TRANSFER AGENCY AND SERVICE AGREEMENT
between
XXXX XXXXX INVESTMENT TRUST, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
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Page
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1. Terms of Appointment and Duties...................................1
2. Third Party Administrators for Defined Contribution Plans.........4
3. Fees and Expenses.................................................5
4. Representations and Warranties of the Transfer Agent..............5
5. Representations and Warranties of the Fund........................6
6. Wire Transfer Operating Guidelines................................6
7. Data Access and Proprietary Information...........................8
8. Indemnification...................................................9
9. Standard of Care.................................................10
10. Year 2000........................................................10
11. Confidentiality..................................................11
12. Covenants of the Fund and the Transfer Agent.....................11
13. Termination of Agreement.........................................12
14. Assignment and Third Party Beneficiaries.........................12
15. Subcontractors...................................................13
16. Miscellaneous....................................................13
17. Additional Funds.................................................15
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 1st day of January, 2000, by and between XXXX XXXXX
INVESTMENT TRUST, INC., a Maryland corporation, having its principal office and
place of business at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Fund"),
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 "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, the Fund intends to initially offer shares in one (1) series, such
series shall be named in the attached Schedule A which may be amended by the
parties from time to time (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with SECTION 17, being herein referred to as a "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, custodian of certain
retirement plans and agent in connection with certain other activities, and the
Transfer Agent desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. Terms of Appointment and Duties
-------------------------------
1.1 TRANSFER AGENCY SERVICES. Subject to the terms and conditions
set forth in this Agreement, the Fund, on behalf of the
Portfolios, hereby employs and appoints the Transfer Agent to
act as, and the Transfer Agent agrees to act as its transfer
agent for the Fund's authorized and issued shares of its common
stock, $ par value, ("Shares"), dividend disbursing agent,
custodian of certain retirement plans and agent in connection
with any accumulation, open-account or similar plan provided to
the shareholders of each of the respective Portfolios of the
Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information
("prospectus") of the Fund on behalf of the applicable
Portfolio, including without limitation any periodic investment
plan or periodic withdrawal program. In accordance with
procedures established from time to time by agreement between
the Fund on behalf of each of the Portfolios, as applicable and
the Transfer Agent, the Transfer Agent agrees that it will
perform the following services:
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(a) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation
thereof to the Custodian of the Fund authorized pursuant to the
Articles of Incorporation of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to
the Custodian;
(d) In respect to the transactions in items (a), (b) and (c)
above, the Transfer Agent shall execute transactions directly
with broker-dealers authorized by the Fund;
(e) 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;
(f) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the applicable
Portfolio;
(h) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt by
the Transfer Agent of indemnification satisfactory to the
Transfer Agent and protecting the Transfer Agent and the Fund,
and the Transfer Agent at its option, may issue replacement
certificates in place of mutilated stock certificates upon
presentation thereof and without such indemnity;
(i) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(j) 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 authorized, based upon data
provided to it by the Fund, and issued and outstanding. The
Transfer Agent 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.
1.2 ADDITIONAL SERVICES. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph,
the Transfer Agent shall perform the following services:
(a) OTHER CUSTOMARY SERVICES. Perform the customary services of
a transfer agent, dividend disbursing agent, custodian of
certain retirement plans and, as relevant, agent in connection
with accumulation, open-account or similar plan (including
without limitation any periodic investment plan or periodic
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withdrawal program), including but not limited to: maintaining
all Shareholder accounts, preparing Shareholder meeting lists,
mailing Shareholder proxies, Shareholder reports and
prospectuses to current Shareholders, withholding taxes on U.S.
resident and non-resident alien accounts, 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.
(b) CONTROL BOOK (ALSO KNOWN AS "SUPER SHEET"). Maintain a daily
record and produce a daily report for the Fund of all
transactions and receipts and disbursements of money and
securities and deliver a copy of such report for the Fund for
each business day to the Fund no later than 9:00 AM Eastern
Time, or such earlier time as the Fund may reasonably require,
on the next business day.
(c) "BLUE SKY" REPORTING. The Fund shall (i) identify to the
Transfer Agent 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 Transfer
Agent 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 providing a
system which will enable the Fund to monitor the total number of
Shares sold in each State.
