AMENDED AND RESTATED TRANSFER AGENCY AND SERVICE AGREEMENT BETWEEN EACH OF THE ENTITIES LISTED ON SCHEDULE A HERETO AND BOSTON FINANCIAL DATA SERVICES, INC.
Exhibit 99.(k)(4)
Execution Copy
AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
EACH OF THE ENTITIES
LISTED ON SCHEDULE A HERETO
AND
BOSTON FINANCIAL DATA SERVICES, INC.
Execution Copy
TABLE OF CONTENTS
Page | ||||||
1. |
Terms of Appointment and Duties | 1 | ||||
2. |
Third Party Administrators for Defined Contribution Plans | 4 | ||||
3. |
Fees and Expenses | 4 | ||||
4. |
Representations and Warranties of the Transfer Agent | 5 | ||||
5. |
Representations and Warranties of Each Fund | 6 | ||||
6. |
Wire Transfer Operating Guidelines | 6 | ||||
7. |
Data Access and Proprietary Information | 7 | ||||
8. |
Indemnification | 9 | ||||
9. |
Standard of Care/Limitation of Liability | 10 | ||||
10. |
Confidentiality | 11 | ||||
11. |
Covenants of the Funds and the Transfer Agent | 11 | ||||
12. |
Termination of Agreement | 12 | ||||
13. |
Assignment and Third Party Beneficiaries | 13 | ||||
14. |
Subcontractors | 13 | ||||
15. |
Miscellaneous | 13 | ||||
16. |
Limitations of Liability of the Trustees and Shareholders | 15 | ||||
SCHEDULE A – List of Funds | ||||||
SCHEDULE 1.2(e) – AML Delegation | ||||||
SCHEDULE 2.1 – TPA Procedures | ||||||
SCHEDULE 3.1 – Fees and Expenses |
AMENDED AND RESTATED TRANSFER AGENCY AND SERVICE
AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (“AGREEMENT”) made as of the 1st day of January 2010, by and between each of the entities listed on Schedule A hereto and each being an entity of the type set forth on Schedule A and organized under the laws of the state of Delaware, each with a principal place of business at 000 Xxxxx Xxxxxx, Xxxx Xxxxxxxxxxxx, XX 00000-0000 and each of which is acting on its own behalf (each a “Fund” and collectively, the “Funds”), and BOSTON FINANCIAL DATA SERVICES, INC., a Massachusetts corporation having its principal office and place of business at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 (the “Transfer Agent”).
WHEREAS, the Fund and the Transfer Agent have entered into a Transfer Agency and Service Agreement made as of December 30, 2005 and amended effective July 3, 2006;
WHEREAS, the Fund and the Transfer Agent now wish to restate and amend the Agreement;
WHEREAS, the Fund intends to offer shares of the respective Funds to sophisticated investors determined by such Fund to satisfy the standards of (i) “Accredited Investors” as that term is defined in Regulation D under the Securities Act of 1933, as amended, (the “Securities Act”); and (ii) except with respect to Alternative Investment Partners Absolute Return Fund (“ARF”) and Alternative Investment Partners Absolute Return Funds STS (“ARF STS”), “Qualified Clients” for the purposes of Rule 205-3 under the Investment Advisers Act of 1940 (the “Advisers Act”); and
WHEREAS, each Fund desires to appoint the Transfer Agent as its transfer agent and disbursing agent 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 |
1.1 | Transfer Agency Services. Subject to the terms and conditions set forth in this Agreement, 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 its beneficial interest (“Shares”), disbursing agent and agent in connection with any account provided to the shareholders of each of the respective portfolios, if any, of the Funds (“Shareholders”) and set out 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 each Fund and the Transfer Agent, the Transfer Agent agrees that it will perform the following services: |
(a) Receive for acceptance, orders for the purchase of Shares, and promptly deliver payment and appropriate documentation thereof to the Custodian of the relevant Fund authorized pursuant to the Declaration of Trust of such Fund (the “Custodian”); |
(b) Pursuant to purchase orders, issue the appropriate number of Shares and hold such Shares in the appropriate Shareholder account; |
(c) Subject to agreed upon procedures for repurchase of Shares, receive for acceptance repurchase requests and redemption directions and deliver the appropriate documentation thereof to the Custodian; |
(d) In respect to the transactions in items (a), (b) and (c) above, the Transfer Agent shall only execute transactions directly with each Fund and with authorized shareholder servicing intermediaries (as the case may be) of such Fund; |
