. Upon request by the
Transfer Agent, the Sub-Transfer Agent will provide the Transfer Agent
with a letter assessing the most recent business continuity test results.
In the event of a business disruption that materially impacts the
Sub-Transfer Agent’s provision of services under this Agreement, the
Sub-Transfer Agent will promptly notify the Transfer Agent of the
disruption and the steps being implemented under the business continuity
plan.
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12. Termination
of Agreement
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12.1
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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 one hundred and twenty (120) days before the
expiration of the Initial Term or any Renewal Term, this Agreement will renew
automatically from year to year (each such year-to-year renewal term a “Renewal
Term”). One hundred and twenty (120) days before the expiration of the
Initial Term or a Renewal Term the parties to this Agreement will agree upon a
Fee Schedule for the upcoming Renewal Term. Otherwise the fees shall be
increased pursuant to Section
3.5 of this Agreement.
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.
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12.2
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Early
Termination. Notwithstanding anything
contained in this Agreement to the contrary, should the Fund desire to
move any of its services provided by the Sub-Transfer Agent hereunder to a
successor service provider prior to the expiration of the then current
Initial or Renewal Term, or without the required notice, the Sub-Transfer
Agent shall make a good faith effort to facilitate the conversion on such
prior date; however, there can be no guarantee or assurance that the
Sub-Transfer Agent will be able to facilitate a conversion of services on
such prior date. In connection with the foregoing, should services
be converted to a successor service provider, or if the Fund is liquidated
or its assets merged or purchased or the like with or by another entity
which does not utilize the services of the Sub-Transfer Agent, the fees
payable to the Sub-Transfer Agent shall be calculated as if the services
had been performed by the Sub-Transfer Agent until the expiration of the
then current Initial or Renewal Term and calculated at the asset and/or
Shareholder account levels, as the case may be, on the date notice of
termination was given to the Sub-Transfer Agent, and the payment of all
fees to the Sub-Transfer Agent as set forth shall be accelerated to the
business day immediately prior to the conversion or termination of
services.
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12.3
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Expiration of
Term. 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 Transfer Agent. Additionally, the Sub-Transfer Agent
reserves the right to charge for any other reasonable expenses associated
with such termination.
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12.4
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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.
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12.5
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Unpaid
Invoices. The
Sub-Transfer Agent may terminate this Agreement immediately upon an unpaid
invoice payable by the Transfer Agent to the Sub-Transfer Agent being
outstanding for more than ninety (90) days, except with respect to any
amount subject to a good faith dispute within the meaning of Section
3.3 of this
Agreement.
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12.6
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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.
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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 Sub-Transfer Agent
and the Transfer Agent, and the duties and responsibilities undertaken pursuant
to this Agreement shall be for the sole and exclusive benefit of the
Sub-Transfer Agent and the Transfer Agent. This Agreement shall inure to
the benefit of and be binding upon the parties and their respective permitted
successors and assigns.
13.3
This Agreement does not constitute an
agreement for a partnership or joint venture between the Sub-Transfer Agent and
the Transfer Agent. Other than as provided in Section
14.1 and Schedule 1.2(f),
neither party shall make any commitments with third parties that are binding on
the other party without the other party’s prior written
consent.
14. Subcontractors
14.1
The Sub-Transfer Agent may not, without
written consent on the part of the Transfer Agent, subcontract for the
performance hereof with any third party except with affiliates of the
Sub-Transfer Agent, including DST Output, Inc.. The Sub-Transfer Agent
shall be fully responsible to the Transfer Agent for the acts and omissions of
any subcontractor that the Sub-Transfer Agent has engaged, as it is for its own
acts and omissions.
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14.2
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Nothing herein shall impose any
duty upon the Sub-Transfer Agent in connection with or make the
Sub-Transfer Agent liable for the actions or omissions to act by
unaffiliated third parties such as, by way of example and not limitation,
Airborne Services, Federal Express, United Parcel Service, the U.S. Mails,
the NSCC and telecommunication companies, provided, if the Sub-Transfer
Agent selected such company, the Sub-Transfer Agent shall have exercised
due care in selecting the
same.
