Exhibit (h)(1)
THE XXXXXX ASSET ALLOCATION TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 14th day of June, 2002, by and between The Xxxxxx
Asset Allocation Trust, a Massachusetts business trust, with its principal
office and place of business at 000 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Trust""), and Forum Shareholder Services, LLC, a Delaware limited
liability company with its principal office and place of business at Xxx
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and may issue shares of beneficial interest with no par value, in separate
series and classes; and
WHEREAS, the Trust offers shares in various series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 12, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offer shares of various classes of each Fund as listed in
Appendix A hereto (each such class together with all other classes subsequently
established by the Trust in a Fund being herein referred to as a "Class," and
collectively as the "Classes");
WHEREAS, the Trust desires that Forum perform as the transfer agent and
dividend disbursing agent for each Fund and Forum is willing to provide these
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust, on behalf of the Funds, hereby appoints Forum to act as, and
Forum agrees to act as, (i) transfer agent for the authorized and
issued shares of beneficial interest of the Trust representing
interests in each of the respective Funds and Classes thereof
("Shares"), (ii) dividend disbursing agent and (iii) agent in
connection with any accumulation, open-account or similar plans
provided to the registered owners of shares of any of the Funds
("Shareholders") and set out in the currently effective prospectuses
and statements of additional information of the applicable Fund,
including, without limitation, any periodic investment plan or periodic
withdrawal program.
(b) In connection therewith, the Trust has delivered to Forum copies
of: (i) the Trust's Declaration of Trust and Bylaws (collectively,
as amended from time to time, "Organic Documents"); (ii) the Trust's
current Prospectus and Statement of Additional Information of each
Fund (collectively, as currently in effect and as amended or
supplemented, the "Prospectus"); (iii) each current plan of
distribution or similar document adopted by the Trust under Rule
12b-1 ("Plan") under the Investment Company Act of 1940, as amended
(the "1940 Act") and each current shareholder service plan or similar
document adopted by the Trust ("Service Plan"); and (iv) all
applicable procedures adopted by the Trust with respect to the Funds,
and shall promptly furnish Forum with all amendments of or supplements
to the foregoing. The Trust shall deliver to Forum a certified copy
of the resolution of the Board of Trustees of the Trust (the "Board")
appointing Forum and authorizing the execution and delivery of this
Agreement. Forum recognizes that the Trust's Registration Statement
and amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as
amended (the"Securities Act") and the 1940 Act may be obtained from
the SEC archives.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from time
to time by agreement between the Trust on behalf of each of the Funds,
as applicable, and Forum, Forum will perform the following services:
(i) provide the services of a transfer agent,dividend disbursing
agent and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic
withdrawal program) that are customary for open-end management
investment companies including: (A) maintaining all
Shareholder accounts, (B) preparing Shareholder meeting
lists, (C) mailing proxies and related materials to
Shareholders, (D)mailing Shareholder reports and prospectuses
to current Shareholders, (E) mailing privacy notices
to Shareholders, (F) withholding taxes on U.S. resident and
non-resident alien accounts, (G) preparing and filing
U.S. Treasury Department Forms 1099 and other appropriate
forms required by federal authorities with respect to
distributions for Shareholders, (H) 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,
(I) responding to Shareholder telephone calls and Shareholder
correspondence in consultation with the Trust,
(J)preparing and mailing activity statements for Shareholders,
and (K) providing Shareholder account information;
(ii) receive for acceptance orders for the purchase of Shares and
promptly deliver payment and appropriate documentation
therefor to the custodian of the applicable Fund (the
"Custodian") or, in the case of Fund's operating in a
master-feeder or fund of funds structure, to the transfer
agent or interestholder recordkeeper for the master portfolio
in which the Fund invests;
(iii) pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(iv) receive for acceptance redemption requests and deliver the
appropriate documentation therefore to the Custodian or, in
