SUB -TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT, dated as of October 1, 1999 between Xxxxx Xxxxxx
Private Trust Company ("Transfer Agent"), a New York corporation
having its principal place of business at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and FIRST DATA INVESTOR SERVICES GROUP,
INC. ("Investor Services Group"), a Massachusetts corporation with
principal offices at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000.
WITNESSETH
WHEREAS, Transfer Agent serves as transfer agent, dividend
disbursing agent and shareholder servicing agent for the
registered investment companies listed on Schedule A (as from time
to time amended) (each a "Fund" and collectively, the "Funds")
pursuant to Transfer Agency and Services Agreements between the
Transfer Agent and the Funds, as amended from time to time (the
"TA Agreements"); and
WHEREAS, pursuant to Article 4 ("Delegation of
Responsibilities") of the TA Agreements, the Transfer Agent wishes
to retain Investor Services Group to render certain shareholder
recordkeeping and accounting services and functions for the Funds
and Investor Services Group is willing to render such services;
NOW, THEREFORE, in consideration of the mutual covenants and
promises hereinafter set forth, Transfer Agent and Investor
Services Group agree as follows:
Article 1 Definitions
1.1 Whenever used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall have the
following meanings:
(a) "Articles of Incorporation" shall mean the
Articles of Incorporation, Declaration of Trust, or other
similar organizational document as the case may be, of a
Fund as the same may be amended from time to time.
(b) "Authorized Person" shall be deemed to include
(i) any authorized officer of a Fund or Transfer Agent; or
(ii) any person, whether or not such person is an officer or
employee of a Fund or Transfer Agent, duly authorized to
give Oral Instructions or Written Instructions on behalf of
the Fund or Transfer Agent as indicated in writing to
Investor Services Group from time to time.
(c) "Board Members" shall mean the Directors or
Trustees of the governing body of the Fund, as the case may
be.
(d) "Board of Directors" shall mean the Board of
Directors or Board of Trustees of the Fund, as the case may
be.
(e) "Commission" shall mean the Securities and
Exchange Commission.
(f) "Custodian" refers to any custodian or
subcustodian of securities and other property which a Fund
may from time to time deposit, or cause to be deposited or
held under the name or account of such a custodian pursuant
to a Custodian Agreement.
(g) "1934 Act" shall mean the Securities Exchange
Act of 1934 and the rules and regulations promulgated
thereunder, all as amended from time to time.
(h) "1940 Act" shall mean the Investment Company Act
of 1940 and the rules and regulations promulgated
thereunder, all as amended from time to time.
(i) "Oral Instructions" shall mean instructions,
other than Written Instructions, actually received by
Investor Services Group from a person reasonably believed by
Investor Services Group to be an Authorized Person;
(j) "Prospectus" shall mean the most recently dated
Fund Prospectus and Statement of Additional Information,
including any supplements thereto if any, which has become
effective under the Securities Act of 1933 and the 1940 Act.
(k) "Shares" refers collectively to such shares of
capital stock or beneficial interest, as the case may be, or
class thereof, of a Fund as may be issued from time to time.
(l) "Shareholder" shall mean a record owner of
Shares of a Fund.
(m) "Written Instructions" shall mean a written
communication signed by a person reasonably believed by
Investor Services Group to be an Authorized Person and
actually received by Investor Services Group. Written
Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile
of a manually executed original or other process.
Article 2 Appointment of Investor Services Group
2.1 Transfer Agent hereby appoints Investor Services Group
to render shareholder recordkeeping and accounting services and
functions to Transfer Agent with respect to the Funds and Investor
Services Group hereby accepts such appointment and agrees to
perform the duties hereinafter set forth.
Article 3 Duties of Investor Services Group
3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary
services of a transfer agent; acting as service agent in
connection with dividend and distribution functions; and for
performing shareholder account and administrative agent
functions in connection with the issuance, transfer and
redemption or repurchase (including coordination with the
Custodian) of Shares of each Fund, as more fully described
in the written schedule of Duties of Investor Services Group
annexed hereto as Schedule B and incorporated herein, and in
accordance with the terms of the Prospectus of each Fund,
applicable law and the procedures established from time to
time between Investor Services Group and Transfer Agent.
(b) Recording the issuance of Shares and maintaining
pursuant to Rule 17Ad-10(e) of the 1934 Act a record of the
total number of Shares of each Fund which are authorized,
based upon data provided to it by the Fund, and issued and
outstanding. Investor Services Group shall provide each
Fund on a regular basis with the total number of Shares
which are authorized and issued and outstanding and shall
have no obligation, when recording the issuance of Shares,
to monitor the issuance of such Shares or to take cognizance
of any laws relating to the issue or sale of such Shares,
which functions shall be the sole responsibility of the
Fund.
(c) In addition to performing the foregoing
services, the Fund hereby engages Investor Services Group as
its service provider with respect to those Print/Mail
Services as set forth in Schedule B for the fees identified
in Schedule D. Investor Services Group agrees to perform
the services and its obligations subject to the terms and
conditions of this Agreement. Notwithstanding the
foregoing, in the event that Investor Services Group deems
it necessary to use the services of a third party to provide
Transfer Agent with the print/mail services described
herein, Investor Services Group shall, unless otherwise
agreed to by the parties, use the services of Transfer Agent
or its affiliates to provide such services.
(d) Notwithstanding any of the foregoing provisions
of this Agreement, Investor Services Group shall be under no
duty or obligation to inquire into, and shall not be liable
for: (i) the legality of the issuance or sale of any Shares
or the sufficiency of the amount to be received therefor;
(ii) the legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor; (iii) the
legality of the declaration of any dividend by a Fund's
Board of Directors, or the legality of the issuance of any
Shares in payment of any dividend; or (iv) the legality of
any recapitalization or readjustment of the Shares.
3.2 In addition, Transfer Agent shall (i) identify to
Investor Services Group in writing or by transmission those
transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The
responsibility of Investor Services Group for the Fund's blue sky
State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by
the Funds and the reporting of such transactions to the Funds as
provided above.
3.3 In addition to the duties set forth herein, Investor
Services Group agrees to migrate the Funds at no cost to its Full
Service Retail (FSR) application, as more fully described on
Schedule C. Investor Services Group agrees to complete such
migration within 18 months of the completion of reciprocal key
milestones, written business requirements, functional
specifications and documented mutual test plans. In addition,
Investor Services Group shall perform such other duties and
functions, and shall be paid such amounts therefor, as may from
time to time be agreed upon in writing between Transfer Agent and
Investor Services Group.
3.4 Investor Services Group agrees to provide the services
described herein in accordance with the written schedule of
Performance Standards annexed hereto as Exhibit 1 of Schedule B
and incorporated by reference herein.
