AMENDED AND RESTATED
TRANSFER AGENT AGREEMENT
This Amended and Restated Transfer Agent Agreement made this 17th day of
May, 1995, to be effective as of January 1, 1995, by and between Xxxxxxxxx
Associates, Inc., a Texas corporation (the "Fund"), which is an open-end
investment company, and Portfolios, Inc., a Texas corporation (the "Transfer
Agent").
WITNESSETH THAT:
WHEREAS, pursuant to a previously executed Transfer Agent Agreement dated
effective January 1, 1995 (the "Original Agreement"), the Transfer Agent has
agreed to act as Transfer, Redemption and Dividend Disbursing Agent for the Fund
and the Transfer Agent also has agreed to act for the Fund in other respects as
stated in the Original Agreement; and
WHEREAS, the parties wish to enter into this Amended and Restated Transfer Agent
Agreement to set forth the understanding between the parties and supersede the
Original Agreement in all respects; and
WHEREAS, pursuant to a separate agreement the Fund has appointed a bank
acceptable to the Transfer Agent as primary Custodian of the securities, cash
and other assets of the Fund, hereinafter referred to as the Custodian Bank, and
may with the agreement of the Transfer Agent appoint one or more subcustodians;
NOW, THERFORE, in consideration of the promises and mutual covenants contained
herein, the Original Agreement is amended and restated to read in its entirety
as follows:
Section 1.
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The Fund hereby appoints the Transfer Agent as its Transfer, Registrar,
Redemption Agent and Dividend Disbursing Agent and the Transfer Agent accepts
such appointments and agrees to act in such capacities upon the terms set forth
in this Agreement.
The Transfer Agent agrees to comply with all relevant provisions of the
Investment Company Act Of 1940 (the "Act"), the Internal Revenue Code, other
applicable laws and all applicable rules and regulations thereunder.
The Fund shall furnish to the Transfer Agent a sufficient supply of blank Share
Certificates and from time to time will renew such supply upon the request of
the Transfer Agent. Such blank Share certificates shall be signed manually or by
facsimile signatures of officers of the Fund authorized by law or the by-laws of
the Fund to sign Share Certificates and, if required, shall bear the Fund's seal
or facsimile thereof.
Section 2.
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The Transfer Agent shall make original issues of Shares in accordance with
Sections 12 and 13 below and with the Fund's then currently effective Prospectus
upon being furnished with (I) a certified copy of a resolution or resolutions of
the Board of Directors of the Fund authorizing such issue and (ii) necessary
funds for the payment of any original issue tax applicable to such additional
Shares. If requested, a copy of the opinion of counsel as to the validity of
such additional Shares shall be furnished to the Transfer Agent upon the Fund's
filing of its Rule 24f-2 Notice under the Act with the Securities and Exchange
Commission.
Section 3.
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Transfers of Shares shall be registered and, subject to the provisions of
Section 9, new Share Certificates issued by the Transfer Agent upon surrender of
outstanding Share Certificates, if any, (I) in form deemed by the Transfer Agent
to be properly endorsed for transfer, (ii) with all necessary endorsers'
signatures guaranteed by a member firm of a national securities exchange, the
NASD, or a commercial bank, except when the requirement of a signature guarantee
is waived in accordance with the Fund's then current Prospectus or SAI or when
otherwise authorized by the Fund pursuant to Written Instructions (as defined in
Section 33 below), accompanied by (iii) such assurances as the Transfer Agent
shall deem necessary or appropriate to evidence the genuineness and
effectiveness of each necessary endorsement, and (iv) satisfactory evidence of
compliance with all applicable laws relating to the payment or collection of
taxes. The Transfer Agent shall retain all shareholder applications and shall
compare the signature(s) on written redemption requests with the signature on
the shareholder applications as may be necessary in the opinion of the Transfer
Agent, provided that the Transfer Agent shall be liable for any loss due to
forgery or improper signature of any kind resulting from the negligence of the
Transfer Agent in making or failing to make such comparison.
Section 4.
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When mail is used for delivery of Share Certificates the Transfer Agent shall
forward Share Certificates in "non-negotiable" form by first-class mail, and
Share Certificates in "negotiable" form by registered mail, return receipt
requested, all mail deliveries to be covered while in transit to the addressee
by insurance arranged for by the Transfer Agent.
Section 5.
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In registering transfers of Shares the Transfer Agent may rely upon the Uniform
Commercial Code or any other statutes which in the opinion of counsel protect
the Transfer Agent and the Fund in not requiring complete documentation (subject
to compliance with procedures set forth in the Fund's then current Prospectus
and/or (SAI), in registering transfer without inquiry into adverse claims, in
delaying registration for purposes of such inquiry, or in refusing registration
where in its judgment an adverse claim requires such refusal.
