SERVICING AGREEMENT
This Agency Agreement, originally entered into January 1, 1998, by and
between Xxxxxxx Shareholder Services, Inc., a Delaware corporation having its
principal place of business in Bethesda, Maryland ("CSS"), and registered
investment companies sponsored by Xxxxxxx Group, Ltd. and its subsidiaries and
set forth on Schedule A ("Xxxxxxx Group Funds" or "Funds") and amended and
restated __________________, 2000 to add Xxxxxxx Impact Fund, Inc. as a party.
The Funds have entered into a transfer agency and service agreement with the
State Street Bank and Trust of Boston, Massachusetts ("State Street") ("State
Street Agreement").
1. Appointments. The Funds hereby appoints CSS as servicing agent,
agent and shareholder servicing agent for the Funds, and CSS hereby accepts such
appointment and agrees to perform those duties in accordance with the terms and
conditions set forth in this Agreement.
2. Documentation. The Funds will furnish CSS with all documents,
certificates, contracts, forms, and opinions which CSS, in its discretion, deems
necessary or appropriate in connection with the proper performance of its duties
under this Agreement.
3. Services to be Performed. CSS will be responsible for telephone
servicing functions, system interface with State Street and oversight of State
Street's administering and performing their duties pursuant to the State Street
Agreement. The details of the operating standards and procedures to be followed
will be determined from time to time by agreement between CSS and the Funds.
4. Recordkeeping and Other Information. CSS will, commencing on the
effective date of this Agreement, to the extent necessary create and maintain
all necessary shareholder accounting records in accordance with all applicable
laws, rules and regulations, including but not limited to records required by
Section 31(a) of the Investment Company Act of 1940, as amended (the "1940
Act"), and the rules thereunder, as amended from time to time. All such records
will be the property of the Fund and will be available for inspection and use by
such Fund.
5. Audit, Inspection and Visitation. CSS will make available during
regular business hours all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by the SEC, a
Fund or any person retained by a Fund.
6. Compensation. The Funds will compensate CSS on a monthly basis for
the services performed pursuant to this Agreement, at the rate of compensation
set forth in Schedule A. Out of pocket expenses incurred by CSS and not
included in Schedule A will be reimbursed to CSS by the Fund, as appropriate;
such expenses may include, but are not limited to, special forms and postage for
mailing the forms. These charges will be payable in full upon receipt of a
billing invoice. In lieu of reimbursing CSS for these expenses, any Fund may,
in its discretion, directly pay the expenses.
7. Use of Names. No Fund will not use the name of CSS in any
prospectus, sales literature or other material relating to the Fund in any
manner without prior approval by CSS; provided, however, that CSS will approve
all uses of its name that merely refer in accurate terms to its appointment
under this Agreement or that are required by the SEC or a State Securities
Commission; and, provided, further, that in no event will approval be
unreasonably withheld.
8. Security. CSS represents and warrants that, to the best of its
knowledge, the various procedures and systems that CSS proposes to implement
with regard to safeguarding from loss or damage attributable to fire, theft or
any other cause (including provision for twenty-four hour a day restricted
access) the Fund's, records and other data and CSS's records, data, equipment,
facilities and other property used in the performance of its obligations under
this Agreement are adequate and that it will implement them in the manner
proposed and make such changes from time to time as in its judgment are required
for the secure performance of obligations under this Agreement.
9. Limitation of Liability. Each Fund will indemnify and hold CSS
harmless against any losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any claim, demand, action
or suit brought by any person (including a shareholder naming such Fund as a
party) other than such Fund not resulting from CSS's bad faith, willful
misfeasance, reckless disregard of its obligations and duties, or negligence
arising out of, or in connection with, CSS's performance of its obligations
under this Agreement.
To the extent CSS has not acted with bad faith, willful misfeasance,
reckless disregard of its obligations and duties, or gross negligence, each Fund
will also indemnify and hold CSS harmless against any losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand, action or suit resulting from the negligence
of such Fund, or CSS's acting upon any instructions reasonably believed by it to
have been executed or communicated by any person duly authorized by such Fund,
or as a result of CSS's acting in reliance upon advice reasonably believed by
CSS to have been given by counsel for the Fund, or as a result of CSS's acting
in reliance upon any instrument reasonably believed by it to have been genuine
and signed, countersigned or executed by the proper person.