Article 4 Recordkeeping and Other Information
4.1 Investor Services Group shall create and maintain all
records required of it pursuant to its duties hereunder and as set
forth in Schedule B in accordance with all applicable laws, rules
and regulations, including records required by Section 31(a) of
the 1940 Act. Where applicable, such records shall be maintained
by Investor Services Group for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
4.2 To the extent required by Section 31 of the 1940 Act,
Investor Services Group agrees that all such records prepared or
maintained by Investor Services Group relating to the services to
be performed by Investor Services Group hereunder are the property
of the Funds and will be preserved, maintained and made available
in accordance with such section, and will be surrendered promptly
to the Funds on and in accordance with Transfer Agent's or the
Fund's request. The expenses associated with standard records
requests made in the normal course of business are covered
accordingly in Schedule E. The expenses associated with
extraordinary requests for records which are not made in the
ordinary course of business shall be determined by agreement
between Transfer Agent and Investor Services Group.
4.3 In case of any requests or demands for the inspection
of Shareholder records of a Fund, Investor Services Group will
endeavor to notify Transfer Agent of such request and secure
Written Instructions as to the handling of such request. Investor
Services Group reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to comply with
such request.
Article 5 Fund Instructions
5.1 Investor Services Group will have no liability when
acting upon Written or Oral Instructions believed to have been
executed or orally communicated by an Authorized Person and will
not be held to have any notice of any change of authority of any
person until receipt of a Written Instruction thereof from the
Fund or Transfer Agent. Investor Services Group will also have no
liability when processing Share certificates which it reasonably
believes to bear the proper manual or facsimile signatures of the
officers of a Fund and the proper countersignature of Investor
Services Group.
5.2 At any time, Investor Services Group may request
Written Instructions from a Fund or Transfer Agent and may seek
advice from legal counsel for the Fund, or its own legal counsel,
with respect to any matter arising in connection with this
Agreement, and it shall not be liable for any action taken or not
taken or suffered by it in good faith in accordance with such
Written Instructions or in accordance with the opinion of counsel
for the Fund or for Investor Services Group. Written Instructions
requested by Investor Services Group will be provided by a Fund or
Transfer Agent within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or
employees, shall accept Oral Instructions or Written Instructions
given to them by any person representing or acting on behalf of a
Fund or Transfer Agent only if said representative is an
Authorized Person. Transfer Agent agrees that all Oral
Instructions shall be followed within one business day by
confirming Written Instructions, and that the Fund's failure to so
confirm shall not impair in any respect Investor Services Group's
right to rely on Oral Instructions.
Article 6 Compensation
6.1 Transfer Agent will compensate Investor Services Group
for the performance of its obligations hereunder in accordance
with the fees set forth in the written Fee Schedule annexed hereto
as Schedule D and incorporated herein. Investor Services Group
will transmit an invoice to Transfer Agent as soon as practicable
after the end of each calendar month which will be detailed in
accordance with Schedule D.
6.2 In addition to those fees set forth in Section 6.1
above, Transfer Agent agrees to arrange for payment by the Funds,
and will be billed separately for, reasonable out-of-pocket
expenses incurred by Investor Services Group in the performance of
its duties hereunder. Out-of-pocket expenses shall include, but
shall not be limited to, the items specified in the written
schedule of out-of-pocket charges annexed hereto as Schedule E and
incorporated herein. Schedule E may be modified by written
agreement between the parties. Unspecified out-of-pocket expenses
shall be limited to those out-of-pocket expenses reasonably
incurred by Investor Services Group in the performance of its
obligations hereunder.
6.3 Transfer Agent agrees to pay or arrange for the
payment of all fees and out-of-pocket expenses by Federal Funds
Wire within five (5) business days following the receipt of the
respective invoice.
6.4 Any compensation agreed to hereunder may be adjusted
from time to time by attaching to Schedule D, a revised Fee
Schedule and by written agreement executed and dated by the
parties hereto.
Article 7 Documents
7.1 In connection with the appointment of Investor
Services Group, Transfer Agent shall, on or before the date this
Agreement goes into effect, but in any case within a reasonable
period of time for Investor Services Group to prepare to perform
its duties hereunder, deliver or caused to be delivered to
Investor Services Group the documents set forth in the written
schedule of Fund Documents annexed hereto as Schedule F.
Article 8 Transfer Agent System
8.1 Investor Services Group shall retain title to and
ownership of any and all data bases, computer programs, screen
formats, report formats, interactive design techniques, derivative
works, inventions, discoveries, patentable or copyrightable
matters, concepts, expertise, patents, copyrights, trade secrets,
and other related legal rights utilized by Investor Services Group
in connection with the core transfer agency services provided by
Investor Services Group to the Funds herein (the "Investor
Services Group System") and the other products or services
provided by Investor Services Group hereunder. It is expressly
understood that all data pertaining to the Funds remains the
exclusive property of the Funds.
8.2 Investor Services Group hereby grants to Transfer
Agent on behalf of the Funds a limited license to the Investor
Services Group System for the sole and limited purpose of having
Investor Services Group provide the services contemplated
hereunder and nothing contained in this Agreement shall be
construed or interpreted otherwise and such license shall
immediately terminate with the termination of this Agreement.
8.3 In the event that Transfer Agent, the Funds, including
any affiliate or agent of the Funds or any third party acting on
behalf of the Fund is provided with direct access to the Investor
Services Group System for either account inquiry or to transmit
transaction information, including but not limited to maintenance,
exchanges, purchases and redemptions, such direct access
capability shall be limited to direct entry to the Investor
Services Group System by means of on-line mainframe terminal entry
or PC emulation of such mainframe terminal entry and any other
non-conforming method of transmission of information to the
Investor Services Group System is strictly prohibited without the
prior written consent of Investor Services Group.
8.4 Investor Services Group agrees to commit to a systems
development headcount of forty (40) persons dedication to Transfer
Agent.
8.5 During the term of this Agreement Investor Services
Group will use on behalf of the Funds at no additional cost all
modifications, enhancements, or changes which Investor Services
Group may make to the Investor Services Group System in the normal
course of its business ("Systems Modifications") and which are
applicable to functions and features offered by the Funds.
8.6 Investor Services Group 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 no such
alteration or modification shall, without the consent of Transfer
Agent, materially adversely change or affect the operations and
procedures of the Funds in using or employing the Investor
Services Group System hereunder or the reports to be generated by
such system and facilities hereunder.
Article 9 Representations and Warranties and Condition Precedent
9.1 Investor Services Group represents and warrants to
Transfer Agent that:
(a) it is a corporation duly organized, existing and
in good standing under the laws of the Commonwealth of
Massachusetts;
(b) it is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and
perform this Agreement;
(c) all requisite corporate proceedings have been
taken to authorize it to enter into this Agreement;
(d) it is duly registered with its appropriate
regulatory agency as a transfer agent and such registration
will remain in effect for the duration of this Agreement;
and
(e) it has and will continue to have access to the
necessary facilities, equipment and personnel to perform its
duties and obligations under this Agreement.
