TRANSFER AGENCY AGREEMENT
This AGREEMENT made this 3rd day of June, 1991 by and between Xxxxx &
Steers Realty Shares, Inc., a Maryland corporation having its principal office
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("xxx Xxxx") and The United States
Trust Company of New York, a New York State chartered bank and trust company
having its principal office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("UST").
W I T N E S S E T H:
WHEREAS, the Fund desires to appoint UST as the transfer agent, dividend
disbursing agent and agent in connection with certain other activities of the
Fund and UST desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Appointment. The Fund hereby appoints and employs UST as transfer agent
for its authorized and issued shares of common stock (the "Shares") of the Fund,
dividend disbursing agent and agent in connection with such plans for the
purchase or periodic redemption of shares as are described in the prospectus
and/or statement of additional information of the Fund corresponding to the date
of this Agreement; and UST hereby accepts such appointment and agrees to act in
such capacities under the terms and conditions set forth herein.
2. Representations and Warranties. (a) UST represents and warrants to the
Fund that:
(i) it is a corporation duly organized and existing and in good
standing under the laws of the State of New York;
(ii) it is duly qualified to carry on its business in The State of
New York;
(iii) it is empowered under applicable laws and by its Certificate
of Incorporation and Bylaws to enter into and perform this Agreement;
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(iv) all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
(v) it has and will continue to have access to the facilities,
personnel and equipment required to perform its duties and obligations
hereunder, and will make reasonable attempts to make alternative arrangements
for access to facilities, personnel and equipment in the event of any
disruption; and
(vi) its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or obligation of UST.
(b) The Fund represents and warrants to UST that:
(i) it is a non-diversified, open-end management investment company
duly organized and existing and in good standing under the laws of the State of
Maryland;
(ii) it is empowered under applicable laws and by its Certificate of
Incorporation and Bylaws to enter into and perform this Agreement;
(iii) all requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
(iv) it is an investment company registered under the Investment
Company Act of 1940, as amended; and
(v) a registration statement on Form N-1A (including a prospectus
and statement of additional information) is currently effective and will remain
effective, and to the extent so required, appropriate filings under the
securities laws of the states have been made and will continue to be made, with
respect to all Shares being offered for sale.
3. Documents Furnished by the Fund.
(a) The Fund shall promptly furnish to UST the following documents:
(i) a copy of the Organizational Documents of the Fund;
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(ii) copies of all account application forms and other documents
related to shareholder accounts or any plans for the purchase or periodic
redemption of Shares; and
(iii) copies of the Fund's registration statement on Form N-1A as
amended and declared effective by the Securities & Exchange Commission.
(b) From time to time the Fund shall also furnish to UST the following
documents:
(i) copies of all amendments to the Organizational Documents of the
Fund;
(ii) copies of all post-effective amendments to the Fund's
registration statement on Form N-1A; and
(iii) such other certificates, documents and opinions as UST shall
deem to be appropriate or necessary for the proper performance of its duties
hereunder.
4. Purchase of Shares. Upon receipt by UST of any order for the purchase
of Shares, UST shall stamp such order with the date of receipt, promptly deposit
all funds received to the account of the Fund maintained with the entity then
acting as custodian for the portfolio securities and cash of the Fund (the
"Custodian"), compute (to the nearest three decimal places) the number of shares
to be purchased according to the public offering price in effect for purchases
made on the date of such receipt as set forth in the Fund's current prospectus,
notify the Fund daily of the deposit of such funds to the Fund's account with
the Custodian and the number of Shares subscribed for, and prepare and mail
confirmations of such purchases to the addresses specified by the persons making
them and, if applicable, send copies of such confirmations to the purchaser's
Broker/Dealer or selling agent, if any. All such actions are subject to any
instructions which the Fund may give to UST with respect to acceptance of orders
for shares so received by it.
Unless otherwise requested by a purchaser, all Shares purchased shall be
credited to a book share account maintained for the purchaser by UST. If a
purchaser or existing shareholder
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specifically requests in writing, UST as Transfer Agent, shall countersign,
register, issue and mail by first class mail to the purchaser or shareholder, a
share certificate for any whole number of Shares purchased or held in his book
share account, but no share certificate shall be mailed until the purchase price
of the Shares represented thereby shall have been received.