CSS's liability for any and all claims of any kind, including negligence,
for any loss or damage arising out of, connected with, or resulting from this
Agreement, or from the performance or breach thereof, or from the design,
development, lease, repair, maintenance, operation or use of data processing
systems and the maintenance of a Funds' shareholder account records as provided
for by this Agreement will in the aggregate not exceed the total of CSS's
compensation hereunder for the six months immediately preceding the discovery of
the circumstances giving rise to such liability.
In no event will CSS be liable for indirect, special, or consequential
damages (even if CSS has been advised of the possibility of such damages)
arising from the obligations assumed hereunder and the services provided for by
this Agreement, including but not limited to lost profits, loss of use of the
shareholder accounting system, cost of capital, cost of substitute facilities,
programs or services, downtime costs, or claims of shareholders for such damage.
10. Limitation of Liability of the Fund. CSS acknowledges that it
accepts the limitations upon the liability of the Funds. CSS agrees that each
Fund's obligations under this Agreement in any case will be limited to such Fund
and to its assets and that CSS will not seek satisfaction of any obligation from
the shareholders of the Fund nor from any director, trustee, officer, employee
or agent of such Fund.
11. Force Majeure. CSS will not be liable for delays or errors
occurring by reason of circumstances beyond its control, including but not
limited to acts of civil or military authority, national emergencies, work
stoppages, fire, flood, catastrophe, acts of God, insurrection, war, riot, or
failure of communication or power supply. In the event of equipment breakdowns
beyond its control, CSS will take reasonable steps to minimize service
interruptions but will have no liability with respect thereto.
12. Amendments. CSS and each Fund will regularly consult with each
other regarding CSS's performance of its obligations under this Agreement. Any
change in a Fund's registration statements under the Securities Act of 1933, as
amended, or the 1940 Act or in the forms relating to any plan, program or
service offered by the current prospectus which would require a change in CSS's
obligations under this Agreement will be subject to CSS's approval, which will
not be unreasonably withheld. Neither this Agreement nor any of its provisions
may be changed, waived, discharged, or terminated orally, but only by written
instrument which will make specific reference to this Agreement and which will
be signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.
13. Termination. This Agreement will continue in effect until January
1, 2002, and thereafter as the parties may mutually agree; provided, however,
that this Agreement may be terminated at any time by either party upon at least
sixty days' prior written notice to the other party; and provided further that
this Agreement may be terminated immediately at any time for cause either by any
Fund or CSS in the event that such cause remains unremedied for no less than
ninety days after receipt of written specification of such cause. Any such
termination will not affect the rights and obligations of the parties under
Paragraphs 9 and 10 hereof. In the event that a Fund designates a successor to
any of CSS's obligations hereunder, CSS will, at the expense and direction of
such Fund, transfer to such successor all relevant books, records and other data
of such Fund established or maintained by CSS under this Agreement.
15. Miscellaneous. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes of
this Agreement. This Agreement will be construed and enforced in accordance
with and governed by the laws of the State of Maryland. The captions in this
Agreement are included for convenience only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
day and year first above written.
XXXXXXX GROUP FUNDS
By:
XXXXXXX SHAREHOLDER SERVICES, INC.