the case of Fund's operating in a master-feeder structure, to
the transfer agent or interestholder recordkeeper for the
master fund in which the Fund invests;
(v) as and when it receives monies paid to it by the Custodian
with respect to any redemption, pay the redemption proceeds as
required by the prospectus pursuant to which the redeemed
Shares were offered and as instructed by the redeeming
Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the
appropriate Shareholder accounts) payments for all
distributions declared by the Trust with respect to Shares;
(viii) for those Funds that issue share certificates, issue share
certificates and replacement share certificates for those
share certificates alleged to have been lost, stolen, or
destroyed upon receipt by Forum of indemnification
satisfactory to Forum and protecting Forum and the Trust and,
at the option of Forum, issue replacement certificates in
place of mutilated share certificates upon presentation
thereof without requiring indemnification;
(ix) receive from Shareholders or debit Shareholder accounts for
sales commissions, including contingent deferred, deferred and
other sales charges, and service fees (i.e., wire redemption
charges) and prepare and transmit payments to underwriters,
selected dealers and others for commissions and service fees
received;
(x) track shareholder accounts by financial intermediary source
and otherwise as reasonably requested by the Trust and provide
periodic reporting to the Trust or its administrator or other
agent;
(xi) maintain records of account for and provide reports and
statements to the Trust and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Trust and maintain
pursuant to Rule 17Ad-10(e) under the Securities Exchange Act
of 1934, as amended ("1934 Act"), a record of the total number
of Shares of the Trust, each Fund and each Class thereof, that
are authorized, based upon data provided to it by the Trust,
and are issued and outstanding and provide the Trust on a
regular basis a report of the total number of Shares that are
authorized and the total number of Shares that are issued and
outstanding;
(xiii) provide a system which will enable the Trust to calculate the
total number of Shares of each Fund and Class thereof sold in
each State;
(xiv) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the
United States; and
(xv) oversee the activities of proxy solicitation firms.
(b) Forum shall receive and tabulate proxy votes, coordinate the tabulation
of proxy and shareholder meeting, votes and perform such other
additional services as may be specified from time to time by the Trust,
all pursuant to mutually acceptable compensation and implementation
agreements.
(c) The Trust or its administrator or other agent (i) shall identify to
Forum in writing those transactions and assets to be treated as exempt
from reporting for each state and territory of the United States and
for each foreign jurisdiction (collectively "States") and (ii) shall
monitor the sales activity with respect to Shareholders domiciled or
resident in each State. The responsibility of Forum for the Trust's
State registration status is solely limited to the reporting of
transactions to the Trust, and Forum 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 the
Trust or its administrator or other agent.
(d) Forum shall establish and maintain facilities and procedures reasonably
acceptable to the Trust and in accordance with industry standards for
the safekeeping, control, preparation and use of share certificates,
check forms, and facsimile signature imprinting devices. Forum shall
establish and maintain facilities and procedures reasonably acceptable
to the Trust and in accordance with industry standards for safekeeping
of all records maintained by Forum pursuant to this Agreement.
(e) Forum shall cooperate with each Fund's independent public accountants
and shall take reasonable action to make all necessary information
available to the accountants for the performance of the accountants'
duties.
(f) Forum shall cooperate with each Fund's administrator and shall take
reasonable action to make all necessary information available to the
administrator for the performance of the administrator's duties.
(g) Forum shall implement reasonable procedures and controls to ensure that
the Trust will be in compliance with the USA Patriot Act in connection
with the transfer agency activities undertaken by Forum on behalf of
the Trust pursuant to this Agreement; provided, however, that Forum
shall not be responsible for any recordkeeping, reporting, customer
vetting or other requirements of the USA Patriot Act with respect to
(A) customers the records about whom are established and/or maintained
by a broker-dealer or other financial intermediary and (B) customer
transactions transmitted by omnibus account from such broker-dealers or
other financial intermediaries.
