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Ex-99.k(1)
TRANSFER AGENCY, DIVIDEND DISBURSING AGENCY
AND SHAREHOLDER SERVICING AGENCY AGREEMENT
THIS AGREEMENT made as of the 12th day of October 1989 by and
between XXXXXXX XXXXX PRIME FUND, INC., a Maryland corporation
(the "Fund"), and FINANCIAL DATA SERVICES, INC., a New Jersey
Corporation ("FDS").
WITNESSETH:
WHEREAS, the Fund wishes to appoint FDS to be the Transfer
Agent, Dividend Disbursing Agent and Shareholder Servicing Agent
for the Fund on, and subject to, the terms and provisions of this
Agreement, and FDS is desirous of accepting such appointment on,
and subject to, such terms and provisions:
NOW, THEREFORE, in consideration of mutual covenants con-
tained in this Agreement, the Fund and FDS agree as follows:
1. Appointment of FDS as Transfer Agent, Dividend Dis-
bursing Agent and Shareholder Servicing Agent.
(a) The Fund hereby appoints FDS to act as Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent for the
Fund on, and subject to, the terms and provisions of this
Agreement.
(b) FDS hereby accepts the appointment as Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent for the
Fund, and agrees to act as such on, and subject to, the terms and
provisions of the Agreement.
2. Definitions.
(a) In this Agreement:
(I) The term "Act" means the Investment Company Act
of 1940, as amended from time to time, and any rule or
regulation thereunder;
(II) The term "Account" means any account of a Share-
holder, or, if the shares are held in an account in the name
of MLPF&S for benefit of an identified customer, such ac-
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count, including a Plan Account, any account under a plan (by
whatever name referred to in the Prospectus) pursuant to the
Self-Employed Individuals Retirement Act of 1962 ("Xxxxx Act
Plan") and any plan (by whatever name referred to in the
Prospectus) in conjunction with Section 401 of the Internal
Revenue Code ("Corporation Master Plan")
(III) The term "application" means an application made
by a Shareholder or prospective Shareholder respecting the
opening of an Account;
(IV) The term "MLFD" means Xxxxxxx Xxxxx Funds
Distributor, Inc., a Delaware corporation;
(V) The term "MLPF&S" means Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, a Delaware corporation;
(VI) The term "Officer's Instruction" means an
instruction in writing given on behalf of the Fund to FDS,
and signed on behalf of the Fund by the President, any Vice
President, the Secretary or the Treasurer of the Fund;
(VII) The term "Prospectus" means the Prospectus of
the Fund, as from time to time in effect;
(VIII) The term "Shares" means shares of Common Stock
of the Fund; and
(IX) The term "Shareholder" means the holder of
record of Shares.
3. Duties of FDS as Transfer Agent, Dividend Disbursing
Agent and Shareholder servicing Agent.
(a) Subject to the succeeding provisions of the Agreement,
FDS hereby agrees to perform the following functions as Transfer
Agent, Dividend Disbursing Agent and Shareholder Servicing Agent
for the Fund;
(I) Issuing, transferring and redeeming Shares;
(II) Opening, maintaining, servicing and closing
Accounts;
(III) Acting as agent of the Fund and/or MLPF&S,
maintaining such records as may permit the imposition of such
early withdrawal charges as may be described in the
Prospectus, including such reports as may be reasonably
requested by the Fund with respect to such Shares as may be
subject to an early withdrawal charge;
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(IV) Upon the repurchase pursuant to a tender of
Shares subject to such an early withdrawal charge,
calculating and deducting from the tender offer proceeds
thereof the amount of such charge in the manner set forth in
the Prospectus.
(V) Processing tender offers;
(VI) Examining and approving legal transfers;
(VII) Replacing lost, stolen or destroyed certificates
representing Shares, in accordance with, and subject to,
procedures and conditions adopted by the Fund;
(VIII) Furnishing such confirmations of transactions
relating to their Shares as required by applicable law;
(IX) Acting as agent for the Fund and/or MLPF&S,
furnishing such appropriate periodic statements relating to
Accounts, together with additional enclosures, including
appropriate income tax information and income tax forms duly
completed, as required by applicable law;
(X) Acting as agent for the Fund and/or MLPF&S,
mailing annual, semi-annual and quarterly reports prepared by
or on behalf of the Fund, and mailing new Prospectuses on
their issue to Shareholders as required by applicable law;
(XI) Furnishing such periodic statements of trans-
actions effected by FDS, reconciliations, balances and
summaries as the Fund may reasonably request;
(XII) Maintaining such books and records relating to
transactions effected by FDS as are required by the Act, or
by any other applicable provision of law, rule or regulation,
to be maintained by the Fund or its transfer agent with
respect to such transactions, and preserving, or causing to
be preserved any such books and records for such periods as
may be required by any such law, rule or regulation and as
may be agreed on from time to time between FDS and the Fund.
In addition, FDS agrees to maintain and preserve master files
and historical computer tapes on a daily basis in multiple
separate locations a sufficient distance apart to insure
preservation of at least one copy of such information;
(XIII) Withholding taxes on non-resident alien
Accounts, preparing and filing U.S. Treasury Department Form
1099 and other appropriate forms as required by applicable
law with respect to dividends and distributions; and
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(XIV) Reinvesting dividends for full and fractional
shares and disbursing cash dividends, as applicable.
(b) FDS agrees to act as proxy agent in connection with the
holding of annual, if any, and special meetings of Shareholders,
mailing such notices, proxies and proxy statements in connection
with the holding of such meetings as may be required by applicable
law, receiving and tabulating votes cast by proxy and
communicating to the Fund the results of such tabulation accom-
panied by appropriate certificates, and preparing and furnishing
to the Fund certified lists of Shareholders as of such date, in
such form and containing such information as may be required by
the Fund.