(d) NATIONAL SECURITIES CLEARING CORPORATION (THE "NSCC"). (i)
accept and effectuate the registration and maintenance of
accounts through Networking and the purchase, redemption,
transfer and exchange of shares in such accounts through
Fund/SERV (networking and Fund/SERV being programs operated by
the NSCC on behalf of NSCC's participants, including the Fund),
in accordance with, instructions transmitted to and received by
the Transfer Agent by transmission from NSCC on behalf of
broker-dealers and banks which have been established by, or in
accordance with the instructions of authorized persons, as
hereinafter defined on the dealer file maintained by the
Transfer Agent; (ii) issue instructions to Fund's banks for the
settlement of transactions between the Fund and NSCC (acting on
behalf of its broker-dealer and bank participants); (iii)
provide account and transaction information from the affected
Fund's records on DST Systems, Inc. computer system TA2000
("TA2000 System") in accordance with NSCC's Networking and
Fund/SERV rules for those broker-dealers; and (iv) maintain
Shareholder accounts on TA2000 System through Networking.
(e) NEW PROCEDURES. New procedures as to who shall provide
certain of these services in Section 1 may be established in
writing from time to time by agreement between the Fund and the
Transfer Agent. The Transfer Agent may at times perform only a
portion of these services and the Fund or its agent may perform
these services on the Fund's behalf.
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2. Third Party Administrators for Defined Contribution Plans
---------------------------------------------------------
2.1 The Fund may decide to make available to certain of its
customers, a qualified plan program (the "Program") pursuant to
which the customers ("Employers") may adopt certain plans of
deferred compensation ("Plan or Plans") for the benefit of the
individual Plan participant (the "Plan Participant"), such
Plan(s) being qualified under Section 401(a) of the Internal
Revenue Code of 1986, as amended ("Code") and administered by
third party administrators which may be plan administrators as
defined in the Employee Retirement Income Security Act of 1974,
as amended)(the "TPA(s)").
2.2 In accordance with the procedures established in the initial
Schedule 2.1 entitled "Third Party Administrator Procedures", as
may be amended by the Transfer Agent and the Fund from time to
time ("Schedule 2.1"), the Transfer Agent shall:
(a) Treat Shareholder accounts established by the Plans in the
name of the Trustees, Plans or TPAs as the case may be as
omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of
the TPA or its designee as the Trustee for the benefit of the
Plan; and
(c) Perform all services under SECTION 1 as transfer agent of
the Funds and not as a record-keeper for the Plans.
2.3 Transactions identified under SECTION 2 of this Agreement shall
be deemed exception services ("Exception Services") when such
transactions:
(a) Require the Transfer Agent to use methods and procedures
other than those usually employed by the Transfer Agent to
perform services under SECTION 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent
after the commencement of the nightly processing cycle of the
TA2000 System; or
(c) Require more manual intervention by the Transfer Agent,
either in the entry of data or in the modification or amendment
of reports generated by the TA2000 System than is usually
required by non-retirement plan and pre-nightly transactions.
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3. Fees and Expenses
-----------------
3.1 FEE SCHEDULE. For the performance by the Transfer Agent pursuant
to this Agreement, the Fund agrees to pay the Transfer Agent an
annual maintenance fee for each Shareholder account as set forth
in the attached fee schedule ("Schedule 3.1"). Such fees and
out-of-pocket expenses and advances identified under SECTION 3.2
below may be changed from time to time subject to mutual written
agreement between the Fund and the Transfer Agent.
3.2 OUT-OF-POCKET EXPENSES. In addition to the fee paid under
SECTION 3.1 above, the Fund agrees to reimburse the Transfer
Agent for out-of-pocket expenses, including but not limited to
confirmation production, postage, forms, telephone, microfilm,
microfiche, mailing and tabulating proxies, records storage, or
advances incurred by the Transfer Agent for the items set out in
Schedule 3.1 attached hereto. In addition, any other expenses
incurred by the Transfer Agent at the request or with the
consent of the Fund, will be reimbursed by the Fund.
3.3 POSTAGE. Postage for mailing of dividends, proxies, Fund reports
and other mailings to all shareholder accounts shall be advanced
to the Transfer Agent by the Fund at least seven (7) days prior
to the mailing date of such materials.