By:
SERVICING AGREEMENT
SCHEDULE A
For its services under this Servicing Agreement, Xxxxxxx Shareholder
Services, Inc., is entitled to receive from the Xxxxxxx Funds (Except Acacia
Capital Corporation) fees as set forth below:
Fund and Portfolio Annual Account Fee*foot1 Account fees are
charged monthly based on the highest number of non-zero balance accounts
outstanding during the month. Transaction Fee
First Variable Rate Fund
First Variable Rate Fund (d/b/a $11.59 $.84
Xxxxxxx First Government
Money Market)
Xxxxxxx Tax-Free Reserves
Money Market 13.35 .97
Limited-Term 3.67 .42
Long-Term 2.67 .31
California Money Market 12.74 .93
Vermont Municipal 3.40 .39
XXXXXXX MUNICIPAL FUND, INC
California Intermediate 3.48 .40
National Intermediate 3.31 .38
Maryland Intermediate 4.64 .53
Virginia Intermediate 3.35 .38
calvert cash reserves
Institutional Prime Fund 11.83 .86
THE XXXXXXX FUND
Income 4.22 .48
New Vision Small Cap 5.90 .67
XXXXXXX SOCIAL INVESTMENT FUND
Money Market 11.92 .87
Bond 4.85 .55
Balanced 4.63 .53
Equity 5.24 .60
Managed Index 5.24 .65
Technology 6.00 .65
XXXXXXX WORLD VALUES FUND, INC.
International Equity 5.36 .61
Capital Accumulation 6.26 .72
XXXXXXX NEW WORLD FUND
New Africa Fund 3.91 .45
XXXXXXX SOCIAL INDEX SERIES, INC.
Xxxxxxx Social Index Fund 6.00 .65
XXXXXXX IMPACT FUND, INC.
Xxxxxxx Large Cap Growth Fund 6.00 .65
Acacia Capital Corporation fee is as follow:
.03% (three basis points) on the first $500 million of average net assets
and .02% (two basis points) over $500 million of average net assets, minus the
fees paid by Acacia Capital Corporation to State Street Bank and Trust pursuant
to the State Street Agreement (except for out of pocket expenses).
Restated September 2000
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
between
XXXXXXX SHAREHOLDER SERVICES, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
1. Duties of the Bank 1
2. Fees and Expenses 3
3. Wire Transfer Operating Guidelines 4
4. Data Access and Proprietary Information 5
5. Indemnification 6
6. Standard of Care 8
7. Covenants of the Transfer Agent and the Bank 8
8. Representations and Warranties of the Bank 9
9. Representations and Warranties of the Transfer Agent 9
10. Termination of Agreement 10
11. Assignment 10
12. Amendment 10
13. Massachusetts Law to Apply 10
14. Force Majeure 11
15. Consequential Damages 11
16. Limitation of Shareholder Liability 11
17. Merger of Agreement 11
18. Survival 11
19. Severability 11
20. Counterparts 12
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 15th day of August, 1996, by and
between, Xxxxxxx Shareholder Services, Inc. a corporation, having its
principal office and place of business at 0000 Xxxxxxxxxx Xxx. Xxxxx
0000X, Xxxxxxxx, Xxxxxxxx, 00000 (the "Transfer Agent"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company having its
principal office and place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Bank");
WHEREAS, the Transfer Agent has been appointed by each of the
investment companies (including each series thereof) listed on Schedule
A (the "Fund(s)"), each an open-end management investment company
registered under the Investment Company Act of 1940, as amended, as
transfer agent, dividend disbursing agent and shareholder servicing
agent in connection with certain activities, and the Transfer Agent has
accepted each such appointment;
WHEREAS, the Transfer Agent has entered into a Transfer Agency
and Service Agreement with each of the Funds (including each series
thereof) listed on Schedule A pursuant to which the Transfer Agent is
responsible for certain transfer agency and dividend disbursing
functions for each Fund's authorized and issued shares of common stock
or shares of beneficial interest as the case may be ("Shares") and each
Fund's shareholders ("Shareholders") and the Transfer Agent is
authorized to subcontract for the performance of its obligations and
duties thereunder in whole or in part with the Bank;
WHEREAS, the Transfer Agent desires to appoint the Bank as its
sub-transfer agent, and the Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenant herein
contained, the parties hereto agree as follows:
1. Duties of the Bank
1.1 Subject to the terms and conditions set forth in this
Agreement, the Bank shall act as the Transfer Agent's sub-transfer
agent for Shares in connection with any accumulation plan, open
account, dividend reinvestment plan, retirement plan or similar plan
provided to Shareholders and set out in each Fund's currently effective
prospectus and statement of additional information ("Prospectus"),
including without limitation any periodic investment plan or periodic
withdrawal program. As used herein the term '"Shares" means the
authorized and issued shares of common stock, or shares of beneficial
interest, as the case may be, for each Fund listed in Schedule A. In
accordance with procedures established from time to time by agreement
between the Transfer Agent and the Bank, the Bank shall provide the
services listed in this Section 1.
