EXHIBIT 9(a)
TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this _______ day of
____________, 1997, by and between Security Capital Employee REIT Fund
Incorporated (hereinafter referred to as the "Fund") and Firstar Trust Company,
a corporation organized under the laws of the State of Wisconsin (hereinafter
referred to as the "Agent").
WHEREAS, the Fund, is an open-ended management investment company which is
registered under the Investment Company Act of 1940; as amended (the "Investment
Company Act"); and
WHEREAS, the Agent is a trust company and, among other things, is in the
business of administering transfer and dividend disbursing agent functions for
the benefit of its customers;
NOW, THEREFORE, the Fund and the Agent do mutually promise and agree as
follows:
1. Terms of Appointment; Duties of the Agent
-----------------------------------------
Subject to the terms and conditions set forth in this Agreement, the Fund
hereby employs and appoints the Agent to act as transfer agent and dividend
disbursing agent for the Fund and Agent agrees to render such services and to be
compensated therefor as herein provided.
The Agent shall perform all of the customary services of a transfer agent
and 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:
A. Receive orders for the purchase of shares, with prompt delivery, where
appropriate, of payment and supporting documentation to the Fund's
custodian;
B. Process purchase orders and issue the appropriate number of certificated
or uncertificated shares with such uncertificated shares being held in
the appropriate shareholder account;
C. Process redemption requests received in good order and, where relevant,
deliver appropriate documentation to the Fund's custodian;
D. Pay monies upon receipt from the Fund's custodian, where relevant in
accordance with the instructions of redeeming shareholders;
E. Process transfers of shares in accordance with the shareowner's
instructions;
F. Process exchanges between funds within the same family of funds, if any;
G. Issue and/or cancel certificates as instructed; replace lost, stolen or
destroyed certificates upon receipt of satisfactory indemnification or
surety bond;
H. Prepare and transmit payments for dividends and distributions declared
by the Fund;
I. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and maintain, pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), Rule
17ad-10(e), a record of the total number of shares of the Fund that are
authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail, receive and
tabulate proxies;
L. Mail shareholder reports and prospectuses to current shareholders;
M. Prepare and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders;
N. Provide shareholder account information upon request and prepare and
mail confirmations and statements of account to shareholders for all
purchases, redemptions and other confirmable transactions as agreed upon
with the Fund; and
O. Provide a Blue Sky System which will enable the Fund to monitor the
total number of shares sold in each state.
2. Compensation
------------
The Fund agrees to pay the Agent for performance of the duties listed in
this Agreement; the fees set forth in Schedule A and reasonable out-of-
pocket expenses including but are not limited to the following: printing,
postage, forms, stationery, record retention, mailing, insertion,
programming, labels, shareholder lists and proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Fund and the Agent.
The Fund agrees to pay all fees and reimbursable expenses within thirty
(30) business days following the mailing of the billing notice.
3. Representations of Agent
------------------------
The Agent represents and warrants to the Fund that:
A. It is a trust company duly organized, existing and in good standing
under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act; Transfer Agent
shall provide a copy of the TA-1 Report to the Fund on an annual basis.
C. It is duly qualified to carry on its business in the state of Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to
enter and perform this Agreement;
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.; and
G. It will comply with all applicable requirements of the Securities Act of
1933 and the Exchange Act, the Investment Company Act, as amended (the
"Security Act") and any laws, rules, and regulations of governmental
authorities having jurisdiction.
4. Representations of the Fund
---------------------------
The Fund represents and warrants to the Agent that:
A. The Fund is an open-ended investment company under the Investment
Company Act;
B. The Fund is a corporation organized, existing, and in good standing
under the laws of the State of Maryland;
C. The Fund is empowered under applicable laws and by its by-laws to enter
into and perform this Agreement;
D. All necessary proceedings required by the Fund's Articles of
Incorporation have been taken to authorize it to enter into and perform
this Agreement;
E. The Fund will comply with all applicable requirements of the Securities
Act and the Exchange Act, the Investment Company Act and any laws, rules
and regulations of governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act is currently effective
and will remain effective with respect to all shares of the Fund being
offered for sale.
5. Covenants of Funds and Agent
----------------------------
The Fund shall furnish the Agent a certified copy of the resolution of the
Board of Directors of the Fund authorizing the appointment of the Agent and
the execution of this Agreement. The Fund shall provide to the Agent a copy
of the Fund's Articles of Incorporation, by-laws
of the Fund, and all amendments thereto.