3.4 INVOICES. The Fund agrees to pay all fees and reimbursable
expenses within thirty (30) days following the receipt of the
respective billing notice, except for any fees or expenses which
are subject to good faith dispute. In the event of such a
dispute, the Fund may only withhold that portion of the fee or
expense subject to the good faith dispute. The Fund shall notify
the Transfer Agent in writing within twenty-one (21) calendar
days following the receipt of each billing notice if the Fund is
disputing any amounts in good faith. If the Fund does not
provide such notice of dispute within the required time, the
billing notice will be deemed accepted by the Fund.
4. Representations and Warranties of the Transfer Agent
----------------------------------------------------
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The
Commonwealth of Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
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5. Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Transfer Agent that:
5.1 It is a corporation duly organized and existing and in good
standing under the laws of the State of Maryland.
5.2 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement.
5.3 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.
5.4 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
5.5 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.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
----------------------------------------------------------------
Commercial Code
---------------
6.1 The Transfer Agent is authorized to promptly debit the
appropriate Fund account(s) upon the receipt of a payment order
in compliance with the selected security procedure (the
"Security Procedure") chosen for funds transfer and in the
amount of money that the Transfer Agent has been instructed to
transfer. The Transfer Agent shall execute payment orders in
compliance with the Security Procedure and with the Fund
instructions on the execution date provided that such payment
order is received by the customary deadline for processing such
a request, unless the payment order specifies a later time. All
payment orders and communications received after this the
customary deadline will be deemed to have been received the next
business day.
6.2 The Fund acknowledges that the Security Procedure it has
designated on the Fund Selection Form was selected by the Fund
from security procedures offered by the Transfer Agent. The Fund
shall restrict access to confidential information relating to
the Security Procedure to authorized persons as communicated to
the Transfer Agent in writing. The Fund must notify the Transfer
Agent immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any
change in the Fund's authorized personnel. The Transfer Agent
shall verify the authenticity of all Fund instructions according
to the Security Procedure.
6.3 The Transfer Agent shall process all payment orders on the basis
of the account number contained in the payment order. In the
event of a discrepancy between any name indicated on the payment
order and the account number, the account number shall take
precedence and govern.
6.4 The Transfer Agent reserves the right to decline to process or
delay the processing of a payment order which (a) is in excess
of the collected balance in the account to be charged at the
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time of the Transfer Agent's receipt of such payment order; (b)
if initiating such payment order would cause the Transfer Agent,
in the Transfer Agent's sole judgement, to exceed any volume,
aggregate dollar, network, time, credit or similar limits which
are applicable to the Transfer Agent; or (c) if the Transfer
Agent, in good faith, is unable to satisfy itself that the
transaction has been properly authorized.
6.5 The Transfer Agent shall use reasonable efforts to act on all
authorized requests to cancel or amend payment orders received
in compliance with the Security Procedure provided that such
requests are received in a timely manner affording the Transfer
Agent reasonable opportunity to act. However, the Transfer Agent
assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6.6 The Transfer Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Transfer
Agent complies with the payment order instructions as received
and the Transfer Agent complies with the Security Procedure. The
Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of
errors in payment orders.
6.7 The Transfer Agent shall assume no responsibility for lost
interest with respect to the refundable amount of any
unauthorized payment order, unless the Transfer Agent is
notified of the unauthorized payment order within thirty (30)
days of notification by the Transfer Agent of the acceptance of
such payment order. In no event (including failure to execute a
payment order) shall the Transfer Agent be liable for special,
indirect or consequential damages, even if advised of the
possibility of such damages.
6.8 When the Fund initiates or receives Automated Clearing House
credit and debit entries pursuant to these guidelines and the
rules of the National Automated Clearing House Association and
the New England Clearing House Association, the Transfer Agent
will act as an Originating Depository Financial Institution
and/or receiving depository Financial Institution, as the case
may be, with respect to such entries. Credits given by the
Transfer Agent with respect to an ACH credit entry are
provisional until the Transfer Agent receives final settlement
for such entry from the Federal Reserve Bank. If the Transfer
Agent does not receive such final settlement, the Fund agrees
that the Transfer Agent shall receive a refund of the amount
credited to the Fund in connection with such entry, and the
party making payment to the Fund via such entry shall not be
deemed to have paid the amount of the entry.
