SERVICE AGREEMENT
AGREEMENT made as of the 8th day of June, 1995, by and among XXXXXXXX
ASSOCIATES, INC., a Delaware corporation with its principal office at Xxx Xxxxx
Xxxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000 ("Service Provider"), XXXXXXX SERVICE
CORPORATION, a Massachusetts corporation with its principal xxxxxx xx Xxx
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Transfer Agent"), and each of
those registered investment companies listed on Schedule A hereto (the "Xxxxxxx
Funds").
WHEREAS the Transfer Agent serves as transfer agent, dividend
disbursing agent and agent in connection with certain other matters for each
Xxxxxxx Fund listed on Schedule A hereto, as such Schedule A may be amended from
time to time with the mutual consent of the parties hereto, each of which is an
open-end management investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act");
WHEREAS Service Provider provides certain administrative and
recordkeeping services to or for the benefit of retirement plans (individually a
"Plan" and collectively the "Plans") that include or propose to include as
investment alternatives certain Xxxxxxx Funds through Code Section 403(b)(7)
arrangements ("Custodial Accounts") and The Xxxxxxxx Companies Retirement Trust
Account (the "Group Trust"), and Service Provider is a transfer agent registered
under the Securities Exchange Act of 1934, as amended;
WHEREAS the services to be provided by Service Provider hereunder will
benefit the Xxxxxxx Funds by relieving them of the expense they would incur if
such services were to be provided by the Transfer Agent or its affiliates; and
WHEREAS the Transfer Agent desires to appoint Service Provider as agent
for the Xxxxxxx Funds solely with respect to the Group Trust and Custodial
Accounts (the Group Trust and each such Custodial Account), and Service Provider
desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Terms of Appointment; Duties of the Parties
1.01. Agent for Order Processing. Subject to the terms and conditions
set forth in this Agreement, the Transfer Agent hereby appoints Service Provider
to act as, and Service Provider agrees to act as, agent for the sole purpose of
receiving requests for the purchase and redemption, and communicating to the
Transfer Agent requests for the purchase and redemption, of the authorized and
issued shares of beneficial interest of any Xxxxxxx Fund (the "Shares")
purchased, held or redeemed by a Plan. If a Xxxxxxx Fund offers two or more
series of Shares, each such series shall be deemed at such time to be a Xxxxxxx
Fund, unless otherwise indicated herein.
1.02. Service Provider. Except as provided specifically herein, Service
Provider shall not be, and shall not hold itself out as, an agent of the
Transfer Agent or any Xxxxxxx Fund. Service Provider shall perform the following
functions on behalf of the Plans in accordance with procedures established from
time to time by agreement of the Transfer Agent and Service Provider, and
subject to terms and conditions set forth in each Xxxxxxx Fund's current
prospectus.
(a) Receive from the Plans, Plan participants, Plan sponsors,
authorized Plan committees or Plan trustees, according to Service Provider's
agreement with each Plan, by the close of regular trading on the New York Stock
Exchange (the "Close of Trading") each business day that the New York Stock
Exchange is open for business ("Business Day") instructions for the purchase and
redemption of Shares (together, "Instructions");
(b) Based on Instructions received each Business Day, compute net
purchase requests or net redemption requests for Shares for each Xxxxxxx Fund
for each Plan (together, "Orders");
(c) Maintain adequate records related to, and advise the Transfer Agent
as to, the foregoing, as instructed by the Transfer Agent. To the extent
required under the 1940 Act and rules thereunder, Service Provider agrees that
such records maintained by it hereunder will be preserved, maintained and made
available in accordance with the provisions of the 1940 Act and rules
thereunder, and copies or, if required, originals will be surrendered promptly
to the Transfer Agent on and in accordance with its request. Records surrendered
hereunder shall be in machine readable form, except to the extent that Service
Provider has maintained such records only in paper form. This provision shall
survive the termination of this Agreement.
1.03. Equipment. Service Provider shall maintain adequate offices,
personnel and computer and other equipment to perform the services contemplated
by this Agreement. Service Provider shall notify the Transfer Agent promptly in
the event that it becomes unable for any reason to perform the services
contemplated by, or any other of its obligations under, this Agreement.
