EXHIBIT 23h(3). - FORM OF TRANSFER AGENCY AND SERVICE AGREEMENT
TRANSFER AGENCY AND SERVICE
AGREEMENT
between
NYLIM INSTITUTIONAL FUNDS
and
NYLIM SERVICE COMPANY LLC
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment: Duties of NSC.................................1
Article 2 Fees and Expenses....................................................6
Article 3 Representations and Warranties of NSC................................7
Article 4 Representations and Warranties of the Fund...........................7
Article 5 Indemnification......................................................8
Article 6 Covenants of the Fund and NSC.......................................10
Article 7 Insurance...........................................................12
Article 8 Termination of Agreement............................................12
Article 9 Additional Funds....................................................13
Article 10 Assignment.........................................................13
Article 11 Amendment..........................................................13
Article 12 New York Law to Apply..............................................13
Article 13 Merger of Agreement................................................13
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FORM OF TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT is made as of the __ day of _________, 2001, by and
between NYLIM INSTITUTIONAL FUNDS, a Delaware business trust, on behalf of each
series of the Trust set forth on the Fee Schedule annexed hereto, as the same
may be amended from time to time (the "Fund"), and NYLIM SERVICE COMPANY LLC, a
Delaware limited liability company ("NSC").
WHEREAS, the Fund desires to appoint NSC as its named transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and NSC desires to accept such appointment effective as of the effective date of
the initial Registration Statement (the "Registration Statement") filed with the
Securities and Exchange Commission on Form N-1A registering the public offering
of the Fund's shares;
WHEREAS, the Fund is authorized to issue shares in separate series and
classes, with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund currently offers shares in 3 series, (such series,
together with all other series subsequently established by the Fund and made
subject to this Agreement in accordance with Article 9, being herein referred to
individually as a "Fund" and collectively, as the "Funds");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agrees as follows:
Article 1 Terms of Appointment: Duties of NSC
1.01. Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints NSC to act as, and NSC agrees to act as,
transfer agent for the Fund's authorized and issued shares of beneficial
interest ("Shares"), dividend disbursing agent and agent in connection with any
accumulation, letter of intent or similar purchase plans provided to the
shareholders of record of the Fund ("Shareholders") and set out in the
Prospectus (which term when used in this Agreement includes the Statement of
Additional Information) of the Fund, as now in effect or as hereafter amended or
supplemented from time to time without written objection by NSC or as mutually
agreed upon from time to time.
1.02. NSC agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by agreement
between the Fund and NSC, NSC shall:
(i) receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefor to
the Custodian of the applicable series duly appointed by the
Trustees of the Fund (the "Custodian"); pursuant to orders for the
purchase of Shares, record the purchase of the appropriate number
of Shares in the Shareholder's account and, if requested by the
Shareholder, and if the Trustees of the Fund have authorized the
issuance of stock certificates, issue a certificate for the
appropriate number of Shares;
(ii) pursuant to instructions provided by Shareholders, reinvest income
dividends and capital gains distributions in additional shares of
the Fund;
(iii) receive for acceptance, redemption and repurchase requests and
directions, and deliver the appropriate documentation therefor to
the Custodian;
(iv) at the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption and repurchase,
pay over or cause to be paid over in the appropriate manner such
movies as instructed by the redeeming Shareholders;
(v) determine, upon receipt of a request for the redemption or
repurchase of Shares, for each Shareholder the amount, if any, of
such redemption or repurchase which is subject to a contingent
deferred sales charge as described in the Prospectus as from time
to time in effect, withhold the amount of such sales charge from
the redemption or repurchase proceeds, and remit the amount of
such sales charge to the principal underwriter of the Shares of
the Fund or such other person as the Fund shall designate in
writing;
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(vi) effect transfers of Shares by the registered owners thereof upon
receipt of appropriate documentation meeting the requirements set
forth in the Fund's current Prospectus;
(vii) prepare and transmit payments for dividends and distributions
declared by the Fund other than such dividends and distributions
reinvested under 1.02(a)(iii);
(viii) maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(ix) effect exchanges of Shares of one series for shares of the same
class of another series at net asset value upon receipt of
appropriate authorization meeting the requirements set forth in
the Fund's current Prospectus.
