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EXHIBIT 2(K)(2)
AGENCY AGREEMENT
AGREEMENT dated the 23rd day of April, 1999 by and between XXXXXX FLOATING RATE
FUND, a Massachusetts business trust (the "Fund"), and XXXXXX SERVICE COMPANY, a
Delaware corporation ("Service Company").
WHEREAS, the Fund wants to appoint Service Company as Transfer Agent and
Dividend Disbursing Agent, and Service Company wants to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Documents to be Filed with Appointment. In connection with the
appointment of Service Company as Transfer Agent and Dividend
Disbursing Agent for the Fund, there will be filed with
Service Company the following documents:
A. A certified copy of the resolutions of the Board of
Trustees of the Fund appointing Service Company as
Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and designating
certain persons to give written instructions and
requests on behalf of the Fund.
B. A certified copy of the Agreement and Declaration of
Trust of the Fund dated March 23, 1999 and any
amendments thereto.
C. A certified copy of the Bylaws of the Fund as in
effect on March 31, 1999.
D. Copies of Registration Statements of the Fund filed
with the Securities and Exchange Commission.
E. Specimens of all forms of outstanding share
certificates as approved by the Board of Trustees of
the Fund, with a certificate of the Secretary of the
Fund as to such approval.
F. Specimens of the signatures of the officers of the
Fund authorized to sign share certificates and
individuals authorized to sign written instructions
and requests on behalf of the Fund.
G. An opinion of counsel for the Fund:
(1) With respect to the Fund's organization and
existence under the laws of The Commonwealth
of Massachusetts.
(2) With respect to the status of all shares of
the Fund covered by this appointment under
the Securities Act of 1933, and any other
applicable federal or state statute.
(3) To the effect that all issued shares are,
and all unissued shares will be when issued,
validly issued, fully paid and
non-assessable by the Fund.
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2. Certain Representations and Warranties of Service Company.
Service Company represents and warrants to the Fund that:
A. It is a corporation duly organized and existing and
in good standing under the laws of the State of
Delaware.
B. It is duly qualified to carry on its business in the
State of Missouri.
C. It is empowered under applicable laws and by its
Certificate of Incorporation and Bylaws to enter into
and perform the services contemplated in this
Agreement.
D. All requisite corporate action has been taken to
authorize it to enter into and perform this
Agreement.
E. It has and will continue to have and maintain the
necessary facilities, equipment and personnel to
perform its duties and obligations under this
Agreement.
F. It is, and will continue to be, registered as a
transfer agent under the Securities Exchange Act of
1934.
3. Certain Representations and Warranties of the Fund. The Fund
represents and warrants to Service Company that:
A. It is a business trust duly organized and existing
and in good standing under the laws of The
Commonwealth of Massachusetts.
B. It is an investment company registered under the
Investment Company Act of 1940.
C. A registration statement under the Securities Act of
1933 has been filed and will be effective with
respect to all shares of the Fund being offered for
sale at any time and from time to time.
D. All requisite steps have been or will be taken to
register the Fund's shares for sale in all applicable
states, including the District of Columbia if
necessary pursuant to the laws of such states or the
District of Columbia.
E. The Trustees, on behalf of the Fund, are empowered
under applicable laws and by the Fund's Agreement and
Declaration of Trust and Bylaws to enter into and
perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this
Agreement, the Fund hereby employs and appoints
Service Company as Transfer Agent and Dividend
Disbursing Agent effective the date hereof.
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B. Service Company hereby accepts such employment and
appointment and agrees that it will act as the Fund's
Transfer Agent and Dividend Disbursing Agent. Service
Company agrees that it will also act as agent in
connection with the Fund's periodic withdrawal
payment accounts and other open-account or similar
plans for shareholders, if any.
C. Service Company agrees to provide the necessary
facilities, equipment and personnel to perform its
duties and obligations hereunder in accordance with
industry practice.
D. The Fund agrees to use all reasonable efforts to
deliver to Service Company in Kansas City, Missouri,
as soon as they are available, all its shareholder
account records.