(a) The Bank shall:
(i) receive for acceptance, orders for the
purchase of Shares, and promptly deliver payment and
appropriate documentation thereof to the Custodian of
each Fund authorized pursuant to the Articles of
Incorporation or organization of each Fund (the
"Custodian");
(ii) pursuant to purchase orders, issue the
appropriate number of Shares and hold such Shares in
the appropriate Shareholder account;
(iii) receive for acceptance redemption requests
and redemption directions and deliver the appropriate
documentation thereof to the Custodian;
(iv) in respect to the transactions in items (i),
(ii) and (iii) above, the Bank shall execute
transactions directly with broker-dealers authorized
by each Fund;
(v) at the appropriate time as and when it
receives monies paid to it by the Custodian with
respect to any redemption, pay over or cause to be
paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(vi) effect transfers of Shares by the registered
owners thereof upon receipt of appropriate
instructions;
(vii) prepare and transmit payments for dividends
and distributions declared by each Fund;
(viii) issue replacement certificates for those
certificates alleged to have been lost, stolen or
destroyed upon receipt by the Bank of indemnification
satisfactory to the Bank and protecting the Bank and
each Fund, and the Bank at its option, may issue
replacement certificates in place of mutilated stock
certificates upon presentation thereof and without
such indemnity;
(ix) maintain records of account for and advise
the Transfer Agent and its Shareholders as to the
foregoing; and
(x) Record the issuance of Shares of each Fund
and maintain pursuant to Rule 17Ad-10(e) of the
Securities Exchange Act of 1934 as amended (the
"Exchange Act of 1934") a record of the total number
of Shares of each Fund which are authorized, based
upon data provided to it by each Fund or the Transfer
Agent, and issued and outstanding. The Bank shall
also provide each Fund on a regular basis with the
total number of Shares which are authorized and
issued and outstanding and shall have no obligation,
when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any
laws relating to the issue or sale of such Shares,
which functions shall be the sole responsibility of
each Fund or the Transfer Agent.
1.2 (a) For reports, the Bank shall:
(i) maintain all Shareholder accounts, prepare
meeting, proxy, and mailing lists, withhold taxes on
US resident and non-resident alien accounts, prepare
and file US Treasury Department reports required with
respect to interest, dividends and distributions by
federal authorities for all Shareholders, prepare
confirmation forms and statements of account to
Shareholders for all purchases and redemptions of
Shares and other confirmable transactions in
Shareholder account information.
(b) For blue sky reporting the Bank shall provide a
system that will enable each Fund or the Transfer Agent to
monitor the total number of Shares sold in each State, and
each Fund or the Transfer Agent shall:
(i) identify to the Bank in writing those
transactions and assets to be treated as exempt from
blue sky reporting for each State; and
(ii) verify the establishment of transactions for
each State on the System prior to the activity for
each State, the responsibility of the Bank for each
Fund's blue sky state registration status is solely
limited to the initial establishment of transactions
subject to blue sky compliance by the Fund or the
Transfer Agent and the reporting of such transactions
to the Fund as provided above.
1.3 Per the attached service responsibility schedule procedures as
to who shall provide certain of these services in Section 1 may be
established from time to time by agreement between the Transfer Agent
and the Bank. The Bank may at times perform only a portion of these
services and the Transfer Agent may perform these services on each
Fund's behalf.
1.4 The Bank shall provide additional services on behalf of the
Transfer Agent (i.e., escheat services) that may be agreed upon in
writing between the Bank and the Transfer Agent.