(b) In addition to and not in lieu of the services set forth in the above
paragraph (a), NSC shall: (i) perform all of the customary services of a
transfer agent, dividend disbursing agent and, as relevant, agent in connection
with accumulation, letter of intent, or similar purchase plans. The detailed
definition, frequency, limitations and associated costs (if any) set out in the
attached fee schedule, may include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxy
statements and proxies, receiving and tabulating proxies, mailing Shareholder
reports and Prospectuses to current Shareholders, withholding taxes on U.S.
residents and non-resident alien accounts where applicable, 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 registered
Shareholders, preparing and mailing confirmations and statements of account to
Shareholders for all purchases, redemptions and repurchases of Shares and other
confirmable transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing Shareholder account information and
(ii) provide to the Fund, daily and monthly, a written report which will enable
the Fund to monitor the total number of Shares sold and the aggregate public
offering price thereof in each state of each series of
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the Fund, added by sales in each state of the registered Shareholder or dealer
branch office, as requested by the Fund. If directed by the Fund, each
confirmation of the purchase which establishes a new account will be accompanied
by a Prospectus and any amendment or supplement thereto. A Prospectus and any
amendment or supplement will be mailed to a Shareholder when such Prospectus,
amendment or supplement shall be effective. The Fund shall (i) identify to NSC
in writing those transactions and assets to be treated as exempt from the blue
sky reporting of the Fund for each state and (ii) approve those transactions to
be included for each state on the system prior to activation and thereafter
monitor the daily activity for each State. The responsibility of NSC for the
Fund's blue sky state registration status is limited to the reporting of
transactions as described above.
(c) Additionally, NSC shall:
(i) 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 the computation of net asset value
("NAV") per share next computed after receipt of such orders, and
shall compute the net effect upon the Fund of such transactions so
identified on a daily and cumulative basis.
(ii) If upon any day the cumulative net effect of such transactions
upon the Fund is negative (the Fund determines there is a Fund
loss resulting from NSC' error) and the per share NAV error is
less than1/2of 1% of the originally computed NAV, but greater than
one cent, NSC shall promptly make a payment to the Fund in cash or
through the use of a credit, in the manner described in paragraph
(iv) below, in such amount as may be necessary to reimburse the
Fund for the net loss; and if the per share NAV error equals or
exceeds1/2of 1% of the originally computed per share NAV, and is
greater than one cent, NSC shall make account adjustments
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or take such other action as is necessary to compensate
shareholders for shareholder losses and reimburse the Fund for
the amount of Fund losses.
(iii) If on the last business day of any month the cumulative net effect
upon the Fund (adjusted by the amount of all prior payments and
credits by NSC and the Fund) is negative, the Fund shall be
entitled to a reduction in the fee next payable under the
Agreement by an equivalent amount, except as provided in paragraph
(iv) 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 NSC and the Fund) is positive, NSC
shall be entitled to recover certain past payments and reductions
in fees, and to credit against ail future payments and fee
reductions that may be required under the Agreement as herein
described in paragraph (iv) below.
(iv) At the end of each month, any positive cumulative net effect upon
the Fund shall be deemed to be a credit to NSC which shall first
be applied to permit NSC to recover any prior cash payments and
fee reductions made by it to the Fund under paragraphs (ii) and
(iii) above during the calendar year, by increasing the amount of
the monthly fee under the Agreement next payable in an amount
equal to prior payments and fee reductions made by NSC during such
calendar year, but not exceeding the sum of that month's credit
and credits arising in prior months during such calendar year to
the extent such prior credits have not previously been utilized as
contemplated by this paragraph. Any portion of a credit to NSC 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 cash payment or fee reduction to be
made to the Fund pursuant to paragraphs (ii) or (iii) above
(regardless of whether or not the credit or any portion thereof
arose in the same calendar year as that in which the negative
cumulative net effects or any portion thereof arose).
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(v) NSC shall supply to the Fund from time to time, as mutually agreed
upon, reports summarizing the transactions identified pursuant to
paragraph (i) above, and the daily and cumulative net effects of
such transactions, and shall advise the Fund at the end of each
month of the net cumulative effect at such time. NSC shall
promptly advise the Fund if at any time the cumulative net effect
exceeds a dollar amount equivalent to one cent per share.
(vi) In the event that this Agreement is terminated for whatever cause,
or this provision 1.02(c) is terminated pursuant to paragraph
(vii) below, the Fund shall promptly pay to NSC 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, NSC shall promptly pay to the Fund an amount in cash
equal to the amount of such cumulative net effect.
(vii) This provision 1.02(c) of the Agreement may be terminated by NSC
at any time without cause, effective as of the close of business
on the date written notice (which may be by facsimile) is received
by the Fund.
Procedures applicable to certain of these services may be established from
time to time by agreement between the Fund and NSC.
Article 2 Fees and Expenses
2.01. For performance by NSC pursuant to this Agreement, the Fund agrees to
pay NSC an annual maintenance fee for each Shareholder account as set out in the
fee schedule attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 2.02 below may be changed from time to time by mutual
written agreement between the Fund and NSC.
2.02. In addition to the fee paid under Section 2.01 above, the Fund agrees
to reimburse NSC for reasonable out-of-pocket expenses or advances incurred by
NSC for the items set out in the fee schedule attached hereto. In addition, any
other expenses incurred by NSC at the request or with the consent of the Fund,
will be reimbursed by the Fund.