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Section 6.
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The Transfer Agent may issue new Share Certificates in place of Share
Certificates represented to have been lost, destroyed or stolen, upon receiving
indemnity satisfactory to the Transfer Agent and the Fund any may issue new
Share Certificates in exchange for, and upon surrender of, mutilated Share
Certificates.
Section 7.
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In case any officer of the Fund who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share Certificates shall
die, resign or be removed prior to the issuance of such Share Certificates, the
Transfer Agent may issue or register such Share Certificates as the Share
Certificates of the Fund notwithstanding such death, resignation or removal
until otherwise directed by the Fund; and the Fund shall file promptly with the
Transfer Agent such approval, adoption or ratification as may be required by
law.
Section 8.
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The Transfer Agent will maintain mutual fund account records in the usual form
in which, among other details, it will note the issuance, transfer and
redemption of Shares, whether certificated or not. Whenever a Shareholder
deposits Shares represented by Share Certificates in an account, the Transfer
Agent upon receipt of the Share Certificates registered in the name of the
Shareholder (or if not so registered, in proper form for transfer), shall cancel
such Share Certificates and make appropriate entries in its stock transfer
records. The Transfer Agent will keep account records, part of which shall be
the stock transfer records, in which it will note the names and registered
addresses of Shareholders and the number of Shares and fractions owned by them,
whether or not Share Certificates are outstanding.
Section 9.
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The Transfer Agent shall issue Share Certificates for Shares only upon receipt
of a written request from a Shareholder. In all other cases, the Transfer Agent
shall dispense with the issuance and countersignature of Share Certificates
whenever Shares are purchased. The Transfer Agent shall process purchase and
redemption transactions by making appropriate entries in the Fund's account
records.
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Section 10.
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The Transfer Agent shall, in addition to the duties and functions
above-mentioned, perform the usual duties and functions of a stock Transfer
Agent for a corporation. It shall countersign for issuance or re-issuance Share
Certificates representing original issue or reissued treasury Shares as directed
by the Written Instructions of the Fund and shall transfer Share Certificates
registered in the name of Shareholders from one Shareholder to another in the
usual manner. The Transfer Agent may rely conclusively and act without further
investigation upon any list, instruction, certification, authorization, Share
Certificate or other instrument or paper reasonably believed by it in good faith
to be genuine and unaltered, and to have been signed, countersigned, or executed
by duly authorized person or persons, or upon the instructions of any duly
authorized officer of the Fund, or upon the advice of counsel for the Fund or
for the Transfer Agent. The Transfer Agent may record any transfer of Share
Certificates which is reasonably believed by it in good faith to have been duly
authorized or may refuse to record any transfer of Share Certificates if in good
faith the Transfer Agent deems such refusal necessary to avoid any liability on
the part of either the Fund or the Transfer Agent; provided, however, that the
Transfer Agent shall promptly notify the Fund of any such refusal to record any
transfer and shall act in accordance with the Fund's Written Instructions, if
any. The Fund agrees to indemnify and hold harmless the Transfer Agent from and
against any and all losses, costs, claims, and liability which it may suffer or
incur by reason of so relying or acting or refusing to act.
Section 11.
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In case of any request or demand for the inspection of the share records of the
Fund, the Transfer Agent shall endeavor to notify the Fund and to secure
instructions as to permitting or refusing such inspection. However, the Transfer
Agent may (after giving written notice to the Fund) exhibit such records to any
person in any case where it is advised by its counsel that it may be held liable
for failure so to do, unless indemnified against such liability by the Fund.
ISSUANCE OF SHARES
Section 12.
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For the purposes of this Section, the Fund hereby instructs the Transfer Agent
to consider Shareholder payments as available for investment in accordance with
the policies and procedures set forth in the Fund's then current Prospectus and
SAI. Immediately after the time or times and on each day on which the Fund's
then Current Prospectus or SAI states that its net asset value per share shall
be determined, the Transfer Agent shall obtain from the Fund or its designated
agent a quotation of the net asset value per share
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determined as of such time on such day. The Transfer Agent reserves the right to
charge the Fund its reasonable costs of making corrections to shareholder
records if it is later determined that the Fund supplied an inaccurate net asset
value.