(e) At the appropriate time and when it receives monies paid to it by the Custodian with respect to any repurchase, pay over, or cause to be paid over, in the appropriate manner such monies as instructed; |
(f) Effect transfers of Shares by the registered owners thereof upon receipt of appropriate instructions; |
(g) Prepare and transmit payments for distributions declared by each Fund; |
(h) Pursuant to written procedures agreed to by the parties, manually calculate the estimated compensation based on the individual purchase amount for each purchase order for specific shareholder servicing intermediaries identified by the Fund and display such estimated compensation amounts on the purchase report provided to the Fund; |
(i) If applicable, issue replacement checks and place stop orders on original checks based on Shareholder’s representation that a check was not received or was lost. Such stop orders and replacements will be deemed to have been made at the request of a Fund, such Fund shall be responsible for all losses or claims resulting from such replacement; |
(j) Maintain records of account for and advise each Fund and its Shareholders as to the foregoing; and |
(k) Record the issuance of Shares of each Fund and maintain pursuant to SEC Rule 17Ad-10(e) a record of the total number of Shares of each Fund which are authorized, based upon data provided to it by each Fund, and issued and outstanding. The Transfer Agent shall also 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 each Fund. |
1.2 | Additional Services. In addition to, and neither in lieu nor in contravention of, the services set forth in the above Section 1.1, the Transfer Agent shall perform the following services: |
(a) Other Customary Services. Perform the customary services of a transfer agent, disbursing agent and, including but not limited to: maintaining all Shareholder accounts, preparing Shareholder lists for meetings, coordinating mailings of Shareholder reports and prospectuses to current Shareholders, where applicable provide a report of requested Shareholder information to the Funds’ outside vendor, withholding taxes on U.S. resident |
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and non-resident alien accounts, preparing applicable U.S. Treasury Department tax reporting forms, preparing and mailing confirmation forms and statements of account to Shareholders for all purchases and repurchases of Shares and other confirmable transactions in Shareholder accounts where applicable or requested, preparing and mailing activity statements for Shareholders, and providing Shareholder account information;
(b) Control Book (also known as “Super Sheet”). Maintain a daily record and produce a daily report for each Fund of all transactions and receipts and disbursements of money and securities and deliver a copy of such report for each Fund for each business day to each Fund no later than 9:00 AM Eastern Time, or such earlier time as each Fund may reasonably require, on the next business day; |
(c) National Securities Clearing Corporation (the “NSCC”). If requested: (i) accept and effectuate the registration and maintenance of accounts through Networking and the purchase, repurchase, transfer and exchange of shares in such accounts through Fund/SERV (Networking and Fund/SERV being programs operated by the NSCC on behalf of NSCC’s participants, including the Funds), in accordance with, instructions transmitted to and received by the Transfer Agent by transmission from NSCC on behalf of broker-dealers and banks which have been established by, or in accordance with the instructions of authorized persons, as hereinafter defined on the dealer file maintained by the Transfer Agent; (ii) issue instructions to the Funds’ banks for the settlement of transactions between each Fund and NSCC (acting on behalf of its broker-dealer and bank participants); and (iii) provide account and transaction information from the affected Fund’s records on DST Systems, Inc. computer system TA2000 (“TA2000 System”) in accordance with NSCC’s Networking and Fund/SERV rules for those broker-dealers; |
(d) New Procedures. New procedures as to who shall provide certain of these services in Section 1 may be established in writing from time to time by agreement between each Fund and the Transfer Agent. The Transfer Agent may at times perform only a portion of these services and each Fund or its agent may perform these services on each Fund's behalf; |
