EXHIBIT (h)(1)
AGENCY AGREEMENT
THIS AGREEMENT made the 5th day of March, 1991, by and between THE
XXXXXXXXXX FUNDS, a Massachusetts business trust having its principal place of
business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Trust"), and INVESTORS
FIDUCIARY TRUST COMPANY, a state chartered trust company organized and existing
under the laws of the State of Missouri, having its principal place of business
at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("IFTC");
WITNESSETH:
WHEREAS, Fund desires to appoint IFTC as Transfer Agent and Dividend
Disbursing Agent, and IFTC desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
-----------------------------------------
In connection with the appointment of IFTC as Transfer Agent and
Dividend Disbursing Agent for Trust, there will be filed with IFTC the
following documents:
A. A certified copy of the resolutions of the Board of Trustees of Trust
appointing IFTC as Transfer Agent and Dividend Disbursing Agent,
approving the form of this Agreement, and designating certain persons
to sign certificates of shares of beneficial interest, if any, and
give written instructions and requests on behalf of Trust;
B. A certified copy of the Declaration of Trust of Trust and all
amendments thereto;
C. A certified copy of the Bylaws of Trust;
D. Copies of Registration Statements, and amendments thereto, filed
with the Securities and Exchange Commission.
1
E. Specimens of all forms of outstanding certificates of shares of
beneficial interest, in the forms approved by the Board of Trustees
of Trust, with a certificate of the Secretary of Trust, as to such
approval;
F. Specimens of the signatures of the officers of Trust authorized to
sign certificates of shares of beneficial interest and individuals
authorized to sign written instructions and requests;
G. An opinion of counsel for Trust with respect to:
(1) Trust's organization and existence under the laws of its state of
organization,
(2) The status of all shares of beneficial interest of Trust covered
by the appointment under the Securities Act of i933, as amended,
and any other applicable federal or state statute and
(3) That all issued shares are, and all unissued shares will be, when
issued, validly issued, fully paid and nonassessable by Trust.
2. Certain Representations and Warranties of IFTC. IFTC represents and
-----------------------------------------------
warrants to Trust that:
A. It is a trust company duly organized and existing and in good
standing under the laws of Missouri.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Declaration of Trust
and bylaws to enter into and perform the services contemplated in
this Agreement.
D. It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934, as amended.
E. All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
2
3. Certain Representations and Warranties of Trust. Trust represents and
-----------------------------------------------
warrants to IFTC that:
A. It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as amended.
C. A registration statement under the Securities Act of 1933 has been
filed and will be effective with respect to all shares of Trust being
offered for sale.
D. All requisite steps have been or will be taken to register Trust's
shares for sale in all applicable states.
E. Trust is empowered under applicable laws and by its Declaration of
Trust and bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
--------------------
A. Subject to the conditions set forth in this Agreement, Tr-ust hereby
employs and appoints IFTC as Transfer Agent and Dividend Disbursing
Agent effective the ____ day of January, 1991.
B. IFTC hereby accepts such employment and appointment and agrees that
it will act as Trust's Transfer Agent and Dividend Disbursing Agent
for the current series of shares and each subsequently created series
of shares of Trust. IFTC agrees that it will also act as agent in
connection with Trust's periodic withdrawal payment accounts and
other open accounts or similar plans for shareholders, if any.
C. IFTC agrees to provide the necessary facilities, equipment and
personnel to perform its duties and obligations hereunder in
accordance with industry practice.
D. Trust agrees to use its best efforts to deliver to IFTC in Kansas
City, Missouri, as soon as they are available, all of its shareholder
account records.
