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Exhibit h(1)(d)
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
between
MAINSTAY SHAREHOLDER SERVICES, INC.
and
BOSTON FINANCIAL DATA SERVICES, INC.
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TABLE OF CONTENTS
Page
1. Terms of Appointment; Duties of the Servicing Agent ................................................ 1
2. As of Reporting and Adjustments ..................................................................... 4
3. Fees and Expenses ................................................................................... 5
4. Representations and Warranties of the Servicing Agent ............................................... 6
5. Representations and Warranties of the Transfer Agent................................................. 6
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code ....................... 7
7. Data Access and Proprietary Information ............................................................. 8
8. Indemnification ..................................................................................... 10
9. Standard of Care ..................................................................................... 12
10. Covenants of the Transfer Agent and the Servicing Agent ............................................ 12
11. Termination of Agreement ........................................................................... 13
12. Assignment .......................................................................................... 13
13. Amendment .......................................................................................... 13
14. Massachusetts Law to Apply.......................................................................... 13
15. Force Majeure....................................................................................... 13
16. Consequential Damages .............................................................................. 14
17. Merger of Agreement................................................................................. 14
18. Counterpart ........................................................................................ 14
19. Reproduction of Documents.......................................................................... 14
20. S.I.C. Inquiry ..................................................................................... 14
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SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of May, 1997, by and between MainStay
Shareholder Services, Inc., 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 "Servicing Agent").
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 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 as evidenced in the transfer
agency agreement between each of the Funds and the Transfer Agent dated as of
May 1, 1997;
WHEREAS, the Transfer Agent has entered into a Transfer Agency and Service
Agreement with 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 Servicing Agent;
WHEREAS, the Transfer Agent wishes to have the Servicing Agent perform certain
shareholder accounting, administrative and servicing functions (collectively
"Shareholder and Record-Keeping Services");
WHEREAS, the Transfer Agent desires to appoint the Servicing Agent as its agent,
and the Servicing 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 of the Servicing Agent
1.1 Subject to the terms and conditions set forth in this
Agreement, the Transfer Agent hereby employs and appoints the
Servicing Agent to act as, and the Servicing Agent agrees to
act as, the agent of the Transfer Agent for the shares of each
of the Funds in connection with any accumulation, letter of
intent, retirement plans or similar purchase plans 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
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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 and class
thereof) enumerated in Schedule A.
1.2 The Servicing Agent agrees that it will perform the following
Shareholder and Record Keeping services:
(a) In accordance with procedures established from time
to time by agreement between the Transfer Agent and
the Servicing Agent, the Servicing Agent shall:
(i) Receive for acceptance, orders for the
purchase of Shares, and promptly deliver
payment and appropriate documentation
therefor to the Custodian of the Fund
authorized pursuant to the Articles of
Incorporation or Declaration of Trust of
each Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the
appropriate number of Shares and hold such
Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests
and redemption directions and deliver the
appropriate documentation therefor to the
Custodian;
(iv) In respect to the transactions in items (i),
(ii) and (iii) above, the Servicing Agent
shall execute transactions directly with
broker-dealers authorized by the Funds;
(vi) 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;
(vi) Prepare and transmit payments for dividends
and distributions declared by each Fund;
(vii) Issue replacement certificates for those
certificates alleged to have been lost,
stolen or destroyed upon receipt by the
Servicing Agent of indemnification
satisfactory to the Servicing Agent and
protecting the Servicing Agent, Transfer
Agent and each Fund, and the Servicing Agent
at its option, may issue replacement
certificates in place of mutilated stock
certificates upon presentation thereof and
without such indemnity; and
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(vii) Maintain records of account for and advise
the Fund and its Shareholders as to the
foregoing.
