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EXHIBIT (9)(c)
AMENDED AND RESTATED
TRANSFER AGENCY AGREEMENT
THIS AGREEMENT is made as of this 1st day of June, 1996 by and among
GALAXY FUND II, a Massachusetts business trust (the "Fund"), FIRST DATA INVESTOR
SERVICES GROUP, INC., a Massachusetts corporation (the "Transfer Agent"), and
FLEET NATIONAL BANK (the "Administrator").
W I T N E S E T H
WHEREAS, the Fund is registered as an open-end, diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), is offering units of beneficial interest, and is currently
classifying such units into five series and may add further classes or series in
the future (such units, of all classes and series, are herein called the
"Shares"); and
WHEREAS, the Transfer Agent currently serves as transfer agent,
registrar, dividend disbursing agent, and custodian of certain retirement plans
and agent in connection with certain activities, for the Fund's existing series
of shares and for such additional classes or series as the Fund may issue
pursuant to a Transfer Agency Agreement dated as of March 31, 1995 by and among
the Fund, the Transfer Agent and the Administrator (the "Existing Agreement");
and
WHEREAS, the Administrator and the Fund have agreed that the
Administrator shall provide certain administrative services to the Fund and
shall bear certain expenses of the Fund's operations, including all amounts
payable to the Transfer Agent under the Existing Agreement; and
WHEREAS, the parties hereto wish to amend and restate the Existing
Agreement in its entirety to reflect certain changes to the terms thereof;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints the Transfer Agent to serve
for the period and on the terms set forth in this Agreement as transfer agent,
registrar and dividend disbursing agent, custodian of certain retirement plans
and agent in connection with any accumulation, open-account or similar plans
provided to the shareholders of each of the respective portfolios
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of the Fund (each a "Portfolio") and set out in the currently effective
prospectus and statement of additional information of the Fund on behalf of the
applicable Portfolio, including without limitation, any periodic investment plan
or periodic withdrawal program. The Fund may from time to time issue separate
classes or series of Shares or classify and reclassify Shares of such classes or
series. The Transfer Agent shall identify to each such class or series property
belonging to such class or series, and in such reports, confirmations and
notices to the Fund called for under this Agreement, shall identify the class or
series to which such report, confirmation or notice pertains. The Transfer Agent
accepts such appointment and agrees to furnish the services herein set forth,
subject, however, to the performance standards set forth in Appendix I to this
Agreement.
2. Delivery of Documents. The Fund has furnished the Transfer Agent
with copies properly certified or authenticated of each of the following:
(a) Resolutions of the Fund's Board of Trustees authorizing
the appointment of the Transfer Agent as transfer agent, registrar and
dividend disbursing agent for the Fund and approving this Agreement;
(b) The Fund's Declaration of Trust filed with the Secretary
of the Commonwealth of Massachusetts on February 28, 1990 and all
amendments thereto (such Declaration of Trust, as currently in effect
and as it shall from time to time be amended, is herein called the
"Declaration of Trust");
(c) The Fund's Code of Regulations and all amendments thereto
(such Code of Regulations, as currently in effect and as it shall from
time to time be amended, is herein called the "Code");
(d) The Amended and Restated Distribution Agreement among the
Transfer Agent, 440 Financial Distributors, Inc. (the "Distributor")
and the Fund dated as of even date herewith (the "Distribution
Agreement");
(e) The Fund's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act on Form N-8A with the Securities and
Exchange Commission (the "SEC") on February 28, 1990;
(f) The Fund's Registration Statement on Form N-1A under the
1940 Act and the Securities Act of 1933, as amended (the "1933 Act") as
filed with the SEC on February 28, 1990 (File No. 33-33617) relating to
the Shares, and all amendments thereto;
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(g) The Fund's most recent prospectus or prospectuses and
statement or statements of additional information (such prospectus or
prospectuses and statement or statements of additional information, as
currently in effect, and all amendments and supplements thereto, are
herein collectively called the "Prospectus"); and
(h) Before entering into a transaction regulated by the
Commodity Futures Trading Commission ("CFTC"), a copy of either (i) a
filed notice of eligibility to claim the exclusion from the definition
of "commodity pool operator" contained in Section 2(a)(1)(A) of the
Commodity Exchange Act (the "CEA") that is provided in Rule 4.5 under
the CEA, together with all supplements as are required by the CFTC, or
(ii) a letter which has been granted the Fund by the CFTC which states
that the Fund will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii), a letter which has
been granted the Fund by the CFTC which states that the CFTC will not
take any enforcement action if the Fund does not register as a
"commodity pool operator."