5. Unpaid Checks. In the event that any check or other order for payment
of money with respect to any purchase of Shares is returned unpaid for any
reason, UST shall promptly notify the Fund and purchaser of such nonpayment,
and, in the absence of other instructions from the Fund or the Distributor, take
such steps as may be necessary to cancel promptly any shares purchased on the
basis of such returned check and shall cancel accumulated dividends for such
account, and return such check or other order to the purchaser.
6. Redemption of Shares. Upon receipt of any request for the redemption of
Shares, UST shall stamp such request with the date of receipt, determine whether
such request complies with all requirements for redemption set forth in the
Fund's current prospectus, and if so, compute the redemption price in the manner
set forth therein. If such request does not comply with such requirements for
redemption, UST shall notify the redeeming shareholder of the respects in which
compliance is lacking and effect redemption at such time as all requirements for
redemption are complied with.
UST shall notify the Fund daily of the amount of funds required for
payment upon redemption of Shares and the number of Shares redeemed. Upon the
receipt of such funds from the Custodian, UST shall pay over or cause to be paid
over the redemption proceeds to redeeming shareholders as instructed by them in
the manner described in the Fund's current prospectus, and prepare and mail
confirmations of such redemptions and if applicable send copies of such
confirmations to the appropriate Broker/Dealer or selling agent, if any. UST
shall cancel all share certificates representing redeemed Shares, if any.
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7. Transfer of Shares. Upon receipt by UST of documentation in proper form
to effect a transfer of Shares, including in the case of Shares for which
certificates have been issued the share certificates in proper form for
transfer, UST shall register such transfer on the Fund's shareholder records
maintained by UST pursuant to instructions received from the transferor, cancel
the certificates representing such Shares, if any, and if so requested,
countersign, register, issue and mail by first class mail new certificates for
the same or a smaller whole number of Shares, and in the case of book share
transfers prepare and mail confirmation of such transfer as instructed by the
shareholder.
8. Administration of Plans. UST shall administer such plans for the
purchase or periodic redemption of Shares as are described in the prospectus
and/or statement of additional information of the Fund corresponding to the date
of this Agreement in accordance with the terms of such plans, or as UST and the
Fund may mutually agree from time to time.
9. Dividends and Distributions. Upon the declaration of any cash dividend
or distribution upon the Shares, the Fund shall furnish to UST a certified copy
of a resolution of the Fund's Board setting forth the date of payment of such
dividend or distribution, the record date as of which shareholders entitled to
payment thereof shall be determined, and the amount payable per share to
shareholders of record as of such record date. In the case of dividends declared
daily or at other regular intervals, such certified resolution may be a standing
resolution setting forth the method of calculating such dividends and the Fund
or its agent shall advise UST of the amount of such dividend at the appropriate
intervals. UST shall notify the Fund and the Custodian of the amount of cash
required to pay the dividend or distribution so that the Fund may instruct its
custodian to make sufficient funds available on or before the payment date.
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Upon receipt of such funds from the Custodian, UST shall prepare and mail
to shareholders, at their addresses as they appear on the records maintained by
UST or pursuant to any written order of a shareholder on file with UST, checks
representing any dividends and distributions to which they are entitled. If a
shareholder is entitled to receive additional Shares by reason of his decision
to reinvest all or a portion of a dividend or distribution, appropriate credits
shall be made to this book share account and, if specifically so requested in
writing, U.S. Trust shall countersign, register, issue and mail by first class
mail to the shareholder or pursuant to his instructions, a share certificate for
any whole number of shares purchased. UST shall prepare and mail confirmations
of such purchases and send copies of such confirmations to the Fund.
10. Tax Returns and Reports. UST shall prepare, file with the Internal
Revenue Service and with appropriate state or local agencies, and mail to
shareholders such returns for reporting dividends, distributions and redemptions
as are required to be so prepared, filed and/or mailed, and withhold from the
accounts of shareholders such sums as are required to be withheld, under
applicable federal, state and local tax laws, rules and regulations in effect
from time to time.
11. Share Certificates. The Fund shall supply UST with sufficient supplies
of blank share certificates. Such blank share certificates shall be properly
signed, manually or by facsimile signature, by the duly authorized officers of
the Fund, and shall bear the seal or a facsimile thereof of the Fund.
