EXHIBIT 23(H)(1)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EACH OF THE ENTITIES, INDIVIDUALLY AND NOT JOINTLY,
AS LISTED ON SCHEDULE A
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties..........................................1
2. Third Party Administrators for Defined Contribution Plans ...............6
3. Fees and Expenses........................................................7
4. Representations and Warranties of the Transfer Agent.....................9
5. Representations and Warranties of the Funds..............................9
6. Wire Transfer Operating Guidelines......................................10
7. Data Access and Proprietary Information.................................11
8. Indemnification.........................................................13
9. Standard of Care........................................................14
10. Confidentiality ........................................................15
11. Covenants of the Funds and the Transfer Agent...........................15
12. Termination of Agreement................................................16
13. Assignment and Third Party Beneficiaries................................18
14. Subcontractors..........................................................19
15. Miscellaneous...........................................................19
16. Additional Funds/Portfolios.............................................21
17. Limitations of Liability of the Trustees and Shareholders...............21
Schedule A Funds and Portfolios
Schedule 1.2(f) AML Delegation
Schedule 2.1 Third Party Administrator(s) Procedures
Schedule 3.1 Fees and Expenses
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT made as of the 1st day of January, 2006, by and between each of
the entities, individually and not jointly, listed on Schedule A having their
principal office and place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (collectively, the "Funds" and individually, the "Fund") and
BOSTON FINANCIAL DATA SERVICES, INC., a Massachusetts corporation having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Transfer Agent").
WHEREAS, certain Funds may be authorized to issue shares in a separate series,
such series shall be named under the respective Fund in the attached Schedule A,
which may be amended by the parties from time to time, (each such series,
together with all other series subsequently established by a Fund and made
subject to this Agreement in accordance with Section 16, being herein referred
to as a "Portfolio", and collectively as the "Portfolios");
WHEREAS, each Fund is either a statutory or business trust or a corporation
organized under the laws of a state (as set forth on the Schedule A) and
registered with the Securities and Exchange Commission as an investment company
pursuant to the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, it is contemplated that additional Funds and Portfolios may become
parties to this Agreement by written consent of the parties hereto and in
accordance with Section 16; and
WHEREAS, each Fund, on behalf of itself and, where applicable, its Portfolios,
desires to appoint the Transfer Agent as its transfer agent, dividend disbursing
agent and agent in connection with certain other activities, and the Transfer
Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions set
forth in this Agreement, each Fund, on behalf of itself and, where
applicable, its Portfolios, hereby employs and appoints the Transfer
Agent to act as, and the Transfer Agent agrees to act as, its
transfer agent for each Fund's authorized and issued shares of
common stock or beneficial interest, as the case maybe, ("Shares"),
dividend disbursing agent and agent in connection with any
accumulation, open-account or similar plan provided to the
shareholders of each Fund and of any Portfolios of a Fund
("Shareholders") and set out in the currently effective prospectus
and statement of additional information ("prospectus") of such Fund
or Portfolio, including without limitation any periodic investment
plan or periodic withdrawal program. In accordance with procedures
established from time to time by agreement between the Transfer
Agent and the Fund and their respective Portfolios, (the
"Procedures") with such changes or deviations there from as have
been (or may from time to time be) agreed upon in writing by the
parties, the Transfer Agent agrees that it will perform the
following services:
(a) Establish each Shareholder's account in the Fund on the Transfer
Agent's recordkeeping system and maintain such account for the
benefit of such Shareholder in accordance with the Procedures;
(b) Receive for acceptance and process orders for the purchase of
Shares, and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Fund authorized pursuant to the
organizational documents of the Fund (the "Custodian");
(c) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(d) Receive for acceptance and process redemption requests and
redemption directions and deliver the appropriate documentation
thereof to the Custodian;
(e) In respect to items (a) through (d) above, the Transfer Agent
may execute transactions directly with broker-dealers authorized by
the Fund;
(f) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(g) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(h) Prepare and transmit payments for dividends and distributions
declared by the Fund or any Portfolio thereof, as the case may be;
(i) If applicable, issue replacement certificates for those
certificates alleged to have been lost, stolen or destroyed upon
receipt by the Transfer Agent of indemnification satisfactory to the
Transfer Agent and protecting the Transfer Agent and the Fund, and
the Transfer Agent at its option, may issue replacement certificates
in place of mutilated stock certificates upon presentation thereof
and without such indemnity;
(j) Issue replacement checks and place stop orders on original
checks based on Shareholder's representation that a check was not
received or was lost. Such stop orders and replacements will be
deemed to have been made at the request of the Fund, and, as between
the Fund and the Transfer Agent, the Fund shall be responsible for
all losses or claims resulting from such replacement;
(k) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(l) Record the issuance of Shares of the Fund and maintain pursuant
to SEC Rule 17Ad-10(e) a record of the total number of Shares of the
Fund which are authorized, based upon data provided to it by the
Fund, and issued and outstanding. The Transfer Agent shall also
provide the Fund on a regular basis with the total number of Shares
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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;
(m) Accept any information, records, documents, data, certificates,
transaction requests by machine readable input, facsimile, CRT data
entry and electronic instructions, including e-mail communications,
which have been prepared, maintained or provided by the Fund or any
other person or firm on behalf of the Fund or from broker-dealers of
record or third-party administrators ("TPAs") on behalf of
individual Shareholders. With respect to transaction requests
received in the foregoing manner, the Transfer Agent shall not be
responsible for determining that the original source documentation
is in good order, which includes compliance with Rule 22c-1 under
the 1940 Act, and it will be the responsibility of the Fund to
require its broker-dealers or TPAs to retain such documentation.
E-mail exchanges on routine matters may be made directly with the
Fund's contact at the Transfer Agent. The Transfer Agent will not
act on any e-mail communications coming to it directly from
Shareholders requesting transactions, including, but not limited to,
monetary transactions, change of ownership, or beneficiary changes;
(n) Maintain such bank accounts as the Transfer Agent shall deem
necessary for the performance of its duties hereunder, including by
not limited to, the processing of Share purchases and redemptions
and the payment of Fund dividends;
(o) Receive correspondence pertaining to any former, existing or new
Shareholder account, process such correspondence for proper
recordkeeping and respond promptly to Shareholder correspondence;
(p) Process any request from a Shareholder to change account
registration, beneficiary, beneficiary information, transfer and
rollovers in accordance with the Procedures; and
(q) If requested by the Fund (and as mutually agreed upon by the
parties as to any reasonable out-of-pocket expenses), provide any
additional related services (i.e., pertaining to escheatments,
abandoned property, garnishment orders, bankruptcy and divorce
proceedings, Internal Revenue Service or state tax authority tax
levies and summonses, and U.S. Treasury Office of Foreign Assets
Control and all matters relating to the foregoing).
