EXHIBIT (h)(4)
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of February 15, 2001, by and between XXXXX XXXXX VARIABLE
TRUST, a business trust organized under the laws of the Commonwealth of
Massachusetts (the "Trust") acting on behalf of each of its series
(collectively, the "Funds" or individually, a "Fund"), and INVESTORS BANK &
TRUST COMPANY, a Massachusetts trust company (the "Bank").
WHEREAS, the Trust is registered as an investment Trust under the
Investment Trust Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires to retain the Bank to render certain services to
the Trust and the Bank is willing to render such services.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Trust hereby appoints the Bank to act as the Trust's
transfer agent and to provide other services on the terms set forth in this
Agreement. The Bank accepts such appointment and agrees to render the services
herein set forth for the compensation herein provided.
2. DELIVERY OF DOCUMENTS. The Trust has furnished the Bank with copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Trust's Board of Trustees authorizing the
appointment of the Bank to provide certain services to the Trust and
approving this Agreement;
(b) The Trust's organizational documents filed with the commonwealth
of Massachusetts on August 14, 2000 and all amendments thereto (the
"Declaration");
(c) The Trust's by-laws and all amendments thereto (the "By-Laws");
(d) The Trust's agreements with all service providers which include
any investment advisory agreements, sub-investment advisory agreements, and
custody agreements (collectively, the "Agreements");
(e) Such other certificates, documents or opinions as may mutually be
deemed necessary or appropriate for the Bank in the proper performance of
its duties hereunder.
3. DUTIES OF BANK. Subject to the supervision and direction of the Board of
Trustees of the Trust, the Bank will assist in conducting various aspects of the
Trust's operations and undertakes to perform the services and duties assigned to
it in Appendix B hereto. The Bank may, from time to time, perform additional
duties and functions which shall be set forth in an amendment to such Appendix B
executed by both parties.
In performing all services under this Agreement, the Bank shall act in
conformity with the Trust's Declaration and By-Laws and the 1940 Act, as the
same may be amended from time to time. Notwithstanding any item discussed
herein, the Bank has no discretion over the Trust's assets or choice of
investments and cannot be held liable for any problem relating to such
investments.
4. DUTIES OF THE TRUST.
(a) In order to assist the Bank in performing its duties hereunder,
the Trust undertakes to perform the duties assigned to it in Appendix B
hereto.
(b) The Trust agrees to make its legal counsel available to the Bank
for instruction with respect to any matter of law arising in connection
with the Bank's duties hereunder, and the Trust further agrees that the
Bank shall be entitled to rely on such instruction without further
investigation on the part of the Bank.
5. FEES AND EXPENSES.
(a) For the services to be rendered and the facilities to be furnished
by the Bank, as provided for in this Agreement, the Trust will compensate
the Bank as agreed to in writing by the parties. Such fees do not include
out-of-pocket disbursements (as agreed between the parties or other
expenses with the prior approval of the Trust's management) of the Bank for
which the Bank shall be entitled to xxxx the Trust separately and for which
the Trust shall reimburse the Bank.
(b) The Bank shall not be required to pay any expenses incurred by the
Trust.
6. LIMITATION OF THE BANK'S LIABILITY
(a) The Bank, its directors, officers, employees and agents shall not
be liable for any error of judgment or mistake of law or for any loss
suffered by the Trust in connection with the performance of its obligations
and duties under this Agreement, except a loss resulting from willful
misfeasance, bad faith or negligence in the performance of such obligations
and duties, or by reason of its reckless disregard thereof. The Trust will
indemnify the Bank, its directors, officers, employees and agents against
and hold it and them harmless from any and all losses, claims, damages,
liabilities or expenses (including legal fees and expenses) resulting from
any claim, demand, action or suit (I) arising out of the actions or
omissions of the Trust or any of the Trust's service providers (other than
the Bank); (ii) arising out of the offer or sale of any securities of the
Trust in violation of (x) any requirement under the federal securities laws
or regulations, (y) any requirement under the securities laws or
regulations of any state, or (z) any stop order or other determination or
ruling by any federal or state agency with respect to the offer or sale of
such securities; or (iii) not resulting from the willful misfeasance, bad
faith or negligence of the Bank in the performance of such obligations and
duties or by reason of its reckless disregard thereof.
(b) The Bank may apply to the Trust at any time for instructions and
may consult counsel for the Trust, or its own counsel, and with accountants
and other experts with respect to any matter arising in connection with its
duties hereunder, and the Bank shall not be liable or accountable for any
action taken or omitted by it in good faith in accordance with such
instruction, or with the opinion of such counsel, accountants, or other
experts. The Bank shall not be liable for any act or omission taken or not
taken in reliance upon any document, certificate or instrument which it
reasonably believes to be genuine and o be signed or presented by the
proper person or persons. The Bank shall not be held to have notice of any
change of authority of any officers, employees, or agents of the Trust
until receipt of written notice thereof has been received by the Bank from
the Trust.
(c) In the event the Bank is unable to perform, or is delayed in
performing, its obligations under the terms of the Agreement because of
acts of God, strikes, legal constraint, government actions, war, emergency
conditions, interruption of electrical power or other utilities, equipment
or transmission failure or damage reasonably beyond its control or other
causes reasonably beyond its control, the Bank shall not be liable to the
Trust for any damages resulting from such failure to perform, delay in
performance, or otherwise from such causes.
(d) Notwithstanding anything to the contrary in this Agreement, in no
event shall the Bank be liable for special, incidental or consequential
damages, even if advised of the possibility of such damages.