1.04. Insurance. Service Provider shall maintain at all times general
liability and other insurance coverage, including errors and omissions coverage,
that is reasonable and customary in light of its duties hereunder, with limits
of not less than $2 million. Such insurance coverage shall be issued by a
qualified insurance carrier with a Best's rating of at least "A" or with the
highest rating of a nationally recognized statistical rating organization.
Notwithstanding any provision to the contrary herein, no provision of this
Agreement shall relieve an insurer of any obligation to pay to any Xxxxxxx Fund,
the Transfer Agent or any affiliate of the Transfer Agent, Service Provider, or
any other insured party any claim that would be a covered claim in the absence
of any provision hereof.
2
1.05. Disclosure to Plans. Service Provider shall take all steps
necessary to ensure that the arrangements provided for in this Agreement are
properly disclosed to the Plans.
1.06. Transmission of Information to Service Provider. In accordance
with procedures established from time to time by agreement of the Transfer Agent
and Service Provider, the Transfer Agent shall transmit to Service Provider,
which will act on behalf of the Plans, the following information for each
Xxxxxxx Fund, as received by the Transfer Agent from third parties:
(a) Net asset value information as of the Close of Trading each Business
Day, when such information is used to process trades;
(b) Dividend and capital gains distribution information, as it arises, when
such information is used for crediting accounts; and
(c) Daily accrual for interest rate factor (mil rate) information with
respect to Xxxxxxx Funds which declare dividends daily, when such information is
used for crediting accounts.
1.07. Transmission of Information to Transfer Agent. Service Provider
shall perform the following services in accordance with procedures established
from time to time by agreement of the Transfer Agent and Service Provider, and
subject to terms and conditions set forth in each Xxxxxxx Fund's current
prospectus:
(a) Immediately prior to the Close of Trading each Business
Day, Service Provider shall communicate to itself, as agent of each Xxxxxxx Fund
to the extent such Instructions refer to such Xxxxxxx Fund, all Instructions
received by acting on behalf of the Plans since the Close of Trading the
preceding Business Day.
(b) Communicate Orders to the Transfer Agent, for acceptance
by the Xxxxxxx Funds or their agents, in the manner specified herein, and
promptly deliver, or instruct the Plans (or the Plans' trustees as the case may
be) to deliver, appropriate documentation and in the case of purchase requests,
payment therefor to the Transfer Agent.
(c) Employ its best efforts to communicate Orders to the
Transfer Agent in a prompt and timely manner, so that the Transfer Agent
receives Orders no later than 9:00 PM Boston time each Business Day that the
Instructions on which such Orders are based are received by Service Provider
from a Plan before the Close of Trading. If, however, despite its best efforts,
Service Provider is unable to communicate Orders to the Transfer Agent by such
time on any Business Day, Service Provider in any case shall communicate such
Orders to the Transfer Agent by no later than 9:00 AM Boston time the following
Business Day. Orders shall be based solely on Instructions received by Service
Provider from the Plans, Plan participants, Plan sponsors, authorized Plan
committees or Plan trustees, according to Service Provider's agreement with each
3
Plan, by the Close of Trading each Business Day. Instructions received by
Service Provider after the Close of Trading on any Business Day shall be treated
as received on the next Business Day. Provided that Service Provider complies
with the foregoing terms and conditions, Service Provider will be deemed to be
agent of each Xxxxxxx Fund to the extent such Instructions refer to such Xxxxxxx
Fund for the sole purpose of receiving Instructions immediately prior to the
Close of Trading each Business Day and communicating Orders based on such
Instructions to the Transfer Agent, all as specified herein, and the Business
Day on which Instructions are received by Service Provider immediately prior to
the Close of Trading will be the Business Day as of which Orders will be deemed
received by the Transfer Agent as a result of such Instructions.
1.08. Representations Regarding Shares. Any representation made by
Service Provider regarding any Shares or Xxxxxxx Fund shall be in its capacity
as agent to the Plans and not in its capacity as Service Provider. Service
Provider shall make no representation in any capacity regarding any Shares or
Xxxxxxx Fund except as set forth in such Xxxxxxx Fund's current prospectus or
current sales literature furnished by such Xxxxxxx Fund or by the Transfer
Agent.
1.09. Confidentiality of Information. The parties hereto agree that all
books, records, information and data pertaining to the business of any other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall be kept confidential and shall not be
voluntarily disclosed to any other person other than to the custodian or group
trustee or plan trustee of the relevant Plan or Plans and except as may be
required by law. This provision shall survive the termination of this Agreement.
