Exhibit 9(c)
THE XXXXXXX FUNDS
XXXXXX SQUARE MANAGEMENT CORPORATION
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of the 18th day of August,
1995, between The Xxxxxxx Funds, a Delaware, business trust (the "Trust"),
having its principal place of business in White Plains, New York, and Xxxxxx
Square Management Corporation, a corporation organized under the laws of the
State of Delaware ("Xxxxxx Square"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment
company and offers for public sale one or more distinct, series of shares of
beneficial interest ("Series"), par value $0.001 per share, each corresponding
to a distinct portfolio;
WHEREAS, each share of a Series represents an undivided interest in the
assets, subject to the liabilities, allocated to that Series and each Series
has a separate investment objective and policies;
WHEREAS, at the present time, the Trust anticipates it will establish
multiple Series;
WHEREAS, the Trust desires to avail itself of the services of Xxxxxx
Square to serve as the Trust's transfer agent; and
WHEREAS, Xxxxxx Square is willing to furnish such services to the Trust
with respect to each Series listed in Schedule A to this Agreement (each, a
"Fund," and two or more together "Funds") on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Trust and Xxxxxx Square agree as follows:
1. APPOINTMENT. The Trust hereby appoints Xxxxxx Square as transfer
agent, registrar and dividend disbursing agent for the shares of beneficial
interest of the Trust (the "Shares") and as servicing agent in connection with
the disbursements of dividends and distributions and as shareholders'
servicing agent for the Trust, each such appointment to take effect as of the
date first written above, and Xxxxxx Square shall act as such and perform its
obligations thereof upon the terms and conditions hereafter set forth and in
accordance with the principles of principal and agent enunciated by the common
law.
2. DOCUMENTS. The Trust has furnished Xxxxxx Square with copies
properly certified or authenticated of each of the following:
a. The Trust's Certificate of Trust filed with the Secretary of
the State of Delaware on April 3, 1995 and all amendments
thereto and restatements thereof;
TRANSFER.RTF
b. The Trust's Agreement and Declaration of Trust and all
amendments thereto and restatements thereof;
c. The Trust's By-laws and all amendments thereto and restatements
thereof (such By-laws, as presently in effect and as they shall
from time to time be amended or restated, are herein called
"By-laws");
d. Resolutions of the Trust's Board of Trustees authorizing the
appointment of Xxxxxx Square to provide certain accounting
services to the Trust and approving this Agreement;
e. The Trust's Notification of Registration filed pursuant to
Section 8(a) of the Investment Company Act as filed with the
Securities and Exchange Commission ("SEC") on May 1, 1995;
f. The Trust's most recent Registration Statement on Form N-1A
under the Securities Act of 1933 (the "1933 Act") (File No. 33-
91770) and under the 1940 Act (File No. 811-9038), as filed
with the SEC relating to shares of beneficial interest in the
Trust, and all amendments thereto;
g. The Trust's most current Prospectus(es) and Statement(s) of
Additional Information ("SAI") relating to the Fund(s);
h. The Trust's Distribution and Shareholder Service Plan, if any,
under Rule 12b-1;
i. The executed Trust agreements listed on Schedule B hereto; and
j. If required, a copy of either (i) a filed notice of eligibility
to claim the exclusion from the definition of "commodity pool
operator" contained in Section 2(a)(1)(A) of the Commodity
Exchange Act ("CEA") that is provided in Rule 4.5 under the
CEA, together with all supplements as are required by the
Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Trust by the CFTC which states that
the Trust will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii) a letter
which has been granted the Trust by the CFTC which states that
CFTC will not take any enforcement action if the Trust does not
register as a "commodity pool operator."
The Trust will xxxxxxx Xxxxxx Square from time to time with
copies, properly certified or authenticated, of all additions,
amendments or supplements to the foregoing, if any.
3. DEFINITIONS.
a. Authorized Person. As used in this Agreement, the term
"Authorized Person" means any officer of the Trust and any
other person, whether or not any such person is an officer or
employee of the Trust, duly authorized by the Trustees of the
Trust to give Oral and Written Instructions on behalf of the
Fund(s) and certified by the Secretary or Assistant Secretary
of the Trust or any amendment thereto as may be received by
Xxxxxx Square from time to time.
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b. Oral Instructions. As used in this Agreement, the term "Oral
Instructions" means oral instructions actually received by
Xxxxxx Square from an Authorized Person or from a person
reasonably believed by Xxxxxx Square to be an Authorized
Person. The Trust agrees to deliver to Xxxxxx Square, at the
time and in the manner specified in Section 4(b) of this
Agreement, Written Instructions confirming Oral Instructions.
c. Written Instructions. As used in this Agreement, the term
"Written Instructions" means written instructions delivered by
hand, mail, telegram, cable, telex or facsimile, signed by an
Authorized Person and received by Xxxxxx Square.