(b) In addition to and neither in lieu nor in
contravention of the services set forth in the above
paragraph (a), the Servicing Agent shall: (i) perform
the customary services of a transfer agent, dividend
disbursing agent, and, as relevant, agent in
connection with accumulation, letter of intent,
retirement plans or similar purchase plans (including
without limitation any periodic investment plan or
periodic withdrawal program), including but not
limited to: maintaining all Shareholder accounts,
preparing Shareholder meeting lists, mailing proxies,
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 and (ii) provide a
system which will enable each Fund to monitor the
total number of Shares sold in each State.
(c) In addition, each Fund shall (i) identify to the
Servicing 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 Servicing Agent for each Fund's blue sky State
registration status is solely limited to the initial
establishment of transactions subject to blue sky
compliance by each Fund and the reporting of such
transactions to each Fund as provided above.
(d) Procedures as to who shall provide certain of these
services in Section 1 may be established from time to
time by agreement between the Transfer Agent and the
Servicing Agent per the attached service
responsibility schedule. The Servicing 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 each Fund's behalf.
(e) The Servicing Agent may provide additional services
on behalf of the Transfer Agent (i.e., escheatment
services) which may be agreed upon in writing between
the Fund and the Servicing Agent.
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2. As of Reporting and Adjustments
2.1 The Transfer Agent on behalf of the Funds and the Servicing
Agent on behalf of State Street Bank and Trust Company agree
that all prior adjustments for Share transactions which
involve purchase, redemption and repurchase orders processed
at a time other than computation of net asset value ("NAV")
per Share next computed after receipt of such orders shall be
carried forward under this Agreement whether such adjustments
are positive or negative to the Fund.
2.2 The Servicing Agent shall:
(a) Utilize a system to identify all Share transactions
which involve purchase, redemption, and repurchase
orders that are processed at a time other than the
time of computation of NAV per Share next computed
after receipt of such orders, identify the source of
such transactions, and shall compute the net effect
upon the Fund of such transactions so identified on a
daily and cumulative basis.
(b) If on the last business day of any month the
cumulative net effect upon the Fund (adjusted by the
amount of all prior credits by the Servicing Agent)
is negative, the Transfer Agent shall be entitled to
a reduction in the fee next payable under the
Agreement by an equivalent amount, except as provided
in Section (c) below. If on the last business day in
any month the cumulative net effect upon the Fund
(adjusted by the amount of all prior payments and
credits by the Servicing Agent) is positive, the
Servicing Agent shall be entitled to recover certain
past payments and reductions in fees, and to credit
against all future payments and fee reductions that
may be required under the Agreement as herein
described in Section (c) below.
(c) At the end of each month, any positive cumulative net
effect upon the Fund arising from the Servicing
Agent's activity, shall be deemed to be a credit to
the Servicing Agent which shall first be applied to
permit the Servicing Agent to recover any prior fee
reductions made by it to the Transfer Agent under
Section (b) above, by increasing the amount of the
monthly fee under the Agreement next payable in an
amount equal to prior fee reductions made by the
Servicing Agent, but not exceeding the sum of that
month's credit and credits arising in prior months to
the extent such prior credits have not previously
been utilized as contemplated by this Section (c).
Any portion of a credit to the Servicing Agent not so
used by it shall remain as a credit to be used as
payment against the amount of any future negative
cumulative net effects that would otherwise require a
fee reduction to be made to the Transfer Agent
pursuant to Section (b) above.
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(d) The Servicing Agent shall supply to the Transfer
Agent monthly reports summarizing the transactions
identified pursuant to Section (a) above, and the
daily and cumulative net effects of such
transactions, and shall advise the Transfer Agent at
the end of each month of the net cumulative effect
at such time. The Servicing Agent shall promptly
advise the Transfer Agent which shall advise the Fund
if at any time the cumulative net effect exceeds a
dollar amount equivalent to 1/2 of 1 cent per Share.