E. Subject to the provisions of Sections 19. and 20. hereof, IFTC agrees
that it will perform all of the usual and ordinary services of
Transfer Agent and
3
Dividend Disbursing Agent and as Agent for the various shareholder
accounts, including, without limitation, the following: issuing,
transferring and cancelling certificates of shares of beneficial
interest, if any, maintaining all shareholder accounts, preparing
shareholder meeting lists, mailing proxies, receiving and tabulating
proxies, mailing shareholder reports and prospectuses, withholding
taxes on non-resident alien and foreign corporation accounts, for
pension and deferred income, backup withholding or other instances
agreed upon by the parties, preparing and mailing checks for
disbursement of income dividends and capital gains distributions,
preparing and filing U.S. Treasury Department Form 1099 for all
shareholders, preparing and mailing confirmation forms to
shareholders, principal distributor, and dealers with respect to all
purchases and redemptions of Trust shares and other transactions in
shareholder accounts for which confirmations are required, recording
reinvestments of dividends and distributions in Trust shares, and
cooperating with broker-dealers and financial intermediaries who
represent shareholders of Trust.
5. Limit of Authority
------------------
Unless otherwise expressly limited by the resolution of appointment or
by subsequent action by Trust, the appointment of IFTC as Transfer Agent
will be construed to cover the full amount of the shares of beneficial
interest for which IFTC is appointed as the same may, from time to time,
be constituted and any subsequent increases in such authorized amount.
In case of such increase Trust will file with IFTC:
A. If the appointment of IFTC was theretofore expressly limited, a
certified copy of a resolution of the Board of Trustees of Trust
increasing the authority of IFTC;
B. A certified copy of the amendment to the Declaration of Trust of
Trust authorizing the increase of stock;
C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of
the increased stock,
4
and an opinion of counsel that the order or consent of no other
governmental or regulatory authority is required;
D. Opinion of counsel for Trust stating:
(1) The status of the additional shares of stock of Trust under the
Securities Act of 1933, as amended, and any other applicable
federal or state statute; and
(2) That the additional shares are, or when issued will be, validly
issued, fully paid and non-assessable by Trust.
6. Compensation and Expenses.
-------------------------
A. In consideration for its services hereunder as Transfer Agent and
Dividend Disbursing Agent, Trust will pay to IFTC from time to time a
reasonable compensation for all services rendered as Agent, and also,
all its reasonable out-of-pocket expenses, charges, counsel fees, and
other disbursements (Compensation and Expenses) incurred in
connection with the agency. Such compensation is set forth in a
separate schedule to be agreed to by Trust and IFTC, a copy of which
is attached hereto and incorporated herein by reference. If Trust has
not paid such Compensation and Expenses to IFTC within a reasonable
time, IFTC may charge against any monies held under this Agreement
with respect to a separate series of shares of Trust. The amount of
any Compensation and/or Expenses for which it shall be entitled to
reimbursement under this Agreement with respect to that series.
B. Fund agrees to promptly reimburse IFTC for all reasonable out-of-
pocket expenses or advances incurred by IFTC in connection with the
performance of services under this Agreement, for postage (and first
class mail insurance in connection with mailing stock certificates),
envelopes, check forms, continuous forms, forms for reports and
statements, stationery, and other similar items, telephone and
telegraph charges incurred in answering inquiries from dealers or
shareholders, microfilm used each year to record the previous year's
transactions in shareholder accounts and computer tapes used for
permanent storage of records and cost of insertion of materials in
mailing
5
envelopes by outside firms. IFTC will provide to Trust no less
often than monthly a detailed accounting of all such expenses on
behalf of Trust.
7. Efficient Operation of IFTC System.
-----------------------------------
A. In connection with the performance of its services under this
Agreement, IFTC is responsible for such items as:
(1) The accuracy of all entries in IFTC's records reflecting orders
and instructions received by IFTC from dealers, shareholders,
Trust or its principal underwriter;
(2) The availability and the accuracy of shareholder lists,
shareholder account verifications, confirmations and other
shareholder account information to be produced from its records
or data;
(3) The accurate and timely issuance of dividend and distribution
checks in accordance with instructions received from Trust;
(4) The accuracy of redemption transactions and payments in
accordance with redemption instructions received from dealers,
shareholders or Trust;
(5) The deposit daily in Trust's appropriate special bank account or
accounts of all checks and payments received from dealers or
shareholders for investment in shares;
(6) The requiring of proper forms of instructions, signatures and
signature guarantees and any necessary documents supporting the
legality of transfers, redemptions and other shareholder account
transactions, all in conformance with IFTC's present procedures
with such changes as may be required or approved by Trust; and
(7) The maintenance of a current duplicate set of Trust's essential
records at a secure distant location, in form available and
usable forthwith in the event of any breakdown or disaster
disrupting its main operation.