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraphs ,
the Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plan
(including without limitation any periodic investment plan or
periodic withdrawal program), including but not limited to:
maintaining all
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Shareholder accounts, preparing Shareholder meeting lists, mailing
Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing
and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, and providing
Shareholder account information;
(b) Control Book (also known as "Super Sheet"). Maintain a daily
record and produce a daily report for the Fund of all transactions
and receipts and disbursements of money and securities and deliver a
copy of such report for the Fund for each business day to the Fund
no later than 9:00 AM Eastern Time, or such earlier time as the Fund
may reasonably require, on the next business day;
(c) "Blue Sky" Reporting. The Fund 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; and (iv) maintain Shareholder accounts on
TA2000 System through Networking;
(e) New Procedures. New procedures as to who shall provide certain
of these services in Section 1 may be established in writing from
time to time by agreement between the Fund and the Transfer Agent.
The Transfer Agent may at times perform only a portion of these
services and the Fund or its agent may perform these services on the
Fund's behalf;
(f) Anti-Money Laundering ("AML") Delegation. If the Fund elects to
delegate to the Transfer Agent certain AML duties under this
Agreement, the parties will agree to such
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duties and terms as stated in the attached schedule ("Schedule
1.2(f) entitled "AML Delegation") which may be changed from time to
time subject to mutual written agreement between the parties. In
consideration of the performance of the duties by the Transfer Agent
pursuant to this Section 1.2(f), the Fund agrees to pay the Transfer
Agent for the reasonable administrative expense that may be
associated with such additional duties in the amount as the parties
may from time to time agree in writing in accordance with Section 3
(Fees and Expenses) below;
(g) SAS70. The Transfer Agent will furnish to the Fund, at least
annually, a report in accordance with Statements on Auditing
Standards No. 70 (the "SAS70 Report") as well as such other reports
and information relating to the Transfer Agent's policies and
procedures and its compliance with such policies and procedures and
with the laws applicable to its business and its services, as the
Fund may reasonable request;
(h) Compliance Program. The Transfer Agent maintains and will
continue to maintain a comprehensive compliance program reasonably
designed to prevent violations of the federal securities laws
pursuant to Rule 38a-1 under the 1940 Act. Pursuant to its
compliance program, the Transfer Agent will provide periodic
measurement reports to the Fund. Upon request of the Fund, the
Transfer Agent will provide to the Fund in connection with any
periodic annual or semi-annual shareholder report filed by the Fund
or, in the absence of the filing of such reports, on quarterly
basis, a sub-certification pursuant to the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 with respect to the Transfer Agent's performance of the
services set forth in this Agreement and its internal controls
related thereto. In addition, on a quarterly basis, the Transfer
Agent will provide to the Fund a certification in connection with
Rule 38a-1 under the 1940 Act. The Transfer Agent reserves the right
to amend and update its compliance program and the measurement tools
and certifications provided thereunder from time to time in order to
address changing regulatory and industry developments and the Fund
agrees to pay the administrative fee associated with all of the
foregoing; and
(i) Performance of Certain Services by the Fund or Affiliates or
Agents. New procedures as to who shall provide certain of the
transfer agency and record-keeping related services may be
established in writing from time to time by agreement between the
Fund and the Transfer Agent. The Transfer Agent may at time perform
only a portion of the services and the Fund, its affiliates or
agents may perform certain services on the Fund's behalf.
1.3 Inspection Rights. During the term of this Agreement, authorized
representatives of the Fund may perform periodic on-site
inspections, during transfer Agent's regular business hours, of the
Transfer Agent's facilities, records and procedures solely as they
pertain to the Transfer Agent's activities under or pursuant to this
Agreement. Such inspections shall be conducted at the Fund's expense
(which shall include costs related to providing materials, copying,
faxing, retrieving stored materials, and similar expenses). The
inspections shall be conducted in a manner that will not materially
interfere with the Transfer Agent's normal and customary conduct of
its business activities. Any such inspections shall be conducted in
accordance with reasonable procedures and at
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reasonable frequencies, not to exceed once any quarter. The Fund
shall provide at least ten (10) business days advance notice to the
Transfer Agent of such inspections.
1.4 Facsimile Communications.
(a) The Fund hereby authorizes and instructs the Transfer Agent, as
transfer agent for its Portfolios listed on Schedule 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) With regard to facsimile transaction 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, the Transfer Agent will make a call back to a
party at the Fund, other than the party transmitting the facsimile
instruction. The Fund acknowledges that such a call back will be
sufficient to verify the authenticity of such request.
1.5 Post Cut-Off Processing.
The Fund authorizes and instructs the Transfer Agent, as transfer agent for its
Portfolios listed on Schedule A to accept, from time to time:
(a) transaction requests by facsimile transmission that are
transmitted to Boston Financial from the Fund after the daily
closing time of the Fund and to act upon and process such
transaction requests as of the date identified by the Fund on the
cover page of such facsimile transmission. If the processing date is
not clearly marked by the Fund, Boston Financial shall process such
transaction on the next business day; and
(b) transaction requests by Automated Work Distributor (AWD) that
are returned to Boston Financial from the Fund with resolution of
shareowner or broker generated issues, after the daily closing time
of the Fund and to act upon and process such transaction requests as
of the date identified by the Fund in the comments section of AWD.
If the processing date is not clearly marked by the Fund, Boston
Financial shall process such transactions on the next business day.
In submitting the foregoing transaction to Boston Financial, the Fund shall be
deemed to certify that such transactions were received in good order by the Fund
prior to the Fund's closing time and that the processing of such transactions by
Boston Financial will not violate the Fund's obligations under Rule 22c-1 and
the regulations promulgated thereunder. In connection with accepting and
processing the foregoing transactions, Boston Financial shall be entitled to
rely on such certifications.
2. Third Party Administrators for Defined Contribution Plans
2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the
customers ("Employers") may adopt certain plans of deferred
compensation ("Plan or Plans") for the benefit of the individual
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Plan participant (the "Plan Participant"), such Plan(s) being
qualified under Section 401(a) of the Internal Revenue Code of 1986,
as amended ("Code") and administered by TPAs which may be plan
administrators as defined in the Employee Retirement Income Security
Act of 1974, as amended.
2.2 In accordance with the procedures established in the initial
Schedule 2.1 entitled "Third Party Administrator Procedures", as may
be amended by the Transfer Agent and the Fund from time to time
("Schedule 2.1"), the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the name
of the Trustees, Plans or TPAs as the case may be as omnibus
accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA
or its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as transfer agent of the
Funds and not as a record-keeper for the Plans.
2.3 Transactions identified under Sections 1 and 2 of this Agreement
shall be deemed exception services ("Exception Services") when such
transactions:
(a) Require the Transfer Agent to use methods and procedures other
than those usually employed by the Transfer Agent to perform
transfer agency and recordkeeping services;
(b) Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000
System; or
(c) Require more manual intervention by the Transfer Agent, either
in the entry of data or in the modification or amendment of reports
generated by the TA2000 System than is normally required.
