TRANSFER AGENCY AND ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 1st day of February, 1991, by and between The
Baupost Fund, a Massachusetts business trust having its principal office and
place of business at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Fund"), and The Baupost Group, Inc. ("Baupost"), a Massachusetts corporation
having its principal office and place of business at 00 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Fund desires to appoint Baupost as its transfer agent and
dividend disbursing agent, and Baupost desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE 1. TERMS OF APPOINTMENT; DUTIES OF BAUPOST
1.01. Subject to the terms and conditions set forth in this Agreement,
the Fund hereby employs and appoints Baupost to act as, and Baupost agrees to
act as, transfer agent for the Fund's authorized and issued shares of beneficial
interest without par value (the "Shares") and dividend disbursing agent for the
shareholders of the Fund (the "Shareholders").
1.02. Baupost agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and Baupost, Baupost shall
(i) receive for acceptance and processing, orders for the
purchase of Shares, and, when applicable, payment
therefor, and promptly deliver payment and
appropriate documentation therefor to the custodian
of the Fund authorized pursuant to the Fund's
governing documents (the "Custodian");
(ii) pursuant to purchase orders or other appropriate
instructions, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder
account;
(iii) receive for acceptance and processing, redemption
requests and redemption directions, and deliver the
appropriate documentation therefor to the Custodian;
(iv) pay over or cause to be paid over at the appropriate
time and in the appropriate manner monies with
respect to any redemption request as instructed by
redeeming Shareholders;
(v) effect transfers of Shares by the registered owners
thereof upon receipt of appropriate documentation;
(vi) prepare and transmit payments for dividends and
distributions declared by the Fund; and
(vii) maintain records of account for and advise the Fund
and its Shareholders as to the foregoing.
(b) In addition to and not in lieu of the services set forth in
paragraph (a) above, Baupost shall perform all of the customary services of a
transfer agent and dividend disbursing agent, including but not limited to (i)
maintaining all Shareholder accounts, (ii) preparing Shareholder meeting lists,
(iii) mailing proxies, (iv) receiving and tabulating proxies, (v) mailing
Shareholder reports and prospectuses and, if requested, statements of additional
information, (vi) withholding taxes on U.S. residents and non-resident alien
accounts where applicable, (vii) 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 registered Shareholders, (viii)
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, (ix) preparing and mailing activity
statements for Shareholders, (x) providing Shareholder account information, and
(xi) calculating the Fund's total net asset value, total net income, and net
asset value per share. The Fund shall provide Baupost with any information
required in connection with the furnishing of the foregoing services.
(c) Procedures applicable to the services provided under this Agreement
may be established from time to time by agreement between the Fund and Baupost.
(d) In performing its duties hereunder, in addition to the provisions
set forth herein, Baupost shall comply with the terms of the Agreement and
Declaration of Trust, the bylaws and the current Prospectus and Statement of
Additional Information of the Fund, and with the terms of votes adopted from
time to time by the Trustees and shareholders of the Fund, relating to the
subject matters of this Agreement, all as the same may be amended from time to
time. Baupost shall also comply with the provisions of all applicable laws and
regulations and with the requirements of any governmental authority having
jurisdiction over Baupost or the Fund with respect to the duties of Baupost
hereunder.
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ARTICLE 2. FEES
For performance by Baupost pursuant to this Agreement, the Fund agrees
to pay Baupost a quarterly fee at the annual rate of .25% of the Fund's "average
net assets". For the purposes of calculating the foregoing fee, "average net
assets" will be determined by taking an average of the determinations of such
net asset value during each quarter at the close of business on the last
business day of each month during such quarter.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF BAUPOST
Baupost 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 all
jurisdictions where such qualification is required.
3.03. It is empowered under applicable laws and by its charter and
bylaws 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.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to Baupost that:
4.01. It is an unincorporated business trust duly organized and
existing and in good standing under the laws of The Commonwealth of
Massachusetts.
4.02. It is empowered under applicable laws and by its governing
documents to enter into and perform this Agreement.
4.03. All proceedings required by said governing documents have been
taken to authorize it to enter into and perform this Agreement.
4.04. It is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
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4.05. A registration statement under the Securities Act of 1933, as
amended, 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 Fund being offered for sale; information to the contrary
will result in immediate notification to Baupost.