2. Fees and Expenses
2.1 For the performance by the Bank pursuant to this Agreement,
the Transfer Agent agrees to pay the Bank an annual maintenance fee for
each Shareholder account as set out in the initial fee schedule
attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 2.2 below may be changed from time to time
subject to mutual written agreement between the Transfer Agent and the
Bank.
2.2 In addition to the fee paid under Section 2.1 above, the
Transfer Agent agrees to reimburse the Bank 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 Bank for the items set out in the fee
schedule attached hereto. In addition, any other expenses incurred by
the Bank at the request or with the consent of the Transfer Agent, will
be reimbursed by the Transfer Agent.
2.3 The Transfer Agent agrees to pay all fees and reimbursable
expenses within fifteen days following the receipt of the respective
billing notice. Postage for mailing of dividends, proxies, Fund reports
and other mailings to all shareholder accounts shall be advanced to the
Bank by the Transfer Agent at least seven (7) days prior to the mailing
date of such materials.
3. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code
3.1 The Bank is authorized to promptly debit the appropriate
Transfer Agent account(s) upon the receipt of a payment order in
compliance with the selected security procedure (the "Security
Procedure") chosen for funds transfer and in the amount of money that
the Bank has been instructed to transfer. The Bank shall execute
payment orders in compliance with the Security Procedure and with the
Transfer Agent's instructions on the execution date provided that such
payment order is received by the customary deadline for processing such
a request, unless the payment order specifies a later time. All payment
orders and communications received after this time frame will be deemed
to have been received the next business day.
3.2 The Transfer Agent acknowledges that the Security Procedure it
has designated on the Transfer Agent Selection Form was selected by the
Transfer Agent from security procedures offered by the Bank. The
Transfer Agent shall restrict access to confidential information
relating to the Security Procedure to authorized persons as
communicated to the Bank in writing. The Transfer Agent must notify the
Bank immediately if it has reason to believe unauthorized persons may
have obtained access to such information or of any change in the
Transfer Agent's authorized personnel. The Bank shall verify the
authenticity of all such instructions according to the Security
Procedure.
3.3 The Bank shall process all payment orders on the basis of the
account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the
account number, the account number shall take precedence and govern.
3.4 When a Transfer Agent initiates or receives Automated Clearing
House ("ACH") credit and debit entries pursuant to these guidelines and
the rules of the National Automated Clearing House Association and the
New England Clearing House Association, the Bank will act as an
Originating Depository Financial Institution and/or receiving
Depository Financial Institution, as the case may be, with respect to
such entries. Credits given by the Bank with respect to an ACH credit
entry are provisional until the Bank receives final settlement for such
entry from the Federal Reserve Bank. If the Bank does not receive such
final settlement, the Transfer Agent agrees that the Bank shall receive
a refund of the amount credited to the Transfer Agent in connection
with such entry, and the party making payment to the Transfer Agent via
such entry shall not be deemed to have paid the amount of the entry.
3.5 The Bank reserves the right to decline to process or delay the
processing of a payment order which (a) is in excess of the collected
balance in the account to be charged at the time of the Bank's receipt
of such payment order, or (b) if the Bank, in good faith, is unable to
satisfy itself that the transaction has been properly authorized.
3.6 The Bank shall use reasonable efforts to act on all authorized
requests to cancel or amend payment orders received if requests are
received in a timely manner affording the Bank reasonable opportunity
to act. However, the Bank assumes no liability if the request for
amendment or cancellation cannot be satisfied.
3.7 The Bank shall assume no responsibility for failure to detect
any erroneous payment order provided that the Bank complies with the
payment order instructions as received and the Bank complies with the
Security Procedure. The Security Procedure is established for the
purpose of authenticating payment orders only and not for the detection
of errors in payment orders.
3.8 The Bank shall assume no responsibility for lost interest with
respect to the retransfer Agentable amount of any unauthorized payment
order unless the Bank is notified of the unauthorized payment order
within thirty (30) days of notification by the Bank of the acceptance
of such payment order. In no event (including failure to execute a
payment order) shall the Bank be liable for special, indirect or
consequential damages, even if advised of the possibility of such
damages.
