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EXHIBIT (9)(A)
TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 31st day of
December, 1996, by and between Hospital and Health Facilities Trust (the
"Trust") on behalf of its portfolio known as the California Hospital and Health
Facilities Liquid Asset Fund (the "Fund") and AMBAC Investment Management, Inc.,
a corporation organized under the laws of the State of Delaware (hereinafter
referred to as the "Agent").
W I T N E S S E T H:
WHEREAS, the Trust is an open-end management investment company
which is registered under the Investment Company Act of 1940 (the "1940 Act");
and
WHEREAS, the Agent is registered under the Securities Exchange Act
of 1934 (the "1934 Act") as a transfer agent;
NOW, THEREFORE, the Trust, on behalf of the Fund and the Agent do
mutually promise and agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF THE AGENT
Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employs and appoints the Agent to act as transfer agent, dividend
disbursing agent, and shareholder servicing agent for the Fund.
The Agent shall perform all of the customary services of a transfer
agent, dividend disbursing agent and shareholder servicing 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 the following and as more
fully described in Exhibit A:
A. Receive orders for the purchase of shares, with prompt
delivery, where appropriate, of payment and supporting
documentation to the Fund's custodian;
B. Process purchase orders and issue the appropriate number of
uncertificated shares with such uncertificated shares being
held in the appropriate shareholder account;
C. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Fund's
custodian;
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D. Pay moneys (upon receipt from the Fund's custodian, where
relevant) in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the
shareowner's instructions;
F. Process exchanges between funds within the same family of
funds, if applicable;
G. Prepare and transmit payments for dividends and distributions
declared by the Fund;
H. Make changes to shareholder records, including, but not
limited to, address changes in plans (i.e., systematic
withdrawal, automatic investment, dividend reinvestment,
etc.);
I. Record the issuance of shares of the Fund and maintain,
pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of
the total number of shares of the Funds which are authorized,
issued and outstanding and such other records as are required
to be maintained by a transfer agent for open-end registered
investment companies by the rules adopted under the 1934 Act;
J. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
K. Mail shareholder reports and prospectuses to current
shareholders;
L. Prepare and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to
dividends and distributions for all shareholders;
M. Provide shareholder account information upon request and
prepare and mail confirmations and statements of account to
shareholders for all purchases, redemptions and other
confirmable transactions as agreed upon with the Trust; and
N. Provide a Blue Sky System which will enable the Fund to
monitor the total number of shares sold in each state. In
addition, the Fund shall identify to the Agent in writing
those transactions and assets to be treated as exempt from the
Blue Sky reporting to the Fund for each state. The
responsibility of the Agent for the Fund's Blue Sky state
registration status is solely limited to
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the initial compliance by the Fund and the reporting of such
transactions to the Fund.
2. COMPENSATION AND EXPENSES
The Agent shall not be entitled to receive any special compensation
for the services provided under this Agreement, and instead shall be deemed to
be compensated for its services hereunder by virtue of the fee paid to the Agent
pursuant to the Management and Investment Advisory Agreement between the Trust
and the Agent, dated 12/30 , 1996 (the "Management Agreement"); provided,
however, the Trust agrees to reimburse the Agent for its out-of-pocket expenses,
including, but not limited to the following: printing, postage, forms,
stationery, record retention, mailing, insertion, programming, labels,
shareholder lists and proxy expenses. Except for such reimbursement of expenses,
the Agent shall bear all of the costs of providing services hereunder.
The Fund agrees to pay all reimbursable expenses within thirty (30)
days following receipt of a notice for reimbursement of such expenses.
3. REPRESENTATIONS OF AGENT
The Agent represents and warrants to the Trust that:
A. It is a corporation duly organized, existing and in good
standing under the laws of Delaware.