(e) In the event that this Agreement is terminated for
whatever cause, or Sections 2.2 (b), (c) and (d) are
terminated pursuant to Section (f) below, the
Transfer Agent shall promptly pay to the Servicing
Agent an amount in cash equal to the amount by which
the cumulative net effect upon the Fund is positive
or, if the cumulative net effect upon the Fund is
negative, the Servicing Agent shall promptly pay to
the Transfer Agent an amount in cash equal to the
amount of such cumulative net effect. The Transfer
Agent will seek reimbursement from the Funds for
payment hereunder to the Servicing Agent, provided
however, that the Transfer Agent's duty to pay
hereunder is due regardless of where the Funds
choose to reimburse the Transfer Agent.
(f) Sections 2.2 (b), (c) and (d) of the Agreement may be
terminated by the Servicing Agent at any time for
reasonable cause and upon 60 days prior written
notice to the Transfer Agent.
3. Fees and Expenses
3.1 For the performance by the Servicing Agent pursuant to this
Agreement, the Transfer Agent agrees to pay the Servicing
Agent an annual maintenance fee for each Shareholder account
as set out in the initial fee schedule attached hereto. 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
Servicing Agent.
3.2 In addition to the fee paid under Section 3.1 above, the
Transfer Agent agrees to reimburse the Servicing Agent for
reasonable out-of-pocket expenses, including but not limited
to confirmation production, postage, forms, telephone,
microfilm, microfiche, tabulating proxies, records storage, or
advances incurred by the Servicing Agent for the items set out
in the fee schedule attached hereto. In addition, any other
expenses reasonably incurred by the Servicing Agent at the
request or with the consent of the Transfer Agent, will be
reimbursed by the Fund.
3.3 The Transfer Agent agrees to pay all fees and reimbursable
expenses promptly following the receipt of the respective
billing notice. Postage for mailing of dividends, proxies,
Fund reports and other mailings to all shareholder accounts
shall be advanced to the Servicing Agent by the Transfer Agent
at least seven (7) days prior to the mailing date of such
materials.
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4. Representations and Warranties of the Servicing Agent
The Servicing 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
which is duly registered as a transfer agent pursuant to
Section 17A(c)(2) of the Securities Exchange Act of 1934, as
amended ("Section 17A(c)(2)")
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 Charter and
By-Laws to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
5. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Servicing 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 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 for each Fund 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 each Fund being offered for sale.
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6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code
6.1 The Servicing 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 Servicing Agent has been
instructed to transfer. The Servicing 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 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 Servicing Agent. The Transfer Agent shall
restrict access to confidential information relating to the
Security Procedure to authorized persons as communicated to
the Servicing Agent in writing. The Transfer Agent must notify
the Servicing 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 Servicing Agent shall verify the
authenticity of all Transfer Agent instructions according to
the Security Procedure.
6.3 The Servicing 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 The Servicing 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 Servicing Agent's receipt of such payment
order; (b) if initiating such payment order would cause the
Servicing Agent, in the Servicing Agent's sole judgement, to
exceed any volume, aggregate dollar, network, time, credit or
similar limits which are applicable to the Servicing Agent; or
(c) if the Servicing Agent, in good faith, is unable to
satisfy itself that the transaction has been properly
authorized.
6.5 The Servicing 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 Servicing Agent reasonable opportunity to act. However,
the Servicing Agent assumes no liability if the request for
amendment or cancellation cannot be satisfied.
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6.6 The Servicing Agent shall assume no responsibility for failure
to detect any erroneous payment order provided that the
Servicing Agent complies with the payment order instructions
as received and the Servicing 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 The Servicing Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any
unauthorized payment order, unless the Servicing Agent is
notified of the unauthorized payment order within thirty (30)
days of notification by the Servicing Agent of the acceptance
of such payment order. In no event (including failure to
execute a payment order) shall the Servicing Agent be liable
for special, indirect or consequential damages, even if
advised of the possibility of such damages.
6.8 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 Servicing 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 Servicing Agent with
respect to an ACH credit entry are provisional until the
Servicing Agent receives final settlement for such entry from
the Federal Reserve Servicing Agent. If the Servicing Agent
does not receive such final settlement, the Transfer Agent
agrees that the Servicing 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.
