XXXXXXX INTERNATIONAL FUND
XXXXXX SQUARE MANAGEMENT CORPORATION
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of the 7th day of February,
1995, between the Xxxxxxx International Fund a Delaware business Trust
(hereinafter the "Fund"), having its principal place of business in San Diego,
California and Xxxxxx Square Management Corporation, a corporation organized
under the laws of the State of Delaware (hereinafter "Xxxxxx Square"), having
its principal place of business in Wilmington, Delaware.
WHEREAS, the Fund is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and offers for public sale one or more distinct series of shares of beneficial
interest ("Series"), par value $0.01 per share, each corresponding to a distinct
portfolio;
WHEREAS, each share of the Fund represents an undivided interest in the
assets, subject to the liabilities, allocated to the Fund;
WHEREAS, at the present time, the Fund has established and/or
anticipates it or will establish one Series;
WHEREAS, the Fund desires to employ the services of Xxxxxx Square to
serve as the Fund's transfer agent; and
WHEREAS, Xxxxxx Square is willing to furnish such services to the Fund
with respect to each Series listed on Schedule A to this Agreement (each a
"Portfolio" and two or more together, "Portfolios") on the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Fund and Xxxxxx Square agree as follows:
1. Appointment. The Fund hereby appoints Xxxxxx Square as transfer
agent, registrar and dividend disbursing agent for the shares of beneficial
interest of the Fund (the "Shares") and as servicing agent in connection with
the disbursements of dividends and distributions and as shareholders' servicing
agent for the Fund, each such appointment to take effect as of the date first
written above, and Xxxxxx Square shall act as such and perform its obligations
thereof upon the terms and conditions hereafter set forth and in accordance with
the principles of principal and agent enunciated by the common law.
2. Documents. The Fund has furnished Xxxxxx Square with copies properly
certified or authenticated of each of the following:
a. The Fund's Declaration of Trust/Master Trust Agreement filed
with the Secretary of the State of Delaware on July 6, 1994, and all amendments
thereto and restatements thereof;
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b. The Fund's By-laws and all amendments thereto and restatements
thereof (such By- laws, as presently in effect and as they shall from time to
time be amended or restated, are herein called "By- laws");
c. Resolutions of the Fund's Board of Trustees authorizing the
appointment of Xxxxxx Square to provide certain transfer agency services to the
Fund and approving this Agreement;
d. The Fund's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act as filed with the Securities and Exchange
Commission ("SEC") on July 11, 1994;
e. The Fund's most recent Registration Statement on Form N-1A
under the Securities Act of 1933 (the "1933 Act") [(File No. 33-81396) and under
the 1940 Act (File No. 811-8614)], as filed with the SEC relating to shares of
beneficial interest of the Fund, and all amendments thereto;
f. The Fund's most current Prospectus(es) and Statement(s) of
Additional Information ("SAI") relating to the Portfolio(s);
g. The Fund's Agreements listed on Schedule B attached to this
Agreement; and
h. If required, a copy of either (i) a filed notice of eligibility
to claim the exclusion from the definition of "commodity pool operator"
contained in Section 2(a)(1)(A) of the Commodity Exchange Act ("CEA") that is
provided in Rule 4.5 under the CEA, together with all supplements as are
required by the Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Fund by the CFTC which states that the Fund will not
be treated as a "pool" as defined in Section 4.10(d) of the CFTC's General
Regulations, or (iii) a letter which has been granted the Fund by the CFTC which
states that CFTC will not take any enforcement action if the Fund does not
register as a "commodity pool operator."
The Fund will xxxxxxx Xxxxxx Square from time to time with copies,
properly certified or authenticated, of all additions, amendments or supplements
to the foregoing, if any.
3. Instructions Consistent with Declaration of Trust/Master Trust
Agreement.
a. Unless otherwise provided in this Agreement, Xxxxxx Square
shall act only upon Oral and Written Instructions. ("Oral Instructions" used in
this Agreement shall mean oral instructions actually received by Xxxxxx Square
from an Authorized Person or from a person reasonably believed by Xxxxxx Square
to be an Authorized Person. "Written Instructions" used in this Agreement shall
mean written instructions signed by two Authorized Persons delivered by hand,
mail, telegram, cable, telex or facsimile, and received by Xxxxxx Square.
"Authorized Person" used in this Agreement means any officer of the Fund and any
other person, whether or not any such person is an officer of the Fund, duly
authorized by the Board of Trustees of the Fund to give Oral and Written
Instructions on behalf of the Portfolio(s) and certified by the Secretary or an
Assistant Secretary of the Fund or any amendment thereto as may be received by
Xxxxxx Square from time to time.) Xxxxxx Square in its capacity under this
Agreement may assume that any Oral or Written Instructions received hereunder
are not in any way inconsistent with any provisions of such Declaration of
Trust/Master Trust Agreement or By-laws or any vote, resolution or proceeding of
the shareholders, or of the Board of Trustees, or of any committee thereof.