3. Fees and Expenses
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent the fee
and expenses as set forth in the attached fee schedule ("Schedule
3.1"). Such fees and out-of-pocket expenses and advances identified
under Section 3.2 below may be changed from time to time subject to
mutual written agreement between the Fund and the Transfer Agent.
The parties agree that the fees set forth on Schedule 3.1 shall
apply with respect to the Funds set forth on Schedule A hereto as of
the date hereof and to any newly created funds added to this
Agreement under Section 16 that have requirements consistent with
services then being provided by the Transfer Agent under this
Agreement. The fees set forth on Schedule 3.1, however, shall not
automatically apply to any funds resulting from acquisition or
merger subsequent to the execution of this Agreement. In the event
that a fund is to become a party to this Agreement as the result of
an acquisition or merger and such fund's shareholder records are, at
the time of such acquisition or merger, maintained by the Transfer
Agent or its affiliates (including, DST Systems, Inc., State Street
Bank and
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Trust Company or National Financial Data Services, Inc.), then the
fund that is to become a party to this Agreement shall continue to
pay the fees for the servicing of such fund as are set forth in the
agreement(s) between such acquired/merged and the Transfer Agent
and/or its affiliates, until the end of the then current term(s) of
such agreements, at which time the parties shall discuss the fund's
requirements in relation to the services provided under this
Agreement and determine whether the fees under this Agreement shall
apply to such fund. In the event a fund is to become a party to this
Agreement that is the result of an acquisition or merger and such
fund's shareholder records, at the time of such acquisition or
merger, are maintained by a third party unaffiliated with the
Transfer Agent, then the parties shall confer diligently and in good
faith, and agree upon fees applicable to such fund.
3.2 Out-of-Pocket Expenses. In addition to the fees paid under Section
3.1 above, the Funds agree to reimburse the Transfer Agent for
out-of-pocket expenses, including but not limited to the items set
out in Schedule 3.1 attached hereto. In addition, any other expenses
incurred by the Transfer Agent at the request or with the consent of
the Fund, will be reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) days prior to the
mailing date of such materials.
3.4 Invoices. The 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 Late Payments. If any undisputed amount in an invoice of the
Transfer Agent (for fees or reimbursable expenses) is not paid when
due, the Fund shall pay the Transfer Agent interest thereon (from
the due date to the date of payment) at a per annum rate equal to
one percent (1.0%) plus the Prime Rate (that is, the base rate on
corporate loans posted by large domestic banks) published by The
Wall Street Journal (or, in the event such rate is not so published,
a reasonably equivalent published rate selected by the Transfer
Agent) on the first day of publication during the month when such
amount was due. Notwithstanding any other provision hereof, such
interest rate shall be no greater than permitted under applicable
provisions of Massachusetts law.
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4. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is a duly registered as a transfer agent under Section 17A(c)(2)
of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and it will remain so registered for the duration of this Agreement.
It will promptly notify the Fund in the event of any material change
in its status as a registered transfer agent.
4.3 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.4 It is empowered under applicable laws and by its Articles of
Organization and By-Laws to enter into and perform the services
contemplated in this Agreement.
4.5 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
4.6 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
5. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a trust or corporation duly organized and existing and in good
standing under the laws of the state of its organization as set
forth on Schedule A.
5.2 It is empowered under applicable laws and by its organizational
documents to enter into and perform this Agreement.
5.3 All corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
5.4 The Fund is an open-end management investment company registered
under the ▇▇▇▇ ▇▇▇.
5.5 A registration statement under the Securities Act of 1933, as
amended is currently effective and will remain effective, and
appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares being offered for
sale by the Fund.
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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 has reason to believe unauthorized persons
may have obtained access to such information or of any change in the
Fund's authorized personnel. The Transfer Agent shall verify the
authenticity of all Fund instructions according to the Security
Procedure.
6.3 Account Numbers. The Transfer Agent shall process all payment orders
on the basis of the account number contained in the payment order.
In the event of a discrepancy between any name indicated on the
payment order and the account number, the account number shall take
precedence and govern.
6.4 Rejection. The Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a) is in
excess of the collected balance in the account to be charged at the
time of the Transfer Agent's receipt of such payment order; (b) if
initiating such payment order would cause the Transfer Agent, in the
Transfer Agent's sole judgment, to exceed any volume, aggregate
dollar, network, time, credit or similar limits which are applicable
to the Transfer Agent; or (c) if the Transfer Agent, in good faith,
is unable to satisfy itself that the transaction has been properly
authorized.
6.5 Cancellation Amendment. The Transfer Agent shall use reasonable
efforts to act on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided
that such requests are received in a timely manner affording the
Transfer Agent reasonable opportunity to act. However, the Transfer
Agent assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6.6 Errors. The Transfer Agent shall assume no responsibility for
failure to detect any erroneous payment order provided that the
Transfer Agent complies with the payment order instructions as
received and the Transfer Agent complies with the Security
Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of
errors in payment orders.
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6.7 Interest. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the
unauthorized payment order within thirty (30) days of notification
by the Transfer Agent of the acceptance of such payment order.
6.8 ACH Credit Entries/Provisional Payments. When the Fund initiates or
receives Automated Clearing House credit and debit entries pursuant
to these guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association,
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.
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
("Customer 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
Customer Data. The Fund agrees to treat all Proprietary Information
as proprietary to the Transfer Agent and further agrees that it
shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting
the foregoing, the Fund agrees for itself and its employees and
agents to:
(a) Use such programs and databases (i) solely on the Fund's
computers; (ii) solely from equipment at the location agreed to
between the Fund and the Transfer Agent and (iii) solely in
accordance with the Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in
the normal course of performing processing on the Fund's
computer(s)), the Proprietary Information;
11
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform the Transfer Agent in a timely manner of such
fact and dispose of such information in accordance with the Transfer
Agent's instructions;
(d) Refrain from causing or allowing information transmitted from
the Transfer Agent's computer to the Fund's 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 Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer Agent;
and
(f) Honor all reasonable written requests made by the Transfer Agent
to protect at the Transfer Agent's expense the rights of the
Transfer Agent in Proprietary Information at common law, under
federal copyright law and under other federal or state law.
7.2 Proprietary Information shall not include all or any portion of any
of the foregoing items that: (i) are or become publicly available
without breach of this Agreement; (ii) are released for general
disclosure by a written release by the Transfer Agent; or (iii) are
already in the possession of the receiving party at the time of
receipt without obligation of confidentiality or breach of this
Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business
interest of the Transfer Agent and that the disclosure of such
Proprietary Information in breach of this Agreement would cause the
Transfer Agent immediate, substantial and irreparable harm, the
value of which would be extremely difficult to determine.
Accordingly, the parties agree that, in addition to any other
remedies that may be available in law, equity, or otherwise for the
disclosure or use of the Proprietary Information in breach of this
Agreement, the Transfer Agent shall be entitled to seek and obtain a
temporary restraining order, injunctive relief, or other equitable
relief against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most
recently issued user documentation for such services, the Transfer
Agent shall endeavor in a timely manner to correct such failure.
