TRANSFER AGENCY, DIVIDEND DISBURSING AGENCY
AND SHAREHOLDER SERVICING AGENCY AGREEMENT
THIS AGREEMENT made as of the 31st day of August, 1992 by and between
XXXXXXX XXXXX CONSULTS INTERNATIONAL PORTFOLIO (the "Fund"), and Financial Data
Services, Inc. ("FDS"), a New Jersey Corporation.
WITNESSETH:
WHEREAS, the Fund wishes to appoint FDS to be the Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund upon, and subject
to, the terms and provisions of this Agreement, and FDS is desirous of accepting
such appointment upon, and subject to, such terms and provisions:
NOW, THEREFORE, in consideration of mutual covenants contained in this
Agreement, the Fund and FDS agree as follows:
1. Appointment of FDS as Transfer Agent, Dividend Disbursing Agent and
shareholder Servicing Agent.
(a) The Fund hereby appoints FDS to act as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund upon, and subject
to, the terms and provisions of this Agreement.
(b) FDS hereby accepts the appointment as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund, and agrees to act
as such upon, and subject to, the terms and provisions of the Agreement.
2. Definitions.
(a) In this Agreement:
(I) The term "Act" means the Investment Company Act of 1940 as amended from
time to time and any rule or regulation thereunder;
(II) The term "Account" means any account of a Shareholders, or, if the
shares are held in an account in the name MLPF&S benefit of an identified
customer, such account, including a Plan Account, any account under a plan (by
whatever name referred to in the Prospectus) pursuant to the Self-Employed
Individuals Retirement Act of 1962 ("Xxxxx Act Plan") and any plan (by whatever
name referred to in the Prospectus) in conjunction with Section 401 of the
Internal Revenue Code ("Corporation Master Plan");
(III) The term "application" means an application made by a shareholder or
prospective shareholder respecting the opening of an Account;
(IV) The term "MLFD" means Xxxxxxx Xxxxx Funds Distributor, Inc., a
Delaware corporation;
(V) The term "MLPF&S" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation;
(VI) The term "Officer's Instruction" means an instruction in writing given
on behalf of the Fund to FDS, and signed on behalf of the Fund by the President,
any Vice President, the Secretary or the Treasurer of the Fund;
(VII) The term "Prospectus" means the Prospectus and the State of
Additional Information of the Fund as from time to time in effect;
(VIII) The term "Shares" means shares of stock of the Fund, irrespective of
class or series;
(IX) The term "Shareholder" means the holder of record of Shares;
(X) The term "Plan Account" means an account opened by a Shareholder or
prospective Shareholder in respect to an open account, monthly payment or
withdrawal plan (in each case by whatever name referred to in the Prospectus),
and may also include an account relating to any other Plan if and when provision
is made for such plan in the Prospectus.
3. Duties of FDS as Transfer Agent, Dividend Disbursing Agent and
Shareholder servicing Agent.
(a) Subject to the succeeding provisions of the Agreement, FDS hereby
agrees to perform the following functions as Transfer Agent, Dividend Disbursing
Agent and Shareholder Servicing Agent for the Fund;
(I) Issuing, transferring and redeeming Shares;
(II) opening, maintaining, servicing and closing, Accounts;
(III) Acting as agent for the Fund Shareholders and/or customers of MLPF&S
in connection with Plan Accounts, upon the terms and subject to the conditions
contained in the Prospectus and application relating to the specific Plan
Account;
(IV) Acting as agent of the Fund and/or MLPF&S, maintaining such records as
may permit the imposition of such contingent deferred sales charges as may be
described in the Prospectus, including such reports as may be reasonably
requested by the Fund with respect to such Shares as may be subject to a
contingent deferred sales charge;
(V) Upon the redemption of Shares subject to such a contingent deferred
sales charge, calculating and deducting from the redemption proceeds thereof the
amount of such charge in the manner set forth in the Prospectus. FDS shall pay,
on behalf of MLFD, to MLPF&S such deducted contingent deferred sales charges
imposed upon all Shares maintained in the name of MLPF&S, or maintained in the
name of an account identified as a customer account of MLPF&S. Sales charges
imposed upon any other Shares shall be paid by FDS to MLFD.
