EX-99.B9
TRANSFER AGENCY AND SERVICE AGREEMENT
between
DODGE & XXX BALANCED FUND
and
BOSTON FINANCIAL DATA SERVICES, INC.
TABLE OF CONTENTS
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Page
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1. Terms of Appointment; Duties of Boston Financial......... 1
2. Agreements with Third Party Administrators for
Defined Contribution Plans................................ 4
3. Individual Retirement Accounts and 403(b) Plans........... 4
4. Fees and Expenses......................................... 4
5. Representations and Warranties of Boston Financial...... 5
6. Representations and Warranties of the Fund................ 6
7. Wire Transfer Operating Guidelines....................... 6
8. Data Access and Proprietary Information.................. 8
9. Indemnification.......................................... 10
10. Standard of Care......................................... 12
11. Covenants of the Fund and Boston Financial............... 12
12. Term and Termination of Agreement........................ 13
13. Assignment............................................... 13
14. Amendment................................................ 14
15. Massachusetts Law to Apply............................... 14
16. Disaster Recovery and Insurance Coverage................. 14
17. Force Majeure............................................ 14
18. Consequential Damages.................................... 15
19. Merger of Agreement...................................... 15
20. Limitations of Liability of the Trustees
or Shareholders.......................................... 15
21. Counterparts............................................. 15
22. Reproduction of Documents................................ 15
TRANSFER AGENCY AND SERVICE AGREEMENT
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AGREEMENT made as of the day of , 1997, by and
between DODGE & XXX BALANCED FUND, a California common law trust, having its
principal office and place of business at Xxx Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxxxxxxx Xxxxxxxxxx (the "Fund"), and BOSTON FINANCIAL DATA SERVICES, INC. a
Massachusetts corporation having its principal office and place of business at 0
Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Boston Financial").
WHEREAS, the Fund desires to appoint Boston Financial as its transfer agent,
dividend disbursing agent, custodian of certain retirement plans and agent in
connection with certain other activities, and Boston Financial desires to accept
such appointment;
WHEREAS, the Fund desires to appoint State Street Bank and Trust Company, a
Massachusetts trust company and an affiliate of Boston Financial ("State
Street"), a custodian of certain retirement plans;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. Terms of Appointment; Duties of Boston Financial
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1.1 Subject to the terms and conditions set forth in this Agreement, the Fund
hereby employs and appoints Boston Financial to act as, and Boston
Financial agrees to act as its transfer agent for the Fund's authorized
and issued shares of its beneficial interest, $ 1.00 par value,
("Shares"), dividend disbursing agent and agent in connection with any
accumulation, open-account or similar plans provided to the shareholders
of the Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information ("Prospectus") of the
Fund, including without limitation any periodic investment plan or
periodic withdrawal program and appoints State Street as custodian of
certain retirement plans.
1.2 Transfer Agent Services. Boston Financial agrees that it will perform the
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following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and Boston Financial, Boston Financial
shall:
(i) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof
to the Custodian of the Fund authorized pursuant to the
Declaration of Trust of the Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to
the Custodian;
(iv) In respect to the transactions in items (i), (ii) and (iii)
above, Boston Financial shall execute transactions directly with
broker-dealers authorized by the Fund;
(v) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and distributions
declared by the Fund;
(viii) Issue replacement certificates for those certificates alleged
to have been lost, stolen or destroyed upon receipt by Boston
Financial of indemnification satisfactory to Boston Financial
and protecting Boston Financial and the Fund, and Boston
Financial at its option, may issue replacement certificates in
place of mutilated stock certificates upon presentation thereof
and without such indemnity;
(ix) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing and
(x) Record the issuance of shares of the Fund and maintain pursuant
to Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") a record of the total number of
shares of the Fund which are authorized, based upon data
provided to it by the Fund, and issued and outstanding. Boston
Financial shall also provide the Fund on a regular basis with
the total number of Shares which are authorized and issued and
outstanding and shall have no obligation, when recording the
issuance of shares, to monitor the issuance of such Shares or
to take cognizance of any laws relating to the issue or sale of
such Shares, which functions shall be the sole responsibility of
the Fund.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), Boston Financial
shall: (i) perform the customary
services of a transfer agent, dividend disbursing agent and, as
relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment
plan or periodic withdrawal program), including but not limited to:
maintaining all Shareholder accounts, preparing Shareholder meeting
lists, mailing Shareholder proxies, Shareholder reports and
prospectuses to current Shareholders, withholding taxes on U.S.
resident and non-resident alien accounts, preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms required
with respect to dividends and distributions by federal authorities
for all Shareholders, preparing and mailing confirmation forms and
statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in
Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information and (ii)
provide a system which will enable the Fund to monitor the total
number of Shares sold in each State.