The Transfer Agent shall, on the same business day on which any order for the
purchase of Shares is received and utilizing the net asset value per share next
determined after the receipt of such order, determine the amount to be invested
and the number of Shares and fractional Shares (rounded to three decimal places)
to be purchased. The Transfer Agent shall thereupon as agent for the
Shareholders place a purchase order with the Fund for the proper number of
Shares and fractional Shares to be purchased and confirm such number to the Fund
in writing. The Transfer Agent shall total the amount available for investment
in Shares at the net asset value determined by the Fund or its designated agent
at each Fund pricing time.
The Transfer Agent shall pay over to the Custodian Bank the net asset value of
Shares and fractional Shares purchased immediately upon receipt of the
consideration therefor. In the event that any check or other order for the
payment of money is returned unpaid for any reason, the Transfer Agent shall
give prompt notification to the Fund of the non-payment of said check and take
such action as the Fund may authorize by Written Instructions.
Any profit on the liquidation of unpaid shares accrues to the Fund. In the event
of loss upon the liquidation of unpaid shares the Transfer Agent will charge the
purchaser's account for the amount of such loss. If the balance in such account
is insufficient to cover the loss the Transfer Agent will assist the Fund in the
Fund's efforts to recover any such losses from the purchaser.
Section 13.
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The Transfer Agent, in making the calculations provided for in Section 12, shall
rely on its record of available investment funds. The proper number of Shares
and fractional Shares shall then be issued daily and credited by the Transfer
Agent to the shareholder accounts. The Transfer Agent shall mail to each
Shareholder a confirmation of each purchase (if provided for under the
provisions of the Shareholder's account) no later than the next business day,
with copies to interested parties if requested.
Such confirmation shall among other details show the prior Share balance, the
new Share balance, the dollar value, the Shares for which stock Certificates are
outstanding (if any), the amount invested and the price paid for the
newly-purchased Shares.
The Transfer Agent shall provide the Fund with the total number of shares issued
by the Fund each day. In the case any issue of shares would result in over
issuance, the Transfer Agent shall notify the Fund.
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REDEMPTIONS
Section 14.
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The Transfer Agent shall process all requests from Shareholders to redeem Shares
and determine the number of Shares required to be redeemed to make monthly
payments, automatic payments or the like and advise the Fund, on the same
business day that the request for redemption was received, of the total number
of Shares and fractional Shares (rounded to three decimal places) to be
redeemed. Notwithstanding the foregoing, if a redemption request is for a dollar
value of Shares in excess of the dollar value of Shares in the specified account
or is not in accordance with the requirements of the Prospectus and/or SAI, the
Transfer Agent shall not effect such redemption in whole or in part, and shall
immediately advise both the Fund and the Shareholder of such discrepancy. The
Fund or its designated agent shall then quote to the Transfer Agent the
applicable net asset value; whereupon the Transfer Agent shall furnish the Fund
with an appropriate confirmation of the redemption and process the redemption,
at the net asset value per share next computed after receipt of the order for
redemption, by filing with the Custodian an appropriate statement and making the
proper distribution and application of the redemption proceeds in accordance
with the Fund's Prospectus or SAI. The stock registry books recording
outstanding Shares and the individual account of the Shareholder shall be
properly debited. If provided for under the provisions of the shareholder's
account, the Transfer Agent shall mail to each Shareholder a confirmation of
each redemption no later than the next business day, with copies to interested
persons if requested. Such confirmation shall among other details show the prior
Share balance, the new Share balance and total dollar value thereof, the Shares
for which stock certificates are outstanding (if any), the amount redeemed and
the price received for the redeemed Shares.
Section 15.
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The proceeds of redemption shall be remitted by the Transfer Agent, in each case
by draft or other instrument drawn against funds held by the Fund in the
Custodian Bank, in accordance with the Fund's then currently effective
Prospectus or SAI as follows:
a. By check drawn to the order of and mailed to the Shareholder at the
address of record not later than the fifth business day after the
redemption request is received.
b. To a person other than the Shareholder or to an address other than the
Shareholder's registered address only if instructions are received in
writing with signature guaranteed. Plan holders transferring to
another Plan are also required to provide the written acceptance of
the new custodian.
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c. By other procedures commonly followed by mutual funds and mutually
agreed upon by the Fund and the Transfer Agent.
Any change in the registered address will be accepted by the Transfer Agent only
if made in writing by the Shareholder, with signature guaranteed, unless a
different procedure is agreed to in writing by the Fund and the Transfer Agent.
If required by the Fund's then current Prospectus or SAI, the request and stock
certificates, if any, for Shares being redeemed, must have the owner's signature
guaranteed by a domestic commercial bank or trust company or a member firm of a
national securities exchange or the NASD. If Share Certificates have not been
issued to the redeeming Shareholder, the signature of the Shareholder on the
redemption request must be similarly guaranteed. If the Fund authorizes the
Transfer Agent by Written Instructions to waive the signature Guarantee in
certain instances, the Fund hereby provides the Transfer Agent, its successors
and assigns, the same protections the Transfer Agent would normally receive from
a signature guarantee requirement.
