EXHIBIT (9)(A)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
XXXXXX-XXXXXX MUTUAL FUND
AND
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
---
Article 1 Terms of Appointment; Duties of the Bank .................... 1
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 Trust and the Bank ......................... 11
Article 7 Termination of Agreement .................................... 12
Article 8 Assignment .................................................. 12
Article 9 Amendment ................................................... 13
Article 10 Massachusetts Law to Apply .................................. 13
Article 11 Entire Agreement ............................................ 13
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of June, 1987, by and between XXXXXX-
XXXXXX MUTUAL FUND, a Massachusetts business trust (the "Trust"), having its
principal office and place of business at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Trust, on behalf of its Original Series (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;
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
Trust 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 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
Fund ("Shareholders") and set out in the currently effective prospectus and
statement of additional information ("Prospectus") 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 procedures established from time to time by agreement
between the Trust 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 Authorized 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 by
the redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions; upon receipt of proper
request for transfer and surrender to it of Share certificates in
proper form for transfer, the Bank is authorized to transfer
Shares on the records of the Trust maintained by it from time to
time and upon cancellation of surrendered certificates to credit a
like amount of Shares to the transferee and to countersign, issue
and deliver new certificates, if requested;
(vi) Prepare and transmit payments for dividends and distributions
declared by the Trust;
(vii) Maintain records of account for and advise the Trust and its
Shareholders as to the foregoing;
(viii) Record the issuance of Shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares of the
Fund which are issued and outstanding. Bank shall also provide the
Trust on a regular basis with the total number of Shares which are
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 state blue sky laws relating
to the issue or sale of such Shares, which functions shall be the
sole responsibility of the Trust; and
(ix) If a Shareholder of uncertified Shares requests the issuance of a
Share certificate or the registration of a pledge of such Shares,
the Bank, as Transfer Agent, shall countersign and mail by first
class mail a Share certificate to the Shareholder at his address
as set forth on the transfer books of the Trust, subject to any
other instructions for delivery of certificates which the Trust
may give to the Bank with respect to certificates representing
newly purchased Shares, and subject to the limitation that no
certificates representing newly purchased Shares shall be mailed
until the cash purchase price of the Shares has been deposited in
the bank account of the Fund maintained by the Custodian.
(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 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
non-resident alien accounts, withholding income dividends, capital gains
distributions and redemption proceeds as required by federal withholding
regulations, 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, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information and (ii) provide a system which will
enable the Trust to monitor the total number of Shares sold in each state. The
Trust shall (i) identify to the Bank in writing those Fund 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 blue sky state registration status of the
Trust and the Fund is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Trust or the Fund, as
appropriate, and the reporting of such transactions to the Trust as provided
above.
Procedures applicable to certain of these services may be established from
time to time by agreement between the Trust and the Bank.
Article 2 Fees and Expenses
2.01 For performance by the Bank pursuant to this Agreement, the Trust
agrees on behalf of each of the Fund, 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 Trust and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Trust agrees,
on behalf of the Fund, 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 Trust, will be reimbursed by the Trust on behalf of the
Fund.
2.03 The Trust agrees, on behalf of the Fund, to pay all fees and
reimbursable expenses within five 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
Trust on behalf of 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 Trust that:
3.01 It is a trust company 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 of
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.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Bank that:
4.01 It is a 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 Agreement and
Declaration of Trust, as amended (the "Declaration of Trust") and By-Laws to
enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an open-end, diversified management investment company registered
under the Investment Company Act of 1940.
4.05 A registration statement 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
of the Fund being offered for sale.
4.06 The beneficial interest in the Fund is divided into an unlimited number
of Shares of beneficial interest, without a par value.
Article 5 Indemnification
5.01 The Bank shall not be responsible for, and the Trust on behalf of 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 that such actions are taken in good
faith and without negligence or willful misconduct.
(b) The Trust's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trust's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Trust hereunder.