(e) Anti-Money Laundering (“AML”) Delegation. If the Funds elect to delegate to the Transfer Agent certain AML duties under this Agreement, the parties will agree to such duties and terms as stated in the attached schedule (“Schedule 1.2(e) entitled “AML Delegation”) which may be changed from time to time subject to mutual written agreement between the parties. In consideration of the performance of the duties by the Transfer Agent pursuant to this Section 1.2(e), each Fund agrees to pay the Transfer Agent for the reasonable administrative expense that may be associated with such additional duties in the amount as the parties may from time to time agree in writing in accordance with Section 3 (Fees and Expenses) below. |
1.3 | Transactions identified under Sections 1.1 and 1.2 of this Agreement shall be deemed exception services (“Exception Services”) when such transactions: |
(a) Require the Transfer Agent to use methods and procedures other than those usually employed by the Transfer Agent to perform services under Section 1 of this Agreement; |
(b) Involve the provision of information to the Transfer Agent after the commencement of the nightly processing cycle of the TA2000 System; or |
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(c) Require more manual intervention by the Transfer Agent, either in the entry of data or in the modification or amendment of reports generated by the TA2000 System than is usually required by non-retirement plan and pre-nightly transactions. |
2. | Third Party Administrators for Defined Contribution Plans |
2.1 | The Fund may decide to make available to certain of its customers, a qualified plan program (the “Program”) pursuant to which the customers (“Employers”) may adopt certain plans of deferred compensation (“Plan or Plans”) for the benefit of the individual Plan participant (the “Plan Participant”), such Plan(s) being qualified under Section 401(a) of the Code and administered by TPAs which may be plan administrators as defined in the Employee Retirement Income Security Act of 1974, as amended. |
2.2 | In accordance with the procedures established in Schedule 2.1 entitled “Third Party Administrator Procedures,” as may be amended by the Transfer Agent and the Fund from time to time (“Schedule 2.1”), the Transfer Agent shall: |
(a) Treat Shareholder accounts established by the Plans in the name of the Trustees, Plans or TPAs, as the case may be, as omnibus accounts; |
(b) Maintain omnibus accounts on its records in the name of the TPA or its designee as the Trustee for the benefit of the Plan; and |
(c) Perform all services under Section 1 as transfer agent of the Funds and not as a record-keeper for the Plans. |
3. | Fees and Expenses |
3.1 | Fee Schedule. For the performance by the Transfer Agent pursuant to this Agreement, each Fund agrees to pay the Transfer Agent an annual maintenance fee for each Shareholder account as set forth in the attached fee schedule (“Schedule 3.1”). Such fees and out-of-pocket expenses and advances identified under Section 3.2 below may be changed from time to time subject to mutual written agreement between each Fund and the Transfer Agent. |
3.2 | Reimbursable Expenses. In addition to the fees paid under Section 3.1 above, each Fund agrees to reimburse the Transfer Agent for out-of-pocket expenses, including but not limited to, confirmation production, postage, forms, telephone, microfilm, microfiche, records storage, or advances incurred by the Transfer Agent for the items set out in Schedule 2.1 attached hereto. In addition, any other expenses incurred by the Transfer Agent at the request or with the consent of a Fund, will be reimbursed by such Fund. |
3.3 | Invoices. Each Fund agrees to pay all fees and reimbursable expenses within thirty (30) days following the receipt of the respective billing notice, except for any fees or expenses that are subject to good faith dispute. In the event of such a dispute, a 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 |
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the receipt of each billing notice if the Fund is disputing any amounts in good faith. If the Fund does not provide such notice of dispute within the required time, the billing notice 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.