B. It is duly qualified to carry on its business and duly
registered as a transfer agent under the 1934 Act;
C. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
D. All requisite corporate proceedings have been taken to
authorize it to enter and perform this Agreement; and
E. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
4. REPRESENTATIONS OF THE TRUST
The Trust represents and warrants to the Agent that:
A. The Trust is registered under the 1940 Act as an open-ended
diversified investment company;
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B. The Trust is a business trust organized, existing, and in good
standing under the laws of California;
C. The Trust is empowered under applicable laws and by its
Declaration of Trust and other governing documents to enter
into and perform this Agreement;
D. All necessary proceedings required to be taken by the Trust to
authorize it to enter into and perform this Agreement;
E. The Trust will comply with all applicable requirements of the
Securities Act of 1933 and the Investment Company Act of 1940,
and all other laws, rules and regulations of governmental
authorities having jurisdiction; and
F. A registration statement under the Securities Act of 1933
covering shares of the Fund is currently effective and will
remain effective. Appropriate state securities law filings
have been made and will continue to be made, with respect to
all shares of the Fund being offered and sold.
5. COVENANTS OF THE TRUST AND THE AGENT
The Funds shall furnish the Agent a certified copy of the resolution
of the Board of Trustees of the Trust authorizing the appointment of the Agent
and the execution of this Agreement. The Trust shall provide to the Agent a copy
of its Declaration of Trust and all amendments.
The Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the 1940 Act and the rules thereunder, the
Agent agrees that all such records prepared or maintained by the Agent relating
to the services to be performed by the Agent hereunder are the property of the
Trust and will be preserved, maintained and made available in accordance with
such section and rules and will be surrendered to the Trust on and in accordance
with its request.
6. LIABILITY; INDEMNIFICATION
A. The Agent. The Agent agrees to use reasonable care and to act in
good faith in performing its duties hereunder and shall not be liable for any
error in judgment or mistake of law or for any loss suffered by the Trust or the
Fund in connection with the matters to which this Agreement relates, provided
that the Agent has acted in accordance with such standard and with the terms of
this Agreement.
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Notwithstanding the foregoing, the Agent shall not be liable or
responsible for delays or errors occurring by reason of circumstances beyond its
control, including acts of civil or military authority, national or state
emergencies, fire, mechanical or equipment failure, flood or catastrophe, acts
of God, insurrection or war. In the event of a mechanical breakdown beyond its
control, the Agent shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond the Agent's
control. The Agent will make every reasonable effort to restore any lost or
damaged data, and the correct of any errors resulting from such a breakdown will
be at the Agent's expense. The Agent agrees that it shall, at all times, have
reasonable contingency plans with appropriate parties, making reasonable
provision for emergency use of electrical data processing equipment to the
extent appropriate equipment is available.
The Trust will indemnify and hold the Agent harmless against any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) ("Losses") resulting from any claim, demand, action
or suit and arising out of or in connection with the Agent's duties on behalf of
the Trust hereunder, except insofar as such Losses result from the willful
misfeasance, bad faith or negligence of the Agent in the performance of its
duties hereunder or from its reckless disregard of such duties.
In performing services hereunder, Agent shall be entitled to rely
and to act upon: (i) telephone instructions relating to the exchange or
redemption of shares received by the Agent and reasonably believed by the Agent
to have originated from the record owner of the subject shares; (ii) any
instructions executed or orally communicated by a duly authorized officer or
employee of the Trust, according to such lists of authorized officers and
employees furnished to the Agent and as amended from time to time in writing by
a resolution of the Board of Directors of the Trust; and (iii) any genuine
instrument signed, countersigned or executed by any person or persons authorized
to sign, countersign or execute the same.
B. The Trust. Article 5 of the Trust's Declaration of Trust contains
provisions limiting the liability of the Trustees, officers, employees and
agents of the Trust. The obligations of the Trust created hereunder are not
personally binding upon, nor shall resort be had to the property of, any of the
Trustees, officers, employees or agents of the Trust or of the shareholders of
the Fund, and only that portion of the Fund property necessary to satisfy the
obligations of the Trust arising hereunder shall be bound or affected by the
operation of this Agreement.