Organizations from which the Transfer Agent may obtain certain data
included in the Data Access Services are solely responsible for the
contents of such data and the Fund agrees to make no claim against
the Transfer Agent arising out of the contents of such third-party
data, including, but not limited to, the accuracy thereof. DATA
ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. EXCEPT FOR WARRANTIES EXPRESSLY STATED
HEREIN, THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THOSE
EXPRESSLY STATED HEREIN THE TRANSFER AGENT
12
EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to
(i) effect the transfer or movement of cash or Shares or (ii)
transmit Shareholder information or other information, then in such
event the Transfer Agent shall be entitled to rely on the validity
and authenticity of such instruction without undertaking any further
inquiry as long as such instruction is undertaken in conformity with
security procedures established by the Transfer Agent from time to
time.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of
this Section shall survive any earlier termination of this
Agreement.
8. Indemnification
8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent 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, counsel fees (including the defense of any law suit
in which the Transfer Agent or affiliate is a named party),
payments, expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and without
negligence or willful misconduct;
(b) The Fund 's lack of good faith, negligence or willful
misconduct;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on:
(i) any information, records, documents, data, stock certificates or
services, which are received by the Transfer Agent or its agents or
subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions, or other similar means authorized by the
Fund, and which have been prepared, maintained or performed by the
Fund or any other person or firm on behalf of the Fund including but
not limited to any broker-dealer, TPA or previous transfer agent;
(ii) any instructions or requests of the Fund or any of its
officers; (iii) any instructions or opinions of legal counsel with
respect to any matter arising in connection with the services to be
performed by the Transfer Agent under this Agreement which are
provided to the Transfer Agent by counsel to the Fund after
consultation with such legal counsel and upon which instructions or
opinion the Transfer Agent is expressly permitted to rely or
opinions of legal counsel that are obtained by the Transfer Agent;
or (iv) any paper or document, reasonably believed to be genuine,
authentic, or signed by the proper person or persons;
13
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered, or in violation of any stop order or other determination
or ruling by any federal or any state agency with respect to the
offer or sale of such Shares;
(e) The acceptance of facsimile transaction requests on behalf of
individual Shareholders received from broker-dealers, TPAs or the
Fund, and the reliance by the Transfer Agent on the broker-dealer,
TPA or the Fund ensuring that the original source documentation is
in good order and properly retained;
(f) The negotiation and processing of any checks, wires and ACH
transmissions including without limitation for deposit into, or
credit to, the Fund's demand deposit account maintained by the
Transfer Agent; or
(g) Upon the Fund's request entering into any agreements required by
the NSCC for the transmission of Fund or Shareholder data through
the NSCC clearing systems.
8.2 To the extent that the Transfer Agent is not entitled to
indemnification pursuant to Section 8.1 above and only to the extent
of such right, the Fund shall not be responsible for, and the
Transfer Agent shall indemnify and hold the Fund harmless from and
against any losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liability arising directly out of or
attributable to any action or failure of the Transfer Agent to act
as a result of the Transfer's Agent's lack of good faith, negligence
or willful misconduct in the performance of its services hereunder;
provided, however, that the Transfer Agent shall not be deemed
negligent and shall have acted in good faith and without willful
misconduct if the Transfer Agent has followed the Procedures.
8.3 In order that the indemnification provisions contained in this
Section 8 shall apply, upon the assertion of a claim for which one
party may be required to indemnify the other party, the indemnified
party shall promptly notify the indemnifying party of such
assertion, and shall keep the indemnifying party advised with
respect to all developments concerning such claim. The indemnifying
party shall have the option to participate with the indemnified
party in the defense of such claim or to defend against said claim
in its own name or in the name of the indemnified party. The
indemnified party shall in no case confess any claim or make any
compromise in any case in which the indemnifying party may be
required to indemnify the indemnified party except with the
indemnifying party's prior written consent.
9. Standard of Care
The Transfer Agent shall at all times act in good faith and agrees
to use its best efforts within reasonable limits to ensure the
accuracy of all services performed under this Agreement, but assumes
no responsibility and shall not be liable for loss or damage due to
errors, including encoding and payment processing errors, unless
said errors are caused by its negligence, bad faith, or willful
misconduct or that of its employees or agents. The parties agree
that any encoding or payment processing errors shall be governed by
this standard of care and that Section 4-209 of the Uniform
Commercial
14
Code is superseded by Section 9 of this Agreement. This standard of
care also shall apply to Exception Services, as defined in Section
2.3 herein, but shall take into consideration and make allowances
for the manual processing and non-standard work involved in, and
time sensitive nature of, Exception Services.
10. Confidentiality
10.1 The Transfer Agent and the Fund agree that they will not, at any
time during the term of this Agreement or after its termination,
reveal, divulge, or make known to any person, firm, corporation or
other business organization, any customers' lists, trade secrets,
cost figures and projections, profit figures and projections, or any
other secret or confidential information whatsoever, whether of the
Transfer Agent or of the Fund, used or gained by the Transfer Agent
or the Fund during performance under this Agreement. The Fund and
the Transfer Agent further covenant and agree to retain all such
knowledge and information acquired during and after the term of this
Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of
the Transfer Agent or the Fund and their successors and assigns. In
the event of breach of the foregoing by either party, the remedies
provided by Section 7.3 shall be available to the party whose
confidential information is disclosed. The above prohibition of
disclosure shall not apply to the extent that the Transfer Agent
must disclose such data to its sub-contractor or Fund agent for
purposes of providing services under this Agreement.
10.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Fund, other than
request for records of Shareholders pursuant to standard subpoenas
from state or federal government authorities (i.e., divorce and
criminal actions), the Transfer Agent will use reasonable efforts to
notify the Fund (except where prohibited by law) and to secure
instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves the right,
however, to exhibit the Shareholder records to any person whenever
it is advised by counsel that it may be held liable for the failure
to exhibit the Shareholder records to such person or if required by
law or court order.
11. Covenants of the Fund and the Transfer Agent
11.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees or
the Board of Directors, as the case may be, of the Fund authorizing
the appointment of the Transfer Agent; and
(b) A copy of the organizational documents of the Fund and all
amendments thereto.
11.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for
safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such certificates, forms and
devices.
15
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 1940 Act 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, and will be
surrendered promptly to the Fund on and in accordance with its
request.
12. Termination of Agreement
12.1 Term. The initial term of this Agreement (the "Initial Term") shall
be five (5) years from the date first stated above unless terminated
pursuant to the provisions of this Section 12. The term may be
renewed by mutual agreement of the Transfer Agent and the individual
Fund for successive periods of one year each ("Renewal Term").