For the purposes of redemption of Shares which have been purchased by check
within 15 business days of a receipt of the redemption request for such shares,
the Fund shall provide the Transfer Agent, from time to time, with Written
Instructions concerning the time within which such requests may be honored. The
Transfer Agent has no responsibility to determine if any investment payment will
be reversed for any reason and is not responsible in any way for the failure of
any investment to be collected.
The authority of the Transfer Agent to perform its responsibilities under
Sections 14 and 15 shall be suspended upon the Transfer Agent's receipt of
notification of the suspension of the determination of the Fund's net asset
value.
DIVIDENDS
Section 16.
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Upon the declaration of each dividend and each capital gains distribution by the
Board of Directors of the Fund, the Fund shall notify the Transfer Agent by
Written Instructions of the date of such declaration, the amount payable per
share, the sources from which such dividend or distribution is made, and, unless
such dividend is a regular daily or monthly dividend payable by a money market
or other fund, the record date for determining the Shareholders entitled to
payment. The ex-date and payment date shall always be the next determination of
net asset value after the record date. The Transfer Agent shall withhold such
sums as may be required to be withheld under applicable income tax laws, rules
and regulations.
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Section 17.
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Upon the payment date of a dividend or distribution declared by the Fund's Board
of Directors, the Fund will cause the Custodian Bank to transfer to the
disbursement account maintained by the Custodian in the name of the Fund the
total amount of such dividends or distributions payable in cash to those
Shareholders electing to receive such dividends or distributions in cash. The
Transfer Agent shall prepare a check in the appropriate amount and mail it not
later than the fifth business day after the payment date to such Shareholder at
his address of record or to such other address as the Shareholder, may have
designated in writing.
With regard to Shareholders not electing to receive such dividends or
distributions in cash, the Transfer Agent will automatically reinvest all
dividends and other such distributions in additional shares at the net asset
value per share on payment date. When provided by the provisions of the
Shareholder's account, the Transfer Agent will promptly mail to each shareholder
at his address of record or such other address as the Shareholder may have
designated a statement showing the of full number and fractional shares (rounded
to three decimal places) currently owned by the Shareholder and the net asset
value of the shares so credited to the Shareholder's account.
The Transfer Agent's dividend statement will meet the applicable requirements of
the Act and Rule 19a-1 thereunder for notification as to the source(s) of
dividend payment(s). Where further notification detail is required, the Transfer
Agent shall prepare and distribute the information necessary as directed by the
Fund.
GENERAL PROVISIONS
Section 18.
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The Transfer Agent shall provide to the Fund's investors confirmations with each
transaction.
Section 19.
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The Transfer Agent shall report daily the sales and redemptions in each state in
a manner suitable for state "blue-sky" reporting by the Fund. The Transfer Agent
has no further responsibility as to controlling sales of Fund Shares or
maintaining the various registrations required under state "blue sky" laws and
regulations. If the Fund notifies the Transfer Agent, the Transfer Agent will
stop Shares from being sold in all states where the Fund's registration is not
current. Maintaining current registration information on-line is the
responsibility of the Fund.
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Section 20.
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The Transfer Agent shall maintain records (which may be part of the stock
transfer records) in connection with the issuance and redemption of Shares and
the administration of the Plans and dividend reinvestments, in which will be
noted the transactions effected for each Shareholder and the number of Shares
and fractional Shares (rounded to three decimal places) owned by each for which
no Share Certificates are outstanding. The Transfer Agent shall create and
maintain all necessary records in accordance with good custodial practice,
including, but not limited, to, records required by Section 31(a) of the Act and
Section 17(A) of the Securities and Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder. The Transfer Agent agrees to make
available upon request and to preserve for the periods prescribed in Section
31(a) under the Act and Section 17(A) of the Securities and Exchange Act of
1934, as amended, and the rules and regulations thereunder, any records relating
to services provided under this Agreement or maintained. by it on behalf of the
Fund. All such records shall be the property of the Fund.
The Transfer Agent shall also maintain the following records for each
Shareholder's account: name, address, and tax identification number; number of
Shares held and specific form of holding, including numbers and denominations of
certificates, if any; historical information regarding the account of each
Shareholder, including dividends paid, distributions made and date and price for
all transactions in a Shareholder's account; any stop or restraining order
placed against a Shareholder's account; any dividend reinvestment order,
dividend address and correspondence relating to the maintenance of a
Shareholder's account; all tax and withholding information relating to a
Shareholder's account; information with respect to withholding on foreign
accounts.
