EXHIBIT 9.2
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of the ___ day of _______, 1996,
by and between XXXXXXXX-XXXXXXXXX SERIES TRUST, a Delaware business trust,
having its principal office and place of business at 000 Xxxx Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (the "Trust"), and XXXXXXXX-XXXXXXXXX
SECURITIES, L.P., a California limited partnership having its principal office
and place of business at 000 Xxxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000 (the "Transfer Agent").
WHEREAS, the Trust is authorized to issue shares of beneficial interest of
various series, with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust intends to initially offer shares in six series (each
such series, together with all other series subsequently established by the
Trust and made subject to this Agreement in accordance with Section 9, being
herein referred to as a "Series", and collectively as the "Series");
WHEREAS, Xxxxxxxx-Xxxxxxxxx Capital Management, an affiliate of the
Transfer Agent, serves as investment adviser to the Trust;
WHEREAS, the Trust on behalf of the Series desires to appoint the Transfer
Agent as its transfer agent, and the Transfer Agent desires to accept such
appointment;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
Section 1. TERMS OF APPOINTMENT; DUTIES OF THE TRANSFER AGENT.
1.01 Subject to the terms and conditions set forth in this Agreement, the
Trust, on behalf of the Series, hereby employs and appoints the Transfer Agent
to act as, and the Transfer Agent agrees to act as, its transfer agent for the
authorized and issued shares of beneficial interest
of the Trust representing interests in each of the respective Series ("Shares").
1.02 The Transfer Agent agrees that it will perform the following
services:
(a) In accordance with procedures established from time to
time by agreement between the Trust on behalf of each of the Series, as
applicable and the Transfer Agent, the Transfer Agent shall:
(i) Receive for acceptance orders for the
purchase of Shares, and promptly deliver payment and
appropriate documentation thereof to the Custodian of the
Trust authorized pursuant to the Declaration of Trust of
the Trust (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) At the appropriate time as and when it
receives any 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;
(v) Effect transfers of Shares by the
registered owners thereof upon receipt of appropriate
instructions;
(vi) Prepare and transmit payments for
dividends and distributions declared by the Trust on
behalf of the applicable Series;
(vii) Maintain records of account for and
advise the Trust and its Shareholders as to the
foregoing; and
(viii) Record the issuance of Shares of the
Trust and maintain a record of the total
-2-
number of Shares which are issued and outstanding.
(b) In addition to and neither in lieu nor in contravention
of the services set forth in the above paragraph (a), the Transfer Agent shall
perform the customary services of a transfer agent, including but not limited
to: maintaining all Shareholder accounts, preparing Shareholder meeting lists,
mailing proxies, mailing Shareholder reports and prospectuses to current
Shareholders, preparing and filing any 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.
(c) Procedures as to who shall provide certain of these
services in this Article 1 may be established from time to time by agreement
between the Trust on behalf of each Series and the Transfer Agent. The Transfer
Agent may at times perform only a portion of these services and the Trust or its
agent may perform these services on the Trust's behalf.
(d) The Transfer Agent shall provide any additional services
on behalf of the Trust which may be agreed upon in writing between the Trust and
the Transfer Agent.
Section 2. FEES AND EXPENSES.
2.01 The Trust shall pay no compensation to the Transfer Agent for its
services hereunder.
2.02 The Trust agrees on behalf of each of the Series to promptly
reimburse the Transfer Agent for out-of-pocket expenses, including but not
limited to confirmation production, postage, forms, telephone, microfilm,
microfiche, tabulating proxies, records storage or advances incurred by the
Transfer Agent. In addition, any other expenses incurred by the Transfer Agent
at the request or with the consent of the Trust will be reimbursed by the Trust
on behalf of the applicable Series.
-3-
Section 3. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT. The
Transfer Agent represents and warrants to the Trust that:
3.01 It is a limited partnership duly organized and existing and in good
standing under the laws of the State of California.
3.02 It is duly qualified to carry on its business in the State of
California.
3.03 It is empowered under applicable laws and by its Agreement of Limited
Partnership to enter into and perform this Agreement.
3.04 All requisite partnership proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Section 4. REPRESENTATION AND WARRANTIES OF THE TRUST. The Trust
represents and warrants to the Transfer Agent that:
4.01 It is a Delaware business trust duly organized and existing and in
good standing under the laws of Delaware.
4.02 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
4.03 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.
4.04 It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of 1933,
as amended on behalf of each of the Series is currently effective and will
remain effective, and appropriate state securities law filings have been made
and
-4-
will continue to be made, with respect to all Shares of the Trust being
offered for sale.
Section 5. INDEMNIFICATION.
5.01 The Transfer Agent shall not be responsible for, and the Trust shall
on behalf of the applicable Series indemnify and hold the Transfer Agent
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 the Transfer Agent 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 Trust's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or warranty of
the Trust hereunder.
(c) The reliance on or use by the Transfer Agent of
information, records, documents or services which are received by the Transfer
Agent and have been prepared, maintained or performed by the Trust or any other
person or firm on behalf of the Trust.
(d) Subject to the provisions of Section 6, the reliance on,
or the carrying out by the Transfer Agent of any instructions or requests of the
Trust on behalf of the applicable Series.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such state or
in violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state.