9.2 Transfer Agent represents and warrants to Investor
Services Group that:
(a) it is duly organized, existing and in good
standing under the laws of the state of New York;
(b) it is empowered under applicable laws and by its
Article of Incorporation and By-Laws to enter into this
Agreement;
(c) all corporate proceedings required by said
Articles of Incorporation, By-Laws and applicable laws have
been taken to authorize it to enter into this Agreement;
(d) a registration statement under the Securities
Act of 1933, as amended, and the 1940 Act on behalf of each
Fund is currently effective and will remain effective, and
all 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; and
(e) all outstanding Shares are validly issued, fully
paid and non-assessable and when Shares are hereafter
issued in accordance with the terms of each Fund's Articles
of Incorporation and its Prospectus, such Shares shall be
validly issued, fully paid and non-assessable.
9.3 Year 2000 Compliance. (a) For purposes of this
Agreement, "Year 2000 Compliant" means:
(i) date data will process in the same manner and
without error or interruption due solely to the change in
century, in any level of computer hardware or software
Investor Services Group provides, including, but not limited
to, microcode, firmware, system and application programs,
files and databases; and
(ii) there will be no loss of any functionality,
accuracy, data integrity and performance of the Investor
Services Group System due solely to the change in century,
with respect to the introduction, processing or output of
date records.
(b) Investor Services Group represents and warrants that:
(i) The Investor Services Group System will be Year
2000 Compliant by December 31, 1998; provided, however, that
Investor Services Group will be in a process of testing the
Investor Services Group System in regard to Year 2000
Compliance throughout calendar year 1999 and any temporary
and immaterial loss of functionality occurring during the
ordinary course of this testing and fixing process shall not
be considered a failure of Investor Services Group to be
Year 2000 Compliant.
(ii) The Investor Services Group System will continue
to be interoperable, in the same manner as it is prior to
January 1, 2000, with software and hardware of Transfer
Agent and the Funds which may deliver records to, receive
records from or interact with the Investor Services Group
System in the course of processing data, provided that such
software and hardware of Transfer Agent and the Funds is
Year 2000 Compliant as defined herein and complies with the
interface and format standards mutually agreed to by
Investor Services Group and Transfer Agent.
(c) Transfer Agent agrees to cooperate fully, and to
ensure that its vendors cooperate fully, with Investor Services
Group to ensure the interoperability of the Investor Services
Group System with hardware and software of Transfer Agent and its
vendors. Investor Services Group shall have the right, at its
discretion, to reject any data file which it in good faith
believes will interfere with the ability of the Investor Services
Group System to be Year 2000 Compliant.
(d) Investor Services Group agrees that Transfer
Agent shall have the right to conduct such testing as Transfer
Agent reasonably deems necessary to ensure that the Investor
Services Group System complies with the foregoing representations
and warranties, and Investor Services Group agrees to cooperate
with, support and participate in such testing as reasonably
required by Transfer Agent.
(e) The term "Year 2000 Compliance Warranty" shall
mean, collectively, the warranties set forth in this section.
(f) Waiver of Limitation of Liability. With the
exception of the disclaimer of consequential damages provision of
this Agreement, any provisions of this Agreement which tend to
limit or eliminate the liability of either party shall have no
application with respect to the Year 2000 Compliance Warranty set
forth herein.
Article 10 Indemnification
10.1 Investor Services Group shall not be responsible for
and Transfer Agent shall indemnify and hold Investor Services
Group harmless from and against any and all claims, costs,
expenses (including reasonable attorneys' fees), losses, damages,
charges, payments and liabilities of any sort or kind not
specifically deemed to be the responsibility of Investor Services
Group which may be asserted against Investor Services Group or for
which Investor Services Group may be held to be liable (a
"Claim"), arising out of or attributable to any of the following:
(a) any actions of Investor Services Group required
to be taken pursuant to this Agreement, provided that
Investor Services Group has acted in good faith and with due
diligence and reasonable care, unless such Claim resulted
from a negligent act or omission to act or bad faith by
Investor Services Group in the performance of its duties
hereunder;
(b) Investor Services Group's reasonable reliance
on, or reasonable use of information, data, records and
documents (including but not limited to magnetic tapes,
computer printouts, hard copies and microfilm copies)
received by Investor Services Group from a Fund, or any
authorized third party acting on behalf of the Fund in the
performance of Investor Services Group's duties and
obligations hereunder;
(c) the reliance on, or the implementation of, any
Written or Oral Instructions or any other instructions or
requests of a Fund;
(d) the offer or sale of shares in violation of any
requirement under 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 state with respect to the offer or sale of such
shares in such state; and
(e) Transfer Agent's refusal or failure to comply
with the terms of this Agreement, or any Claim which arises
out of Transfer Agent's negligence or misconduct or the
breach of any representation or warranty of Transfer Agent
made herein.
10.2 Transfer Agent shall not be responsible for and
Investor Services Group shall indemnify and hold Transfer Agent,
the Funds, their affiliates and their respective directors,
officers, employees and agents harmless from and against any and
all claims, costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and liabilities of any
sort or kind which may be asserted against Transfer Agent or for
which Transfer Agent may be held to be liable (a "Claim"), arising
out of or attributable to (a) any negligent act or omission to act
or bad faith by Investor Services Group in the performance of its
duties hereunder; or (b) Investor Services Group's refusal or
failure to comply with the terms of this Agreement; (c) the breach
of any representation or warranty of Investor Services Group made
herein.
10.3 In any case in which a party (the "Indemnifying
Party") may be asked to indemnify or hold harmless any other party
(or parties) (the "Indemnified Party"), the Indemnifying Party
shall be advised of all pertinent facts concerning the situation
in question. The Indemnified Party will notify the Indemnifying
Party promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification
against the Indemnifying Party although the failure to do so shall
not prevent recovery by the Indemnified Party except to the extent
that the Indemnifying Party is prejudiced as a result of such
failure to timely notify. The Indemnifying Party shall have the
option to defend the Indemnified Party against any Claim which may
be the subject of this indemnification, and, in the event that the
Indemnifying Party so elects, such defense shall be conducted by
counsel chosen by the Indemnifying Party and satisfactory to the
Indemnified, and thereupon the Indemnifying Party shall take over
complete defense of the Claim and the Indemnified Party shall
sustain no further legal or other expenses in respect of such
Claim. The Indemnified party will not confess any Claim or make
any compromise in any case in which the Indemnifying Party will be
asked to provide indemnification, except with the Indemnifying
Party's prior written consent. The obligations of the parties
hereto under this Section shall survive the termination of this
Agreement.
10.4 Except for remedies that cannot be waived as a matter
of law (and injunctive or provisional relief), the provisions of
this Article 10 shall be a party's sole and exclusive remedy for
claims or other actions or proceedings to which the other party's
indemnification obligations pursuant to this Article 10 may apply.