4. INSTRUCTIONS CONSISTENT WITH DECLARATION OF TRUST, ETC.
a. Unless otherwise provided in this Agreement, Xxxxxx Square
shall act only upon Oral or Written Instructions. Although
Xxxxxx Square may know of the provisions of the Declaration of
Trust and By-laws of the Trust, Xxxxxx Square may assume that
any Oral or Written Instructions received hereunder are not in
any way inconsistent with any provisions of such Declaration of
Trust or By-laws or any vote, resolution or proceeding of the
shareholders, or of the Trustees, or of any committee thereof.
b. Rodney Square shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by
Xxxxxx Square pursuant to this Agreement. The Trust agrees to
forward to Xxxxxx Square Written Instructions confirming Oral
Instructions in such manner that the Written Instructions are
received by Xxxxxx Square by the close of business of the same
day that such Oral Instructions are given to Xxxxxx Square.
The Trust agrees that the fact that such confirming Written
Instructions are not received by Xxxxxx Square shall in no way
affect the validity of the transactions or enforceability of
the transactions authorized by such Oral Instructions. The
Trust agrees that Xxxxxx Square shall incur no liability to the
Trust in acting upon Oral Instructions given to Xxxxxx Square
hereunder concerning such transactions, provided such
instructions reasonably appear to have been received from an
Authorized Person.
5. TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of contrary
Written Instructions, Xxxxxx Square is authorized to take the following
actions:
a. Issuance of Shares. Upon receipt of a purchase order from the
National Distributors, as defined in the Distribution Agreement
between the Trust and the National Distributors or a
prospective shareholder for the purchase of Shares and
sufficient information to enable Xxxxxx Square to establish a
shareholder account or to issue Shares to an existing
shareholder account, and after confirmation of receipt or
crediting of Federal funds for such order from Xxxxxx Square's
designated bank, Xxxxxx Square shall issue and credit the
account of the investor or other record holder with Shares in
the manner described in the Prospectus. Xxxxxx Square shall
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deposit all checks received from prospective shareholders into
an account on behalf of the Trust, and shall promptly transfer
all Federal funds received from such checks to the Custodian,
as defined in the Custodian Agreement between the Trust and the
Custodian. (References herein to "Custodian" shall also be
construed to refer to a "Sub-Custodian" if such appointment has
been made.) If so directed by the Distributor, the confirmation
supplied to the shareholder to xxxx such issuance will be
accompanied by a Prospectus.
b. Transfer of Shares; Uncertificated Securities. Where a
shareholder does not hold a certificate representing the number
of Shares in its account and does provide Xxxxxx Square with
instructions for the transfer of such Shares which include a
signature guaranteed by a commercial bank, trust company or
member firm of a national securities exchange and such other
appropriate documentation to permit a transfer, then Xxxxxx
Square shall register such Shares and shall deliver them
pursuant to instructions received from the transferor, pursuant
to the rules and regulations of the SEC, and the laws of the
State of Delaware relating to the transfer of shares of
beneficial interest.
c. Share Certificates. If at any time the Fund issues share
certificates, the following provisions will apply:
(1) The Trust will supply Xxxxxx Square with a sufficient
supply of share certificates representing Shares, in the
form approved from time to time by the Trustees of the
Trust, and, from time to time, shall replenish such supply
upon request of Xxxxxx Square. Such share certificates
shall be properly signed, manually or by facsimile
signature, by the duly authorized officers of the Trust,
and shall bear the corporate seal or facsimile thereof of
the Trust, and notwithstanding the death, resignation or
removal of any officer of the Trust, such executed
certificates bearing the manual or facsimile signature of
such officer shall remain valid and may be issued to
shareholders until Xxxxxx Square is otherwise directed by
Written Instructions.
(2) In the case of the loss or destruction of any certificate
representing Shares, no new certificate shall be issued in
lieu thereof, unless there shall first have been furnished
an appropriate bond of indemnity issued by a surety
company approved by Xxxxxx Square.
(3) Upon receipt of signed share certificates, which shall be
in proper form for transfer, and upon cancellation or
destruction thereof, Xxxxxx Square shall countersign,
register and issue new certificates for the same number of
Shares and shall deliver them pursuant to instructions
received from the transferor, the rules and regulations of
the SEC, and the laws of the State of Delaware relating to
the transfer of shares of beneficial interest.
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(4) Upon receipt of the share certificates, which shall be in
proper form for transfer, together with the shareholder's
instructions to hold such share certificates for
safekeeping, Xxxxxx Square shall reduce such Shares to
uncertificated status, while retaining the appropriate
registration in the name of the shareholder upon the
transfer books.