(c) In addition, the Fund shall (i) identify to Boston Financial in
writing those transactions and assets to be treated as exempt from
blue sky reporting for each State and (ii) verify the establishment
of transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The
responsibility of Boston Financial for the Fund's blue sky State
registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Fund and the
timely reporting of such transactions to the Fund as provided above.
(d) Boston Financial shall report abandoned property to the states as may
be agreed upon in writing between the Fund and Boston Financial.
(e) Procedures as to who shall provide certain of these services in
Section 1 may be established from time to time by agreement between
the Fund and Boston Financial per the attached service responsibility
schedule. Boston Financial may at times perform only a portion of
these services and the Fund or its agent may perform these services
on the Fund's behalf.
2. Agreements with Third Party Administrators for Defined Contribution Plans
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2.1 Boston Financial and the Fund agree that at the Fund's request Boston
Financial will enter into agreements with third party administrators for
defined contribution plans designated by the Fund, to serve as limited
agents of the Fund in the purchase and redemption of Shares of the Fund by
the employee benefit, profit-sharing and retirement
plans and arrangements described in Section 3(34) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or similar
plans and arrangements, whether or not subject to ERISA or qualified for
exemption from taxation under the Internal Revenue Code of 1986, as
amended, (the "Internal Revenue Code") the ("Plans"). The third party
administrators will perform administrative and record keeping services
for the Plans, which invest in the Fund. Except as expressly provided in
Section 9.2 of hereof, Boston Financial's duties and performance under
such agreements shall be determined by the terms thereof and not pursuant
to the terms of this Agreement.
2.2 Such agreements will be based either on a form of agreement provided by
the Fund or by Boston Financial and acceptable to the other party hereto.
Boston Financial reserves the right not to enter into or to terminate any
such agreement if such agreement or performance thereunder by the third
party administrator fails to meet industry standards or comply with
applicable law.
3. Individual Retirement Accounts and 403(b) Plans.
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Boston Financial shall provide certain materials and agreements that allow
Shareholders to establish custodial accounts under Sections 408 and
403(b) of the Internal Revenue Code that name State Street as custodian
("XXX and 403(b) Prototypes"). Boston Financial shall provide and
maintain XXX and 403(b) Prototypes in full compliance with the Internal
Revenue Code. The Fund shall not revise or modify the XXX and 403(b)
Prototypes without the written consent of Boston Financial.
4. Fees and Expenses
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4.1 For the performance by Boston Financial pursuant to this Agreement, the
Fund agrees to pay Boston Financial an annual maintenance fee for each
Shareholder account as set out in the initial fee schedule agreed upon by
the parties. Such fees and out-of-pocket expenses and advances identified
under Section 4.2 below may be changed from time to time subject to mutual
written agreement between the Fund and Boston Financial.
4.2 In addition to the fee paid under Section 4.1 above, the Fund agrees to
reimburse Boston Financial for out-of-pocket expenses, including but not
limited to confirmation production, postage, forms, telephone, microfilm,
microfiche, mailing and tabulating proxies, records storage, or advances
incurred by Boston Financial for the items set out in the fee schedule
attached hereto. In addition, any other expenses incurred by Boston
Financial at the request or with the consent of the Fund, will be
reimbursed by the Fund.
4.3 The Fund agrees to pay all fees and reimbursable expenses within ten days
following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to Boston Financial by the Fund at
least seven (7) days prior to the mailing date of such materials.
5. Representations and Warranties of Boston Financial
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Boston Financial represents and warrants to the Fund that:
5.1 It is a corporation duly organized and existing and in good standing under
the laws of The Commonwealth of Massachusetts.