(h) Except with respect to Forum's duties as set forth in this Section 2
and except as otherwise specifically provided in this Agreement, the
Trust assumes all responsibility for ensuring that the Trust complies
with all applicable requirements of the Securities Act, the 1940 Act
and any laws, rules and regulations of governmental authorities with
jurisdiction over the Trust. All references to any law in this
Agreement shall be deemed to include reference to the applicable rules
and regulations promulgated under authority of the law and all official
interpretations of such law or rules or regulations.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of Forum's responsibilities under this
Agreement, if applicable, the Trust shall deliver or cause
to be delivered over to Forum (i) an accurate list of Shareholders
of the Trust, showing each Shareholder's address of
record, number of Shares owned and whether such Shares are
represented by outstanding share certificates and (ii) all
Shareholder records, files, and other materials that are necessary o
appropriate and reasonably available to the Trust for
proper performance of the functions assumed by Forum under this
Agreement (collectively referred to as the "Materials").
The Trust shall on behalf of each applicable Fund or Class indemnify
and hold Forum harmless from and against any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses
and liability arising out of or attributable to any error, omission,
inaccuracy or other deficiency of the Materials, or out of the
failure of the Trust to provide any portion of the Materials.
(b) Forum shall maintain records showing for each Shareholder's
account the following: (i) names, addresses and tax
identification numbers; (ii) numbers of Shares held; (iii) historical
information (as available from prior transfer agents)regarding the
account of each Shareholder, including dividends paid and date
and price of all transactions on a Shareholder's account; (iv)
any stop or restraining order placed against a Shareholder's account;
(v) information with respect to withholdings; (vi) any capital
gain or dividend reinvestment order, plan application, dividend
address and correspondence relating to the current maintenance of a
Shareholder's account; (vii) certificate numbers and denominations
for any Shareholders holding certificates; (viii) any information
required in order for Forum to perform the calculations contemplated or
required by this Agreement; and (ix) such other information and data as
may be required by applicable law.
(c) Forum shall keep records relating to the services to be performed
under this Agreement, in the form and manner as it may deem advisabl
provided that it maintains all such records in accordance with the
requirements of applicable law. To the extent required by Section
31 of the 1940 Act, and the rules thereunder, Forum agrees that all
such records prepared or maintained by Forum relating to the
services to be performed by Forum under this Agreement are the property
of the Trust and will be preserved, maintained and made available in
accordance with Section 31 of the 1940 Act and the rules thereunder,
and will be surrendered promptly to the Trust on and in accordance
with the Trust's request. The Trust and the Trust's authorized
representatives shall have access to Forum's records relating t
the services to be performed under this Agreement at all times
during Forum's normal business hours. Upon the reasonable request
of the Trust, copies of any such records shall be provided promptly
by Forum to the Trust or the Trust's authorized representatives.
Forum shall maintain all such records irrespective of the retention
period prescribed in Rule 31a-2; provided, however, Forum shall
deliver such records to the Trust upon termination of this Agreement.
(d) Forum 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, including, without limitation, the information described in
Section 3(b) of this Agreement, shall remain confidential, and shall
not be voluntarily disclosed to any other person, except as may be
required by law, and shall not be used other than to carry out the
purposes for which it was disclosed.
(e) In case of any requests or demands for the inspection of the
Shareholder records of the Trust, Forum will notify the Trust and will
endeavor to secure instructions from an authorized officer of the Trust
as to such inspection. Forum shall abide by the Trust's instructions
for granting or denying the inspection; provided, however, that Forum
may grant the inspection without instructions if Forum is advised by
counsel to Forum that failure to do so will result in liability to
Forum.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Forum shall make original issues of Shares of each Fund and Class
thereof in accordance with the Trust's then current
prospectus only upon receipt of (i) instructions requesting the
issuance, (ii) a certified copy of a resolution of the Board
authorizing the issuance, (iii) necessary funds for the payment of
any original issue tax applicable to such Shares, and (iv) an opinion
of the Trust's counsel as to the legality and validity of the issuance,
which opinion may provide that it is contingent upon the filing by the
Trust of an appropriate notice with the SEC, as required by Section 24
of the 1940 Act or the rules thereunder. If the opinion described in
(iv)above is contingent upon a filing under Section 24 of the 1940 Act,
the Trust shall indemnify Forum for any liability arising from the
failure of the Trust to comply with that section or the rules
thereunder.