7. CALIFORNIA LAW TO APPLY
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This Agreement shall be deemed to have been executed in California
and shall be construed and the provisions thereof interpreted under and in
accordance with the substantive laws of the State of California, without regard
to the conflicts of laws provisions of such state.
8. TERM, AMENDMENT, ASSIGNMENT, TERMINATION AND NOTICE
A. This Agreement shall become effective as of the date set forth
above for an initial term of two years and shall continue in
effect from year to year thereafter provided that each such
continuance is approved annually by the Board of Trustees of
the Trust, including the vote of a majority of the Trustees
who are not "interested persons" of the Trust, as defined by
the 1940 Act and the rules thereunder.
B. This Agreement may be amended by the mutual written consent of
the parties.
C. This Agreement may be terminated upon ninety (90) days written
notice given by one party to the other, and shall terminate in
the event that the Management Agreement terminates (effective
as of the date of termination of the Management Agreement).
D. This Agreement and any right or obligation hereunder may not
be assigned by either party without the signed, written
consent of the other party; provided, however, that the Agent
may assign this Agreement without such consent in a
transaction which does not constitute an "assignment" as
defined by the 1940 Act and the rules thereunder.
E. Any notice required to be given by the parties to each other
under the terms of this Agreement shall be in writing,
addressed and delivered, or mailed to the principal place of
business of the other party.
F. In the event that the Trust gives to the Agent written notice
of its intention to terminate this Agreement and appoint a
successor transfer agent, the Agent agrees to cooperate in the
transfer of its duties and responsibilities to the successor,
including the transfer of any and all relevant books, records
and other data established or maintained by the Agent under
this Agreement.
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G. Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be paid by the Trust.
9. NATURE OF THE TRUST
A. Trust. Article 5 of the Declaration of Trust contains
provisions limiting the liability of the Trustees, officers,
employees and agents of the Trust. The obligations of the
Trust created hereunder are not personally binding upon, nor
shall resort be had to the property of, any of the Trustees,
officers, employees or agents of the Trust or of the
Shareholders of the Fund, and only that portion of the Fund
property necessary to satisfy the obligations of the trust
arising hereunder shall be bound or affected by the operation
of this Agreement.
B. Third Parties. When dealing with third parties on behalf of
the Fund, AIMI shall include such recitals in written
documents as may be reasonably requested by the Trust
regarding the limitation of liability of the Board of
Trustees, the Fund's shareholders, and the Trust's officers,
employees and agents to third parties.
IN WITNESS WHEREOF, the authorized representatives of the parties
hereto have executed this Agreement as of the date first written above.
Health and Hospital Facilities Trust AMBAC Investment
Management, Inc.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Its Secretary Its Managing Director
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EXHIBIT A
DUTIES OF THE AGENT
1. SHAREHOLDER INFORMATION
The Agent shall maintain a record of the number of shares held by each
holder of record which shall include their addresses and taxpayer
identification numbers.
2. SHAREHOLDER SERVICES
The Agent will investigate all shareholder inquiries relating to
shareholder accounts, and will answer all correspondence from shareholders
and others relating to its duties hereunder and such other correspondence
as may from time to time be mutually agreed upon between the Agent and the
Trust. The Agent shall keep records of shareholder correspondence and
replies thereto, and of the lapse of time between the receipt of such
correspondence and the mailing of such replies.
3. STATE REGISTRATION REPORTS
The Agent shall furnish the Trust on a state-by-state basis, sales
reports, such periodic and special reports as the Trust may reasonably
request, and such other information, including shareholder lists and
statistical information concerning accounts, as may be agreed upon from
time to time between the Trust and the Agent.
4. UNCERTIFICATED SHARES
(a) With respect to shares held in open accounts or uncertificated form
(i.e., no certificate being issued with respect thereto), the Agent
shall maintain comparable records of the recordholders thereof,
including their names, addresses, and taxpayer identification
numbers.