1.10. Redundancy. Service Provider shall maintain or provide for
redundant facilities and shall maintain or provide for backup files of its
records maintained hereunder and shall store such back-up files in a secure
off-premises location, so that, in the event of a power failure or other
interruption of whatever cause at the location of its records, Service
Provider's records are maintained intact and transactions can be processed at
another location.
1.11. Compliance with Law. Service Provider shall comply with all
federal and state securities laws and regulations thereunder in connection with
its responsibilities under this Agreement.
1.12. Administrative Services. Service Provider shall perform the
administrative and recordkeeping services (the "Administrative Services")
described in Schedule B hereto, as such Schedule B may be amended from time to
time with the mutual consent of the parties hereto, with respect to Shares
purchased, held or redeemed by a Plan. Except as provided specifically in
Section 1.07 hereof, Service Provider shall perform the Administrative Services
as an independent contractor and not as an employee or agent of the Transfer
Agent or any Xxxxxxx Fund. Service Provider shall perform the Administrative
Services in accordance with procedures established from time to time by
4
agreement of the Transfer Agent and Service Provider, and subject to terms and
conditions set forth in each Xxxxxxx Fund's current prospectus.
1.13. No Impairment of Xxxxxxx'x Authority. No provision of this
Agreement shall limit in any way the authority of any Xxxxxxx Fund or of the
distributor of any Xxxxxxx Fund to take such action as it deems appropriate in
connection with matters relating to the operation of such Xxxxxxx Fund and the
sale of its shares.
1.14 Authority of Service Provider. Service Provider acknowledges that
it is not authorized by any Xxxxxxx Fund to register the transfer of any Xxxxxxx
Fund's Shares or to transfer record ownership of any Xxxxxxx Fund's Shares, and
that only the Transfer Agent is authorized to perform such activities.
2. Compensation
2.01. Service Provider's Expenses. Service Provider shall bear all
expenses arising out of the performance of the Administrative Services and of
the performance of functions on behalf of the Plans as agent of the Plans.
Service Provider shall not receive from the Transfer Agent (or from any
affiliate of the Transfer Agent) or from any Xxxxxxx Fund any monetary
compensation or reimbursement for such expenses; however, under the terms of the
Group Trust or any Custodial Acount, the trustee or custodian thereof may redeem
Xxxxxxx Fund shares to pay fees or expenses authorized thereunder or authorized
by a proper instruction, including a continuing instruction.
2.02. Transfer Agent's Expenses. The Transfer Agent shall bear all
expenses of its own hereunder and shall not receive from Service Provider any
monetary compensation or reimbursement for such expenses.
2.03. Fund Expenses. Each Xxxxxxx Fund shall bear all expenses of its
own hereunder, including without limitation the cost of registration of its
shares and the cost of preparing its prospectus, proxy materials, periodic
reports to shareholders, and other materials prepared by such Xxxxxxx Fund, and
shall not receive from Service Provider any monetary compensation or
reimbursement for such expenses.
2.04. Administrative Fees. In consideration of Service Provider's
performance of the Administrative Services, each Xxxxxxx Fund shall pay to
Service Provider the fees (the "Administrative Fees") described in Schedule C
hereto, as such Schedule C may be amended from time to time with the mutual
consent of Service Provider and the applicable Xxxxxxx Fund.
5
2.05. Calculation and Payment of Fees. The Administrative Fees shall be
due each calendar month from each Xxxxxxx Fund for which the Service Provider
performs Administrative Services pursuant to this Agreement. Each Xxxxxxx Fund
making a payment for such Administrative Fees for such calendar month shall make
payment within thirty (30) days after the last day of such month. Service
Provider shall have sixty (60) days following receipt of the payment to verify
the amount of the payment and after such time the amount will be considered
final.