6.9 Confirmation of Servicing Agent's execution of payment orders
shall ordinarily be provided within twenty four (24) hours
notice which may be delivered through the Servicing 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.
6.10 The Bank shall use commercially reasonable efforts, on the
Transfer Agent's behalf, to obtain through banking channels
any payments made in error for whatever reason.
7. Data Access and Proprietary Information
7.1 The Transfer Agent acknowledges that the data bases, computer
programs, screen formats, report formats, interactive design
techniques, and documentation manuals furnished to the
Transfer Agent by the Servicing Agent in connection with the
Fund's ability to access certain Fund-related data ("Customer
Data") maintained by the Servicing Agent on data bases under
the control and ownership of the Servicing Agent
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("Data Access Services") constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Servicing 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 Servicing
Agent and further agrees that it shall not divulge any
Proprietary Information to any person or organization except
as may be provided hereunder or as required by law. Without
limiting the foregoing, the Transfer Agent agrees for itself
and its employees and agents:
(a) to access Customer Data solely from locations as may be
designated in writing by the Servicing Agent and solely in
accordance with the Servicing Agent's applicable user
documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any portion
of the Proprietary Information, and if such access is
inadvertently obtained, to inform the Servicing Agent in a
timely manner of such fact and dispose of such information in
accordance with the Servicing Agent's instructions;
(d) to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other computer
facility or other location, except with the prior written
consent of the Servicing Agent;
(e) to honor all reasonable written requests made by the Servicing
Agent to protect at the Servicing Agent's expense the rights
of the Servicing Agent in Proprietary Information at common
law, under federal copyright law and under other federal or
state law.
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.
7.2 If the Transfer Agent notifies the Servicing 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 Servicing Agent shall endeavor in a
timely manner to correct such failure. Organizations from
which the Servicing 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 Servicing 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 SERVICING AGENT EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING,
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BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.3 If the transactions available to the Transfer Agent include
the ability to originate electronic instructions to the
Servicing 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
Servicing 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
Servicing Agent from time to time.
8. Indemnification
8.1 The Servicing Agent shall not be responsible for, and the
Transfer Agent shall indemnify and hold the Servicing 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 Servicing Agent or its agent 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 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 provided under Section 5 hereof.
(c) The reliance on or use by the Servicing Agent or its
agents or subcontractors of information, records,
documents or services which (i) are received by the
Servicing Agent or its agents or subcontractors, and
(ii) 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 previous transfer
agent or registrar.
(d) The reliance on, or the carrying out by the
Servicing Agent or its agents or subcontractors of
any instructions or requests of the Transfer Agent or
each Fund.
(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 unless the Transfer
Agent has provided the Servicing Agent with three
days written notice to stop accepting orders for any
Fund or class of a Fund or in any jurisdiction.
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(f) The negotiations and processing of checks made
payable to prospective or existing Shareholders
tendered to the Servicing Agent for the purchase of
Shares, such checks are commonly known as "third
party checks."
8.2 The Servicing Agent shall indemnify and hold the 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 the Servicing Agent's lack
of good faith, negligence or willful misconduct in complying
with the terms of this Agreement or which arise out of the
breach of any representation or warranty of the Servicing
Agent provided under Section 4 hereof.
8.3 At any time the Servicing Agent may apply to any officer of
the Transfer Agent for instructions, and may consult with
legal counsel of the Transfer Agent with respect to any matter
arising in connection with the services to be performed by the
Servicing Agent under this Agreement, and the Servicing Agent
and its agents or subcontractors shall not be liable and
shall be indemnified by the Transfer Agent for any action
taken or omitted by it in reliance upon such instructions or
upon the opinion of such counsel. The Servicing Agent, its
agents and subcontractors shall be protected and indemnified
in acting upon any paper or document, reasonably believed to
be genuine and to have been signed by the proper person or
persons, or upon any instruction, information, data, records
or documents provided the Servicing Agent or its agents or
subcontractors by machine readable input, telex, CRT data
entry or other similar means authorized by the Transfer Agent,
and shall not be held to have notice of any change of
authority of any person, until receipt of written notice
thereof from the Transfer Agent. The Servicing Agent, its
agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile
signatures of the officers of each Fund, and the proper
countersignature of the Transfer Agent or any former transfer
agent or former registrar, or of a co-transfer agent or
co-registrar.