5. MAILING COMMUNICATIONS TO SHAREHOLDERS: PROXY MATERIALS
At the expense of the Trust, the Agent will address and mail to
shareholders of the Fund, all reports to shareholders, dividend and
distribution notices, and proxy material for meeting of shareholders. In
connection with the meetings of shareholders, the Agent will prepare
shareholder lists, mail, and certify as to the mailing of proxy materials,
process and tabulate returned proxy cards, report on proxies voted prior
to meetings (act as inspector of election at meetings and certify shares
voted at meetings).
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6. SALES OF SHARES
(a) PROCESSING OF INVESTMENT CHECKS OR OTHER INVESTMENTS
Upon receipt of any check or other instrument drawn or endorsed to
it as agent for, or identified as being for the account of the Fund,
or drawn or endorsed to the Distributor of the Fund's shares for the
purchase of shares, the Agent shall stamp the check with the date of
receipt, shall forthwith process the same for collection and, shall
record the number of shares sold, the trade date and price per
share, and the amount of money to be delivered to the custodian of
the Fund for the sale of such shares.
(b) ISSUANCE OF SHARES
Upon receipt of notification that the Fund's custodian has received
the amount of money specified in the immediately preceding
paragraph, the Agent shall issue to and hold in the account of the
purchaser/shareholder, or if no account is specified therein, in a
new account established in the name of the purchaser, the number of
shares such purchaser is entitled to receive, as determined in
accordance with applicable Federal law and regulations.
(c) CONFIRMATIONS
The Agent shall send to purchasers of shares confirmations of their
purchases and periodic statements which will show the new share
balance, the shares held under a particular plan, if any, for
withdrawing investments, the amount invested, and the price paid for
the newly purchased shares, or will be in such other form as the
Trust and the Agent may agree from time to time. Such confirmations
and statements will be sent at such times as may be required by
applicable laws and regulations or as may otherwise be agreed to by
the Trust and the Agent in compliance with such laws and
regulations.
(d) SUSPENSION OF SALE OF SHARES
The Agent shall not be required to issue any shares of the Fund
where it has received a written instruction from the Trust or
written notice from any appropriate Federal or state authority that
the sale of the shares of the Fund has been suspended or
discontinued, and the Agent shall be entitled to rely upon such
written instructions or written notification.
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(e) TAXES IN CONNECTION WITH ISSUANCE OF SHARES
Upon the issuance of any shares in accordance with the foregoing
provisions of this Section, the Agent shall not be responsible for
the payment of any original issue or other taxes required to be paid
in connection with such issuance.
(f) RETURNED CHECKS
In the event that any check or other order for the payment of money
is returned unpaid for any reason, the Agent will: (i) give prompt
notice of such return to the Trust or its designee; (ii) place a
stop transfer order against all shares issued as a result of such
check or order; and (iii) take such actions as the Agent may from
time to time deem appropriate.
7. REDEMPTIONS
(a) REQUIREMENTS FOR TRANSFER OR REDEMPTION OF SHARES
The Agent shall process all requests from shareholders to transfer
or redeem shares in accordance with the procedures set forth in the
Fund's Prospectus, including, but not limited to, all requests from
shareholders to redeem shares and all determinations of the number
of shares required to be redeemed to fund designated monthly
payments, automatic payments, or any other such distribution or
withdrawal plan.
The Agent will transfer or redeem shares upon receipt of written
instructions, accompanied by such documents as the Agent reasonably
may deem necessary to evidence the authority of the person making
such transfer or redemption, and bearing satisfactory evidence of
the payment of stock transfer taxes, if any.
The Agent reserves the right to refuse to transfer or redeem shares
until it is satisfied that the endorsement on the instructions is
valid and genuine, and for that purpose it may require a guarantee
of signature by a member firm of a national securities exchange, by
any national bank or trust company, by any member bank of the
Federal Reserve system or by other eligible guarantor institution.
The Agent also reserves the right to refuse 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 Agent, in its judgment, deems improper or unauthorized, or
until it is reasonably satisfied that there is no
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basis to any claims adverse to such transfer or redemption.