6.9 Confirmation of Transfer Agent's execution of payment orders
shall ordinarily be provided within twenty four (24) hours
notice of which may be delivered through the Transfer Agent's
proprietary information systems, or by facsimile or call-back.
Fund must report any objections to the execution of an order
within thirty (30) days.
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7. Data Access and Proprietary Information
---------------------------------------
7.1 The Fund acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques,
and documentation manuals furnished to the Fund by the Transfer
Agent as part of the Fund's ability to access certain
Fund-related data ("Customer Data") maintained by the Transfer
Agent on databases under the control and ownership of the
Transfer Agent or other third party ("Data Access Services")
constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of
substantial value to the Transfer Agent or other third party. In
no event shall Proprietary Information be deemed Customer Data.
The Fund agrees to treat all Proprietary Information as
proprietary to the Transfer Agent and further agrees that it
shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without
limiting the foregoing, the Fund agrees for itself and its
employees and agents to:
(a) Use such programs and databases (i) solely on the Fund's
computers, or (ii) solely from equipment at the location agreed
to between the Fund and the Transfer Agent and (iii) solely in
accordance with the Transfer Agent's applicable user
documentation;
(b) Refrain from copying or duplicating in any way (other than
in the normal course or performing processing on the Fund's
computer(s)), the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of
the Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose
of such information in accordance with the Transfer Agent's
instructions;
(d) Refrain from causing or allowing information transmitted
from the Transfer Agent's computer to the Fund's terminal to be
retransmitted to any other computer terminal or other device
except as expressly permitted by the Transfer Agent (such
permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer
Agent; and
(f) Honor all reasonable written requests made by the Transfer
Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law,
under federal copyright law and under other federal or state
law.
7.2 Proprietary Information shall not include all or any portion of
any of the foregoing items that: (i) are or become publicly
available without breach of this Agreement; (ii) are released
for general disclosure by a written release by the Transfer
Agent; or (iii) are already in the possession of the receiving
party at the time or receipt without obligation of
confidentiality or breach of this Agreement.
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7.3 The Fund acknowledges that its obligation to protect the
Transfer Agent's Proprietary Information is essential to the
business interest of the Transfer Agent and that the disclosure
of such Proprietary Information in breach of this Agreement
would cause the Transfer Agent immediate, substantial and
irreparable harm, the value of which would be extremely
difficult to determine. Accordingly, the parties agree that, in
addition to any other remedies that may be available in law,
equity, or otherwise for the disclosure or use of the
Proprietary Information in breach of this Agreement, the
Transfer Agent shall be entitled to seek and obtain a temporary
restraining order, injunctive relief, or other equitable relief
against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data
Access Services do not operate in material compliance with the
most recently issued user documentation for such services, the
Transfer Agent shall endeavor in a timely manner to correct such
failure. Organizations from which the Transfer Agent may obtain
certain data included in the Data Access Services are solely
responsible for the contents of such data and the Fund agrees to
make no claim against the Transfer Agent arising out of the
contents of such third-party data, including, but not limited
to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER
PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION
THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE
TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE
EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order
to: (i) effect the transfer or movement of cash or Shares; or
(ii) transmit Shareholder information or other information, then
in such event the Transfer Agent shall be entitled to rely on
the validity and authenticity of such instruction without
undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established by
the Transfer Agent from time to time.
7.6 Each party shall take reasonable efforts to advise its employees
of their obligations pursuant to this SECTION 7. The obligations
of this Section shall survive any earlier termination of this
Agreement.
8. Indemnification
---------------
8.1 The Transfer Agent shall not be responsible for, and the Fund
shall indemnify and hold the Transfer Agent 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 Transfer Agent or its agents 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 Fund's lack of good faith, negligence or willful
misconduct;
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(c) The reliance upon, and any subsequent use of or action taken
or omitted, by the Transfer Agent, or its agents or
subcontractors on: (i) any information, records, documents,
data, stock certificates or services, which are received by the
Transfer Agent or its agents or subcontractors by machine
readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Fund, and
which have been prepared, maintained or performed by the Fund or
any other person or firm on behalf of the Fund including but not
limited to any previous transfer agent or registrar; (ii) any
instructions or requests of the Fund or any of its officers;
(iii) any instructions or opinions of legal counsel with respect
to any matter arising in connection with the services to be
performed by the Transfer Agent under this Agreement which are
provided to the Transfer Agent after consultation with such
legal counsel; or (iv) any paper or document, reasonably
believed to be genuine, authentic, or signed by the proper
person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other
determination or ruling by any federal or any state agency with
respect to the offer or sale of such Shares;
(e) The negotiation and processing of any checks including
without limitation for deposit into the Fund's demand deposit
account maintained by the Transfer Agent; or
(f) Upon the Fund's request entering into any agreements
required by the National Securities Clearing Corporation (the
"NSCC") for the transmission of Fund or Shareholder data through
the NSCC clearing systems.