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15. Miscellaneous
15.1
Amendment. This Agreement may be amended or
modified by a written agreement executed by both parties and authorized or
approved by a resolution of the Transfer Agent.
15.2
Massachusetts Law to
Apply. This Agreement
shall be construed and the provisions thereof interpreted under and in
accordance with the laws of The Commonwealth of
Massachusetts.
15.3
Force
Majeure. In the event
either party is unable to perform its obligations under the terms of this
Agreement because of acts of God, strikes, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond its
control, such party shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such causes; provided,
however, with regard to the Sub-Transfer Agent, this clause shall not apply to
obligations which the Sub-Transfer Agent has specifically warranted that it will
continue to perform during a Force
Majuere event pursuant to
its current business continuity plan subject to the terms and limitations in
such plan.
15.4
Consequential
Damages. Neither
party to this Agreement shall be liable to the other party for consequential,
indirect or special damages under any provision of this Agreement or for any
consequential, indirect or special damages arising out of any act or failure to
act hereunder.
15.5
Survival.
All provisions
regarding indemnification, warranty, liability, and limits thereon, and
confidentiality and/or protections of proprietary rights and trade secrets shall
survive the termination of this Agreement.
15.6
Severability. If any provision or provisions of
this Agreement shall be held invalid, unlawful, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired.
15.7
Priorities Clause.
In the event of any
conflict, discrepancy or ambiguity between the terms and conditions contained in
this Agreement and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
15.8
Waiver.
No waiver by either
party or any breach or default of any of the covenants or conditions herein
contained and performed by the other party shall be construed as a waiver of any
succeeding breach of the same or of any other covenant or
condition.
15.9
Merger of Agreement.
This Agreement
constitutes the entire agreement between the parties hereto and supersedes any
prior agreement with respect to the subject matter hereof whether oral or
written.
15.10
Counterparts.
This Agreement may be
executed by the parties hereto on any number of counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
15.11
Reproduction of
Documents. This
Agreement and all schedules, exhibits, attachments and amendments hereto may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction shall likewise be admissible in evidence.
15.12
Notices.
All notices and other
communications as required or permitted hereunder shall be in writing and sent
by first class mail, postage prepaid, addressed as follows or to such other
address or addresses of which the respective party shall have notified the
other.
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(a)
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If to Boston Financial Data
Services, Inc. to:
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Boston Financial Data Services,
Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attn: Legal
Department
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
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(b)
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If to the Transfer Agent,
to:
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NYLIM Service Company
LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
Attn:
Facsimile:
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.
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BOSTON
FINANCIAL DATA SERVICES, INC.
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NYLIM
SERVICE COMPANY LLC
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Attest:
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Attest:
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Name:
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Name:
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SCHEDULE A
FUNDS
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Mainstay
All Cap Growth
Mainstay
All Cap Value
Mainstay
Capital Appreciation
Mainstay
Common Stock
Mainstay
Equity Index
Mainstay
Large Cap Growth
Mainstay
Map
Mainstay
Mid Cap Growth
Mainstay
Mid Cap Opportunity
Mainstay
Mid Cap Value
Mainstay
S&P 500 Index
Mainstay
Small Cap Growth
Mainstay
Small Cap Opportunity
Mainstay
Small Cap Value
Mainstay
High Yield Corporate Bond
Mainstay
Total Return
Mainstay
Global High Income
Mainstay
International Equity
Mainstay
Convertible
Mainstay
Conservative Allocation
Mainstay
Growth Allocation
Mainstay
Moderate Allocation
Mainstay
Moderate Growth Allocation
Mainstay
Value
Mainstay
Cash Reserves
Mainstay
Diversified Income
Mainstay
Floating Rate
Mainstay
Government
Mainstay
Short Term Bond
Mainstay
Tax Free Bond
Mainstay
Asset Manager
Mainstay
Balanced
Mainstay
Intermediate Term Bond
Mainstay
Money Market
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Mainstay
Indexed Bond
Mainstay
Large Cap Opportunity
Mainstay
Growth Equity
MainStay
ICAP Equity Fund
MainStay
ICAP Select Equity Fund
MainStay
ICAP International Fund
McMorgan
Equity Investment
McMorgan
Balanced
McMorgan
High Yield
McMorgan
Fixed Income
McMorgan
Intermediate fixed Income
McMorgan
Principal Preservation
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BOSTON
FINANCIAL DATA SERVICES, INC.