(b) Transfers of Shares of each Fund and Class thereof shall be registered
on the Shareholder records maintained by Forum. In registering
transfers of Shares, Forum may rely upon the Uniform Commercial Code as
in effect in the State of Delaware or any other statutes that, in the
opinion of Forum's counsel, protect Forum and the Trust from liability
arising from (i) not requiring complete documentation, (ii) registering
a transfer without an adverse claim inquiry, (iii) delaying
registration for purposes of such inquiry or (iv) refusing registration
whenever an adverse claim requires such refusal. As transfer agent,
Forum will be responsible for delivery to the transferor and transferee
of such documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) The Trust shall furnish to Forum a supply of blank share certificates
of each Fund and Class thereof for which share certificates are issued
and, from time to time, will renew such supply upon Forum's request.
Blank share certificates shall be signed manually or by facsimile
signatures of officers of the Trust authorized to sign by the Organic
Documents of the Trust and, if required by the Organic Documents, shall
bear the Trust's seal or a facsimile thereof. Unless otherwise directed
by the Trust, Forum may issue or register Share certificates reflecting
the manual or facsimile signature of an officer who has died, resigned
or been removed by the Trust.
(b) New Share certificates shall be issued by Forum upon surrender of
outstanding Share certificates in the form deemed by Forum to be
properly endorsed for transfer and satisfactory evidence of compliance
with all applicable laws relating to the payment or collection of
taxes. Forum shall forward Share certificates in "non-negotiable" form
by first-class or registered mail, or by whatever means Forum deems
equally reliable and expeditious. Forum shall not mail Share
certificates in "negotiable" form unless requested in writing by the
Trust and fully indemnified by the Trust to Forum's satisfaction.
(c) For any Fund or Class thereof that the Trust informs Forum does not
issue share certificates, Forum shall not issue any such share
certificates and the provisions of this Agreement relating to share
certificates shall not be applicable with respect to those Funds or
Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of a Fund's or
Class' Prospectus after Forum or its agent receives either:
(i) (A) an instruction directing investment in a Fund or Class,
(B) a check (other than a third party check) or a wire or
other electronic payment in the amount designated in the
instruction and (C), in the case of an initial purchase, a
completed account application; or
(ii) the information required for purchases pursuant to a selected
dealer agreement, processing organization agreement, or a
similar contract with a financial intermediary.
(b) Shares issued in a Fund after receipt of a completed purchase order
shall be eligible to receive distributions of the Fund at the time
specified in the Prospectus pursuant to which the Shares are offered.
(c) Shareholder payments shall be considered Federal Funds no later than on
the day indicated below unless other times are noted in the Prospectus
of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve
System, on the next Fund business day following receipt of
the check; and
(iii) for a check drawn on an institution that is not a member of
the Federal Reserve System, at such time as Forum is credited
with Federal Funds with respect to that check.
SECTION 7. COMPENSATION AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement, the
Trust, on behalf of each Fund, agrees to pay Forum the fees set forth
in Clauses (i) and (ii) of Appendix B hereto. Fees will begin to
accrue for each Fund on the latter of the date of this Agreement or
the date of commencement of operations of the Fund. If fees begin
to accrue in the middle of a month or if this Agreement terminates
before the end of any month, all fees for the period from that date to
the end of that month or from the beginning of that month to the date
of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the
effectiveness or termination occurs. Upon the termination of this
Agreement with respect to a Fund, the Trust shall pay to Forum such
compensation as shall be payable prior to the effective date of
termination and Forum shall reimburse the Fund for any advanced fees
paid with respect to the period on or after the date of termination.
The Trust acknowledges that Forum may from time to time earn money
on amounts in the deposit accounts maintained by Forum to service the
Funds (and other clients serviced by Forum).