3. Representations and Warranties
3.01 Service Provider's Representations. Service Provider represents and
warrants to the Transfer Agent and each Xxxxxxx Fund that:
(a) It is a corporation duly organized and validly existing
and in good standing under the laws of the State of Delaware;
(b) It has full power and authority under applicable law to
carry on its business, and is registered or licensed as required, in each
jurisdiction where it conducts its business;
(c) It has full power and authority under applicable law, and
has taken all actions necessary, to enter into and to perform this Agreement;
(d) It is duly registered as a transfer agent under section
17A of the Securities Exchange Act of 1934, as amended ("1934 Act");
(e) It is duly registered as a broker-dealer under section 15
of the 1934 Act; or, if it not so registered, it is not required to be so
registered in order to perform this Agreement, and it undertakes to comply with
any determination by a governmental agency or court of competent jurisdiction
that activities substantially similar to those of the Service Provider hereunder
are such as to require registration as a broker-dealer under the 1934 Act;
(f) It maintains and knows of no reason why it cannot or will
not during the term hereof maintain adequate offices, personnel and computer and
other equipment to perform the services contemplated by this Agreement;
(g) To the best of its knowledge, it will not be a "fiduciary"
of any Plan as such term is defined in section 3 (21) of the Employment
Retirement Income Security Act of 1974, as amended ("ERISA"), and section 4975
of the Internal Revenue Code of 1986, as amended (the "Code"); and
6
(h) To the best of its knowledge, the receipt for the
Administrative Fees by Service Provider will not constitute a "prohibited
transaction" as such term is defined in section 406 of ERISA and section 4975 of
the Code.
3.02. Transfer Agent's Representations. The Transfer Agent represents
and warrants to Service Provider that:
(a) It is a corporation duly organized, validly existing and
in good standing under the laws of The Commonwealth of Massachusetts;
(b) It has full power and authority to carry on its business
in The Commonwealth of Massachusetts;
(c) It has full power and authority under applicable law, and
has taken all actions necessary, to enter into and to perform this Agreement;
(d) It is authorized to appoint Service Provider as agent for
the Xxxxxxx Funds for the limited purpose set forth herein; and
(e) It is duly registered as a transfer agent under section
17A of the 0000 Xxx.
3.03. Fund Representations. Each Xxxxxxx Fund represents and warrants
to Service Provider that:
(a) It has full power and authority under applicable law, and
has taken all actions necessary, to enter into and to perform this Agreement;
and
(b) It is duly registered as an investment company under the
1940 Act.
4. Indemnification
4.01. By Transfer Agent. The Transfer Agent shall indemnify and hold
Service Provider, each Xxxxxxx Fund, and their directors, trustees, officers and
employees harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of or attributable
to:
(a) the Transfer Agent's refusal or failure to comply with the
provisions of this Agreement, or
(b) the lack of good faith, negligence or willful misconduct
of the Transfer Agent, or
7
(c) the breach of any representation or warranty of the
Transfer Agent hereunder.
4.02. By Funds. Each Xxxxxxx Fund shall indemnify and hold the Transfer
Agent, each affiliate of the Transfer Agent, Service Provider, and their
directors, officers and employees harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liabilities
arising out of or attributable to:
(a) such Xxxxxxx Fund's refusal or failure to comply with the
provisions of this Agreement, or
(b) the lack of good faith, negligence or willful misconduct
of such Xxxxxxx Fund, or
(c) the breach of any representation or warranty of such
Xxxxxxx Fund hereunder.
4.03. By Service Provider. Service Provider shall indemnify and hold
the Transfer Agent, each affiliate of the Transfer Agent, each Xxxxxxx Fund, and
their directors, trustees, officers and employees harmless from and against any
and all losses, damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(a) Service Provider's refusal or failure to comply with the
provisions of this Agreement or with instructions properly given hereunder
(whether as a result of the acts or omissions of Service Provider or of its
agents or subcontractors), whether it is performing functions on behalf of the
Plans, as Plan Agent, or providing Administrative Services as Service Provider,
or
(b) Service Provider's performance of the Administrative
Services, or
(c) the lack of good faith, negligence or willful misconduct
of Service Provider (or its agents or subcontractors), whether it is performing
functions on behalf of the Plans, as Plan Agent, or providing Administrative
Services as Service Provider, or
(d) the breach of any representation or warranty of Service
Provider hereunder.
4.04. Acts of God. In the event that any 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 to
any other party for any damages resulting from such failure to perform or
otherwise from such causes.
8
4.05. No Consequential Damages. No party to this Agreement shall be
liable to any other party for consequential damages under any provision of this
Agreement.
4.06. Claim Procedure. In order that the indemnification provisions
contained herein shall apply, upon the assertion of a claim or loss for which
any party (the "Indemnitor") may be required to indemnify another party (the
"Indemnitee"), the Indemnitee shall promptly notify the Indemnitor of such
assertion or loss, and shall keep the Indemnitor advised with respect to all
developments concerning any such claim. The Indemnitor shall have the option to
participate at its expense with the Indemnitee in the defense of any such claim.