3.4 | Cost of Living Adjustment. Each January beginning in 2011, 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. |
3.5 | Late 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 |
The Transfer Agent represents and warrants to the Funds that:
4.1 | It is a corporation duly organized and existing and in good standing under the laws of The Commonwealth of Massachusetts. |
4.2 | It is duly qualified to carry on its business in The Commonwealth of Massachusetts. |
4.3 | It is empowered under applicable laws and by its Articles of Incorporation to enter into and perform the services contemplated in this Agreement. |
4.4 | It is a transfer agent fully registered as a transfer agent pursuant to Section 17A(c)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
4.5 | All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement. |
4.6 | It has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations under this Agreement. |
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5. | Representations and Warranties of Each Fund |
Each Fund represents and warrants to the Transfer Agent that:
5.1 | It is a statutory trust duly organized and existing and in good standing under the laws of the State of Delaware. |
5.2 | It is empowered under applicable laws and by its Declaration of Trust and By-Laws to enter into and perform this Agreement. |
5.3 | All corporate proceedings required by said Declaration of Trust and By-Laws have been taken to authorize it to enter into and perform this Agreement. |
5.4 | It is a closed-end and non-diversified management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”). |
5.5 | A registration statement under the Securities Act has been filed and once effective will remain effective, and appropriate state securities law filings have been made and will continue to be made, with respect to all Shares of the Funds being offered for sale. |
5.6 | It will only sell or arrange for the sale of Shares to “Accredited Investors” as that term is used in Regulation D under the Securities Act who are also, except with respect to ARF and ARF STS, “Qualified Clients” for purposes of Rule 205-3 under the Advisors Act. |
6. | Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code |
6.1 | Obligation 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 Funds’ instructions on the execution date provided that such payment order is received by the customary deadline for processing such a request, unless the payment order specifies a later time. All payment orders and communications received after the customary deadline will be deemed to have been received the next business day. |
6.2 | Security Procedure. Each Fund acknowledges that the Security Procedure it has designated on the Fund Selection Form was selected by the Funds 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 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 Funds’ authorized personnel. The Transfer Agent shall verify the authenticity of all Fund instructions according to the Security Procedure. |
6.3 | Account 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. |
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6.4 | Rejection. 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. |
6.5 | Cancellation 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 be satisfied. |
6.6 | Errors. 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. |
6.7 | Interest. 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. |
6.8 | ACH Credit Entries/Provisional Payments. When a Fund initiates or receives Automated Clearing House credit and debit entries pursuant to these guidelines and the rules of the National Automated Clearing House Association and the New England Clearing House Association, the Transfer Agent will act as an Originating Depository Financial Institution and/or Receiving Depository Financial Institution, as the case may be, with respect to such entries. Credits given by the Transfer Agent with respect to an ACH credit entry are provisional until the Transfer Agent receives final settlement for such entry from the Federal Reserve Bank. If the Transfer Agent does not receive such final settlement, the Funds agree that the Transfer Agent shall receive a refund of the amount credited to the Fund in connection with such entry, and the party making payment to the Fund via such entry shall not be deemed to have paid the amount of the entry. |
6.9 | Confirmation. 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. The Fund must report any objections to the execution of an order, in writing, within thirty (30) days according to established procedures. |
7. | Data Access and Proprietary Information |
7.1 | The Fund acknowledges that the databases, computer programs, screen formats, report formats, interactive design techniques, and documentation manuals furnished to the Funds by the Transfer Agent as part of each Fund’s ability to access certain Fund-related data |
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(“Customer 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. In no event shall Proprietary Information be deemed Customer Data. 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, each Fund agrees for itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Fund’s computers, or (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 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 terminal to be retransmitted to any other computer terminal 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. |
7.2 | Proprietary 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. |
7.3 | The 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 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. |
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7.4 | If the Funds notify 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. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. |
7.5 | If the transactions available to the Funds 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 Shareholder 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. |
7.6 | Each party shall take reasonable efforts to advise its employees of their obligations pursuant to this Section 7. The obligations of this Section shall survive any earlier termination of this Agreement. |
8. | Indemnification |
8.1 | The Transfer Agent shall not be responsible for, and each Fund shall indemnify and hold the Transfer Agent harmless from and against, any and all losses, damages, costs, charges, counsel fees, payments, expenses and liability arising out of or attributable to: |
(a) All actions of the Transfer Agent or its agents or subcontractors required to be taken pursuant to this Agreement (including the defense of any law suit in which the Transfer Agent or affiliate is a named party), provided that such actions are taken in good faith and without negligence or willful misconduct; |