E. Subject to the provisions of Sections 20 and 21
hereof, Service Company agrees that it will perform
all the usual and ordinary services of Transfer Agent
and Dividend Disbursing Agent and as agent for the
various shareholder accounts, including, without
limitation, the following: issuing, transferring and
canceling share certificates, maintaining all
shareholder accounts, preparing shareholder meeting
lists, mailing proxies, receiving and tabulating
proxies, mailing shareholder reports and
prospectuses, withholding federal income taxes,
preparing and mailing checks for disbursement of
income and capital gains dividends, preparing and
filing all required U.S. Treasury Department
information returns for all shareholders, preparing
and mailing confirmation forms to shareholders and
dealers with respect to all purchases and
liquidations of the Fund shares and other
transactions in shareholder accounts for which
confirmations are required, recording reinvestments
of dividends and distributions in Fund shares,
recording repurchases of Fund shares and preparing
and mailing checks for payments upon repurchase and
for disbursements to systematic withdrawal plan
shareholders, if applicable.
5. Compensation and Expenses.
A. In consideration for the services provided hereunder
by Service Company as Transfer Agent and Dividend
Disbursing Agent, the Fund will pay to Service
Company from time to time compensation as agreed upon
for all services rendered as Agent, and also, all its
reasonable out-of-pocket expenses and other
disbursements incurred in connection with the agency.
Such compensation will be set forth in a separate
schedule to be agreed to by the Fund and Service
Company. The initial agreement regarding compensation
is attached as Exhibit A.
B. The Fund agrees to promptly reimburse Service Company
for all reasonable out-of-pocket expenses or advances
incurred by Service Company in connection with the
performance of services under this Agreement
including, but not limited to, postage (and first
class mail
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insurance in connection with mailing share
certificates), envelopes, check forms, continuous
forms, forms for reports and statements, stationery,
and other similar items, telephone and telegraph
charges incurred in answering inquiries from dealers
or shareholders, microfilm used each year to record
the previous year's transactions in shareholder
accounts and computer tapes used for permanent
storage of records and cost of insertion of materials
in mailing envelopes by outside firms. Service
Company may, at its option, arrange to have various
service providers submit invoices directly to the
Fund for payment of out-of-pocket expenses
reimbursable hereunder.
C. Service Company shall be contractually bound
hereunder by the terms of any publicly announced fee
cap or waiver of its fee or by the terms of any
written document provided to the Board of Trustees of
the Fund announcing a fee cap or waiver of its fee,
or any limitation of the Fund's expenses, as if such
fee cap, fee waiver or expense limitation were fully
set forth herein
6. Efficient Operation of Service Company System.
A. In connection with the performance of its services
under this Agreement, Service Company is responsible
for the accurate and efficient functioning of its
system at all times, including:
(1) The accuracy of the entries in Service
Company's records reflecting purchase orders
and repurchase requests and other
instructions received by Service Company
from dealers, shareholders, the Fund or its
principal underwriter.
(2) The timely availability and the accuracy of
shareholder lists, shareholder account
verifications, confirmations and other
shareholder account information to be
produced from Service Company's records or
data.
(3) The accurate and timely issuance of dividend
and distribution checks in accordance with
instructions received from the Fund.
(4) The accuracy of repurchase transactions and
payments in accordance with repurchase
instructions received from dealers,
shareholders or Fund or other authorized
persons.
(5) The deposit daily in the Fund's appropriate
special bank account of all checks and
payments received from dealers or
shareholders for investment in shares.
(6) The requiring of proper forms of
instructions, signatures and signature
guarantees and any necessary documents
supporting the rightfulness of transfers,
repurchase requests and other shareholder
account transactions, all in conformance
with Service Company's present procedures
with such changes as may be deemed
reasonably appropriate by Service Company or
as may be reasonably approved by or on
behalf of the Fund.
(7) The maintenance of a current duplicate set
of the Fund's essential or required records,
as agreed upon from time to time by the Fund
and Service Company, at a secure distant
location, in form available and usable
forthwith in the event of any breakdown or
disaster disrupting its main operation.
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7. Indemnification.
A. The Fund shall indemnify and hold Service Company
harmless from and against any and all claims,
actions, suits, losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities
arising out of or attributable to any action or
omission by Service Company pursuant to this
Agreement or in connection with the agency
relationship created by this Agreement, provided that
Service Company has acted in good faith, without
negligence and without willful misconduct.