8. Indemnification.
----------------
A. IFTC will not be responsible for, and Trust will hold harmless and
indemnify IFTC from and against any loss by or liability to Trust or
a third party,
6
including attorney's fees, in connection with any claim or suit
asserting any such liability arising out of or attributable to
actions taken or omitted by IFTC pursuant to this Agreement, unless
IFTC has acted negligently, in bad faith or with willful misconduct.
The matters covered by this indemnification include but are not
limited to those of Section 14 hereof. Trust will be responsible for,
and will have the right to conduct or control the defense of any
litigation asserting liability against which IFTC is indemnified
hereunder. IFTC will not be under any obligation to prosecute or
defend any action or suit in respect of the agency relationship
hereunder, which, in its opinion, may involve it in expense or
liability, unless Trust will, as often as requested, furnish IFTC
with reasonable, satisfactory security and indemnity against such
expense or liability.
B. IFTC will hold harmless and indemnify Trust from and against any loss
or liability arising out of IFTC's failure to comply with the terms
of this Agreement including any breach of any representation or
warranty of IFTC or arising out of IFTC's negligence, bad faith or
willful misconduct.
9. Certain Covenants of IFTC and Trust.
------------------------------------
A. All requisite steps will be taken by Trust from time to time when and
as necessary to register Trust's shares for sale in all states in
which Trust's shares shall at the time be offered for sale and
require registration. If at any time Trust will receive notice of any
stop order or other proceeding in any such state affecting such
registration or the sale of Trust's shares, or of any stop order or
other proceeding under the Federal securities laws affecting the sale
of Trust's shares, Trust will give prompt notice thereof to IFTC.
B. IFTC hereby agrees to perform such transfer agency functions as are
set forth in section 4.E. above and establish and maintain facilities
and procedures reasonably acceptable to Trust 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
7
devices, and to carry insurance as specified in Exhibit B which will
not be lowered without notice to Trust.
C. To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and Rules thereunder, IFTC agrees that all records
maintained by IFTC relating to the services to be performed by IFTC
under this Agreement are the property of Trust and will be preserved
and will be surrendered promptly to Trust on request.
D. IFTC agrees to furnish Trust semi-annual reports of its financial
condition, consisting of a balance sheet, earnings statement and any
other financial information reasonably requested by Trust. The annual
financial statements will be certified by IFTC's certified public
accountants.
E. IFTC represents and agrees that it will use its best efforts to keep
current on the trends of the investment company industry relating to
shareholder services and will use its best efforts to continue to
modernize and improve its system without additional cost to Fund.
F. IFTC will permit Trust and its authorized representatives to make
periodic inspections of its operations at reasonable times during
business hours.
10. Recapitalization or Readjustment.
---------------------------------
In case of any recapitalization, readjustment or other change in the
capital structure of Trust requiring a change in the form of share
certificates, IFTC will issue or register certificates in the new form
in exchange for, or in transfer of, the outstanding certificates in the
old form, upon receiving:
A. Written instructions from an officer of Trust;
B. Certified copy of the amendment to the Declaration of Trust or other
document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority required by law to the issuance of the shares in
the new form, and an opinion of counsel that the order or consent of
no other government or regulatory authority is required;
8
D. Specimens of the new certificates in the form approved by the Board
of Trustees of Trust, with a certificate of the Secretary of Trust as
to such approval;
E. Opinion of counsel for Trust stating:
(1) The status of the shares of beneficial interest of Trust in the
new form under the Securities Act of 1933, as amended and any
other applicable federal or state statute; and
(2) That the issued shares in the new form are, and all unissued
shares will be, when issued, validly issued, fully paid and non-
assessable by Trust.