3.9 Confirmation of Bank's execution of payment orders shall
ordinarily be provided within 24 hours notice of which may be delivered
through the Bank's proprietary information systems, or by facsimile or
call-back. Client must report any objections to the execution of an
order within 30 days.
4. Data Access and Proprietary Information
The Transfer Agent acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and
other information furnished to the Transfer Agent by the Bank are
provided solely in connection with the services rendered under this
Agreement and constitute copyrighted trade secrets or proprietary
information of substantial value to the Bank. Such databases, programs,
formats, designs, techniques and other information are collectively
referred to below as "Proprietary Information". The Transfer Agent
agrees that it shall treat all Proprietary Information as proprietary
to the Bank and further agrees that it shall not divulge any
Proprietary Information to any person or organization except as
expressly permitted hereunder. The Transfer Agent agrees for itself and
its employees and Agents:
(a) to use such programs and databases (i) solely on the
Transfer Agent's computers, or (ii) solely from equipment at
the locations agreed to between the Transfer Agent and the
Bank and (iii) in accordance with the Bank's applicable user
documentation;
(b) to refrain from copying or duplicating in any way
(other than in the normal course of performing processing on
the Transfer Agent's computers) any part of any Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any
programs, data or other information not owned by the Transfer
Agent, and if such access is accidentally obtained, to respect
and safeguard the same Proprietary Information;
(d) to refrain from causing or allowing proprietary
information transmitted from the Bank's computer to the
Transfer Agent's terminal to be retransmitted to any other
computer terminal or other device except as expressly
permitted by the Bank, such permission not to be unreasonably
withheld;
(e) that the Transfer Agent shall have access only to
those authorized transactions as agreed to between the
Transfer Agent and the Bank; and
(f) to honor reasonable written requests made by the Bank
to protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law and under
applicable statutes.
Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 4.
5. Indemnification
5.1 Except as provided in Section 6, herein, the Bank shall not be
responsible for, and the Transfer Agent shall indemnify and hold the
Bank 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 Bank or its agent or
subcontractors required to be taken pursuant to this
Agreement, provided that such actions are taken in good faith
and without negligence or willful misconduct;
(b) the Transfer Agent's lack of good faith, negligence
or willful misconduct;
(c) the reliance on or use by the Bank or its agents or
subcontractors of information, records, documents or services
which (i) are given to the Bank or its agents or
subcontractors, and (ii) have been prepared, maintained or
performed by the Transfer Agent or any other person or firm on
behalf of the Transfer Agent including but not limited to any
previous transfer agent or registrar excluding the Bank;
(d) the reliance on, or the carrying out by the Bank or
its agents or subcontractors of any instructions or requests
of the Transfer Agent; and
(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.
5.2 At any time the Bank may apply to any officer of the Transfer
Agent for instructions, and may consult with legal counsel with respect
to any matter arising in connection with the services to be performed
by the Bank under this Agreement, and the Bank and its Agents or
subcontractors shall not be liable and shall be indemnified by the
Transfer Agent for any action taken or omitted by it in reliance upon
such instructions or upon the opinion of such counsel.
The Bank, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on
behalf of the Transfer Agent, reasonably believed by the Batik as being
in good order and to have been signed by the proper person or persons,
or upon any instruction, information, data, records or documents
provided the Bank or its Agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the
Transfer Agent, and shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from
the Transfer Agent. The Bank, its agents and subcontractors shall also
be protected and indemnified in recognizing stock certificates which
are reasonably believed to bear the proper manual or facsimile
signatures of the officers of the Transfer Agent, and the proper
countersignature of the Transfer Agent or any former transfer agent or
former registrar, or of a co-transfer agent or co-registrar.