(b) The Fund’s lack of good faith, negligence or willful misconduct; |
(c) The reliance upon, and any subsequent use of or action taken or omitted, by the Transfer Agent, or its agents or subcontractors on: (i) any information, records, documents, data, 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 Funds, and which have been prepared, maintained or performed by the Funds or any other person or firm on behalf of the Funds including, but not limited to, any shareholder servicing intermediary of a Fund or previous transfer agent; (ii) any instructions or requests of a Fund 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 after consultation with such legal counsel; or (iv) any paper or document, reasonably believed to be genuine, authentic, or signed by the proper person or persons; |
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(d) The acceptance of e-mail and facsimile transaction requests on behalf of individual Shareholders received from shareholder servicing intermediaries of the Funds, or the Funds, and the reliance by the Transfer Agent on such intermediaries or the Funds to ensure that the original source documentation is in good order and properly retained; |
(e) The offer or sale of Shares in violation of federal or state securities laws or regulations requiring that such Shares be registered or in violation of any stop order or other determination or ruling by any federal or any state agency with respect to the offer or sale of such Shares; |
(f) The negotiation and processing of any checks, and wires including without limitation for deposit into the Funds’ demand deposit account maintained by the Transfer Agent; or |
(g) Upon the Funds’ request entering into any agreements required by the NSCC for the transmission of Fund or Shareholder data through the NSCC clearing systems. |
8.2 | In order that the indemnification provisions contained in this Section 8 shall apply, upon the assertion of a claim for which a Fund may be required to indemnify the Transfer Agent, the Transfer Agent shall promptly notify the Fund of such assertion, and shall keep the Fund advised with respect to all developments concerning such claim. The Fund shall have the option to participate with the Transfer Agent in the defense of such claim or to defend against said claim in its own name or in the name of the Transfer Agent. The Transfer Agent shall in no case confess any claim or make any compromise in any case in which the Fund may be required to indemnify the Transfer Agent except with the Fund’s prior written consent. |
9. | Standard of Care/Limitation of Liability |
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 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 Section 4-209 of the Uniform Commercial Code is superseded by Section 8 of this Agreement. This standard of care also shall apply to Exception Services, as defined in Section 1.3 herein, but such application shall take into consideration the manual processing involved in, and time sensitive nature of, Exception Services. Notwithstanding the foregoing, the Transfer Agent’s aggregate liability during any 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, 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, during the six (6) calendar months immediately preceding the event for which recovery from the Transfer Agent is being sought.
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10. | Confidentiality |
10.1 | The Transfer Agent and the Funds 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 customers’ lists, trade secrets, cost figures and projections, profit figures and projections, or any other secret or confidential information whatsoever, whether of the Transfer Agent or of a Fund, used or gained by the Transfer Agent or the Funds during performance under this Agreement. The Fund and the Transfer Agent further covenant and agree to retain all such knowledge and information acquired during and after the term of this Agreement respecting such lists, trade secrets, or any secret or confidential information whatsoever in trust for the sole benefit of the Transfer Agent or the Funds 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 data to its sub-contractor or Fund agent for purposes of providing services under this Agreement. |
10.2 | In the event that any requests or demands are made for the inspection of the Shareholder records of a Fund, other than request for records of Shareholders pursuant to standard subpoenas from state or federal government authorities (i.e., divorce and criminal actions), the Transfer Agent will endeavor to notify the Fund 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 the Shareholder records to any person whenever it is advised by counsel that it may be held liable for the failure to exhibit the Shareholder records to such person or if required by law or court order. |
11. | Covenants of the Funds and the Transfer Agent |
11.1 | The Fund shall promptly furnish to the Transfer Agent the following: |
(a) A copy of the resolution of the Board of Trustees of each Fund authorizing the appointment of the Transfer Agent and the execution and delivery of this Agreement; and |
(b) A copy of the Declaration of Trust and By-Laws of each Fund and all amendments thereto. |
11.2 | The Transfer Agent hereby agrees to establish and maintain facilities and procedures reasonably acceptable to the Funds 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. |
11.3 | The Transfer Agent shall keep records relating to the services to be performed hereunder, in the form and manner as it may deem advisable. To the extent required by Section 31 of the 1940 Act, and the rules thereunder, the Transfer Agent agrees that all such records prepared or maintained by the Transfer Agent relating to the services to be performed by the Transfer Agent hereunder are the property of the applicable Fund and will be preserved, maintained and made available in accordance with such Section and Rules, and will be surrendered promptly to such Fund on and in accordance with its request. |
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12. | Termination of Agreement |
12.1 | Term. The initial term of this Agreement (the “Initial Term”) shall be three (3) years from the date first stated above unless terminated pursuant to the provisions of this Section 12. Unless a terminating party gives written notice to the other party one hundred and twenty (120) days before the expiration of the Initial Term or any Renewal Term, this Agreement will renew automatically from year to year (each such year-to-year renewal term a “Renewal Term”). One hundred and twenty (120) days before the expiration of the Initial Term or a Renewal Term the parties to this Agreement will agree upon a Fee Schedule for the upcoming Renewal Term. Otherwise, the fees shall be increased pursuant to Section 3.4 of this Agreement. 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. |