7. TERMINATION OF AGREEMENT.
(a) The term of this Agreement shall extend from the date hereof until
august 31, 2005 (the "initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this
Agreement shall automatically renew for successive three-year terms (each a
"Renewal Term") unless notice of non-renewal is delivered by the
non-renewing party to the other party no later than ninety days prior to
the expiration of the Initial Term or any Renewal Term, as the case may be.
Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term in the event the other
party violates any material provision of this Agreement, provided that the
violating party does not cure such violation within ninety days of receipt
of written notice from the non-violating party of such violation.
(b) At any time after the termination of this Agreement, the Trust
may, upon written request, have reasonable access to the reco5ds of the
Bank relating to its performance of its duties as Administrator.
8. MISCELLANEOUS.
(a) any notice or other instrument authorized or required by this
Agreement to be given in writing to the Trust or the Bank shall be
sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Trust:
Xxxxx Xxxxx Variable Trust
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X'Xxxxxx, Treasurer
With a copy to: Xxxx X. Xxxxxx, Esq.
To the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxx, Director,
Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
(b) This agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable without the written
consent of the other party.
(c) This Agreement shall be construed in accordance e with the laws of
the Commonwealth of Massachusetts, without regard to its conflict of laws
provisions.
(d) This Agreement may be executed in any number of counterparts each
of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(e) The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof
or otherwise affect heir construction or effect.
9. CONFIDENTIALITY. 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 in the performance of duties hereunder or as other wise required by
law.
10. USE OF NAME. The trust shall not use the name of the Bank or any of its
affiliates in any prospectus, sales literature or other material relating to the
Trust in a manner not approved by the Bank prior thereto in writing; provided
however, that the approval of the Bank shall not be required for any use of its
name which merely refers in accurate and factual terms to its appointment
hereunder or which is required by the Securities and Exchange Commission or any
state securities authority or any other appropriate regulatory, governmental or
judicial authority; provided further, that in no event shall such approval be
unreasonably withheld or delayed.
11. LIMITATION OF TRUST'S AND EACH FUND'S LIABILITY. The Bank expressly
acknowledges the provision in the Declaration of Trust of the Trust limiting the
personal liability of the trustees, officers, employees and shareholders of the
Trust, and hereby agrees that they shall have recourse only to the Trust for
payment of claims or obligations as between the Trust and the Bank arising out
of this Agreement and shall not see satisfaction from any trustee, officer,
employee or shareholders of the Trust. The Bank acknowledges and agrees that it
shall look to each Fund individually with regard to payment for services
rendered and that no Fund shall be responsible or liable for the liabilities,
debts or other obligations of any other Fund as set forth under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of
the date first written above.
XXXXX XXXXX VARIABLE TRUST ON BEHALF
OF EACH OF ITS SERIES LISTED ON APPENDIX A
By: /s/ Xxxxx X. X'Xxxxxx
---------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Treasurer
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Director
Appendices
----------
Appendix A......................................................Funds
Appendix B......... ............................................Services
APPENDIX A
Funds
-----
Xxxxx Xxxxx VT Floating-Rate Income Fund
Xxxxx Xxxxx VT Income Fund of Boston
Xxxxx Xxxxx VT Information Age Fund
Xxxxx Xxxxx VT Worldwide Health Sciences
APPENDIX B
Services
--------
In absence of contrary Proper Instructions, the Bank will perform the
following duties in accordance with the ten current Declaration of Trust in the
Bank's possession:
1. MAINTAINING INVESTOR RECORDS. Open, maintain and close accounts of
holders ("Holders") of shares of beneficial interest of the Funds (the
"Shares"), all in accordance with information received by the Bank from
Authorized Persons and maintain continuous proof of all Share interests.
2. PROCESSING OF INVESTMENTS. Upon receipt of Proper Instructions received
within prescribed deadlines, with respect to contributions to the trust, credit
the account of the Holder indicated in such Proper Instructions with the Share
interest and reconcile daily with Fund accounting. Mail monthly statements to
Plan Sponsors.
3. TELEPHONE SERVICING. The Bank will respond to limited general telephone
inquiries regarding the Share.
4. PROCESSING REDEMPTIONS. Upon receipt of Proper Instructions received
within prescribed deadlines, indicating that a proper withdrawal request had
been received, verify with the Custodian that there are sufficient amounts in
the account to cover the withdrawal at the appropriate net asset value as
instructed by the Manager, with payment to be made in accordance with the
instructions of the Holder as provided to the Bank by an Authorized Person, upon
instruction from Plan Sponsor representing the Share interest redeemed.
5. PROCESSING DISTRIBUTIONS. The Bank shall work in conjunction with the
Trust and its tax advisor to verify the amounts due to be distributed to the
Holders of the Trust in accordance with the Declaration of Trust. Upon receipt
of Proper Instructions indicating (i) that a distribution is due to be paid to
the Holders and (ii) the amount to be paid to each such Holder, the Bank shall
make such payment in accordance with such Proper instructions and the provisions
of the Declaration of Trust.
6. NO OBLIGATION ON PART OF BANK. The Bank shall have no duties or
obligations hereunder (I to determine whether any subscription or other
agreements or documents prepared by Holders are complete or accurate; (ii) to
determine whether any investor has satisfied any requirement for investment in
the Trust, either under federal law or the laws of any state or under the
Declaration of Trust or offering materials; (iii) to monitor any purchase with
respect to the securities laws of any state, or any federal securities laws or
to make any filing under the same in connection therewith, including, without
limitation, Regulation D of the Securities Act of 1933, as amended and the
securities laws of any state; or (iv) to determine whether the Holders are
"qualified purchases" for the purpose of Section 3(C)(7) of the Investment Trust
Act of 1940.
The Trust will be responsible for the performance of the following duties:
Provide the Bank with the appropriate documentation to establish accounts and
effect transactions, i.e. authorized, signer's list, competed application, etc.