B. Service Company shall indemnify and hold the Fund
harmless from and against any and all claims,
actions, suits, losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities
arising out of or attributable to any action or
omission by Service Company pursuant to this
Agreement or in connection with the agency
relationship created by this Agreement, provided that
Service Company has not acted in good faith, without
negligence and without willful misconduct.
C. In order that the indemnification provisions
contained in this Section 7 shall apply, upon the
assertion of a claim for which either party (the
"Indemnifying Party") may be required to provide
indemnification hereunder, the party seeking
indemnification (the "Indemnitee") shall promptly
notify the Indemnifying Party of such assertion, and
shall keep such party advised with respect to all
developments concerning such claim. The Indemnifying
Party shall be entitled to assume control of the
defense and the negotiations, if any, regarding
settlement of the claim. If the Indemnifying Party
assumes control, the Indemnitee shall have the option
to participate in the defense and negotiations of
such claim at its own expense. The Indemnitee shall
in no event confess, admit to, compromise, or settle
any claim for which the Indemnifying Party may be
required to indemnify it except with the prior
written consent of the Indemnifying Party, which
shall not be unreasonably withheld.
8. Certain Covenants of Service Company and the Fund.
A. All requisite steps will be taken by the Fund from
time to time when and as necessary to register the
Fund's shares for sale in all states in which the
Fund's shares shall at the time be offered for sale
and require registration. If at any time the Fund
receives notice of any stop order or other proceeding
in any such state affecting such registration or the
sale of the Fund's shares, or of any stop order or
other proceeding under the Federal securities laws
affecting the sale of the Fund's shares, the Fund
will give prompt notice thereof to Service Company.
B. Service Company hereby agrees to establish and
maintain facilities and procedures reasonably
acceptable to the Fund for safekeeping of share
certificates, check forms, and facsimile signature
imprinting devices, if any;
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and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
Further, Service Company agrees to carry insurance,
as specified in Exhibit B hereto, with insurers
reasonably acceptable to the Fund and in minimum
amounts that are reasonably acceptable to the Fund,
which will not be changed without the consent of the
Fund, which consent shall not be unreasonably
withheld, and which will be expanded in coverage or
increased in amounts from time to time if and when
reasonably requested by the Fund. If Service Company
determines that it is unable to obtain any such
insurance upon commercially reasonable terms, it
shall promptly so advise the Fund in writing. In such
event, the Fund shall have the right to terminate
this Agreement upon 30 days notice.
C. To the extent required by Section 31 of the
Investment Company Act of 1940 and Rules thereunder,
Service Company agrees that all records maintained by
Service Company relating to the services to be
performed by Service Company under this Agreement are
the property of the Fund and will be preserved and
will be surrendered promptly to the Fund on request.
D. Service Company agrees to furnish the Fund
semi-annual reports of its financial condition,
consisting of a balance sheet, earnings statement and
any other reasonably available financial information
reasonably requested by the Fund. The annual
financial statements will be certified by Service
Company's certified public accountants.
E. Service Company represents and agrees that it will
use all reasonable efforts to keep current on the
trends of the investment company industry relating to
shareholder services and will use all reasonable
efforts to continue to modernize and improve its
system without additional cost to the Fund.
F. Service Company will permit the Fund and its
authorized representatives to make periodic
inspections of its operations at reasonable times
during business hours.
G. If Service Company is prevented from complying,
either totally or in part, with any of the terms or
provisions of this Agreement, by reason of fire,
flood, storm, strike, lockout or other labor trouble,
riot, war, rebellion, accidents, acts of God,
equipment, utility or transmission failure or damage,
and/or any other cause or casualty beyond the
reasonable control of Service Company, whether
similar to the foregoing matters or not, then upon
written notice to the Fund, the requirements of this
Agreement that are affected by such disability, to
the extent so affected, shall be suspended during the
period of such disability; provided, however, that
Service Company shall make reasonable effort to
remove such disability as soon as possible. During
such period, the Fund may seek alternate sources of
service without liability hereunder; and Service
Company will use all reasonable efforts to assist the
Fund to obtain alternate sources of service. Service
Company shall have no liability to the Fund for
nonperformance because of the reasons set forth in
this Section 8.G; but if a disability that,
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in the Fund's reasonable belief, materially affects
Service Company's ability to perform its obligations
under this Agreement continues for a period of 30
days, then the Fund shall have the right to terminate
this Agreement upon 10 days written notice to Service
Company.
