EXHIBIT 9
FORM OF
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of the day of Wednesday, July 19, 1995 by and between THE
DLB FUND GROUP, a business trust organized under the laws of The Commonwealth of
Massachusetts (the "Company"), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the "Bank").
WITNESSETH:
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 four series,
the DLB Fixed Income Fund, the DLB Global Small Capitalization Fund, the DLB
Value Fund and the DLB Mid Capitalization Fund (such series, together with all
other series subsequently established by the Company and made subject to this
Agreement in accordance with Article 17, being herein referred to as the
"Fund");
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Company and the Bank agree as follows:
ARTICLE 1. Terms of Appointment: Duties of the Bank
1.01 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
as, and the Bank agrees to act as, transfer agent for each of the Fund'
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.
1.02 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 Trustees 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; and
(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 31 a-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) 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 authorized, based
upon data provided to it by the Company, and issued and outstanding.
The Bank shall also provide the Company on a regular basis with
-2-
the total number of Shares which are authorized and issued and
outstanding and shall have no obligation, when recording the issuance
of Shares, to monitor the issuance of such Shares or to take cognizance
of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of 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 and the reporting of such transactions to the Fund 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 of such transactions so identified on a daily and cumulative basis.
ARTICLE 2. Sale of Company Shares
2.01 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, 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.
-3-
2.02 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.
2.03 Under procedures as established by mutual agreement between the
Company and the Bank, the Bank shall issue to the purchaser or his 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 Fund
Shares, determined in accordance with the Prospectus and applicable Federal law
or regulation. In issuing Shares to a purchaser or his authorized agent, the
Bank shall be entitled to rely upon the latest directions, if any, previously
received by the Bank from the purchaser or his authorized agent concerning the
delivery of such Shares.
2.04 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 in question has been suspended or discontinued, and the
Bank shall be entitled to rely upon such written instructions or written
notification.
2.05 Upon the issuance of any Shares of any Fund 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.
2.06 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.
ARTICLE 3. Returned Checks
3.01 In the event that any check or other order for 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.
-4-
ARTICLE 4. Redemptions
4.01 Shares of any Fund may be redeemed in accordance with the
procedures set forth in the Prospectus of the Company and the Bank will duly
process all redemption requests.
ARTICLE 5. Transfers and Exchanges
5.01 The Bank is authorized to review and 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. The Bank will, upon an order to
transfer shares 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.
ARTICLE 6. Right to Seek Assurances
6.01 The Bank 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 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 of
its own legal counsel protect it in not requiring 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 its own counsel.
ARTICLE 7. Distributions
7.01 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 Trustees 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 the 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.
-5-
7.02 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 the dividend or
distribution according to the certificate, 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.
7.03 The Bank will replace lost checks at its discretion and in
conformity with regular business practices.
7.04 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.
7.05 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Trustees of the Company.
7.06 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.
ARTICLE 8. Other Duties
8.01 In addition to the duties expressly provided for 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.
ARTICLE 9. Taxes
9.01 It is understood that the Bank shall file such appropriate
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.
ARTICLE 10. Books and Records
10.01 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,
-6-
plan application, dividend address and correspondence relating to the current
maintenance of a Shareholder's account; (vii) 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.
10.02 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 at reasonable times. 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
periods and documents will either be turned over to the Company, or destroyed in
accordance with the Company's authorization.
10.03 Procedures applicable to the services to be performed hereunder
may be established from time to time by agreement between the Fund and the Bank.
The Bank shall have the right to utilize any shareholder accounting and
recordkeeping system which, in its opinion, qualifies to perform any services to
be performed hereunder and is acceptable to the Company provided that such
acceptance shall not be unreasonably withheld. The Bank shall keep records
relating to the services performed hereunder, in the form and manner as it may
deem advisable.
ARTICLE 11. Fees and Expenses.
11.01 For performance by the Bank pursuant to this Agreement, the Fund
agree to pay the Bank an annual maintenance fee for each Shareholder account as
set out in the initial fee schedule attached hereto. Such fees and out-of-pocket
expenses and advances identified under Section 11.02 below may be changed from
time to time subject to mutual written agreement between the Fund and the Bank.
11.02 In addition to the fee paid under Section 11.01 above, the Fund
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 Fund including, without limitation, any equipment or supplies specifically
ordered by the Company or required to be purchased by the Company, will be
reimbursed by the Fund.
11.03 The Fund 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 at least seven
(7) days prior to the mailing date of such material.
-7-
ARTICLE 12. Representations and Warranties of the Bank
The Bank represents and warrants to the Company that:
12.01 It is a trust company duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
12.02 It is empowered under applicable laws and by its by-laws to enter
into and perform this Agreement.
12.03 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
12.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
ARTICLE 13. Representations and Warranties of the Company
The Company represents and warrants to the Bank that:
13.01 It is a business trust duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts as set forth in the
preamble hereto.
13.02 It is empowered under applicable laws and by its Agreement and
Declaration of Trust dated August 1, 1994 (the "Declaration") and by-laws to
enter into and perform this Agreement.
13.03 All proceedings required by said Declaration and by-laws have
been taken to authorize it to enter into and perform this Agreement.
13.04 It is an open-end investment company registered under the ▇▇▇▇
▇▇▇.
13.05 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 is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares of the Company being offered for sale.
13.06 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.
-8-
ARTICLE 14. Indemnification
14.01 Except as set forth in subparagraph (f) hereof, the Bank shall
not be responsible for, and the Company shall indemnify and hold the Bank
harmless from and against, any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of or attributable to:
(a) All actions taken or omitted to be taken by the Bank or its agent
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 it by or on behalf
of the Fund, and (ii) have been prepared and/or maintained by the Fund or any
other person or firm on behalf of the Fund.