11. Share Certificates.
------------------
Fund will furnish IFTC with a sufficient supply of blank certificates of
shares of beneficial interest and from time to time will renew such
supply upon the request of IFTC. Such certificates will be signed
manually or by facsimile signatures of the officers of Trust authorized
by law and by bylaws to sign share certificates, and if required, will
bear Trust's seal or facsimile thereof.
12. Death, Resignation or Removal of Signing Officer.
------------------------------------------------
Fund will file promptly with IFTC written notice of any change in the
officers authorized to sign share certificates, written instructions or
requests, together with two signature cards bearing the specimen
signature of each newly authorized officer. In case any officer of Trust
who has signed manually or whose facsimile signature has been affixed to
blank share certificates dies, resigns, or is removed prior to the
issuance of such certificates, IFTC may issue or register such share
certificates as the share certificates of Trust notwithstanding such
death, resignation, or removal, until specifically directed to the
contrary by Trust in writing. In the absence of such direction, Trust
will file promptly with IFTC such approval, adoption, or ratification as
may be required by law.
13. Future Amendments of Declaration of Trust and Bylaws.
----------------------------------------------------
Trust will promptly file with IFTC copies of all material amendments to
its Declaration of Trust or bylaws made after the date of this
Agreement.
9
14. Instructions, Opinion of Counsel and Signatures.
------------------------------------------------
At any time IFTC may apply to any person authorized by Trust to give
instructions to IFTC, and may, with the approval of Trust officer,
consult with legal counsel for Trust or its own legal counsel at the
expense of Trust, with respect to any matter arising in connection with
the agency and it will not be liable for any action taken or omitted by
it in good faith in reliance upon such instructions or upon the opinion
of such counsel. IFTC will be protected in acting upon any paper or
document reasonably believed by it to be genuine and to have been signed
by the proper person or persons and will not be held to have notice of
any change of authority of any person, until receipt of written notice
thereof from Trust. It will also be protected in recognizing share
certificates which it reasonably believes to bear the proper manual or
facsimile signatures of the officers of Trust, and the proper
countersignature of any former Transfer Agent or Registrar, or of a Co-
Transfer Agent or Co-Registrar.
15. Papers Subject to Approval of Counsel.
--------------------------------------
The acceptance by IFTC, of its appointment as Transfer Agent and
Dividend Disbursing Agent and all documents filed in connection with
such appointment and thereafter in connection with the agencies, will be
subject to the approval of legal counsel for IFTC (which approval will
be not unreasonably withheld).
16. Certification of Documents.
---------------------------
The required copy of the Declaration of Trust of Trust and copies of all
amendments thereto will be certified by the Secretary of State (or other
appropriate official) of the Commonwealth of Massachusetts, and if such
Declaration of Trust and amendments are required by law to be also filed
with a county, city or other officer of official body, a certificate of
such filing will appear on the certified copy submitted to IFTC. A copy
of the order of consent of each governmental or regulatory authority
required by law for the issuance of the shares will be certified by the
Secretary or Clerk of such governmental or regulatory authority, under
proper seal of such authority. The copy of the Bylaws and copies of all
amendments thereto, and
10
copies of resolutions of the Board of Trustees of Trust, will be
certified by the Secretary or an Assistant Secretary of Trust under
Trust's seal.
17. Records.
--------
IFTC will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained
pursuant to sub-paragraph (2)(iv) of paragraph (b) of Rule 31a-1, under
the Investment Company Act of 1940, if any.
18. Disposition of Books, Records and Cancelled Certificates.
---------------------------------------------------------
IFTC will send periodically to Trust, or to such other place as may be
designated by the Secretary or an Assistant Secretary of Trust, all
books, documents, and all records no longer deemed needed for current
purposes and share certificates which have been cancelled in transfer or
in exchange, upon the understanding that such books, documents, records,
and share certificates will not be destroyed by Trust without the
consent of IFTC (which consent will not be unreasonably withheld), but
will be safely stored for possible future reference.
