EXHIBIT 28(H)(2)
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TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
LINCOLN ADVISORS TRUST, ON BEHALF OF ITS INVESTMENT
PORTFOLIOS, INDIVIDUALLY AND NOT JOINTLY,
AS LISTED ON SCHEDULE A
AND
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties...................... 1
2. [Reserved]........................................... 4
3. Fees and Expenses.................................... 4
4. Representations and Warranties of the Transfer Agent. 6
5. Representations and Warranties of the Trust.......... 7
6. Wire Transfer Operating Guidelines................... 7
7. Data Access and Proprietary Information.............. 8
8. Indemnification...................................... 10
9. Standard of Care..................................... 12
10. Confidentiality...................................... 13
11. Covenants of the Funds and the Transfer Agent........ 14
12. Termination of Agreement............................. 15
13. Assignment and Third Party Beneficiaries............. 19
14. Subcontractors....................................... 19
15. Changes and Modifications............................ 20
16. Miscellaneous........................................ 21
17. Additional Portfolios/Funds.......................... 22
Schedule A Portfolios
Schedule 3.1 Fees and Expenses
TRANSFER AGENCY AND SERVICE AGREEMENT
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THIS AGREEMENT made as of the day of November 2011, by and between LINCOLN
ADVISORS TRUST (the "Trust") on behalf of each of its investment portfolios,
individually and not jointly, listed on Schedule A, having their principal
office and place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (collectively, the "Funds" and individually, a "Fund") and BOSTON
FINANCIAL DATA SERVICES, INC., a Massachusetts corporation having its principal
office and place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ (the "Transfer Agent").
WHEREAS, Lincoln National Life Insurance Company (including its affiliates,
"Lincoln") has contracted with an affiliated company of the Transfer Agent, DST
Retirement Solutions, LLC ("DST RS"), as of September 1, 2010, with respect to
use of the DST Systems, Inc. TRAC record-keeping system to support its
retirement plan services business;
WHEREAS, in connection with Lincoln's retirement plan services business, the
Trust desires to offer the Funds listed in Schedule A hereto to Lincoln
customers who sponsor employer sponsored retirement plans or who are owners of
individual retirement accounts qualified under applicable sections of the
Internal Revenue Code of 1986, as amended (the "Code"), ("collectively "Plans")
that are administered by Lincoln;
WHEREAS, the Trust is a Delaware statutory trust and registered with the
Securities and Exchange Commission as an investment company pursuant to the
Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, it is contemplated that additional Funds may become parties to this
Agreement by written amendment to Schedule A from time to time; and
WHEREAS, the Trust, on behalf of the Funds, desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent and agent in connection
with certain other activities, and the Transfer Agent desires to accept such
appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
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1.1Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Trust, on behalf of each Fund, hereby employs and
appoints the Transfer Agent to act as, and the Transfer Agent agrees to
act as, its transfer agent for each Fund's authorized and issued shares
of beneficial interest ("Shares") and dividend disbursing agent and
agent in connection with the omnibus accounts established in each Fund
by the Plans ("Plan Accounts"), all as described in the currently
effective prospectus and statement of additional information
("prospectus") of each Fund. In accordance with procedures established
from time to time by agreement between the Transfer Agent and each of
the Funds (the "Procedures")
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with such changes or deviations there from as have been (or may from
time to time be) agreed upon in writing by the parties, the Transfer
Agent agrees that it will perform the following services:
(a) Establish each Plan Account in a Fund on the Transfer Agent's
recordkeeping system and maintain such account for the benefit of such
Plan in accordance with the Procedures;
(b) Maintain Plan Accounts on its records in the name of the trustee or
custodian of each Plan, as the case may be, for the benefit of the Plans;
(c) Receive for acceptance and process orders for the purchase of Shares
by Plan Account, and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Fund authorized pursuant
to the organizational documents of the Fund (the "Custodian");
(d) Pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Plan accounts;
(e) Receive for acceptance and process redemption requests and
redemption directions and deliver the appropriate documentation thereof
to the Custodian;
(f) At the appropriate time as and when it receives monies paid to it by
the Custodian with respect to any redemption, pay over or cause to be
paid over in the appropriate manner such monies as instructed by the
redeeming authorized Plan Account owners;
(g) Effect transfers of Shares by the authorized Plan Account owners
thereof upon receipt of appropriate instructions;
(h) Prepare and transmit payments for dividends and distributions
declared by each Fund;
(i) Issue replacement checks and place stop orders on original checks
based on Plan Account owner representations that a check with respect to
a Plan closing was not received or was lost. Such stop orders and
replacements will be deemed to have been made at the request of the
Fund, and, as between the Fund and the Transfer Agent, the Fund shall be
responsible for all losses or claims resulting from such replacement;
(j) Record the issuance of Shares by Plan and maintain pursuant to SEC
Rule 17Ad-10(e) a record of the total number of Shares of a Fund which
are authorized, based upon data provided to it by the Fund, and issued
and outstanding, but shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such Shares,
which functions shall be the sole responsibility of the Fund;
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(k) Accept any information, records, documents, data, transaction
requests by machine readable input, facsimile, CRT data entry and
electronic instructions, including e-mail communications, which have
been prepared, maintained or provided by the Fund or on behalf of Plan
Account owners. With respect to transaction requests received in the
foregoing manner, the Transfer Agent shall not be responsible for
determining that the original source documentation is in good order.
E-mail exchanges on routine matters may be made directly with the Fund's
contact at the Transfer Agent;
(l) Maintain and manage, as agent for the Fund, such bank accounts as
the Transfer Agent shall deem necessary for the performance of its
duties under this Agreement, including but not limited to, the
processing of Share purchases and redemptions and the payment of Fund
dividends and distributions. The Transfer Agent may maintain such
accounts at the bank or banks deemed appropriate by the Transfer Agent.