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to
reimburse Forum for the expenses set forth in Appendix B hereto. In
addition, the Trust, on behalf of the applicable Fund,
shall reimburse Forum for all reasonable incurred expenses and
employee time that are (i) billed to the Trust by Forum and
(ii) attributable to any review of the Trust's accounts and records by
the Trust's independent accountants or any regulatory body outside of
routine and normal periodic reviews or examinations. Should the
Trust exercise its right to terminate this Agreement, the Trust, on
behalf of the applicable Fund, shall reimburse Forum for all
reasonable incurred out-of-pocket expenses and employee time that
are (i) billed to the Trust by Forum and (ii) associated with the
copying and movement of records and material to any successor person
and providing assistance to any successor person in the establishment
of the accounts and records necessary to carry out the successor's
responsibilities; provided, however, that the Trust shall not be
required to reimburse Forum for any employee time if the Trust has
terminated this Agreement because Forum has breached any material
representation, warranty, covenant or obligation and has failed to
cure such breach within a reasonable time after notice thereof from
the Trust.
(c) All fees and reimbursements shall be payable monthly. The Trust, on
behalf of the applicable Fund, agrees to pay all fees and reimbursable
expenses within thirty (30) business days.
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Forum represents, warrants and covenants to the Trust that:
(i) It is a limited liability company duly organized and
existing and in good standing under the laws of the State of
Delaware;
(ii) It is duly qualified to carry on its business in the State
of Maine;
(iii) It is empowered under applicable laws and by its Operating
Agreement to enter into this Agreement and perform its duties
under this Agreement;
(iv) All requisite corporate proceedings have been taken to
authorize it to enter into this Agreement and perform its
duties under this Agreement;
(v) It has and will continue to have access to the necessary
facilities, equipment, and personnel to perform its duties
and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of Forum, enforceable
against Forum in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies
of creditors and secured parties;
(vii) It is and will remain registered as a transfer agent under
Section 17A of the 1934 Act; and
(viii) It has and will retain all licenses, permits and registrations
necessary to perform its duties under this Agreement; and
(ix) It shall promptly notify the Trust if any representation,
warranty or covenant contained in this Section 8 becomes
untrue in any material respect.
(b) The Trust represents, warrants and covenants to Forum that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of Massachusetts;
(ii) It is empowered under applicable laws and by its Organic
Documents to enter into this Agreement and perform its duties
under this Agreement;
(iii) All requisite corporate proceedings have been taken to
authorize it to enter into this Agreement and perform its
duties under this Agreement;
(iv) It is and will remain an open-end management investment
company registered under the 1940 Act;
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies
of creditors and secured parties; and
(vi) A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate State
securities law filings have been made and will continue to be
made, with respect to all Shares of the Funds and Classes of
the Trust being offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) The Trust acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals maintained by Forum on databases or in connection
with electronic interfaces under the control and ownership of Forum or
a third party constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of
substantial value to Forum or the third party. The Trust agrees to
treat all Proprietary Information as proprietary to Forum and further
agrees that it shall not divulge any Proprietary Information to any
person or organization except as may be provided under this Agreement.
(b) Forum acknowledges that the Shareholder list and all information
related to Shareholders furnished to Forum by the Trust, any
Shareholder or any agent of the Trust or Shareholder in connection with
this Agreement (collectively, "Customer Data") constitute proprietary
information of substantial value to the Trust. In no event shall
Customer Data (as such, and as maintained and/or delivered according to
standard industry formats) be deemed Proprietary Information. Forum
agrees to treat all Customer Data as proprietary to the Trust and
further agrees that it shall not divulge any Customer Data to any
person or organization except as may be provided under this Agreement
or as may be directed in writing by the Trust.
SECTION 10. INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as specifically
set forth herein or as may be specifically agreed to by Forum in
writing. Forum shall use its best judgment and efforts in rendering the
services described in this Agreement. Forum shall not be liable to the
Trust for any action or inaction of Forum relating to any event
whatsoever in the absence of negligence, bad faith, or willful
misfeasance in the performance of Forum's duties or obligations under
this Agreement or by reason of Forum's reckless disregard of its duties
and obligations under this Agreement.