8.2 In order that the indemnification provisions contained in this
SECTION 8 shall apply, upon the assertion of a claim for which
the Fund may be required to indemnify the Transfer Agent, the
Transfer Agent shall promptly notify the Fund of such assertion,
and shall keep the Fund advised with respect to all developments
concerning such claim. The Fund shall have the option to
participate with the Transfer Agent in the defense of such claim
or to defend against said claim in its own name or in the name
of the Transfer Agent. The Transfer Agent shall in no case
confess any claim or make any compromise in any case in which
the Fund may be required to indemnify the Transfer Agent except
with the Fund's prior written consent.
9. Standard of Care
9.1 The Transfer Agent shall at all times act in good faith and
agrees to use its best efforts within reasonable limits to
insure the accuracy of all services performed under this
Agreement, but assumes no responsibility and shall not be liable
for loss or damage due to errors unless said errors are caused
by its negligence, bad faith, or willful misconduct or that of
its employees, except as provided in SECTION 9.2 below.
9.2 In the case of Exception Services as defined in SECTION 2.3
herein, the Transfer Agent shall be held to a standard of gross
negligence and encoding and payment processing errors shall not
deemed negligence.
10. Year 2000
---------
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The Transfer Agent will take reasonable steps to ensure that its
products (and those of its third-party suppliers) reflect the
available technology to offer products that are Year 2000 ready,
including, but not limited to, century recognition of dates,
calculations that correctly compute same century and multi
century formulas and date values, and interface values that
reflect the date issues arising between now and the next
one-hundred years, and if any changes are required, the Transfer
Agent will make the changes to its products at a price to be
agreed upon by the parties and in a commercially reasonable time
frame and will require third-party suppliers to do likewise.
11. Confidentiality
---------------
11.1 The Transfer Agent and the Fund agree that they will not, at any
time during the term of this Agreement or after its termination,
reveal, divulge, or make known to any person, firm, corporation
or other business organization, any customers' lists, trade
secrets, cost figures and projections, profit figures and
projections, or any other secret or confidential information
whatsoever, whether of the Transfer Agent or of the Fund, used
or gained by the Transfer Agent or the Fund during performance
under this Agreement. The Fund and the Transfer Agent further
covenant and agree to retain all such knowledge and information
acquired during and after the term of this Agreement respecting
such lists, trade secrets, or any secret or confidential
information whatsoever in trust for the sole benefit of the
Transfer Agent or the Fund and their successors and assigns. In
the event of breach of the foregoing by either party, the
remedies provided by SECTION 7.3 shall be available to the party
whose confidential information is disclosed. The above
prohibition of disclosure shall not apply to the extent that the
Transfer Agent must disclose such data to its sub-contractor or
Fund agent for purposes of providing services under this
Agreement.
11.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Fund, other than
request for records of Shareholders pursuant to standard
subpoenas from state or federal government authorities (i.e.,
divorce and criminal actions), the Transfer Agent will endeavor
to notify the Fund and to secure instructions from an authorized
officer of the Fund as to such inspection. The Transfer Agent
expressly reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by
counsel that it may be held liable for the failure to exhibit
the Shareholder records to such person or if required by law or
court order.
12. Covenants of the Fund and the Transfer Agent
--------------------------------------------
12.1 The Fund shall promptly furnish to the Transfer Agent the
following:
(a) A certified copy of the resolution of the Board of Directors
of the Fund authorizing the appointment of the Transfer Agent
and the execution and delivery of this Agreement; and
(b) A copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
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12.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund 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.
12.3 The Transfer Agent 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 Transfer Agent agrees that all such records
prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent 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.