5.02 At any time the Transfer Agent may apply to any officer of the Trust
for instructions, and may consult with reasonably qualified legal counsel with
respect to any matter arising in connection with the services to be performed by
the Transfer Agent under this Agreement, and the Transfer Agent shall not be
liable and shall be indemnified by the Trust on behalf of the applicable Series
-5-
for any action taken or omitted by it in reliance upon such instructions or upon
the opinion of such counsel. Subject to the provisions of Section 6, the
Transfer Agent shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Trust, 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 the Transfer Agent
or its agents or subcontractors by machine readable input, telex, CRT data entry
or other similar means authorized by the Trust, and shall not be held to have
notice of any change of authority of any person, until receipt of written notice
thereof from the Trust.
5.03 In order that the indemnification provisions contained in this
Section 5 shall apply, upon the assertion of a claim for which the Trust may be
required to indemnify the Transfer Agent, the Transfer Agent shall promptly
notify the Trust of such assertion, and shall keep the Trust advised with
respect to all developments concerning such claim. The Trust shall have the
option to participate with the Transfer Agent in the defense of such claim or to
defend against said claim in its own name or in the name of the Transfer Agent.
The Transfer Agent shall in no case confess any claim or make any compromise in
any case in which the Trust may be required to indemnify the Transfer Agent
except with the Trust's prior written consent.
Section 6. STANDARD OF CARE. The Transfer Agent 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.
Section 7. COVENANTS OF THE TRUST AND THE TRANSFER AGENT.
7.01 The Trust shall on behalf of each of the Series promptly furnish to
the Transfer Agent the following: a certified copy of the resolution of the
Trustees of the Trust authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and a copy of the Declaration of Trust
and By-Laws of the Trust and all amendments thereto.
-6-
7.02 The Transfer Agent 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 of 1940, as amended,
and the Rules thereunder, the Transfer Agent agrees that all such records
prepared or maintained by the Transfer Agent relating to the services to be
performed by the Transfer Agent hereunder are the property of the Trust and will
be preserved, maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Trust on and in accordance with
its request.
7.03 The Transfer Agent and the Trust 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.
7.04 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, the Transfer Agent will endeavor to notify the
Trust and to secure instructions from an authorized officer of the Trust as to
such inspection. The Transfer Agent 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.
Section 8. TERMINATION OF AGREEMENT.
8.01 This Agreement may be terminated by either party upon sixty (60) days
written notice to the other.
8.02 Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Trust on behalf of the applicable Series. Additionally, the Transfer Agent
reserves the right to charge for any other reasonable expenses associated with
such termination.
Section 9. ADDITION OF NEW SERIES. In the event that the Trust
establishes one or more series other than the Series with respect to which it
desires to appoint the Transfer Agent to act as Transfer Agent, it shall notify
the
-7-
Transfer Agent in writing. If the Transfer Agent is willing to accept such
appointment under this Agreement it will so notify the Trust in writing,
whereupon such series will be subject to the same provisions of this Agreement
as are the Series except to the extent that such provisions are modified with
respect to such series in writing between the Trust and the Transfer Agent.
Section 10. ASSIGNMENT. Neither this Agreement nor any rights or
obligations hereunder may be assigned by either party without the written
consent of the other party. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
Section 11. AMENDMENT. This Agreement may be amended or modified by a
written agreement executed by both parties and authorized or approved by a
resolution of the Trustees of the Trust.
Section 12. CALIFORNIA LAW TO APPLY. This Agreement shall be construed
and the provisions thereof interpreted under and in accordance with the laws of
the State of California (without regard to principles of conflicts of law).
Section 13. FORCE MAJEURE. 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.
Section 14. 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.
-8-
Section 15. NOTICES. Notices of any kind to be given to the Transfer
Agent by the Trust shall be in writing and shall be duly given if mailed,
delivered or communicated by answer back facsimile transmission to the Transfer
Agent at 000 Xxxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Facsimile:
(000) 000-0000, Attention: President, or at such other address or to such
individual as shall be so specified by the Transfer Agent. Notices by any kind
to be given to the Trust hereunder by the Transfer Agent shall be in writing and
will be duly given if mailed, delivered or so communicated to the Trust at 000
Xxxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Facsimile: (619) 687-
8000, Attention: President, or at such other address or to such individual as
shall be so specified by the Trust to the Transfer Agent.
Section 16. MERGER OF AGREEMENT. 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.
Section 17. LIMITATIONS OF LIABILITY OF THE TRUSTEES. The Transfer Agent
acknowledges that it has received a copy of the Declaration of Trust of the
Trust dated July 20, 1995. The Transfer Agent further acknowledges and agrees
that the obligations of the Trust under this Agreement are not binding on any
officers, trustees or shareholders of the Trust individually, but are only
binding upon the assets and properties of the Trust. Moreover, the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular Series shall be enforceable against the
assets and property of such Series only, and not against the assets of property
of any other Series.
Section 18. COUNTERPARTS. This Agreement may be executed by the parties
hereto on any number of
-9-
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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.
XXXXXXXX-XXXXXXXXX SERIES TRUST
BY:_______________________________
E. Xxxxx Xxxxx, Jr.
Title: Secretary
XXXXXXXX-XXXXXXXXX SECURITIES, L.P.
a California Limited Partnership
By: Xxxxxxxx-Xxxxxxxxx Capital Management
Holdings, Inc., its General Partner
BY:_______________________________
E. Xxxxx Xxxxx, Jr.
Title: Secretary
-10-