5.3 In order that the indemnification provisions contained in this
Section 5 shall apply, upon the assertion of a claim for which the
Transfer Agent may be required to indemnify the Bank, the Bank shall
promptly notify the Transfer Agent of such assertion, and shall keep
the Transfer Agent advised with respect to all developments concerning
such claim. The Transfer Agent shall have the option to participate
with the Bank in the defense of such claim or to defend against said
claim in its own name or in the name of the Bank. The Bank shall in no
case confess any claim or make any compromise in any case in which the
Transfer Agent may be required to indemnify the Bank except with the
Transfer Agent's prior written consent.
6. Standard of Care
6.1 The Bank 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.
6.2 The Bank shall work with the Transfer Agent to ensure that a
Fund is made whole by the responsible party for any material losses or
damages resulting from errors, material unreconciled items,
carelessness, negligence, bad faith, or willful misconduct by the Bank
or its agents or subcontractors, or that of their employees. Neither
the Bank, its agents or subcontractors, nor the Transfer Agent may
waive full liability for losses or damages based on the above.
6.3 Errors identified as caused by the sub-transfer agent will not
be charged to the Funds in the monthly billing.
7. Covenants of the Transfer Agent and the Bank
7.1 The Bank hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Transfer Agent for
safekeeping of stock certificates, check forms and facsimile signature
imprinting devices, if any; and for the preparation or use, and for
keeping account of, such certificates, forms and devices.
7.2 The Bank 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 Bank agrees that all
such records prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder are the property of the
Transfer Agent and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered
promptly to the Transfer Agent on and in accordance with its request.
7.3 The Bank and the Transfer Agent 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.
7.4 In case of any requests or demands for the inspection of the
Shareholder records of the Transfer Agent, the Bank will endeavor to
notify the Transfer Agent and to secure instructions from an authorized
officer of the Transfer Agent as to such inspection. The Bank 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.
8. Representations and Warranties of the Bank
The Bank represents and warrants to the Transfer Agent that:
(a) it is a trust company duly organized and existing and
in good standing under the laws of The Commonwealth of
Massachusetts;
(b) it is duly qualified to carry on its business in The
Commonwealth of Massachusetts;
(c) it is empowered under applicable laws and by its
Charter and By-Laws to enter into and perform this Agreement;
(d) all requisite corporate proceedings have been taken
to authorize it to enter into and perform this Agreement;
(e) 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
(f) it is registered as a transfer agent undo Section
17A(c)(2) of the Exchange Act.
9. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to the Bank that:
(a) it is a corporation duly organized and existing and
in good standing under the laws of the State of Delaware;
(b) it is empowered under applicable laws and by its
Articles of Incorporation and By-Laws to enter into and
perform this Agreement;
(c) all corporate proceedings required by said Articles
of Incorporation and By-Laws have been taken to authorize it
to enter into and perform this Agreement.
(d) it is registered as a transfer agent under Section
17A(c)(2) of the Exchange Act.
10. Termination of Agreement
10.1 This Agreement shall continue for a period of five years (the
"Initial Term") and be renewed or terminated as stated below.
10.2 This Agreement shall terminate upon the termination of the
Transfer Agency Agreement between the Funds and the Transfer Agent.
10.3 This Agreement may be terminated or renewed after the Initial
Term by either party upon ninety (90) days written notice to the other.
10.4 Should the Transfer Agent exercise its right to terminate, all
reasonable out-of-pocket expenses associated with the movement of
records and material will be borne by the Transfer Agent. Additionally,
the Bank reserves the right to charge for any other reasonable expenses
associated with such termination and/or a charge equivalent to the
average of three (3) months' fees.
11. Assignment
11.1 Except as provided in Section 11.3 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by
either party without the written consent of the other party.
11.2 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
11.3 The Bank will, without further consent on the part of the
Transfer Agent, subcontract for the performance hereof with National
Financial Data Services, Inc., a subsidiary of BFDS duly registered as
a transfer agent pursuant to Section 17A(c)(2) provided, however, that
the Bank shall be as fully responsible to the Transfer Agent for the
acts and omissions of any subcontractor as it is for its own acts and
omissions.
12. Amendment
This Agreement may be amended or modified by a written agreement
executed by both parties.
13. Massachusetts Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
14. 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.
15. 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.