9. Adjustment. In case of any recapitalization, readjustment or
other change in the structure of the Fund requiring a change
in the form of share certificates, Service Company will issue
or register certificates in the new form in exchange for, or
in transfer of, the outstanding certificates in the old form,
upon receiving the following:
A. Written instructions from an officer of the Fund.
B. Certified copy of any amendment to the Agreement and
Declaration of Trust or other document effecting the
change.
C. Certified copy of any order or consent of each
governmental or regulatory authority required by law
for the issuance of the shares in the new form, and
an opinion of counsel that no order or consent of any
other government or regulatory authority is required.
D. Specimens of the new certificates in the form
approved by the Board of Trustees of the Fund, with a
certificate of the Secretary of the Fund as to such
approval.
E. Opinion of counsel for the Fund:
(1) With respect to the status of the shares of
the Fund in the new form under the
Securities Act of 1933, and any other
applicable federal or state laws.
(2) To the effect that the issued shares in the
new form are, and all unissued shares will
be when issued, validly issued, fully paid
and non-assessable.
10. Share Certificates. The Fund will furnish Service Company with
a sufficient supply of blank share certificates and from time
to time will renew such supply upon the request of Service
Company. Such certificates will be signed manually or by
facsimile signatures of the officers of the Fund authorized by
law and the Fund's Bylaws to sign share certificates and, if
required, will bear the trust seal or facsimile thereof.
11. Death, Resignation or Removal of Signing Officer. The Fund
will file promptly with Service Company written notice of any
change in the officers authorized to sign share certificates,
written instructions or requests, together with two signature
cards bearing the specimen signature of each newly authorized
officer, all as certified by an appropriate officer of the
Fund. In case any officer of the Fund who will have signed
manually or whose facsimile signature will have been affixed
to blank share certificates will die, resign, or be removed
prior to the issuance of such
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certificates, Service Company may issue or register such share
certificates as the share certificates of the Fund
notwithstanding such death, resignation, or removal, until
specifically directed to the contrary by the Fund in writing.
In the absence of such direction, the Fund will file promptly
with Service Company such approval, adoption, or ratification
as may be required by law.
12. Future Amendments of Agreement and Declaration of Trust and
Bylaws. The Fund will promptly file with Service Company
copies of all material amendments to its Agreement and
Declaration of Trust and Bylaws and Registration Statement
made after the date of this Agreement.
13. Instructions, Opinion of Counsel and Signatures. At any time
Service Company may apply to any officer of the Fund for
instructions, and may consult with legal counsel for the Fund
at the expense of the Fund, or with its own legal counsel at
its own expense, with respect to any matter arising in
connection with the agency; and it will not be liable for any
action taken or omitted by it in good faith in reliance upon
such instructions or upon the opinion of such counsel. Service
Company is authorized to act on the orders, directions or
instructions of such persons as the Board of Trustees of the
Fund shall from time to time designate by resolution. Service
Company will be protected in acting upon any paper or
document, including any orders, directions or instructions,
reasonably believed by it to be genuine and to have been
signed by the proper person or persons; and Service Company
will not be held to have notice of any change of authority of
any person so authorized by the Fund until receipt of written
notice thereof from the Fund. Service Company will also be
protected in recognizing share certificates that it reasonably
believes to bear the proper manual or facsimile signatures of
the officers of the Fund, and the proper countersignature of
any former Transfer Agent or Registrar, or of a Co-Transfer
Agent or Co-Registrar.
14. Papers Subject to Approval of Counsel. The acceptance by
Service Company of its appointment as Transfer Agent and
Dividend Disbursing Agent, and all documents filed in
connection with such appointment and thereafter in connection
with the agencies, will be subject to the approval of legal
counsel for Service Company, which approval will not be
unreasonably withheld.