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b. Rodney Square shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by Xxxxxx Square
pursuant to this Agreement. The Fund agrees to forward to Xxxxxx Square Written
Instructions confirming Oral Instructions in such manner that the Written
Instructions are received by Xxxxxx Square, whether by hand delivery, telex,
facsimile or otherwise, by the close of business of the same day that such Oral
Instructions are given to Xxxxxx Square. The Fund agrees that the fact that such
confirming Written Instructions are not received by Xxxxxx Square shall in no
way affect the validity of the transactions or enforceability of the
transactions authorized by the Fund by giving Oral Instructions. The Fund agrees
that Xxxxxx Square shall incur no liability to the Fund in acting upon Oral
Instructions given to Xxxxxx Square hereunder concerning such transactions
provided such instructions reasonably appear to have been received from an
Authorized Person.
4. Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, Xxxxxx Square is authorized to take the following actions:
a. Issuance of Shares. Upon receipt of a purchase order from the
Distributor, as defined in the Distribution Agreement between the Fund and the
Distributor or a prospective shareholder for the purchase of Shares and
sufficient information to enable Xxxxxx Square to establish a shareholder
account or to issue Shares to an existing shareholder account, and after
confirmation of receipt or crediting of Federal funds for such order from Xxxxxx
Square's designated bank, Xxxxxx Square shall issue and credit the account of
the investor or other record holder with Shares in the manner described in the
Prospectus. Xxxxxx Square shall deposit all checks received from prospective
shareholders into an account on behalf of the Fund, and shall promptly transfer
all Federal funds received from such checks to the Custodian, as defined in the
Custodian Agreement between the Fund and the Custodian. (References herein to
"Custodian" shall also be construed to refer to a "Sub-Custodian" if such
appointment has been made.) If so directed by the Distributor, the confirmation
supplied to the shareholder to xxxx such issuance will be accompanied by a
Prospectus.
b. Transfer of Shares; Uncertificated Securities. Where a
shareholder does not hold a certificate representing the number of Shares in its
account and does provide Xxxxxx Square with instructions for the transfer of
such Shares which include a signature guaranteed by a commercial bank, trust
company or member firm of a national securities exchange and such other
appropriate documentation to permit a transfer, then Xxxxxx Square shall
register such Shares and shall deliver them pursuant to instructions received
from the transferor, pursuant to the rules and regulations of the SEC, and the
laws of the State of Delaware relating to the transfer of shares of beneficial
interest.
c. Share Certificates. If at any time the Portfolio issues share
certificates, the following provisions will apply:
(1) The Fund will supply Xxxxxx Square with a
sufficient supply of share certificates representing
Shares, in the form approved from time to time by the
Trustees of the Fund, and, from time to time, shall
replenish such supply upon request of Xxxxxx Square.
Such share certificate shall be properly signed,
manually or by facsimile signature, by the duly
authorized officers of the Fund, and shall bear the
corporate seal or facsimile thereof of the Fund, and
notwithstanding the death, resignation or removal of
any officer of the Fund, such executed certificates
bearing
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the manual or facsimile signature of such officer
shall remain valid and may be issued to shareholders
until Xxxxxx Square is otherwise directed by Written
Instructions.
(2) In the case of the loss or destruction of any
certificate representing Shares, no new certificate
shall be issued in lieu thereof, unless there shall
first have been furnished an appropriate bond of
indemnity issued by a surety company approved by
Xxxxxx Square.
(3) Upon receipt of signed share certificates, which
shall be in proper form for transfer, and upon
cancellation or destruction thereof, Xxxxxx Square
shall countersign, register and issue new
certificates for the same number of Shares and shall
deliver them pursuant to instructions received from
the transferor, the rules and regulations of the SEC,
and the laws of the State of Delaware relating to the
transfer of shares of beneficial interest.
(4) Upon receipt of the share certificates, which
shall be in proper form for transfer, together with
the shareholder's instructions to hold such share
certificates for safekeeping, Xxxxxx Square shall
reduce such Shares to uncertificated status, while
retaining the appropriate registration in the name of
the shareholder upon the transfer books.
(5) Upon receipt of written instructions from a
shareholder of uncertificated securities for a
certificate in the number of shares in its account,
Xxxxxx Square will issue such share certificates and
deliver them to the shareholder.
d. Redemption of Shares. Upon receipt of a redemption order from
the Distributor or a shareholder, Xxxxxx Square shall redeem the number of
Shares indicated thereon from the redeeming shareholder's account and receive
from the Fund's Custodian and disburse pursuant to the instructions of a
redeeming shareholder or his or her agent the redemption proceeds therefor, or
arrange for direct payment of redemption proceeds by the Custodian to the
redeeming shareholder or as instructed by the shareholder or his or her agent,
in accordance with such procedures and controls as are mutually agreed upon from
time to time by and among the Fund, Xxxxxx Square and the Fund's Custodian.