Either the Transfer Agent or the Fund shall give written notice to
the other party one hundred twenty (120) days before the expiration
of the Initial Term or of a Renewal Term if such party desires not
to renew the term for an additional one year period. In the absence
of such notice, the Agreement shall renew automatically for such one
year term. In the event the Fund wishes to terminate this Agreement
as to it prior to the expiration of the Initial Term or a Renewal
Term, the Fund shall give one hundred twenty (120) days prior
written notice to the Transfer Agent and shall be subject to the
terms of this Section, including the payments applicable under
Section 12.3. One hundred twenty (120) days before the expiration of
the Initial Term or a Renewal Term, the Transfer Agent and the Fund
will agree upon a Fee Schedule for the upcoming Renewal Term.
Notwithstanding the termination or non-renewal of this Agreement,
the terms and conditions of this Agreement shall continue to apply
until the completion of Deconversion (defined below).
12.2 Deconversion. In the event that this Agreement is terminated or not
renewed for any reason by the Fund, the Transfer Agent agrees that,
in order to provide for uninterrupted service to the Fund, the
Transfer Agent, at Fund's request, shall offer reasonable assistance
to the Fund in converting the Fund's records from the Transfer
Agent's systems to whatever services or systems are designated by
Fund (the "Deconversion"). Such Deconversion is subject to the
recompense of the Transfer Agent for such assistance at its standard
rates and fees in effect at the time and to a reasonable time frame
for performance as agreed to by the parties. As used herein
"reasonable assistance" and "transitional assistance" shall not
include requiring the Transfer Agent (i) to assist any new service
or system provider to modify, to alter, to enhance, or to improve
such provider's system, or to provide any new functionality to such
provider's system, (ii) to disclose any protected information of the
Transfer Agent, or (iii) to develop Deconversion software, to modify
any of the Transfer Agent's software, or to otherwise alter the
format of the data as maintained on any provider's systems.
16
12.3 Termination or Non Renewal.
(a) Outstanding Fees and Charges. In the event of termination or
non-renewal of this Agreement by the Fund, the Fund will promptly
pay the Transfer Agent all fees and charges for the services
provided under this Agreement (i) which have been accrued and remain
unpaid as of the date of such notice of termination or non-renewal
and (ii) which thereafter accrue for the period through and
including the date of Fund's Deconversion.
(b) Deconversion Costs and Post-Deconversion Support Fees. In the
event of termination or non-renewal of this Agreement by the Fund,
the Fund shall pay the Transfer Agent for the Deconversion costs as
noted in Section 12.2 and all reasonable fees and expenses for
providing any support services that the Fund requests the Transfer
Agent to provide post Deconversion, including but not limited to tax
reporting and open issue resolution.
(c) Early Termination for Convenience. In addition to the foregoing,
in the event that the Fund terminates this Agreement prior to the
end of the Initial Term or any Renewal Term other than due to the
Transfer Agent's bankruptcy under Section 12.6 or for cause under
Section 12.7, the Fund shall pay the Transfer Agent an amount equal
to the average monthly fee paid by the Fund to the Transfer Agent
under the Agreement multiplied by the number of months remaining in
the Initial or Renewal Term and calculated as set forth on the then
current Fee Schedule, on the date notice of termination was given to
the Transfer Agent (the "Early Termination Fee").
12.4 Confidential Information. Upon termination of this Agreement, each
party shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be
retained by such party under applicable laws or regulations.
12.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the
Transfer Agent being outstanding for more than ninety (90) days,
except with respect to any amount subject to a good faith dispute
within the meaning of Section 3.4 of this Agreement.
12.6 Bankruptcy. Either party hereto may terminate this Agreement by
notice to the other party, effective at any time specified therein,
in the event that (a) the other party ceases to carry on its
business or (b) an action is commenced by or against the other party
under Title 11 of the United States Code or a receiver, conservator
or similar officer is appointed for the other party and such suit,
conservatorship or receivership is not discharged within thirty (30)
days.
12.7 Cause. If either of the parties hereto becomes in default in the
performance of its duties or obligations hereunder and such default
has a material adverse effect on the other party, then the
non-defaulting party may give notice to the defaulting party
specifying the nature of the default in sufficient detail to permit
the defaulting party to identify and cure such default. If the
defaulting party fails to cure such default within thirty (30) days
of receipt of such notice, or within such other period of time as
the parties may agree is necessary for such cure, then the
non-defaulting party may terminate this
17
Agreement upon notice of not less than five (5) days to the
defaulting party.
12.8 The parties agree that the effective date of any Deconversion as a
result of termination hereof shall not occur during the period from
December 15th through March 1st of any year to avoid adversely
impacting a year-end.
12.9 Within thirty (30) days after completion of a Deconversion, the Fund
will give notice to the Transfer Agent containing reasonable
instructions regarding the disposition of tapes, data files,
records, original source documentation or other property belonging
to the Fund and then in the Transfer Agent's possession and shall
make payment for the Transfer Agent's reasonable costs to comply
with such notice. If the Fund fails to give that notice within
thirty (30) days after termination of this Agreement, then the
Transfer Agent may dispose of such property as it sees fit. The
reasonable costs of any such disposition or of the continued storage
of such tapes, data files, records, original source documentation or
other properties shall be billed to, and within thirty (30) days of
receipt of such invoice paid by, the Fund. Failure to pay such sums
when due shall incur a late charge in accordance with Section 3.5 of
this Agreement
13. Assignment and Third Party Beneficiaries
13.1 Except as provided in Section 14.1 below neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party. Any attempt to do so
in violation of this Section shall be void. Unless specifically
stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or
responsibility under this Agreement.
13.2 Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or
benefits in this Agreement to anyone other than the Transfer Agent
and the Fund, and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive
benefit of the Transfer Agent and the Fund. This Agreement shall
inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
13.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in Section 14.1 and Schedule 1.2(f), neither party shall
make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
18
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 which is duly registered as a transfer agent
pursuant to Section 17A(c)(2) of the 1934 Act or, with regard to
print/mail services, to DST Output, Inc., an affiliate of the
Transfer Agent; provided, however, that the Transfer Agent shall be
fully responsible to the Fund for the acts and omissions of its
affiliate as it is for its own acts and omissions. Notwithstanding
the foregoing, if the Fund contracts for the performance of any
services directly with an affiliate of the Transfer Agent, then the
Transfer Agent shall not be responsible to the Fund for the acts and
omissions of such affiliate with respect to such services.
14.2 For purposes of this Agreement, unaffiliated third parties such as
by way of example and not limitation, Airborne Services, Federal
Express, United Parcel Service, the U.S. Mails, the NSCC and
telecommunication companies, shall not be deemed to be
subcontractors of the Transfer Agent.
15. Miscellaneous
15.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties.
15.2 Massachusetts Law to Apply. This Agreement shall be construed and
the provisions thereof interpreted under and in accordance with the
laws of The Commonwealth of Massachusetts.
15.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of
God, acts of war or terrorism, strikes, equipment or transmission
failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to
perform or otherwise from such causes.
15.4 Consequential Damages. Neither party to this Agreement shall be
liable to the other party for 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.
19
15.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this
Agreement and any Schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
15.8 Waiver. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the
other party shall be construed as a waiver of any succeeding breach
of the same or of any other covenant or condition.