In the event that there is more than one Indemnitor with respect to any such
claim, the Indemnitors shall agree as to their exercise of this option. The
Indemnitee shall in no case confess any claim or make any compromise in any case
in which the Indemnitor may be required to indemnify it except with the
Indemnitor's prior written consent. The obligations of the Transfer Agent, the
Xxxxxxx Funds and Service Provider under this Section 4 shall survive the
termination of this Agreement.
5. Acknowledgements
5.01. Fees Solely for Administrative Services. The parties hereto
acknowledge that the Administrative Fees are for administrative and
recordkeeping services only and do not constitute payment in any manner for
investment advisory or distribution services. The parties acknowledge that
Service Provider also has been providing and will continue to provide certain
services to the Plans as agent of the Plans, which may involve, among other
things, preparing informational or promotional materials that may refer to the
Xxxxxxx Funds and responding to telephone inquires from Plan participants. The
parties acknowledge that the provision of such services and any other actions of
Service Provider related to the Xxxxxxx Funds and not specifically authorized
herein are outside the scope of this Agreement and will be taken in the capacity
of agent of the Plans.
5.02. Service Provider Acting as Plan Agent. The parties acknowledge
that Service Provider has been selected as agent to the Plans and as a provider
of administrative and recordkeeping services by the Plans, and not by the
Transfer Agent or any Xxxxxxx Fund, and that, except as provided specifically in
Section 1.07 hereof, Service Provider will perform the Administrative Services
hereunder as an independent contractor and not as an employee or agent of the
Transfer Agent or any Xxxxxxx Fund. The parties acknowledge, further, that
neither the Transfer Agent nor any Xxxxxxx Fund undertakes to supervise Service
Provider in the performance of the Administrative Services; that neither the
Transfer Agent nor any Xxxxxxx Fund shall be responsible for Service Provider's
performance of the Administrative Services; that neither the Transfer Agent nor
any Xxxxxxx Fund shall be responsible for the accuracy of the records maintained
by Service Provider for the Plans; and that neither the Transfer Agent nor any
Xxxxxxx Fund shall be responsible for Service Provider's performance of other
functions for the Plans.
9
5.03. No Investment Advice. The parties hereto acknowledge that Service
Provider has no duty or obligation under this Agreement to recommend or promote
investment in any of the Xxxxxxx Funds, and that none of the services Service
Provider is to provide under this Agreement should be viewed as constituting
investment advice with respect to any Plan's selection of any Xxxxxxx Fund as an
investment. The parties hereto further acknowledge that there is nothing in this
Agreement or the services to be provided hereunder that is intended to create
any authority or responsibility that would render any of the parties a
"fiduciary" (within the meaning of Section 3(21) of the ERISA) with respect to
the Group Trust or any Custodial Account.
5.04. Laws Applicable to Funds. Service Provider acknowledges that each
Xxxxxxx Fund, as a registered investment company under the 1940 Act, is subject
to the provisions of the 1940 Act and regulations thereunder, and that the offer
and sale of its shares are subject to the provisions of federal and state laws
and regulations applicable to the offer and sale of securities. The Transfer
Agent and each Xxxxxxx Fund acknowledges that Service Provider is not
responsible for such Xxxxxxx Fund's compliance with such laws and regulations.
If the Transfer Agent or any Xxxxxxx Fund advises Service Provider that a
procedure of Service Provider related to the discharge of its obligations
hereunder has or may have the effect of causing the Transfer Agent or any
Xxxxxxx Fund to violate any of such laws or regulations, Service Provider shall
develop a mutually agreeable alternative procedure which does not have such
effect.
6. Termination of Agreement
6.01. By Written Notice. This Agreement may be terminated by any
party upon sixty (60) days written notice to each other party.