(VI) Exchanging the investment of an investor into, or from the shares of
other open-end investment companies or other series portfolios of the Fund, if
any, if and to the extent permitted by the Prospectus at the direction of such
investor.
(VII) Processing redemptions;
(VIII) Examining and approving legal transfers;
(IX) Replacing lost, stolen or destroyed certificates representing Shares,
in accordance with, and subject to, procedures and conditions adopted by the
Fund;
(X) Furnishing such confirmations of transactions relating to their Shares
as required by applicable law;
(XI) Acting as agent for the Fund and/or MLPF&S, furnishing such
appropriate periodic statements relating to Accounts, together with additional
enclosures, including appropriate income tax information and income tax forms
duly completed, as required by applicable law;
(XII) Acting as agent for the Fund and/or MLPF&S, mailing annual,
semi-annual and quarterly reports prepared by or on behalf of the Fund, and
mailing new Prospectuses upon their issue to Shareholders as required by
applicable law;
(XIII) Furnishing ouch periodic statements of transactions effected by FDS,
reconciliations, balances and summaries as the Fund may reasonably request;
(XIV) Maintaining such books and records relating to transactions effected
by FDS as are required by the Act, or by any other applicable provision of law,
rule or regulation, to be maintained by the Fund or its transfer agent with
respect to such transactions, and preserving, or causing to be preserved any
such books and records for such periods as may be required by any such law, rule
or regulation and as may be agreed upon from time to time between FDS and the
Fund. In addition, FDS agrees to maintain and preserve master files and
historical computer tapes on a daily basis in multiple separate locations a
sufficient distance apart to insure preservation of at least one copy of such
information;
(XV) Withholding taxes on non-resident alien Accounts, preparing and filing
U.S. Treasury Department Form 1099 and other appropriate forms as required by
applicable. law with respect to dividends and distributions; and
(XVI) Reinvesting dividends for full and fractional shares and disbursing
cash dividends, as applicable.
(b) FDS agrees to act as proxy agent in connection with the holding of
annual, if any, and special meetings of Shareholders, ?nailing such notices,
proxies and proxy statements in connection with the holding of such meetings as
may be required by applicable law, receiving and tabulating votes cast by proxy
and communicating to the Fund the results of such tabulation accompanied by
appropriate certificates, and preparing and furnishing to the Fund certified
lists of Shareholders as of such date, in such form and containing such
information as may be required by the Fund.
(c) FDS agrees to deal with, and answer in a timely manner, all
correspondence and inquires relating to the functions of FDS under this
Agreement with respect to Accounts.
(d) FDS agrees to furnish to the Fund such information and at such
intervals as is necessary for the Fund to comply with the registration and/or
the reporting requirements (including applicable escheat laws) of the Securities
and Exchange commission, Blue Sky authorities or other governmental authorities.
(e) FDS agrees to provide to the Fund such information as may reasonably be
required to enable the Fund to reconcile the number of outstanding Shares
between FDS's records and the account books of the Fund.
(f) Notwithstanding anything in the foregoing provisions of this paragraph,
FDS agrees to perform its functions thereunder subject to such modification
(whether in respect of particular cases or in any particular class of cases) as
may from time to time be contained in an Officer's Instruction.
4. Compensation.
The charges for services described in this Agreement, including
"out-of-pocket" expenses, will be set forth in the Schedule of Fees attached
hereto.
5. Right of Inspection.
FDS agrees that it will in a timely manner make available to, and permit,
any officer, accountant, attorney or authorized agent of the Fund to examine and
make transcripts and copies (including photocopies and computer or other
electronical information storage media and print-outs) of any and all of its
books and records which relate to any transaction or function performed by FDS
under or pursuant to this Agreement.
6. Confidential Relationship.
FDS agrees that it will, on behalf of itself and its officers and
employees, treat all transactions contemplated by this Agreement, and all
information germane thereto, as confidential and not to be disclosed to any
person (other than the Shareholder concerned, or the Fund, or as may
be-disclosed in the examination of any books or records by any person lawfully
entitled to examine the same) except as may be authorized by the Fund by way of
an Officer's Instruction.