(b) Forum shall not be responsible for, and the Trust shall on behalf of
each applicable Fund or Class thereof indemnify and hold Forum, its
employees, directors, officers and managers and any person who controls
Forum within the meaning of section 15 of the Securities Act or section
20 of the 1934 Act ("Forum Indemnitees") harmless from and against, any
and all losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability arising out of or attributable to:
(i) all actions of Forum or its agents or subcontractors required
to be taken pursuant to this Agreement, provided that such
actions (or omissions to act) are taken in good faith and
without negligence or reckless disregard by Forum of its
duties and obligations under this Agreement;
(ii) the Trust's lack of good faith or the Trust's negligence or
willful misconduct;
(iii) the reasonable reliance on or use by Forum or its agents or
subcontractors of information, records, documents or services
which have been prepared, maintained or performed by the Trust
or any other person or firm (other than Forum or its agents or
subcontractors) on behalf of the Trust, including but not
limited to any previous transfer agent or registrar;
(iii) the reasonable reliance on any instructions or requests of the
Trust on behalf of the applicable Fund; and
(iv) 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.
(c) Forum shall indemnify and hold the Trust and each Fund or Class thereof
armless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out
of or attributed to any action or failure or omission to act by Forum
as a result of Forum's negligence, bad faith, willful misfeasance or
reckless disregard of its duties and obligations under this Agreement.
(d) At any time Forum may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust or to
Forum with respect to any matter arising in connection with the
services to be performed by Forum under this Agreement,
and, notwithstanding anything herein to the contrary, Forum and
any Forum Indemnitee shall not be liable and shall be
indemnified by the Trust on behalf of the applicable Fund for any
action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. Forum, its
agents and subcontractors shall be protected and indemnified in
acting upon (i) any paper or document furnished by or on behalf of the
Trust, reasonably believed by Forum to be genuine and to have been
signed by the proper person or persons, (ii) any instruction,
information, data, records or documents provided to Forum or its
agents or subcontractors by (A) electronic message, machine readable
input, telex, CRT data entry or (B) other similar means authorized by
the Trust, and (iii) any authorization, instruction, approval, item
or set of data, or information of any kind transmitted to Forum in
person or by telephone, vocal telegram, electronic message or other
electronic means, reasonably believed by Forum to be genuine and
to have been given by the proper person or persons. Forum shall not
be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Trust or other actual
notice thereof. Forum, its agents and subcontractors shall also be
protected and indemnified in recognizing share certificates
which are reasonably believed to bear the proper manual or facsimile
signatures of the officers of the Trust, and the proper counter-
signature of any former transfer agent or former registrar or of a
co-transfer agent or co-registrar of the Trust.
(e) If the Trust has the ability to originate electronic instructions to
Forum in order to (i) effect the transfer or movement of cash or Shares
or (ii) transmit Shareholder information or other information, then in
such event Forum shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further
inquiry as long as such instruction is undertaken in conformity with
reasonable security procedures established by Forum from time to time.
(f) The Trust has authorized or in the future may authorize Forum to act as
a "Mutual Fund Services Member" for the Trust or various Funds.
Fund/SERV and Networking are services sponsored by the National
Securities Clearing Corporation ("NSCC") and as used herein have the
meanings as set forth in the then current edition of NSCC Rules and
Procedures published by NSCC or such other similar publication as may
exist from time to time. The Trust shall indemnify and hold Forum
harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising
directly or indirectly out of or attributed to any action or failure or
omission to act by NSCC. Forum shall comply in all material respects
with NSCC Rules and Procedures to the extent applicable in performing
its services under this Agreement.
(g) In order that the indemnification provisions contained in this
Section 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 or to defend against
said claim in its own name or in the name of the other party.