(b) Any action taken or omitted to be taken by the Bank in connection
with its appointment in good faith in reliance upon any law, act, regulation or
interpretation of the same even though the same may thereafter have been
altered, changed, amended or repealed.
(c) The Funds' refusal or failure to comply with the terms of this
Agreement, or which arise out of the Funds' lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund 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.
(e) The offer or sale of Shares by the Company in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any State that such Shares be registered in such State or
in violation of any stop order or other determination or ruling by any federal
agency or any State with respect to the offer or sale of such Shares in such
state.
(f) In addition to any other limitation provided herein, or by law,
indemnification under this Agreement shall not apply to actions or omissions of
the Bank or its trustees, officers, employees, agents or subcontractors in cases
of its own gross negligence, willful misconduct, bad faith, reckless disregard
of its duties or their own duties hereunder, knowing violation of law or fraud.
14.02 The Bank shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel 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.
14.03 At any time the Bank may apply to any officer of the Company for
instructions, and may consult with legal counsel 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
-9-
subcontractors shall not be liable and shall be indemnified by the Company for
any action taken or omitted by it in reliance upon such instructions or 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, reasonably believed to
be genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided the Bank or its
agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Fund, and shall not be held to have notice
of any change of authority of any person, until receipt of written notice
thereof from the Fund.
14.04 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.
14.05 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
act or failure to act hereunder as contemplated by this Agreement.
14.06 In order that the indemnification provision contained in this
Article 14 shall apply, however, it is understood that if any case the Fund may
be asked to indemnify or save the Bank harmless, the Fund shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the Bank will use all reasonable care to
identify and notify the Fund promptly concerning any situation which presents or
appears likely to present the probability of such claim for indemnification. The
Fund shall have the option to defend the Bank against any claim which may be the
subject of this indemnification, and in the event that the Fund so elects it
will so notify the Bank and thereupon the Fund shall take over the complete
defense of the claim, and the Bank shall in such situations incur no further
legal or other expenses in connection with such claim, provided however, if the
defendants in any such action include both the Fund and the Bank, and the Bank
shall have reasonably concluded that there may be legal defenses available to it
which are different from or additional to those available to the Fund, the Bank
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of the Bank
with such cost to be borne by the party hereto ultimately liable with respect to
such claim. The Bank shall in no case confess any claim or make any compromise
in any case in which the Fund will be asked to indemnify the Bank except with
prior written consent of the Fund, which consent shall not be unreasonably
withheld. The Fund shall not settle any claim without the Bank's prior written
consent, provided however that the Bank shall not unreasonably withhold its
consent.
ARTICLE 15. Covenants of the Company and the Bank
15.01 The Company shall promptly furnish to the Bank the following:
-10-
(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 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.
(e) All account application forms and other documents relating to
shareholder accounts or relating to any plan, program or service offered by the
Company.
(f) A list of all Shareholders of the Fund with the name, address and
tax identification number of each Shareholder, and the number of Shares of the
Fund 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.
(g) 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
which may be copies of a previously issued opinion.
(h) Copies of the Fund registration statement on Form N-1A as amended
and declared effective by the Securities and Exchange Commission and all
post-effective amendments thereto.
(i) Such other certificates, documents or opinions as may mutually be
deemed necessary or appropriate for the Bank in the proper performance of its
duties.
15.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company for safekeeping of check forms
and facsimile signature imprinting devices, if any; and for the preparation or
use, and for keeping account of such forms and devices.
15.03 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.
-11-
15.04 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.
15.05 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
instruction. 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 held
liable for the failure to exhibit the Shareholder records to such person.
ARTICLE 16. Term of Agreement
16.01 This Agreement shall become effective on the date hereof (the "
Effective Date") and shall continue in effect for twelve months from the
Effective Date ( the "Initial Term") and from year to year thereafter with
respect to each Fund, provided that subsequent to the Initial Term, this
Agreement may be terminated by either party at any time without payment of any
penalty upon ninety (90) days written notice to the other. In the event such
notice is given by the Company, it shall be accompanied by a resolution of the
Board of Trustees, certified by the Secretary, electing to terminate this
Agreement and designating a successor transfer agent.
16.02 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 charge for
any other reasonable expenses associated with such termination.
ARTICLE 17. Additional Funds
17.01 In the event that the Company establishes one or more series of
Shares in addition to the initial series 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.
ARTICLE 18. Assignment
18.01 Except as provided in Section 18.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
18.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
-12-
18.03 The Bank, may 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. The Bank will obtain
the consent of the Company for the use of subcontractors provided that the
Company will not unreasonably withhold its consent.
ARTICLE 19. Amendment
19.01 This Agreement may be amended or modified by a written agreement
executed by both parties.
ARTICLE 20. Massachusetts Law to Apply
20.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
ARTICLE 21. Merger of Agreement and Severability
21.01 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.
21.02 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.
21.03 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.
ARTICLE 22. Notices
22.01 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: The DLB Fund Group
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-13-
For the Bank: Investors Bank & Trust Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
ARTICLE 23. Limitation of Liability
23.01 The term The DLB Fund Group means and refers to the Trustees from
time to time serving under the Declaration, as the same may subsequently thereto
have been, or subsequently hereto be, amended. It is expressly agreed that the
obligations of the Fund hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents or employees of the Fund, personally,
but shall bind only the property of the Fund as provided in the Declaration. The
execution and delivery of this agreement have been authorized by the Trustees of
the Fund and this Agreement has been signed by an authorized officer of the
Fund, acting as such, and neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them, but shall bind only the property of the Fund as provided in the
Declaration.
-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.
The DLB Fund Group
Name:
Title:
ATTEST:
Investors Bank & Trust Company
Name:
Title:
ATTEST:
DATE:
-15-