Article 11 Standard of Care
11.1 Investor Services Group shall provide its services as
Sub-Transfer Agent in accordance with the applicable provisions of
Section 17A of the 1934 Act. Investor Services Group shall at all
times act in good faith and agrees to use its best efforts within
commercially reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no
responsibility for loss or damage to Transfer Agent or the Funds
unless said errors are caused by Investor Services Group's own
negligence, bad faith, willful misconduct or that of its employees
or knowing violations of applicable law pertaining to the manner
in which transfer agency services are to be performed by Investor
Services Group.
11.2 Each party shall have the duty to mitigate damages for
which the other party may become responsible.
Article 12 Consequential Damages
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
IN NO EVENT SHALL EITHER PARTY TO THIS AGREEMENT, ITS AFFILIATES
OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
SUBCONTRACTORS BE LIABLE TO THE OTHER PARTY UNDER ANY THEORY OF
TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY
EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH
DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 13 Term and Termination
13.1 This Agreement shall be effective on the date first
written above and shall continue until May 31, 2004 (the "Initial
Term"), provided Transfer Agent or any of its affiliates continues
to serve as transfer agent during such period.
13.2 Upon the expiration of the Initial Term, this
Agreement shall automatically renew for successive annual periods
ending on May 31st of each such renewal period (each a "Renewal
Term"), unless Transfer Agent or Investor Services Group provides
written notice to the other of its intent not to renew. Such
notice must be received not less than ninety (90) days and not
more than one-hundred eighty (180) days prior to the expiration of
the Initial Term or the then current Renewal Term.
13.3 In the event a termination notice is given by the
Fund, all reasonable expenses associated with movement of records
and materials and conversion thereof to a successor transfer agent
will be borne by the Fund.
13.4 If a party hereto is guilty of a material failure to
perform its duties and obligations hereunder (a "Defaulting
Party") the other party (the "Non-Defaulting Party") may give
written notice thereof to the Defaulting Party, and if such
material breach shall not have been remedied within thirty (30)
days after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party. If
Investor Services Group is the Non-Defaulting Party, its
termination of this Agreement shall not constitute a waiver of any
other rights or remedies of Investor Services Group with respect
to services performed prior to such termination of rights of
Investor Services Group to be reimbursed for out-of-pocket
expenses. In all cases, termination by the Non-Defaulting Party
shall not constitute a waiver by the Non-Defaulting Party of any
other rights it might have under this Agreement or otherwise
against the Defaulting Party.
13.5 Notwithstanding the foregoing, Transfer Agent may
terminate this Agreement if either: (i) one quarter or more of the
Performance Standards listed in Exhibit 1 of Schedule B are not
met by Investor Services Group for three (3) consecutive monthly
periods, or (ii) any one performance standard is not met by
Investor Services Group for any four (4) consecutive monthly
periods. Transfer Agent shall notify Investor Services Group in
writing within 120 days of any such failure. If Investor Services
Group is unable to correct its failure to meet the performance
standard(s) identified in such notice within sixty (60) days
following receipt of such notice, Transfer Agent may terminate
this Agreement upon written notice to Investor Services Group.
Unless Transfer Agent provides Investor Services Group with the
written notice of Investor Services Group's failure to meet the
applicable performance standard as described above, Transfer Agent
shall have waived its option to terminate the Agreement under this
provision.
Article 14 Confidentiality
14.1 The parties agree that the Proprietary Information
(defined below) and the contents of this Agreement (collectively
"Confidential Information") are confidential information of the
parties and their respective licensors. Transfer Agent and
Investor Services Group shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the
confidentiality of the Confidential Information of the other as it
would exercise to protect its own confidential information of a
similar nature. Transfer Agent and Investor Services Group shall
not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior
written permission of the other party. Transfer Agent and
Investor Services Group may, however, disclose Confidential
Information to their respective parent corporation, their
respective affiliates, their subsidiaries and affiliated companies
and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or
disclosed in breach of this Agreement. Transfer Agent and
Investor Services Group may also disclose the Confidential
Information to independent contractors, auditors, and professional
advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section
14.1. Notwithstanding the previous sentence, in no event shall
either Transfer Agent or Investor Services Group disclose the
Confidential Information to any competitor of the other without
specific, prior written consent.
14.2 Proprietary Information means:
(a) any data or information that is competitively
sensitive material, and not generally known to the public,
including, but not limited to, information about product
plans, marketing strategies, finance, operations, customer
relationships, customer profiles, sales estimates, business
plans, and internal performance results relating to the
past, present or future business activities of Transfer
Agent, the Funds or Investor Services Group, their
respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them;
(b) any scientific or technical information, design,
process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its
confidentiality affords Transfer Agent, the Funds or
Investor Services Group a competitive advantage over its
competitors; and
(c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer
software, source code, object code, flow charts, databases,
inventions, know-how, show-how and trade secrets, whether or
not patentable or copyrightable.
14.3 Confidential Information includes, without limitation,
all documents, inventions, substances, engineering and laboratory
notebooks, drawings, diagrams, specifications, bills of material,
equipment, prototypes and models, and any other tangible
manifestation of the foregoing of either party which now exist or
come into the control or possession of the other.
14.4 The obligations of confidentiality and restriction on
use herein shall not apply to any Confidential Information that a
party proves:
(a) Was in the public domain prior to the date of
this Agreement or subsequently came into the public domain
through no fault of such party; or
(b) Was lawfully received by the party from a third
party free of any obligation of confidence to such third
party; or
(c) Was already in the possession of the party prior
to receipt thereof, directly or indirectly, from the other
party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal
remedies for maintaining such information in confidence have
been exhausted including, but not limited to, giving the
other party as much advance notice of the possibility of
such disclosure as practical so the other party may attempt
to stop such disclosure or obtain a protective order
concerning such disclosure; or
(e) Is subsequently and independently developed by
employees, consultants or agents of the party without
reference to the Confidential Information disclosed under
this Agreement.
Article 15 Force Majeure
15.1 No party shall be liable for any default or delay in
the performance of its obligations under this Agreement if and to
the extent such default or delay is caused, directly or
indirectly, by (i) fire, flood, elements of nature or other acts
of God; (ii) any outbreak or escalation of hostilities, war, riots
or civil disorders in any country, (iii) any act or omission of
the other party or any governmental authority; (iv) any labor
disputes beyond the reasonable control of such party; or (v)
nonperformance by a third party or any similar cause beyond the
reasonable control of such party, including without limitation,
failures or fluctuations in telecommunications or other equipment.
Except to the extent that the non-performing party shall have
failed to use its reasonable best efforts to minimize the
likelihood of occurrence of such circumstances or to mitigate any
loss or damage to the other party or the Funds caused by such
circumstances. In any such event, the non-performing party shall
be excused from any further performance and observance of the
obligations so affected only for as long as such circumstances
prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance as soon as
practicable.
15.2 Investor Services Group in conjunction with its
affiliate, First Data Technologies ("FDT"), has developed a
comprehensive disaster recovery plan that ensures critical
applications of daily data processing functions are recoverable at
an alternate processing facility. A disaster recovery test is
conducted with FDT on at least an annual basis. The tests include
systems restoration, batch processing and network connectivity.