The Transfer Agent shall maintain records for all accounts opened by entities
assigned an institution number ("institution") so that where required the
aggregate average daily value of all of an institution's accounts can be
determined and a record of such values maintained, and so that duplicate
statements for the accounts can be prepared and sent to each institution.
The Transfer Agent represents and warrants that the various procedures and
systems which it has implemented with regard to safeguarding from loss and
damage attributable to fire, theft, or any other cause of the Fund's blank
checks, blank share certificates, records and other data and the Transfer
Agent's records, data, equipment, facilities, and other property used in the
performance of its obligations hereunder are adequate and that it will make such
changes therein from time to time as are reasonably required for the secure
performance of its obligations hereunder.
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Section 21.
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The Transfer Agent shall maintain such records as shall enable the Fund to
fulfill in a timely fashion the filing requirements of Form N-SAR or of any
successor monthly, quarterly or annual report required by the Act or rules and
regulations thereunder to be filed by the Fund. All such records shall be the
property of the Fund.
Section 22.
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The Transfer Agent shall cooperate with the Fund's independent public
accountants and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion,
including but not limited to the opinion included in the Fund's annual or
semi-annual reports on Form N-SAR, or of any successor annual report required by
the Act or rules thereunder to be filed by the Fund.
Section 23.
-----------
In addition to the services as Transfer Agent as above set forth, the Transfer
Agent will perform other services for the Fund as agreed from time to time,
including but not limited to, preparation of filing with the Internal Revenue
Service and mailing to Shareholders such Federal Tax Information Forms as are
required to be so prepared, filed and mailed by applicable laws, rules and
regulations, mailing periodic reports of the Fund, preparation of Shareholder
lists as necessary, and mailing initial notices of shareholder's meetings,
proxies and proxy statements.
The Transfer Agent shall answer telephone calls and correspondence from
Shareholders relating to their share accounts. The Transfer Agent shall respond
to all inquiries from Shareholders relating to the administration of their
accounts within one (1) business day with respect to answers delivered by
telephone and within three (3) business days with respect to answers delivered
in writing or in any lesser time period as may be required by applicable law.
Copies of all correspondence from Shareholders involving complaints about the
management of the Fund, the services provided by or for the Fund, the Transfer
Agent or others, or concerning complaints relating to the fund shall be sent
immediately to the Fund. Summaries of any similar matters conveyed by a
Shareholder by telephone shall be prepared by the Transfer Agent and sent to the
Fund within three(3) business days.
Telephone calls and correspondence on other matters will be referred to the
Fund.
The Transfer Agent shall keep records of Shareholder substantive telephone calls
and correspondence and replies thereto, and of the lapse of time between receipt
of such substantive telephone calls
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and correspondence and the making of replies.
Section 24.
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Nothing contained in this Agreement is intended to or shall require the Transfer
Agent in any capacity hereunder to perform any functions or duties on any day
identified in the Prospectus and/or SAI on which the Fund is closed. Functions
or duties normally scheduled to be performed on such days shall be performed on,
and as of, the next business day on which the Transfer Agent is open, except
when the Transfer Agent is closed to observe a legal emergency when the Fund is
open and the Fund has received purchases or redemption requests, such purchases
and redemptions shall be priced and executed "as of" such date on the business
day next following such day.
Section 25.
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The Fund agrees to pay the Transfer Agent compensation for its services and to
reimburse it for expenses, as set forth in Schedule A attached hereto, or as
shall be set forth in amendments to such Schedule approved by the Fund and the
Transfer Agent. All such payments and reimbursements shall be charged to and
paid by the Fund on a monthly basis.
Section 26.
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The Transfer Agent in acting in any other capacity set forth in this Agreement,
shall not be personally liable for any taxes, assessments, or governmental
charges which may be levied or assessed on any basis whatsoever in connection
with the administration of the Plans, excepting only for taxes assessed against
the Transfer Agent in its corporate capacity arising out of its compensation
hereunder.
Section 27.