13. Termination of Agreement
------------------------
13.1 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
13.2 Should the Fund exercise its right to terminate, all
out-of-pocket expenses or costs associated with the movement of
records and material will be borne by the Fund. Additionally,
the Transfer Agent reserves the right to charge for any other
reasonable expenses associated with such termination and a
charge equivalent to the average of three (3) months' fees.
Payment of such expenses or costs shall be in accordance with
SECTION 3.4 of this Agreement.
13.3 Upon termination of this Agreement, each party shall return to
the other party all copies of confidential or proprietary
materials or information received from such other party
hereunder, other than materials or information required to be
retained by such party under applicable laws or regulations.
14. Assignment and Third Party Beneficiaries
----------------------------------------
14.1 Except as provided in SECTION 15.1 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by
either party without the written consent of the other party. Any
attempt to do so in violation of this Section shall be void.
Unless specifically stated to the contrary in any written
consent to an assignment, no assignment will release or
discharge the assignor from any duty or responsibility under
this Agreement.
14.2 Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or
benefits in this Agreement to anyone other than the Transfer
Agent and the Fund, and the duties and responsibilities
undertaken pursuant to this Agreement shall be for the sole and
exclusive benefit of the Transfer Agent and the Fund. This
Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
14.3 This Agreement does not constitute an agreement for a
partnership or joint venture between the Transfer Agent and the
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Fund. Other than as provided in SECTION 15.1 neither party shall
make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
15. Subcontractors
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15.1 The Transfer Agent 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)(2) of the Securities Exchange Act of 1934, as
amended, (ii) a BFDS subsidiary duly registered as a transfer
agent or (iii) a BFDS affiliate duly registered as a transfer
agent; provided, however, that the Transfer Agent shall be fully
responsible to the Fund for the acts and omissions of BFDS or
its subsidiary or affiliate as it is for its own acts and
omissions.
15.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the
actions or omissions to act of unaffiliated third parties such
as by way of example and not limitation, Airborne Services,
Federal Express, United Parcel Service, the U.S. Mails, the NSCC
and telecommunication companies, provided, if the Transfer Agent
selected such company, the Transfer Agent shall have exercised
due care in selecting the same.
16. Miscellaneous
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16.1 AMENDMENT. 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.
16.2 MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance
with the laws of The Commonwealth of Massachusetts.
16.3 FORCE MAJEURE. 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.
16.4. CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be
liable to the other party for consequential damages under any
provision of this Agreement or for any consequential damages
arising out of any act or failure to act hereunder.
16.5 SURVIVAL. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or
protections of proprietary rights and trade secrets shall
survive the termination of this Agreement.
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16.6 SEVERABILITY. If any provision or provisions of this Agreement
shall be held invalid, unlawful, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired.
16.7 PRIORITIES CLAUSE. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this
Agreement and any Schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
16.8 WAIVER. No waiver by either party or any breach or default of
any of the covenants or conditions herein contained and
performed by the other party shall be construed as a waiver of
any succeeding breach of the same or of any other covenant or
condition.
16.9 MERGER OF AGREEMENT. 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.
16.10 COUNTERPARTS. This Agreement may be executed by the parties
hereto on any number of counterparts, and all of said
counterparts taken together shall be deemed to constitute one
and the same instrument.
16.11 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each
agree that any such reproduction shall be admissible in evidence
as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile
or further reproduction shall likewise be admissible in
evidence.
16.12 NOTICES. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class
mail, postage prepaid, addressed as follows or to such other
address or addresses of which the respective party shall have
notified the other.
(a) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
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(b) If to the Fund, to:
Xxxx Xxxxx Investment Trust, Inc.
Attention: Xxxxx X. Xxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
17. Additional Funds
----------------
In the event that the Fund establishes one or more series of
Shares in addition to the attached Schedule A with respect to
which it desires to have the Transfer Agent render services as
transfer agent under the terms hereof, it shall so notify the
Transfer Agent in writing, and if the Transfer Agent agrees in
writing to provide such services, such series of Shares shall
become a Portfolio hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXX XXXXX INVESTMENT TRUST, INC.