Notwithstanding the death, resignation or removal of any officers of the
Fund authorized to sign such share certificates, UST may continue to countersign
certificates which bear the manual or facsimile signature of such officer until
otherwise directed by the Fund.
UST shall establish and maintain facilities and procedures reasonably
acceptable to the Fund for safekeeping of share certificates, check forms and
facsimile signature
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imprinting devices if any, and for the preparation or use and for keeping
accounting of such certificates, forms and devices.
UST shall issue a replacement share certificate in lieu of a certificate
which has been lost, stolen or destroyed without any further action by the
Fund's Board or any officer of the Fund, upon receipt by UST of a properly
executed affidavit with respect to such loss, theft or destruction and a lost
certificate bond, in a form satisfactory to UST.
12. Shareholder Mailings, Inquiries and Meetings. UST shall address and
mail all communications by the Fund to its shareholders promptly following the
delivery by the Fund of the material to be mailed.
UST shall answer all correspondence it receives from shareholders and
former shareholders of the Fund relating to their ownership of shares. In
connection with meetings of shareholders, UST shall prepare shareholder lists,
mail and certify as to the mailing of proxy materials, receive and tabulate
proxy cards, render periodic reports to the Fund on the progress of such
tabulation, and provide the Fund with inspectors of election at any meeting of
shareholders.
13. Other Reports and Information. UST shall furnish to the Fund such
information, including shareholder lists, sales information on a state by state
basis and other statistical information, in such form and at such intervals as
may be reasonably requested by the Fund and supported by the UST system.
14. Record Keeping. UST shall keep records relating to the services to be
performed hereunder, in such 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 rules promulgated thereunder, UST agrees that all such records prepared or
maintained by UST relating to the services to be performed by UST hereunder are
the property of the Fund and will be preserved, for the periods prescribed under
Rule 31 a-2 of said rules as specifically noted below, maintained at the expense
of the Fund, and made available in accordance with such section rules. UST shall
upon the Fund's
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demand surrender promptly to the Fund and cease to retain in its files records
and documents created and maintained by UST pursuant to this Agreement.
If not so turned over to the Fund, such records and documents will be
retained by UST for six years from the year of creation, during the first two of
which such documents will be in readily accessible form. At the end of the
six-year period, such records and documents will either be turned over to the
Fund or destroyed in accordance with the Fund's authorization.
In the case of any requests or demands for the inspection of the
shareholder records of the Fund, UST shall endeavor to notify the Fund and to
secure instructions from an officer of the Fund as to such inspection. UST
reserves the right, however, to exhibit shareholder records to any person
whenever it is advised in writing by its counsel, with a copy to the Fund, that
it may be held liable for the failure to do so.
15. Confidentiality. All books, records, information, and data pertaining
to the business of the parties which are exchanged or received pursuant to the
negotiation or the performance of this Agreement shall remain confidential, and
shall not be voluntarily disclosed to any other person except as may be required
by law.
16. Compensation. For the services to be performed by UST pursuant to this
Agreement, the Fund agrees to pay UST in accordance with the schedules and terms
set forth in Exhibit A and as follows:
(a) Shareholder Service Fee. The Fund agrees to pay UST an Annual Service
Fees per Shareholder account. A "Shareholder account" is an account holding a
least a fraction of a Share and shall be deemed to exist after it is in fact
terminated until the month subsequent to the final federal tax filing deadline
(generally April 15th of the following year). The Annual Service Fee is prorated
and payable monthly based on the total number of accounts on the system at the
billing date each month. Service
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charges for a partial month's service will be prorated on a thirty (30) day
month basis.
(b) Out of Pocket Expenses. The Fund agrees to reimburse UST for any
equipment and supplies specially ordered by the Fund through UST and for any
other expenses UST may incur at the request of or consented to by the Fund,
including but not limited to expenses for stationery, postage, telephone and
telegraph line toll charges, data communications lines, shipping charges,
messenger services, forms, supplies and costs associated with the termination of
services pursuant to this Agreement:
Postage and the cost of materials for mailings to shareholder accounts
shall be advanced to UST by the Fund at least five (5) business days prior to
the mailing date of such materials.
(c) Additional Services. The Fund may request additional services,
additional processing, or special reports. Such requests may be provided by UST
at additional charges. In this event, the Fund shall submit such requests in
writing together with such specifications as may be reasonably required by UST,
and UST shall respond to such requests in the form of a price quotation. The
Fund's written acceptance of the quotation must be received prior to
implementation of such request.