The Fund will furnish the Transfer Agent from time to time with copies
of all amendments of or supplements to the foregoing, if any.
3. Definitions.
(a) "Authorized Persons". As used in this Agreement, the term
"Authorized Person" means the Fund's President, Treasurer and any other
person, whether or not any such person is an officer or employee of the
Fund, duly authorized by the Board of Trustees of the Fund to give Oral
and Written Instructions on behalf of the Fund as may be received by
the Transfer Agent from time to time.
(b) "Oral Instructions". As used in this Agreement, the term
"Oral Instructions" means oral instructions actually received by the
Transfer Agent from an Authorized Person or from a person reasonably
believed by the Transfer Agent to be an Authorized Person. The Fund
agrees to deliver to the Transfer Agent, at the time and in the manner
specified in Paragraph 4(b) of this Agreement, Written Instructions
confirming Oral Instructions.
(c) "Written Instructions". As used in this Agreement, the
term "Written Instructions" means written instructions delivered by
mail, tested telegram, cable, telex or facsimile sending device, and
received by the Transfer Agent, signed by an Authorized Person.
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(d) "Shareholder". As used in this Agreement, the term
"Shareholder" means each holder of at least one Share.
4. Instructions Consistent with Declaration of Trust and Code.
(a) Unless otherwise provided in this Agreement, the Transfer
Agent shall act only upon Oral and Written Instructions. Although the
Transfer Agent may take cognizance of the provisions of the Declaration
of Trust and the Code of the Fund, the Transfer Agent may assume that
any Oral or Written Instructions received hereunder are not in any way
inconsistent with any provisions of such Declaration of Trust or the
Code or any vote, resolution or proceeding of the Shareholders, or of
the Board of Trustees, or of any committee thereof.
(b) The Transfer Agent shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by the
Transfer Agent pursuant to this Agreement. The Fund agrees to forward
to the Transfer Agent Written Instructions confirming Oral Instructions
in such manner that, to the extent practicable, the Written
Instructions are received by the Transfer Agent (whether by hand
delivery, telex, facsimile sending device or otherwise) by the close of
business of the same day, to the extent practicable, that such Oral
Instructions are given to the Transfer Agent, and in any event by the
end of the next business day. The Fund agrees that the fact that such
confirming Written Instructions are not received by the Transfer Agent
shall in no way affect the validity of the transactions or
enforceability of the transactions authorized by the Fund by giving
Oral Instructions. The Fund agrees that the Transfer Agent shall incur
no liability to the Fund in acting upon Oral Instructions given to the
Transfer Agent hereunder concerning such transactions provided such
instructions reasonably appear to have been received from an Authorized
Person.
5. Issuance, Redemption and Exchange of Shares.
(a) Issuance of Shares. Upon receipt of a purchase order from
a prospective Shareholder for the purchase of Shares of a particular
series or class and sufficient information to enable the Transfer Agent
to establish a Shareholder account, and after confirmation of receipt
or crediting of federal funds for the order from the Fund's custodian,
the Transfer Agent shall issue and credit the account of the
Shareholder with Shares of the appropriate series or class in the
manner described in the Prospectus.
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(b) Redemption of Shares. Upon receipt of a redemption order
from the Fund's Distributor or a Shareholder, the Transfer Agent shall
redeem the number and class or series of Shares indicated thereon from
the redeeming Shareholder's account and receive from the Fund's
custodian and disburse to the redeeming Shareholder the redemption
proceeds therefor, or arrange for direct payment of redemption proceeds
to such Shareholder by the custodian, in accordance with such
procedures and controls as are mutually agreed from time to time by and
among the Fund, the Transfer Agent and the custodian.