19. Provisions Relating to IFTC as Transfer Agent.
---------------------------------------------
A. IFTC will make original issues of share certificates upon written
request of an officer of Trust and upon being furnished with a
certified copy of a resolution of the Board of Trustees authorizing
such original issue, an opinion of counsel as outlined in paragraphs
1.D. and G. of this Agreement, any documents required by paragraphs
5. or 10. of this Agreement, and necessary funds for the payment of
any original issue tax.
B. Before making any original issue of certificates Trust will furnish
IFTC with sufficient funds to pay all required taxes on the original
issue of shares of beneficial interest, if any. Trust will furnish
IFTC such evidence as may be required by IFTC to show the actual
value of the shares.
C. Shares of beneficial interest will be transferred and new
certificates issued in transfer, or shares of beneficial interest
accepted for redemption and funds remitted therefor, upon surrender
of the old certificates in form deemed by IFTC properly endorsed for
transfer or redemption accompanied by such
11
documents as IFTC may deem necessary to evidence the authority of the
person making the transfer or redemption, and bearing satisfactory
evidence of the payment of any applicable transfer taxes. IFTC
reserves the right to refuse to transfer or redeem shares until it is
satisfied that the endorsement or signature on the certificate or any
other document is valid and genuine, and for that purpose it may
require a guaranty of signature by a firm having membership in the
New York Stock Exchange, Midwest Stock Exchange, American Stock
Exchange, Pacific Coast Stock Exchange, or any other exchange
acceptable to IFTC or by a bank or trust company approved by it. IFTC
also reserves the right to refuse to transfer or redeem shares until
it is satisfied that the requested transfer or redemption is legally
authorized, and it will incur no liability for the refusal in good
faith to make transfers or redemptions which, in its judgment, are
improper or unauthorized. IFTC may, in effecting transfers or
redemptions, rely upon Simplification Acts or other statutes which
protect it and Trust in not requiring complete fiduciary
documentation. In cases in which IFTC is not directed or otherwise
required to maintain the consolidated records of shareholder's
accounts, IFTC will not be liable for any loss which may arise by
reason of not having such records, provided that such loss could
not have been prevented by the exercise of ordinary diligence. IFTC
will be under no duty to use a greater degree of diligence by reason
of not having such records.
D. When mail is used for delivery of share certificates IFTC will
forward share certificates in "negotiable" form by first class or
registered mail and share certificates in "negotiable" form by
registered mail, all such mail deliveries to be covered while in
transit to the addressee by insurance arranged for by IFTC.
E. IFTC will issue and mail subscription warrants, certificates
representing dividends, exchanges or split ups, or act as Conversion
Agent upon receiving written instructions from any officer of Trust
and such other documents as IFTC deems necessary.
12
F. IFTC will issue, transfer, and split up certificates and will issue
certificates of beneficial interest representing full shares upon
surrender of scrip certificates aggregating one full share or more
when presented to IFTC for that purpose upon receiving written
instructions from an officer of Trust and such other documents as
IFTC may deem necessary.
G. IFTC may issue new certificates in place of certificates represented
to have been lost, destroyed, stolen or otherwise wrongfully taken
upon receiving instructions from Trust and indemnity satisfactory to
IFTC and Trust, and may issue new certificates in exchange for, and
upon surrender of, mutilated certificates. Such instructions from
Trust will be in such form as will be approved by the Board of
Trustees of Trust and will be in accordance with the provisions of
law and the bylaws of Trust governing such matter.
H. IFTC will supply a shareholder's list to Trust for each shareholder
meeting upon receiving a request from an officer of Trust. It will
also supply lists at such other times as may be requested by an
officer of Trust.
I. Upon receipt of written instructions of an officer of Trust, IFTC
will address and mail notices to shareholders.
J. In case of any request or demand for the inspection of the
shareholder records of Trust or any other books in the possession of
IFTC, IFTC will endeavor to notify Trust promptly and endeavor to
secure instructions as to permitting or refusing such inspection.