8.4 In order that the indemnification provisions contained in
this Section 8 shall apply, upon the assertion of a claim for
which either party may be required to indemnify the other, the
party seeking indemnification shall promptly notify the other
party of such assertion, and shall keep the other party
advised with respect to all developments concerning such
claim. The party who may be required to indemnify shall have
the option to participate with the party seeking
indemnification in the defense of such claim or to defend
against said claim in its own name. The party seeking
indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be
required to indemnify except with the other party's prior
written consent.
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9. Standard of Care
The Servicing Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to insure 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
unless said errors are caused by its negligence, bad faith, or willful
misconduct or that of its employees.
10. Covenants of the Transfer Agent and the Servicing Agent
10.1 The Transfer Agent shall promptly furnish to the Servicing
Agent the following:
(a) A certified copy of the resolution of the Board of
Directors of the Transfer Agent authorizing the
appointment of the Servicing Agent and the execution
and delivery of this Agreement
10.2 The Servicing 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.
10.3 The Servicing 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 Servicing Agent agrees that all such
records prepared or maintained by the Servicing Agent relating
to the services to be performed by the Servicing Agent
hereunder are the property of each Fund and will be preserved,
maintained and made available in accordance with such Section
and Rules, and will be surrendered promptly to each Fund on
and in accordance with its request.
10.4 The Servicing Agent and the Transfer Agent agree that all
books, records, information and data pertaining to the
business of the other party which are exchanged or received
pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be
required by law.
10.5 In case of any requests or demands for the inspection of the
Shareholder records of any of the Funds, the Servicing 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 Servicing Agent reserves the right,
however, to exhibit the Shareholder records to any person
whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to
such person.
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11. Termination of Agreement
11.1 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other or upon
such shorter period of time as may be agreed to in writing by
the parties or as may be required by operation of law.
11.2 Should the Transfer Agent exercise its right to terminate other than
for cause, all out-of-pocket expenses associated with the movement of
records and material will be borne by the Transfer Agent. Additionally,
the Servicing Agent reserves the right to charge for any other
reasonable expenses associated with such termination and/or a charge
equivalent to the average of three (3) months' fees.
12. Assignment
12.1 Except as provided in Section 12.3 below, neither this
Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the
other party.
12.2 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and
assigns.
12.3 The Servicing Agent may, without further consent on the part
of the Transfer Agent, subcontract for the performance hereof
with (i) a Boston Financial Data Services, Inc. ("BFDS")
subsidiary duly registered as a transfer agent pursuant to
Section 17A(c)(2) or (ii) a BFDS affiliate; provided, however,
that the Servicing Agent shall be as fully responsible to the
Transfer Agent for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
13. 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.
14. 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. 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
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for damages to the other for any damages resulting from such failure to
perform or otherwise from such causes. Notwithstanding the above, the
Servicing Agent shall not be excused from liability in the event any
telecommunications, power or equipment (of the Servicing Agent, its
agents or subcontractors) failures could have been avoided or minimized
by such parties having maintained adequate industry standard backup
systems.
16. Consequential Damages
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act
hereunder.
17. 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.
18. 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.
19. 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.
20. S.I.C. Inquiry
At the time of receipt of securities from any entity the
Servicing Agent shall comply with applicable inquiry requirements with
the Securities Information Center ("SIC") pursuant to SEC Exchange Act
Rule 17f-1. The Servicing Agent shall promptly advise the Transfer
Agent of any such security reported by the SIC as lost, stolen, missing
or counterfeit, and await further instructions.