The Agent may, in effecting transactions, rely upon the provisions
of the Uniform Act for the Simplification of Fiduciary Security
Transfers or the provisions of Article 8 of the Uniform Commercial
Code, as the same may be amended from time to time in the State of
California, which, in the opinion of legal counsel for the Trust or
of its own legal counsel protect it in not requiring certain
documents in connection with the transfer or redemption of shares.
The Trust may authorize the Agent to waive the signature guarantee
in certain cases by written instructions.
For the purposes of the redemption of shares of the Fund which have
been purchased within 15 days of a redemption request, the Trust
shall provide the Agent with written instructions concerning the
time within which such requests may be honored.
(b) NOTICE TO CUSTODIAN AND FUND
When shares are redeemed, the Agent shall, upon receipt of the
instructions and documents in proper form, deliver to the Fund's
custodian and the Trust a notification setting forth the number of
shares to be redeemed. Such redemptions shall be reflected on
appropriate accounts maintained by the Agent reflecting outstanding
shares of the Fund and shares attributed to individual accounts and,
if applicable, any individual withdrawal or distribution plan.
(c) PAYMENT OF REDEMPTION PROCEEDS
The Agent shall, upon receipt of the moneys paid to it by the Fund's
custodian for the redemption of shares, pay to the shareholder, or
his authorized agent or legal representative, such moneys as are
received from the custodian, all in accordance with the redemption
procedures described in the Fund's Prospectus; provided, however,
that the Agent shall pay the proceeds of any redemption of shares
purchased within a period of time agreed upon in writing by the
Agent and the Trust, only in accordance with procedures agreed to in
writing by the Agent and the Trust, for determining that good funds
have been collected for the purchase of such shares. The Trust shall
indemnify the Agent for any payment of redemption proceeds or
refusal to make such payment, if the payment or refusal to pay is in
accordance with said written procedures.
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The Agent shall not process or effect any redemptions pursuant to a
plan of distribution or redemption, or in accordance with any other
shareholder request upon the receipt by the Agent of notification of
the suspension of the determination of the Fund's net asset value.
8. DIVIDENDS
(a) NOTICE TO AGENT AND CUSTODIAN
Upon the declaration of each dividend and each capital gains
distribution by the Board of Trustees of the Trust with respect to
shares, the Trust shall furnish to the Agent a copy of a resolution
of its Board of Trustees, certified by the Secretary of the Trust,
setting forth the date of the declaration of such dividend or
distribution, the ex-dividend date, the date of payment thereof, the
record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of
record as of that date, the total amount payable to the Agent on the
payment date, and whether such dividend or distribution is to be
paid in shares of such class at net asset value.
On or before the payment date specified in such resolution of the
Board of Trustees, the Trust will cause the custodian of the Fund to
pay to the Agent sufficient cash to make payment to the shareholders
of record as of such payment date.
(b) PAYMENT OF DIVIDENDS BY THE AGENT
The Agent will, on the designated payment date, automatically
reinvest all dividends required to be reinvested in additional
shares at net asset value (determined on such date), and mail to
shareholders statements at such times as may be required by
applicable law or agreed to by the Trust and the Agent showing the
number of full and fractional shares (rounded to three decimal
places) then currently owned by the shareholders and the net asset
value of the shares so credited to the shareholders' accounts.
(c) INSUFFICIENT FUNDS FOR PAYMENTS
If the Agent does not receive sufficient cash from the Fund's
custodian to make total dividend and/or distribution payments to all
shareholders as of the record date, the Agent will, upon notifying
the Trust, withhold payment to all shareholders of record as of the
record date, until such sufficient cash is provided to the Agent.
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(d) INFORMATION RETURNS
It is understood that the Agent shall file such appropriate
information returns concerning the payment of dividends, return of
capital, and capital gain distributions with the proper Federal,
state, and local authorities as are required by law to be filed and
shall be responsible for the withholding of taxes, if any, due on
such dividends or distributions to shareholders when required to
withhold taxes under applicable law.
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