5. Authorized Issued and Outstanding Shares. The Fund agrees to notify
Xxxxxx Square promptly of any change in the number of authorized Shares and of
any change in the number of Shares registered under the 1933 Act, as amended or
termination of the Fund's declaration under Rule 24f-2 of the 1940 Act. The Fund
has advised Xxxxxx Square, as of the date hereof, of the number of Shares (i)
held in any redemption or repurchase account, and (ii) registered under the 1933
Act, as amended, which are unsold. In the event that the Fund shall declare a
stock dividend, a stock split or a reverse stock split, the Fund shall deliver
to Xxxxxx Square a certificate, upon which Xxxxxx Square shall be entitled to
rely for all purposes, certifying (i) the number of Shares involved, (ii) that
all appropriate corporate action has been taken, and (iii) that any amendment to
the Fund's Declaration of Trust/Master Trust Agreement which may be required has
been filed and is effective. Such certificate shall be accompanied by an opinion
of counsel to the Fund relating to the legal adequacy and effect of the
transaction.
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6. Dividends and Distributions.
a. The Fund shall xxxxxxx Xxxxxx Square with appropriate evidence
of action by the Fund's Trustees authorizing the declaration and payment of
dividends and distributions as described in the Prospectus. After deducting any
amount required to be withheld by any applicable tax laws, rules and regulations
or other applicable laws, rules and regulations, Xxxxxx Square shall in
accordance with the instructions in proper form from a shareholder and the
provisions of the Fund's Declaration of Trust/Master Trust Agreement and
Prospectus, issue and credit the account of the shareholder with Shares, or, if
the shareholder so elects, pay such dividends or distributions in cash to the
shareholder in the manner described in the Prospectus. In lieu of receiving from
the Fund's Custodian and paying to shareholders cash dividends or distributions,
Xxxxxx Square may arrange for the direct payment of cash dividends and
distributions to shareholders by the Custodian, in accordance with such
procedures and controls as are mutually agreed upon from time to time by and
among the Fund, Xxxxxx Square and the Fund's Custodian.
b. Rodney Square shall prepare, file with the Internal Revenue
Service and other appropriate taxing authorities, and address and mail to
shareholders such returns and information relating to dividends and
distributions paid by the Fund as are required to be so prepared, filed and
mailed by applicable laws, rules and regulations, or such substitute form of
notice as may from time to time be permitted or required by the Internal Revenue
Service. On behalf of the Fund, Xxxxxx Square shall mail certain requests for
shareholders' certifications under penalties of perjury and pay on a timely
basis to the appropriate Federal authorities any taxes to be withheld on
dividends and distributions paid by the Fund, all as required by applicable
Federal tax laws and regulation.
c. In accordance with the Prospectus, resolutions of the Fund's
Trustees that are not inconsistent with this Agreement and are provided to
Xxxxxx Square from time to time, and such procedures and controls as are
mutually agreed upon from time to time by and among the Fund, Xxxxxx Square and
the Fund's Custodian, Xxxxxx Square shall arrange for issuance of Shares
obtained through transfers of funds from shareholders' accounts at financial
institutions.
7. Communications with Shareholders.
a. Communications to Shareholders. Xxxxxx Square will address and
mail all communications by the Fund to its shareholders, including reports to
shareholders, confirmations of purchases and sales of Shares, monthly
statements, dividend and distribution notices and proxy material for its
meetings of shareholders. Xxxxxx Square will receive and tabulate the proxy
cards for shareholder meetings.
b. Correspondence. Xxxxxx Square will answer such correspondence
from shareholders, securities brokers and others relating to its duties
hereunder and such other correspondence as may from time to time be mutually
agreed upon between Xxxxxx Square and the Fund.
8. Services to be Performed. Xxxxxx Square shall be responsible for
administering and/or performing transfer agent functions, for acting as service
agent in connection with dividend and distribution functions and for performing
shareholder account functions in connection with the issuance, transfer and
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redemption or repurchase (including coordination with the Fund's custodian bank
in connection with shareholder redemption by check) of the Fund's Shares as set
forth in Schedule C to this Agreement. The details of the operating standards
and procedures to be followed shall be determined from time to time by agreement
between Xxxxxx Square and the Fund and may be expressed in written schedules
which shall constitute attachments to this Agreement.