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2.03. The Fund agrees to pay all fees and reimbursable expenses promptly;
the terms, method and procedures for which are detailed on the attached fee
schedule.
Article 3 Representations and Warranties of NSC
NSC represents and warrants to the Fund that:
3.01. It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Delaware.
3.02. It has the legal power and authority to carry on its business in the
State of New Jersey.
3.03. It is empowered under applicable laws and by its operating agreement
and by-laws to enter into and perform this Agreement.
3.04. All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05. It is duly registered as transfer agent under Section 17A of the
Securities Exchange Act of 1934, as amended (the "Act").
3.06. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to NSC that:
4.01. It is a business trust duly organized and existing under the laws of
Delaware.
4.02. It is empowered under applicable laws and by its Certificate of
Trust, Declaration of Trust and By-Laws to enter into and perform this
Agreement.
4.03. All corporate proceedings required by said Certificate of Trust,
Declaration of Trust and By-Laws have been taken to authorize it to enter into
and perform this Agreement.
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4.04. It is an investment company registered under the Investment Company
Act of 1940, as amended.
4.05. A registration statement under the Securities Act of 1933 has been
filed, and appropriate state securities law filings have been made and will
continue to be made, with respect to all Shares of the Fund being offered for
sale. The Fund shall notify NSC when such registration statement shall have been
amended to include additional series of the Fund and shall notify NSC if such
registration statement or any state securities registration or qualification has
been terminated or a stop order has been entered with respect to the Shares.
Article 5 Indemnification
5.01. .NSC shall not be responsible for, and the Fund shall indemnify and
hold NSC 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 NSC 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 refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith,
negligence or willful misconduct or which arise out of the breach of
any representation or warranty of the Fund hereunder.
(c) The reliance on or use by NSC or its agents or subcontractors of
information, records and documents which (i) are received by NSC or
its agents or subcontractors and furnished to it by or on behalf of
the Fund, and (ii) have been prepared and/or maintained by the Fund or
any other person or firm (except NSC or its agents) on behalf of the
Fund.
(d) The reliance on or the carrying out by NSC or its agents or
subcontractors of any written instructions or requests of reasonably
believed by NSC in good faith to be given by an authorized person of
the Fund.
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(e) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations, or the securities laws or
regulations of any state that such Shares be registered in such state,
or in violation of any stop order or other determination or ruling by
any federal agency or any state with respect to the offer or sale of
such Shares in such state, unless such violation is the result of
NSC's negligent or willful failure to comply with the provisions of
Section 1.02(b) of this Agreement unless the Fund shall have provided
three days written notice to NSC not to accept purchases in any state.
5.02. NSC shall indemnify and hold the Fund harmless from any losses,
damages, costs or expenses that arise out of NSC's refusal or failure to comply
with the terms of this Agreement, or which arise out of NSC's negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of NSC hereunder or which arise out of such refusal or failure,
negligence or willful misconduct or breach by NSC's agents or subcontractors.
5.03. At any time NSC may apply to any officer of the Fund for
instructions, and may consult with legal counsel of the Fund with respect to any
matter arising in connection with the services to be performed by NSC under this
Agreement, and NSC and its agents or subcontractors shall not be liable and
shall be indemnified by the Fund for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. NSC, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Fund, 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 NSC or its agents
or subcontractors by telephone, in person, machine readable input, telex, CRT
data entry or other similar means authorized by the Fund, and shall not be held
to have notice of any change of authority of any person, until receipt of
written notice thereof from the Fund. NSC, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual of facsimile signatures of the
officer or officers of the Fund, and the proper countersignature of any former
transfer agent or registrar, or of a co-transfer agent or co-registrar.
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5.04. In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes. Notwithstanding the above, NSC shall not be excused from liability
in the event any telecommunications, power or equipment (of NSC, its agents or
subcontractors) failures could have been avoided or minimized by such parties
having maintained adequate industry standard backup systems and/or plan and a
disaster recovery plan.
5.05. Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or for any act
or failure to act hereunder.
5.06. In order that the indemnification provisions contained in this
Article 5 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. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 6 Covenants of the Fund and NSC
6.01. The Fund shall promptly furnish to NSC the following:
(a) A certified copy of the resolution of the Trustees of the Fund
authorizing the appointment of NSC and the execution and delivery of
this Agreement.
(b) A copy of the Certificate of Trust, Declaration of Trust and By-Laws
of the Fund and all amendments thereto.
6.02. NSC hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Fund for safekeeping of stock certificates, check
forms and facsimile signature
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imprinting devices, if any; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
6.03. NSC 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 Act and the Rules thereunder, NSC agrees that all
such records, and those records that the Fund and NSC agree from time to time to
be the records of the Fund, will be preserved, maintained at the expense of the
Fund and made available in accordance with such Section and Rules and this
Agreement, and will be surrendered promptly to the Fund at its request. Records
surrendered hereunder shall be in machine readable form, except to the extent
that NSC has maintained such a record only in paper form.
