1
EX-99.B 9(a)(i)
FORM OF
AGENCY AGREEMENT
This agreement is made and entered into as of this ___ day of
December, 1995 (the "Agreement"), by and between OVERLAND EXPRESS FUNDS, INC.,
a registered management investment company incorporated under the laws of the
State of Maryland (the "Company"), and Xxxxx Fargo Bank, N.A., a national
banking association ("Agent"), for transfer agency and dividend disbursing
services as follows:
I. SERVICES.
A. Appointment of Agent. The Company hereby appoints Agent
as its transfer and dividend disbursing agent for National Tax-Free
Institutional Money Market Fund (the "Fund") and Agent accepts such
appointment.
B. Description of Services. Agent agrees to provide each
Fund with the facilities and services described and set forth on Schedule A
attached hereto and incorporated herein by reference.
The fund invests all of its assets in the Tax-Free Money Market
Master Series (the "Master Series") of Master Investment Trust. Agent serves
as the investment adviser to the Master Series. Agent will not be entitled to
receive a fee for providing transfer and dividend disbursing services to the
Fund so long as Agent is entitled to receive advisory fees from the Master
Series.
II. EXPENSES. The Company, on behalf of the Fund, shall promptly
reimburse Agent for all reasonable out-of- pocket expenses incurred by Agent in
connection with the performance of services under this Agreement, including,
without limitation, the following:
A. Postage, including first class mail insurance in
connection with mailing share certificates, express delivery, etc.;
B. Envelopes, check forms, continuous forms, forms for
reports and statements, stationery and other similar supplies;
C. Fees and costs of outside legal counsel employed by Agent;
D. Banking services, fees, and costs for wire transfers,
deposit accounts, etc.;
E. Expenses of fidelity and liability insurance and bonding;
F. Fees and costs relating to the use, licensing, development
or implementation of data processing software used by or for the Company;
2
G. Data transmission expenses;
H. Costs and microfilm/microfiche; and
I. Costs for telephone lines and equipment.
III. TERM. This Agreement shall become effective as of the date first
above written and shall continue until terminated pursuant to its provisions.
IV. INSURANCE. Agent agrees to procure and maintain such fidelity
bond coverage as may be required by the Investment Company Act of 1940 (the
"1940 Act"), in the amounts and with such deductibles as are required by or
permitted under the 1940 Act, as it may be amended from time to time.
V. REGISTRATION AND COMPLIANCE.
A. Agent represents that it is registered as a transfer agent
with the Securities and Exchange Commission ("SEC") pursuant to Section 17A of
the Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations promulgated thereunder, and Agent agrees to maintain said
registration current and comply with all of the requirements of the Exchange
Act, rules and regulations during the term of this Agreement.
B. The Company represents that it is a management investment
company registered with the SEC in accordance with the 1940 Act and the rules
and regulations promulgated thereunder. The Company is authorized to offer and
sell Fund shares pursuant to the 1940 Act, the Securities Act of 1933, as
amended ("1933 Act"), and the rules and regulations promulgated thereunder.
The Company agrees promptly to advise Agent of any change in or limitation upon
its authority to carry on business as an investment company pursuant to the
1940 Act, the Exchange Act and the 1933 Act and the statutes, rules and
regulations of each and every jurisdiction to which it is subject.
VI. DOCUMENTATION. The Company and Agent shall each supply to the
other upon request such documentation as is required by them to carry out their
respective obligations under this Agreement including, but not limited to,
declaration of trust, bylaws, codes of ethics, registration statements,
permits, financial reports, third party audits, certificates of authority,
computer tapes and related items.
VII. PROPRIETARY INFORMATION. It is agreed that all records and
documents, excepting computer data processing programs and any related
documentation used or prepared by, or on behalf of Agent for the performance of
its services hereunder, are the property of the Company and shall be open to
audit or inspection by the Company or its agents during the normal business
hours of Agent, shall be maintained in a manner designed to preserve the
confidentiality thereof and to comply with applicable federal and state laws
and regulations, and shall, in whole or any specified part, be surrendered to
the Company or its duly authorized agents upon receipt by Agent of reasonable
notice of and request therefor.
2
3
VIII. INDEMNITY. The Company, on behalf of the Fund, shall indemnify
and hold Agent harmless against any losses, claims, damages, liabilities or
expenses (including reasonable attorney's fees and expenses) resulting from any
claim, demand, action or suit brought by any person other than the Company
(including a shareholder naming the Company or the Fund as a party) and not
resulting from Agent's bad faith, willful misfeasance, reckless disregard of
its obligations and duties, gross negligence or breach of this Agreement, and
arising out of, or in connection with:
A. Agent's performance hereunder;
B. Any error or omission in any record (including but not
limited to magnetic tapes, computer printouts, hard copies and microfilm or
microfiche copies) delivered, or caused to be delivered, by the Company to
Agent in connection with this Agreement;
C. Bad faith, willful misfeasance, reckless disregard of its
obligations and duties or negligence of the Company or Agent's acting upon any
instructions reasonably believed by it to have been properly executed or
communicated by any person duly authorized by the Company;
D. Agent's acting in reliance upon advice given by counsel
for Agent or upon advice reasonably believed by it to have been given by
counsel for the Company; or
E. Agent's acting in reliance upon any instrument reasonably
believed by it to have been genuine and signed, countersigned or executed by
the proper person(s) in accordance with the currently effective certificate(s)
of authority delivered to Agent by the Company.
