SUB-TRANSFER AGENCY AGREEMENT
This AGREEMENT is made as of this 21st day of August, 1995, by and
between State Street Bank and Trust Company, a Massachusetts trust company
("State Street"), and AMERICA'S UTILITY FUND SERVICE COMPANY, a Virginia
corporation (the "SubAgent");
WHEREAS, State Street and America's Utility Fund, Inc. (the "Fund"), a
Maryland corporation, have entered into a Transfer Agency and Service Agreement
dated as of August 21, 1995 (the "Fund Agreement"), pursuant to which State
Street has agreed to provide certain transfer agent, dividend disbursing agent
and other services to the Fund; and
WHEREAS, State Street desires to appoint the Sub-Agent to perform
certain transfer agent, dividend disbursing agent and other services to the Fund
and its current shareholders and additional investors who purchase shares of the
Fund through facilities made available to Virginia Power and North Carolina
Power customers (such shareholders and additional investors who purchase such
shares through such facilities are referred to herein as "Shareholders" and
shares held by such Shareholders are referred to herein as "Shares");
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Sub-Agent Services. The Sub-Agent agrees to provide such services as State
Street may reasonably request to assist State Street in performing its
obligations under the Fund Agreement, which may include the following:
1.1. Purchase of Shares. Upon receipt by the Sub-Agent of any order for
the purchase of Shares from or on behalf of a Shareholder, the Sub-Agent shall
stamp such order with the date of receipt, promptly deposit all funds received
to the account of the Fund maintained with the entity then acting as custodian
for the portfolio securities and cash of the Fund (the "Custodian"), compute (to
the nearest three decimal places) the number of Shares to be purchased according
to the public offering price in effect for purchases made on the date of such
receipt as set forth in the Fund's current prospectus and/or statement of
additional information, notify the Fund and State Street daily of the deposit of
such funds to the Fund's account with the Custodian and the number of Shares
subscribed for, and prepare and mail quarterly statements reflecting such
purchases to the addresses specified by the persons making them. All such
actions are subject to any instructions which State Street, the Fund, or Project
America, Inc. (the "Distributor") may give to the Sub-Agent with respect to
acceptance of orders for Shares so received by it.
All Shares purchased shall be credited to a book share account
maintained for the purchasing Shareholder by the Sub-Agent. No share
certificates for Shares shall be issued by
the Fund.
1.2. Unpaid Checks. In the event that any check or other order for
payment of money with respect to any purchase of Shares is returned unpaid for
any reason, the Sub-Agent shall promptly notify State Street and the purchasing
Shareholder of such nonpayment, and take such other steps as State Street may
instruct.
1.3. Redemption of Shares. Upon receipt of any request for the
redemption of Shares from or on behalf of a Shareholder, the Sub-Agent shall
stamp such request with the date of receipt, determine whether such request
complies with all requirements for redemption set forth in the Fund's current
prospectus and/or statement of additional information, and if so, compute the
redemption price in the manner set forth therein. If such request does not
comply with such requirements for redemption, the Sub-Agent shall notify the
redeeming Shareholder of the respects in which compliance is lacking and effect
redemption at such time as all requirements for redemption are met.
The Sub-Agent shall notify State Street and the Fund daily of the
amount of funds required for payment upon redemption of Shares and the number of
Shares redeemed. Upon the receipt of such funds from State Street or the
Custodian, the Sub-Agent shall pay over or cause to be paid over the redemption
proceeds to redeeming Shareholders as instructed by them in the manner described
in the Fund's current prospectus and/or statement of additional information, and
prepare and mail notices of such redemptions.
1.4. Transfer of Shares. Upon receipt by the Sub-Agent of documentation
in proper form to effect a transfer of Shares, pursuant to instructions
contained in such documentation, the Sub-Agent shall register such transfer on
the Fund's shareholder records maintained by the Sub-Agent.
1.5. Administration of Plans. The Sub-Agent shall administer such plans
for the periodic purchase of Shares as are described in the prospectus and/or
statement of additional information of the Fund corresponding to the date of
this Agreement in accordance with the terms of such plans, or as the Sub-Agent
and the Fund may mutually agree from time to time.
1.6. Dividends and Distributions. Upon the declaration of any cash
dividend or distribution upon the Shares, State Street shall notify the
Sub-Agent of the date of payment of such dividend or distribution, the record
date as of which Shareholders entitled to payment thereof shall be determined,
and the amount payable per Share to Shareholders of record as of such record
date. The Sub-Agent shall notify the Fund and the Custodian of the amount of
cash required to pay the dividend or distribution so that the Fund may instruct
its Custodian to make sufficient funds available to the Sub-Agent for such
purpose on or before the payment date.