ARTICLE 5. INDEMNIFICATION
5.01. Baupost shall not be responsible for, and the Fund shall
indemnify and hold Baupost 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 Baupost required to be taken pursuant to this
Agreement, provided that 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 this
Agreement, or the Fund's lack of good faith, negligence or willful misconduct,
or the breach of any representation or warranty of the Fund hereunder;
(c) the reliance on or use by Baupost of information, records or
documents which (i) are 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
(other than Baupost or an affiliate of Baupost) on behalf of the Fund;
(d) the reliance on, or the carrying out by Baupost of, any
instructions or requests of the Fund's representatives; or
(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 require that 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. Baupost 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 attributable to Baupost's refusal or
failure to comply with the terms of this Agreement, or Baupost's lack of good
faith, negligence or willful misconduct, or the breach of any representation or
warranty of Baupost hereunder.
5.03. At any time Baupost may apply to any officer of the Fund
designated by the President of the Fund in a written notice to Baupost for
instructions, and may consult with the Fund's legal counsel with respect to any
matter arising in connection with the services to be performed by Baupost under
this Agreement, and Baupost shall not be liable and shall be indemnified by the
Fund for any action taken or omitted by it in reliance upon such
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instructions or upon the opinion of such counsel. Baupost shall be protected and
indemnified in acting upon any papers or documents 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 instructions, information, data, reports
or documents provided Baupost by the Fund or its agents (other than Baupost or
an affiliate of Baupost) by telephone, in person, or by any other means
authorized by the Fund, and Baupost shall not be held to have notice of any
change of authority of any person until receipt of written notice thereof from
the Fund.
5.04. In the event either party is unable to perform its obligations
under 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 to the other for any damages
resulting from such failure to perform or otherwise from such causes.
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 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 such claim, and, to the extent
it wishes, assume the defense thereof. 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 BAUPOST
6.01. The Fund shall promptly furnish to Baupost the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of Baupost and the execution and delivery of
this Agreement.
(b) A copy of the Agreement and Declaration of Trust and bylaws of the
Fund and all amendments thereto.
6.02. Baupost shall keep records relating to the services to be
performed hereunder in such form and manner as it may deem advisable. To the
extent required by Section 31 of the 1940 Act, and the rules and regulations
promulgated thereunder, Baupost agrees that all such records prepared or
maintained by Baupost relating to the services to be performed by Baupost
hereunder are the property of the Fund and will be preserved and made available
in accordance
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with such section, rules and regulations, and will be surrendered promptly to
the Fund at its request. Baupost hereby agrees that it will not use or employ,
or permit any other person or entity within its control to use or employ, any
such books, records, information or data for any purpose not authorized by the
Board of Trustees of the Fund. Baupost acknowledges that its services under this
Agreement (including, without limitation, the mailing of any shareholder
communications) are subject to the direction of the Fund and agrees that it will
accept direction only from the President of the Fund, or from other persons
designated in writing by the President of the Fund or authorized by action of
the Board of Trustees.
6.03. Baupost 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.
6.04. In case of any requests or demands for the inspection of the
Shareholder records of the Fund, Baupost will endeavor to notify the Fund and to
secure instructions from an authorized officer of the Fund as to such
inspection. Baupost 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, unless
the Fund indemnifies Baupost to its reasonable satisfaction against such
liability. Baupost will make all reasonable efforts to consult with an
authorized officer of the Fund and obtain such indemnification prior to any such
disclosure.
ARTICLE 7. TERMINATION OF AGREEMENT
7.01. This Agreement shall become effective on the date hereof. Unless
terminated as herein provided, this Agreement shall remain in full force and
effect indefinitely.
7.02. This Agreement may be terminated at any time without the payment
of any penalty by vote of the Trustees of the Fund or by vote of a majority of
the outstanding voting securities (as defined in the 0000 Xxx) of the Fund or by
Baupost, on sixty days' written notice to the other party.
ARTICLE 8. AMENDMENT
8.01. This Agreement may be amended or modified by a written agreement
executed by both parties.
ARTICLE 9. MASSACHUSETTS LAW TO APPLY
9.01. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
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ARTICLE 10. MERGER OF AGREEMENT
10.01. 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.
ARTICLE 11. LIMITATION OF LIABILITY
11.01. A copy of the Agreement and Declaration of Trust of the Fund is
on file with the Secretary of State of The Commonwealth of Massachusetts and
notice is hereby given that this Agreement is executed on behalf of the Trustees
of the Fund as Trustees and not individually and that the obligations of this
Agreement are not binding upon the Trustees or holders of Shares individually
but are binding only upon the assets or property of 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.
THE BAUPOST FUND THE BAUPOST GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxxxxx
________________________ _______________________
Its: President Its: President
Attest: Attest:
/s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
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