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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.
MAINSTAY SHAREHOLDER SERVICES, INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. Mullegan
BOSTON FINANCIAL DATA SERVICES, INC.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Vice President
ATTEST:
/s/ ▇. ▇▇▇▇▇
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BOSTON FINANCIAL DATA SERVICES
TRANSFER AGENT SERVICE RESPONSIBILITIES*
Service Performed Responsibility
----------------- Servicing Agent Transfer Agent
--------------- --------------
1. Receives orders for the purchase X X
of Shares.
2. Issue Shares and hold
Shares in Shareholders accounts. X X
3. Receive redemption requests. X X
4. Effect transactions 1-3 above X X
directly with broker-dealers.
5. Pay over monies to redeeming
Shareholders. X
6. Effect transfers of Shares. X X
7. Prepare and transmit
dividends and distributions. X
8. Issue Replacement Certificates. X X
9. Reporting of abandoned property. X
10. Maintain records of account. X X
11. Maintain and keep a current and accurate
control book for each issue of securities. X
12. Mail proxies. X
13. Mail Shareholder reports. X
14. Prepare and mail written correspondence. X
15. Mail prospectuses to current Shareholders. X
16. Withhold taxes on U.S. resident
and non-resident alien accounts. X
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Service Performed Responsibility
----------------- Servicing Agent Transfer Agent
--------------- --------------
17. Prepare and file U.S. Treasury
Department forms. X
18. Prepare and mail account
and confirmation statements
for Shareholders. X
19. Provide Shareholder account
information. X X
20. Blue sky reporting. X
21. Maintain fiduciary accounting and
beneficiary records. X
22. Prepare and mail required tax forms
to shareholders. X
23. File shareholder tax reports with the IRS. X
* Such services are more fully described in Section 1.2 (a), (b) and (c)
of the Agreement.
MAINSTAY SHAREHOLDER SERVICES, INC.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. Mullegan
--------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Vice President
ATTEST:
/s/ ▇. ▇▇▇▇▇
--------------------------------
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FEE SCHEDULE
(as amended, April 27, 1998)
1) MAINTENANCE AND TRANSACTION CHARGES - BILLABLE MONTHLY
A) Per Account Annual Fee:
The following funds will be billed at a rate of 1/12 of the annual fee
for each fund account serviced during the month. Accounts serviced is
defined as all open accounts at month end and accounts which close
during the month.
FUNDS ACCOUNT RATES
----- -------------
MainStay Capital Appreciation Fund $4.73
MainStay Value Fund $5.76
MainStay Convertible Fund $5.76
MainStay High Yield Corporate Bond Fund $7.81
MainStay Government Fund $7.81
MainStay Tax-Free Bond Fund $7.81
MainStay Money Market Fund $9.85
MainStay Equity Index Fund $6.01
MainStay Total Return Fund $5.76
MainStay California Tax-Free Fund $7.81
MainStay New York Tax-Free Fund $7.81
MainStay International Bond Fund $7.81
MainStay International Equity Fund $5.76
MainStay Strategic Income Fund $7.81
MainStay Strategic Value Fund $5.76
MainStay Blue Chip Growth Fund $4.73
MainStay Research Value Fund $4.73
MainStay Growth Opportunities Fund $4.73
MainStay Equity Income Fund $4.73
MainStay Small Cap Value Fund $4.73
MainStay Small Cap Growth Fund $4.73
MainStay Global High Yield Fund $7.81
B) Transaction Fees:
1) Transaction Activity
$0.69 per account - automated purchase transactions
$1.26 per account - non-automated transactions
2) ACH Transactions/Checkwriting
$0.51 for each ACH transaction
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$1.02 for each checkwriting item
3) Fund Minimum (Cusip/Class/Fund)
$1,024 per month per cusip
The fees and charges set forth shall increase annually over the fees
and charges during the prior 12 months in an amount equal to the annual
percentage of change in the Northeastern Consumer Price Index as last
reported by the U.S. Bureau of Labor Statistics
2) OUT-OF-POCKET
A) Out-of-pocket
Out-of-pocket expenses include but are not limited to:
Confirmation production, postage, forms, telephone, microfilm,
microfiche and expenses incurred at the specific direction of
the fund. Postage for mass mailings is due seven days in
advance of the mailing date.