Upon receipt of such funds from the Custodian, the Sub-Agent shall
prepare and mail to Shareholders, at their addresses as they appear on the
records maintained by the Sub-Agent or pursuant to any written order of a
shareholder on file with the Sub-Agent, checks representing any dividends and
distributions to which they are entitled. If a Shareholder is entitled to
receive additional Shares by reason of his decision to reinvest all or a portion
of a dividend or distribution, appropriate credits shall be made to his book
share account. The Sub-Agent shall notify such Shareholders of such dividends
and distributions by quarterly statements.
1.7. Tax Returns and Reports. The Sub-Agent shall prepare, file with
the Internal Revenue Service and with appropriate state or local agencies, and
mail to Shareholders such returns for reporting dividends, distributions and
redemptions as are required to be so prepared, filed and/or mailed, and withhold
from the accounts of shareholders such sums as are required to be withheld,
under applicable federal, state and local tax laws, rules and regulations in
effect from time to time.
1.8. Other Reports and Information. The Sub-Agent shall furnish to
State Street and the Fund such information, including shareholder lists, sales
information on a state by state basis and other statistical information, in such
form and at such intervals, which may be daily, as may be reasonably requested
by the Fund and supported by the Sub-Agent's system.
1.9. Record Keeping. The Sub-Agent shall keep records relating to the
services to be performed hereunder, in such form and manner as it may deem
advisable or State Street may reasonably require. The Sub-Agent agrees that all
such records prepared or maintained by the Sub-Agent relating to the services to
be performed by the Sub-Agent hereunder are the property of the Fund and will be
preserved, for the periods prescribed under Rule 31a-2 of said rules as
specifically noted below, maintained at the expense of the Fund, and made
available to State Street and the Fund upon the request of either of them. The
Sub-Agent shall forthwith upon State Street's or the Fund's demand surrender
promptly to State Street or the Fund and cease to retain in its files, records
and documents created and maintained by the SubAgent pursuant to this Agreement.
If not so turned over to State Street or the Fund, such records and documents
will be retained by the Sub-Agent for six years from the year of creation,
during the first two of which such documents will be in readily accessible form.
At the end of the six-year period, such records and documents will either be
turned over to State Street or the Fund or destroyed in accordance with the
Fund's authorization.
In the case of any requests or demands for the inspection of the
shareholder records of the Fund, the Sub-Agent shall endeavor to notify State
Street and the Fund and to secure instructions from an officer of the Fund as to
such inspection. The Sub-Agent reserves the right, however, to exhibit
shareholder records to any person whenever it is advised in writing by its
counsel, with a copy to the Fund, that it may be held liable for the failure to
do so.
The Sub-Agent undertakes to maintain and preserve, as instructed by the
Fund, on behalf of the Distributor, the books and records required to be
maintained and preserved by the Distributor in respect of the Shares pursuant to
Securities and Exchange Commission Rules 17a-3 and 17a-4 under the Securities
Exchange Act of 1934, as amended. With respect to any books and records
maintained or preserved on behalf of the Distributor the Sub-Agent hereby
undertakes to permit examination of such books and records at any time or from
time to time during business hours by representatives or designees of the
Securities and Exchange Commission, and to promptly furnish to said Commission
or its designee true, correct, complete and current hard copy of any or all or
any part of such books and records.
2. Compensation. For the services to be performed by the Sub-Agent pursuant to
this Agreement, State Street agrees to pay the Sub-Agent a fee at the annual
rate of .10% of the average daily net assets attributable to Shares held by the
Shareholders. Such fee shall be payable in arrears on the 15th day of each
month.
3. Indemnification.
3.1. The Sub-Agent shall indemnify and hold State Street and the Fund
harmless from and against any and all losses, damages, costs, charges,
reasonable attorney's fees, payments, expenses and liabilities arising out of or
attributable to the Sub-Agent's bad faith, negligence or willful misconduct in
the performance of its duties hereunder. For purposes of this Section 3.1, any
acts or omissions by any agent or subcontractor of the Sub-Agent shall be
considered those of the Sub-Agent.