(c) Exchange of Shares. Upon receipt of an exchange order from
a Shareholder and in accordance with the Prospectus and such procedures
and controls as are mutually agreed upon from time to time by and among
the Fund, the Transfer Agent and the Fund's custodian, the Transfer
Agent shall arrange for the exchange of Shares of a class or series of
the Fund having an exchange privilege for Shares of other classes or
series of the Fund.
6. Authorized Shares. The Fund is authorized to issue an unlimited
number of Shares. The Fund agrees to notify the Transfer Agent promptly of any
change in or termination of the Fund's declaration under Rule 24f-2 of the 1940
Act.
7. Dividends and Distributions. The Fund shall furnish the Transfer
Agent with appropriate evidence of action taken by the Fund's Board of Trustees
authorizing the declaration and payment of dividends and distributions to the
Fund's Shareholders. After deducting any amount required to be withheld by any
applicable laws, rules and regulations, the Transfer Agent shall, as agent for
each Shareholder and in accordance with the provisions of the Declaration of
Trust and Prospectus, receive from the Fund's custodian and pay such Shareholder
such dividends and/or distributions in cash or, with respect to any Shareholder
who has properly elected to have his dividends and/or distributions reinvested
in Shares of a Portfolio, reinvest such dividends and/or distributions in
additional full and fractional Shares. In lieu of receiving from the Fund's
custodian and paying to Shareholders cash dividends and/or distributions, the
Transfer Agent may arrange for the direct payment of cash dividends and
distributions to Shareholders by the custodian, in accordance with such
procedures and controls as are mutually agreed upon from time to time by and
among the Fund, the Transfer Agent and the custodian.
The Transfer Agent shall prepare and file with the Internal Revenue
Service and/or other appropriate taxing authorities, and address and mail to
Shareholders or their authorized representatives, such returns and information
relating to dividends and distributions paid by the Fund as are required to
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be so prepared, filed and mailed by applicable laws, rules and regulations, or
such substitute form of notice as may from time to time be permitted or required
by the Internal Revenue Service and/or other appropriate taxing authorities. On
behalf of the Fund, the Transfer Agent shall pay on a timely basis to the
appropriate federal authorities any taxes required by applicable federal tax
laws to be withheld by the Fund on dividends and distributions paid by the Fund.
8. Communications with Shareholders.
(a) Communications to Shareholders. The Transfer Agent will
address and mail all communications by the Fund to Shareholders or
their authorized representatives, including reports to Shareholders,
dividend and distribution notices and proxy materials for its meetings
of Shareholders. The Transfer Agent will receive and tabulate the proxy
cards for the meetings of Shareholders. The Transfer Agent may in its
discretion, and at the Administrator's expense, retain an agent to
perform the shareholder communication services described herein.
(b) Correspondence. The Transfer Agent will answer such
correspondence from Shareholders, securities brokers and others
relating to its duties hereunder and such other correspondence as may
from time to time be mutually agreed upon between the Transfer Agent
and the Fund.
9. Records.
(a) The Transfer Agent shall keep accounts for each
Shareholder showing the following information:
(i) name, address and United States tax
identification or Social Security number;
(ii) number and class or series of Shares held and
number of Shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
(iii) historical information regarding the account
of each Shareholder, including dividends and distributions paid and the
date and price for all transactions in a Shareholder's account;
(iv) any stop or restraining order placed against
a Shareholder's account;
(v) any correspondence relating to the current
maintenance of a Shareholder's account;
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(vi) information with respect to withholdings
effected; and
(vii) any information required in order for the
Transfer Agent to perform any calculations contemplated or required by
this Agreement.
(b) The Transfer Agent shall keep subaccounts of each
Shareholder requesting such service in connection with Shares held by
such Shareholder for separate accounts, containing the same information
for each subaccount as required by Subparagraph (a) above.
(c) The Transfer Agent shall 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 which are authorized, based upon data provided
to it by the Fund, and issued and outstanding. The Transfer Agent shall
also provide the Fund on a regular basis with the total number of
Shares which are authorized and issued and outstanding and shall have
no obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating to
the issue or sale of such Shares, which function shall be the sole
responsibility of the Fund.
