111086-3
TRANSFER AGENCY AND SERVICE AGREEMENT
between
▇▇▇▇ ▇▇▇▇▇ TOTAL RETURN TRUST, INC.
and
STATE STREET BANK AND TRUST COMPANY
SA1 5/86
TABLE OF CONTENTS
Page
----
Article 1 Terms of Appointment; Duties of the Bank....................2
Article 2 Fees and Expenses...........................................5
Article 3 Representations and Warranties of the Bank..................6
Article 4 Representations and Warranties of the Fund..................7
Article 5 Indemnification.............................................7
Article 6 Covenants of the Fund and the Bank.........................ll
Article 7 Termination of Agreement...................................13
Article 8 Assignment.................................................14
Article 9 Amendment...............................;..................14
Article 10 Massachusetts Law to Apply.................................15
Article 11 Merger of Agreement........................................15
Article 12 Miscellaneous..............................................15
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 19th day of August 1985, by and between ▇▇▇▇
▇▇▇▇▇ TOTAL RETURN TRUST, INC., a Maryland corporation, having its principal
office and place of business at ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company having its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Bank").
WHEREAS, the Fund 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 Fund is authorized to issue Shares of common stock $.001
par value ("Shares");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto 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 Fund hereby employs and appoints the Bank to act as, and the Bank
agrees to act as its transfer agent for the Fund's authorized and issued Shares;
its dividend disbursing agent and agent in connection with any accumulation,
open-account or similar plans provided to the Shareholders of the Fund
("Shareholders") and set out in the currently effective Prospectuses and
Statement of Additional Information of the Fund, 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 accordance with the Fund's then current Prospectus and
Statement of Additional Information and procedures established from time to time
by agreement between the Fund 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 Fund (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
directly or indirectly by the redeeming
Shareholder(s) through its agent ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, Incorporated ("▇▇▇▇ ▇▇▇▇▇");
(v) Effect transfers of Shares by the Shareholders
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Fund;
(vii) Maintain records of account for and advise the
Fund and its Shareholders as to the foregoing; and
(viii) Record the issuance of shares of the Fund and
maintain pursuant to Rule 17Ad-10(e) under the
Securities Exchange Act of 1934 a record of the
total number of Shares which are authorized,
based upon data provided to it by the Fund, and
issued and outstanding. Bank shall also provide
the Fund on a regular basis with 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 Fund.
(b) In addition to and not in lieu of the services set forth
in the above paragraph (a), the Bank shall: (i) perform all of the customary
services of a transfer agent, dividend disbursing agent and, as relevant, agent
in connection with the activities described in Section 1.01, including but not
limited to: maintaining on its records all Shareholder accounts, preparing
Shareholder record date lists for special meetings and for mailings to
Shareholders; arranging for printing of proxy materials; addressing and mailing
proxy material; receiving and tabulating voted proxies, and doing all other
things necessary in connection with proxy solicitation, addressing and mailing
Shareholder reports, prospectuses and other materials to existing Shareholders;
withholding taxes on dividends as required by the federal and state tax laws
including those for non-resident aliens; preparing, filing
2
and mailing to Shareholders U.S. Treasury Department Forms 1099 and other
appropriate forms required by federal authorities with respect to dividends and
distributions; preparing and mailing purchase and sale confirmation forms and
statements of account to Shareholders for all purchases and redemptions of
Shares and other confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders; maintaining computerized
compliance programs for non-resident alien requirements; providing Shareholder
lists and account information to the Fund; perparing and filing on a timely
basis with the Internal Revenue Service and state tax and revenue agencies all
forms; and paying to the appropriate federal and state authorities any taxes
required by applicable federal and state tax laws to withheld on dividends and
distributions paid by the Fund; (ii) provide a system which will enable the Fund
to monitor the total number of Shares sold in each State. The Fund 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
the Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
Procedures applicable to certain of these services described
in paragraphs (a) and (b) may be established from time to time by agreement
between the Fund and the Bank and shall be subject to the review and approval of
the Fund. The failure of the Fund to establish such procedures with respect to
any service shall not in any way diminish the duty and obligations of the Bank
to perform such service hereunder.
Article 2 Fees and Expenses
2.01 For the duties and obligations to be performed by the
Bank pursuant to this Agreement, the Fund agrees 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 2.02 below may be changed from time to time subject to
mutual written agreement between the Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the
Fund agrees to promptly reimburse the Bank for reasonable 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 which are not properly borne by the Bank
as part of its duties and obligations under this Agreement will be promptly
reimbursed by the Fund. 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 materials.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in
good standing under the laws of The Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in The
Commonwealth Massachusetts.
3.03 It is empowered under applicable laws and by its charter
and by-laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement in accordance with procedures established from time to time by
mutual agreement between the Fund and the Bank.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Bank that;
4.01 It is a corporation duly organized and existing and
in good standing under the laws of Maryland.
4.02 It is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.04 It is an open-end management investment company
registered under the Investment Company Act of 1940.
4.05 A Registration Statement containing a Prospectus and
Statement of Additional Information under the Securities Act of 1933 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 being offered for sale.
Article 5 Indemnification
4
5.01 The Bank shall not be responsible for, and the Fund 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 of the Bank or its agent or subcontractors
required to be taken pursuant to this Agreement, provided such actions are taken
in good faith and without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of
the Agreement, or the Fund's lack of good faith, negligence or willful
misconduct or which arise out of the breach of any representation or warranty of
the Fund hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors on 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.
(d) The reliance on, or the carrying out by the Bank or its
agents or subcontractors of any instructions or requests of the Fund. "Written
Instructions" means written instructions delivered by mail, tested
telegram-cable, telex or facsimile sending device and received by the Bank, or
its agent or subcontractors, signed by authorized persons.