5.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
5.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
5.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
5.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
5.6 It is duly registered as a transfer agent pursuant to Section 17A(c)(2) of
the Exchange Act.
5.7 It will comply with, and maintain such books and records as are required
of it by, the Internal Revenue Code, as amended, the Investment Company
Act of 1940, as amended (the "Investment Company Act"), and the Exchange
Act.
6. Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to Boston Financial that:
6.1 It is a business trust duly organized and existing and in good standing
under the laws of the State of California.
6.2 It is empowered under applicable laws and by its Declaration of Trust and
By-Laws to enter into and perform this Agreement.
6.3 All corporate proceedings required by said Declaration of Trust and By-
Laws have been taken to authorize it to enter into and perform this
Agreement.
6.4 It is an open-end and diversified management investment company registered
under the Investment Company Act of 1940, as amended.
6.5 A registration statement under the Securities Act of 1933, as amended is
currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made, with
respect to all Shares of the Fund being offered for sale.
7. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
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Code
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7.1 Boston Financial is authorized to promptly debit the appropriate Fund
account(s) upon the receipt of a payment order in compliance with the
selected security procedure (the "Security Procedure") chosen for funds
transfer and in the amount of money that Boston Financial has been
instructed to transfer. Boston Financial shall execute payment orders in
compliance with the Security Procedure and with the Fund instructions on
the execution date provided that such payment order is received by the
customary deadline for processing such a request, unless the payment order
specifies a later time. All payment orders and communications received
after this the customary deadline will be deemed to have been received the
next business day.
7.2 The Fund acknowledges that the Security Procedure it has designated on the
Fund Selection Form was selected by the Fund from security procedures
offered by Boston Financial. The Fund shall restrict access to
confidential information relating to the Security Procedure to authorized
persons as communicated to Boston Financial in writing. The Fund must
notify Boston Financial immediately if it has reason to believe
unauthorized persons may have obtained access to such information or of
any change in the Fund's authorized personnel. Boston Financial shall
verify the authenticity of all Fund instructions according to the Security
Procedure.
7.3 Boston Financial shall process all payment orders on the basis of the
account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the
account number, the account number shall take precedence and govern.
7.4 Boston Financial reserves the right to decline to process or delay the
processing of a
payment order which (a) is in excess of the collected balance in the
account to be charged at the time of Boston Financial's receipt of such
payment order; (b) if initiating such payment order would cause Boston
Financial, in Boston Financial's sole judgement, to exceed any volume,
aggregate dollar, network, time, credit or similar limits which are
applicable to Boston Financial; or (c) if Boston Financial, in good
faith, is unable to satisfy itself that the transaction has been properly
authorized.
7.5 Boston Financial shall use reasonable efforts to act on all authorized
requests to cancel or amend payment orders received in compliance with the
Security Procedure provided that such requests are received in a timely
manner affording Boston Financial reasonable opportunity to act.
However, Boston Financial assumes no liability if the request for
amendment or cancellation cannot be satisfied.
7.6 Boston Financial shall assume no responsibility for failure to detect any
erroneous payment order provided that Boston Financial complies with the
payment order instructions as received and Boston Financial complies with
the Security Procedure. The Security Procedure is established for the
purpose of authenticating payment orders only and not for the detection
of errors in payment orders.
7.7 Boston Financial shall assume no responsibility for lost interest with
respect to the refundable amount of any unauthorized payment order,
unless Boston Financial is notified of the unauthorized payment order
within sixty (60) days of notification by Boston Financial of the
acceptance of such payment order. In no event (including failure to
execute a payment order) shall Boston Financial be liable for special,
indirect or consequential damages, even if advised of the possibility of
such damages.
7.8 When the Fund initiates or receives Automated Clearing House credit and
debit entries pursuant to these guidelines and the rules of the National
Automated Clearing House Association and the New England Clearing House
Association, State Street will act as an Originating Depository Financial
Institution and/or Receiving Depository Financial Institution, as the case
may be, with respect to such entries. Credits given by State Street with
respect to an ACH credit entry are provisional until State Street receives
final settlement for such entry from the Federal Reserve Bank. If State
Street does not receive such final settlement, the Fund agrees that State
Street shall receive a refund of the amount credited to the Fund in
connection with such entry, and the party making payment to the Fund via
such entry shall not be deemed to have paid the amount of the entry.