12.2 | Early Termination. Notwithstanding anything contained in this Agreement to the contrary, should the Funds desire to move any of its services provided by the Transfer Agent hereunder to a successor service provider prior to the expiration of the then current Initial or Renewal Term, or without the required notice, the Transfer Agent shall make a good faith effort to facilitate the conversion on such prior date; however, there can be no guarantee or assurance that the Transfer Agent will be able to facilitate a conversion of services on such prior date. In connection with the foregoing, should services be converted to a successor service provider, or if a Fund is liquidated or its assets merged or purchased or the like with or by another entity which does not utilize the services of the Transfer Agent, the fees payable to the Transfer Agent shall be calculated as if the services had been performed by the Transfer Agent until the expiration of the then current Initial or Renewal Term and calculated at the asset and/or Shareholder account levels, as the case may be, on the date notice of termination was given to the Transfer Agent, and the payment of all fees to the Transfer Agent as set forth herein shall be accelerated to the business day immediately prior to the conversion or termination of services. |
12.3 | Expiration of Term. During the Initial Term or Renewal Term, whichever currently is in effect, should either party exercise its right to terminate, all out-of-pocket expenses or costs associated with the movement of records and material will be borne by the Funds. Additionally, the Transfer Agent reserves the right to charge for any other reasonable expenses associated with such termination. |
12.4. | Confidential 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. |
12.5 | Unpaid Invoices. The Transfer Agent may terminate this Agreement immediately upon an unpaid invoice payable by the Funds to the Transfer Agent being outstanding for more than ninety (90) days, except with respect to any amount subject to a good faith dispute within the meaning of Section 3.3 of this Agreement. |
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12.6 | Bankruptcy. 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. |
13. | Assignment and Third Party Beneficiaries |
13.1 | Except 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. |
13.2 | Except 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 Funds, and the duties and responsibilities undertaken pursuant to this Agreement shall be for the sole and exclusive benefit of the Transfer Agent and the Funds. This Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns. |
13.3 | This Agreement does not constitute an agreement for a partnership or joint venture between the Transfer Agent and each Fund. Other than as provided in Section 14.1 and Schedule 1.2(e), 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 |
14.1 | The Transfer Agent may, without further consent on the part of the Funds, subcontract for the performance hereof with a subsidiary or affiliate duly registered as a transfer agent pursuant to Section 17A(c)(2) of the Securities Exchange Act of 1934, as amended; provided, however, that the Transfer Agent shall be fully responsible to the Funds for the acts and omissions of such subsidiary or 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. The Transfer Agent may provide the services hereunder from service locations within or outside of the United States. |
14.2 | Nothing herein shall impose any duty upon the Transfer Agent in connection with or make the Transfer Agent liable for the actions or omissions to act of 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, provided, if the Transfer Agent selected such company, the Transfer Agent shall have exercised due care in selecting the same. |
15. | Miscellaneous |
15.1 | Amendment. This Agreement may be amended or modified by a written agreement executed by both parties and authorized or approved by a resolution of the Board of Trustees of each Fund. |
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15.2 | Massachusetts Law to Apply. This Agreement shall be construed and the provisions thereof interpreted under and in accordance with the laws of The Commonwealth of Massachusetts. |
15.3 | Force Majeure. In the event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, equipment or transmission failure or damage reasonably beyond its control, or other causes reasonably beyond its control, such party shall not be liable for damages to the other for any damages resulting from such failure to perform or otherwise from such causes. |
15.4 | Consequential 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. |
15.5 | Survival. 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. |
15.6 | Severability. 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. |
15.7 | Priorities 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. |
15.8 | Waiver. 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. |
15.9 | Merger of Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement with respect to the subject matter hereof whether oral or written. |
15.10 | Counterparts. This Agreement may be executed by the parties hereto on any number of counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. |
15.11 | 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. |
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15.12 | Notices. 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. | ||
0000 Xxxxx Xxxxxx Xxxxx | ||
Xxxxxx, Xxxxxxxxxxxxx 00000 | ||
Attention: Legal Department | ||
Facsimile: (000) 000-0000 | ||
(b) |
If to the Funds, to: | |
Xxxxxx Xxxxxxx /Operations | ||
000 Xxxxx Xxxxxx/Xxxxx 000 | ||
Xxxx Xxxxxxxxxxxx, XX 00000-0000 | ||
Attention: Xxxx Xxxxxxxx, Executive Director | ||
Facsimile: (000) 000-0000 |
16. | Limitations of Liability of the Trustees and Shareholders |
The parties acknowledge that this instrument is executed on behalf of the Trustees of a Fund as Trustees and not individually and the obligations of this instrument are not binding upon any of the Trustees or Shareholders individually but are binding only upon the assets and property of the Funds.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their names and on their behalf by and through their duly authorized officers, as of the day and year first above written.