9. Recordkeeping and Other Information.
a. Rodney Square shall maintain records of the accounts for each
Shareholder showing the items listed in Schedule D to this Agreement.
b. Rodney Square shall create and maintain all necessary records
in accordance with all applicable laws, rules and regulations, including but not
limited to records required by Section 31(a) of the 1940 Act and the rules
thereunder and any applicable regulations of the Federal Deposit Insurance
Corporation ("FDIC") or any successor regulatory authority, as the same may be
amended from time to time, and those records pertaining to the various functions
performed by it hereunder. All records shall be the property of the Fund at all
times and shall be available for inspection and use by the Fund or the Fund's
authorized representatives. Upon reasonable request of the Fund copies of such
records shall be provided by Xxxxxx Square to the Fund or the Fund's authorized
representatives at the Fund's expense. Where applicable, such records shall be
maintained by Xxxxxx Square for the periods and in the places required by Rule
31a-2 under the 1940 Act and any applicable regulations of the FDIC or any
successor regulatory authority.
Xxxxxx Square shall not be responsible for the records required to
be maintained by any predecessor transfer agency service provider except those
provided to Xxxxxx Square together with proper documentation and accepted in
writing by Xxxxxx Square. Xxxxxx Square shall not be required to bear the cost
of any necessary conversion of any records or data nor shall Xxxxxx Square
assume any responsibility for the having available and maintaining any computer
systems required to read or otherwise interpret any predecessor transfer agency
service provider's computer-formatted records.
10. Audit, Inspection and Visitation. Xxxxxx Square shall 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
Fund or any person retained by the Fund. Upon reasonable notice by the Fund,
Xxxxxx Square shall make available during regular business hours its facilities
and premises employed in connection with its performance of this Agreement for
reasonable visitation by the Fund, or any person retained by the Fund.
11. Right to Receive Advice.
a. Advice of Fund. If Xxxxxx Square shall be in doubt as to any
action to be taken or omitted by it, it may request, and shall receive, from the
Fund directions or advice, including Oral or Written Instructions where
appropriate.
b. Advice of Counsel. If Xxxxxx Square shall be in doubt as to any
question of law involved in any action to be taken or omitted by Xxxxxx Square,
it may request advice from counsel of its own choosing (who may be the regularly
retained counsel for the Fund or Xxxxxx Square or the in-house counsel for
Xxxxxx Square, at the option of Xxxxxx Square) at the Fund's expense.
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c. Conflicting Advice. In case of conflict between directions,
advice or Oral or Written Instructions received by Xxxxxx Square pursuant to
subsection a of this Section and advice received by Xxxxxx Square pursuant to
subsection b. of this Section, Xxxxxx Square shall be entitled to rely on and
follow the advice received pursuant to the latter provision alone.
d. Protection of Xxxxxx Square. Xxxxxx Square shall be protected
in any action or inaction which it takes in reliance on any directions, advice
or Oral or Written Instructions received pursuant to subsections a. or b. of
this Section which Xxxxxx Square, after receipt of any such directions, advice
or Oral or Written Instructions, in good faith believes to be consistent with
such directions, advice or Oral or Written Instructions, as the case may be.
However, nothing in this Section shall be construed as imposing upon Xxxxxx
Square any obligation (i) to seek such direction, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions, advice or Oral
or Written Instructions when received, unless, under the terms of another
provision of this Agreement, the same is a condition to Xxxxxx Square's properly
taking or omitting to take such action. Nothing in this subsection shall excuse
Xxxxxx Square when an action or omission on the part of Xxxxxx Square
constitutes willful misfeasance, bad faith, negligence or reckless disregard by
Xxxxxx Square of its duties under this Agreement.
12. Compliance with Governmental Rules and Regulations. Except as
otherwise provided herein, the Advisor and/or the Fund assumes full
responsibility for ensuring that the Fund complies with all applicable
requirements of the 1933 Act, the Securities Exchange Act of 1934 (the "1934
Act"), the 1940 Act, the CEA and any laws, rules and regulations of governmental
authorities having jurisdiction.
13. Compensation.
a. Compensation for services and duties performed pursuant to this
Agreement is provided in Schedule A hereto. Certain other fees due and expenses
incurred pursuant to this Agreement are payable by the Fund or the shareholder
on whose behalf the service is performed and are also listed in Schedule A.
b. The Fund shall reimburse Xxxxxx Square for all reasonable
out-of-pocket expenses incurred by Xxxxxx Square or its agents in the
performance of its obligations hereunder. Such reimbursement for expenses
incurred in any calendar month shall be made on or before the tenth day of the
next succeeding month.
c. The term "out-of-pocket expenses" shall mean the following
expenses incurred by Xxxxxx Square in the performance of its obligations
hereunder: the cost of stationery and forms (including but not limited to
checks, proxy cards, and envelopes), the cost of postage, the cost of insertion
of non-standard size materials in mailing envelopes and other special mailing
preparation by outside firms, the cost of first-class mailing insurance, the
cost of external electronic communications as approved by the Trustees (to
include telephone and telegraph equipment and an allocable portion of the cost
of personnel responsible for the maintenance of such equipment), toll charges,
data communications equipment and line charges and the cost of microfilming of
shareholder records (including both the cost of storage as well as charges for
access to such records). If Xxxxxx Square shall undertake the responsibility for
microfilming shareholder records, it may be separately compensated therefor in
an amount agreed upon by the principal financial
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officer of the Fund and Xxxxxx Square, such amount not to exceed the amount
which would be paid to an outside firm for providing such microfilming services.