7.9 Confirmation of Boston Financial's execution of payment orders shall
ordinarily be
provided within twenty four (24) hours notice of which may be delivered
through Boston Financial's proprietary information systems, or by
facsimile or call-back. The Fund must report any objections to the
execution of an order within thirty (30) days.
8. Data Access and Proprietary Information
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8.1 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by Boston Financial as part of the Fund's
ability to access certain Fund-related data ("Customer Data") maintained
by Boston Financial on data bases under the control and ownership of
Boston Financial or other third party ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to Boston Financial or
other third party. In no event shall Proprietary Information be deemed
Customer Data. The Fund agrees to treat all Proprietary Information as
proprietary to Boston Financial and further agrees that it shall not
divulge any Proprietary Information to any person or organization except
as may be provided hereunder. Without limiting the foregoing, the Fund
agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations as may be designated in
writing by Boston Financial and solely in accordance with Boston
Financial's applicable user documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose of
such information in accordance with Boston Financial's instructions;
(d) to refrain from causing or allowing the data acquired hereunder from
being retransmitted to any other computer facility or other location,
except with the prior written consent of Boston Financial, provided
however the Fund may store the information transmitted from Boston
Financial's databases on its computer systems and make available such
information to the Fund and its affiliates as necessary;
(e) that the Fund shall have access only to those authorized transactions
agreed upon by the parties and
(f) to honor all reasonable written requests made by Boston Financial to
protect at Boston Financial's expense the rights of Boston
Financial in Proprietary Information at common law, under federal
copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 8. The obligations of this Section shall
survive any earlier termination of this Agreement.
8.2 If the Fund notifies Boston Financial that any of the Data Access Services
do not operate in material compliance with the most recently issued user
documentation for such services, Boston Financial shall endeavor in a
timely manner to correct such failure. Organizations from which Boston
Financial may obtain certain data included in the Data Access Services are
solely responsible for the contents of such data and the Fund agrees to
make no claim against Boston Financial arising out of the contents of
such third-party data, including, but not limited to, the accuracy
thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. BOSTON FINANCIAL EXPRESSLY DISCLAIMS ALL WARRANTIES
EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
8.3 If the transactions available to the Fund include the ability to originate
electronic instructions to Boston Financial in order to (a) effect the transfer
or movement of cash or Shares or (b) transmit Shareholder information or other
information, then in such event Boston Financial shall be entitled to rely on
the validity and authenticity of such instruction without undertaking any
further inquiry as long as such instruction is undertaken in conformity with
security procedures established by Boston Financial from time to time.
9. Indemnification
---------------
9.1 Boston Financial shall not be responsible for, and the Fund shall
indemnify and hold Boston Financial harmless from and against, any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of Boston Financial, State Street or its agent or
subcontractors required to be taken pursuant to this Agreement,
provided that such actions are
taken in good faith and without negligence or willful misconduct;
(b) The Fund's lack of good faith, negligence or willful misconduct which
arise out of the breach of any representation or warranty of the Fund
hereunder;
(c) The reliance on or use by Boston Financial or its agents or
subcontractors of information, records, documents or services which
(i) are received by Boston Financial or its agents or subcontractors,
and (ii) have been prepared, maintained or performed by the Fund or
any other person or firm on behalf of the Fund including but not
limited to any previous transfer agent or registrar;
(d) The reliance on, or the carrying out by Boston Financial or its
agents or subcontractors of any authorized instructions or requests
of the Fund;
(e) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination
or ruling by any federal or any state agency with respect to the
offer or sale of such Shares provided however, that with respect to
state securities laws liability, Boston Financial complies with the
Fund's instructions under this Agreement as to the jurisdiction in
which the Shares may be sold; and
(f) The negotiations and processing of checks made payable to prospective
or existing Shareholders tendered to Boston Financial for the
purchase of Shares, such checks are commonly known as "third party
checks".