IN WITNESS WHEREOF, Mainstay Shareholder Services, Inc. and
Boston Financial Data Services, Inc. have agreed upon this fee schedule
and have caused this fee schedule to be executed in their names and on
their behalf through duly authorized officers.
MAINSTAY SHAREHOLDER BOSTON FINANCIAL
SERVICES, INC. DATA SERVICES, INC.
NAME: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ NAME: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -----------------------------
TITLE: President & CEO TITLE: Vice President
----------------------------- -----------------------------
DATE: 1/6/99 DATE: 2/12/99
----------------------------- -----------------------------
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SCHEDULE A
MAINSTAY FUNDS
EFFECTIVE MAY 1, 1998
RETAIL FUNDS
MainStay Capital Appreciation Fund - B
MainStay Value Fund - B
MainStay Convertible Fund - B
MainStay High Yield Corporate Bond Fund - B
MainStay Government Fund - B
MainStay Tax Free Bond Fund - B
MainStay California Tax Free Fund - B
MainStay Money Market - B
MainStay New York Tax Free Fund - B
MainStay International Bond Fund - B
MainStay International Equity Fund - B
MainStay Total Return Fund - B
MainStay Strategic Income Fund - B
MainStay California Tax Free Fund - A
MainStay New York Tax Free Fund - A
MainStay Equity Index Fund
MainStay Strategic Value Fund - B
MainStay Capital Appreciation Fund - A
MainStay Value Fund - A
MainStay Convertible Fund - A
MainStay High Yield Corporate Bond Fund - A
MainStay Government Fund - A
MainStay Tax Free Bond Fund - A
MainStay Money Market - A
MainStay International Bond Fund - A
MainStay International Equity Fund - A
MainStay Total Return Fund - A
Mainstay Strategic Income Fund - A
MainStay Strategic Value Fund - A
INSTITUTIONAL FUNDS
MainStay Institutional Money Market Fund - Inst Class
MainStay Institutional Short Term Bond Fund - Inst Class
MainStay Institutional Bond Fund - Inst Class
MainStay Institutional Indexed Bond Fund - Inst class
MainStay Institutional Multi-Asset Fund - Inst Class
MainStay Institutional Value Equity Fund - Inst Class
MainStay Institutional Growth Equity Fund - Inst Class
MainStay Institutional Indexed Equity Fund - Inst Class
MainStay Institutional EAFE Index Fund - Inst Class
MainStay Institutional Institutional Bond -Inst Class
MainStay Institutional International Equity - Inst Class
MainStay Institutional Money Market Fund - SVC Class
MainStay Institutional Short Term Bond Fund - SVC Class
MainStay Institutional Bond Fund - SVC Class
MainStay Institutional Indexed Bond Fund - SVC Class
MainStay Institutional Multi-Asset Fund - SVC Class
MainStay Institutional Value Equity Fund - SVC Class
MainStay Institutional Growth Equity Fund - SVC Class
MainStay Institutional Indexed Equity Fund - SVC Class
MainStay Institutional EAFE Index Fund - SVC Class
MainStay Institutional International Bond - SVC Class
MainStay Institutional International Equity - SVC Class
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MAINSTAY FUNDS
FEE SCHEDULE
EFFECTIVE AS OF MAY 1, 1998
2) INSTITUTIONAL FUNDS
A) Per Account Annual Fee:
1) Daily Dividend Funds
$15.00
2) Non-Daily Dividend Funds
$10.00
The above rates are to be incremented $.25 per dividend payment
cycle (e.g., monthly dividend, add $3.00 to the per account annual).