14. Use of Xxxxxx Square's Name. The Fund shall not use the name of
Xxxxxx Square or any of its affiliates in any Prospectus, SAI, sales literature
or other material relating to the Fund in a manner not approved prior thereto in
writing by Xxxxxx Square, provided, however, that Xxxxxx Square shall approve
all uses of its and its affiliates' names that merely refer in accurate terms to
their appointments hereunder or that are required by the SEC or a state
securities commission and, provided further, that in no event shall such
approval be unreasonably withheld.
15. Use of Fund's Name. Xxxxxx Square shall not use the name of the
Fund or the Portfolios of the Fund or material relating to the Fund or the
Portfolios on any checks, bank drafts, bank statements or forms for other than
internal use in a manner not approved prior thereto, provided, however, that the
Fund shall approve all uses of its name which merely refer in accurate terms to
the appointment of Xxxxxx Square hereunder or which are required by the FDIC,
the SEC or a state securities commission, and, provided, further, that in no
event shall such approval be unreasonably withheld.
16. Liability of Xxxxxx Square or Affiliates. Xxxxxx Square and its
affiliates shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund in connection with the matters to which this
Agreement relates, except to the extent of a loss resulting from willful
misfeasance, bad faith, negligence or reckless disregard of their obligations
and duties under this Agreement. Any person, even though also an officer,
trustee, employee or agent of Xxxxxx Square or any of its affiliates who may be
or become an officer or trustee of the Fund, shall be deemed, when rendering
services to the Fund as such officer or acting on any business of the Fund in
such capacity (other than services or business in connection with Xxxxxx
Square's duties under this Agreement), to be rendering such services to or
acting solely for the Fund and not as an officer, Trustee, employee or agent or
one under the control or direction of Xxxxxx Square or any of its affiliates,
even though paid by one of those entities. Xxxxxx Square shall not be liable or
responsible for any acts or omissions of any predecessor administrator or any
other persons having responsibility for matters to which this Agreement relates
nor shall Xxxxxx Square be responsible for reviewing any such act or omissions.
Xxxxxx Square shall, however, be liable for its own acts and omissions
subsequent to assuming responsibility under this Agreement as herein provided.
17. Security. Xxxxxx Square represents and warrants that the various
procedures and systems which Xxxxxx Square has implemented with regard to
safeguarding from loss or damage attributable to fire, theft or any other cause
(including provision for twenty-four hours a day restricted access) the Fund's
blank checks, records and other data and Xxxxxx Square'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 in its judgment are required for the secure performance of
its obligations hereunder. The parties shall review such systems and procedures
on a periodic basis.
18. Insurance. Upon request Xxxxxx Square shall provide the Fund with
details regarding its insurance coverage, and Xxxxxx Square shall notify the
Fund should any of its insurance coverage be materially changed. Such
notification shall include the date of change and the reason or reasons
therefor. Xxxxxx Square shall notify the Fund of any material claims against it,
whether or not they may be covered by insurance and shall notify the Fund from
time to time as may be appropriate of the total outstanding claims made by
Xxxxxx Square under its insurance coverage.
19. Indemnification.
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a. The Fund agrees to indemnify and hold harmless Xxxxxx Square,
its trustees, officers, employees, agents and representatives from all taxes,
charges, expenses, assessments, claims and liabilities including, without
limitation, liabilities arising under the 1940 Act, the 1933 Act, the 1934 Act
and any applicable state and foreign laws, and amendments thereto (the
"Securities Laws"), and expenses, including without limitation reasonable
attorneys' fees and disbursements arising directly or indirectly from any action
or omission to act which Xxxxxx Square takes (i) at the request of or on the
direction of or in reliance on the advice of the Fund or (ii) upon Oral or
Written Instructions. Neither Xxxxxx Square nor any of its nominees shall be
indemnified against any liability (or any expenses incident to such liability)
arising out of Xxxxxx Square's or its trustees', officers', employees', agents'
and representatives own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold harmless the Fund
from all taxes, charges, expenses, assessments, claims and liabilities arising
from Xxxxxx Square's obligations pursuant to this Agreement (including, without
limitation, liabilities arising under the Securities Laws) and expenses,
including (without limitation) reasonable attorneys' fees and disbursements
arising directly or indirectly out of Xxxxxx Square's or its trustees',
officers', employees', agents' and representatives own willful misfeasance, bad
faith, negligence or reckless disregard of its duties and obligations under this
Agreement.