In connection with the recordkeeping and other services provided to the
Funds hereunder, the Transfer Agent may receive compensation for the
management of such accounts and such compensation may be calculated
based upon the average balances of such accounts; and
(m) Perform all services under Section 1.1 as transfer agent of the
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Funds and not as a record-keeper for the Plans;
1.2Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraphs, the
Transfer Agent shall perform the following services:
(a) Control Book (also known as "Super Sheet"). Maintain a daily record
and produce a daily report for Fund transactions and receipts and
disbursements of money and securities and deliver a copy of such report
to the Fund for each business day no later than 9:00 AM Eastern Time, or
such earlier time as the Fund may reasonably require, on the next
business day;
(b) "Blue Sky" Reporting. The Fund or its administrator shall identify
to the Transfer Agent in writing the states and countries where the
Shares of the Fund are registered or exempt, and the number of Shares
registered for sale with respect to each state or country, as
applicable. The Transfer Agent shall establish the foregoing parameters
on the system for the designated Blue Sky vendor. The Fund or its
administrator shall verify that such parameters have been correctly
established for each state or country on the system prior to activation
and thereafter shall be responsible for monitoring the daily activity
for each state or country. The responsibility of the Transfer Agent for
the Fund's blue sky registration status is solely limited to the initial
establishment of the parameters provided by the Fund or the
administrator for the vendor's system and the daily transmission of a
file to such vendor in order that the vendor may provide reports to the
Fund or the administrator for monitoring.
(c) Performance of Certain Services by the Fund or Affiliates or Agents.
New procedures as to who shall provide certain of these services may be
established in writing from time
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to time by agreement between the Fund and the Transfer Agent. The
Transfer Agent may at times perform only a portion of these services and
the Fund or its agent may perform these services on the Fund's behalf.
1.3Site Visits and Inspections; Regulatory Examinations. During the term of
this Agreement, authorized representatives of the Fund may conduct
periodic site visits of the Transfer Agent's facilities and inspect the
Transfer Agent's records and procedures solely as they pertain to the
Transfer Agent's services for the Fund under or pursuant to this
Agreement. Such inspections shall be conducted at the Fund's expense
(which shall include costs related to providing materials, copying,
faxing, retrieving stored materials, and similar expenses) and shall
occur during the Transfer Agent's regular business hours and, except as
otherwise agreed to by the parties, no more frequently than twice a
year. In connection with such site visit and/or inspection, the Fund
shall not attempt to access, nor will it review, the records of any
other clients of the Transfer Agent and the Fund shall conduct the
visit/inspection in a manner that will not interfere with the Transfer
Agent's normal and customary conduct of its business activities,
including the provision of services to the Fund and to other clients.
The Transfer Agent shall have the right to immediately require the
removal of any Fund representatives from its premises in the event that
their actions, in the reasonable opinion of the Transfer Agent,
jeopardize the information security of its systems and/or other client
data or otherwise are disruptive to the business of the Transfer Agent.
The Transfer Agent may require any persons seeking access to its
facilities to provide reasonable evidence of their authority. The
Transfer Agent may also reasonably require any of the Fund's
representatives to execute a confidentiality agreement before granting
such individuals access to its facilities. The Transfer Agent will also
provide reasonable access to the Fund's governmental regulators, at the
Fund's expense, solely to (i) the Fund's records held by the Transfer
Agent, (ii) the policies and procedures of the Transfer Agent directly
related to its provision of services to the Fund under the Agreement,
and (iii) any other records directly and solely relating to the Transfer
Agent's services to the Fund.
1.4Tax-related support. The parties agree that to the extent that the
Transfer Agent provides any services under this Agreement that relate to
compliance by the Fund with the Code or any other tax law, the Transfer
Agent will not make any judgments or exercise any discretion. The
Transfer Agent's responsibilities hereunder shall not extend to or
include duties and responsibilities of a "tax return preparer" as
defined in the Code. The Trust will provide comprehensive instructions
to the Transfer Agent in connection with the services and shall promptly
respond to requests for direction from the Transfer Agent regarding IRS
notices and other requests.
2. [Reserved]
3. Fees and Expenses
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3.1Fee Schedule. For the performance by the Transfer Agent pursuant to this
Agreement,
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the Fund agrees to pay the Transfer Agent the fees and expenses as set
forth in the attached fee schedule ("Schedule 3.1"). Such fees and
reimbursable expenses and advances identified under Section 3.2 below
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may be changed from time to time subject to mutual written agreement
between the Fund and the Transfer Agent. The parties agree that the fees
set forth on Schedule 3.1 shall apply with respect to the Funds set
forth on Schedule A hereto as of the date hereof and to any newly
created funds added to this Agreement under Section 17 that have
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requirements consistent with services then being provided by the
Transfer Agent under this Agreement. The fees set forth on Schedule 3.1,
however, shall not automatically apply to any funds resulting from
acquisition or merger subsequent to the execution of this Agreement. In
the event that a fund is to become a party to this Agreement as the
result of an acquisition or merger then the parties shall confer
diligently and in good faith, and agree upon fees applicable to such
fund.
3.2Reimbursable Expenses. In addition to the fees paid under Section 3.1
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above, the Fund agrees to reimburse the Transfer Agent for out of pocket
expenses, including but not limited to: freight, postage, long distance
telephone calls, record retention, customized programming/enhancements,
federal wire fees, transcripts, hardware at the Fund's facility,
telecommunications/network configuration and other expenses incurred at
the specific direction of the Fund or with advance written notice to the
Fund.
3.3Increases. The fees and charges set forth on Schedule 3.1 shall increase
or may be increased (i) in accordance with Section 3.6 below; (ii) upon
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at least ninety (90) days prior written notice, if changes in laws
applicable to its transfer agency business or laws applicable to the
Fund, which the Transfer Agent has agreed to abide by and implement
increases the Transfer Agent's ongoing costs to provide the affected
service or function by five percent (5%) or more; or (iii) in connection
with new or additional services, or new or additional functions,
features or modes of operation of the TA2000 system. If the Transfer
Agent notifies the Fund of an increase in fees or charges pursuant to
subparagraph (ii) of this Section 3.3, the parties shall confer,
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diligently and in good faith and agree upon a new fee or charges to
cover the amount necessary, but not more than such amount, to reimburse
the Transfer Agent for the increased costs of operation or new fund
features. If the Transfer Agent notified the Fund of an increase in fees
under subparagraph (iii) of this Section 3.3, the parties shall confer,
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diligently and in good faith, and agree upon a new fee to cover such new
fund feature.
3.4Postage. Postage for mailing of dividends, Fund reports and other
mailings to all shareholder accounts shall be advanced to the Transfer
Agent by the Fund at least seven (7) days prior to the mailing date of
such materials.
3.5Invoices. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective invoice,
except for any fees or expenses that are subject to good faith dispute.
In the event of such a dispute, the Fund may only withhold that portion
of the fee or expense subject to the good faith dispute. The Fund shall
notify the Transfer Agent in writing within twenty-one (21) calendar
days following the receipt of each invoice if the Fund is disputing any
amounts in good faith. If the Fund
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does not provide such notice of dispute within the required time, the
invoice will be deemed accepted by the Fund. The Fund shall settle such
disputed amounts within five (5) days of the day on which the parties
agree on the amount to be paid by payment of the agreed amount. If no
agreement is reached, then such disputed amounts shall be settled as may
be required by law or legal process.
3.6Cost of Living Adjustment. After the third year of the Initial Term, the
total fee for all services for each succeeding year shall equal the fee
that would be charged for the same services based on a fee rate (as
reflected in a fee rate schedule) increased by the percentage increase
for the twelve-month period of such previous calendar year of the CPI-W
(defined below), or, in the event that publication of such Index is
terminated, any successor or substitute index, appropriately adjusted,
acceptable to both parties. As used herein, "CPI-W" shall mean the
Consumer Price Index for Urban Wage Earners and Clerical Workers for
Boston-Brockton-Nashua, MA-NH-ME-CT, (Base Period: 1982-84 = 100), as
published by the United States Department of Labor, Bureau of Labor
Statistics.
3.7Late Payments. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due, the Fund
shall pay the Transfer Agent interest thereon (from the due date to the
date of payment) at a per annum rate equal to one percent (1.0%) plus
the Prime Rate (that is, the base rate on corporate loans posted by
large domestic banks) published by The Wall Street Journal (or, in the
event such rate is not so published, a reasonably equivalent published
rate selected by the Transfer Agent) on the first day of publication
during the month when such amount was due. Notwithstanding any other
provision hereof, such interest rate shall be no greater than permitted
under applicable provisions of Massachusetts law.
4. Representations and Warranties of the Transfer Agent
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The Transfer Agent represents and warrants to the Trust that:
4.1It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2It is duly registered as a transfer agent under Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and it
will remain so registered for the duration of this Agreement. It will
promptly notify the Fund in the event of any material change in its
status as a registered transfer agent.
4.3It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.4It is empowered under applicable laws and by its Articles of
Organization and By-Laws to enter into and perform the services
contemplated in this Agreement.
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4.5All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.6It 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 Trust.
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The Trust represents and warrants to the Transfer Agent that:
5.1It is a trust duly organized and existing and in good standing under the
laws of the State of Delaware.
5.2It is empowered under applicable laws and by its organizational
documents to enter into and perform this Agreement.
5.3All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
5.4The Trust is an open-end investment company registered under the 1940
Act and each of the Funds is an investment portfolio of the Trust.
5.5A registration statement under the Securities Act of 1933, as amended,
for the Trust relating to 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 being
offered for sale by the Funds.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code
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6.1Obligation of Sender. The Transfer Agent is authorized to promptly debit
the appropriate Fund account(s) upon the receipt of a payment order in
compliance with the selected security procedure (the "Security
Procedure") chosen for funds transfer and in the amount of money that
the Transfer Agent has been instructed to transfer. The Transfer Agent
shall execute payment orders in compliance with the Security Procedure
and with the Fund instructions on the execution date provided that such
payment order is received by the customary deadline for processing such
a request, unless the payment order specifies a later time. All payment
orders and communications received after the customary deadline will be
deemed to have been received the next business day.
6.2Security Procedure. The Fund acknowledges that the Security Procedure it
has designated on the Selection Form was selected by the Fund from
security procedures offered by the Transfer Agent. The Fund shall
restrict access to confidential information relating to the Security
Procedure to authorized persons as communicated to the Transfer
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Agent in writing. The Fund must notify the Transfer Agent immediately if
it has reason to believe unauthorized persons may have obtained access
to such information or of any change in the Fund's authorized personnel.
The Transfer Agent shall verify the authenticity of all Fund
instructions according to the Security Procedure.
6.3Account Numbers. The Transfer Agent shall process all payment orders on
the basis of the account number contained in the payment order. In the
event of a discrepancy between any name indicated on the payment order
and the account number, the account number shall take precedence and
govern.
6.4Rejection. The Transfer Agent reserves the right to decline to process
or delay the processing of a payment order which (a) is in excess of the
collected balance in the account to be charged at the time of the
Transfer Agent's receipt of such payment order; (b) if initiating such
payment order would cause the Transfer Agent, in the Transfer Agent's
sole judgment, to exceed any volume, aggregate dollar, network, time,
credit or similar limits which are applicable to the Transfer Agent; or
(c) if the Transfer Agent, in good faith, is unable to satisfy itself
that the transaction has been properly authorized.
6.5Cancellation/Amendment. The Transfer Agent shall use reasonable efforts
to act on all authorized requests to cancel or amend payment orders
received in compliance with the Security Procedure provided that such
requests are received in a timely manner affording the Transfer Agent
reasonable opportunity to act. However, the Transfer Agent assumes no
liability if the request for amendment or cancellation cannot reasonably
be satisfied.
6.6Errors. The Transfer Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the
Transfer Agent complies with the Security Procedure. The Security
Procedure is established for the purpose of authenticating payment
orders only and not for the detection of errors in payment orders.
6.7Interest. The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any unauthorized
payment order, unless the Transfer Agent is notified of the unauthorized
payment order within thirty (30) days of notification by the Transfer
Agent of the acceptance of such payment order.