BY:
--------------------------------
ATTEST:
---------------------------
STATE STREET BANK AND TRUST
COMPANY
BY:
--------------------------------
ATTEST:
---------------------------
SCHEDULE A
Xxxx Xxxxx Opportunity Trust
XXXX XXXXX INVESTMENT TRUST, STATE STREET BANK AND TRUST
INC. COMPANY
BY:_________________________________ BY:_________________________________
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated: November 10, 1998
1. On each Business Day, the TPA(s) shall receive, on behalf of and as
agent of the Fund(s), Instructions (as hereinafter defined) from the
Plan. Instructions shall mean as to each Fund (i) orders by the Plan for
the purchases of Shares, and (ii) requests by the Plan for the
redemption of Shares; in each case based on the Plan's receipt of
purchase orders and redemption requests by Participants in proper form
by the time required by the term of the Plan, but not later than the
time of day at which the net asset value of a Fund is calculated, as
described from time to time in that Fund's prospectus. Each Business Day
on which the TPA receives Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such
Instructions, to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Transfer Agent of the net amount of such
purchases or redemptions, as the case may be, for each of the Plans. In
the case of net purchases by any Plan, the TPA(s) shall instruct the
Trustees of such Plan to transmit the aggregate purchase price for
Shares by wire transfer to the Transfer Agent on (TD+1). In the case of
net redemptions by any Plan, the TPA(s) shall instruct the Fund's
custodian to transmit the aggregate redemption proceeds for Shares by
wire transfer to the Trustees of such Plan on (TD+1). The times at which
such notification and transmission shall occur on (TD+1) shall be as
mutually agreed upon by each Fund, the TPA(s), and the Transfer Agent.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and
price for all transactions, and Share balances. The TPA(s) shall
maintain on behalf of each of the Plans a single master account with the
Transfer Agent and such account shall be in the name of that Plan, the
TPA(s), or the nominee of either thereof as the record owner of Shares
owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of
Shares and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan
as of the statement closing date, purchases and redemptions of Shares by
the Plan during the period covered by the statement, and the dividends
and other distributions paid to the Plan on Shares during the statement
period (whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to
the Plans prospectuses, proxy materials, reports, and other information
provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to
each Fund or any agent designated by it such periodic reports covering
Shares of each Plan as each Fund shall reasonably conclude are necessary
to enable the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders
and redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses,
proxy materials, periodic reports and other materials relating to each
Fund be furnished to Participants in which event the Transfer Agent or
each Fund shall mail or cause to be mailed such materials to
Participants. With respect to any such mailing, the TPA(s) shall, at the
request of the Transfer Agent or each Fund, provide at the TPA(s)'s
expense complete and accurate set of mailing labels with the name and
address of each Participant having an interest through the Plans in
Shares.
XXXX XXXXX INVESTMENT TRUST, STATE STREET BANK AND TRUST
INC. COMPANY
BY:__________________________________ BY:_____________________________
SCHEDULE 3.1
FEES
Dated: January 1, 2000
GENERAL - Fees are based on an annual per shareholder account charge for account
maintenance plus out-of-pocket expenses. There is a minimum charge of $1,000 per
month per fund. Annual maintenance charges are given below.
ANNUAL MAINTENANCE CHARGES - 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.
BASIC ANNUAL PER ACCOUNT FEE
Equity Funds $6.00
Income Funds $8.00
Money Market Funds $14.15
Closed Account Fee (per account, per month) $0.10
Backup Fee (per account serviced, per year) $0.25
OUT-OF-POCKET EXPENSES - Out-of-pocket expenses include but are not limited to:
postage, forms, telephone, microfilm, microfiche, photocopying and expenses
incurred at the specific direction of the fund. Postage for mass mailings is due
seven days in advance of the mailing date.
Fund Minimum - The Navigator Series of Funds are assessed a fund minimum based
on the following schedule:
0 - 4 months Waived
5 - 8 months $500 per cusip, per month
9 - 12 months $750 per cusip, per month
After the first year $1,000 per cusip, per month
PAYMENT - The above fees will be charged against the Fund's custodian checking
account five (5) days after the invoice is mailed to the fund's offices.
ALL FEES WILL BE SUBJECT TO AN ANNUAL COST OF LIVING ADJUSTMENT BASED ON
REGIONAL CONSUMER PRICE INDEX.
XXXX XXXXX INVESTMENT TRUST, STATE STREET BANK AND TRUST
INC. COMPANY
BY:_________________________________ BY:_____________________________