15. Certification of Documents. The required copy of the Agreement
and Declaration of Trust and copies of all amendments thereto
will be certified by the appropriate official of The
Commonwealth of Massachusetts; and if such Agreement and
Declaration of Trust of the Fund and amendments are required
by law to be also filed with a county, city or other officer
or official body, a certificate of such filing will appear on
the certified copy submitted to Service Company. A copy of the
order or consent of each governmental or regulatory authority
required by law for the issuance of Fund shares will be
certified by the Secretary or Clerk of such governmental or
regulatory authority, under proper seal of such authority. The
copy of the Bylaws and copies of all amendments thereto and
copies of resolutions of the Board of Trustees of the Fund
will be certified by the Secretary or an Assistant Secretary
of the Fund.
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16. Records. Service Company will maintain customary records in
connection with its agency, and particularly will maintain
those records required to be maintained pursuant to
sub-paragraph (2)(iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any.
17. Disposition of Books, Records and Cancelled Certificates.
Service Company will send periodically to the Fund, or to
where designated by the Secretary or an Assistant Secretary of
the Fund, all books, documents, and all records no longer
deemed needed for current purposes and share certificates
which have been cancelled in transfer or in exchange, upon the
understanding that such books, documents, records, and share
certificates will not be destroyed by the Fund without the
consent of Service Company (which consent will not be
unreasonably withheld), but will be safely stored for possible
future reference.
18. Provisions Relating to Service Company as Transfer Agent.
A. Service Company will make original issues of share
certificates upon written request of an officer of
the Fund and upon being furnished with a certified
copy of a resolution of the Board of Trustees
authorizing such original issue, an opinion of
counsel as outlined in Section 1.G or 9.E of this
Agreement, the certificates required by Section 10 of
this Agreement and any other documents required by
Section 1 or 9 of this Agreement.
B. Before making any original issue of certificates, the
Fund will furnish Service Company with sufficient
funds to pay any taxes required on the original issue
of the shares. The Fund will furnish Service Company
such evidence as may be required by Service Company
to show the actual value of the shares. If no taxes
are payable, Service Company will upon request be
furnished with an opinion of outside counsel to that
effect.
C. Shares will be transferred and new certificates
issued in transfer, or shares accepted for redemption
and funds remitted therefor, upon surrender of the
old certificates in form deemed by Service Company
properly endorsed for transfer or redemption
accompanied by such documents as Service Company may
deem necessary to evidence the authority of the
person making the transfer or redemption, and bearing
satisfactory evidence of the payment of any
applicable share transfer taxes. Service Company
reserves the right to refuse to transfer or redeem
shares until it is satisfied that the endorsement or
signature on the certificate or any other document is
valid and genuine, and for that purpose it may
require a guarantee of signature by such persons as
may from time to time be specified in the prospectus
related to such shares or otherwise authorized by the
Fund. Service Company 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 will incur no liability
for the refusal in good faith to make transfers or
redemptions which, in its judgment, are improper,
unauthorized, or otherwise not rightful. Service
Company may, in effecting transfers or redemptions,
rely upon Simplification Acts or other statutes which
protect it and the Fund in not requiring complete
fiduciary documentation.
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D. When mail is used for delivery of share certificates,
Service Company will forward share certificates in
"nonnegotiable" form as provided by the Fund by first
class mail, all such mail deliveries to be covered
while in transit to the addressee by insurance
arranged for by Service Company.
E. Service Company will issue and mail subscription
warrants and certificates provided by the Fund and
representing share dividends, exchanges or split-ups,
or act as Conversion Agent upon receiving written
instructions from any officer of the Fund and such
other documents as Service Company deems necessary.
F. Service Company will issue, transfer, and split-up
certificates upon receiving written instructions from
an officer of the Fund and such other documents as
Service Company may deem necessary.
G. Service Company may issue new certificates in place
of certificates represented to have been lost,
destroyed, stolen or otherwise wrongfully taken, upon
receiving indemnity satisfactory to Service Company,
and may issue new certificates in exchange for, and
upon surrender of, mutilated certificates. Any such
issuance shall be in accordance with the provisions
of law governing such matter and any procedures
adopted by the Board of Trustees of the Fund of which
Service Company has notice.