9.2 Except as expressly provided below, Boston Financial shall not be held to
the standard of care under Section 10 of this Agreement and shall not be
responsible for, and the Fund shall indemnify and hold Boston Financial
harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of,
attributable to or resulting from entering into agreements with third
party administrators for Plans as described in Section 2 of this Agreement
and from Boston Financial's actions or omissions thereunder, provided
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however, that the processing by Boston Financial of purchase and
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redemption transactions pursuant to the terms of such agreements shall
constitute services under Section 1.2 hereof, and the respective rights
and obligations of Boston Financial and the Fund to each other with
respect to such purchase and redemption transactions shall be governed by
the other terms of this Agreement, including Sections 9.1, 9.3, 9.4, 9.5
and 10, and not by this Section 9.2.
9.3 At any time Boston Financial may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by Boston
Financial under this Agreement, and Boston Financial and its agents or
subcontractors shall not be liable and shall be indemnified by the Fund
for any action taken or omitted by it in reliance upon such instructions
or upon the opinion of such counsel. Boston Financial, its agents and
subcontractors shall be protected and indemnified in acting upon any paper
or document , reasonably believed to be genuine and to have been signed by
the proper person or persons, or upon any instruction, information, data,
records or documents provided Boston Financial or its agents or
subcontractors by machine readable input, telex, CRT data entry or other
similar means authorized by the Fund, and shall not be held to have notice
of any change of authority of any person, until receipt of written notice
thereof from the Fund. Boston Financial, its agents and subcontractors
shall also be protected and indemnified in recognizing stock certificates
which are reasonably believed to bear the proper manual or facsimile
signatures of the officers of the Fund, and the proper countersignature of
any former transfer agent or former registrar, or of a co-transfer agent
or co-registrar.
9.4 The Fund shall not be responsible for, and Boston Financial shall
indemnify and hold the Fund harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any action, or failure or
omission to act by Boston Financial as a result of Boston Financial's
lack of good faith, negligence or willful misconduct.
9.5 In order that the indemnification provisions contained in this Section 9
shall apply, upon the assertion of a claim for which the indemnifying
party (the "Indemnitor") may be required to indemnify the indemnified
party (the "Indemnitee"), the Indemnitee shall promptly notify the
Indemnitor of such assertion, and shall keep the Indemnitor advised with
respect to all developments concerning such claim. The Indemnitor shall
have the option to participate with the Indemnitee in the defense of such
claim or to defend against said claim in its own name or in the name of
the Indemnitee. 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 the Indemnitee except with the Indemnitor's prior written
consent.
10. Standard of Care
----------------
Boston Financial shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to insure the accuracy of all
services performed under this
Agreement, but assumes no responsibility and shall not be liable for loss
or damage due to errors unless said errors are caused by its negligence,
bad faith, or willful misconduct or that of its employees or agents.
11. Covenants of the Fund and Boston Financial
------------------------------------------
11.1 The Fund shall promptly furnish to Boston Financial the following:
(a) (a) A certified copy of the resolution of the Board of Trustees of
the Fund authorizing the appointment of the Bank and the execution
and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto.
11.2 Boston Financial hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
11.3 Boston Financial shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To
the extent required by Section 31 of the Investment Company Act, and the
Rules thereunder, Boston Financial agrees that all such records prepared
or maintained by Boston Financial relating to the services to be performed
by Boston Financial hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such Section
and Rules, and will be surrendered promptly to the Fund on and in
accordance with its request.
11.4 Boston Financial and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are exchanged
or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
11.5 In case of any requests or demands for the inspection of the Shareholder
records of the Fund, Boston Financial will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. Boston Financial reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel
that it may be held liable for the failure to exhibit the Shareholder
records to such person.
12. Term and Termination of Agreement
---------------------------------
12.1 The initial term of this agreement shall begin as of the day and year
first written above and continue thereafter for three years (the "Initial
Term"). Following the Initial Term this Agreement shall continue until
terminated by either party as provided below.
12.2 After the expiration of the Initial Term this Agreement may be terminated
by either party upon ninety (90) days written notice to the other.
