Form of
TRANSFER AGENCY AND SERVICE AGREEMENT
THIS AGREEMENT made as of the 7th day of February, 1997, by and
between INVESTORS FIDUCIARY TRUST COMPANY, a trust company chartered
under the laws of the State of Missouri, having its trust office located
at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("IFTC"); and each
registered investment company listed on Exhibit A hereto, as it may be
amended from time to time, each having its principal office and place of
business at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (each a "Fund" and
collectively the "Funds".)
WHEREAS, each Fund desires to appoint IFTC as its transfer agent,
dividend disbursing agent, custodian of certain retirement plans and
agent in connection with certain other activities, and IFTC 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; Duties of IFTC
1.1 Subject to the terms and conditions set forth in this Agreement,
the Fund hereby employs and appoints IFTC to act as, and IFTC
agrees to act as its transfer agent for the Fund's authorized and
issued shares of its common stock ("Shares"), dividend disbursing
agent, custodian of certain retirement plans 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, periodic
withdrawal program, or dividend reinvestment plan, if any.
1.2 IFTC agrees that it will perform the following services:
(a) In accordance with procedures established from time to time
by agreement between the Fund and IFTC, IFTC shall:
(i) 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");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate
Shareholder account;
(iii) In respect to the transactions in items (i) and (ii)
transactions directly with broker-dealers authorized by
the Fund;
(iv) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(v) Prepare and transmit payments for dividends and
distributions declared by the Fund;
(vi) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by IFTC of indemnification satisfactory to IFTC
and protecting IFTC and the Fund, and IFTC at its option,
may issue replacement certificates in place of mutilated
stock certificates upon presentation thereof and without
such indemnity;
(vii) Maintain records of account for and advise the Fund
and its Shareholders as to the foregoing; and
(viii) Record the issuance of shares of the Fund and
maintain pursuant to 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. IFTC shall also provide the Fund on a regular
basis with the total number of shares which are authorized
and issued and outstanding and shall have no obligation,
when recording the issuance of shares, to monitor the
issuance of such shares or to take cognizance of any laws
relating to the issue or sale of such shares, which
functions shall be the sole responsibility of the Fund.
(b) In addition to and neither in lieu nor in contravention of
the services set forth in the above paragraph (a), IFTC shall:
(i) 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 plans (including without limitation any periodic
investment plan, periodic withdrawal program, or dividend
reinvestment plan, if any), including but not limited to:
maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, mailing 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 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 Fund to monitor
the total number of Shares sold in each State.
(c) In addition, the Fund shall (i) identify to IFTC 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 IFTC for the Fund's blue sky State registration
status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and the
reporting of such transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these services
in Section 1 may be established from time to time by agreement
between the Fund and IFTC per the attached service responsibility
schedule. IFTC 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.
(e) IFTC shall provide additional services on behalf of the Fund
(i.e., escheatment services) which may be agreed upon in writing
between the Fund and IFTC.
2. Fees and Expenses
2.1 For the performance by IFTC pursuant to this Agreement, the Fund
agrees to pay IFTC 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 2.2 below may be changed from time to time subject
to mutual written agreement between the Fund and IFTC.
2.2 In addition to the fee paid under Section 2.1 above, the Fund
agrees to reimburse IFTC for out-of-pocket expenses, including
but not limited to confirmation production, postage, forms,
telephone, microfilm, microfiche, tabulating proxies, records
storage, or advances incurred by IFTC for the items set out in
the fee schedule attached hereto. In addition, any other expenses
incurred by IFTC at the request or with the consent of the Fund,
will be reimbursed by the Fund.
2.3 The Fund agrees to pay all fees and reimbursable expenses within
five days following the receipt of the respective billing notice.
Postage for mailing of dividends, proxies, Fund reports and other
mailings to all shareholder accounts shall be advanced to IFTC by
the Fund at least seven (7) days prior to the mailing date of
such materials.
3. Representations and Warranties of IFTC. IFTC represents and
warrants to the Fund that it is a trust company duly organized
and existing and in good standing under the laws of the State of
Missouri; that it is duly qualified to carry on its business in
the State of Missouri; that it is empowered under applicable laws
and by its Charter and By-Laws to enter into and perform this
Agreement; that all requisite corporate proceedings have been
taken to authorize it to enter into and perform this Agreement;
and that it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
4. Representations and Warranties of the Fund. The Fund represents
and warrants to IFTC that it is a corporation duly organized and
existing and in good standing under the laws of the state of its
incorporation; that it is empowered under applicable laws and by
its Articles of Incorporation and By-Laws to enter into and
perform this Agreement; that 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; that it is
a closed-end diversified management investment company registered
under the Investment Company Act of 1940, as amended; and that 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.
5. Data Access and Proprietary Information
5.1 The Fund acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques,
and documentation manuals furnished to the Fund by IFTC as part
of the Fund's ability to access certain Fund-related data
("Customer Data") maintained by IFTC on data bases under the
control and ownership of IFTC or other third party ("Data Access
Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information")
of substantial value to IFTC 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
IFTC 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:
(a) to access Customer Data solely from locations as may be
designated in writing by IFTC and solely in accordance with
IFTC's applicable user documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to 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 IFTC's
instructions;
(d) to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other computer facility
or other location, except with the prior written consent of IFTC;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by IFTC to
protect at IFTC's expense the rights of IFTC in Proprietary
Information at common law, under federal copyright law and under
other federal or state law.
Each party shall take reasonable efforts to advise its employees
of their obligations pursuant to this Section 5. The obligations
of this Section shall survive any earlier termination of this
Agreement.