(5) Upon receipt of written instructions from a shareholder of
uncertificated securities for a certificate in the number
of shares in its account, Xxxxxx Square will issue such
share certificates and deliver them to the shareholder.
d. Redemption of Shares. Upon receipt of a redemption order from
the Distributor or a shareholder, Xxxxxx Square shall redeem
the number of Shares indicated thereon from the redeeming
shareholder's account and receive from the Trust's Custodian
and disburse pursuant to the instructions of a redeeming
shareholder or his or her agent the redemption proceeds
therefor, or arrange for direct payment of redemption proceeds
by the Custodian to the redeeming shareholder or as instructed
by the shareholder or his or her agent, in accordance with such
procedures and controls as are mutually agreed upon from time
to time by and among the Trust, Xxxxxx Square and the Trust's
Custodian.
6. AUTHORIZED ISSUED AND OUTSTANDING SHARES. The Trust agrees to
notify Xxxxxx Square promptly of any change in the number of authorized Shares
and of any change in the number of Shares registered under the 1933 Act, as
amended or termination of the Trust's declaration under Rule 24f-2 of the 1940
Act. The Trust has advised Xxxxxx Square, as of the date hereof, of the
number of Shares (i) held in any redemption or repurchase account, and (ii)
registered under the 1933 Act, as amended, which are unsold. In the event
that the Trust shall declare a stock dividend, a stock split or a reverse
stock split, the Trust shall deliver to Xxxxxx Square a certificate, upon
which Xxxxxx Square shall be entitled to rely for all purposes, certifying (i)
the number of Shares involved, (ii) that all appropriate corporate action has
been taken, and (iii) that any amendment to the Declaration of Trust of the
Trust which may be required has been filed and is effective. Such certificate
shall be accompanied by an opinion of counsel to the Trust relating to the
legal adequacy and effect of the transaction.
7. DIVIDENDS AND DISTRIBUTIONS. The Trust shall xxxxxxx Xxxxxx Square
with appropriate evidence of action by the Trust's Trustees authorizing the
declaration and payment of dividends and distributions as described in the
Prospectus. After deducting any amount required to be withheld by any
applicable tax laws, rules and regulations or other applicable laws, rules and
regulations, Xxxxxx Square shall in accordance with the instructions in proper
form from a shareholder and the provisions of the Trust's Declaration of Trust
and Prospectus, issue and credit the account of the shareholder with Shares,
or, if the shareholder so elects, pay such dividends or distributions in cash
to the shareholder in the manner described in the Prospectus. In lieu of
receiving from the Trust's Custodian and paying to shareholders cash dividends
or distributions, Xxxxxx Square may arrange for the direct payment of cash
dividends and distributions to shareholders by the Custodian, in accordance
with such procedures and controls as are mutually agreed upon from time to
time by and among the Trust, Xxxxxx Square and the Trust's Custodian.
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Xxxxxx Xxxxxx shall prepare, file with the Internal Revenue Service and
other appropriate taxing authorities, and address and mail to shareholders
such returns and information relating to dividends and distributions paid by
the Trust as are required to be so prepared, filed and mailed by applicable
laws, rules and regulations, or such substitute form of notice as may from
time to time be permitted or required by the Internal Revenue Service. On
behalf of the Trust, Xxxxxx Square shall mail certain requests for
shareholders' certifications under penalties of perjury and pay on a timely
basis to the appropriate Federal authorities any taxes to be withheld on
dividends and distributions paid by the Trust, all as required by applicable
Federal tax laws and regulation.
In accordance with the Prospectus, resolutions of the Trust's Trustees
that are not inconsistent with this Agreement and are provided to Xxxxxx
Square from time to time, and such procedures and controls as are mutually
agreed upon from time to time by and among the Trust, Xxxxxx Square and the
Trust's Custodian, Xxxxxx Square shall arrange for issuance of Shares obtained
through transfers of funds from shareholders' accounts at financial
institutions.
8. COMMUNICATIONS WITH SHAREHOLDERS.
a. Communications to Shareholders. Xxxxxx Square will address and
mail all communications by the Trust to its shareholders,
including reports to shareholders, confirmations of purchases
and sales of Shares, monthly or quarterly statements as
requested by the Trust, dividend and distribution notices and
proxy material for its meetings of shareholders. Xxxxxx Square
will receive and tabulate the proxy cards for shareholder
meetings.
b. Correspondence. Xxxxxx Square will answer such correspondence
from shareholders, securities brokers and others relating to
its duties hereunder and such other correspondence as may from
time to time be mutually agreed upon between Xxxxxx Square and
the Trust.
9. SERVICES TO BE PERFORMED. Xxxxxx Square shall be responsible for
administering and/or performing transfer agent functions, for acting as
service agent in connection with dividend and distribution functions, for
performing shareholder account functions in connection with the issuance,
transfer and redemption or repurchase (including coordination with the Trust's
custodian bank in connection with shareholder redemption by check) of the
Trust's Shares, and for administering the payment of any commissions, 12b-1
fees or contingent deferred sales charges, as set forth in Schedule C to this
agreement. The details of the operating standards and procedures to be
followed shall be determined from time to time by agreement between Xxxxxx
Square and the Trust and may be expressed in written schedules which shall
constitute attachments to this Agreement.