6. Indemnification; Remedies Upon Breach
-------------------------------------
The Agent shall act in good faith and exercise reasonable care in the
performance of its duties under this Agreement. The Agent shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the Fund
in connection with matters to which this Agreement relates, including losses
resulting from mechanical breakdowns or the failure of communication or power
supplies beyond the Agent's control, except a loss resulting from the Agent's
refusal or failure to comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the performance of its duties
under this Agreement. Notwithstanding any other provision of this Agreement, the
Fund shall indemnify and hold harmless the Agent from and against any and all
claims, demands, losses, expenses, and liabilities (whether with or without
basis in fact or law) of any and every nature (including reasonable attorneys'
fees) which the Agent may sustain or incur or which may be asserted against the
Agent by any person arising out of any action taken or omitted to be taken by it
in performing the services hereunder (i) in accordance with the foregoing
standards, or (ii) in reliance upon any written or oral instruction provided to
the Agent by any duly authorized officer of the Fund, such duly authorized
officer to be included in a list of authorized officers furnished to the Agent
and as amended from time to time in writing by resolution of the Board of
Directors of the Fund.
Further, the Fund will indemnify and hold the Agent harmless against any
and all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action, or suit as
a result of the negligence of the Fund or the principal underwriter (unless
contributed to by the Agent's breach of this Agreement or other agreements
between the Fund and the Agent, or the Agent's own negligence or bad faith); or
as a result of the Agent acting upon telephone instructions relating to the
exchange or redemption of shares received by the Agent and reasonably believed
by the Agent under a standard of care customarily used in the industry to have
originated from the record owner of the subject shares; or as a result of acting
in reliance upon any genuine instrument or stock certificate signed,
countersigned, or executed by any person or persons authorized to sign,
countersign, or execute the same.
In the event of a mechanical breakdown or failure of communication or power
supplies beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such a
breakdown at the expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing equipment
to the extent appropriate equipment is available. Representatives of the Fund
shall be entitled to inspect the Agent's premises and operating capabilities at
any time during regular business hours of the Agent, upon reasonable notice to
the Agent.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is
understood that if in any case the Fund may be asked to indemnify or hold the
Agent harmless, the Fund shall be fully and promptly advised of all pertinent
facts concerning the situation in question, and it is further understood that
the Agent will use all reasonable care to notify the Fund promptly concerning
any situation which presents or appears likely to present the probability of
such a claim for indemnification against the Fund. The Fund shall have the
option to defend the Agent against any claim which may be the subject of this
indemnification. In the event that the Fund so elects, it will so notify the
Agent and thereupon the Fund shall take over complete defense of the claim, and
the Agent shall in such situation initiate no further legal or other expenses
for which it shall seek indemnification under this section. The Agent shall in
no case confess any claim or make any compromise in any case in which the Fund
will be asked to indemnify the Agent except with the Fund's prior written
consent.
The Agent shall indemnify and hold the Fund harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which may be incurred by or asserted against the Fund arising
out of any action taken or omitted to be taken by the Agent as a result of the
Agent's refusal or failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
7. Confidentiality
---------------
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Fund and its
shareholders and shall not disclose such records and information to any other
party, except after prior notification to and approval in writing by the Fund,
which approval shall not be unreasonably withheld and may not be withheld where
the Agent may be exposed to civil or criminal contempt proceedings for failure
to comply after being requested to divulge such information by duly constituted
authorities.
8. Additional Classes
------------------
The Fund is authorized to issue separate classes of shares representing
interests in separate investment portfolios. The parties intend that each
portfolio established by the Fund, be covered by the terms and conditions of
this Agreement.
9. Records
-------
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Fund but not inconsistent with the rules and regulations
of appropriate government authorities, in particular, Section 31 of The
Investment Company Act, and the rules thereunder. The Agent agrees that all
such records prepared or maintained by the Agent relating to the services to be
performed by the Agent hereunder are the property of the Fund and will be
preserved, maintained, and made available in accordance with such section and
rules of the Investment Company Act and will be promptly surrendered to the Fund
on and in accordance with its request.
10. Wisconsin Law to Apply
----------------------
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of
Wisconsin.
11. Amendment, Assignment, Termination and Notice
---------------------------------------------
A. This Agreement may be amended by the mutual written consent of the
parties.
B. This Agreement may be terminated upon sixty (60) day's written notice
given by one party to the other.
C. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of the
other party.
D. Any notice required to be given by the parties to each other under the
terms of this Agreement shall be in writing, addressed and delivered,
or mailed to the principal place of business of the other party. If to
the Agent, such notice should to be sent to Firstar Trust Company, 000
Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. If to the Funds, such
notice should be sent to Xxxxxx X. Xxxxxxx, Security Capital Employee
REIT Fund Incorporated, 00 Xxxxx Xx Xxxxx Xx., Xxxxxxx, Xxxxxxxx 00000.
E. In the event that the Fund gives to the Agent its written intention to
terminate and appoint a successor transfer agent, the Agent agrees to
cooperate in the transfer of its duties and responsibilities to the
successor, including any and all relevant books, records and other data
established or maintained by the Agent under this Agreement.
F. Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be
paid by the Fund.
Security Capital Employee REIT Firstar Trust Company
Fund Incorporated
By: By:
------------------------- ----------------------------
Vice President
Attest:
------------------------
Assistant Secretary