H. Service Company will supply a shareholder's list to
the Fund properly certified by an officer of Service
Company for any shareholder meeting upon receiving a
request from an officer of the Fund. It will also
supply lists at such other times as may be reasonably
requested by an officer of the Fund.
I. Upon receipt of written instructions of an officer of
the Fund, Service Company will address and mail
notices to shareholders.
J. In case of any request or demand for the inspection
of the share books of the Fund or any other books of
the Fund in the possession of Service Company,
Service Company will endeavor to notify the Fund and
to secure instructions as to permitting or refusing
such inspection. Service Company reserves the right,
however, to exhibit the share books or other books to
any person in case it is advised by its counsel that
it may be held responsible for the failure to exhibit
the share books or other books to such person.
19. Provisions Relating to Dividend Disbursing Agency.
A. Service Company will, at the expense of the Fund,
provide a special form of check containing the
imprint of any device or other matter desired by the
Fund. Said checks must, however, be of a form and
size convenient for use by Service Company.
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B. If the Fund wants to include additional printed
matter, financial statements, etc., with the dividend
checks, the same will be furnished to Service Company
within a reasonable time prior to the date of mailing
of the dividend checks, at the expense of the Fund.
C. If the Fund wants its distributions mailed in any
special form of envelopes, sufficient supply of the
same will be furnished to Service Company but the
size and form of said envelopes will be subject to
the approval of Service Company. If stamped envelopes
are used, they must be furnished by the Fund; or, if
postage stamps are to be affixed to the envelopes,
the stamps or the cash necessary for such stamps must
be furnished by the Fund.
D. Service Company will maintain one or more deposit
accounts as Agent for the Fund, into which the funds
for payment of dividends, distributions, redemptions
or other disbursements provided for hereunder will be
deposited, and against which checks will be drawn.
20. Termination of Agreement.
A. This Agreement may be terminated by either party upon
sixty (60) days prior written notice to the other
party.
B. The Fund, in addition to any other rights and
remedies, shall have the right to terminate this
Agreement forthwith upon the occurrence at any time
of any of the following events:
(1) Any interruption or cessation of operations
by Service Company or its assigns which
materially interferes with the business
operation of the Fund.
(2) The bankruptcy of Service Company or its
assigns or the appointment of a receiver for
Service Company or its assigns.
(3) Any merger, consolidation or sale of
substantially all the assets of Service
Company or its assigns.
(4) The acquisition of a controlling interest in
Service Company or its assigns, by any
broker, dealer, investment adviser or
investment company except as may presently
exist.
(5) Failure by Service Company or its assigns to
perform its duties in accordance with this
Agreement, which failure materially
adversely affects the business operations of
the Fund and which failure continues for
thirty (30) days after written notice from
the Fund.
(6) The registration of Service Company or its
assigns as a transfer agent under the
Securities Exchange Act of 1934 is revoked,
terminated or suspended for any reason.
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C. In the event of termination, the Fund will promptly
pay Service Company all amounts due to Service
Company hereunder. Upon termination of this
Agreement, Service Company shall deliver all
shareholder and account records pertaining to the
Fund either to the Fund or as directed in writing by
the Fund.
21. Assignment.
A. Neither this Agreement nor any rights or obligations
hereunder may be assigned by Service Company without
the written consent of the Fund; provided, however,
no assignment will relieve Service Company of any of
its obligations hereunder.
B. This Agreement including, without limitation, the
provisions of Section 7 will inure to the benefit of
and be binding upon the parties and their respective
successors and assigns.
C. Service Company is authorized by the Fund to use the
system services of DST Systems, Inc. and the system
and other services, including data entry, of
Administrative Management Group, Inc.
22. Confidentiality.
A. Except as provided in the last sentence of Section
18.J hereof, or as otherwise required by law, Service
Company will keep confidential all records of and
information in its possession relating to the Fund or
its shareholders or shareholder accounts and will not
disclose the same to any person except at the request
or with the consent of the Fund.