Additional services will be charged at UST's standard rates.
(d) Terms of Payment. All fees, out-of-pocket expenses, or additional
charges of UST shall be billed on a monthly basis and shall be due and payable
upon receipt of the invoice.
UST will render, after the close of each month in which services have been
furnished, a statement reflecting all of the charges for such month. Charges
remaining unpaid after thirty (30) days shall bear interest in finance charges
equivalent to, in the aggregate, the Prime Rate (as determined by the Xxxxxx
Guaranty Trust Company of New York) plus two (2) points per year and all costs
and expenses of effecting collection of any such sums, including reasonable
attorney's fees, shall be paid by the Fund to UST.
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In the event that the Fund is more than sixty (60) days delinquent in its
payments of monthly xxxxxxxx in connection with this Agreement (with the
exception of specific amounts which may be contested in good faith by the Fund),
this Agreement may be terminated upon thirty days written notice to the Fund by
UST. The Fund must notify UST in writing of any contested amounts within thirty
(30) days of receipt of a billing for such amounts. Disputed amounts are not due
and payable while they are being investigated.
(e) Taxes. In addition to any other charges specified hereunder, the Fund
shall pay any sales and/or use tax, transfer tax, excise tax, tariff, duty, or
any other tax or payment in lieu thereof imposed by any governmental authority
or agency as a direct result of the provision by UST of goods or services
hereunder, except for taxes based on UST's net income.
(f) Price Adjustment. After the initial term of this Agreement, UST may
increase it's rate for services for any renewal term, upon notice of one hundred
and twenty (120) days prior to the commencement of the renewed term. Such
increased rates shall be based upon UST's then current fees to other users of
service similar to those provided hereunder.
17. Indemnification.
(a) UST shall not be responsible for, and the Fund shall indemnify and
hold UST harmless from and against, any and all losses, damages, costs, charges,
reasonable attorney's fees, payments, expenses and liability arising out of or
attributable to:
(i) all actions of UST 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;
(ii) the Fund's refusal or failure to comply with the terms of this
Agreement, or the Fund's lack of good faith, negligence or willful misconduct,
or the breach of any representation or warranty of the Fund hereunder;
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(iii) the reliance on or use by UST or its agents or subcontractors
on information, records or documents which are received by UST or its agents or
subcontractors and furnished to it by or on behalf or the Fund, and which have
been prepared and/or maintained by the Fund or any other person or firm (other
than UST or its agents or subcontractors) on behalf of the Fund;
(iv) the reliance on, or the carrying out by UST or its agents or
subcontractors, of any instructions or requests of the Fund; or
(v) the offer or sale of Shares by the Fund in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such state,
or in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such Shares in
such state.
(b) UST shall indemnify and hold the Fund and its Trustees, Officers and
Employees harmless from and against any and all losses, damages, costs, charges,
reasonable attorney's fees, payments, expenses, and liability arising out of or
attributable to UST's lack of good faith, negligence or willful misconduct, or
the breach of any representation or warranty of UST hereunder.
(c) At any time UST may apply to any officer of the Fund for instructions,
and may request, through an officer of the Fund, the opinion of the Fund's legal
counsel, with respect to any matter arising in connection with the services to
be performed by UST under this agreement, and UST and its agents and
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. UST, its agents and 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. UST, its
agents and subcontractors shall be protected and indemnified in acting in a
reasonable manner upon any papers or documents furnished by or on
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behalf of the Fund, any shareholder of the Fund or any representative of a
shareholder, reasonably believed to be genuine and to have been signed by the
proper person or persons, or upon any instructions, information, data, records
or documents provided UST or its agents or subcontractors by telephone, in
person, or by machine readable input, telex, CRT data entry or similar means
authorized by the Fund, and UST, its agents and subcontractors shall not be held
to have notice absent actual notice of any change or authority of any person
until receipt of written notice thereof from the Fund. UST, its agents and
subcontractors shall also be protected and indemnified in recognizing share
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Fund, and
(d) In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, interruption of
electrical power or other utilities, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable to the other for any damages resulting from such
failure to perform or otherwise from such causes. UST shall use its best efforts
to minimize the likelihood of all damage, loss of data, delays and errors
resulting from uncontrollable events, and should such damage, loss of data,
delays or errors occur, UST shall use its best efforts to mitigate the effects
of such occurrence.