c. In order that the indemnification provisions contained in this
Section 19 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
20. Responsibility of Xxxxxx Square. Xxxxxx Square shall be under no
duty to take any action on behalf of the Fund except as specifically set forth
herein or as may be specifically agreed to by Xxxxxx Square in writing. In the
performance of its duties hereunder, Xxxxxx Square shall be obligated to
exercise care and diligence and to act in good faith and to use its best efforts
within reasonable limits in performing services provided for under this
Agreement. Xxxxxx Square shall be responsible for its own negligent failure to
perform its duties under this Agreement, but to the extent that duties,
obligations and responsibilities are not expressly set forth in this Agreement,
Xxxxxx Square shall not be liable for any act or omission which does not
constitute willful misfeasance, bad faith or negligence on the part of Xxxxxx
Square or reckless disregard by Xxxxxx Square of such duties, obligations and
responsibilities. Without limiting the generality of the foregoing or of any
other provision of this Agreement, Xxxxxx Square, in connection with its duties
under this Agreement, shall not be under any duty or obligation to inquire into
and shall not be liable for or in respect of (i) the validity or invalidity or
authority or lack thereof of any Oral or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this Agreement, and
which Xxxxxx Square reasonably believes to be genuine; or (ii) delays or errors
or loss of data occurring by reason of circumstances beyond Xxxxxx Square's
control, including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown (except as provided in Section
21), flood or catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or
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power supply, which circumstances Xxxxxx Square shall take minimal actions to
minimize loss of data therefor.
21. Acts of God/Equipment Failure. Xxxxxx Square shall 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, labor difficulties, fire, flood or catastrophe, acts of God,
insurrection, war, riots, or failure of the mails, transportation, communication
or power supply. In the event of equipment breakdowns beyond its control, Xxxxxx
Square shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions but shall have no liability with respect thereto.
Xxxxxx Square shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
22. Duration and Termination.
a. Neither this Agreement nor any provisions hereof may be
changed, waived, discharged or terminated orally, but only by written instrument
which shall make specific reference to this Agreement and which shall be signed
by the party against which enforcement of such change, waiver, discharge or
termination is sought.
b. This Agreement shall become effective as of the date first
written above, and unless terminated as provided, shall continue in force for
three (3) years from the date of its execution and thereafter from year to year.
This Agreement may be terminated after the initial three (3) year period as of
any anniversary date on ninety (90) days' written notice given to Xxxxxx Square
or by Xxxxxx Square on ninety (90) days' written notice given to the Fund;
provided, however, that the foregoing provisions of this Agreement may be
terminated immediately at any time in the event of a breach of any provision
thereof either by the Fund or by Xxxxxx Square in the event that such breach
shall have remained unremedied for ninety (90) days or more after receipt of
written specification of such breach.
c. Upon the termination of this Agreement, the Fund shall pay to
Xxxxxx Square such compensation as may be payable for the period prior to the
effective date of such termination, including reimbursement for any
out-of-pocket expenses reasonably incurred by Xxxxxx Square to such date. In the
event that the Fund designates a successor to any of Xxxxxx Square's obligations
hereunder, Xxxxxx Square shall, at the expense and direction of the Fund,
transfer to such successor all relevant books, records and other data
established or maintained by Xxxxxx Square under the foregoing provisions.
d. Upon the termination of this Agreement within the initial three
(3) year term by the Fund or the Fund's Board of Trustees, the Fund shall pay to
Xxxxxx Square such compensation in liquidated damages in accordance with the fee
arrangements described in Schedule A attached hereto, as such schedule may be
amended from time to time.
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23. Registration as a Transfer Agent. Xxxxxx Square represents that it
is currently registered with the appropriate Federal agency for the registration
of transfer agents, and that it will remain so registered for the duration of
this Agreement. Xxxxxx Square agrees that it will promptly notify the Fund in
the event of any material change in its status as a registered transfer agent.
Should Xxxxxx Square fail to be registered with the FDIC or any successor
regulatory authority as a transfer agent at any time during this Agreement, the
Fund may, on written notice to Xxxxxx Square, immediately terminate this
Agreement, without paying liquidated damages.
24. Appointment of Agents. Neither this Agreement nor any rights or
obligations hereunder may be assigned by Xxxxxx Square without the written
consent of the Fund. Xxxxxx Square may, however, at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust company,
which is itself qualified under the Securities Exchange Act of 1934 (the "1934
Act") to act as a transfer agent, as its agent to carry out such of the services
to be performed under this Agreement as Xxxxxx Square may from time to time
direct; provided, however, that the appointment of any such agent shall not
relieve Xxxxxx Square of any of its responsibilities or liabilities hereunder.