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The Transfer Agent shall not be liable hereunder for any non-negligent action
taken in good faith and reasonably believed to be within the powers conferred
upon it by this Agreement. The Fund shall indemnify the Transfer Agent and hold
it harmless from any and against any and all actions, suits and claims, whether
groundless or otherwise, arising directly or indirectly out of or in connection
with its performance under this Agreement including but not limited to its
performance as Transfer Agent from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liabilities incurred by the
Transfer Agent in connection with any such action, suit, or claim, except such
as shall result from its own negligent act, omission or willful misconduct or
that of its officers, agents or employees. The Fund shall not be required to
indemnify the Transfer Agent against any expenses or liabilities arising out of
a default judgment, a confession of judgment or a settlement entered into
without the
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prior written consent of the Fund. The Transfer Agent shall not be under any
obligation to prosecute or to defend any action, suit or claim arising out of or
in connection with its performance under this Agreement as Transfer Agent which,
in the opinion of its counsel, may involve it in expense or liability. At its
option the Fund may and upon request of the Transfer Agent the Fund shall assume
the entire defense of any action, suit, or claim subject to the foregoing
indemnity. The Transfer Agent shall give the Fund notice, and reasonable
opportunity to defend, any such action, suit, or claim, in the name of the Fund
or the Transfer Agent or both. In the event the Fund assumes the defense, the
Transfer Agent shall be responsible for its own legal fees and expenses from the
date the Fund so assumes the defense, except for such fees and expenses incurred
at the request of the Fund. The Fund and the Transfer Agent shall cooperate
fully in the defense of any action, suit or claim.
The Transfer Agent at its expense will make corrections and adjustments as may
be required, where the Transfer Agent, its officers, agents, employees or
delegates are the cause of any error made in rendering the services described in
this agreement.
Without limitation of the foregoing:
a. The Transfer Agent may rely upon and shall not be liable to the Fund
for the advice of the Fund, counsel (who may be counsel for the Fund
or counsel for the Transfer Agent) and upon statements of accountants,
brokers and other persons believed by it in good faith to be expert in
the matters about which they are consulted and for any actions taken
in good faith upon such statements.
b. The Transfer Agent shall not be liable for any action reasonably taken
in good faith reliance upon any Written Instructions or certified copy
of any resolution of the Board of Directors of the Fund, provided,
however, that upon receipt of a Written Instruction countermanding a
prior Instruction which has been fully executed by the Transfer Agent,
the Transfer Agent shall attempt to honor to the extent then possible,
such later instructions and rely upon the genuineness of any such
document or correspondence reasonably believed in good faith to have
been validly executed.
c. The Transfer Agent may rely and shall be protected in acting upon any
signature, instruction, request, letter of transmittal, certificate,
opinion of counsel, statement, instrument, report, notice, consent,
order, or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the Shareholder, Fund
or other proper party or parties.
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Section 28.
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The Fund shall promptly cause to be turned over to the Transfer Agent (i) an
accurate list of Shareholders of the Fund showing the proper registered address
and number of Shares owned and whether such shares are represented by
outstanding Share Certificates or by non-certificated share accounts, (ii) all
records relating to Plans, including original applications signed by the
Planholders and original plan accounts recording payments, contributions,
deductions, reinvestments, withdrawals and liquidations, and (iii) all
shareholder records, files., and other materials necessary or appropriate for
proper performance of the functions assumed by the Transfer Agent under this
Agreement (hereinafter called "Materials"). The Fund agrees to indemnify and
hold the Transfer Agent, its successors and assigns, harmless of and from any
and all expenses, damages, claims, suits, liabilities, actions, demand and
losses of third parties arising out of or in connection with any error,
omission, inaccuracy or other deficiency of such Materials, or out of the
failure of the Fund to provide any portion of such Materials or to provide any
information needed by the Transfer Agent to perform knowledgeably its functions.
The Fund agrees to pay reasonable compensation to the Transfer Agent to cover
the Transfer Agent's expenses in correcting any such error, omission, inaccuracy
or other deficiency of the Materials.
Section 29.
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The Transfer Agent shall at all times act in good faith and shall use its best
efforts to ensure the accuracy of all services performed under this Agreement
and shall be liable for and shall indemnify and hold the Fund harmless from and
against any and all actions, suits and claims, whether groundless or otherwise,
and from and against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liabilities incurred by the Fund, in connection with any
such action, suit or claim arising directly or indirectly out of or in
connection with errors caused by the Transfer Agent's negligence, bad faith or
willful misconduct or that of its agents or employees The Transfer Agent shall
not be required to indemnify the Fund against any expenses or liabilities
arising out of a default judgment, a confession of judgment or a settlement
entered into without the prior written consent of the Transfer Agent. The Fund
shall not be under any obligation to prosecute or defend any action, suit or
claim arising directly or indirectly out of or in connection with errors caused
by the Transfer Agent's negligence, bad faith or willful misconduct or that of
its employees or agents which, in the opinion of its counsel, may involve it in
expense or liability. The Transfer Agent may at its option and, upon request of
the Fund and Transfer Agent shall, assume the entire defense of any action, suit
or claim subject to the foregoing indemnity. The Fund shall give the Transfer
Agent notice of, and reasonable opportunity to defend, any such action, suit or
claim in the name of the Fund or the Transfer Agent or both. In the event the
Transfer Agent assumes the
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defense, the Fund shall be responsible for its own legal fees and expenses from
the date the Fund so assumes the defense, except for such fees and expenses
which are incurred at the request of the Transfer Agent. The Transfer Agent and
the Fund agree to cooperate fully in the defense of any such action, suit or
claim.