(e) Neither party to this Agreement shall be liable to the other party for
consequential, special or incidental damages under any provision of this
Agreement or for any act or failure to act hereunder.
(f) In order that the indemnification provisions contained in this Section
17 shall apply, upon assertion of a claim for which either party may be required
to indemnify the other, the party seeking indemnification shall promptly notify
the other party of such assertion and shall keep the other party advised with
respect to all developments concerning such claim.
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The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim.
The party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it,
except with the other party's prior written consent.
18. Commencement, Term and Termination.
(a) The commencement date for the services provided hereunder shall be the
same as the Fund's effective date.
(b) This Agreement shall remain in effect for 12 months from the
commencement date (the "Initial Term"). Subsequent to the Initial Term, this
Agreement shall remain in effect indefinitely unless terminated by either party,
without penalty, upon ninety (90) days prior written notice.
(c) Notwithstanding the foregoing, either party hereto may terminate this
Agreement upon written notice if the other party hereto is substantially unable
to perform its duties hereunder because of a force majeure condition which lasts
for more than seven (7) days.
(d) This Agreement may be terminated by either party hereto if the other
party is in material breach of this Agreement. In order to so terminate this
Agreement, written notice shall be given to an officer of the other party of the
non-breaching party's intention to terminate due to a failure to comply with, or
breach of, a material term or condition of this Agreement. Said written notice
shall specifically state the material term and conditions claimed to be breached
and shall provide at least fifteen (15) days in which to correct such alleged
breach. If such breach is not corrected in the time period allowed to correct,
then the notice giving party may terminate this Agreement immediately, upon
written notice.
(e) Should the Fund exercise its right to terminate, all out-of-pocket
expenses reasonably incurred by UST in connection with the movement of records
and materials shall be borne by the Fund.
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Nothing herein shall be construed to excuse the Fund from payment of all
charges due and payable to UST for services and out-of-pocket expenses and
disbursements provided prior to termination. In the event of termination as
provided for in this Section 18, neither party shall be liable to the other
except for any payments which may be due as provided for in this Agreement and
except that the provisions of Section 15, "Confidentiality" shall survive the
termination of this Agreement for any reason.
19. Use of UST's Name. The Fund shall not use UST's name in any prospectus
or statement of additional information, shareholder report, sales literature or
other material relating to the Fund, otherwise than for the purpose of merely
identifying and describing the functions or UST hereunder, in a manner not
approved by UST in writing before such use; provided, however, that UST shall
consent to all uses of its name required by the Securities and Exchange
Commission, any state securities commission, or any federal or state regulatory
authority and provided, further, that in no case will such approval be
unreasonably withheld.
20. Assignment. Except as hereinafter provided, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective permitted successors and
assigns. UST may, without further consent on the part of the Fund, subcontract
for the performance hereof with third parties, or subsidiaries or other
affiliates of UST; provided, however, that UST 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 and shall be responsible for its choice of subcontractor.
21. Amendment. This Agreement may not be amended or modified in any manner
except by a written instrument executed by both parties.
22. Exhibit(s). The Exhibits listed below the signature lines hereof and
which are attached hereto are made a part of this agreement as if fully included
in the text hereof. In the event
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of any conflict or inconsistency between provisions contained in such Exhibits
and provisions contained in the main body of the Agreement, the provisions
contained in the Exhibits shall prevail.
23. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of The State of New York. The captions in this
Agreement are included for convenience of reference only and in no way define or
limit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute the entire Agreement between the parties hereto and
supersede any prior oral or written Agreement with respect to the subject of
matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their officers thereunto duly authorized as of the date
first above written.
XXXXX & STEERS REALTY SHARES, INC.
ATTEST: ______________________ By:_______________________________
(Title)
UNITED STATES TRUST COMPANY
OF NEW YORK
ATTEST: By:
------------------------ -------------------------------
SVP (Title)
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XXXXXXX X
XXXXXX XXXXXX TRUST COMPANY
OF NEW YORK
TRANSFER AGENCY
FEE SCHEDULE
FOR
XXXXX & STEERS REALTY SHARES, INC.
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