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, nor shall the indemnifying party compromise or
settle any claim without the other party's written consent which shall
not be unreasonably withheld, conditioned or delayed.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each Fund or
Class on the earlier of (i) execution and delivery of this agreement by
the parties hereto and conversion from prior transfer agent and
services agreements, (ii) the date on which the Trust's Registration
Statement relating to the Shares of the Fund or Class becomes effective
or (iii) the date of the commencement of operations of the Fund or
Class. Upon effectiveness of this Agreement, it shall supersede all
previous agreements between the parties hereto covering the subject
matter hereof insofar as such Agreement may have been deemed to relate
to the Funds.
(b) This Agreement shall continue in effect with respect to a Fund until
terminated.
(c) This Agreement may be terminated with respect to a Fund at any time,
without the payment of any penalty, (i) by the Board on sixty (60)
days' written notice to Forum or (ii) by Forum on sixty (60) days'
written notice to the Trust. Any termination shall be effective as of
the date specified in the notice. Upon notice of termination of this
Agreement by either party, Forum shall promptly transfer to the
successor transfer agent the original or copies of all books and
records maintained by Forum under this Agreement including, in the case
of records maintained on computer systems, copies of such records in
machine-readable form, and shall cooperate with, and provide reasonable
assistance to, the successor transfer agent in the establishment of the
books and records necessary to carry out the successor transfer agent's
responsibilities.
(d) The provisions of Sections 3, 7, 8, 9, 10, 14, 15, and 17 shall survive
any termination of this Agreement.
SECTION 12. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares or
one or more classes of Shares after the effectiveness of this Agreement, such
series of Shares or classes of Shares, as the case may be, shall become Funds
and Classes under this Agreement. Forum or the Trust may elect not to make any
such series or classes subject to this Agreement.
SECTION 13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement
nor any rights or obligations under this Agreement may be assigned by either
party without the written consent of the other party; provided, however, that no
such consent shall be required if Forum assigns this Agreement to any affiliate
of Forum provided however, that Forum shall be as fully responsible to the Trust
for the acts and omissions of any permitted assignee as Forum is for its own
acts and omissions. For purposes of this Section 13, any transfer or series of
transfers of a controlling equity interest in Forum to a non-affiliate,
acquisition or series of acquisitions by a non-affiliate of all or substantially
all of Forum's assets, or merger of Forum and a non-affiliate in which the
equity investors of Forum do not control the surviving entity shall be deemed an
assignment; provided, however, that the transfer of ownership of all or part the
equity interest in Forum to Forum's management staff or the devisees or heirs of
Xxxx Xxxxxx shall not be deemed to be an assignment. This Agreement shall inure
to the benefit of and be binding upon the parties and their respective permitted
successors and assigns.
SECTION 14. FORCE MAJEURE
Forum shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns beyond its
reasonable control, flood or catastrophe, acts of God, insurrection, war,
terrorism, riots or failure of the mails or any transportation medium,
communications medium not within Forum's control or power supply.
SECTION 15. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trust is a Massachusetts Business Trust. The Trustees of the Trust
and the shareholders of each Fund shall not be liable for any obligations of the
Trust or of the Funds under this Agreement, and Forum agrees that, in asserting
any rights or claims under this Agreement, it shall look only to the assets and
property of the Trust or the Fund to which Forum's rights or claims relate in
settlement of such rights or claims, and not to the Trustees of the Trust or the
shareholders of the Funds. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each Fund of the
Trust are separate and distinct from the assets and liabilities of each other
Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this Agreement
or otherwise.
SECTION 16. TAXES
Forum shall not be liable for any taxes, assessments or governmental
charges that may be levied or assessed on any basis whatsoever in connection
with the Trust or any Shareholder or any purchase of Shares, excluding taxes
assessed against Forum for compensation received by it under this Agreement.
SECTION 17. MISCELLANEOUS
(a) Notwithstanding any other provisions hereof to the contrary, neither
party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement. There are
no third party beneficiaries to this Agreement.
(b) Except for Appendix A to add new Funds and Classes in accordance with
Section 12, no provisions of this Agreement may be amended or modified
in any manner except by a written agreement properly authorized and
executed by both parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance
with, the laws of the State of Delaware.