Section 30.
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The Transfer Agent acknowledges and agrees that all books and records maintained
for the Fund in any capacity under this agreement are the property of the Fund
and may be inspected by the Fund at any reasonable time.
The Transfer Agent agrees to regard and preserve as confidential all records and
other information relative to the Fund, and will not without written authority
of the Fund disclose to others, during the term of this Agreement or thereafter,
any such records or other information, except as may be reasonably necessary to
enable the Transfer Agent to maintain any software by the Transfer Agent in the
performance of its duties hereunder, provided the Transfer Agent has obtained an
appropriate confidentiality agreement from the recipient thereof.
In the event of termination of this Agreement for any reason, the Transfer Agent
agrees to provide the Fund with complete and accurate records and to assist the
Fund in the orderly transfer of accounts and records. Without limiting the
generality of the foregoing, the Transfer Agent agrees upon termination of this
Agreement:
a. to deliver to the Fund computer disks containing the Fund's accounts
and records in machine readable form together with such record layouts
and additional information as may be necessary to enable the Fund to
utilize the information therein;
b. to cooperate with the Fund and any successor transfer agent in the
interpretation of the Fund's accounts and records; and
c. to reimburse the Fund its reasonable costs arising out of any error,
omission, inaccuracy or other deficiency in the Fund's accounts and
records which occurred during the term of this Agreement which arise
from the negligence or other error of the Transfer Agent as long as
claim for such reimbursement is made within 90.days of termination.
Section 31.
-----------
The practices and procedures of the Transfer Agent and the Fund set forth in the
Agreement, or any other terms or conditions of this Agreement, may be altered or
modified from time to time as may be mutually agreed by the parties to this
Agreement. In special cases the parties hereto may adopt in writing such
procedures as may be
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appropriate or practical under the circumstances, and the Transfer Agent may
conclusively rely on the determination of the Fund that any special procedure
which has been approved by the Fund does not conflict with or violate any
requirements of its Articles of Incorporation, By-Laws or Prospectus, or any
rule, regulation or requirement of any regulatory body.
Section 32.
-----------
The Fund shall file with the Transfer Agent a certified copy of each resolution
of its Board of Directors authorizing the execution of Written Instructions or
the transmittal of Oral Instructions, as provided in the Custodian Agreement.
The following additional terms, for purposes of this Agreement or any amendment
or supplement thereto, shall have the meanings herein specified unless the
context otherwise requires:
Plan: The term Plan shall include such investment plan, dividends or capital
gains reinvestment plans, systematic withdrawal plans or other types of
plans set forth in the then currently effective prospectus of the Fund,
including any qualified retirement plan which is a Shareholder of the
Fund, in form acceptable to the Transfer Agent, which the Fund may from
time to time adopt and make available to its Shareholders, including plans
or accounts by individuals or corporations. All Planholders are
Shareholders, who use a specific plan or service not used by all
Shareholders as a whole.
Administrator: The term Administrator of a Plan means the Transfer Agent solely
in its capacity as agent for the performance of those retirement plan
tasks which can be performed on a group or mass basis by the Transfer
Agent's systems. It does not include certain corporate retirement plan
tasks that are often performed on an individual basis, such as preparing
Summary Plan Descriptions and/or preparing IRS Form 5500.
Section 33.
-----------
This Agreement may be amended from time to time by a supplemental agreement
executed by the Fund and the Transfer Agent.
Section 34.
-----------
Either the Fund or the Transfer Agent may give 60 days, written notice to the
other of the termination of this Agreement, such termination to take effect at
the time specified in the notice; provided, however, the obligations set forth
in Sections 27, 29, 30, 36, and 37 and, for the fiscal year of the Fund in which
termination occurs, Sections 21 and 22, shall survive such termination, unless
satisfied.
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Section 35.
-----------
Any notice or other communication required by or permitted to be given in
connection with this Agreement shall be in writing, and shall be delivered in
person or sent by first class mail, postage prepaid, to the respective parties
as follows:
If to the Fund:
Xxxxxxxxx Associates, Inc.