15.9 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
15.10 Counterparts. This Agreement may be executed by the parties hereto
on any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
15.11 Reproduction of Documents. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each agree
that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
15.12 Notices. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class
mail, postage prepaid, addressed as follows or to such other address
or addresses of which the respective party shall have notified the
other.
(a) If to the Transfer Agent, to:
Boston Financial Data Services, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Fund, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
20
16. Additional Portfolios/ Funds
16.1 Additional Portfolios. In the event that a Fund establishes one or
more series of Shares, in addition to those listed on the attached
Schedule A, with respect to which it desires to have the Transfer
Agent render services as transfer agent under the terms hereof, it
shall so notify the Transfer Agent in writing, and if the Transfer
Agent agrees in writing to provide such services, such series of
Shares shall become a Portfolio hereunder by the parties amending
the Schedule A to include the additional series.
16.2 Additional Funds. In the event that an entity affiliated with the
Funds, in addition to those listed on the Schedule A, desires to
have the Transfer Agent render services as transfer agent under the
terms hereof and the Transfer Agent agrees to provide such services,
upon completion of an amended Schedule A signed by all parties to
the Agreement, such entity shall become a Fund hereunder and any
series thereof shall become a Portfolio hereunder.
17. Limitations of Liability of the Trustees and Shareholders
In the case where the Fund is a trust, a copy of the trust
instrument (if applicable) is on file with the Secretary of the
State of the state of its organization, and notice is hereby given
that this instrument is executed 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 or
Shareholders individually but are binding only upon the assets and
property of the trust.
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.
EACH OF THE ENTITIES, INDIVIDUALLY
AND NOT JOINTLY, AS LISTED ON
SCHEDULE A
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
As an Authorized Officer on behalf of each
of the Funds indicated on Schedule A
ATTEST:
___________________________________
BOSTON FINANCIAL DATA SERVICES, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ATTEST:
___________________________________
22
SCHEDULE A
▇▇▇▇▇ New York Venture Fund, Inc., a corporation organized under the laws of
the State of Maryland
▇▇▇▇▇ Global Fund
▇▇▇▇▇ New York Venture Fund
▇▇▇▇▇ Research Fund
▇▇▇▇▇ Series, Inc., a corporation organized under the laws of the State of
Maryland
▇▇▇▇▇ Appreciation and Income Fund
▇▇▇▇▇ Financial Fund
▇▇▇▇▇ Government Bond Fund
▇▇▇▇▇ Government Money Market Fund
▇▇▇▇▇ Opportunity Fund
▇▇▇▇▇ Real Estate Fund
▇▇▇▇▇ Variable Account Fund, Inc.
▇▇▇▇▇ Value Portfolio
▇▇▇▇▇ Real Estate Portfolio
▇▇▇▇▇ Financial Portfolio
Selected American Shares, Inc., a corporation organized under the laws of the
State of Maryland
Selected Capital Preservation Trust, a business trust organized under the laws
of the State of Ohio
Selected Daily Government Fund
Selected Special Shares, Inc., a corporation organized under the laws of the
State of Maryland
Clipper Fund, Inc., a corporation organized under the laws of the State of
California*
Clipper Fund*
_________________________
*Effective on or about 6/1/06, may become the Clipper Fund of the Clipper Funds
Trust, a Delaware statutory trust.
EACH OF THE ENTITIES, INDIVIDUALLY BOSTON FINANCIAL DATA SERVICES, INC.
AND NOT JOINTLY, AS LISTED ON
SCHEDULE A
By: _______________________________ By: ______________________________________
Name: _____________________________ Name: ____________________________________
Title: ____________________________ Title: ___________________________________
As an Authorized Officer on behalf
of each of the Funds indicated on
Schedule A
Schedule A - 1
SCHEDULE 1.2(F)
AML DELEGATION
DATED _________
1. Delegation.
1.1 Subject to the terms and conditions set forth in this Agreement, the
Fund hereby delegates to the Transfer Agent those aspects of the
Fund's Program that are set forth in Section 4 below (the "Delegated
Duties"). The Delegated Duties set forth in Section 4 may be
amended, from time to time, by mutual agreement of the Fund and the
Transfer Agent upon the execution by such parties of a revised
Schedule 1.2(f) bearing a later date than the date hereof.
1.2 The Transfer Agent agrees to perform such Delegated Duties, with
respect to the ownership of shares in the Fund for which the
Transfer Agent maintains the applicable shareholder information,
subject to and in accordance with the terms and conditions of this
Agreement.
2. Consent to Examination. In connection with the performance by the
Transfer Agent of the Delegated Duties, the Transfer Agent
understands and acknowledges that the Fund remains responsible for
assuring compliance with the USA PATRIOT Act and that the records
the Transfer Agent maintains for the Fund relating to the AML
Program may be subject, from time to time, to examination and/or
inspection by federal regulators in order that the regulators may
evaluate such compliance. The Transfer Agent hereby consents to such
examination and/or inspection and agrees to cooperate with such
federal examiners in connection with their review. For purposes of
such examination and/or inspection, the Transfer Agent will use its
best efforts to make available, during normal business hours and on
reasonable notice all required records and information for review by
such examiners.
3. Limitation on Delegation. The Fund acknowledges and agrees that in
accepting the delegation hereunder, the Transfer Agent is agreeing
to perform only the Delegated Duties, as may be amended from time to
time, and is not undertaking and shall not be responsible for any
other aspect of the AML Program or for the overall compliance by the
Fund with the USA PATRIOT Act or for any other matters that have not
been delegated hereunder. Additionally, the parties acknowledge and
agree that the Transfer Agent shall only be responsible for
performing the Delegated Duties with respect to the ownership of,
and transactions in, shares in the Fund for which the Transfer Agent
maintains the applicable shareholder information.
4. Delegated Duties
4.1 Consistent with the services provided by the Transfer Agent and with
respect to the ownership of shares in the Fund for which the
Transfer Agent maintains the applicable shareholder information, the
Transfer Agent shall:
Schedule 1.2(f) - 1
(a) Submit all new account and registration maintenance
transactions through the Office of Foreign Assets Control
("OFAC") database and such other lists or databases as may be
required from time to time by applicable regulatory
authorities;
(b) Submit special payee checks through OFAC database;
(c) Review redemption transactions that occur within thirty (30)
days of account establishment or maintenance;
(d) Review wires sent pursuant to banking instructions other than
those on file with the Transfer Agent;
(e) Review accounts with small balances followed by large
purchases;
(f) Review accounts with frequent activity within a specified date
range followed by a large redemption;
(g) On a daily basis, review purchase and redemption activity per
tax identification number ("TIN") within the Fund to determine
if activity for that TIN exceeded the $100,000 threshold on
any given day;
(h) Compare all new accounts and registration maintenance through
the DST Known Offenders database and notify the Fund of any
match;
(i) Monitor and track cash equivalents under $10,000 for a rolling
twelve-month period and file IRS Form 8300 and issue the
Shareholder notices required by the IRS;
(j) Determine when a suspicious activity report ("SAR") should be
filed as required by regulations applicable to mutual funds;
prepare and file the SAR. Provide the Fund with a copy of the
SAR within a reasonable time after filing; notify the Fund if
any further communication is received from U.S. Department of
the Treasury or other law enforcement agencies regarding the
SAR;
(k) Compare account information to any FinCEN request received by
the Fund and provided to the Transfer Agent pursuant to USA
PATRIOT Act Sec. 314(a). Provide the Fund with
documents/information necessary to respond to requests under
USA PATRIOT Act Sec. 314(a) within required time frames; and
(l) (i) Verify the identity of any person seeking to open an
account with the Fund, (ii) Maintain records of the
information used to verify the person's identity and (iii)
Determine whether the person appears on any lists of known or
suspected terrorists or terrorists organizations provided to
the Fund by any government agency.