IFTC reserves the right, however, to exhibit the shareholder records
or other books to any person in case it is advised by its counsel
that it may be held responsible for the failure to exhibit the
shareholder records or other books to such person.
20. Provisions Relating: to Dividend Disbursing Agency.
--------------------------------------------------
A. IFTC will, at the expense of Trust, provide a special form of check
containing the imprint of any device or other matter desired by
Trust. Said checks must, however, be of a form and size convenient
for use by IFTC.
B. If Trust desires to include additional printed matter, financial
statements, etc., with the dividend checks the same will be furnished
IFTC within a reasonable
13
time prior to the date of mailing of the dividend checks, at the
expense of Trust.
C. If Trust desires its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to IFTC
but the size and form of said envelopes will be subject to the
approval of IFTC. If stamped envelopes are used, they must be
furnished by Trust; or if postage stamps are to be affixed to the
envelopes, the stamps or the cash necessary for such stamps must be
furnished by Trust.
D. IFTC will maintain one or more deposit accounts as Agent for Trust,
into which the funds for payment of dividends, distributions,
redemptions or other disbursements provided for hereunder will be
deposited, and against which checks will be drawn.
E. IFTC is authorized and directed to stop payment of checks theretofore
issued hereunder, but not presented for payment, when the payees
thereof allege either that they have not received the checks or that
such checks have been mislaid, lost, stolen, destroyed or through no
fault of theirs, are otherwise beyond their control, and cannot be
produced by them for presentation and collection, and, to issue and
deliver duplicate checks in replacement thereof.
21. Assumption of Duties By Trust.
-----------------------------
Trust may assume certain duties and responsibilities of IFTC or those
usual and ordinary services of Transfer Agent and Dividend Disbursement
Agent as those terms are referred to in Section 4.E. of this Agreement
including but not limited to accepting shareholder instructions and
transmitting orders based on such instructions to IFTC, preparing and
mailing confirmations, obtaining certified TIN numbers, and disbursing
monies of the Fund. To the extent Trust assumes such duties and
responsibilities, IFTC shall be relieved from all responsibility and
liability therefor.
22. Termination of Agreement.
------------------------
A. This Agreement may be terminated by either party upon receipt of
ninety (90) days written notice from the other party.
B. Trust, in addition to any other rights and remedies, shall have the
right to
14
terminate this Agreement forthwith upon the occurrence at any time of
any of the following events:
(1) Any interruption or cessation of operations by IFTC or its
assigns which materially interferes with the business operation
of Trust;
(2) The bankruptcy of IFTC or its assigns or the appointment of a
receiver for IFTC or its assigns;
(3) Any merger, consolidation or sale of substantially all the assets
of IFTC or its assigns;
(4) The acquisition of a controlling interest in IFTC or its
assigns, by any broker, dealer, investment adviser or investment
company except as may presently exist; or
(5) Failure by IFTC or its assigns to perform its duties in
accordance with the Agreement, which failure materially adversely
affects the business operations of Trust and which failure
continues for thirty (30) days after receipt of written notice
from Trust.
C. In the event of termination, Trust will promptly pay IFTC all amounts
due to IFTC hereunder.
D. In the event of termination, IFTC will use its best effort to
transfer the books and records of Trust to the designated successor
transfer agent and to provide other information relating to its
service provided hereunder for a reasonable compensation therefore.
23. Assignment.
-----------
A. Neither this Agreement nor any rights or obligations hereunder may be
assigned by IFTC the written consent of Trust; provided, however, no
assignment will relieve IFTC of any of its obligations hereunder.
IFTC may, however, employ agents to assist it in performing its
duties hereunder.
B. This Agreement will inure to the benefit of and be binding upon the
parties and their respective successors and assigns.
24. Confidentiality.
----------------
A. IFTC agrees that, except as provided in the last sentence of Section
19.J
15
hereof, or as otherwise required by law, IFTC will keep confidential
all records of and information in its possession relating to Trust or
its shareholders or shareholder accounts and will not disclose the
same to any person except at the request or with the consent of
Trust.