The mainframe operating systems and customer network connectivity
are established at an alternate processing hot site located in
North Bergen New Jersey. In addition, Investor Services Group's
sites located in Westboro, Ma and King of Prussia Pa., provide
redundant backup for critical business processes, and local data
processing.
Article 16 Assignment and Subcontracting
16.1 This Agreement, its benefits and obligations shall be
binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Agreement
may not be assigned or otherwise transferred by either party
hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided,
however, that either party may, in its sole discretion, assign all
its right, title and interest in this Agreement to an affiliate,
parent or subsidiary of the assigning party who is qualified to
act under the 1940 Act. Investor Services Group may, in its sole
discretion, engage subcontractors to perform any of the
obligations contained in this Agreement to be performed by
Investor Services Group.
Article 17 Arbitration
17.1 Any claim or controversy arising out of or relating to
this Agreement, or breach hereof, shall be settled by arbitration
administered by the American Arbitration Association in New York,
New York in accordance with its applicable rules, except that the
Federal Rules of Evidence and the Federal Rules of Civil Procedure
with respect to the discovery process shall apply.
17.2 The parties hereby agree that judgment upon the award
rendered by the arbitrator may be entered in any court having
jurisdiction.
17.3 The parties acknowledge and agree that the performance
of the obligations under this Agreement necessitates the use of
instrumentalities of interstate commerce and, notwithstanding
other general choice of law provisions in this Agreement, the
parties agree that the Federal Arbitration Act shall govern and
control with respect to the provisions of this Article 17.
Article 18 Notice
18.1 Any notice or other instrument authorized or required
by this Agreement to be given in writing to Transfer Agent or
Investor Services Group, shall be sufficiently given if addressed
to that party and received by it at its office set forth below or
at such other place as it may from time to time designate in
writing.
To Transfer Agent:
Xxxxx Xxxxxx Private Trust Company
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
To Investor Services Group:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General
Counsel
Article 19 Governing Law/Venue
19.1 The laws of the State of New York, excluding the laws
on conflicts of laws, shall govern the interpretation, validity,
and enforcement of this agreement.
Article 20 Counterparts
20.1 This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but
such counterparts shall, together, constitute only one instrument.
Article 21 Captions
21.1 The captions of this Agreement are included for
convenience of reference only and in no way define or limit any of
the provisions hereof or otherwise affect their construction or
effect.
Article 22 Publicity
22.1 Neither Investor Services Group nor Transfer Agent
shall release or publish news releases, public announcements,
advertising or other publicity relating to this Agreement or to
the transactions contemplated by it without the prior review and
written approval of the other party; provided, however, that
either party may make such disclosures as are required by legal,
accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
Article 23 Relationship of Parties
23.1 The parties agree that they are independent
contractors and not partners or co-venturers and nothing contained
herein shall be interpreted or construed otherwise.
Article 24 Entire Agreement; Severability
24.1 This Agreement, including Schedules, Addenda, and
Exhibits hereto, constitutes the entire Agreement between the
parties with respect to the subject matter hereof and supersedes
all prior and contemporaneous proposals, agreements, contracts,
representations, and understandings, whether written or oral,
between the parties with respect to the subject matter hereof. No
change, termination, modification, or waiver of any term or
condition of the Agreement shall be valid unless in writing signed
by each party. No such writing shall be effective as against
Investor Services Group unless said writing is executed by a
Senior Vice President, Executive Vice President, or President of
Investor Services Group. A party's waiver of a breach of any term
or condition in the Agreement shall not be deemed a waiver of any
subsequent breach of the same or another term or condition.
24.2 The parties intend every provision of this Agreement
to be severable. If a court of competent jurisdiction determines
that any term or provision is illegal or invalid for any reason,
the illegality or invalidity shall not affect the validity of the
remainder of this Agreement. In such case, the parties shall in
good faith modify or substitute such provision consistent with the
original intent of the parties. Without limiting the generality
of this paragraph, if a court determines that any remedy stated in
this Agreement has failed of its essential purpose, then all other
provisions of this Agreement, including the limitations on
liability and exclusion of damages, shall remain fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers, as of
the 1st day of October 1999, subject to approval by the Funds'
Board of Directors.
XXXXX XXXXXX PRIVATE TRUST COMPANY
By:
Title:
FIRST DATA INVESTOR SERVICES GROUP,
INC.
By:
Title:
SCHEDULE A
XXXXXXX XXXXX BARNEY FUNDS
Concert Investment Series
Emerging Growth Fund
Government Fund
Growth Fund
Growth and Income Fund
International Equity Fund
Municipal Fund
Consulting Group Capital Markets Funds
Balanced Investment
Emerging Market Equity Investment
Government Money Investments
High Yield Investments
Intermediate Fixed Income Investments
International Equity Investments
International Fixed Income Investments
Large Capitalization Growth Investments
Large Capitalization Value Equity Investments
Long-Term Bond Investments
Mortgage Backed Investments
Municipal Bond Investments
Small Capitalization Growth Investments
Small Capitalization Value Equity Investments
Greenwich Street Series Fund (variable annuity)
Appreciation Portfolio
Diversified Strategic Income Portfolio
Emerging Growth Portfolio
Equity Income Portfolio
Equity Index Portfolio
Growth & Income Portfolio
Intermediate High Grade Bond Portfolio
International Equity Portfolio
Money Market Portfolio
Total Return Portfolio
Xxxxx Xxxxxx Adjustable Rate Government Income Fund
Xxxxx Xxxxxx Aggressive Growth Fund Inc.
Xxxxx Xxxxxx Appreciation Fund Inc
Xxxxx Xxxxxx Arizona Municipals Fund Inc.
Xxxxx Xxxxxx California Municipals Fund Inc
Xxxxx Xxxxxx Concert Allocation Series, Inc.
Balanced Portfolio
Conservative Portfolio
Growth Portfolio
High Growth Portfolio
Income Portfolio
Global Portfolio
Select Balanced Portfolio (variable annuity)
Select Conservative Portfolio (variable
annuity)
Select Growth Portfolio (variable annuity)
Select High Growth Portfolio (variable annuity)
Select Income Portfolio (variable annuity)
Xxxxx Xxxxxx Equity Funds
Concert Social Awareness Fund
Xxxxx Xxxxxx Large Cap Blend Fund
Xxxxx Xxxxxx Fundamental Value Fund Inc
Xxxxx Xxxxxx Funds, Inc
Large Cap Value Fund
Short-Term High Grade Bond Fund
US Government Securities Fund
Xxxxx Xxxxxx Income Funds
Xxxxx Xxxxxx Balanced Fund
Xxxxx Xxxxxx Convertible Fund
Xxxxx Xxxxxx Diversified Strategic Income Fund
Xxxxx Xxxxxx Exchange Reserve Fund
Xxxxx Xxxxxx High Income Fund
Xxxxx Xxxxxx Municipal High Income Fund
Xxxxx Xxxxxx Premium Total Return Fund
Xxxxx Xxxxxx Total Return Bond Fund
Xxxxx Xxxxxx Institutional Cash Management Fund, Inc
Cash Portfolio
Government Portfolio
Municipal Portfolio
Xxxxx Xxxxxx Investment Funds Inc.