6.02. By Transfer Agent or Fund. This Agreement may be terminated by
the Transfer Agent or any Xxxxxxx Fund immediately upon notice to each other
party in the event that (a) Service Provider becomes unable for any reason to
perform the services contemplated by this Agreement, (b) the performance by
Service Provider of the services contemplated by this Agreement becomes in the
Transfer Agent's reasonable judgment unlawful or ceases to satisfy the Transfer
Agent's reasonable standards and so becomes unacceptable to the Transfer Agent,
(c) the Transfer Agent ceases to be the transfer agent for all the Xxxxxxx
Funds, (d) all the Xxxxxxx Funds cease to be investment alternatives under all
the Plans, (e) all the Xxxxxxx Funds decline to accept any additional purchase
or redemption requests for Shares, the Securities and Exchange Commission issues
any stop order suspending the effectiveness of the registration statements or
prospectuses of all the Xxxxxxx Funds, or current prospectuses for all the
Xxxxxxx Funds are not on file with the Securities and Exchange Commission as
required by section 10 of the Securities Act of 1933, as amended. To the extent
that any of the events enumerated above occurs with respect to one or more
Xxxxxxx Funds, but not with respect to all the Xxxxxxx Funds, or that one or
more Xxxxxxx Funds, but not all the Xxxxxxx Funds, terminates this Agreement, in
lieu of termination of this Agreement the Transfer Agent shall amend Schedule A
10
hereto with notice to the other parties to remove the affected Xxxxxxx Funds
from such Schedule A. To the extent that any of the events enumerated above
occurs with respect to one or more Plans, but not with respect to all the Plans,
in lieu of termination of this Agreement the Transfer Agent shall amend Schedule
B hereto with notice to the other parties to remove the affected Plans from such
Schedule B.
6.03. By Service Provider. This Agreement may be terminated by Service
Provider immediately upon notice to the other parties in the event that (a) the
Transfer Agent ceases to be the transfer agent for all the Xxxxxxx Funds or (b)
all the Xxxxxxx Funds cease to be investment alternatives under the Plans.
6.04. Termination Procedures. Upon termination of this Agreement, each
party shall return to each 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. This provision shall survive the termination of this
Agreement.
7. Assignment
7.01. Assignment. Neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by any party without the
written consent of the other parties.
7.02. Successors. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
8. Notices
Notices hereunder shall be in writing, shall be delivered personally,
sent by certified mail (return receipt requested), or sent by facsimile machine
in accordance with procedures established by agreement of the Transfer Agent and
Service Provider, and shall be addressed to a party either at its address below
or at a changed address specified by it in a notice to the other parties hereto:
Transfer Agent: XXXXXXX SERVICE CORPORATION
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Vice President
11
Any Xxxxxxx Fund: [Name of Xxxxxxx Fund]
c/x Xxxxxxx Service Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxxx
Secretary
Service Provider: XXXXXXXX ASSOCIATES, INC.
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
General Counsel
9. Amendment
Except as otherwise provided herein, this Agreement may be amended or
modified only by a written agreement executed by all the parties; provided that
an amendment solely to add or remove any Xxxxxxx Fund as a party to this
Agreement may be made, and shall be valid and binding, by the addition or
removal of the relevant Fund's listing on Schedule A and its signature below
without requiring the other parties' signatures and shall be effective as of the
date of execution, unless any other party objects in writing within thirty (30)
days after receiving notice of such amendment.
10. 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, without regard to conflicts of laws principles.
11. Entire 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. Nothing contained in this Agreement is intended
to convey rights to any third parties, such as Plans, Plan Trustees or Plan
participants.
12. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be an original document and all of which together shall be deemed
one and the same instrument.
12
13. Limitation of Liability of the Xxxxxxx Funds, Trustees and Shareholders
It is understood and expressly stipulated that none of the trustees,
officers, agents, or shareholders of any Xxxxxxx Fund shall be personally liable
hereunder. It is understood and acknowledged that all persons dealing with any
Xxxxxxx Fund must look solely to the property of such Xxxxxxx Fund for the
enforcement of any claims against such Xxxxxxx Fund as neither the trustees,
officers, agents or shareholders assume any personal liability for obligations
entered into on behalf of any Xxxxxxx Fund. No Xxxxxxx Fund shall be liable for
the obligations or liabilities of any other Xxxxxxx Fund. No series of any
Xxxxxxx Fund, if any, shall be liable for the obligations of any other series.
14. Headings
The headings contained in this Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of this
Agreement.
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.
XXXXXXX SERVICE CORPORATION
By: /s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXXX ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
* SIGNATURES OF XXXXXXX FUNDS
ON THE FOLLOWING PAGE
13
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 or below written.