(c) FDS agrees to deal with, and answer in a timely manner,
all correspondence and inquires relating to the functions of FDS
under this Agreement with respect to Accounts.
(d) FDS agrees to furnish to the Fund such information and
at such intervals as is necessary for the Fund to comply with the
registration and/or the reporting requirements (including
applicable escheat laws) of the Securities and Exchange Commis-
Sion, Blue Sky authorities or other governmental authorities.
(e) FDS agrees to provide to the Fund such information as
may reasonably be required to enable the Fund to reconcile the
number of outstanding Shares between FDS's records and the account
books of the Fund.
(f) Notwithstanding anything in the foregoing provisions of
this paragraph, FDS agrees to perform its functions thereunder
subject to such modification (whether in respect of particular
cases or in any particular class of cases) as may from time to
time be contained in an officer's Instruction.
4. Compensation.
The charges for services described in this Agreement, in-
cluding "out-of-pocket" expenses, will be set forth in the Sche-
dule of Fees attached hereto.
5. Right of Inspection.
FDS agrees that it will in a timely manner make available to,
and permit, any officer, accountant, attorney or authorized agent
of the Fund to examine and make transcripts and copies (including
photocopies and computer or other electronically information storage
media and print-outs) of any and all of its books and records
which relate to any transaction or function performed by MLFDS
under or pursuant to this Agreement.
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6. Confidential Relationship.
FDS agrees that it will, on behalf of itself and its officers
and employees, treat all transactions contemplated by this
Agreement, and all information germane thereto, as confidential
and not to be disclosed to any person (other than the Shareholder
concerned, or the Fund, or as may be disclosed in the examination
of any books or records by any person lawfully entitled to examine
the same) except as may be authorized by the Fund by way of an
officer's Instruction.
7. Indemnification.
The Fund shall indemnify and hold FDS harmless from any loss,
costs, damage and reasonable expenses, including reasonable
attorney's fees (provided that such attorney is appointed with the
Fund's consent, which consent shall not be unreasonably withheld),
incurred by it resulting from any claim, demand, action, or suit
in connection with the performance of its duties hereunder, pro-
vided that this indemnification shall not apply to actions or
omissions of FDS in cases of willful misconduct, failure to act in
good faith or negligence by FDS, it's officers, employees or
agents, and further provided, that prior to confessing any claim
against it which may be subject to this indemnification, FDS shall
give the Fund reasonable opportunity to defend against said claim
in its own name or in the name of FDS. An action taken by FDS on
any Officer's Instruction reasonably believed by it to have been
properly executed shall not constitute willful misconduct, failure
to act in good faith or negligence under this Agreement.
5. Regarding FDS.
(a) FDS hereby agrees to hire, purchase, develop and
maintain such dedicated personnel, facilities, equipment, soft-
xxxx, resources and capabilities as may be reasonably determined
by the Fund to be necessary for the satisfactory performance of
the duties and responsibilities of FDS. FDS warrants and
represents that its officers and supervisory personnel charged
with carrying out its functions as Transfer Agent, Dividend Dis-
bursing Agent and Shareholder Servicing Agent for the Fund possess
the special skill and technical knowledge appropriate for that
purpose. FDS shall at all times exercise due care and diligence
in the performance of its functions as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund.
FDS agrees that, in determining whether it has exercised due care
and diligence, its conduct shall be measured by the standard
applicable to persons possessing such special skill and technical
knowledge.
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(b) FDS warrants and represents that it is duly authorized
and permitted to act as Transfer Agent, Dividend Disbursing Agent,
and Shareholder Servicing Agent under all applicable laws and that
it will immediately notify the Fund of any revocation of such
authority or permission or of the commencement of any proceeding
or other action which may lead to such revocation.
9. Termination.
(a) This Agreement shall become effective as of the date
first above written and shall thereafter continue from year to
year. This Agreement may be terminated by the Fund or FDS
(without penalty to the Fund or FDS) provided that the terminating
party gives the other xxxxx written notice of such termination at
least sixty (60) days in advance, except that the Fund may
terminate this Agreement immediately on written notice to FDS if
the authority or permission of FDS to act as Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent has been
revoked or if any proceeding or other action which the Fund
reasonably believes will lead to such revocation has been com-
menced.
(b) Upon termination of this Agreement, FDS shall deliver
all unissued and canceled stock certificates representing Shares
remaining in its possession, and all Shareholder records, books,
stock ledgers, instruments and other documents (including compu-
terized or other electronically stored information) made or accu-
mulated in the performance of its duties as Transfer Agent, Dis-
bursing Agent and Shareholder Servicing Agent for the Fund along
with a certified locator document clearly indicating the complete
contents therein, to such successor as may be specified in a
notice of termination or Officer's Instruction; and the Fund
assumes all responsibility for failure thereafter to produce any
paper, record or documents so delivered and identified in the
locator document, if and when required to be produced.
10. Amendment.
Except to the extent that the performance by FDS or its
functions under this Agreement may from time to time be modified
by an Officer's Instruction, this Agreement may be amended or
modified only by further written Agreement between the parties.
11. Governing Law.
This Agreement shall be governed by the laws of the State of
New Jersey.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective duly authorized offi-
cers and their respective corporate seals hereunto duly affixed
and attested, as of the day and year above written.
XXXXXXX XXXXX PRIME FUND, INC.
By /s/ XXXXXX XXXXXX
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ATTEST:
/s/ XXXXXX XXXXXX
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Secretary
FINANCIAL DATA SERVICES, INC.
By /s/ XXXXXX X. XXXX
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ATTEST:
[SIG]
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Secretary
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