25. Delegation. On thirty (30) days' prior written notice to the Fund,
Xxxxxx Square may assign any part or all its rights and delegate its duties
hereunder to any affiliate provided that (i) the delegate agrees with Xxxxxx
Square to comply with all relevant provisions of the 1940 Act and applicable
rules and regulations; (ii) Xxxxxx Square shall remain responsible for the
performance of all of its duties under this Agreement; (iii) Xxxxxx Square and
such delegate shall promptly provide such information as the Fund may request;
and (iv) Xxxxxx Square shall respond to such questions as the Fund may ask,
relative to the delegation, including (without limitation) the capabilities for
the delegate.
26. Amendments. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
Xxxxxx Square and the Fund shall regularly consult with each other
regarding Xxxxxx Square's performance of its obligations and its compensation
hereunder. In connection therewith, the Fund shall submit to Xxxxxx Square at a
reasonable time in advance of filing with the SEC copies of any amended or
supplemented registration statements (including exhibits) under the 1933 Act and
the 1940 Act, and a reasonable time in advance of their proposed use, copies of
any amended or supplemented forms relating to any plan, program or service
offered by the Fund. Any change in such material which would require any change
in Xxxxxx Square's obligations hereunder shall be subject to Xxxxxx Square's
approval, which shall not be unreasonably withheld. In the event that such
change materially increases the cost to Xxxxxx Square of performing its
obligations hereunder, Xxxxxx Square shall be entitled to receive reasonable
compensation therefor.
27. Notice. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party to this
Agreement at its principal place of business.
28. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
- 11 -
29. Governing Law. To the extent that state law has not been preempted
by the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws of the State of
Delaware.
30. Shareholder Liability. Xxxxxx Square is hereby expressly put on
notice of the limitation of shareholder liability as set forth in the Fund's
Declaration of Trust/Agreement of Trust and agrees that obligations assumed by
the Fund pursuant to this Agreement shall be limited in all cases to the Fund
and its assets. Xxxxxx Square agrees that it shall not seek satisfaction of any
such obligation from the shareholders or any individual shareholder of the Fund,
nor from the Trustees or any individual Trustee of the Fund.
31. Miscellaneous. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed
simultaneously in two [or more] counterparts, each of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the day and year first above written.
XXXXXXX INTERNATIONAL FUND
By: _____________________________
Xxxxx X. X'Xxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: _____________________________
Xxxxxx X. Xxxxxxxx, President
- 12 -
TRANSFER AGENCY AGREEMENT
SCHEDULE A
XXXXXXX INTERNATIONAL FUND
PORTFOLIO LISTING AND FEE SCHEDULE
For the services Xxxxxx Square provides under the Transfer Agency Agreement
attached hereto, the Xxxxxxx International Fund (the "Fund") agrees to pay
Xxxxxx Square a fee for transfer agency services as follows, subject to a
minimum of $26,250 for the first year of this agreement1 and $30,000 for each
subsequent year with respect to each class of the Portfolio listed below
beginning at each class of the Portfolio's commencement of operations, per
annum, plus out-of-pocket expenses, all payable monthly:
Fee per Annum
Type of Fund/Account per Account
-------------------- ------------
Annual Dividend $12.00
Semi-Annual Dividend $12.00
Monthly Dividend $15.00
Portfolio Listing:
-----------------
The Xxxxxxx International Fund (Class A)
The Xxxxxxx International Fund (Class C)
Out-of-Pocket Expenses (estimates based on actual costs):
--------------------------------------------------------
Out-of-pocket expenses shall be reimbursed by the Fund to Xxxxxx Square
or paid directly by the Fund. Such expenses include but are not limited
to the following:
a. Toll-free lines (if required)
b. Forms, envelopes, checks, checkbooks
c. Postage (bulk, pre-sort, first-class at current prevailing rates)
d. Hardware/phone lines for remote terminal(s) (if required)
e. Microfiche/Microfilm
f. Wire fees for receipt or disbursement $ 7.00 per wire
g. Mailing fees $30.00 per 1,000 items
h. Cost of proxy solicitation, mailing and
tabulation
i. Certificates issuance $ 2.00 per certificate
j. Record retention storage $15.00 per cubic foot per year
k. Development/programming costs/special
projects Negotiated time and material
l. ACH transaction charges $ 0.25 per transaction
m. "B" notice mailings $ 5.00 per item
n. Locating lost shareholders in
anticipation of escheating $ 5.00 per name
-------------------
1 To arrive at the minimum fee for the first year, each of the first three
months minimum fees of $2,500 have been reduced to $1,250.