B. Trust will keep confidential all financial statements and other
financial records (other than statements and records relating solely
to Trust's business dealings with IFTC) and all manuals, systems and
other technical information and data, not publicly disclosed,
relating to IFTC's operations and programs furnished to it by IFTC
pursuant to this Agreement and will not disclose the same to any
person except at the request or with the consent of IFTC.
C. Trust acknowledges that IFTC and DST Systems, Inc. (DST) have
proprietary rights in and to the computerized data processing
recordkeeping system used by IFTC to perform services hereunder
including, but not limited to the maintenance of shareholder accounts
and records, processing of related information and generation of
output (the MFS System), including, without limitation any changes or
modifications of the MFS System and any other IFTC or DST programs,
data bases, supporting documentation, or procedures ("collectively
IFTC Protected Information") which Trust's access to the MFS System
or computer hardware or software may permit Trust or its employees or
agents to become aware of or to access and that the IFTC Protected
Information constitutes confidential material and trade secrets of
IFTC. Trust agrees to maintain the confidentiality of the IFTC
Protected Information. Trust acknowledges that any unauthorized use,
misuse, disclosure or taking of IFTC Protected Information which is
confidential as provided by law, or which is a trade secret, residing
or existing internal or external to a computer, computer system or
computer network, or the knowing and unauthorized accessing or
causing to be accessed of any computer, computer system, or computer
network, may be subject to civil liabilities and criminal penalties
under applicable state law. Trust will advise all of its employees
and agents who have access to any IFTC Protected Information or to
any computer
16
equipment capable of accessing IFTC or DST hardware or software of
the foregoing. IFTC and DST are intended to be, and shall be, third
party beneficiaries of Trust's obligations and undertakings contained
in this Section.
25. Survival of Representations and Warranties.
------------------------------------------
A. All representations and warranties by either party herein contained
will survive the execution and delivery of this Agreement.
26. Miscellaneous.
-------------
A. This Agreement is executed and delivered in the State of Missouri and
shall be governed by the laws of said state.
B. All the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the respective
successor and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified, in any
manner except by a written agreement properly authorized and executed
by both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
F. If any part, term or provision of this Agreement is by the courts
held to be illegal, in conflict with any law or otherwise invalid,
the remaining portion or portions shall be considered severable and
not be affected, and the rights and obligations of the parties shall
be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
G. A copy of the Declaration of Trust of Trust is on file with the
Secretary of the Commonwealth of Massachusetts and notice is hereby
given that the Agreement has been executed on behalf of Fund by the
undersigned officer
17
of Trust in his/her capacity as an officer of Trust. The obligations
of this Agreement shall only be binding upon the assets and property
of Trust and shall not be binding upon any Trustee, officer or
shareholder of Trust individually.
18
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: /s/ X. Xxxxxxx
-----------------------------
Title: Executive Vice Pres.
--------------------------
ATTEST
/s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Assistant Secretary
THE XXXXXXXXXX FUNDS
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Title: Chairman
--------------------------
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx
Secretary
19
EXHIBIT A
TRANSFER AGENCY SERVICES AND SYSTEMS FEATURES
---------------------------------------------
FUNCTIONS
---------
A. Issuance of stock certificates
B. Recording of non-certificate shares
C. Purchase, redemptions, exchanges, transfers and legals
D. Changes of address, etc.
E. Daily balancing of fund
F. Dividend calculation and disbursement
G. Mailing of quarterly and annual reports
H. Filing of 1099/1042 information to shareholders and government
I. Provide NSAR information
J. Systematic withdrawal plans
K. Pre-authorized checks
L. Purchase reminders
M. Reconciliation of dividend and disbursement accounts
N. Provide research and correspondence to shareholder's inquiries
0. Daily communication of reports to funds
P. Provide listings, labels and other special reports
Q. Proxy issuance and tabulation
R. Annual statements of shareholders on microfilm
S. Blue-sky reports
T. Wire order processing
U. 12(b)(1) processing
20