(d) The books and records pertaining to the Fund which are in
the possession of the Transfer Agent shall be the property of the Fund.
Such books and records shall be prepared and maintained as required by
the 1940 Act and other applicable securities laws and rules and
regulations. The Fund, or the Fund's authorized representatives, shall
have access to such books and records at all times during the Transfer
Agent's normal business hours, and such books and records shall be
surrendered to the Fund promptly upon request. Upon the reasonable
request of the Fund, copies of any such books and records shall be
provided by the Transfer Agent to the Fund or the Fund's authorized
representative at the Fund's expense.
10. Ongoing Functions. The Transfer Agent will perform the following
functions on an ongoing basis for each class or series of the Fund:
(a) furnish state-by-state registration reports to the Fund;
(b) calculate any applicable load or compensation payment, as
applicable, and provide such information to the Fund, if any;
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(c) calculate dealer commissions for the Fund, as applicable,
if any;
(d) provide toll-free lines for direct Shareholder use, plus
customer liaison staff with on-line inquiry capacity if needed as
determined by the parties hereto;
(e) mail duplicate confirmations to dealers of their clients'
activity, whether executed through the dealer or directly with Transfer
Agent, if any;
(f) provide detail for underwriter or broker confirmations and
other participating dealer Shareholder accounting, in accordance with
such procedures as may be agreed upon from time to time by the Fund and
the Transfer Agent;
(g) provide Shareholder lists and statistical information
concerning accounts to the Fund; and
(h) provide timely notification of Fund activity, and such
other information as may be agreed upon from time to time by the
Transfer Agent and the Fund's custodian, to the Fund or the custodian.
In addition to and neither in lieu nor in contravention of the services
set forth in the above paragraphs (5) through (9) and subparagraphs (a) through
(h), the Transfer Agent shall (i) perform the customary services of a transfer
agent, dividend disbursing agent, custodian of certain retirement plans and, as
relevant, agent in connection with accumulation, open-account or similar 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, receiving and
tabulating 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 and state 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 at the
direction of the Fund on a periodic basis and as requested by Shareholders, and
providing Shareholder account information and (ii) provide a system which will
enable the Fund to monitor the total number of Shares sold in each State.
11. Cooperation with Accountants. The Transfer Agent shall cooperate
with the Fund's independent certified public
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accountants and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion as such
may be required from time to time by the Fund.
12. Confidentiality. The Transfer Agent agrees on behalf of itself and
its employees to treat confidentially and as the proprietary information of the
Fund all records and other information relative to the Fund and its prior,
present or potential Shareholders and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing by the
Fund, which approval may not be withheld where the Transfer Agent may be exposed
to civil or criminal contempt proceedings for failure to comply, when requested
to divulge such information by duly constituted authorities, or when so
requested by the Fund.
13. Operational Improvements. The Transfer Agent agrees to make the
following operational improvements within sixty (60) days of the date of this
Agreement: synchronization of "master file" update; provision of additional
resources and procedures for problem resolution; and improvement of the accuracy
and reconciliation of account transaction data. The Transfer Agent agrees to
make the following operational improvements within ninety (90) days of the date
of this Agreement: development of same-day order entry processing.
14. Equipment Failures. In the event of equipment failures beyond the
Transfer Agent's control, the Transfer Agent shall, at no additional expense to
the Fund, take reasonable steps to minimize service interruptions but shall have
no liability with respect thereto. The Transfer Agent shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision for emergency use of electronic data processing equipment
to the extent appropriate equipment is available.
15. Right to Receive Advice.
(a) Advice of Fund. If the Transfer Agent shall be in doubt as
to any action to be taken or omitted by it, it may request, and shall
receive, from the Fund directions or advice.
(b) Advice of Counsel. If the Transfer Agent shall be in doubt
as to any question of law involved in any action to be taken or omitted
by the Transfer Agent, it may request advice at its own cost from
counsel of its own choosing (who may be counsel for Fleet, the Fund's
custodian, the
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Distributor, the Fund or the Transfer Agent, at the option of the
Transfer Agent).