Attn: Secretary
000 Xxxxx Xx. Xxxx
Xxxxx 0000, XX 00
Xxxxxx, Xxxxx 00000
If to the Transfer Agent:
Portfolios, Inc.
000 Xxxxx Xx. Xxxx
Xxxxx 0000, XX 00
Xxxxxx, Xxxxx 00000
Section 36.
-----------
The Transfer Agent and the Fund each represent and warrant to the other as to
itself that all actions required by their respective directors or shareholders
has been taken to authorize the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby; the execution and delivery
of this Agreement and consummation of the transactions contemplated hereby do
not contravene any provision of their respective charter or by-laws or of any
laws, regulations or orders or any government or agency thereof to which it is
subject; do not constitute the violation or breach of any agreement or
understanding to which it is a party or by which it is bound; and upon its
execution and delivery, this Agreement shall be binding and enforceable against
it in accordance with its terms.
Section 37.
-----------
The Transfer Agent may from time to time, with the written consent of the Fund,
delegate some or all of its duties hereunder to others, who shall perform such
functions as the agent of the Transfer Agent. To the extent of such delegation,
the term "the Transfer Agent' in this Agreement shall be deemed to refer to both
the Transfer Agent and to its designee or to either of them, as the context may
indicate. In each provision of this Agreement fixing or limiting the liabilities
or the delegations of the Transfer Agent, or Providing for the liability
indemnification or protection of the Transfer Agent, the term "the Transfer
Agent" shall include the Transfer Agent's designee. The Transfer Agent shall not
be relieved of any liabilities or obligation under the Agreement in connection
with such delegation of duties, shall be responsible to
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supervise and assure that any such designee properly performs the duties
delegated to it, and shall be responsible for the performance of the designee as
though the Transfer Agent had, itself, performed the duties so delegated.
Section 38.
-----------
This Agreement may be executed in two or more counterparts, each of which when
so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 39.
-----------
This Agreement shall extend to and shall be binding upon the parties hereto and
their respective successors and assigns; provided, however, that this Agreement
shall not be assignable by the Fund without the written consent of the Transfer
Agent or by the Transfer Agent without the written consent of the Fund,
authorized or approved by a resolution of its Board of Directors.
Section 40.
-----------
This Agreement constitutes the full and complete agreement of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements or
understandings between the parties.
Section 41.
-----------
Whenever pronouns are used herein, they shall be interpreted in the neuter,
masculine, feminine, singular or plural as the context may require.
Section 42.
-----------
Except where specific time limits are herein provided, no delay on the part of
any party hereto in exercising any power or right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any power or right
hereunder preclude other or further exercise thereof or the exercise of any
8ther power or right. No waiver shall be enforceable against any party hereto
unless in writing, signed by the party against whom such waiver is claimed, and
shall be limited solely to the one event.
Section 43.
-----------
This Agreement shall be governed by, and construed in accordance with, the
internal laws of the State of Texas, without giving effect to the principles of
conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by their respective duly authorized officers.
XXXXXXXXX ASSOCIATES, INC,
By /s/ Xxxxxxx X. Xxxx
---------------------------
PORTFOLIOS, INC.
By /s/ X.X. Xxxxxx
---------------------------
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Schedule A - FEE SCHEDULE
Attached to and part of Transfer Agent Agreement
Dated May 17, 1995, Effective January 1, 1995
Transfer Agent, Dividend Disbursing Agent,
Shareholder Accounting Agent
Fees and Expenses
-----------------
A. Basic Fee: $1,000 per month for the first 12 months, $700 per month
thereafter. Fees can be amended by mutual consent of the Fund, as
evidenced by resolution of its Board, and the Transfer Agent.
B. Expenses: The basic fee excludes all out of pocket costs, including,
without limitations: costs of forms, statements, envelopes, postage,
shipping, telephone, insurance, legal fees, statement microfiche
copies. These costs are billed separately.
Basic Services:
---------------
Opening new accounts.
Processing all payments.
Issuing and canceling certificates.
Processing partial and complete redemptions.
Regular and legal transfers of accounts.
Mailing shareholder reports.
Processing dividends and distributions, including withholding obligations.
Confirmation of all transactions as provided by the terms of each shareholder's
account.
Retirement account reporting.
Account Maintenance:
--------------------
Maintaining shareholder records of certificates and whole and fractional
unissued shares.
Changing shareholders' addresses.
Daily reports on numbers of shares, accounts.
Addressing and tabulating annual proxy cards.
Supplying shareholder lists as necessary.
Preparation of shareholder Federal Tax Information Forms.
Replying to shareholder telephone calls and correspondence other than that for
Fund performance, Fund information, or Fund-related inquiries.
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