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NYLIM
SERVICE COMPANY LLC
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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SCHEDULE 1.2(f)
AML DELEGATION
1. Delegation. In connection with the enactment
of the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001 and the regulations promulgated
thereunder, (collectively, the “USA PATRIOT Act”), the Transfer Agent and the
Funds have developed and implemented a written anti-money laundering program
(the “AML Program”), which is designed to satisfy the requirements of the USA
PATRIOT Act. Under the USA PATRIOT Act, a mutual fund can elect to
delegate certain duties with respect to the implementation and operation of its
AML Program to a service provider, including its transfer agent. The Funds
have made such a delegation to the Transfer Agent. In accordance with the
Funds’ delegation, the Transfer Agent is desirous of having the Sub-Transfer
Agent perform certain delegated duties pursuant to the AML Program and the
Sub-Transfer Agent desires to accept such delegation.
2. Limitation
on Delegation. The Transfer Agent acknowledges
and agrees that in accepting the delegation hereunder, the Sub-Transfer Agent is
agreeing to perform only those services that have been expressly delegated
hereby as the same may from time to time be amended and is not undertaking and
shall not be responsible for any other aspect of the AML Program or for the
overall compliance by the Funds with the USA PATRIOT Act or for any other
matters delegated by the Funds to the Transfer Agent that have not been further
delegated hereunder. Additionally, the parties acknowledge and agree that the
Sub-Transfer Agent shall only be responsible for performing the delegated duties
with respect to the ownership of, and transactions in, shares in the Funds for
which the Sub-Transfer Agent maintains the applicable shareholder
information.
3. Consent to
Examination. In
connection with the performance by the Sub-Transfer Agent of the delegated
duties below, the Sub-Transfer Agent understands and acknowledges that the
Transfer Agent and the Funds remain responsible for assuring compliance with the
USA PATRIOT Act and that the records the Sub-Transfer Agent maintains for the
Transfer Agent on behalf of the Funds 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
Sub-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 Sub-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.
4. Delegated
Duties.
4.1
Consistent with the services provided by
the Sub-Transfer Agent and with respect to the beneficial ownership of, and
transactions in, shares in the Fund for which the Sub-Transfer Agent maintains
the applicable shareholder information, the Sub-Transfer Agent
shall:
(a) Submit all financial and
non-financial 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;
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(b)
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Review special payee checks
through the OFAC database;
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(c)
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Review redemption transactions
that occur within thirty (30) days of account establishment or
maintenance;
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(d)
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Review wires sent pursuant to
banking instructions other than those on file with the Sub-Transfer
Agent;
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(e)
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Review accounts with small
balances followed by large
purchases;
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(f)
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Review accounts with frequent
activity within a specified date range followed by a large
redemption;
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(g)
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On a daily basis, review purchase
and redemption activity per tax identification number (“TIN”) within the
Funds to determine if activity for that TIN exceeded the $100,000
threshold on any given day;
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(h)
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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;
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(i)
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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
Transfer Agent with a copy of the SAR within a reasonable time after
filing; notify the Transfer Agent if any further communication is received
from U.S. Department of the Treasury or other law enforcement agencies
regarding the SAR;
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(j)
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Compare account information to any
FinCEN request received by the Transfer Agent and provided to the Transfer
Agent pursuant to USA PATRIOT Act Sec. 314(a). Provide the Transfer
Agent with documentation/information necessary to respond to requests
under USA PATRIOT Act Sec. 314(a) within required time
frames;
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(k)
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In accordance with procedures
agreed upon by the parties (which may be amended from time to time by
mutual agreement of the parties) (i) verify the identity of any person
seeking to open an account with a 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 Transfer Agent by any
government agency; and
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(l)
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Denote new foreign correspondent
accounts with a distinct social code at account set-up when account set-up
is performed by the Sub-Transfer Agent or, if account set-up is performed
by a party other than the Sub-Transfer Agent, at such other time as
required documentary evidence for a foreign correspondent account is
presented in good order to the Sub-Transfer Agent.