B) Closed Accounts
$.20 - per account, per month
C) Fund Minimum (Cusip/Class/Fund)
$1,024 per month per cusip
The fees and charges set forth shall increase annually over the fees
and charges during the prior 12 months in an amount equal to the
annual percentage of change in the Northeastern Consumer Price Index
as last reported by the U.S. Bureau of Labor Statistics.
OUT-OF-POCKET
A) Out-of-pocket
Out-of-pocket expenses include but are not limited to:
Confirmation production, postage, forms, telephone, microfilm,
microfiche and expenses incurred at the specific direction of the
fund. Postage for mass mailings is due seven days in advance of the
mailing date.
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IN WITNESS WHEREOF, MainStay Shareholder Services Inc. and Boston Financial Data
Services, Inc. have agreed upon this fee schedule and have caused this fee
schedule to be executed in their names and on their behalf through duly
authorized officers.
MAINSTAY SHAREHOLDER BOSTON FINANCIAL DATA
SERVICES INC. SERVICES, INC.
NAME: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ NAME: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: PRESIDENT & CEO TITLE: Vice President
DATE: May 20, 1998 DATE: May 18, 1998
25
FEE SCHEDULE
(as amended, April 27, 1998)
1) MAINTENANCE AND TRANSACTION CHARGES - BILLABLE MONTHLY
A) Per Account Annual Fee:
The following funds will be billed at a rate of 1/12 of the annual
fee for each fund account serviced during the month. Accounts
serviced is defined as all open accounts at month end and accounts
which close during the month.
Funds Account Rates
----- -------------
MainStay Capital Appreciation Fund $4.73
MainStay Value Fund $5.76
MainStay Convertible Fund $5.76
MainStay High Yield Corporate Bond Fund $7.81
MainStay Government Fund $7.81
MainStay Tax-Free Bond Fund $7.81
MainStay Money Market Fund $9.85
MainStay Equity Index Fund $6.01
MainStay Total Return Fund $5.76
MainStay California Tax-Free Fund $7.81
MainStay New York Tax-Free Fund $7.81
MainStay International Bond Fund $7.81
MainStay International Equity Fund $5.76
MainStay Strategic Income Fund $7.81
MainStay Strategic Value Fund $5.76
MainStay Blue Chip Growth Fund $4.73
MainStay Research Value Fund $4.73
MainStay Growth Opportunities Fund $4.73
MainStay Equity Income Fund $4.73
MainStay Small Cap Value Fund $4.73
MainStay Small Cap Growth Fund $4.73
MainStay Global High Yield Fund $7.81
B) Transaction Fees:
1) Transaction Activity
$0.69 per account - automated purchase transactions
$1.26 per account - non-automated transactions
2) ACH Transactions/Checkwriting
$0.51 for each ACH transaction
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26
$1.02 for each checkwriting item
3) Fund Minimum (Cusip/Class/Fund)
$1,024 per month per cusip
The fees and charges set forth shall increase annually over
the fees and charges during the prior 12 months in an amount
equal to the annual percentage of change in the Northeastern
Consumer Price Index as last reported by the U.S. Bureau of
Labor Statistics.
2) OUT-OF-POCKET
A) Out-of-pocket
Out-of-pocket expenses include but ARE NOT limited to:
Confirmation production, postage, forms, telephone, microfilm,
microfiche and expenses incurred at the specific direction of the
fund. Postage for mass mailings is due seven days in advance of the
mailing date.
IN WITNESS WHEREOF, MainStay Shareholder Services, Inc. and Boston
Financial Data Services, Inc. have agreed upon this fee schedule and
have caused this fee schedule to be executed in their names and on
their behalf through duly authorized officers.
MAINSTAY SHAREHOLDER BOSTON FINANCIAL
SERVICES, INC. DATA SERVICES, INC.
NAME: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ NAME: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TITLE: President & CEO TITLE: Vice President
DATE: 1/6/99 DATE: 2/12/99
21