(c) Conflicting Advice. In case of conflict between directions
or advice received by the Transfer Agent pursuant to subparagraph (a)
of this paragraph and written advice received by the Transfer Agent
pursuant to subparagraph (b) of this paragraph, the Transfer Agent
shall be entitled to rely on and follow the written advice received
pursuant to the latter provision alone.
(d) Protection of the Transfer Agent. The Transfer Agent shall
be protected in any action or inaction which it takes in reliance on
any directions or advice received pursuant to subparagraphs (a) or (b)
of this paragraph which the Transfer Agent, after receipt of any such
directions or advice, reasonably and in good faith believes to be
consistent with such directions or advice. However, nothing in this
paragraph shall be construed as imposing upon the Transfer Agent any
obligation (i) to seek such directions or advice, or (ii) to act in
accordance with such directions or advice when received, unless, under
the terms of another provision of this Agreement, the same is a
condition to the Transfer Agent's properly taking or omitting to take
such action. Nothing in this subparagraph (d) shall excuse the Transfer
Agent when an action or omission on the part of the Transfer Agent
constitutes willful misfeasance, bad faith, negligence or reckless
disregard by the Transfer Agent of its duties under this Agreement.
16. Compliance with Governmental Rules and Regulations. The Fund
assumes full responsibility for insuring that the contents of the Prospectus
comply with all applicable requirements of the 1933 Act, the 1940 Act, the CEA
and any laws, rules and regulations of governmental authorities having
jurisdiction.
17. Compensation. As sole compensation for the services rendered by the
Transfer Agent during the term of this Agreement, the Administrator will pay to
the Transfer Agent such monthly fees as the Transfer Agent and the Administrator
may agree from time to time in writing, for each class or series of the Fund,
subject, however to the performance standards set forth in Appendix I to this
Agreement.
18. Indemnification. The Fund agrees to indemnify and hold the Transfer
Agent harmless from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitations, liabilities arising under the 1933
Act, the Securities Exchange Act of 1934, as amended, the 1940 Act, the CEA and
any state and foreign securities and blue sky laws, all as or as to be amended
from time to time) and expenses, including
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(without limitation) reasonable attorneys' fees and disbursements, arising
directly or indirectly from any action or thing which the Transfer Agent
reasonably takes or does or omits to take or do as required by this Agreement or
in reliance on the advice of the Fund, provided that the Transfer Agent shall
not be indemnified against any liability to the Fund or to its Shareholders (or
any expenses incident to such liability) arising out of the Transfer Agent's
negligent failure to perform its duties under this Agreement.
The Transfer Agent shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability arising out of or attributable to any action or
failure or omission to act by the Transfer Agent as a result of the Transfer
Agent's lack of good faith, negligence or willful misconduct. Neither the Fund
nor the Transfer Agent shall be liable to the other for consequential damages
under any provision of this Agreement or for any consequential damages arising
out of any act or failure to act thereunder.
19. Responsibility of the Transfer Agent. The Transfer Agent shall be
under no duty to take any action on behalf of the Fund except as specifically
set forth herein or as may be specifically agreed to by the Transfer Agent in
writing. In the performance of its duties hereunder, the Transfer Agent shall be
obligated to exercise care and diligence and to act in good faith and to use its
best efforts within reasonable limits to ensure the accuracy of all services
performed under this Agreement. The Transfer Agent shall be responsible for its
own negligent failure to perform its duties under this Agreement, but to the
extent that duties, obligations and responsibilities are not expressly set forth
in this Agreement, the Transfer Agent shall not be liable for any act or
omission which does not constitute willful misfeasance, bad faith or negligence
on the part of the Transfer Agent or reckless disregard of such duties,
obligations and responsibilities. Without limiting the generality of the
foregoing or of any other provision of this Agreement, the Transfer Agent in
connection with its duties under this Agreement shall not be under any duty or
obligation to inquire into and shall not be liable for or in respect of (a) the
validity or invalidity or authority or lack thereof of any advice, direction,
notice or other instrument which conforms to the applicable requirements of this
Agreement, if any, and which the Transfer Agent reasonably believes to be
genuine, or (b) delays or errors or loss of data occurring by reason of
circumstances beyond the Transfer Agent's control, including acts of civil or
military authority, national emergencies, labor difficulties, fire, mechanical
breakdown (except as provided in paragraph 14), flood or catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
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20. Registration as Transfer Agent. The Transfer Agent represents that
it has and is currently registered as a transfer agent with the SEC and
applicable state regulators and has complied with the regulations of the SEC
applicable to registered transfer agents. The Transfer Agent agrees that it will
take reasonable action to continue to be registered as a transfer agent with the
appropriate federal and state agencies for the duration of this Agreement.