(d) 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.
(e) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be illegal,
in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the
rights and obligations of the parties shall be construed and enforced
as if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid. This Agreement shall be
construed as if drafted jointly by both Forum and Trust and no
presumptions shall arise favoring any party by virtue of authorship of
any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this
Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, or at such other
address as a party may have designated in writing, shall be deemed to
have been properly given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on
any day other than a Fund business day. Functions or duties normally
scheduled to be performed on any day which is not a Fund business day
shall be performed on, and as of, the next Fund business day, unless
otherwise required by law.
(j) No affiliated person (as that term is defined in the 1940 Act),
employee, agent, director, officer or manager of Forum shall be liable
at law or in equity for Forum's obligations under this Agreement.
(k) Each of the undersigned expressly warrants and represents that they
have full power and authority to sign this Agreement on behalf of the
party indicated and that their signature will bind the party indicated
to the terms hereof and each party hereto warrants and represents that
this Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the party, enforceable against the
party in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(l) The terms and "affiliated person," "assignment" and "vote of a majority
of the outstanding voting securities" shall have the meanings ascribed
thereto in the 1940 Act.
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
persons, as of the day and year first above written.
THE XXXXXX ASSET ALLOCATION TRUST
By:/s/A.M. Xxxxx III
---------------------
A. M. XXXXX III
Vice President and Trustee
FORUM SHAREHOLDER SERVICES, LLC
By: /s/Xxxx X. Xxxxxxxx
-----------------------
Xxxx X. Xxxxxxxx
Director
THE XXXXXX ASSET ALLOCATION TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
Appendix A
Funds and Classes of the Trust
Fund Name Class Name CUSIP Symbol
------------------------------------------------------------------------------
Xxxxxx Managed Growth with Income Fund Advisor Shares 982225104 WGIAY*
*Un-official symbol. Non-NASDAQ fund
THE XXXXXX ASSET ALLOCATION TRUST
By:/s/ A. M. Xxxxx III
-----------------------
A. M. XXXXX III
Vice President and Trustee
FORUM SHAREHOLDER SERVICES, LLC
By:/s/ Xxxx X. Xxxxxxxx
----------------------
Xxxx X. Xxxxxxxx
Director
THE XXXXXX ASSET ALLOCATION TRUST
TRANSFER AGENCY AND SERVICES AGREEMENT
Appendix B
Fees and Expenses
(i) Base Fees
$1,000 per month per CUSIP.
(Subject to renegotiation if the total number of CUSIPs is less than 12
or more than 20.)
(ii) Account Fees
$1.00 per month per open shareholder account/Non-NSCC Networked
Level 3.
$0.75 per month per open shareholder account/NSCC Networked Level 3.
$0.25 per month per closed shareholder account.
(iii) Internet Fees
Client and Financial Intermediary Remote Inquiry provided at no cost.
Shareholder Remote Inquiry/Trading/Account Opening - $500 per CUSIP per
year.
(iv) Out-Of-Pocket Expenses
The Trust, on behalf of the applicable Fund, shall reimburse Forum for
all reasonable out-of-pocket or advances incurred in providing the
services described in this Agreement, including but not limited to the
reasonable cost of (or appropriate share of the cost of): (i)
statement, confirmation, envelope and stationary stock, (ii) share
certificates, (iii) printing of checks and drafts, (iv) postage, (v)
telecommunications, (vi) NSCC Mutual Fund Service Member fees and
expenses, (vii) banking charges, (viii) outside proxy solicitors and
tabulators, (ix) proxy solicitation fees and (x) record storage,
document imaging, microfilm and microfiche. In addition, any other
expenses incurred by Forum at the request or with the consent of the
Trust, will be reimbursed by the Trust on behalf of the applicable
Fund. Notwithstanding the foregoing, the Trust shall not be required to
reimburse Forum for Forum's out-of-pocket costs relating to banking
services (DDA account, wire and ACH, check and draft clearing and lock
box fees and charges).