4.2 In the event that the Transfer Agent detects activity as a result of
the foregoing procedures, which necessitates the filing by the
Transfer Agent of a SAR, a Form 8300 or other similar report or
notice to OFAC, then the Transfer Agent shall also immediately
notify the Fund, unless prohibited by applicable law.
Schedule 1.2(f) - 2
EACH OF THE ENTITIES, INDIVIDUALLY BOSTON FINANCIAL DATA SERVICES, INC.
AND NOT JOINTLY, AS LISTED ON
SCHEDULE A
By: _______________________________ By: ______________________________________
Name: _____________________________ Name: ____________________________________
Title: ____________________________ Title: ___________________________________
As an Authorized Officer on behalf
of each of the Funds indicated on
Schedule A
Schedule 1.2(f) - 3
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated ___________
1. On each day on which both the New York Stock Exchange and the Fund are
open for business (a "Business Day"), the TPA(s) shall receive, on behalf
of and as agent of the Fund, Instructions (as hereinafter defined) from
the Plan. Instructions shall mean as to the Fund (i) orders by the Plan
for the purchases of Shares, and (ii) requests by the Plan for the
redemption of Shares; in each case based on the Plan's receipt of purchase
orders and redemption requests by Participants in proper form by the time
required by the term of the Plan, but not later than the time of day at
which the net asset value of the Fund is calculated, as described from
time to time in the Fund's prospectus. Each Business Day on which the TPA
receives Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions,
to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Transfer Agent of the net amount of such
purchases or redemptions, as the case may be, for each of the Plans. In
the case of net purchases by any Plan, the TPA(s) shall instruct the
Trustees of such Plan to transmit the aggregate purchase price for Shares
by wire transfer to the Transfer Agent on (TD+1). In the case of net
redemptions by any Plan, the TPA(s) shall instruct the Fund's custodian to
transmit the aggregate redemption proceeds for Shares by wire transfer to
the Trustees of such Plan on (TD+1). The times at which such notification
and transmission shall occur on (TD+1) shall be as mutually agreed upon by
the Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Transfer
Agent and such account shall be in the name of that Plan, the TPA(s), or
the nominee of either thereof as the record owner of Shares owned by such
Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan
as of the statement closing date, purchases and redemptions of Shares by
the Plan during the period covered by the statement, and the dividends and
other distributions paid to the Plan on Shares during the statement period
(whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of the Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information
provided by the Fund for delivery to its shareholders.
Schedule 2.1 - 1
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated ___________
8. The TPA(s) shall, at the request of the Fund, prepare and transmit to the
Fund or any agent designated by it such periodic reports covering Shares
of each Plan as the Fund shall reasonably conclude are necessary to enable
the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses,
proxy materials, periodic reports and other materials relating to the Fund
be furnished to Participants in which event the Transfer Agent or the Fund
shall mail or cause to be mailed such materials to Participants. With
respect to any such mailing, the TPA(s) shall, at the request of the
Transfer Agent or the Fund, provide at the TPA(s)'s expense a complete and
accurate set of mailing labels with the name and address of each
Participant having an interest through the Plans in Shares.
EACH OF THE ENTITIES, INDIVIDUALLY BOSTON FINANCIAL DATA SERVICES, INC.
AND NOT JOINTLY, AS LISTED ON
SCHEDULE A
By: _______________________________ By: ______________________________________
Name: _____________________________ Name: ____________________________________
Title: ____________________________ Title: ___________________________________
As an Authorized Officer on behalf
of each of the Funds indicated on
Schedule A
Schedule 2.1 - 2
SCHEDULE 3.1
FEES AND EXPENSES
▇▇▇▇▇ SERIES, INC. AND ▇▇▇▇▇ NEW YORK VENTURE FUND, INC.
Effective January 1, 2006 to December 31, 2010
General: Fees are billable on a monthly basis at the rate of 1/12 of the annual
fee. A charge is made for an account in the month that an account opens or
closes.
Annual Base Fee:* $605,000
* The Annual Base Fee will increase by $7,500 per CUSIP added during the Initial
Term or any Renewal Term.
Annual Account Fees:
Direct Accounts $16.25 per account
Closed Accounts $1.55 per account
Network Level 3 Account $5.50 per account
Transaction Fees:
New Account Set-up $4.00 per account
Checkwriting Redemption $1.00 each
Confirmed Trades $1.00 each
Other Fees:
Investor Linkage $1.80 per investor
Fiduciary Fees:
Account Set-up Fee $10.00 per account
Annual Maintenance Fee** $15.00 per plan per social
security number
**Paid by the Shareholder; waived if total assets equal or exceed $50,000.
Balance Earning Credits:
All balance earnings credits received by Boston Financial in connection with
Fund demand deposit accounts (net of expenses and fees deducted by State Street
Bank and Trust Company) will be used to offset transfer agency fees hereunder.
Out-of-Pocket Expenses Billed as Incurred
Out-of-Pocket expenses include, but are not limited to: postage, post office box
rental, checkwriting postage, Compliance+ program, supplies, statements,
checkwriting, print and mailing services, information disc (year end), TINS,
average cost, data communications equipment, COOL (computer output on-line),
microfiche, freight, telephone charges, fax lines, 800 line charges, TA2000
voice, disaster recovery, offsite storage, Vax payroll processing, state tax
reporting, Fund/SERV, AWD remote workstations, excess history, Fan Mail, Fan
Web, jumbo processing, lost shareholder searches, lost shareholder tracking,
Powerselect, Vision, escheatment, year-end forms, programming hours (as set
forth above), on-request reports, Shareholder proxy services, CIP-related search
charges and other expenses incurred at the specific direction of the Fund or
with advance written notice to the Fund.
Schedule 3.1 - 1
▇▇▇▇▇ SERIES, INC. BOSTON FINANCIAL DATA SERVICES, INC.
▇▇▇▇▇ NEW YORK VENTURE FUND, INC.