(c) The 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.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests of the Fund.
(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 Bank shall indemnify and hold the Trust harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to 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.
5.03 At any time the Bank may apply to any officer of the Trust 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 subcontractors shall not be liable and
shall be indemnified by the Fund for any action taken or omitted by it without
negligence and in good faith in reliance upon such instructions or upon the
opinion of such counsel. 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 Trust, 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 Trust, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Trust. 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 for any damages resulting from such failure to perform or otherwise from
such causes. The Bank shall use its best efforts to minimize the likelihood of
such damage resulting from the events described in the immediately preceding
sentence and if such damage occurs, the Bank shall use its best efforts to
mitigate the effects of such events.
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. 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 Convenants of the Trust and the Bank
6.01 The Trust shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Trustees of the Trust
authorizing the appointment of the Bank and the execution and delivery of this
Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto.
6.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the trust for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
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 promptly to the Fund on and in accordance with its request.
6.04 The Bank and the Trust 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 Trust relating to the Fund, the Bank will endeavor to
notify the Trust and to secure instructions from an authorized officer of the
Trust 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 one hundred
twenty (120) days written notice to the other.
7.02 Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Trust on behalf of the Fund. Additionally, the Bank reserves the right to
charge for any other reasonable expenses associated with such termination.
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 either party without the
written consent of the other party.
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 Trust,
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)(1) of the Securities Exchange Act of
1934 ("Section 17A(c)(1)"), (ii) a BFDS subsidiary duly registered as a transfer
agent pursuant to Section 17A(c)(1); provided, however, that the Bank shall be
as fully responsible to the Trust for the acts and omissions of any
subcontractor 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.
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 Entire 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.
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.
XXXXXX-XXXXXX MUTUAL FUND
By: /s/ [Illegible]
----------------------------------
President
ATTEST:
/s/ [Illigible]
----------------------------------
Assistant Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ X.X. Xxxxx
------------------------------
Vice President
ATTEST:
/s/ [Illegible]
----------------------------------
Assistant Secretary
A copy of the Agreement and Declaration of Trust establishing Xxxxxx-Xxxxxx
Mutual Fund is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this Agreement is executed with respect to the
Fund on behalf of the Fund by officers of the Trust as officers and not
individually and that the obligations of or arising out of this Agreement are
not binding upon any of the trustees, officers and shareholders individually but
are binding only upon the assets and property belonging to the Fund.
STATE STREET BANK AND TRUST COMPANY
FEE SCHEDULE FOR SERVICES AS
PLAN, TRANSFER AND DIVIDEND DISBURSING AGENT
XXXXXX-XXXXXX MUTUAL FUND
------------------------------------------------------------------------------
Annual Maintenance ......................................... $4.80 per account
The annual maintenance charge includes the processing of all transactions
and correspondence. The fee is billable on a monthly basis at the rate of
1/12 of the annual fee. A charge is made for an account in the month that
an account opens or closes.
Out-of-Pocket Expenses
Out-of-Pocket Expenses include but are not limited to: postage, forms,
telephone, microfilm, microfiche and expenses incurred at the specific
direction of the Fund.
A charge is made for forgery coverage of the deductible amount of State
Street Bankers Blanket Bond.
Postage for mass mailings is due seven days in advance of the mailing date.
Monthly Minimum Fee Schedule
No minimum will be assessed since this is part of the NEL Fund complex.
Other Services (as requested)
Appraisal Service -- $.25/month/group statement
-- Assume Xxxxxx maintains cross index file
ARMS -- $.06/master mailing record/month -- Assumes Xxxxxx data enters
mailing list
XXXXXX-XXXXXX MUTUAL FUND STATE STREET BANK & TRUST COMPANY
/s/ [Illegible] /s/ X. Xxxxxx, Xx.
---------------------------------- --------------------------------------
Treasurer Vice-President
Date [Illegible]