Each of the Funds on Schedule A | ||
By: |
A duly authorized officer of each such Entity | ||
Name: | ||
Title: |
ATTEST: |
BOSTON FINANCIAL DATA SERVICES, INC. | ||
By: | ||
Xxxxxxx X. Xxxxxxxx, Vice President |
ATTEST: |
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SCHEDULE A
LIST OF FUNDS
Dated: January 1, 2010
Alternative Investment Partners Absolute Return Fund
Alternative Investments Absolute Return Fund STS
Xxxxxx Xxxxxxx Global Long/Short Fund A
Xxxxxx Xxxxxxx Global Long/Short Fund P
Alternative Investment Partners Absolute Return Fund II A
Alternative Investment Partners Absolute Return Fund II P
Each of the Funds on Schedule A | ||
By: | ||
A duly authorized officer of each such Entity | ||
BOSTON FINANCIAL DATA SERVICES, INC. | ||
By: | ||
Xxxxxxx X. Xxxxxxxx, Vice President |
AMENDMENT
To Amended and Restated Transfer Agency and Service Agreement
Between
Each of the Entities on Schedule A
And
Boston Financial Data Services, Inc.
This Amendment is made as of this 14th day of May, 2012. In accordance with Section 15.1 (Amendment) of the Amended and Restated Transfer Agency and Service Agreement (the “Agreement”) between Each of the Entities listed on Schedule A to the Agreement and Boston Financial Data Services, Inc. dated as of January 1, 2010, the parties desire to amend the Agreement as set forth herein.
NOW THEREFORE, the parties agree as follows:
1. | Schedule A. The current Schedule A to the Agreement is replaced and superseded with the Schedule A attached hereto and dated May 14, 2012; |
2. | All defined terms and definitions in the Agreement shall be the same in this amendment except as specifically revised by this Amendment. |
IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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.
EACH OF THE FUNDS ON SCHEDULE A | BOSTON FINANCIAL DATA SERVICES, INC. | |||
By: |
By: | |||
A duly authorized officer of each such Entity |
||||
Name: Xxxxxxx Xxx |
Name: Xxxxxxx X. Xxx | |||
Title: Assistant Treasurer |
Title: Chief Operating Officer |
SCHEDULE A
LIST OF FUNDS
Dated: May 14, 2012
AIP Macro Registered Fund A
Alternative Investments Absolute Return Fund STS
Alternative Investment Partners Absolute Return Fund
Alternative Investment Partners Multi Strategy Fund A
Alternative Investment Partners Multi Strategy Fund P
Xxxxxx Xxxxxxx Global Long/Short Fund A
Xxxxxx Xxxxxxx Global Long/Short Fund P
EACH OF THE FUNDS ON SCHEDULE A | BOSTON FINANCIAL DATA SERVICES, INC. | |||
By: |
By: | |||
A duly authorized officer of each such Entity |
||||
Name: Xxxxxxx Xxx |
Name: Xxxxxxx X. Xxx | |||
Title: Assistant Treasurer |
Title: Chief Operating Officer |
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