5.2 If the Fund notifies IFTC that any of the Data Access Services do
not operate in material compliance with the most recently issued
user documentation for such services, IFTC shall endeavor in a
timely manner to correct such failure. Organizations from which
IFTC 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 IFTC 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. IFTC 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.
5.3 If the transactions available to the Fund include the ability to
originate electronic instructions to IFTC 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
IFTC 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 IFTC from time to time.
6. Indemnification
6.1 IFTC shall not be responsible for, and the Fund shall indemnify
and hold IFTC 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 IFTC 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 Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or
warranty of the Fund hereunder.
(c) The reliance on or use by IFTC or its agents or
subcontractors of information, records, documents or services
which (i) are received by IFTC or its agents or subcontractors,
and (ii) 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.
(d) The reliance on, or the carrying out by IFTC or its agents or
subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of federal or state
securities laws or regulations 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.
(f) The negotiations and processing of checks made payable to
prospective or existing Shareholders tendered to IFTC for the
purchase of Shares, such checks are commonly known as "third
party checks."
6.2 At any time IFTC may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to
any matter arising in connection with the services to be
performed by IFTC under this Agreement, and IFTC and its agents
or subcontractors shall not be liable and shall be indemnified by
the Fund for any action taken or omitted by it in reliance upon
such instructions or upon the opinion of such counsel. IFTC, its
agents and subcontractors shall be protected and indemnified in
acting upon any paper or document, 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 IFTC or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by
the Fund, and shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof
from the Fund. IFTC, 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 former
registrar, or of a co-transfer agent or co-registrar.
6.3 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which
the Fund may be required to indemnify IFTC, IFTC 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 IFTC in the
defense of such claim or to defend against said claim in its own
name or in the name of IFTC. IFTC shall in no case confess any
claim or make any compromise in any case in which the Fund may be
required to indemnify IFTC except with the Fund's prior written
consent.
7. Standard of Care. IFTC 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.
8. Covenants of the Fund and IFTC
8.1 The Fund shall promptly furnish to IFTC the following:
(a) A certified copy of the resolution of the Board of Directors
of the Fund authorizing the appointment of IFTC and the execution
and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
8.2 IFTC 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.
8.3 IFTC 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, IFTC agrees that
all such records prepared or maintained by IFTC relating to the
services to be performed by IFTC 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.
8.4 IFTC 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.
8.5 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, IFTC will endeavor to notify the
Fund and to secure instructions from an authorized officer of the
Fund as to such inspection. IFTC 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.
9. Termination of Agreement
9.1 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
9.2 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be borne by the Fund. Additionally, IFTC
reserves the right to charge for any other reasonable expenses
associated with such termination and/or a charge equivalent to
the average of three (3) months' fees.
10. Assignment
10.1 Except as provided in Section 10.3 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
10.2 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and
assigns.
10.3 IFTC may, without further consent on the part of the Fund, (a)
open and maintain in its parent corporation, State Street Bank &
Trust Company ("State Street") or in other financial institutions
selected by IFTC, one or more non-interest bearing deposit
accounts as agent for Fund, into which the moneys received for
the account of Fund and moneys for payment of dividends,
distributions or other disbursements provided for hereunder will
be deposited, and against which checks and drafts will be drawn;
and (b) subcontract for the performance hereof with (i) State
Street, (ii) Boston Financial Data Services, Inc., a
Massachusetts corporation ("BFDS"), a wholly-owned subsidiary of
State Street which is duly registered as a transfer agent
pursuant to Section 17A(c)(2) of the Securities Exchange Act of
1934, as amended ("Section 17A(c)(2)"), (ii) an BFDS subsidiary
duly registered as a transfer agent pursuant to Section 17A(c)(2)
or (iii) an BFDS affiliate; provided, however, that IFTC shall be
as fully responsible to the Fund for the acts and omissions of
any subcontractor as it is for its own acts and omissions.
11. 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.
12. Missouri Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the
laws of the State of Missouri.
13. 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.
14. 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.
15. 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. 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.
17. 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.
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.
EACH REGISTERED INVESTMENT COMPANY
LISTED ON EXHIBIT A HERETO
By: ___________________________________
_______________________________
Title: ________________________________
________________________________
INVESTORS FIDUCIARY TRUST COMPANY
By:__________________________________
_______________________________
Title: ______________________________
_______________________________
EXHIBIT A
Bull & Bear Global Income Fund, Inc.
Bull & Bear Municipal Income Fund, Inc.
Bull & Bear U.S. Government Securities Fund, Inc.
INVESTORS FIDUCIARY TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
IFTC Fund
1. Receives orders for the purchase of Shares. x
2. Issue Shares and hold Shares in Shareholders accounts. x
3. Receive redemption requests. x
(Issue certificate, redeem only
the fractional shares)
4. Effect transactions 1-3 above directly with broker-dealers. x
(IFTC only 2-3)
5. Pay over monies to redeeming Shareholders. x
6. Effect transfers of Shares. x
7. Prepare and transmit dividends and distributions. x
8. Issue Replacement Certificates. x
9. Reporting of abandoned property. N/A N/A
10. Maintain records of account. x
11. Maintain and keep a current and accurate control
book for each issue of securities. x x
12. Mail proxies. N/A N/A
13. Mail Shareholder reports. x x
14. Mail prospectuses to current Shareholders. N/A N/A
15. Withhold taxes on U.S. resident and non-
resident alien accounts. x
16. Prepare and file U.S. Treasury Department forms. x
17. Prepare and mail account and confirmation
statements for Shareholders. x
18. Provide Shareholder account information. x
19. Blue sky reporting. N/A N/A
* Such services are more fully described in Section 1.2 (a), (b) and (c)
of the Agreement.