12.3 Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be
borne by the Fund. Additionally, (a) Boston Financial reserves the right
to charge for any other reasonable expenses associated with such
termination and (b) should the Fund terminate during the Initial Term for
any reason other than a material breach or material determination of
service of the Agreement by Boston Financial, the Fund shall pay a charge
as follows:
(i) For termination during year one of the Initial Term the average of
the last three months base fees and the conversion fee paid by the Fund;
(ii) For termination during year two of the Initial Term the average of
the last two months base fees and 66.66% of the conversion fee paid by the Fund;
and
(iii) For termination during year three of the Initial Term the average
of the last month base fees and 33.33% of the conversion paid by the Fund.
12.4 Reorganization of the Fund as a Delaware business trust shall not be
deemed a termination of the Agreement and upon such reorganization the parties
will enter into a new agreement under the same terms with the Fund as a Delaware
business trust.
13. Assignment
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13.1 Except as provided in Section 13.3 below, neither this Agreement nor any
rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
13.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
13.3 Boston Financial may, without further consent on the part of the Fund,
subcontract for the performance hereof with a Boston Financial subsidiary
or affiliate duly registered as a transfer agent pursuant to Section
17A(c)(2) of the Exchange Act; provided, however, that Boston Financial
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.
14. Amendment
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This Agreement may be amended or modified by a written agreement executed
by both parties and authorized or approved by a resolution of the Board of
Trustees of the Fund.
15. 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.
16. Disaster Recovery and Insurance Coverage
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16.1 In the event of equipment failures beyond Boston Financial's control,
Boston Financial shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. Boston Financial
shall enter into and maintain in effect with appropriate parties one or
more agreements making reasonable provisions for (a) periodic back-up of
the computer files and data with respect to the Fund and (b) emergency use
of electronic data processing equipment to provide services under this
Agreement.
16.2 Boston Financial shall maintain commercially reasonable amounts of (a)
comprehensive general liability insurance coverage and (b) errors and
omissions insurance coverage and notify the Fund in the event that such
insurance is canceled.
16.3 Boston Financial has a reasonable disaster recovery plan given the
services it provides hereunder.
17. Force Majeure
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In the event either party is unable to perform its obligations under the
terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other
causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to
perform or otherwise from such causes.
18. Consequential Damages
---------------------
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
19. Merger of Agreement
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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.
20. Limitations of Liability of the Trustees and Shareholders
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A copy of the Declaration of Trust of the Trust is on file with the
Secretary of The Commonwealth of Massachusetts, and notice is hereby given
that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument
are not binding upon any of the Trustees or Shareholders individually but
are binding only upon the assets and property of the Fund.
21. Counterparts
------------
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
22. Reproduction of Documents
-------------------------
This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties
hereto each agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not
such reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile or further reproduction shall likewise
be admissible in evidence.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
DODGE & XXX BALANCED FUND
BY:
---------------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY:
---------------------------------------
BOSTON FINANCIAL & FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
----------------- --------------
Boston Financial Fund
---------------------
1. Receives orders for the purchase X
of Shares.
2. Issue Shares and hold Shares in X
Shareholders accounts.
3. Receive redemption requests. X
4. Effect transactions 1-3 above X
directly with broker-dealers.
5. Pay over monies to redeeming X
Shareholders.
6. Effect transfers of Shares. X
7. Prepare and transmit dividends X
and distributions.
8. Issue Replacement Certificates. X
9. Reporting of abandoned property. X
10. Maintain records of account. X
11. Maintain and keep a current and X
accurate control book for each
issue of securities.
12. Mail proxies. X
13. Mail Shareholder reports and/ X
or provide address labels.
14. Mail prospectuses to current X
Shareholders.
Service Performed Responsibility
----------------- --------------
Boston Financial Fund
---------------------
15. Withhold taxes on U.S. resident X
and non-resident alien accounts.
16. Prepare and file U.S. Treasury X
Department forms and transmit
such forms to Shareholders.
17. Prepare and mail account and X
confirmation statements and
average cost statements for
Shareholders.
18. Provide Shareholder account X
information and services by
mail and telephone.
19. Blue sky reporting. X
* Such services are more fully described in Section 1.2 (a), (b),(c) and (d)
of the Agreement.
DODGE & XXX BALANCED FUND
BY:
----------------------------------------
BOSTON FINANCIAL DATA SERVICES, INC.
BY:
----------------------------------------