6.8Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours notice
of which may be delivered through the Transfer Agent's proprietary
information systems, or by facsimile or call-back. Fund must report any
objections to the execution of an order within thirty (30) days.
7. Data Access and Proprietary Information
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7.1The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund
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by the Transfer Agent as part of the Fund 's ability to access certain
Fund-related data maintained by the Transfer Agent on databases under
the control and ownership of the Transfer Agent or other third party
("Data Access Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of
substantial value to the Transfer Agent or other third party. The Fund
agrees to treat all Proprietary Information as proprietary to the
Transfer Agent and further agrees that it shall not divulge any
Proprietary Information to any person or organization except as may be
provided hereunder. Without limiting the foregoing, the Fund agrees for
itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's computers,
(ii) solely from equipment at the location agreed to between the Fund
and the Transfer Agent and (iii) solely in accordance with the Transfer
Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)), the
Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained,
to inform the Transfer Agent in a timely manner of such fact and dispose
of such information in accordance with the Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's computer to be retransmitted to
any other computer or other device except as expressly permitted by the
Transfer Agent (such permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized transactions
as agreed to between the Fund and the Transfer Agent; and
(f) Honor all reasonable written requests made by the Transfer Agent to
protect at the Transfer Agent's expense the rights of the Transfer Agent
in Proprietary Information at common law, under federal copyright law
and under other federal or state law.
7.2Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by a
written release by the Transfer Agent; or (iii) are already in the
possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement.
7.3The Fund acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest of
the Transfer Agent and that the disclosure of such Proprietary
Information in breach of this Agreement would cause the Transfer Agent
immediate, substantial and irreparable harm, the value of which would be
extremely difficult to determine. Accordingly, the parties agree that,
in addition to any
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other remedies that may be available in law, equity, or otherwise for
the disclosure or use of the Proprietary Information in breach of this
Agreement, the Transfer Agent shall be entitled to seek and obtain a
temporary restraining order, injunctive relief, or other equitable
relief against the continuance of such breach.
7.4If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from
which the Transfer Agent may obtain certain data included in the Data
Access Services are solely responsible for the contents of such data and
the Fund agrees to make no claim against the Transfer Agent arising out
of the contents of such third-party data, including, but not limited to,
the accuracy thereof.
7.5If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to
(i) effect the transfer or movement of cash or Shares or (ii) transmit
Plan Account information or other information, then in such event the
Transfer Agent shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further inquiry
as long as such instruction is undertaken in conformity with security
procedures established by the Transfer Agent from time to time.
7.6Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 7. The obligations of this
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Section shall survive any earlier termination of this Agreement.
7.7DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE USED IN
CONNECTION WITH THE PERFORMANCE OF THE SERVICES UNDER THIS AGREEMENT ARE
PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY
DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnification
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8.1The Transfer Agent shall not be responsible for, and the Trust, on
behalf of each Fund, shall indemnify and hold the Transfer Agent, and
solely with respect to Section 8.1(e) herein, also State Street,
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harmless, from and against, any and all losses, damages, costs, charges,
counsel fees (including the defense of any lawsuit in which the Transfer
Agent or affiliate is a named party), payments, expenses and liability
arising directly out of or attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such
actions are taken in good faith and without negligence or willful
misconduct;
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(b)The Trust's lack of good faith, negligence or willful misconduct
which arise out of the breach of any of its obligations under this
Agreement, including any representation or warranty by the Trust
hereunder;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on and
in accordance with: (i) any information, records, documents, data, stock
certificates or services, which are received by the Transfer Agent or
its agents or subcontractors by machine readable input, facsimile, CRT
data entry, electronic instructions, or other similar means authorized
by the Fund, and which have been prepared, maintained or performed by
the Fund ; (ii) any instructions or requests of the Company or any of
its officers; (iii) any instructions or opinions of legal counsel with
respect to any matter arising in connection with the services to be
performed by the Transfer Agent under this Agreement which are provided
to the Transfer Agent by counsel to the Fund after consultation with
such legal counsel and upon which instructions or opinion the Transfer
Agent is expressly permitted to rely or opinions of legal counsel that
are obtained by the Transfer Agent; or (iv) any paper or document,
reasonably believed to be genuine, authentic, or signed by the proper
person or persons;
(d)The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered, or in violation of any stop order or other determination
or ruling by any federal or any state agency with respect to the
offer or sale of such Shares; or
(e) The negotiation and processing of any checks or wires including
without limitation for deposit into, or credit to, the Fund's demand
deposit accounts maintained by the Transfer Agent.
8.2To the extent that the Transfer Agent is not entitled to indemnification
pursuant to Section 8.1 above and only to the extent of such right, the
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Fund shall not be responsible for, and the Transfer Agent shall
indemnify and hold the Fund harmless from and against any losses,
damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising directly out of or attributable to any action or
failure of the Transfer Agent to act as a result of the Transfer Agent's
lack of good faith, negligence or willful misconduct in the performance
of its services hereunder. For those activities or actions delineated in
the Procedures, the Transfer Agent shall be presumed to have used
reasonable care, acted without negligence, and acted in good faith if it
has acted in accordance with the Procedures.
8.3In order that the indemnification provisions contained in this Section 8
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shall apply, upon the assertion of a claim for which one party may be
required to indemnify the other party, the indemnified party shall
promptly notify the indemnifying party of such assertion, and shall keep
the indemnifying party advised with respect to all developments
concerning such claim. The indemnifying party shall have the option to
participate with the indemnified
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party in the defense of such claim or to defend against said claim in
its own name or in the name of the indemnified party. The indemnified
party shall in no case confess any claim or make any compromise in any
case in which the indemnifying party may be required to indemnify the
indemnified party except with the indemnifying party's prior written
consent.
8.4As-of Adjustments.