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10. RECORD KEEPING AND OTHER INFORMATION.
a. Rodney Square shall maintain records of the accounts for each
Shareholder showing the items listed in Schedule D to this
agreement.
b. Rodney Square shall create and maintain all necessary records
in accordance with all applicable laws, rules and regulations,
including but not limited to records required by Section 31(a)
of the 1940 Act and the rules thereunder and any applicable
regulations of the Federal Deposit Insurance Corporation
("FDIC") or any successor regulatory authority, as the same may
be amended from time to time, and those records pertaining to
the various functions performed by it hereunder. All records
shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust. Where
applicable, such records shall be maintained by Xxxxxx Square
for the periods and in the places required by Rule 31a-2 under
the 1940 Act and any applicable regulations of the FDIC or any
successor regulatory authority.
11. AUDIT, INSPECTION AND VISITATION. Xxxxxx Square shall make
available during regular business hours all records and other data created and
maintained pursuant to this Agreement for reasonable audit and inspection by
the Trust or any person retained by the Trust. Upon reasonable notice by the
Trust, Xxxxxx Square shall make available during regular business hours its
facilities and premises employed in connection with its performance of this
Agreement for reasonable visitation by the Trust, or any person retained by
the Trust.
12. RIGHT TO RECEIVE ADVICE.
a. Advice of Trust. If Xxxxxx Square shall be in doubt as to any
action to be taken or omitted by it, it may request, and shall
receive, from the Trust directions or advice, including Oral or
Written Instructions where appropriate.
b. Advice of Counsel. If Xxxxxx Square shall be in doubt as to
any question of law involved in any action to be taken or
omitted by Xxxxxx Square, it may request advice at its own cost
from counsel of its own choosing (who may be the regularly
retained counsel for the Trust or Xxxxxx Square or the in-house
counsel for Xxxxxx Square, at the option of Xxxxxx Square).
c. Conflicting Advice. In case of conflict between directions,
advice or Oral or Written Instructions received by Xxxxxx
Square pursuant to subsection a of this Section and advice
received by Xxxxxx Square pursuant to subsection b of this
Section, Xxxxxx Square shall be entitled to rely on and follow
the advice received pursuant to the latter provision alone.
d. Protection of Xxxxxx Square. Xxxxxx Square shall be protected
in any action or inaction which it takes in reliance on any
directions, advice or Oral or Written Instructions received
pursuant to subsections a or b of this Section which Xxxxxx
Square, after receipt of any such directions, advice or Oral or
Written Instructions, in good faith believes to be consistent
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with such directions, advice or Oral or Written Instructions,
as the case may be. However, nothing in this Section shall be
construed as imposing upon Xxxxxx Square any obligation (i) to
seek such direction, advice or Oral or Written Instructions, or
(ii) to act in accordance with such directions, advice or Oral
or Written Instructions when received, unless, under the terms
of another provision of this Agreement, the same is a condition
to Xxxxxx Square's properly taking or omitting to take such
action. Nothing in this subsection shall excuse Xxxxxx Square
when an action or omission on the part of Xxxxxx Square
constitutes willful misfeasance, bad faith, negligence or
reckless disregard by Xxxxxx Square of its duties under this
Agreement.
13. COMPENSATION. Compensation for services and duties performed
pursuant to this Agreement is provided in Schedule A hereto. Certain other
fees due and expenses incurred pursuant to this Agreement are payable by the
Trust or the shareholder on whose behalf the service is performed and are also
listed in Schedule A.
The Trust shall reimburse Xxxxxx Square for all out-of-pocket expenses
incurred by Xxxxxx Square or its agents in the performance of its obligations
hereunder. Such reimbursement for expenses incurred in any calendar month
shall be made on or before the tenth day of the next succeeding month.
The term "out-of-pocket expenses" shall mean the following expenses
incurred by Xxxxxx Square in the performance of its obligations hereunder: the
cost of stationery and forms (including but not limited to checks, proxy
cards, and envelopes), the cost of postage, the cost of insertion of non-
standard size materials in mailing envelopes and other special mailing
preparation by outside firms, the cost of first-class mailing insurance, the
cost of external electronic communications as approved by the Trustees (to
include telephone and telegraph equipment and an allocable portion of the cost
of personnel responsible for the maintenance of such equipment), toll charges,
data communications equipment and line charges and the cost of microfilming of
shareholder records (including both the cost of storage as well as charges for
access to such records). If Xxxxxx Square shall undertake the responsibility
for microfilming shareholder records, it may be separately compensated
therefor in an amount agreed upon by the principal financial officer of the
Trust and Xxxxxx Square, such amount not to exceed the amount which would be
paid to an outside firm for providing such microfilming services.
The Trust shall approve the payment of all out-of-pocket expenses in any
calendar month by providing Xxxxxx Square with written instructions signed by
any two of the Trust personnel listed on Schedule E, as such schedule may be
amended from time to time.
14. USE OF XXXXXX SQUARE'S NAME. The Trust shall not use the name of
Xxxxxx Square in any Prospectus, SAI, sales literature or other material
relating to the Trust in a manner not approved prior thereto, provided,
however, that Xxxxxx Square shall approve all uses of its name which merely
refer in accurate terms to its appointments hereunder or which are required by
the SEC or a state securities commission and, provided further, that in no
event shall such approval be unreasonably withheld.
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15. USE OF TRUST'S NAME. Xxxxxx Square shall not use the name of the
Trust or the Funds of the Trust or material relating to the Trust or the Funds
on any checks, bank drafts, bank statements or forms for other than internal
use in a manner not approved prior thereto, provided, however, that the Trust
shall approve all uses of its name which merely refer in accurate terms to the
appointment of Xxxxxx Square hereunder or which are required by the FDIC, the
SEC or a state securities commission, and, provided, further, that in no event
shall such approval be unreasonably withheld.
16. SECURITY. Xxxxxx Square represents and warrants that the various
procedures and systems which Xxxxxx Square has implemented with regard to
safeguarding from loss or damage attributable to fire, theft or any other
cause (including provision for twenty-four hours a day restricted access) the
Trust's blank checks, records and other data and Xxxxxx Square's records,
data, equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as in its judgment are required for the secure performance
of its obligations hereunder. The parties shall review such systems and
procedures on a periodic basis.
17. INSURANCE. Upon request Xxxxxx Square shall provide the Trust with
details regarding its insurance coverage, and Xxxxxx Square shall notify the
Trust should any of its insurance coverage be materially changed. Such
notification shall include the date of change and the reason or reasons
therefor. Xxxxxx Square shall notify the Trust of any material claims against
it, whether or not they may be covered by insurance and shall notify the Trust
from time to time as may be appropriate of the total outstanding claims made
by Xxxxxx Square under its insurance coverage.
18. ASSIGNMENT OF DUTIES TO OTHERS. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Xxxxxx Square without the
written consent of the Trust. Xxxxxx Square may, however, at any time or
times in its discretion appoint (and may at any time remove) any other bank or
trust company, which is itself qualified under the Securities Exchange Act of
1934 (the "1934 Act") to act as a transfer agent, as its agent to carry out
such of the services to be performed under this agreement as Xxxxxx Square may
from time to time direct; provided, however, that the appointment of any agent
shall not relieve Xxxxxx Square of any of its responsibilities or liabilities
hereunder.
19. INDEMNIFICATION.
a. The Trust agrees to indemnify and hold harmless Xxxxxx Square,
its directors, officers, employees, agents and representatives
from all taxes, charges, expenses, assessments, claims and
liabilities including, without limitation, liabilities arising
under the 1933 Act, the 1934 Act and any applicable state and
foreign laws, and amendments thereto (the "Securities Laws"),
and expenses, including without limitation reasonable
attorneys' fees and disbursements arising directly or
indirectly from any action or omission to act which Xxxxxx
Square takes (i) at the request of or on the direction of or in
reliance on the advice of the Trust or (ii) upon Oral or
Written Instructions. Neither Xxxxxx Square nor any of its
nominees shall be indemnified against any liability (or any
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expenses incident to such liability) arising out of Xxxxxx
Square's or its directors', officers', employees', agents' and
representatives own willful misfeasance, bad faith, negligence
or reckless disregard of its duties and obligations under this
Agreement.
b. Rodney Square agrees to indemnify and hold harmless the Trust
from all taxes, charges, expenses, assessments, claims and
liabilities arising from Xxxxxx Square's obligations pursuant
to this Agreement (including, without limitation, liabilities
arising under the Securities Laws, and any state and foreign
securities and blue sky laws, and amendments thereto) and
expenses, including (without limitation) reasonable attorneys'
fees and disbursements arising directly or indirectly out of
Xxxxxx Square's or its directors', officers', employees',
agents' and representatives own willful misfeasance, bad faith,
negligence or reckless disregard of its duties and obligations
under this Agreement
c. In order that the indemnification provisions contained in this
Section 19 shall apply, upon the assertion of a claim for which
either party may be required to indemnify the other, the party
seeking indemnification shall promptly notify the other party
of such assertion, and shall keep the other party advised with
respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall
in no case confess any claim or make any compromise in any case
in which the other party may be required to indemnify it except
with the other party's prior written consent.
20. RESPONSIBILITY OF XXXXXX SQUARE. Xxxxxx Square shall be under no
duty to take any action on behalf of the Trust except as specifically set
forth herein or as may be specifically agreed to by Xxxxxx Square in writing.
Xxxxxx Square shall be obligated to exercise due care and diligence in the
performance of its duties hereunder, to act in good faith and to use its best
efforts in performing services provided for under this Agreement. Xxxxxx
Square shall be liable for any damages arising out of or in connection with
Xxxxxx Square's performance of or omission or failure to perform its duties
under this Agreement to the extent such damages arise out of Xxxxxx Square's
negligence, reckless disregard of its duties, bad faith or willful
misfeasance.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, Xxxxxx Square, in connection with its duties
under this Agreement, shall not be under any duty or obligation to inquire
into and shall not be liable for (i) the validity or invalidity or authority
or lack thereof of any Oral or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this Agreement, and which
Xxxxxx Square reasonably believes to be genuine; or (ii) subject to the
provisions of Section 21 hereof, delays or errors or loss of data occurring by
reason of circumstances beyond Xxxxxx Square's control, including acts of
civil or military authority, national emergencies, labor difficulties, fire,
flood or catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
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21. ACTS OF GOD, ETC. Xxxxxx Square shall not be liable for delays or
errors occurring by reason of circumstances beyond its control, including but
not limited to acts of civil or military authority, national emergencies,
labor difficulties, fire, flood or catastrophe, acts of God, insurrection,
war, riots, or failure of the mails, transportation, communication or power
supply. In the event of equipment breakdowns beyond its control, Xxxxxx
Square shall, at no additional expense to the Trust, take reasonable steps to
minimize service interruptions but shall have no liability with respect
thereto. Xxxxxx Square shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provision for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available.
22. AMENDMENTS. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
Xxxxxx Square and the Trust shall regularly consult with each other
regarding Xxxxxx Square's performance of its obligations and its compensation
hereunder. In connection therewith, the Trust shall submit to Xxxxxx Square
at a reasonable time in advance of filing with the SEC copies of any amended
or supplemented registration statements (including exhibits) under the 1933
Act and the 1940 Act, and a reasonable time in advance of their proposed use,
copies of any amended or supplemented forms relating to any plan, program or
service offered by the Trust. Any change in such material which would require
any change in Xxxxxx Square's obligations hereunder shall be subject to Xxxxxx
Square's approval, which shall not be unreasonably withheld. In the event
that such change materially increases the cost to Xxxxxx Square of performing
its obligations hereunder, Xxxxxx Square shall be entitled to receive
reasonable compensation therefor.
23. DURATION, TERMINATION, ETC. Neither this Agreement nor any
provisions hereof may be changed, waived, discharged or terminated orally, but
only by written instrument which shall make specific reference to this
Agreement and which shall be signed by the party against which enforcement of
such change, waiver, discharge or termination is sought.
This Agreement shall become effective as of the date first written above,
and shall continue in effect for three (3) years from the date of its
execution and thereafter from year to year, provided continuance after the
three (3) year period is approved at least annually by (i) the vote of a
majority of the Trustees of the Trust and (ii) the vote of a majority of those
Trustees of the Trust who are not interested persons of the Trust, and who are
not parties to this Agreement or interested persons of any party, cast in
person at a meeting called for the purpose of voting on the approval. This
Agreement may be terminated at any time by one hundred and twenty (120) days
written notice given by Xxxxxx Square to the Trust or one hundred and twenty
(120) days written notice given by the Trust to Xxxxxx Square; and provided
further that this Agreement may be terminated immediately at any time for
cause either by the Trust or by Xxxxxx Square in the event that such cause
remains unremedied for a period of time not to exceed sixty (60) days after
receipt of written specification of such cause. Any such termination shall
not affect the rights and obligations of the parties under Section 19 hereof.
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Upon the termination hereof, the Trust shall reimburse Xxxxxx Square any
fees incurred as a result of the termination conversion for any out-of-pocket
expenses reasonably incurred by Xxxxxx Square including or during the period
prior to the date of such termination. In the event that the Trust designates
a successor to any of Xxxxxx Square's obligations hereunder, Xxxxxx Square
shall, at the expense and direction of the Trust, transfer to such successor a
certified list of the shareholders of the Trust (with name, address, and, if
provided, tax identification or Social Security number), a complete record of
the account of each shareholder, and all other relevant books, records and
other data established or maintained by Xxxxxx Square hereunder. Xxxxxx
Square shall be liable for any losses sustained by the Trust as a result of
Xxxxxx Square's failure to accurately and promptly provide these materials.
Upon the termination of this Agreement within the initial three (3) year
term by the Trust, the Trust's Board of Trustees or Xxxxxx Square, the party
initiating termination shall pay the other party with respect to each Fund in
accordance with the provisions of liquidated damages described in Schedule A
attached hereto, as such schedule may be amended from time to time.
24. REGISTRATION AS A TRANSFER AGENT. Xxxxxx Square represents that it
is currently registered with the appropriate Federal agency for the
registration of transfer agents, and that it will remain so registered for the
duration of this Agreement. Xxxxxx Square agrees that it will promptly notify
the Trust in the event of any material change in its status as a registered
transfer agent. Should Xxxxxx Square fail to be registered with the FDIC or
any successor regulatory authority as a transfer agent at any time during this
Agreement, the Trust may, on written notice to Xxxxxx Square, immediately
terminate this Agreement.
25. NOTICE. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party to this
Agreement at its principal place of business.
26. FURTHER ACTIONS. Each Party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
27. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
28. GOVERNING LAW. To the extent that state law has not been preempted
by the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Delaware.
29. SHAREHOLDER LIABILITY. Xxxxxx Square acknowledges that it has
received notice of and accepts the limitations of liability set forth in the
Trust's Declaration of Trust. Xxxxxx Square agrees that the Trust's
obligations hereunder shall be limited to the Trust, and that Xxxxxx Square
shall have recourse solely against the assets of the Fund with respect to
which the Trust's obligations hereunder relate and shall have no recourse
against the assets of any other Fund or against any shareholder, Trustee,
officer, employee, or agent of the Trust.
12
30. MISCELLANEOUS. Both parties agree to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. 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 counterparts, each of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the day and year first above written.
THE XXXXXXX FUNDS
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx,
Chairman and President
XXXXXX SQUARE MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx,
President
13
TRANSFER AGENCY AGREEMENT
SCHEDULE A
THE XXXXXXX FUNDS
FUND LISTING AND FEE SCHEDULE
For the services Xxxxxx Square provides under the Transfer Agency Agreement
attached hereto, The Xxxxxxx Funds (the "Trust") agrees to pay Xxxxxx Square a
fee for transfer agency services equal to $24,000 per Fund, per annum,
beginning at each Fund's commencement of operations, plus out-of-pocket
expenses, all payable monthly.
FEE PER ANNUM
TYPE OF TRUST/ACCOUNT PER ACCOUNT
--------------------- -------------
Annual Dividend $12.00
Semi-Annual Dividend $12.00
Quarterly Dividend $15.00
Monthly Dividend $18.00
FUND LISTING:
The Xxxxxxx Financial Alert Fund
OUT-OF-POCKET EXPENSES:
Out-of-pocket expenses shall be reimbursed by the Trust to Xxxxxx Square or
paid directly by the Trust. Such expenses include but are not limited to the
following:
a. Toll-free lines (if required)
b. Forms, envelopes, checks, checkbooks
c. Postage (bulk, pre-sort, first-class at current prevailing rates)
d. Hardware/phone lines for remote terminal(s) (if required)
e. Microfiche/Microfilm
f. Wire fees for receipt or disbursement
g. Mailing fees
h. Cost of proxy solicitation, mailing and tabulation (if required)
i Certificates issuance
j. Record retention storage
k. Development/programming costs/special projects - time and material
l. ACH transaction charges
m. "B" notice mailings
n. Locating lost shareholders in anticipation of escheating
ADDITIONAL EXPENSES (PAID BY SHAREHOLDER):
Direct XXX/Xxxxx processing annual account fee
transfer out fee
A-1
PAYMENT
The above will be billed within the first five (5) business days of each month
and will be paid by wire within five (5) business days of receipt.
LIQUIDATED DAMAGES:
Upon the termination of this Agreement within the initial three (3) year term
by the Trust or the Trust's Board of Trustees, the Trust shall pay to Xxxxxx
Square liquidated damages with respect to each Fund in an amount equal to
three (3) months of base fees as determined in the manner set forth above.
Upon the termination of this Agreement within the initial three (3) year term
by Xxxxxx Square, Xxxxxx Square shall pay the Trust liquidated damages in an
amount equal to $7,500.00 to compensate the Trust for any damages resulting
from such termination, provided, that Xxxxxx Square shall not be liable for
liquidated damages if it pays or has paid the Trust liquidated damages of
$7,500.00 in connection with the termination of any other Xxxxxx Square
agreement including, but not limited to, the Administration Agreement and
Accounting Services Agreement (collectively, the "Service Agreements"). In
the event Xxxxxx Square terminates this Agreement within the initial three (3)
year term, the Trust shall have the option, from the date of notice of such
termination, to terminate any of the Service Agreements, without incurring
liquidated damages, by providing one hundred and twenty (120) days written
notice to Xxxxxx Square.
A-2
TRANSFER AGENCY AGREEMENT
SCHEDULE B
THE XXXXXXX FUNDS
TRUST AGREEMENTS SCHEDULE
1. The Investment Management Agreement between The Olstein Funds (the
"Trust"), on behalf of The Olstein Financial Alert Fund (the "Fund"), and
Xxxxxxx and Associates, L.P. (the "Investment Manager"), dated as of
August 18, 1995;
2. The Accounting Services Agreement between the Trust and Xxxxxx Square
Management Corporation, a Delaware Corporation ("Xxxxxx Square"), dated
as of August 18, 1995;
3. The Administration Agreement between the Trust and Xxxxxx Square, dated
as of August 18, 1995;
4. The Custodian Agreement between the Trust and Wilmington Trust Company,
dated as of August 18, 1995;
5. The Special Custody Account Agreement between the Trust, Wilmington Trust
Company, and Bear Xxxxxxx Securities Corp., dated as of August 18, 1995,
to facilitate the Trust's short selling activities; and
6. The Distribution Agreement among the Trust, the Investment Manager and
Xxxxxx Square Distributors, Inc., dated as of August 18, 1995;
B-1
TRANSFER AGENCY AGREEMENT
SCHEDULE C
THE XXXXXXX FUNDS
SERVICES TO BE PERFORMED
GENERAL SERVICES
Xxxxxx Square will perform the following functions as transfer agent on an
ongoing basis with respect to each Fund:
a. furnish state-by-state registration reports;
b. provide toll-free lines for direct shareholder use, plus customer
liaison staff with on-line inquiry capacity;
c. mail duplicate confirmations to dealers and other financial
institutions ("Service Organization") of their clients' activity,
whether executed through the Service Organization or directly with
Xxxxxx Square;
d. provide detail for underwriter or Service Organization confirmations
and other Service Organization shareholder accounting, in accordance
with such procedures as may be agreed upon between the Trust and
Xxxxxx Square;
e. provide shareholder lists and statistical information concerning
shareholder accounts to the Trust;
f. provide timely notification of Fund activity and such other
information as may be agreed upon from time to time between Xxxxxx
Square and the Fund or the Custodian, to the Trust or the Custodian;
and
g. with respect to dividends and distributions, prepare and file
required reports with the Internal Revenue Service ("IRS"), prepare
and mail reports to shareholders as required by the IRS and
described in the Prospectus and Statement of Additional Information.
ADMINISTRATION OF COMMISSIONS, 12B-1 FEES, DEFERRED SALES CHARGES
Xxxxxx Square shall, directly or through its affiliates, and subject to the
Investment Manager' supervision, monitor purchases and redemptions of shares
of the Trust, and Xxxxxx Square shall administer the following:
a. the payment of any up-front commissions to Selling Dealers in
accordance with the then-effective prospectus and SAI for the
particular Fund. For purchase orders submitted with up-front
commissions deducted and retained by Selling Dealers, Xxxxxx Square
will arrange for payment to the Fund of the deducted amount from a
segregated account, set-up by the Investment Manager (the "Xxxxxxx
Account"), for the purpose of reimbursing any up-front commissions.
For purchase orders submitted along with 100% of the purchase xxxxx,
Xxxxxx Square will arrange for payment to the Selling Dealer of the
appropriate commission from the Xxxxxxx Account.
C-1
b. the payment of any 12b-1 fees to Selling Dealers or other
shareholder servicing fees to other agents for ongoing shareholder
servicing activities, as such amounts may be payable by the Fund in
accordance with the then-effective prospectus and SAI for the
particular Fund. Xxxxxx Square shall monitor purchases and
redemptions, and prepare reports outlining the 12b-1 fees payable to
particular Selling Dealers. Xxxxxx Square shall provide for such
payments to be made on a quarterly basis.
c. the collection of any 12b-1 fees due to Xxxxxxx for ongoing
shareholder servicing or distribution services, as such amounts may
be payable by the Fund in accordance with the then-effective
prospectus and SAI for the particular Series of the Trust. Xxxxxx
Square shall monitor purchases and redemptions, and prepare reports
outlining the 12b-1 fees payable to Xxxxxxx. Xxxxxx Square shall
provide for such payments to be made in accordance with the Trust's
Distribution Plan and the Distribution Agreement entered as of
August 18, 1995, among the Trust, the Investment Manager and Xxxxxx
Square Distributors, Inc.
d. the collection and deposit into the Xxxxxxx Account of any
contingent deferred sales charges payable by shareholders for early
redemption in accordance with the then-effective prospectus and SAI
for the particular Series of the Trust.
C-2
TRANSFER AGENCY AGREEMENT
SCHEDULE D
THE XXXXXXX FUNDS
SHAREHOLDER RECORDS
Xxxxxx Square shall maintain records of the accounts for each shareholder
showing the following information:
a. name, address and United States Tax Identification or Social
Security number;
b. number of Shares held and number of Shares for which certificates,
if any, have been issued, including certificate numbers and
denominations;
c. historical information regarding the account of each shareholder,
including dividends and distributions paid and the date and price
for all transactions on a shareholder's account;
d. any stop or restraining order placed against a shareholder's
account;
e. any correspondence relating to the current maintenance of a
shareholder's account;
f. information with respect to withholding; and,
g. any information required in order for Xxxxxx Square to perform any
calculations contemplated or required by this Agreement.
D-1
TRANSFER AGENCY AGREEMENT
SCHEDULE E
THE XXXXXXX FUNDS
AUTHORIZED PERSONS
The following persons have been duly authorized to authorize the payment of
out-of-pocket expenses on behalf of the above-named Trust provided such
payments are approved by at least two of such authorized persons:
Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
E-1