Should the Transfer Agent fail to be registered with the appropriate federal
agency as a transfer agent at any time during this Agreement, the Fund may
(notwithstanding Paragraph 21 hereof), on written notice to the Transfer Agent,
immediately terminate this Agreement.
21. Duration and Termination. This Agreement shall become effective as
of June 1, 1996 and, unless sooner terminated as provided herein, shall continue
until May 31, 1997 and thereafter shall continue automatically for successive
annual periods ending on May 31 of each year. Notwithstanding the foregoing,
this Agreement may be terminated at any time without the payment of any penalty
by the Transfer Agent, the Fund or the Administrator on sixty (60) days' written
notice to the other parties hereto.
22. Notices. All notices and other communications (collectively
referred to as "a Notice" or "Notices" in this paragraph) hereunder shall be in
writing or by confirming telegram, cable, telex or facsimile sending device.
Notices shall be addressed (a) if to the Transfer Agent, at the Transfer Agent's
address, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) if to the Fund,
at the address of the Fund; (c) if to the Administrator, at the Administrator's
address, Fleet National Bank, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇; or (d) if to none of the foregoing, at such other
address as to which the sender shall have been notified by any such Notice or
other communication. If the location of the sender of a Notice and the address
of the addressee thereof are, at the time of sending, more than 100 miles apart,
the Notice may be sent by first-class mail, in which case it shall be deemed to
have been given three days after it is sent, or if sent by confirming telegram,
cable, telex or facsimile sending device, it shall be deemed to have been given
immediately. If the location of the sender of a Notice and the address of the
addressee thereof are, at the time of sending, not more than 100 miles apart,
the Notice may be sent by first-class mail, in which case it shall be deemed to
have been given two days after it is sent, or if sent by messenger, it shall be
deemed to have been given on the day it is delivered, or if sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to have
been given immediately. All postage, cable, telegram, telex and facsimile
sending device charges arising from the sending of a Notice hereunder shall be
paid by the sender.
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23. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
24. Amendments. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
25. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
26. Names. The names "Galaxy Fund II" and "Trustees of Galaxy Fund II"
refer respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated February 22, 1990, which is hereby referred to and a copy of which
is on file at the office of the State Secretary of the Commonwealth of
Massachusetts and at the principal office of the Fund. The obligations of the
Fund entered into in the name or on behalf thereof by any of the Trustees,
representatives, agents, officers or employees, whether past, present or future,
are made not individually, but in such capacities, and are not binding upon any
of such individuals or the shareholders personally, but bind only the property
of the Fund, and all persons dealing with a Portfolio of the Fund must look
solely to the property of the Fund belonging to such Portfolio for the
enforcement of any claims against the Fund.
27. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof. The captions in this
Agreement are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement shall be deemed to be a contract made in Massachusetts
and governed by Massachusetts law. If any provision of this Agreement shall be
held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby. This Agreement shall
be binding and shall insure to the benefit of the parties hereto and their
respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this
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Agreement to be executed by their officers designated below as of the day and
year first above written.
[SEAL] GALAXY FUND II
Attest:/s/W.▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By:/s/▇▇▇▇ ▇. ▇'▇▇▇▇▇
___________________ ________________________________________
Secretary President
[SEAL] FIRST DATA INVESTOR SERVICES
GROUP, INC.