(a) Notwithstanding anything herein to the contrary, with respect to "as
of" adjustments, the Transfer Agent will not assume one hundred percent
(100%) responsibility for losses resulting from "as ofs" due to clerical
errors or misinterpretations of shareholder instructions, but the
Transfer Agent will discuss with the Fund the Transfer Agent's accepting
liability for an "as of" on a case-by-case basis and, subject to the
limitation set forth in Section 9, will accept financial responsibility
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for a particular situation resulting in a financial loss to the Fund
where such loss is "material," as hereinafter defined, and, under the
particular facts at issue, the Transfer Agent's conduct was culpable and
the Transfer Agent's conduct is the sole cause of the loss. A loss is
"material" for purposes of this Section 8.4 when it results in a pricing
-----------
error on a particular transaction which equals or exceeds one full cent
($.01) per share times the number of shares outstanding or such other
amounts as may be adopted by applicable accounting or regulatory
authorities from time to time.
(b) If the net effect of the "as of" transactions that are determined to
be caused solely by the Transfer Agent is negative and exceeds the above
limit, then the Transfer Agent shall promptly contact the Fund
accountants. The Transfer Agent will work with the Fund accountants to
determine what, if any, impact the threshold break has on the Fund's Net
Asset Value and what, if any, further action is required. These further
actions may include but are not limited to, the Fund re-pricing the
affected day(s), the Transfer Agent re-processing, at its expense, all
affected transactions in the Fund that took place during the period or a
payment to the Fund. The Fund agrees to work in good faith with the
Transfer Agent and wherever possible, absent a regulatory prohibition or
other mutually agreed upon reason, the Fund agrees to re-price the
affected day(s) and to allow the Transfer Agent to re-process the
affected transactions. When such re-pricing and re-processing is not
possible, and when the Transfer Agent must contribute to the settlement
of a loss, the Transfer Agent's responsibility will commence with that
portion of the loss over $0.01 per share calculated on the basis of the
total value of all Shares owned by the affected Portfolio (i.e., on the
basis of the value of the Shares of the total Portfolio, including all
classes of that Portfolio, not just those of the affected class) and the
Transfer Agent will make such account adjustments and take such other
action as is necessary to compensate Shareholders for Shareholder losses
and reimburse the Fund for the amount of Fund losses in accordance with
the foregoing standards.
9. Standard of Care
----------------
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to ensure the accuracy of
all services performed under this
12
Agreement, but assumes no responsibility and shall not be liable for
loss or damage due to errors, including encoding and payment processing
errors, unless said errors are caused by its negligence, bad faith, or
willful misconduct or that of its employees or agents. The parties agree
that any encoding or payment processing errors shall be governed by this
standard of care and that Section 4-209 of the Uniform Commercial Code
is superseded by Section 9 of this Agreement. Notwithstanding the
---------
foregoing, the Transfer Agent's aggregate liability during the Term of
this Agreement with respect to, arising from or arising in connection
with this Agreement, or from all services provided or omitted to be
provided by the Transfer Agent under this Agreement for all of the Funds
subject to this Agreement, whether in contract, or in tort, or
otherwise, is limited to, and shall not exceed the aggregate of the
amounts actually received hereunder by the Transfer Agent as fees and
charges, but not including reimbursable expenses, for all of the Funds
covered by this Agreement during the twelve (12) calendar months
immediately preceding the first event for which recovery from the
Transfer Agent is being sought. The foregoing limitation on liability
shall not apply to any loss or damage resulting from fraud or any
intentional malicious acts or intentional malicious omissions by the
Transfer Agent's employees. For purposes of this Section 9, "intentional
---------
malicious acts or intentional malicious omissions" shall mean those acts
undertaken or omitted purposefully under the circumstances in which the
person knows that such acts or omissions violate this Agreement and are
likely to cause damage or harm to the Fund.
10.Confidentiality
---------------
10.1The Transfer Agent and the Fund agree that they will not, at any time
during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other
business organization, any Confidential Information (as defined below)
of the other party used or gained by the Transfer Agent or the Fund
during performance under this Agreement. The Fund and the Transfer Agent
further covenant and agree to retain all such Confidential Information
in trust for the sole benefit of the Transfer Agent or the Fund and
their successors and assigns. In the event of breach of the foregoing by
either party, the remedies provided by Section 7.3 shall be available to
-----------
the party whose Confidential Information is disclosed. The above
prohibition of disclosure shall not apply to the extent that the
Transfer Agent must disclose such Confidential Information to its
sub-contractor or Fund agent for purposes of providing services under
this Agreement.
10.2For purposes of this Agreement, Confidential Information shall mean:
(a) with respect to Confidential Information of a Fund: (i) , cost
figures and projections, profit figures and projections, all non-public
information, including but not limited to trade secrets, proprietary
information, and information about products, business methods and
business plans) relating to the business of the Fund, or any other
secret or confidential information whatsoever of the Fund; and (ii) all
information that the Fund is obligated by law to treat as confidential
for the benefit of third parties; and (b) with respect to the Transfer
Agent's Confidential Information: all non-public information, including
but not limited to trade secrets, proprietary information, and
information about products, business methods and
13
business plans, customer names and other information related to
customers, fee schedules, price lists, pricing policies, financial
information, discoveries, ideas, concepts, software in various stages of
development, designs, drawings, specifications, techniques, models,
data, source code, object code, documentation, diagrams, flow charts,
research, development, processes, procedures, "know-how," organizational
structure, user guides, marketing techniques and materials, marketing
and development plans, and data processing software and systems relating
to the Transfer Agent's business, operations or systems (or to the
business, systems or operations of the Transfer Agent's affiliates).
10.3The Transfer Agent will use the Confidential Information only in
compliance with (i) the provisions of this Agreement, (ii) its own
Privacy and Information Sharing Policy, as amended and updated from time
to time and (iii) federal and state privacy laws, including the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 (Public Law 106-102, 113 Stat. 1138)
("GLB Act") and the Massachusetts Standards for the Protection of
Personal Information, 201 CMR 17.00, et seq., ("Mass Privacy Act") as
such is applicable to its transfer agency business.