3.2. State Street shall indemnify and hold harmless the Sub-Agent from
and against any and all losses, damages, costs, charges, reasonable attorney's
fees, payments, expenses and liabilities incurred by the Sub-Agent in connection
with its performance hereunder to the extent such losses, damages, costs,
charges, reasonable attorney's fees, payments, expenses and liabilities do not
arise out of or are attributable to the Sub-Agent's bad faith, negligence or
willful misconduct in the performance of its duties hereunder; provided however,
that State Street shall only be required to indemnify and hold harmless the
Sub-Agent under this Section 3.2 in respect of any losses, damages, costs,
charges, reasonable attorney's fees, payments, expenses and liabilities to the
extent State Street previously has been indemnified and held harmless by the
Fund pursuant to the Fund Agreement for such losses, damages, costs, charges,
reasonable attorney's fees, payments, expenses or liabilities.
3.3. At any time the Sub-Agent may apply to any officer of the Fund for
instructions, and may request, through an officer of the Fund, the opinion of
the Fund's legal counsel, with respect to any matter arising in connection with
the services to be performed by the Sub-Agent under this agreement, and the
Sub-Agent and its agents and subcontractors shall not be liable and shall be
indemnified as provided in Section 3.2 by State Street for any action taken or
omitted by it in reliance upon such instructions or upon the opinion of such
counsel. The SubAgent, its agents and subcontractors shall be protected and
indemnified in acting in a
reasonable manner upon any papers or documents furnished by or on behalf of the
Fund, any shareholder of the Fund or any representative of a shareholder,
reasonably believed to be genuine and to have been signed by the proper person
or persons, or upon any instructions, information, data, records or documents
provided the Sub-Agent or its agents or subcontractors by telephone, in person,
or by machine readable input, telex, CRT data entry or similar means authorized
by the Fund, and the Sub-Agent, its agents and subcontractors shall not be held
to have notice absent actual notice of any change of authority of any person
until receipt of written notice thereof from the Fund. The Sub-Agent, its agents
and subcontractors shall also be protected under Section 3.2 by State Street in
recognizing stock certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of the Fund, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
3.4. In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, interruption
of electrical power or other utilities, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond its
control, such party shall not be liable to the other for any damages resulting
from such failure to perform or otherwise from such causes.
3.5. Neither party to this Agreement shall be liable to the other party
for consequential, special or incidental damages under any provision of this
Agreement or for any act or failure to act hereunder.
3.6. In order that the indemnification provisions contained in this
Section 3 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion and shall keep the other party
advised with respect to all developments concerning such claim. The party who
may be required to indemnify shall have the option to participate with the party
seeking indemnification in the defense of such claim and, at its option, to
assume the defense thereof (in which case, the indemnifying party shall have no
further obligation to indemnify the party seeking indemnification for any
expenses thereafter incurred by such party in connection with the defense). The
party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it,
except with the other party's prior written consent.
4. Term and Termination.
4.1. This Agreement shall terminate immediately upon the termination
of the Fund Agreement.
4.2. This Agreement may be terminated by either party hereof upon 60
days prior written notice.
5. Assignment. Except as hereinafter provided, neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without the
written consent of the other party. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective permitted successors and
assigns. The Sub-Agent may, without further consent on the part of State Street
or the Fund, subcontract for the performance hereof with third parties, or
subsidiaries or other affiliates of the Sub-Agent; provided, however, that the
Sub-Agent shall be as fully responsible to State Street and the Fund for the
acts and omissions of any subcontractor as it is for its own acts and omissions
and shall be responsible for its choice of subcontractor.
6. Amendment. This Agreement may not be amended or modified in any manner
except by a written instrument executed by both parties.
7. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia. The captions in this
Agreement are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute the entire Agreement between the parties hereto and
supersede any prior oral or written Agreement with respect to the subject matter
hereof.
8. Notices. Any notice or other communication required to be given pursuant to
this Agreement shall be deemed given if delivered or mailed by registered mail,
postage prepaid, (a) to the Sub-Agent at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000 , (b) to State Street at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and (c) to the Fund at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000.
9. Beneficiaries. Each of the Fund and the Distributor shall be third-party
beneficiaries of this Agreement and the Sub-Agent hereby acknowledges that each
of the Fund and the Distributor is relying thereupon in respect of State
Street's entering into this Agreement. Each of the Fund and the Distributor
shall be entitled to enforce against the Sub-Agent any obligations of the
Sub-Agent in respect of it as if the Fund or the Distributor, as the case may
be, were a party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their officers thereunto duly authorized as of the date
first above written.
STATE STREET BANK AND
AND TRUST COMPANY
By:____________________
Title:
AMERICA'S UTILITY FUND
SERVICE COMPANY
By:____________________
Title:
