EX-99.H2
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of September, 1998 by and between
Xxxxxx Series Trust, a business trust organized under the laws of Delaware (the
"Company"), and INVESTORS BANK & TRUST Company, a Massachusetts trust Company
(the "Bank").
WHEREAS, the Company desires to appoint the Bank as its transfer
agent, dividend disbursing agent and agent in connection with certain other
activities, and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided
in Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Company is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Company intends to initially offer shares in the series
listed on Appendix A hereto (such series, together with all other series
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subsequently established by the Company and made subject to this Agreement in
accordance with Section 17, being herein referred to as the "Fund(s)");
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Company and the Bank agree as follows:
1. Terms of Appointment; Duties of the Bank
1.1 Subject to the terms and conditions set forth in this
Agreement, the Company on behalf of the Funds hereby employs and appoints the
Bank to act, and the Bank agrees to act, as transfer agent for each of the
Fund(s)' authorized and issued shares of beneficial interest ("Shares"),
dividend disbursing agent and agent in connection with any accumulation, open-
account or similar plans provided to the shareholders of the Company
("Shareholders") and set out in the currently effective prospectus and statement
of additional information, as each may be amended from time to time, (the
"Prospectus") of the Company, including without limitation any periodic
investment plan or periodic withdrawal program.
1.2 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to
time by agreement between the Company and the Bank, the Bank shall:
(i) Receive for acceptance orders for the purchase of Shares
and promptly deliver payment and appropriate documentation therefor to the
custodian of the Company appointed by the Board of Directors of the Company (the
"Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate documentation therefor to the
Custodian;
(iv) At the appropriate time as and when it receives monies
paid to it by the Custodian with respect to any redemption, pay over or cause to
be paid over in the appropriate manner such monies as instructed by the
redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Company on behalf of a Fund;
(vii) Create and maintain all necessary records including
those specified in Article 10 hereof, in accordance with all applicable laws,
rules and regulations, including but not limited to records required by Section
31(a) of the Investment Company Act of 1940, as amended (the "1940 Act"), and
those records pertaining to the various functions performed by it hereunder. All
records shall be available for inspection and use by the Company. Where
applicable, such records shall be maintained by the Bank for the periods and in
the places required by Rule 31a-2 under the 1940 Act;
(viii) 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 Company, or any person retained by the
Company. Upon reasonable notice by the Company, the Bank 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 Company,
or any person retained by the Company;
(ix) At the expense of and at the request of the Company,
maintain an adequate supply of blank share certificates for each Fund providing
for the issuance of certificates to meet the Bank's requirements therefor, in
the event the Company determines to issue certificates for Shares. Such share
certificates shall be properly signed by facsimile. The Company agrees that,
notwithstanding the death, resignation, or removal of any officer of the Company
whose signature appears on such certificates, the Bank may continue to
countersign certificates which bear such signatures until otherwise directed by
the Company. Share certificates may be issued and accounted for entirely by the
Bank and do not require any third party registrar or other endorsing party;
(x) Issue replacement share certificates in lieu of
certificates which have been lost, stolen, mutilated or destroyed, without any
further action by the Board of Directors or any officer of the Company, upon
receipt by the Bank of properly executed affidavits and lost certificate bonds,
in form satisfactory to the Bank with the Company and the Bank as obligees under
the bond. At the discretion of the Bank, and at its sole risk, the Bank may
issue replacement certificates without requiring the affidavits and lost
certificate bonds described above and the Company agrees to indemnify the Bank
against any and all losses or
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claims which may arise by reason of the issuance of such new certificates in the
place of the ones allegedly lost, stolen or destroyed; and
(xi) Record the issuance of Shares of the Company and
maintain, pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of the total
number of Shares of the Company which are issued and outstanding, based upon
data provided to it by the Company. The Bank shall also provide the Company on a
regular basis with the total number of Shares which are issued and outstanding
and shall have no obligation, when recording the issuance of Shares, to monitor
the issuance of such Shares or to take cognizance of any laws relating to the
issue or sale of such Shares, which functions shall be the sole responsibility
of the Company.
(b) In addition to and not in lieu of the services set forth
in the above paragraph (a) or in any Schedule hereto, the Bank shall:
(i) perform all of the customary services of a transfer agent, dividend
disbursing agent and, as relevant, agent in connection with accumulation, open-
account or similar plans (including without limitation any periodic investment
plan or periodic withdrawal program); including but not limited to maintaining
all Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
receiving and tabulating proxies, mailing Shareholder reports and prospectuses
to current Shareholders, withholding taxes on all accounts, including
nonresident alien accounts, preparing and filing U.S. Treasury Department Forms
1099 and other appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for all purchases
and redemptions of Shares and other confirmable transactions in Shareholder
accounts, responding to Shareholder telephone calls and Shareholder
correspondence, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information; and (ii) provide a system which will
enable the Company to monitor the total number of shares sold in each State. The
Company shall (i) identify to the Bank in writing those transactions and assets
to be treated as exempt from blue sky reporting for each State and (ii) verify
the establishment of transactions for each State on the system prior to
activation and thereafter monitor the daily activity for each State. The
responsibility of the Bank for a Fund's blue sky state registration status is
solely limited to the initial establishment of transactions subject to blue sky
compliance by such Fund(s) and the reporting of such transactions to the Fund(s)
as provided above.
(c) Additionally, the Bank shall utilize a system to identify
all share transactions which involve purchase and redemption orders that are
processed at a time other than the time of the computation of net asset value
per share next computed after receipt of such orders, and shall compute the net
effect upon the Fund(s) of such transactions so identified on a daily and
cumulative basis.
2. Sale of Company Shares
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2.1 Whenever the Company shall sell or cause to be sold any Shares
of a Fund, the Company shall deliver or cause to be delivered to the Bank a
document duly specifying: (i) the name of the Fund whose Shares were sold; (ii)
the number of Shares sold,
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trade date, and price; (iii) the amount of money to be delivered to the
Custodian for the sale of such Shares and specifically allocated to such Fund;
and (iv) in the case of a new account, a new account application or sufficient
information to establish an account.
2.2 The Bank will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Funds and drawn or
endorsed to the Bank as agent for, or identified as being for the account of,
one of the Funds, promptly deposit such check or other payment to the
appropriate account postings necessary to reflect the investment. The Bank will
notify the Company, or its designee, and the Custodian of all purchases and
related account adjustments.
2.3 Under procedures as established by mutual agreement between
the Company and the Bank, the Bank shall issue to the purchaser or its
authorized agent such Shares, computed to the nearest three decimal points, as
he is entitled to receive, based on the appropriate net asset value of the
Funds' Shares, determined in accordance with the prospectus and any applicable
federal law or regulation. In issuing Shares to a purchaser or its authorized
agent, the Bank shall be entitled to rely upon the latest directions, if any,
previously received by the Bank from the purchaser or its authorized agent
concerning the delivery of such Shares.
2.4 The Bank shall not be required to issue any Shares of the
Company where it has received a written instruction from the Company or written
notification from any appropriate federal or state authority that the sale of
the Shares of the Fund(s) in question has been suspended or discontinued, and
the Bank shall be entitled to rely upon such written instructions or written
notification.
2.5 Upon the issuance of any Shares of any Fund(s) in accordance
with foregoing provisions of this Section, the Bank shall not be responsible for
the payment of any original issue or other taxes, if any, required to be paid by
the Company in connection with such issuance.
2.6 The Bank may establish such additional rules and regulations
governing the transfer or registration of Shares as it may deem advisable and
consistent with such rules and regulations generally adopted by transfer agents,
or with the written consent of the Company, any other rules and regulations.
3. Returned Checks. In the event that any check or other order for
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the transfer of money is returned unpaid for any reason, the Bank will take such
steps as the Bank may, in its discretion, deem appropriate to protect the
Company from financial loss or as the Company or its designee may instruct.
Provided that the standard procedures, as agreed upon from time to time, between
the Company and the Bank, regarding purchases and redemptions of Shares, are
adhered to by the Bank, the Bank shall not be liable for any loss suffered by a
Fund as a result of returned or unpaid purchase or redemption transactions.
Legal or other expenses incurred to collect amounts owed to a Fund as a
consequence of returned or unpaid purchase or redemption transactions shall be
an expense of that Fund.
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4. Redemptions. Shares of any Fund may be redeemed in accordance
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with the procedures set forth in the Prospectus of the Company and the Bank will
duly process all redemption requests.
5. Transfers and Exchanges. The Bank is authorized to review and
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process transfers of Shares of each Fund, exchanges between Funds on the records
of the Funds maintained by the Bank, and exchanges between the Company and any
other entity as may be permitted by the Prospectus of the Company. If Shares to
be transferred are represented by outstanding certificates, the Bank will, upon
surrender to it of the certificates in proper form for transfer, and upon
cancellation thereof, countersign and issue new certificates for a like number
of Shares and deliver the same. If the Shares to be transferred are not
represented by outstanding certificates, the Bank will, upon an order therefor
by or on behalf of the registered holder thereof in proper form, credit the same
to the transferee on its books. If Shares are to be exchanged for Shares of
another Fund, the Bank will process such exchange in the same manner as a
redemption and sale of Shares, except that it may in its discretion waive
requirements for information and documentation.
6. Right to Seek Assurances. The Bank reserves the right to refuse
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to transfer or redeem Shares until it is satisfied that the requested transfer
or redemption is legally authorized, and it shall incur no liability for the
refusal, in good faith, to make transfers or redemptions which the Bank, in its
judgment, deems improper or unauthorized, or until it is satisfied that there is
no basis for any claims adverse to such transfer or redemption. The Bank may,
in effecting transfers, rely upon the provisions of the Uniform Act for the
simplification of Fiduciary Security Transfers or the Uniform Commercial Code,
as the same may be amended from time to time, which in the opinion of legal
counsel for the Company or the Bank's own legal counsel, do not require certain
documents in connection with the transfer or redemption of Shares of any Fund,
and the Company shall indemnify the Bank for any act done or omitted by it in
reliance upon such laws or opinions of counsel of the Company or of the Bank.
7. Distributions.
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7.1 The Company will promptly notify the Bank of the declaration of
any dividend or distribution. The Company shall furnish to the Bank a
resolution of the Board of Directors of the Company certified by the Secretary
(a "Certificate"): (i) authorizing the declaration of dividends on a specified
periodic basis and authorizing the Bank to rely on oral instructions or a
Certificate specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined and the amount payable per
share to Shareholders of record as of such record date and the total amount
payable to the Bank on the payment date; or (ii) setting forth the date of the
declaration of any dividend or distribution by a Fund, the date of payment
thereof, the record date as of which Shareholders entitled to payment shall be
determined, and the amount payable per share to the Shareholders of record as
of that date and the total amount payable to the Bank on the payment date.
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7.2 The Bank, on behalf of the Company, shall instruct the Custodian
to place in a dividend disbursing account funds equal to the cash amount of any
dividend or distribution to be paid out. The Bank will calculate, prepare and
mail checks to (at the address as it appears on the records of the Bank), or
(where appropriate) credit such dividend or distribution to the account of, Fund
Shareholders, and maintain and safeguard all underlying records.
7.3 The Bank will replace lost checks at its discretion and in
conformity with regular business practices.
7.4 The Bank will maintain all records necessary to reflect the
crediting of dividends which are reinvested in Shares of the Company, including
without limitation daily dividends.
7.5 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Directors of the Company.
7.6 If the Bank shall not receive from the Custodian sufficient cash
to make payment to all Shareholders of the Company as of the record date, the
Bank shall, upon notifying the Company, withhold payment to all Shareholders of
record as of the record date until such sufficient cash is provided to the Bank
and shall not be liable for any claim arising out of such withholding.
8. Other Duties. In addition to the duties expressly provided for
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herein, the Bank shall perform such other duties and functions and shall be paid
such amounts therefor as may from time to time be agreed to in writing.
9. Taxes. It is understood that the Bank shall file such appropriate
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information returns concerning the payment of dividends and capital gain
distributions and tax withholding with the proper Federal, State and Local
authorities as are required by law to be filed by the Company and shall withhold
such sums as are required to be withheld by applicable law.
10. Books and Records.
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10.1 The Bank shall maintain confidential records showing for each
Shareholder's account the following: (i) names, addresses and tax
identification numbers; (ii) numbers of Shares held; (iii) historical
information (as available from prior transfer agents) regarding the account of
each Shareholder, including dividends paid and date and price of all
transactions on a Shareholder's account; (iv) any stop or restraining order
placed against a Shareholder's account; (v) information with respect to
withholdings; (vi) any capital gain or dividend reinvestment order, plan
application, dividend address and correspondence relating to the current
maintenance of a Shareholder's account; (vii) certificate numbers and
denominations for any Shareholders holding certificates; (viii) any information
required in order for the Bank to perform the calculations contemplated or
required by this Agreement; and (ix) such other information and data as may be
required by applicable law.
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10.2 Any records required to be maintained by Rule 31a-1 under the
1940 Act will be preserved for the periods prescribed in Rule 31a-2 under the
1940 Act. Such records may be inspected by the Company during regular business
hours upon reasonable notice. The Bank may, at its option at any time, and
shall forthwith upon the Company's demand, turn over to the Company and cease to
retain in the Bank's files, records and documents created and maintained by the
Bank in performance of its service or for its protection. At the end of the
six-year retention period, such documents will either be turned over to the
Company, or destroyed in accordance with the Company's authorization.
10.3 Procedures applicable to the services to be performed hereunder
may be established from time to time by agreement between the Fund(s) and the
Bank. The Bank shall have the right to utilize any shareholder accounting and
recordkeeping systems which, in its opinion, qualifies to perform any services
to be performed hereunder. The Bank shall keep records relating to the services
performed hereunder, in the form and manner as it may deem advisable.
11. Fees and Expenses.
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11.1 For performance by the Bank pursuant to this Agreement, the
Fund(s) agree to pay the Bank an annual maintenance fee for each Shareholder
account as set out in the initial fee schedule attached as Appendix B hereto.
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Such fees and out-of-pocket expenses and advances identified under Section 11.2
below may be changed from time to time subject to mutual written agreement
between the Company and the Bank.
11.2 In addition to the fee paid under Section 11.1 above, the
Fund(s) agree to reimburse the Bank for out-of-pocket expenses or advances
incurred by the Bank for the items set out in the fee schedule attached hereto.
In addition, any other expenses incurred by the Bank at the request or with the
consent of the Company including, without limitation, any equipment or supplies
which the Company specifically orders or requires the Bank to purchase, will be
reimbursed by the Fund(s).
11.3 The Fund(s) agree to pay all fees and reimbursable expenses
within thirty days following the mailing of the respective billing notice.
Postage for mailing of dividends, proxies, Fund reports and other mailings to
all shareholder accounts shall be advanced to the Bank by the Fund(s) at least
seven (7) days prior to the mailing date of such materials. Any waiver or
extension by the Bank of the thirty and seven day time periods enumerated in
this section 11.3 shall not constitute a dismissal of any monies due under this
Agreement nor shall such waiver or extension apply to any future monies due to
the Bank hereunder.
12. Representations and Warranties of the Bank.
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The Bank represents and warrants to the Company that:
12.1 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
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12.2 It is empowered under applicable laws and by its charter and by-
laws to enter into and perform this Agreement.
12.3 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
12.4 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
13. Representations and Warranties of the Company.
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The Company represents and warrants to the Bank that:
13.1 It is a business trust duly organized and existing and in good
standing under the laws of the State of its incorporation as set forth in the
preamble hereto.
13.2 It is empowered under applicable laws and by its declaration of
trust and by-laws to enter into and perform this Agreement.
13.3 All proceedings required by said declaration and by-laws have
been taken to authorize it to enter into and perform this Agreement.
13.4 It is a open-end investment Company registered under the 1940
Act.
13.5 On or prior to the commencement of the public offering of
shares, a registration statement on Form N-1A (including a prospectus and
statement of additional information) under the Securities Act of 1933 and the
1940 Act shall be effective and will remain effective, and appropriate state
securities law filings will have been made and will continue to be made, with
respect to all Shares of the Company being offered for sale.
13.6 When Shares are hereafter issued in accordance with the terms of
the Prospectus, such Shares shall be validly issued, fully paid and
nonassessable by the Fund(s).
14. Indemnification.
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14.1 Notwithstanding anything in this Agreement to the contrary, in
no event shall the Bank or any of its officers, directors, employees or agents
(collectively, the "Indemnified Parties") be liable to the Company, any Fund or
any third party, and the Company and each Fund shall indemnify and hold the Bank
and the Indemnified Parties harmless from and against any and all loss, damage,
liability, actions, suits, claims, costs and expenses, including legal fees, (a
"Claim") arising as a result of any act or omission of the Bank or any
Indemnified Party under this Agreement, except for any Claim resulting from the
negligence, willful misfeasance or bad faith of the Bank or any Indemnified
Party. Without limiting the foregoing, neither the Bank nor the Indemnified
Parties shall be liable for, and the Bank and the Indemnified Parties shall be
indemnified against, any Claim arising as a result of:
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(a) Any actions taken or omitted to be taken by the Bank or its
agents or subcontractors in good faith in reliance on, or use by the Bank or its
agents or subcontractors of, information, records and documents which (i) are
received by the Bank or its agents or subcontractors and furnished to such party
by or on behalf of the Fund(s), (ii) have been prepared and/or maintained by the
Fund(s) or any other person or firm on behalf of the fund(s), or (iii) were
received by the Bank or its agents or subcontractors from a prior transfer
agent.
(b) Any action taken or omitted to be taken by the Bank in good
faith reliance upon any law, act, regulation (a "Regulation") or interpretation
of a Regulation even though such Regulation may thereafter have been altered,
changed, amended or repealed.
(c) the Fund(s)' refusal or failure to comply with the terms of
this Agreement, or which arise out of the Funds' bad faith, negligence or
willful misfeasance or which arise out of the breach of any representation or
warranty of the Fund(s) hereunder.
(d) The reliance on, or the carrying out by the Bank or its agents
or subcontractors of any instructions or requests, whether written or oral, of
the Fund(s), which are reasonably believed by the Bank to be authorized and
genuine.
(e) The offer or sale of Shares by the Company in violation of
(i) any requirement under the federal securities laws or regulations; (ii) any
requirement under the securities laws or regulations of any state; or (iii) any
stop order or other determination or ruling by any federal or state agency with
respect to the offer or sale of such Shares.
14.2 The Bank shall indemnify and hold the Fund(s) harmless from and
against any and all losses, damages, costs, charges, legal fees, payments,
expenses and liability arising out of or attributed to any action or failure or
omission to act by the Bank as a result of the Bank's lack of good faith,
negligence, willful misconduct, knowing violation of law or fraud.
14.3 At any time the Bank may consult with legal counsel of the Bank
or the Company with respect to any matter arising in connection with the
services to be performed by the Bank under this Agreement, and the Bank and its
agents or subcontractors shall not be liable and shall be indemnified by the
Company for any action taken or omitted by it in reliance upon the opinion of
such counsel except for a knowing violation of law. The Bank, its agents and
subcontractors shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Fund(s), reasonably believed to be
genuine and to have been signed by an authorized person or persons, or upon any
instruction, information, data, records or documents provided to the Bank or its
agents or subcontractors by machine readable input, telex, crt data entry or
other similar means authorized by the fund(s). The Company shall provide the
Bank with a list of persons authorized to give instructions, and the Bank, its
agents and subcontractors shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the
Fund(s). The Bank, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably believed to
be genuine and to bear the proper manual or facsimile signatures of an officer
of the Company, and one proper countersignature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
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14.4 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; provided that such
party has in place reasonable backup facilities and procedures.
14.5 Neither party to this Agreement shall be liable to the other
party for special, incidental or consequential damages, even if the other party
has been advised of the possibility of such damages, under any provision of this
Agreement or for any act or failure to act hereunder as contemplated by this
Agreement.
14.6 In order that the indemnification provisions contained in this
Article 14 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking the 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
seeking indemnification shall give the indemnifying party full and complete
authority, information and assistance to defend such claim or proceeding, and
the indemnifying party shall have, at its option, sole control of the defense of
such claim or proceeding and all negotiations for its compromise or settlement.
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, which consent shall not be
unreasonably withheld.
15. Covenants of the Company and the Bank.
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15.1 The Company shall promptly furnish to the Bank the
following:
(a) A certified copy of the resolution of the Trustees of
the Company authorizing the appointment of the Bank and the execution and
delivery of this Agreement.
(b) A copy of the declaration of trust and by-laws of the
Company and all amendments thereto.
(c) Copies of each vote of the Trustees designating
authorized persons to give instructions to the Bank, and a Certificate providing
specimen signatures for such authorized persons.
(d) Certificates as to any change in any Officer or Trustee
of the Company.
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(e) If applicable a specimen of the certificate of Shares in
each Fund of the Company in the form approved by the Trustees, with a
Certificate as to such approval.
(f) Specimens of all new certificates for Shares,
accompanied by the Trustees' resolutions approving such forms.
(g) All account application forms and other documents
relating to shareholder accounts or relating to any plan, program or service
offered by the Company.
(h) A list of all Shareholders of the Fund(s) with the name,
address and tax identification number of each Shareholder, and the number of
Shares of the Fund(s) held by each, certificate numbers and denominations ( if
any certificates have been issued), lists of any account against which stops
have been placed, together with the reasons for said stops, and the number of
Shares redeemed by the Fund(s).
(i) An opinion of counsel for the Company with respect to
the validity of the Shares and the status of such Shares under the Securities
Act of 1933.
(j) Copies of the Trust's registration statement on
Form N-1a (if applicable)as amended and declared effective by the Securities and
Exchange Commission and all post-effective amendments thereto.
(k) Such other certificates, documents or opinions as the
Bank may deem necessary or appropriate for the Bank in the proper performance of
its duties hereunder.
15.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
15.3 The Bank 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 Bank
agrees that all such records prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder are the confidential property of
the Company and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered to the Company on and in
accordance with its request.
15.4 The Bank and the Company agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
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15.5 In case of any requests or demands for the inspection of the
Shareholder records of the Company, the Bank will endeavor to notify the Company
and to secure instructions from an authorized officer of the Company as to such
request or demand. The Bank reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be subject to enforcement or other action by any court or regulatory body
for the failure to exhibit the Shareholder records to such person.
16. Term of Agreement.
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16.1 Termination of Agreement. The term of this Agreement shall be a
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period of one year commencing upon the date hereof (the "Initial Term"), unless
earlier terminated as provided herein. After the expiration of the Initial
Term, the term of this Agreement shall automatically renew for successive one-
year terms (each a "Renewal Term") unless notice of non-renewal is delivered by
the non-renewing party to the other party no later than sixty days prior to the
expiration of the Initial Term or any Renewal Term, as the case may be.
(a) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term in the event the other party violates any
material provision of this agreement, provided that the non-violating party
gives written notice of such violation to the violating party and the violating
party does not cure such violation within sixty days of receipt of such notice.
(b) Either party may terminate this Agreement during any Renewal Term
upon sixty days written notice to the other party. Any termination pursuant to
this paragraph 16.1(b) shall be effective upon expiration of such sixty days,
provided, however, that the effective date of such termination may be postponed
to a date not more than one hundred twenty days after delivery of the written
notice: (i) at the request of the Bank, in order to prepare for the transfer by
the Bank of its duties hereunder; or (ii) at the request of the Fund, in order
to give the Fund an opportunity to make suitable arrangements for a successor
transfer agent.
16.2 Should the Company exercise its right to terminate, all out-of-
pocket expenses associated with the movement of records and material will be
borne by the Company. Additionally, the Bank reserves the right to recover from
the Company any other reasonable expenses associated with such termination.
17. Additional Funds. In the event that the Company establishes one
----------------
or more series of Shares in addition to the series listed on Appendix A hereto
----------
with respect to which it desires to have the Bank render services as transfer
agent under the terms hereof, it shall so notify the Bank in writing, and if the
Bank agrees in writing to provide such services, such series of Shares shall
become a Fund hereunder and Appendix A shall be appropriately amended.
----------
-12-
18. Assignment.
----------
18.1 Except as provided in Section 18.3 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
18.2 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
18.3 The Bank, may without further consent on the part of the
Company, subcontract for the performance of any of the services to be provided
hereunder to third parties, including any affiliate of the Bank, provided that
the Bank shall remain liable hereunder for any acts or omissions of any
subcontractor as if performed by the Bank.
19. Amendment. This Agreement may be amended or modified only by a
---------
written agreement executed by both parties.
20. Governing Law. This agreement shall be construed and the
-------------
provisions thereof interpreted under and in accordance with the laws of the
Commonwealth of Massachusetts, without regard to its conflict of laws
provisions.
21. Merger of Agreement and Severability.
------------------------------------
21.1 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
21.2 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
21.3 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original; but such counterparts shall
together, constitute only one instrument.
22. Limitation of Liability. The Bank is hereby expressly put on
------------------------
notice of the limitation of liability set forth in the Declaration of Trust of
the Company and agrees that the obligations assumed by the Company hereunder
shall be limited in all cases to the assets of the Company and that the Bank
shall not seek satisfaction of any such obligation from the officers, agents,
employees, trustees, or shareholders of the Company.
23. Several Obligations of the Portfolios. This Agreement is an
--------------------------------------
agreement entered into between the Bank and the Company with respect to each
Portfolio. With respect to any obligation of the Company on behalf of any
portfolio arising out of this Agreement, the Bank shall look for payment or
satisfaction of such obligation solely to the assets of the Portfolio
-13-
to which such obligation relates as though the Bank had separately contracted
with the Company by separate written instrument with respect to each Portfolio.
24. Notices. Any notice or other instrument in writing authorized or
-------
required by this agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below:
For the Fund(s):
Xxxxxx Series Trust
000 Xxxx Xxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxx
With a copy to: Xxxxx Xxxx
For the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxx, Director, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
[Remainder of Page Intentionally Left Blank]
-14-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and the year first above written.
XXXXXX SERIES TRUST
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx Nesuet
---------------------------------
Name: Xxxxxx Nesuet
Title: Director, Client Management
-15-
Appendices
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Appendix A ........................ Series or Portfolios
Appendix B ........................ Fee Schedule
Appendix A
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Xxxxxx Money Market Fund
Appendix B
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Xxxxxx Series Trust
Annual Fee Schedule
For One Money Market Fund - 2 Classes
September 1, 1998
================================================================================
FUND ACCOUNTING, CUSTODY AND CALCULATION OF N.A.V., TRANSFER AGENCY, FUND
ADMINISTRATION, FINANCIAL STATEMENT PREPARATION AND BLUE SKY
================================================================================
A. FUND ACCOUNTING, CUSTODY AND CALCULATION OF N.A.V., TRANSFER AGENCY, FUND
-------------------------------------------------------------------------
ADMINISTRATION, FINANCIAL STATEMENT PREPARATION AND BLUE SKY
------------------------------------------------------------
The Annual Fee for Fund Accounting, Custody and Calculation of N.A.V.,
Transfer Agency, Fund Administration, Financial Statement Preparation and
Blue Sky for the one (1) Xxxxxx Money Market Fund (including two classes)
will be charged according to the following schedule. The following schedule
is exclusive of transaction costs and out-of-pocket expenses.
ANNUAL FEE
----------
Annual Fee per fund $70,000
For each additional class added beyond the first two classes there will be
an annual fee of $28,000 for the above services.
Blue Sky services, which are to be billed separately from the above, will
be billed at an annual rate of $100.00 per permit filed.
B. TRANSACTION COSTS PER TRANSACTION
---------------------------------
Incoming Wires 5.00
Outgoing Wires 7.00
================================================================================
MISCELLANEOUS
================================================================================
A. OUT-OF-POCKET
-------------
- These charges consist of:
- Telephone
- Ad Hoc Reporting
- TA - Non-current Day Inquiry ($1.00 per inquiry)
- Third Party Review
- Forms and Supplies
- Printing/Postage/Delivery
- Systems Development/Reports/Transmissions
- Equipment Rental
- Legal costs associated with substantial alterations of IBT's standard
agreements
B. BALANCE CREDITS
---------------
We allow use of balance credit against fees (excluding out-of-pocket
charges) for collected fund balances arising out of the custody
relationship. The monthly earnings allowance is equal to 75% of the 90-day
T-xxxx rate.
C. SYSTEMS
-------
The details of any systems work required to service this fund will be
determined after a thorough business analysis. All systems work, including
creating customized reports and establishing systems/communications
interfaces with Xxxxxx, other providers, etc., will be billed on a time and
materials basis.
D. OTHER ASSUMPTIONS
-----------------
The fee schedule assumes that there will be two (2) classes of shares.
Also, this schedule reflects the fact that the fund will not declare a
daily distribution, but will distribute monthly or annually only. Increases
in the number of classes or any change in the frequency of distributions
will result in an increase in the fees noted above.
This fee schedule does not reflect the impact, if any, on IBT's processing
transactions using FundServe or other NSCC applications. The fees
associated with such applications and any related systems development costs
will be determined at a later date prior to implementation.
The above fees will be charged against the funds' custodian checking
account five business days after the invoice is mailed to the fund.
This annual fee schedule is valid for 30 days and assumes the execution of
IBT's standard contractual agreements for a minimum term of one (1) year.
All charges will be billed monthly. The fee schedule will be effective upon
start-up of the fund.