A - 1
National Securities Clearing Corporation (NSCC) Charges
-------------------------------------------------------
1. - FUND/SERV
Participation Fee $50.00 per month
CPU Access Fee $40.00 per month
Transaction Fee $ .50 per transaction
NSCC will deduct it's monthly fee on the 15th of each month from Xxxxxx
Square's cash settlement that day. These charges will be included on the
next month's T/A xxxx as out-of-pocket expenses.
2. - Networking
Participation Fee $250.00 per month
CPU Access Fee $ 40.00 per month
Account Fee $ .045 per month on
monthly dividend funds
$ .030 per month on all
other dividend payables
Xxxxxx Square System Access Charges for NSCC
--------------------------------------------
1. - FUND/SERV
Base Facility Use Fee $500.00 per month
Transaction Fee $ .25 per transaction
Plus: out-of-pocket expenses for settlements, wire charges, NSCC pick-up
charges, etc.
2. - Networking
Base Facility Use Fee $500.00 per month
Matrix Level Charges:
Level 1, 2 or 4 $ .24 per account per month
Xxxxx 0 $ .06 per account per month
Xxxxxx Square Wire Order Desk:
Master/Omnibus Account $ 1.00 Per Purchase/redemption
transaction
Additional Expenses (which may be paid by shareholder):
------------------------------------------------------
a. XXX/Xxxxx processing $10.00 per account per annum
$ 5.00 new account set-up fee
(waived)
$ 2.50 per distribution
$10.00 per plan transfer out
b. Exchange Fees $ 5.00 per transaction
Payment
The above will be billed within the first five (5) business days of each
month and will be paid by wire within five (5) business days of receipt.
LIQUIDATED DAMAGES: Upon the termination of the attached Agreement within the
initial three (3) year term by the Fund or the Fund's Board of Trustees, the
Fund shall pay to Xxxxxx Square liquidated damages with respect to each
Portfolio in an amount equal to 120 days of base fees as determined in the
manner set forth above.
A - 2
TRANSFER AGENCY AGREEMENT
SCHEDULE B
XXXXXXX INTERNATIONAL FUND
FUND AGREEMENTS SCHEDULE
1. The Investment Advisory Agreement between Xxxxxxx International
Fund, a Delaware business Trust (the "Fund") and Xxxxxxx Investment Partners,
Inc. (the "Investment Advisor"), dated February 7, 1995;
2. The Distribution Agreements between the Fund and First Fund
Distributors, Inc., dated February 7, 1995; and
3. The Fund's Distribution Plan adopted pursuant to Rule 12b-1
under the Investment Company Act of 1940.
B - 1
TRANSFER AGENCY AGREEMENT
SCHEDULE C
XXXXXXX INTERNATIONAL FUND
SERVICES TO BE PERFORMED
Xxxxxx Square will perform the following functions as transfer agent on an
ongoing basis with respect to each Portfolio:
a. furnish state-by-state registration reports;
b. provide toll-free lines for direct shareholder use, plus customer
liaison staff with on-line inquiry capacity;
c. mail duplicate confirmations to dealers and other financial
institutions ("Service Organization") of their clients' activity,
whether executed through the Service Organization or directly with
Xxxxxx Square;
d. provide detail for underwriter or Service Organization confirmations
and other Service Organization shareholder accounting, in accordance
with such procedures as may be agreed upon between the Fund and Xxxxxx
Square;
e. provide shareholder lists and statistical information concerning
shareholder accounts to the Fund;
f. provide timely notification of Portfolio activity and such other
information as may be agreed upon from time to time between Xxxxxx
Square and the Portfolio or the Custodian, to the Fund or the
Custodian;
g. with respect to dividends and distributions, prepare and file
required reports with the Internal Revenue Service ("IRS"), prepare and
mail reports to shareholders as required by the IRS and described in
the Prospectus and Statement of Additional Information; and
h. provide sources of shares sales and total assets listed by dealer
and representive on at least a monthly basis calculated for each period
year to date and cumulitive since inception as may be requested by the
Fund.
C - 1
TRANSFER AGENCY AGREEMENT
SCHEDULE D
BRANDES INTERNATIONAL FUND
SHAREHOLDER RECORDS
Xxxxxx Square shall maintain records of the accounts for each shareholder
showing the following information:
a. name, address and United States Tax Identification or Social
Security number;
b. number of Shares held and number of Shares for which certificates,
if any, have been issued, including certificate numbers and
denominations;
c. historical information regarding the account of each shareholder,
including dividends and distributions paid and the date and price for
all transactions on a shareholder's account;
d. any stop or restraining order placed against a shareholder's
account;
e. any correspondence relating to the current maintenance of a
shareholder's account;
f. information with respect to withholding; and,
g. any information required in order for Xxxxxx Square to perform any
calculations contemplated or required by this Agreement.
D - 1