10.4In the event that any requests or demands are made for the inspection of
the Plan Account records of a Fund, the Transfer Agent will use
reasonable efforts to notify the Fund (except where prohibited by law)
and to secure instructions from an authorized officer of the Fund as to
such inspection. The Transfer Agent expressly reserves the right,
however, to exhibit Plan Account records to any person whenever it is
advised by counsel that it may be held liable for the failure to exhibit
the Plan Account records to such person or if required by law or court
order.
11.Covenants of the Fund and the Transfer Agent
--------------------------------------------
11.1The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Trustees or the
Board of Directors, as the case may be, of the Fund authorizing the
appointment of the Transfer Agent and the execution and delivery of this
Agreement; and
(b) A copy of the organizational documents of the Fund and all
amendments thereto.
11.2The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of,
check forms and facsimile signature imprinting devices, if any; and for
the preparation or use, and for keeping account of, such forms and
devices.
11.3Records. The Transfer Agent shall keep records relating to the services
to be performed hereunder, in the form, manner and for such periods, as
it may deem advisable and as may be required by the laws and regulations
applicable to its business as a Transfer Agent, including those set
forth in 17 CFR 240.17Ad-6 and 17 CFR 240.17Ad-7, as such regulations
may be amended from time to time. The Transfer Agent shall also maintain
customary records in connection with its agency for the Fund;
particularly those records
14
required to be maintained pursuant to subparagraph (2)(iv) of paragraph
(b) of Rule 31a-1 under the Investment Company Act of 1940. Records
maintained by the Transfer Agent on behalf of the Fund shall be made
available for reasonable examinations by the SEC upon reasonable request
and shall be maintained by the Transfer Agent for such period as
required by applicable law or until such earlier time as the Transfer
Agent has delivered such records into the Fund's possession or destroyed
them at the Fund's request.
11.4SSAE16 Reports. The Transfer Agent will furnish to the Fund, on a
semi-annual basis, a report in accordance with Statements on Standards
for Attestation Engagements No. 16 (the "SSAE Report") as well as such
other reports and information relating to the Transfer Agent's policies
and procedures and its compliance with such policies and procedures and
with the laws applicable to its business and its services, as the
parties may mutually agree upon.
11.5Information Security. The Transfer Agent maintains and will continue to
maintain at each service location physical and information security and
data protection safeguards against the destruction, loss, theft or
alteration of the Fund's Confidential Information, including Customer
Information, in the possession of the Transfer Agent that will be no
less rigorous than those in place at the effective date of this
Agreement, and from time to time enhanced in accordance with changes in
regulatory requirements. The Transfer Agent will, at a minimum, update
its policies to remain compliant with regulatory requirements, including
those under the GLB Act and the Mass Privacy Act, to the extent
applicable to its business. The Transfer Agent will meet with the Fund,
at its request, on an annual basis to discuss information security
safeguards. If the Transfer Agent or its agents discover or are notified
that someone has violated security relating to the Fund's Confidential
Information, including Customer Information, the Transfer Agent will
promptly (a) notify the Fund of such violation, and (b) if the
applicable Confidential Information was in the possession or under the
control of the Transfer Agent or its agents at the time of such
violation, the Transfer Agent will promptly (i) investigate, contain and
address the violation, and (ii) advise the Fund as to the steps being
taken that are reasonably designed to prevent future similar violations.
11.4Business Continuity. The Transfer Agent will maintain a comprehensive
business continuity plan and will provide an executive summary of such
plan upon reasonable request of the Fund. The Transfer Agent will test
the adequacy of its business continuity plan at least annually and upon
request, the Fund may participate in such test. Upon request by the
Fund, the Transfer Agent will provide the Fund with a letter assessing
the most recent business continuity test results. In the event of a
business disruption that materially impacts the Transfer Agent's
provision of services under this Agreement, the Transfer Agent will
promptly notify the Fund of the disruption and the steps being
implemented under the business continuity plan.
12.Termination of Agreement
------------------------
15
12.1Term. The initial term of this Agreement (the "Initial Term") shall be
five (5) years from the date first stated above (the "Initial Term").
This Agreement shall automatically extend for additional, successive one
(1) year terms (a "Renewal Term") unless terminated as of the end of the
Initial Term by the Fund on not less than twelve months written notice
to the Transfer Agent. Thereafter the Agreement shall continue for
successive Renewal Terms unless terminated by the Transfer Agent or the
Fund upon one hundred twenty (120) days before the expiration of such
Renewal Term. As used hereinafter, "Term" shall refer to the then
current duration during which this Agreement is in full force and
effect, including the Initial Term and the Renewal Term. In the event a
Fund wishes to terminate this Agreement as to a Fund prior to the
expiration of the Initial Term or the Renewal Term, the Fund shall give
the Transfer Agent at twelve (12) months prior written notice and shall
be subject to the terms of this Section, including the payments
applicable under Section 12.3. One hundred twenty (120) days before the
------------
expiration of the Initial Term or the Renewal Term, the Transfer Agent
and the Fund will agree upon a Fee Schedule for the Renewal Term. In the
event the parties fail to agree upon a new Fee Schedule as of such date,
the Fee Schedule set forth as Schedule 3.1 hereto shall remain in effect
subject to increase under Section 3.6. Notwithstanding the termination
-----------
or non-renewal of this Agreement, the terms and conditions of this
Agreement shall continue to apply until the completion of Deconversion
(defined below).
12.2Deconversion. In the event that this Agreement is terminated or not
renewed for any reason by the Fund, the Transfer Agent agrees that, in
order to provide for uninterrupted service to the Fund, the Transfer
Agent, at Fund's request, shall offer reasonable assistance to the Fund
in converting the Fund's records from the Transfer Agent's systems to
whatever services or systems are designated by the Fund (the
"Deconversion"). Such Deconversion is subject to the recompense of the
Transfer Agent for such assistance at its standard rates and fees in
effect at the time and to a reasonable time frame for performance as
agreed to by the parties. As used herein "reasonable assistance" shall
not include requiring the Transfer Agent (i) to assist any new service
or system provider to modify, to alter, to enhance, or to improve such
provider's system, or to provide any new functionality to such
provider's system, (ii) to disclose any protected information of the
Transfer Agent, including the Proprietary Information as defined in
Section 7.1, or (iii) to develop Deconversion software, to modify any of
-----------
the Transfer Agent's software, or to otherwise alter the format of the
data as maintained on any provider's systems.