XXXXXXX DEVELOPMENT FUND
XXXXXXX EQUITY TRUST, on behalf of
Xxxxxxx Capital Growth Fund
Xxxxxxx Value Fund
XXXXXXX GLOBAL FUND, INC., on behalf of
Xxxxxxx Global Fund
Xxxxxxx Global Small Company Fund
XXXXXXX INTERNATIONAL FUND, INC., on behalf of
Xxxxxxx Greater Europe Growth Fund
Xxxxxxx Pacific Opportunities Fund
Xxxxxxx International Fund
XXXXXXX INVESTMENT TRUST, on behalf of
Xxxxxxx Growth and Income Fund
Xxxxxxx Quality Growth Fund
XXXXXXX MUTUAL FUNDS, INC., on behalf of
Xxxxxxx Gold Fund
XXXXXXX PORTFOLIO TRUST, on behalf of
Xxxxxxx Balanced Fund
By: /s/ Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: Secretary
Date: 5/24/95
14
Schedule A
LIST OF XXXXXXX FUNDS
XXXXXXX CAPITAL GROWTH FUND
XXXXXXX DEVELOPMENT FUND
XXXXXXX GLOBAL FUND
XXXXXXX GLOBAL SMALL COMPANY FUND
XXXXXXX GOLD FUND
XXXXXXX GREATER EUROPE GROWTH FUND*
XXXXXXX INTERNATIONAL FUND
XXXXXXX PACIFIC OPPORTUNITIES FUND
XXXXXXX QUALITY GROWTH FUND
XXXXXXX VALUE FUND
XXXXXXX GROWTH AND INCOME FUND
XXXXXXX BALANCED FUND
On behalf of the Funds listed on Schedule A:
By: /s/ Xxxxxx X. XxXxxxxxx
Xxxxxx X. XxXxxxxxx
Date: 5/24/95
--------
* Service Provider will not receive Administrative Fees for providing
Administrative Services until further notice.
Schedule B
The Administrative Services
1. Maintain separate adequate records for each Plan reflecting Shares
purchased and redeemed, including dates and prices for all transactions, and
Share balances. To the extent required under the 1940 Act and rules thereunder,
such records shall be preserved, maintained and made available in accordance
with the provisions of such Act and such rules, and copies or, if required,
originals shall be surrendered promptly to the Transfer Agent on and in
accordance with its request. Records surrendered hereunder shall be in machine
readable form, except to the extent that such records have been maintained only
in paper form.
2. Disburse or credit to the Group Trust or Custodial Accounts, and
maintain records of, all proceeds of Share redemptions and distributions not
reinvested in Shares.
3. Ensure and oversee the timely transfer of funds in connection
with Plan accounts with the Xxxxxxx Funds.
4. Prepare and deliver to the Group Trust periodic account statements
showing for each Plan the total number of Shares held as of the statement
closing date, purchases and redemptions of Shares during the statement period,
and dividends and other distributions paid during the statement period (whether
paid in case or reinvested in Shares), including dates and prices for all
transactions.
5. On behalf of and as required by the Group Trust or Custodial
Accounts, deliver to Plan participants (or deliver to the Plans for distribution
to Plan participants) prospectuses, proxy materials, periodic reports to
shareholders, and other materials provided by the Transfer Agent or the Xxxxxxx
Funds.
6. Receive Instructions from Plan Agent and communicate Orders to the
Transfer Agent as specified in this Agreement.
7. Transmit confirmations of Orders to the Plans.
8. Maintain daily and monthly purchase summaries (expressed in both
Share and dollar amounts) for each Plan.
9. Settle Orders in accordance with the terms of each Xxxxxxx
Fund's prospectus.
10. Transmit to the Transfer Agent, or to any Xxxxxxx Fund designated
by the Transfer Agent, such occasional and periodic reports as the Transfer
Agent shall reasonably request from time to time to enable it or such Xxxxxxx
Fund to comply with applicable laws and regulations.
2
Schedule C
The Administrative Fees
The Xxxxxxx Funds listed on Schedule A will pay the Service Provider a
monthly fee at an annualized rate of .25 of 1% (25 basis points) of the average
daily account balance during the month for each account registered with Transfer
Agent for which Service Provider performs Administrative Services. If Service
Provider begins or ceases performing Administrative Services during the month,
such fee shall be prorated according to the proportion which such portion of the
month bears to the full month.