In the event that Agent requests the Company to indemnify
or hold it harmless hereunder, agent shall use its best efforts to inform the
Company of the relevant facts concerning the matter in question. Agent shall
use reasonable care to identify and promptly notify the Company concerning any
matter which presents, or appears likely to present, a claim for
indemnification against the Company or the Fund.
The Company shall have the election of defending Agent
against any claim which may be the subject of indemnification hereunder. In the
event the Company so elects, it will so notify Agent and thereupon the Company
shall take over defense of the claim, and (if so requested by the Company)
Agent shall incur no further legal limit or other expenses related thereto for
which it would be entitled to indemnify hereunder; provided, however, that
nothing herein contained shall prevent Agent from retaining, at its own
expense, counsel to defend any claim. Except with the Company's prior consent,
Agent shall in no event confess any claim or make any compromise in any matter
in which the Company will be asked to indemnify or hold harmless hereunder.
3
4
IX. LIABILITY
A. Damages. Agent shall not be liable to the Company, or any
third party, for punitive, exemplary, indirect, special or consequential
damages (even if Agent has been advised of the possibility of such damages)
arising from its obligations and the services provided under this Agreement,
including but not limited to loss of profits, loss of use of the shareholder
accounting system, cost of capital and expenses of substitute facilities,
programs or services.
B. Force Majeure. Anything in this Agreement to the contrary
notwithstanding, Agent shall not be liable for delays or errors occurring by
reason of circumstances beyond its control, including but not limited to acts
or civil or military authority, national emergencies, work stoppage, fire,
flood, catastrophe, earthquake, acts of God, insurrection, war, riot, data
processing and communications downtime (where such downtime occurs for reasons
other than Agent's gross negligence or willful misconduct) or interruption of
power supply.
X. AMENDMENT. This Agreement and the Schedule attached hereto and
made a part hereof may be amended at any time, with or without shareholder
approval (except as otherwise required by law), in writing signed by each of
the parties hereto. Any change in the Company's registration statements or
other documents of compliance or in the forms relating to any plan, program or
service offered by its current prospectuses which would require a change in
Agent's obligations hereunder shall be subject to Agent's approval, which
approval shall not be unreasonably withheld.
XI. TERMINATION. This Agreement may be terminated by either party
without cause upon one hundred twenty (120) days prior written notice to the
other, and at any time for cause in the event that such cause remains
unremedied for more than thirty (30) days after receipt by the other party of
written specification of such cause.
In the event the Company designates a successor to any of Agent's
obligations hereunder, Agent shall, at the expense and pursuant to the
direction of the Company, transfer promptly to such successor all relevant
books, records and other data of the Company in the possession or under the
control of Agent.
XII. SEVERABILITY. If any clause or provision of this Agreement is
determined to be illegal, invalid or unenforceable under present or future laws
effective during the term hereof, then such clause or provision shall be
considered severed herefrom and the remainder of this Agreement shall continue
in full force and effect.
XIII. APPLICABLE LAW. This Agreement shall be subject to and construed
in accordance with the laws of the State of California.
XIV. ENTIRE AGREEMENT. Except as otherwise provided herein, this
Agreement constitutes the entire and complete agreement of the parties hereto
relating to the subject matter hereof and supersedes and merges all prior
contracts and discussions between the parties.
4
5
XV. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the
same Agreement and each of which shall be deemed an original.
XVI. MISCELLANEOUS. This Agreement has been executed on behalf of the
Company by the undersigned officer of the Company in his capacity as an officer
of the Company. The obligations of this Agreement shall only be binding upon
the assets and property of the Fund, as provided for in the Company's Articles
of Incorporation, and shall not be binding on any director, officer or
shareholder of the Company or the Fund individually.
OVERLAND EXPRESS FUNDS, INC. XXXXX FARGO BANK, N.A.
By: By:
---------------------- ----------------------
Name: Name:
-------------------- --------------------
Title: Title:
------------------- -------------------
By:
----------------------
Name:
--------------------
Title:
-------------------
5
6
SCHEDULE A
SCHEDULE OF SERVICES
1. Share Transfer and Dividend Disbursing Services
A. Maintaining shareholder accounts, including processing new
accounts.
B. Posting address changes and other file maintenance for
shareholder accounts.
C. Posting all transactions to the shareholder file, including:
- Direct purchase
- Wire order purchases
- Direct redemptions
- Telephone redemption
- Wire order redemption
- Direct exchanges
- Dividend payments
- Dividend reinvestments
- Telephone Exchanges
- Transfers
D. Insuring accuracy and deduction of fees.
E. Preparing daily reconciliations of shareholder processing to
money movement instructions.
F. Issuing all checks and stopping and replacing checks.
G. Performing certain of the Trust's other mailings, including:
- Dividend and capital gain distributions
- K-1/year-end shareholder reporting
- Furnish certified list of shareholders (hard copy of
microfilm)
H. Maintaining and retrieving all required past history for
shareholders and provide research capabilities as follows:
- Daily monitoring of all processing activity to verify
back-up documentation
- Providing exception reports
- Microfilming
- Storing, retrieving and archiving records in accordance
with Rules 31a-1, 31a-2, and 31a-3 under the 1940 Act.
I. Reporting and remitting as necessary for state escheat
requirements.
6