6.04. NSC and the Fund 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.
6.05. In case of any requests or demands for the inspection of the
Shareholder records of the Fund, NSC will endeavor to notify the Fund and to
secure instructions from an authorized officer of the Fund as to such
instruction. NSC reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by counsel to the Fund that it may be held
liable for the failure to exhibit the Shareholder records to such person.
6.06. NSC agrees to maintain redundant facilities or a compatible
configuration and to backup the Fund's master and input files and to store such
files in a secure off premises location so that in the event of a power failure
or other interruption of whatever cause at its principal place of business, the
Fund's records are maintained intact, and transactions can be processed at
another location.
6.07. NSC acknowledges that the Fund, as a registered investment company
under the Act is subject to the provisions of the Act and the rules and
regulations thereunder, and that the offer and sale of the Fund's Shares are
subject to the provisions of federal and state laws and regulations applicable
to the offer and sale of securities. The Fund acknowledges that NSC is
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not responsible for the Fund's compliance with such laws and regulations. If the
Fund advises NSC that a procedure of NSC related to the discharge of its
obligations hereunder has or may have the effect of causing the Fund to violate
any of such laws or regulations, NSC shall use its best efforts to develop an
alternative procedure which does not have such effect.
Article 7 Insurance
7.01. NSC shall maintain insurance of the types and in the amounts required
by the State of New Jersey. To the extent that policies of insurance may provide
for coverage of claims for liability or indemnity by the parties set forth in
this Agreement, the contracts of insurance shall take precedence, and no
provision of this Agreement shall be construed to relieve an insurer of any
obligation to pay claims to the Fund, NSC or other insured party which would
otherwise be a covered claim in the absence of any provision of this Agreement.
7.02. NSC shall notify the Fund should its insurance coverage with respect
to professional liability or errors and omissions coverage be canceled or
reduced. Such notification shall include the date of change and the reasons
therefor. NSC shall notify the Fund of any material claims against it with
respect to services performed under this Agreement, whether or not they may be
covered by insurance, and shall notify the Fund from time to time as may be
appropriate of the total outstanding claims made by NSC under its insurance
coverage.
Article 8 Termination of Agreement
8.01. This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
8.02. Should the Fund 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 Fund. Additionally, NSC reserves the right to charge for
any other reasonable expenses associated with such termination and/or a charge
equivalent to the average of the most recent three (3) months' fees.
Article 9 Additional Funds
9.01. In the event that the Fund establishes one or more series or classes
of Shares in addition to the existing series or classes with respect to which it
desires to have NSC render
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services as transfer agent under the terms hereof, it shall so notify NSC in
writing, and unless NSC objects in writing to providing such services, the term
"Fund" hereunder, unless the context otherwise requires, shall be deemed to
include such series of Shares.
Article 10 Assignment
10.01. Except as provided in Section 10.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
10.02. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
10.03. NSC , may, at its own expense and without further consent on the
part of the Fund, subcontract for the performance hereof with (i) Boston
Financial Data Services, Inc., a Massachusetts corporation ("BFDS") which is
duly registered as a transfer agent or (ii) any affiliate of NSC or BFDS
provided, however, that NSC shall be as fully responsible to the Fund for the
acts and omissions of any subcontractor as it is for its own acts and omissions.
Article 11 Amendment
11.01. This Agreement may be amended or modified by a written agreement
executed by both parties.
Article 12 New York Law to Apply
12.01. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New York.
Article 13 Merger of Agreement
13.01. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers as of the day and year first above written.
NYLIM INSTITUTIONAL FUNDS
BY:
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Name: ▇▇▇▇▇ ▇▇▇
Title: President
ATTEST:
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Secretary
NYLIM SERVICE COMPANY LLC
BY:
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Name:
Title: President
ATTEST:
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Secretary
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TRANSFER AGENCY AND SERVICE AGREEMENT
Between
NYLIM INSTITUTIONAL FUNDS and
NYLIM SERVICE COMPANY LLC
FEE SCHEDULE
1) Maintenance and Transaction Charges - Billable monthly
A) Per Account Annual Fee:
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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
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NYLIM Institutional Prime Cash Fund
NYLIM Institutional U.S. Government Cash Fund
NYLIM Institutional Treasury Cash Fund
B) Fund Minimum (Cusip/Class/Fund)
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$1,000 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
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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, NYLIM Institutional Funds and NYLIM Service Company
LLC 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.
NYLIM INSTITUTIONAL FUNDS NYLIM SERVICE COMPANY LLC
NAME: NAME:
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TITLE: TITLE:
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DATE: DATE:
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