Concert Peachtree Growth Fund
Xxxxx Xxxxxx Contrarian Fund
Xxxxx Xxxxxx Government Securities Fund
Xxxxx Xxxxxx Xxxxxxxxxx Global Small Cap Value
Fund
Xxxxx Xxxxxx Xxxxxxxxxx Global Value Fund
Xxxxx Xxxxxx Investment Grade Bond Fund
Xxxxx Xxxxxx Special Equities Fund
Xxxxx Xxxxxx Investment Trust
Xxxxx Xxxxxx Intermediate Maturity California
Municipals Fund
Xxxxx Xxxxxx Intermediate Maturity New York
Municipals Fund
Xxxxx Xxxxxx Large Capitalization Growth Fund
Xxxxx Xxxxxx S&P Index Fund
Xxxxx Xxxxxx Mid Cap Blend Fund
Xxxxx Xxxxxx Managed Governments Fund Inc.
Xxxxx Xxxxxx Managed Municipals Fund Inc.
Xxxxx Xxxxxx Massachusetts Municipals Fund Inc.
Xxxxx Xxxxxx Money Funds, Inc.
Cash Portfolio
Government Portfolio
Retirement Portfolio
Xxxxx Xxxxxx Muni Funds
California Money Market Portfolio
Florida Portfolio
Georgia Portfolio
Limited Term Portfolio
National Portfolio
New York Money Market Portfolio
New York Portfolio
Pennsylvania Portfolio
Xxxxx Xxxxxx Municipal Money Market Fund, Inc.
Xxxxx Xxxxxx Natural Resources Fund Inc.
Xxxxx Xxxxxx New Jersey Municipals Fund Inc.
Xxxxx Xxxxxx Oregon Municipals Fund
Xxxxx Xxxxxx Principal Return Fund
Zeros Plus Emerging Growth Series 2000
Xxxxx Xxxxxx Security and Growth Fund 2005
Xxxxx Xxxxxx Small Cap Blend Fund, Inc
Xxxxx Xxxxxx Telecommunications Trust
Xxxxx Xxxxxx Telecommunications Income Fund
Xxxxx Xxxxxx Variable Account Funds (variable
annuity)
Income and Growth Portfolio
Reserve Account Portfolio
U.S. Government/High Quality Securities
Portfolio
Xxxxx Xxxxxx World Funds, Inc.
Emerging Markets Portfolio
European Portfolio
Global Government Bond Portfolio
International Balanced Portfolio
International Equity Portfolio
Pacific Portfolio
Travelers Series Fund (variable annuity)
AIM Capital Appreciation Portfolio
Alliance Growth Portfolio
GT Global Strategic Income Portfolio
MFS Total Return Portfolio
Xxxxxx Diversified Income Portfolio
Xxxxx Xxxxxx High Income Portfolio
Xxxxx Xxxxxx Large Cap Value Portfolio
Xxxxx Xxxxxx International Equity Portfolio
Xxxxx Xxxxxx Large Capitalization Growth
Portfolio
Xxxxx Xxxxxx Money Market Portfolio
Xxxxx Xxxxxx Pacific Basin Portfolio
TBC Managed Income Portfolio
Xxx Xxxxxx American Capital Enterprise
Portfolio
Federated High Yield Portfolio (variable annuity)
Federated Stock Portfolio (variable annuity)
Lazard International Equity Portfolio (variable
annuity)
MFS Emerging Growth Portfolio (variable annuity)
Travelers Series Trust (variable annuity)
Travelers 0 Coupon Xxxx XX 1998
Travelers 0 Coupon Xxxx XX 2000
Travelers 0 Coupon Xxxx XX 2005
Social Awareness Stock Portfolio
US Government Securities Portfolio
Utilities Portfolio
Convertible Bond Portfolio
Disciplined Small Cap Stock Portfolio
Strategic Stock Portfolio
MFS Research Portfolio
MFS Mid Cap Growth Portfolio
NWQ Large Cap Portfolio
Juriak & Xxxxxx Core Equity Portfolio
Travelers Funds (variable annuity)
Capital Appreciation Fund
Money Market Portfolio
High Yield Bond Trust
Mid Cap Disciplined Equity Fund
Managed Assets Trust
Travelers Quality Bond Portfolio (variable annuity)
The Fund For Stable Value Investments
SCHEDULE B
DUTIES OF INVESTOR SERVICES GROUP
1. Shareholder Information Investor Services Group shall
maintain a record of the number of Shares held by each Shareholder
of record which shall include name, address, taxpayer
identification and which shall indicate whether such Shares are
held in certificates or uncertificated form.
2. Shareholder Services Investor Services Group shall
respond as appropriate to all inquiries and communications from
Shareholders relating to Shareholder accounts with respect to its
duties hereunder and as may be from time to time mutually agreed
upon between Investor Services Group and Transfer Agent.
3. Share Certificates
(a) At the expense of each Fund, Transfer Agent
shall supply Investor Services Group with an adequate supply of
blank share certificates to meet Investor Services Group
requirements therefor. Such Share certificates shall be properly
signed by facsimile. Transfer Agent agrees that, notwithstanding
the death, resignation, or removal of any officer of a Fund whose
signature appears on such certificates, Investor Services Group or
its agent may continue to countersign certificates which bear such
signatures until otherwise directed by Written Instructions.
(b) With respect to each Fund, Investor Services
Group shall issue replacement Share certificates in lieu of
certificates which have been lost, stolen or destroyed, upon
receipt by Investor Services Group of properly executed affidavits
and lost certificate bonds, in form satisfactory to Investor
Services Group, with the Fund and Investor Services Group as
obligees under the bond.
(c) With respect to each Fund, Investor Services
Group shall also maintain a record of each certificate issued, the
number of Shares represented thereby and the Shareholder of
record. With respect to Shares held in open accounts or
uncertificated form (i.e., no certificate being issued with
respect thereto) Investor Services Group shall maintain comparable
records of the Shareholders thereof, including their names,
addresses and taxpayer identification. Investor Services Group
shall further maintain a stop transfer record on lost and/or
replaced certificates.
4. Mailing Communications to Shareholders; Proxy
Materials Investor Services Group will address and mail to
Shareholders of Funds, all reports to Shareholders, dividend and
distribution notices and proxy material for the Fund's meetings of
Shareholders. In connection with meetings of Shareholders,
Investor Services Group will prepare Shareholder lists, mail and
certify as to the mailing of proxy materials, process and tabulate
returned proxy cards, report on proxies voted prior to meetings,
act as inspector of election at meetings and certify Shares voted
at meetings.