Upon request by
the Transfer Agent, generate periodic reports of foreign correspondent
accounts for review by the Transfer Agent or the Fund for purposes of
compliance with USA PATRIOT Act, Section
312.
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4.2
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In the event that the Sub-Transfer
Agent detects suspicious activity as a result of the foregoing procedures,
which necessitates the filing by the Sub-Transfer Agent of a SAR, a Form
8300 or other similar report or notice to OFAC, then the Sub-Transfer
Agent shall also immediately notify the Transfer Agent, unless prohibited
by applicable law.
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BOSTON
FINANCIAL DATA SERVICES, INC.
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NYLIM
SERVICE COMPANY LLC
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Client
Relationship Manager
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Title: Client
Relationship Manager
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SCHEDULE 3.1
FEES
Fee Term: October 1, 2005 through
October 1, 2008
General: Fees are annual and are billed on a
monthly basis at the rate of 1/12 of the annual fee. A charge is made for
an account in the month that an account opens or closes.
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Accounts Serviced
Fees
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Matrix Level 3
Accounts
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$5.08/per
Account
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Non- Matrix Level 3
Accounts
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First
1,000,000 Non-ML3 Accounts
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$7.08/per
Account
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1,000,001+
Non-ML3 Accounts
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$6.83/per
Account
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Transaction
Fees
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Auto Purchase
Transactions
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$0.50/per
Account
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Non-Auto Purchase
Transactions
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$1.40/per
Account
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ACH
Transactions
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$0.60/per
transaction
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Check-writing
item
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$1.15/per
check
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Other Fees
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Fund
Minimum*
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$5,000 Per
CUSIP
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Out of Pocket
Expenses**
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Billed as
Incurred
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*Fund Minimum Note: For funds
opened prior to December 31, 2004, the fund minimum will be waived. The
accounts serviced fee will apply for these funds. In the event that a
fund, opened prior to December 31, 2004, is closed, the fund minimum will be
invoked until the fund is purged from the DST system. For funds opened
after December 31, 2004, the fund minimum will be invoked only if the accounts
serviced fee is less than $416.67 for any given month.
**Out-of Pocket expenses include but are
not limited to: costs associated with mailing expenses, (i.e. statements,
stationery, checks, certificates, printing, postage, etc.) forms, microfilm,
microfiche, COOL and expenses incurred at the specific direction of the fund.
Postage for mass mailings is due seven (7) days in advance of the mailing
date.
Note: NYLIM will continue to be billed
an out-of-pocket expense for 2 dedicated DST programmers through December 31,
2005. Effective January 1, 2006, the equivalent of 2 dedicated DST
programmers will be provided to NYLIM at no charge. Excess programming
hours will be billed at the then current DST programming rate. As of
September 2005 the DST programming rate is $160.00 per
hour.
A Cost of Living Adjustment will apply
in accordance with Section 3.4 of the Agreement.
SCHEDULE 3.1
(continued)
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BOSTON
FINANCIAL DATA SERVICES, INC.
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NYLIM
SERVICE COMPANY LLC
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Client
Relationship Manager
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Title: Client
Relationship Manager
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