By: _______________________________ By: ______________________________________
Name: _____________________________ Name: ____________________________________
Title: ____________________________ Title: ___________________________________
As an Authorized Officer of each
Fund above, individually and not
jointly
Schedule 3.1 - 2
SCHEDULE 3.1
FEES AND EXPENSES
▇▇▇▇▇ VARIABLE ACCOUNT FUND, INC.
Effective January 1, 2006 to December 31, 2010
General: Fees are billable on a monthly basis at the rate of 1/12 of the annual
fee.
Annual Base Fee (3 Cusips @$7,500 per Cusip):* $22,500
* The Annual Base Fee will increase by $7,500 per CUSIP added during the Initial
Term or any Renewal Term.
Balance Earning Credits:
All balance earnings credits received by Boston Financial in connection with
Fund demand deposit accounts (net of expenses and fees deducted by State Street
Bank and Trust Company) will be used to offset transfer agency fees hereunder.
Out-of-Pocket Expenses Billed as Incurred
Out-of-Pocket expenses include, but are not limited to: postage, post office box
rental, checkwriting postage, Compliance+ program, supplies, statements,
checkwriting, print and mailing services, information disc (year end), TINS,
average cost, data communications equipment, COOL (computer output on-line),
microfiche, freight, telephone charges, fax lines, 800 line charges, TA2000
voice, disaster recovery, offsite storage, Vax payroll processing, state tax
reporting, Fund/SERV, AWD remote workstations, excess history, Fan Mail, Fan
Web, jumbo processing, lost shareholder searches, lost shareholder tracking,
Powerselect, Vision, escheatment, year-end forms, programming hours (as set
forth above), on-request reports, Shareholder proxy services, CIP-related search
charges and other expenses incurred at the specific direction of the Fund or
with advance written notice to the Fund.
▇▇▇▇▇ VARIABLE ACCOUNT FUND, INC. BOSTON FINANCIAL DATA SERVICES, INC.
By: _______________________________ By: ______________________________________
Name: _____________________________ Name: ____________________________________
Title: ____________________________ Title: ___________________________________
Schedule 3.1 - 3
SCHEDULE 3.1
FEES AND EXPENSES
SELECTED AMERICAN SHARES, INC., SELECTED CAPITAL PRESERVATION TRUST AND
SELECTED SPECIAL SHARES, INC.
Effective January 1, 2006 to December 31, 2010
General: Fees are billable on a monthly basis at the rate of 1/12 of the annual
fee. A charge is made for an account in the month that an account opens or
closes.
Annual Base Fee:* $65,000
*Note: The Annual Base Fee will increase by $7,500 per CUSIP added during the
Initial Term or any Renewal Term.
Annual Account Fees:
Direct Accounts $9.25 per account
Closed Accounts $1.55 per account
Network Level 3 Account $4.50 per account
Transaction Fees:
New Account Set-up $4.00 per account
Checkwriting Redemption $1.00 each
Confirmed Trades $1.00 each
Other Fees:
Investor Linkage $1.80 per investor
Fiduciary Fees:
Account Set-up Fee $10.00 per account
Annual Maintenance Fee** $15.00 per plan per social
security number
**Paid by Shareholder; waived if total assets equal or exceed $50,000.
Balance Earning Credits:
All balance earnings credits received by Boston Financial in connection with
Fund demand deposit accounts (net of expenses and fees deducted by State Street
Bank and Trust Company) will be used to offset transfer agency fees hereunder.
Out-of-Pocket Expenses Billed as Incurred
Out-of-Pocket expenses include, but are not limited to: postage, post office box
rental, checkwriting postage, Compliance+ program, supplies, statements,
checkwriting, print and mailing services, information disc (year end), TINS,
average cost, data communications equipment, COOL (computer output on-line),
microfiche, freight, telephone charges, fax lines, 800 line charges, TA2000
voice, disaster recovery, offsite storage, Vax payroll processing, state tax
reporting, Fund/SERV, AWD remote workstations, excess history, Fan Mail, Fan
Web, jumbo processing, lost shareholder searches, lost shareholder tracking,
Powerselect, Vision, escheatment, year-end forms, programming hours (as set
forth above), on-request reports,
Schedule 3.1 - 4
Shareholder proxy services, CIP-related search charges and other expenses
incurred at the specific direction of the Fund or with advance written notice to
the Fund.
SELECTED AMERICAN SHARES, INC. BOSTON FINANCIAL DATA SERVICES, INC.
SELECTED CAPITAL PRESERVATION
TRUST
SELECTED SPECIAL SHARES, INC.
By: _______________________________ By: ______________________________________
Name: _____________________________ Name: ____________________________________
Title: ____________________________ Title: ___________________________________
As an Authorized Officer of each
Fund above, individually and not
jointly
Schedule 3.1 - 5
SCHEDULE 3.1
FEES AND EXPENSES
CLIPPER FUND, INC.
Effective January 1, 2006 to December 31, 2010
General: Fees are billable on a monthly basis at the rate of 1/12 of the annual
fee. A charge is made for an account in the month that an account opens or
closes.
Annual Base Fee:* $150,000
* The Annual Base Fee will increase by $7,500 per CUSIP added during the Initial
Term or any Renewal Term.
Annual Account Fees:
Direct Accounts $9.75 per account
Closed Accounts $1.55 per account
Network Level 3 Account $5.75 per account
Transaction Fees:
New Account Set-up $4.00 per account
Checkwriting Redemption $1.00 each
Confirmed Trades $1.00 each
Manual Transactions $2.00 each
Other Fees:
Investor Linkage $1.80 per investor
Fiduciary Fees:
Account Set-up Fee $10.00 per account
Annual Maintenance Fee** $10.00 per account
** Paid by the shareholder
Balance Earning Credits:
All balance earnings credits received by Boston Financial in connection with
Fund demand deposit accounts (net of expenses and fees deducted by State Street
Bank and Trust Company) will be used to offset transfer agency fees hereunder.
Out-of-Pocket Expenses Billed as Incurred
Out-of-Pocket expenses include, but are not limited to: postage, post office box
rental, checkwriting postage, Compliance+ program, supplies, statements,
checkwriting, print and mailing services, information disc (year end), TINS,
average cost, data communications equipment, COOL (computer output on-line),
microfiche, freight, telephone charges, fax lines, 800 line charges, TA2000
voice, disaster recovery, offsite storage, Vax payroll processing, state tax
reporting, Fund/SERV, AWD remote workstations, excess history, Fan Mail, Fan
Web, jumbo processing, lost shareholder searches, lost shareholder tracking,
Powerselect, Vision, escheatment, year-end forms, programming hours (as set
forth above), on-request reports, Shareholder proxy services, CIP-related search
charges and other expenses incurred at the
Schedule 3.1 - 6
specific direction of the Fund or with advance written notice to the Fund.
CLIPPER FUND, INC. BOSTON FINANCIAL DATA SERVICES, INC.
By: _______________________________ By: ______________________________________
Name: _____________________________ Name: ____________________________________
Title: ___________________________ Title: ___________________________________
Schedule 3.1 - 7