5. Sales of Shares
(a) Investor Services Group shall not be required to
issue any Shares of a Fund where it has received a Written
Instruction from the Fund or official notice from any appropriate
authority that the sale of the Shares of the Fund has been
suspended or discontinued. The existence of such Written
Instructions or such official notice shall be conclusive evidence
of the right of Investor Services Group to rely on such Written
Instructions or official notice.
(b) In the event that any check or other order for
the payment of money is returned unpaid for any reason, Investor
Services Group will endeavor to: (i) give prompt notice of such
return to the Fund or Transfer Agent; (ii) place a stop transfer
order against all Shares issued as a result of such check or
order; and (iii) take such actions as Investor Services Group may
from time to time deem appropriate.
6. Transfer and Repurchase
(a) Investor Services Group shall process all
requests to transfer or redeem Shares in accordance with the
transfer or repurchase procedures set forth in each Fund's
Prospectus.
(b) Investor Services Group will transfer or
repurchase Shares upon receipt of Oral or Written Instructions or
otherwise pursuant to the Prospectus and Share certificates, if
any, properly endorsed for transfer or redemption, accompanied by
such documents as Investor Services Group reasonably may deem
necessary.
(c) Investor Services Group reserves the right to
refuse to transfer or repurchase Shares until it is satisfied that
the endorsement on the instructions is valid and genuine.
Investor Services Group also reserves the right to refuse to
transfer or repurchase Shares until it is satisfied that the
requested transfer or repurchase is legally authorized, and it
shall incur no liability for the refusal, in good faith, to make
transfers or repurchases which Investor Services Group, in its
good judgment, deems improper or unauthorized, or until it is
reasonably satisfied that there is no basis to any claims adverse
to such transfer or repurchase.
(d) When Shares are redeemed, Investor Services
Group shall, upon receipt of the instructions and documents in
proper form, deliver to the Custodian and each Fund or Transfer
Agent a notification setting forth the number of Shares to be
repurchased. Such repurchased shares shall be reflected on
appropriate accounts maintained by Investor Services Group
reflecting outstanding Shares of each Fund and Shares attributed
to individual accounts.
(e) Investor Services Group shall, upon receipt of
the monies provided to it by the Custodian for the repurchase of
Shares, pay such monies as are received from the Custodian, all in
accordance with the procedures described in the written
instruction received by Investor Services Group from the Fund.
(f) Investor Services Group shall not process or
effect any repurchase with respect to Shares of a Fund after
receipt by Investor Services Group or its agent of notification of
the suspension of the determination of the net asset value of the
Fund.
7. Dividends
(a) Upon the declaration of each dividend and each
capital gains distribution by the Board of Directors of a Fund
with respect to Shares of the Fund, Transfer Agent shall furnish
or cause to be furnished to Investor Services Group Written
Instructions setting forth the date of the declaration of such
dividend or distribution, the ex-dividend date, the date of
payment thereof, the record date as of which Shareholders entitled
to payment shall be determined, the amount payable per Share to
the Shareholders of record as of that date, the total amount
payable on the payment date and whether such dividend or
distribution is to be paid in Shares at net asset value.
(b) On or before the payment date specified in such
resolution of the Board of Directors, a Fund will provide Investor
Services Group with sufficient cash to make payment to the
Shareholders of record as of such payment date.
(c) If Investor Services Group does not receive
sufficient cash from a Fund to make total dividend and/or
distribution payments to all Shareholders of the Fund as of the
record date, Investor Services Group will, upon notifying Transfer
Agent, withhold payment to all Shareholders of record as of the
record date until sufficient cash is provided to Investor Services
Group.
8. Cash Management Services. Funds received by
Investor Services Group in the course of performing its services
hereunder will be held in demand deposit bank accounts or money
market fund accounts in the name of Investor Services Group (or
its nominee) as agent for Transfer Agent. Investor Services Group
shall be entitled to retain any interest, dividends, balance
credits or fee reductions or other concessions or benefits earned
or generated by or associated with such accounts or made available
by the institution with which such accounts are maintained.
9. Lost Shareholders. Investor Services Group shall
perform such services as are required in order to comply with
Rules 17a-24 and 17Ad-17 of the 34 Act (the Lost Shareholder
Rules"), including, but not limited to those set forth below.
Investor Services Group may, in its sole discretion, use the
services of a third party to perform the some or all such
services.
(a) documentation of electronic search policies and
procedures;
(b) execution of required searches;
(c) creation and mailing of confirmation letters;
(d) taking receipt of returned verification forms;
(e) providing confirmed address corrections in batch via
electronic media;;
(f) tracking results and maintaining data sufficient to
comply with the Lost Shareholder Rules; and
(g) preparation and submission of data required under the
Lost Shareholder Rules.
10. Miscellaneous.
In addition to and neither in lieu nor in contravention of
the services set forth above, Investor Services Group shall: (i)
perform all the customary services of a transfer agent, registrar,
dividend disbursing agent and agent of the dividend reinvestment
and cash purchase plan as described herein consistent with those
requirements in effect as at the date of this Agreement; (ii)
require proper forms of instructions, signatures and signature
guarantees and any necessary documents supporting the opening of
shareholder accounts, transfers and redemptions and other
shareholder account transactions, all in conformance with Investor
Services Group's present procedures with such changes or
deviations therefrom as may be from time to time required or
approved by Transfer Agent, or the Fund's counsel or Investor
Services Group's counsel and the rejection of orders or
instructions not in good order in accordance with the applicable
Fund prospectus; (iii) provide tot he person designated by
Transfer Agent daily Blue Sky reports generated by the Investor
Services Group; (iv) provide to Transfer Agent escheatment reports
as reasonably requested by Transfer Agent with respect to the
status of the Funds' accounts and outstanding checks on the
Investor Services Group System; and (v) maintain a current,
duplicate set of the Funds' essential records at a secure separate
location in a form available and usable forthwith in the event of
any breakdown or disaster disruption Investor Service Group's main
operation The detailed definition, frequency, limitations and
associated costs (if any) set out in the attached fee schedule,
include but are not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies,
tabulating proxies, mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident 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 Shareholders.
11. Print/Mail Services. Investor Services Group shall
perform print/mail services on behalf of the Funds with respect to
the following items:
(a) Daily, Monthly Quarterly and Annual Output
. Confirmations
-Brokerage SB money market fund SWEEP
transactions
-Direct Accounts (non-brokerage) all
transactions
-New account and Change of Allocation
. Welcome letters
. Checks:
-Dividend
-ACW
-Commission
-Daily Redemption
. Statements:
-All Non Brokerage Accounts
-Shareholder Statements
-Dealer Statements
-Dealer Statements (non-Transfer Agent)
-Commission Statements
. Y/E Tax Forms
-Non-brokerage Accounts
-Non-networked accounts
(b) Special Mailings ( includes, 6700, proxy except NSCC
NT3)
. Report Mailings, (quarterly, annual and semi-
annual)
. Prospectus Fulfillment & Mailings
. Shareholder / Information Letters
EXHIBIT 1 OF SCHEDULE B
Performance Standards
. Except as otherwise set forth below, measurement of
standards will be measured in the aggregate with respect
to all Xxxxxxx Xxxxx Xxxxxx Funds. Investor Services
Group will provide Transfer Agent with a monthly report
tracking compliance with the performance standards
identified below in the aggregate with respect to all of
the Funds.