B. Except as otherwise required by law, the Fund will
keep confidential all financial statements and other
financial records (other than statements and records
relating solely to the Fund's business dealings with
Service Company) and all manuals, systems and other
technical information and data, not publicly
disclosed, relating to Service Company's operations
and programs furnished to it by Service Company
pursuant to this Agreement and will not disclose the
same to any person except at the request or with the
consent of Service Company. Notwithstanding anything
to the contrary in this Section 22.B, if an attempt
is made pursuant to subpoena or other legal process
to require the Fund to disclose or produce any of the
aforementioned manuals, systems or other technical
information and data, the Fund shall give Service
Company prompt notice thereof prior to disclosure or
production so that Service Company may, at its
expense, resist such attempt.
23. Survival of Representations and Warranties. All
representations and warranties by either party herein
contained will survive the execution and delivery of this
Agreement.
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24. Miscellaneous.
A. This Agreement is executed and delivered in the State
of Illinois and shall be governed by the laws of said
state (except as to Section 24.G hereof which shall
be governed by the laws of The Commonwealth of
Massachusetts).
B. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement
properly authorized and executed by both parties
hereto.
C. The captions in this Agreement are included for
convenience of reference only, and in no way define
or limit any of the provisions hereof or otherwise
affect their construction or effect.
D. This Agreement shall become effective as of the date
hereof.
E. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed
an original but all of which together shall
constitute one and the same instrument.
F. If any part, term or provision of this Agreement is
held by the courts to be illegal, in conflict with
any law or otherwise invalid, the remaining portion
or portions shall be considered severable and not be
affected, and the rights and obligations of the
parties shall be construed and enforced as if the
Agreement did not contain the particular part, term
or provision held to be illegal or invalid.
G. All parties hereto are expressly put on notice of the
Fund's Agreement and Declaration of Trust which is on
file with the Secretary of The Commonwealth of
Massachusetts, and the limitation of shareholder and
trustee liability contained therein. This Agreement
has been executed by and on behalf of the Fund by its
representatives as such representatives and not
individually, and the obligations of the Fund
hereunder are not binding upon any of the Trustees,
officers or shareholders of the Fund individually but
are binding upon only the assets and property of the
Fund. With respect to any claim by Service Company
for recovery of that portion of the compensation and
expenses (or any other liability of the Fund arising
hereunder) allocated to a particular series, whether
in accordance with the express terms hereof or
otherwise, Service Company shall have recourse solely
against the assets of that series to satisfy such
claim and shall have no recourse against the assets
of any other series for such purpose.
H. This Agreement, together with the Fee Schedule, is
the entire contract between the parties relating to
the subject matter hereof and supersedes all prior
agreements between the parties.
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officer as of the day and year first set forth
above.
XXXXXX FLOATING RATE FUND,
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
By: Xxxxxx X. Xxxxxxxx
Title: Vice President
XXXXXX SERVICE COMPANY,
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
By: Xxxxxxx X. Xxxxxx
Title: President
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EXHIBIT A
FEE SCHEDULE
Xxxxxx Service Company as transfer agent and dividend-paying agent receives the
following:
o an asset-based fee of 0.05%
o annual account fees of $14.00 ($23.00 for retirement accounts) per open
account
o new account fee of $5.00
o annual fees associated with early withdrawal charge of $2.00 per open
account
16
EXHIBIT B
INSURANCE COVERAGE
DESCRIPTION OF POLICY:
BROKERS BLANKET BOND, STANDARD FORM 14
Covering losses caused by dishonesty of employees, physical loss of securities
on or outside of premises while in possession of authorized person, loss caused
by forgery or alteration of checks or similar instruments.
ERRORS AND OMISSIONS INSURANCE
Covering replacement of destroyed records and computer errors and omissions.
SPECIAL FORGERY BOND
Covering losses through forgery or alteration of checks or drafts of customers
processed by insured but drawn on or against them.
MAIL INSURANCE (APPLIES TO ALL FULL SERVICE OPERATIONS) Provides indemnity for
the following types of securities lost in the mails:
o Non-negotiable securities mailed to domestic locations via registered
mail.
o Non-negotiable securities mailed to domestic locations via first-class
or certified mail.
o Non-negotiable securities mailed to foreign locations via registered
mail.
o Negotiable securities mailed to all locations via registered mail.