(e) The offer or sale of Shares 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.
5.02 The Fund shall not be responsible for, and the Bank shall
indemnify and hold the Fund harmless from and against any and all losses,
damages, and any and all reasonable cost, charges, counsel fees, payments,
expenses and liability arising out of or attributable the Bank's failure to
comply with the terms of this Agreement or any action or failure or omission to
act by the Bank as a result of the Bank's lack of good faith, negligence or
willful misconduct of the Bank or any of its agents or subcontractors referred
to in Article 8.03 (i) and (ii) or which arise out of the breach of any
representation or warranty of the Bank hereunder.
5.03 At any time the Bank may apply to any authorized officer
of the Fund for instructions, and may consult with experienced securities
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 and
subcontractors shall not be liable and shall be indemnified by the Fund for any
action taken or omitted by it in good faith in reliance upon such instructions
or upon the opinion of such counsel that such actions or omissions comply with
the terms of this Agreement or with all applicable laws. 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 by the
Bank 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. The Bank, its agents and subcontractors shall also
be protected and indemnified in recognizing stock certificates which are
reasonably believed 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.
5.04 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other party resulting from such failure to perform or otherwise
from such causes. In addition, the Bank shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provision for emergency use of electronic data processing equipment to the
extent appropriate equipment is available, and the Bank shall further use
reasonable care to minimize the likelihood of such damage, loss of data, delays
and/or errors and should such damage, loss of data, delays and/or errors occur,
the Bank shall use its best efforts to mitigate the effects of such occurrence.
5.05 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.
5.06 In order that the indemnification provisions contained in
this Article 5 shall apply, upon the assertion of a claim or the institution of
any agency action or investigation for which either party may be required to
indemnify the other, the party seeking indemnification shall promptly notify the
other party of such assertion, and shall keep the other party advised with
respect to all developments concerning such claim. The party who may be required
to indemnify shall have the option to participate with the party seeking
indemnification in the defense of the same. The party seeking indemnification
shall in no case confess any claim or make any compromise in any case in which
the other party may be required to indemnify it except with the other party's
prior written consent.
Article 6 Covenants of the Fund and the Bank
6.01 The Fund shall promptly furnish to the Bank the
following:
(a) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of the Bank and the execution
and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
6.02 The Bank represents and warrants that to the best of its
knowledge, the various procedures and system which the Bank has implemented with
regard to safeguarding form loss or damage the stock certificates, check forms
and facsimile signature imprinting devices, and other property used in the
performance of its obligations hereunder are adequate and will enable the Bank
to perform satisfactorily its obligations hereunder and that the Bank will make
such changes therein
6
from time to time as in its judgment are required for the secure performance of
its obligations hereunder.
6.03 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 Investment Company Act of 1940, as amended,
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 property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered to promptly to the Fund on and in accordance with its request.
6.04 The Bank and the Fund 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.
6.05 In case of any requests or demands for the inspection of
the Shareholder records of the Fund, the Bank will endeavor to notify the Fund
and to secure instructions from an authorized officer of the Fund as to such
inspection. 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 7 Termination of Agreement
7.01 This Agreement may be terminated by either party upon
sixty (60) days written notice to the other. Any such termination shall not
effect the rights and obligations of the parties under Article 5 hereof.
7.02 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Fund. Additionally, the Bank reserves the right to charge for
any other reasonable expenses associated with such termination. In the event
that the Fund designates a successor to any of the Bank's obligations hereunder,
the Bank shall, at the expense and direction of the Fund, transfer to such
successor a certified list of the Shareholders of the Fund, a complete record of
the account of each Shareholder, and all other relevant books, records and other
data established or maintained by the Bank hereunder.
Article 8 Assignment
8.01 Except as provided in Section 8.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by the Bank
without the written consent of the Fund.
8.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
8.03 The Bank may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered as
a transfer agent pursuant to Section 17A(c)(l) of the Securities Exchange Act of
1934 ("Section 17A(c)(l)"), (ii) a BFDS subsidiary duly registered as a transfer
agent pursuant to Section 17A(c)(l), or (iii) ▇▇▇▇ ▇▇▇▇▇, for the performance of
of certain duties in connection with the Bank's performance; provided, however
that the Bank shall be as fully responsible to the Fund for the acts and
omissions of any subcontractor referred to in (i) and (ii) above as it is for
its own acts and omissions.
Article 9 Amendment
9.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Directors of the Fund.
9.02 In the event the Fund issues additional series of capital
stock in addition to the Shares with respect to which it desires to have the
Bank render services as transfer agent, dividend disbursing agent and 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 additional series of Shares
shall become a Fund hereunder.
Article 10 Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 11 Merger of Agreement
11.01 This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with respect to the
subject matter hereof whether oral or written.
Article 12 Miscellaneous
12.01 The Fund authorizes the Bank to provide ▇▇▇▇ ▇▇▇▇▇ any
information it provides or makes available to the Fund in connection with this
Agreement.
8
12.02 The Bank agrees to treat all records and other
information relative to the Fund and its prior, present or potential
Shareholders confidentially and the Bank on behalf of itself and its employees
agrees to keep confidential all such information, except after prior
notification to and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Bank may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Fund.
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 year first above
written.
▇▇▇▇ ▇▇▇▇▇ TOTAL RETURN TRUST, INC.
BY: /s/ ▇.▇. ▇▇▇▇▇▇
_______________________________
ATTEST:
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
STATE STREET BANK AND TRUST COMPANY
BY: /s/ ▇. ▇. ▇▇▇▇▇▇, ▇▇.
_______________________________
Vice President
ATTEST:
BY:
_______________________________