7. Indemnification.
The Fund shall indemnify and hold FDS harmless from any loss, costs, damage
and reasonable expenses, including reasonable attorney's fees (provided that
such attorney is appointed with the Fund's consent, which consent shall not be
unreasonably withheld), incurred by it resulting from any claim, demand, action,
or suit in connection with the performance of its duties hereunder, provided
that this indemnification shall not apply to actions or omissions of FOS in
cases of willful misconduct, failure to act in good faith or negligence by FDS,
it's officers, employees or agents, and further provided, that prior to
confessing any claim against it which may be subject to this indemnification,
FDS shall give the Fund reasonable opportunity to defend against said claim in
its own name or-in the name of FDS. An action taken by FDS upon any officer's
Instruction reasonably believed by it to have been properly executed shall not
constitute willful misconduct, failure to act in good faith or negligence under
this Agreement.
8. Regarding FDS.
(a) FDS hereby agrees to hire, purchase, develop and maintain such
dedicated personnel, facilities, equipment, software, resources and capabilities
as may be reasonably determined by the Fund to be necessary for the satisfactory
performance of the duties and responsibilities of FDS. FDS warrants and
represents that its officers and supervisory personnel charged with carrying out
its functions as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent for the Fund possess the special skill and technical knowledge
appropriate for that purpose. FDS shall at all times exercise due care and
diligence in the performance of it functions as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund. FDS agrees that,
in determining whether it has exercised due care and diligence, its conduct
shall be measured by the standard applicable to persons possessing such special
skill and technical knowledge.
(b) FDS warrants and represents that it is duly authorized and permitted to
act as Transfer Agent, Dividend Disbursing Agent, and Shareholder Servicing
Agent under all applicable laws and that it will immediately notify the Fund of
any revocation of such authority or permission or of the commencement of any
proceeding or other action which may lead to such revocation.
9. Termination.
(a) This Agreement shall become effective as of the date first above
written and shall thereafter continue from year to year. This Agreement may be
terminated by the Fund or FDS (without penalty to the Fund or FDS) provided that
the terminating party givew the other party written notice of such termination
at least sixty (60) days in advance, except that the Fund may terminate this
Agreement immediately upon written notice to FDS if the authority or permission
of FDS to act as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent has been revoked or if any proceeding or other action which the
Fund reasonably believes will lead to such revocation has been commenced.
(b) Upon termination of this Agreement, FDS shall deliver all unissued and
cancelled share certificates representing Shares remaining in its possession,
and all Shareholder records, books, ledgers, instruments and other documents
(including computerized or other electronically stored information) made or
accumulated in the performance of its duties as Transfer Agent, Disbursing Agent
and Shareholder Servicing Agent for the Fund along with a certified locator
document clearly indicating the complete contents therein, to such successor as
may be specified in a notice of termination or Officer's Instruction; and the
Fund assumes all responsibility for failure thereafter to produce any paper,
record or documents so delivered and identified in the locator document, if and
when required to be produced.
10. Amendment.
Except to the extent that the performance by FDS or its functions under
this Agreement may from time to time be modified by an officer's Instruction,
this Agreement may be amended or modified only by further written Agreement
between the parties.
11. Governing Law.
This Agreement shall be governed by the laws of the State of New Jersey.
12. Personal Liability.
The Declaration of Trust establishing the Fund dated June 26, 1992, a copy
of which, together with all amendments thereto (the "Declaration"), is on file
in the office of the Secretary of the Commonwealth of Massachusetts, provides
that the name "Xxxxxxx Xxxxx Consults International Portfolio" refers to the
Trustees under the Declaration collectively as trustees, but not as individuals
or personally, and no Trustee, shareholder, officer, employee or agent of the
Fund shall be held to any personal liability, nor shall resort be had to their
private property for satisfaction of any obligation or claim or otherwise in
connection with the affairs of the Fund, but the "Trust Property" only shall be
liable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective duly authorized officers and their respective
corporate seals hereunto duly affixed and attested, as of the day and year above
written.
XXXXXXX XXXXX CONSULTS
INTERNATIONAL PORTFOLIO
By /s/
FINANCIAL DATA SERVICES, INC.
By /s/