12.3Termination or Non Renewal.
(a) Outstanding Fees and Charges. In the event of termination or
non-renewal of this Agreement, the Fund will promptly pay the Transfer
Agent all fees and charges for the services provided under this
Agreement (i) which have been accrued and remain unpaid as of the date
of such notice of termination or non-renewal; and (ii) which thereafter
accrue for the period through and including the date of the Fund's
Deconversion.
(b) Deconversion Costs. In the event of termination or non-renewal of
this Agreement, the
16
Fund shall pay the Transfer Agent for the Deconversion costs as noted in
Section 12.2.
------------
(c) Early Termination for Convenience. In addition to the foregoing, in
the event that (i) the Fund terminates this Agreement prior to the end
of the Initial Term or the Renewal Term other than due to the Transfer
Agent's bankruptcy under Section 12.6 or for cause under Section 12.7;
------------ ------------
or (ii) the Transfer Agent terminates this Agreement for cause under
Section 12.7, or due to the Funds' bankruptcy under Section 12.6 or due
------------ ------------
to unpaid invoices under Section 12.5, the Fund shall in each case pay
------------
the Transfer Agent an amount equal to the average monthly fee paid by
the Fund to the Transfer Agent under the Agreement multiplied by the
number of months remaining in the Initial or Renewal Term and calculated
as set forth on the then current Fee Schedule, on the date notice of
termination was given to the Transfer Agent.
(d) Post-Deconversion Support Fees. In the event of termination or
non-renewal of this Agreement, the Fund shall pay the Transfer Agent all
reasonable fees and expenses for providing any support services that the
Fund requests the Transfer Agent to provide post Deconversion, including
but not limited to tax reporting and open issue resolution.
The amounts set forth in paragraphs (a), (b) and (c) above, shall become due
and payable and shall be paid by the Fund on the business day immediately prior
to the Deconversion. The amounts set forth in (d) shall be invoiced as incurred
and paid promptly by the Fund upon receipt of such invoices.
12.4Confidential Information. Upon termination of this Agreement, each party
shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be retained
by such party under applicable laws or regulations.
12.5Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Fund to the Transfer
Agent being outstanding for more than ninety (90) days after receipt by
the Fund, except with respect to any amount subject to a good faith
dispute within the meaning of Section 3.5 of this Agreement.
-----------
12.6Bankruptcy. Either party hereto may terminate this Agreement by notice
to the other party, effective at any time specified therein, in the
event that (a) the other party ceases to carry on its business or (b) an
action is commenced by or against the other party under Title 11 of the
United States Code or a receiver, conservator or similar officer is
appointed for the other party and such suit, conservatorship or
receivership is not discharged within thirty (30) days.
12.7Cause. If either of the parties hereto becomes in default in the
performance of its duties or obligations hereunder and such default has
a material adverse effect on the other party, then the non-defaulting
party may give notice to the defaulting party specifying the nature of
the default in sufficient detail to permit the defaulting party to
identify and cure such default. If the defaulting party fails to cure
such default within sixty (60) days of receipt
17
of such notice, or within such other period of time as the parties may
agree is necessary for such cure, then the non-defaulting party may
terminate this Agreement upon notice of not less than five (5) days to
the defaulting party.
12.8In the event that the Fund terminates this Agreement prior to the end of
the Initial Term or the Renewal Term, other than by reason of the
Transfer Agent's bankruptcy under Section 12.6 or for cause under
------------
Section 12.7, then effective as of the first day of any month in which
------------
the Transfer Agent receives notice of such termination, all discounts of
fees and charges or fee concessions provided under this Agreement and
any related agreements shall cease and shall be recoverable
retroactively to the date such discount or fee concession was first
granted and the Fund shall return the amount of any such discounts and
fee concessions and thereafter pay full, undiscounted fees and charges
for the services.
18
12.9The parties agree that the effective date of any Deconversion as a
result of termination hereof shall not occur during the period from
December 15th through March 1st of any year to avoid adversely impacting
a year-end.
12.10Within thirty (30) days after completion of a Deconversion, the Funds
will give notice to the Transfer Agent containing reasonable
instructions regarding the disposition of tapes, data files, records,
original source documentation or other property belonging to the Fund
and then in the Transfer Agent's possession and shall make payment for
the Transfer Agent's reasonable costs to comply with such notice. If the
Fund fails to give that notice within thirty (30) days after termination
of this Agreement, then the Transfer Agent may dispose of such property
as it sees fit. The reasonable costs of any such disposition or of the
continued storage of such tapes, data files, records, original source
documentation or other properties shall be billed to, and within thirty
(30) days of receipt of such invoice paid by, the Fund. Failure to pay
such sums when due shall incur a late charge in accordance with
Section 3.7 of this Agreement. In no event shall the Transfer
-----------
Agent be required to keep archived versions of Fund records beyond the
requirements of law applicable to its transfer agency business and the
terms of this Section 12.10. In the event the Fund terminates this
-------------
Agreement and later re-engages the Transfer Agent for performance of
transfer agency services, the Fund agrees to pay the reasonable
administrative costs for recovery of any records that are still in the
Transfer Agent's possession.
13.Assignment and Third Party Beneficiaries
----------------------------------------
13.1Except as provided in Section 14.1 below, neither this Agreement nor any
------------
rights or obligations hereunder may be assigned by either party without
the written consent of the other party. Any attempt to do so in
violation of this Section shall be void. Unless specifically stated to
the contrary in any written consent to an assignment, no assignment will
release or discharge the assignor from any duty or responsibility under
this Agreement.
13.2Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Transfer Agent and the Fund, and the
duties and responsibilities undertaken pursuant to this Agreement shall
be for the sole and exclusive benefit of the Transfer Agent and the
Fund. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
13.3This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund. Other than as
provided in Section 14.1, neither party shall make any commitments with
------------
third parties that are binding on the other party without the other
party's prior written consent.