A. Telephones:
To be measured on a monthly basis.
. The average speed of answering calls will be twenty (20)
seconds or less
. The abandonment rate for teleservicing calls will be
three (3) percent or less (Calculation: calls abandoned
over 20 seconds/calls offered).
. The Service Level will be eighty-five percent (85%) or
higher. The Service Level shall be derived using the
following formula:
Calls answered in less than 20 seconds + Calls abandoned
within less than 20 seconds
Total Calls Received
. Representatives will be monitored and graded by their
manager at least five (5) times per month. Grading of
representatives shall be based on the criteria set forth
in the Service Checklist attached hereto. Representatives
that fail to receive an average Quality Score of at least
95% in any quarterly period shall be subject to Investor
Services Group's internal Performance Evaluation Plan.
B. Processing:
The following standards will be met 95% of the time measured
on a monthly basis, minimum of 50 items per standard
measured.
. New accounts in good order will be established on
Investor Services Group System on the same day received.
. Correspondence will be completed within five (5) business
days of receipt
. Maintenance items and transfers in good order will be
completed within five (5) business days of receipt
. Research will be completed within four (4) business days
from receipt.
C. Print/Mail:
The following standards will be met 95% of the time measured
on a monthly basis, minimum of 50 items per standard
measured.
. Daily confirmations will be mailed to shareholders on
Trade Date plus two (2) business days.
. Check requests will be mailed to shareholders on Trade
Date plus two (2) business days.
. Quarterly Statements will be mailed to shareholders
within five (5) business days from quarter end.
D. Systems Transmission/Daily Processing Window:
. Meet the daily processing windows required by Transfer
Agent Systems and Operations typically described as the
nightly "processing window" within two hours of receipt
of the nightly Transfer Agent Brokerage transmission
and/or receipt of N.A.V.'s, accrual rates and
distribution rates for all Funds.
. 95% with the exception of TRAK reallocations and dividend
processing nights, measured monthly.
. 98% accuracy with respect to processing such information.
E. Manual Pricing.
Investor Services Group shall accurately process exception
pricing information relating to the Funds received in a
manual format from Transfer Agent 95% of the time with
respect to all of the Funds in the aggregate and seventy-
five percent (75%) with respect to each individual Fund,
measured on a monthly basis, provided that Transfer Agent
has provided the information in an accurate, complete and
timely basis in accordance with established procedures.
SCHEDULE C
Migration of Funds to Investor Services Group's Full Service
Retail (FSR) application:
FSR will provide Transfer Agent on behalf of the Funds with a
platform providing functionality available to all of Investor
Services Group's broker/dealer and retail clients including:
. Expanded functionality and features in demand by non-brokerage
Transfer Agent investors, Xxxxxxxx Associates, Inc., Tower
Square Securities, Inc. and the 401(k) marketplace.
. State-of-the-art pricing capability providing table driven load
and 12b-1 schedules by dealer, branch or representative
regardless of trade source (i.e., NSCC, proprietary
transmissions, on-line transactions, VRU or Internet).
. Full integration with IMPRESSPlus, Investor Services Group's
comprehensive workflow management, document imaging and
customer service system. IMPRESSPlus consists of four major
components - a sophisticated workflow management tool, an
imaging processing system, a Customer Relationship Manager
(CRM), and Computer Output to Laser Disk (COLD). Each of these
products, used independently or in tandem, will provide an
integrated solution for automating all follow-up activities
resulting from any type of customer contact - sales, marketing,
general inquiry, and the transaction requested or problem
resolution. In particular, the CRM addresses the requirements
of providing a sing front-end system for delivering customer
service across operating platforms.
. Providing the Funds with a single platform to support Transfer
Agent's proprietary brokerage business and portability.
Additionally, FSR will provide Transfer Agent with the ability
to distribute through the Financial Planner channel by
utilizing First Investors Group's DAZL and DAZL Direct
interfaces. Actual use of DAZL and DAZL Direct by the Funds
shall be at Investor Services Group standard pricing.
. Enhanced access to the Funds data through a mutually agreed
upon comprehensive information delivery solution whether
Transfer Agent decides to have the data transmitted to its own
data base tools or have Investor Services Group provide
Transfer Agent with a business tool to access the information
resident on Investor Services Group's transfer agency
application.
SCHEDULE D
FEE SCHEDULE
SCHEDULE E
OUT-OF-POCKET EXPENSES
1. Out-of Pockets. Each of the Funds shall reimburse Investor
Services Group monthly for applicable out-of-pocket expenses,
including, but not limited to the following items:
. Microfiche/microfilm production
. Magnetic media tapes and freight
. Postage - direct pass through to the Fund
. Telephone and telecommunication costs, including all
lease, maintenance and line costs
. Proxy solicitations, mailings, tabulations and reports
relating thereto
. Shipping, Certified and Overnight mail and insurance -
prior approval from Transfer Agent shall be required
except for (i) items shipped to Transfer Agent; and (ii)
shipping of share certificates
. Terminals, communication lines, printers and other
equipment and any expenses incurred in connection with
such terminals and lines
. Duplicating services
. Courier services
. Federal Reserve charges for check clearance
. Overtime, as approved by Transfer Agent
. Temporary staff, as approved by Transfer Agent
. Travel, as approved in advance by the Fund
. Record retention, retrieval and destruction costs,
including, but not limited to exit fees charged by third
party record keeping vendors
. Such other miscellaneous expenses reasonably incurred by
Investor Services Group in performing its duties and
responsibilities under this Agreement provided they are
approved in advance by Transfer Agent.
Each of the Funds shall pay postage and mailing expenses on
the day of or prior to mailing as agreed with Investor Services
Group. In addition, each of the Funds will promptly reimburse
Investor Services Group for any other unscheduled expenses
incurred by Investor Services Group whenever Transfer Agent and
Investor Services Group mutually agree that such expenses are not
otherwise properly borne by Investor Services Group as part of its
duties and obligations under the Agreement.
2. Other Charges.
. Pre-Printed Stock, including business forms,
certificates, envelopes, checks and stationery
. COLD Storage
. Digital Recording
. Incoming and outgoing wire charges
SCHEDULE F
FUND DOCUMENTS
. Certified copy of the Articles of Incorporation of the Fund, as
amended
. Certified copy of the By-laws of the Fund, as amended,
. Specimens of the certificates for Shares of the Fund, if
applicable, in the form approved by the Board of Directors of
the Fund, with a certificate of the Secretary of the Fund as to
such approval
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contract\ta\sbarney\subta\pvttrust\agr.doc