Attest:__________________ By:/s/▇▇▇▇▇▇ ▇.(illegible)
________________________________________
Title: Title:
[SEAL] FLEET NATIONAL BANK
Only with respect to Section 17
of this Agreement
Attest:__________________ By:/s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
________________________________________
Title: Title:
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APPENDIX I
TO THE
AMENDED AND RESTATED TRANSFER AGENCY AGREEMENT
AMONG
GALAXY FUND II (THE "FUND"),
FIRST DATA INVESTOR SERVICES GROUP, INC.
(THE "TRANSFER AGENT")
AND
FLEET NATIONAL BANK (THE "ADMINISTRATOR")
PERFORMANCE STANDARDS
Pursuant to Paragraph 1 of this Agreement, the Transfer Agent
has agreed to perform the services described in this Agreement in accordance
with the performance standards set forth in this Appendix I. The parties agree
that such performance standards, which are described in the chart attached
hereto, may be revised from time to time upon mutual agreement of the parties.
Each of the performance standards will be monitored by a
Quality Assurance Team:
(a) In the event that the Transfer Agent fails to meet a
particular performance standard (except for any failure due to circumstances
beyond its control) in any particular month, the Transfer Agent agrees to take
appropriate corrective action within the following thirty (30) day period.
(b) In the event that the Transfer Agent fails to meet a
particular performance standard (except for any failure due to circumstances
beyond its control) in two (2) consecutive months, the fee payable to the
Transfer Agent hereunder for such service shall be reduced by one percent (1%)
for the second of those two months.
(c) In the event that the Transfer Agent fails to meet a
particular performance standard (except for any failure due to circumstances
beyond its control) in three (3) consecutive months, the fee payable to the
Transfer Agent hereunder for such service shall be reduced by one and one-half
percent (1.5%) for the third of those three months.
(d) In the event that the Transfer Agent fails to meet a
particular performance standard (except for any failure due to circumstances
beyond its control) for any three (3) months within a six (6)-month period, then
the Fund or the Administrator shall have the right to terminate this Agreement
upon forty-five (45) days' written notice to the Transfer Agent.
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(e) In the event that there is no specific fee for a
particular service set forth in the written fee agreement between the Fund and
the Administrator, then any reduction in the fee payable to the Transfer Agent
as a result of a failure to meet a particular standard for that service
hereunder shall be taken as a reduction in the annual per account maintenance
fee.
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PERFORMANCE STANDARDS
===============================================================================
ITEM STANDARD
===============================================================================
GENERAL PROCESSING:
-------------------------------------------------------------------------------
New Account Set-Up 100% processed same day
-------------------------------------------------------------------------------
Financial Quality Control 100% processed same day
-------------------------------------------------------------------------------
Non-Financial Correspondence 100% acknowledged by
telephone within 24
hours of receipt;
items less than 30
days old resolved
within 3 business
days; items older
than 30 days
resolved within 5
business days
-------------------------------------------------------------------------------
Maintenance Items 3 business days
-------------------------------------------------------------------------------
Not in good order items Call out same day
-------------------------------------------------------------------------------
Research received by phone 100% called with
status report within
48 hours; 100%
resolved within 3
business days
-------------------------------------------------------------------------------
Research received by mail 100% acknowledged by
telephone within 24
hours of receipt;
100% resolved within
4 business days
-------------------------------------------------------------------------------
PHONES:
-------------------------------------------------------------------------------
Abandonment Rate 3% or less
-------------------------------------------------------------------------------
Average speed of answer 20 seconds or less
-------------------------------------------------------------------------------
Service level 90% of calls will be answered in 20
seconds or less
-------------------------------------------------------------------------------
PRINT/MAIL:
-------------------------------------------------------------------------------
Monthly Statements 5 business days
-------------------------------------------------------------------------------
Daily Confirmations T + 2
-------------------------------------------------------------------------------
Checks T + 1
-------------------------------------------------------------------------------
Ad Hoc Projects 5 business days from receipt
-------------------------------------------------------------------------------
FULFILLMENT: within 24 hours
===============================================================================
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