14.Subcontractors
--------------
19
14.1The Transfer Agent may, without further consent on the part of the
Funds, subcontract for the performance hereof with an affiliate of the
Transfer Agent which is duly registered as a transfer agent pursuant to
Section 17A(c)(2) of the 1934 Act or, with regard to print/mail
services, to DST Output, Inc., an affiliate of the Transfer Agent;
provided however, that the Transfer Agent shall be fully responsible to
the Funds for the acts and omissions of its affiliate as it is for its
own acts and omissions. The foregoing shall not be deemed to apply to
any direct contracts between the Fund and any affiliate of the Transfer
Agent as to which the Transfer Agent is not a party.
14.2For purposes of this Agreement, unaffiliated third parties such as, by
way of example and not limitation, Airborne Services, Federal Express,
United Parcel Service, the U.S. Mails, the NSCC and telecommunication
companies, shall not be deemed to be subcontractors of the Transfer
Agent.
15.Changes and Modifications
-------------------------
15.1During the term of this Agreement the Transfer Agent will use on behalf
of the Fund, without additional cost, all modifications, enhancements,
or changes which its affiliate DST Systems, Inc. may make to the TA2000
System in the normal course of its business and which are applicable to
functions and features offered by the Fund, unless substantially all
clients of the Transfer Agent are charged separately for such
modifications, enhancements or changes, including, without limitation,
substantial system revisions or modifications necessitated by changes in
existing laws, rules or regulations. The Fund agrees to pay the Transfer
Agent promptly for modifications and improvements which are charged for
separately at the rate provided for in the Transfer Agent's standard
pricing schedule which shall be identical for substantially all clients,
if a standard pricing schedule shall exist. If there is no standard
pricing schedule, the parties shall mutually agree upon the rates to be
charged.
15.2The Transfer Agent shall have the right, at any time and from time to
time, to alter and modify any systems, programs, procedures or
facilities used or employed in performing its duties and obligations
hereunder; provided that the Fund will be notified as promptly as
possible prior to implementation of such alterations and modifications
and that no such alteration or modification or deletion shall materially
adversely change or affect the operations and procedures of the Fund in
using or employing the TA2000 System or the Transfer Agent's facilities
hereunder or the reports to be generated by such system and facilities
hereunder, unless the Fund is given thirty (30) days prior notice to
allow the Fund to change its procedures and unless the Transfer Agent
provides the Fund with revised operating procedures and controls.
15.3All enhancements, improvements, changes, modifications or new features
added to the TA2000 System however developed or paid for shall be, and
shall remain, the confidential and exclusive property of, and
proprietary to, DST Systems, Inc., an affiliate of the Transfer Agent.
20
16.Miscellaneous
-------------
16.1Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Trustees or the Board of Directors, as the
case may be, of the Fund.
16.2Massachusetts 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.
16.3Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
acts of war or terrorism, strikes, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond
its control, such party shall not be liable for damages to the other for
any damages resulting from such failure to perform or otherwise from
such causes.
16.4Consequential Damages. Neither party to this Agreement shall be liable
to the other party for special, indirect or consequential damages under
any provision of this Agreement or for any special, indirect or
consequential damages arising out of any act or failure to act hereunder.
16.5Survival. All provisions regarding indemnification, warranty, liability,
and limits thereon, and confidentiality and/or protections of
proprietary rights and trade secrets shall survive the termination of
this Agreement.
16.6Severability. If any provision or provisions of this Agreement shall be
held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
16.7Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement
and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
16.8Waiver. No waiver by either party or any breach or default of any of the
covenants or conditions herein contained and performed by the other
party shall be construed as a waiver of any succeeding breach of the
same or of any other covenant or condition.
16.9Merger 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.
16.10Counterparts. 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.
21
16.11.Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other
similar process. The parties hereto each agree that any such
reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party
in the regular course of business, and that any enlargement, facsimile
or further reproduction shall likewise be admissible in evidence.
16.12Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a)If to the Transfer Agent, to:
Boston Financial Data Services, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b)If to the Funds, to:
Lincoln National Life Insurance Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile:
17.Additional Portfolios/ Funds
----------------------------
17.1Additional Portfolios. In the event that the Trust establishes one or
more series of Shares, in addition to those listed on the attached
Schedule A, with respect to which it desires to have the Transfer Agent
render services as transfer agent under the terms hereof, it shall so
notify the Transfer Agent in writing, and if the Transfer Agent agrees
in writing to provide such services, such series of Shares shall become
a Fund hereunder by the parties amending the Schedule A to include the
additional series.
17.2Additional Funds. In the event that an entity affiliated with the Trust,
in addition to the Funds listed on the Schedule A, desires to have the
Transfer Agent render services as transfer agent under the terms hereof
and the Transfer Agent agrees to provide such services, upon completion
of an amended Schedule A signed by all parties to the Agreement, such
entity shall become a Fund hereunder and any series thereof shall become
a Portfolio hereunder.
22
17.3Conditions re: Additional Funds/Portfolios. In the event that the
Transfer Agent is to become the transfer agent for new funds or
portfolios, the Transfer Agent shall add them to the TA2000 System upon
at least thirty (30) days' prior written notice to the Transfer Agent
provided that the requirements of such funds or portfolios are generally
consistent with services then being provided by the Transfer Agent under
this Agreement, in which case the fees and expenses for such additional
funds or portfolios shall be determined in accordance with Section 3.1.
-----------
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.
LINCOLN ADVISORS TRUST, acting on behalf
of each of its investment series, individually and
not jointly, as listed on Schedule A
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President and Chief Accounting Officer
As an Authorized Officer on behalf of the Trust
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Division Vice President
ATTEST:
--------------------
23
SCHEDULE A
FUNDS
-----
Presidential Protected Profile 2010 Fund
Presidential Protected Profile 2020 Fund
Presidential Protected Profile 2030 Fund
Presidential Protected Profile 2040 Fund
Presidential Protected Profile 2050 Fund
Schedule A-1