16. Limitations of Shareholder Liability
Each party hereby expressly acknowledges that recourse against the
Funds shall be subject to those limitations provided by governing law
and the Declaration of Trust or Articles of Incorporation of the Funds,
as applicable, and agrees that obligations assumed by the Funds
pursuant to the Transfer Agency Agreement shall be limited in all cases
to the Funds and their respective assets. Each party shall not seek
satisfaction from the Shareholders or any individual Shareholder of the
Funds, nor shall any party seek satisfaction of any obligations from
the Directors\Trustees or any individual Director\Trustee of the Funds.
17. 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.
18. Survival
All provisions regarding indemnification, warranty, liability, and
limits thereon, and confidentiality and/or protection of proprietary
rights and trade secrets shall survive the termination of this
Agreement.
19. Severability
If any provision or provisions of this Agreement shall be held invalid,
unlawful, or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired.
20. Counterparts
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
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 first written above.
XXXXXXX SHAREHOLDER SERVICES, INC.
BY: /s/ Xxxxx Xxxxxx
TITLE: Vice President
ATTEST: Xxxxxxxxx Xxxxxx
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxx X. Xxxxx
TITLE: Executive Vice President
ATTEST: Xxxxxxxx Xxxxx
AMENDMENT TO SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
between
XXXXXXX SHAREHOLDER SERVICES, INC.
and
STATE STREET BANK AND TRUST COMPANY
General Background:
Xxxxxxx Shareholder Services, Inc. ("CSSI"), and State Street Bank and
Trust Company ("State Street") entered into a sub-transfer agency and
service agreement ("Agreement") dated August 15, 1996.
For accounting reasons, CSSI desires to amend the Agreement by
assigning the contract for the transfer agent functions (except for
shareholder servicing) to each Xxxxxxx Group Fund. CSSI will continue
to be responsible for the shareholder servicing and for any
responsibilities currently shown as Transfer Agent responsibilities in
Fund Service Responsibilities attachment to the Agreement.
The Agreement must be assigned to the Xxxxxxx Group Funds for
accounting purposes.
CSSI and State Street must each consent to this assignment.
Changes caused by this assignment:
The current subtransfer agent, National Financial Data Services, Inc.
("NFDS"), will xxxx each Xxxxxxx Group Fund, rather than CSSI, and each
Xxxxxxx Group Fund shall pay State Street or its billing agent, NFDS,
all fees and expenses incurred under the Agreement on behalf of each
respective Xxxxxxx Group Fund.
NFDS will be shown in each Xxxxxxx Group Fund prospectus and statement
of additional information as the Transfer Agent, while CSSI will be
shown as the shareholder servicing agent.
State Street (NFDS) will continue to perform those functions shown in
the Agreement as Bank responsibilities.
CSSI will continue to perform the Transfer Agent responsibilities, as
shown in the Fund Service Responsibilities attachment to the Agreement.
The Assignment:
This Amendment, dated as of the first day of January, 1998, by and
among CSSI and State Street:
Now, Therefore, CSSI and State Street each hereby agree that the
Agreement will be between each Xxxxxxx Group Fund and State Street, and
each hereby agrees that the Agreement is so assigned.
In Witness Whereof, CSSI and State Street have caused this Amendment to
be executed by their duly authorized officers, effective as of January
1, 1998.
Xxxxxxx Shareholder Services, Inc. State
Street Bank and Trust Company
By: /s/ By: /s/
Name: Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxx
Title: Vice President, Operations Title: Executive Vice President
Date: February 18, 1998 Date: February 20, 1998
Acacia Capital Corporation
First Variable Rate Fund
Xxxxxxx Tax-Free Reserves
Xxxxxxx Social Investment Fund
Calvert Cash Reserves
The Xxxxxxx Fund By: /s/
Xxxxxxx Municipal Fund, Inc. Name: Xxxxxxx X. Xxxxxxxxx
Xxxxxxx World Values Fund, Inc. Title: Senior Vice President and Secretary
Xxxxxxx New World Fund, Inc. Date: February 18, 1998
