Exhibit 9(a)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
SECURITY CAPITAL REAL ESTATE MUTUAL FUNDS INCOPORPORATED
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
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Page
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1. Terms of Appointment; Duties of the Bank............................. 1
2. Third Party Administrators for Defined Contribution Plans............ 4
3. Fees and Expenses.................................................... 5
4. Representations and Warranties of the Bank........................... 5
5. Representations and Warranties of the Fund........................... 6
6. Wire Transfer Operating Guidelines................................... 6
7. Data Access and Proprietary Information.............................. 8
8. Indemnification...................................................... 9
9. Standard of Care..................................................... 10
10. Year 2000............................................................ 11
11. Confidentiality...................................................... 11
12. Covenants of the Fund and the Bank................................... 12
13. Termination of Agreement............................................. 12
14. Assignment and Third Party Beneficiaries............................. 12
15. Subcontractors....................................................... 13
16. Miscellaneous........................................................ 13
17. Additional Funds..................................................... 15
TRANSFER AGENCY AND SERVICE AGREEMENT
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AGREEMENT made as of the 30th day of June, 1998, by and between Security Capital
Real Estate Mutual Funds Incorporated, a Maryland corporation, having its
principal office and place of business at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 (the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company having its principal office and place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund is authorized to issue shares in separate series and classes,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund intends to initially offer shares in several series and
classes named in the attached Schedule A, which may be amended by the parties
from time to time (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
Article 13, being herein referred to as a "Portfolio", and collectively as the
"Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Bank as its
transfer agent, dividend disbursing agent, custodian of certain retirement plans
and agent in connection with certain other activities, and the Bank desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. Terms of Appointment; Duties of the Bank
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1.1 Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Fund, on behalf of the Portfolios, hereby employs
and appoints the Bank to act as, and the Bank agrees to act as its
transfer agent for the Fund's authorized and issued shares of its common
stock, $.01 par value, ("Shares"), dividend disbursing agent, custodian of
certain retirement plans and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of each of the
respective Portfolios of the Fund ("Shareholders") and set out in the
currently effective prospectus and statement of additional information
("prospectus") of the Fund on behalf of the applicable Portfolio,
including without limitation any periodic investment plan or periodic
withdrawal program. The Bank agrees that it will perform the following
services:
(a) In accordance with procedures established from time to time by
agreement between the Fund on behalf of each of the Portfolios, as
applicable and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof
to the Custodian of the Fund authorized pursuant to the
Articles of Incorporation of the Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof
to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and (iii)
above, the Bank shall execute transactions directly with
broker-dealers authorized by the Fund;
(v) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over
or cause to be paid over in the appropriate manner such monies
as instructed by the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vii) As dividend disbursing agent only, prepare and transmit
payments for dividends and distributions declared by the Fund
on behalf of the applicable Portfolio including the crediting
of shareholder accounts in the case of dividend reinvestment
plans;
(viii) Issue replacement certificates for those certificates alleged
to have been lost, stolen or destroyed upon receipt by the
Bank of indemnification satisfactory to the Bank and
protecting the Bank and the Fund, and the Bank at its option,
may issue replacement certificates in place of mutilated stock
certificates upon presentation thereof and without such
indemnity;
(ix) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing and
(x) Record the issuance of shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number
of shares of the Fund which are authorized, based upon data
provided to it by the Fund, and issued and outstanding. The
Bank shall also provide the Fund on a regular basis with the
total number of shares which are authorized and issued and
outstanding and shall have no obligation, when recording the
issuance of shares, to monitor the issuance of such shares or
to take cognizance of any laws relating to the issue or sale
of such shares, which functions shall be the sole
responsibility of the Fund.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the Bank
shall perform the following services:
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(a) Other Customary Services. (i) Perform the customary services of a
transfer agent, dividend disbursing agent, custodian of certain
retirement plans and, as relevant, agent in connection with
accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal
program), including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing Shareholder
proxies, Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts,
preparing, mailing and filing U.S. Treasury Department Forms 1099,
average cost statements and other appropriate forms required with
respect to dividends and distributions by federal authorities for all
Shareholders, preparing and mailing confirmation forms and statements
of account to Shareholders for all purchases and redemptions of Shares
and other confirmable transactions in Shareholder accounts, preparing
and mailing activity statements for Shareholders, and providing
Shareholder account information. Such U.S. Treasury Department Forms
1099 and other appropriate forms hereunder will provide annual notices
to shareholders of dividends and distributions.
(b) Control Book (also known as "Super Sheet"). Maintain a daily record
and produce a daily report for each Fund of all transactions and
receipts and disbursements of money and securities and deliver a copy
of such report for each Portfolio for each business day to the Fund no
later than 9:00 AM, or such earlier time as the Fund may reasonably
require, on the next business day;
(c) "Blue Sky" Reporting. The Fund shall (i) identify to the Bank in
writing those transactions and assets to be treated as exempt from
blue sky reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The
responsibility of the Bank for the Fund's blue sky State registration
status is solely limited to the initial establishment of transactions
subject to blue sky compliance by the Fund and providing a system
which will enable the Fund to monitor the total number of Shares sold
in each State;
(d) National Securities Clearing Corporation (the "NSCC"). The Bank shall
(i) accept and effectuate the registration and maintenance of accounts
through Networking and the purchase, redemption, transfer and exchange
of shares in such accounts through Fund/SERV (networking and Fund/SERV
being programs operated by the NSCC on behalf of NSCC's participants,
including the Fund), in accordance with, instructions transmitted to
and received by the Bank by transmission from NSCC on behalf of
broker-dealers and banks which have been established by, or in
accordance with the instructions of authorized persons, as hereinafter
defined on the dealer file maintained by the Bank; (ii) issue
instructions to Fund's banks for the settlement of transactions
between the Fund and NSCC (acting on behalf of its broker-dealer and
bank participants); (iii) provide account and transaction information
from affected Fund's records on DST Systems, Inc. computer system
TA2000 ("TA2000 System") in accordance with
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NSCC's Networking and Fund/SERV rules for those broker-dealers; and
(iv) maintain Shareholder accounts on TA2000 System through
Networking.
(e) New Procedures. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time
to time by agreement between the Fund and the Bank. The Bank may at
times perform only a portion of these services and the Fund or its
agent may perform these services on the Fund's behalf.
(f) Other Service Providers. The Bank acknowledges that the Fund may
contract with other service providers to furnish services to the Fund
and its shareholders and shall cooperate with such other service
providers in connection with the performance of its duties hereunder.
2. Third Party Administrators for Defined Contribution Plans
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2.1 The Fund may decide to make available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation ("Plan or
Plans") for the benefit of the individual Plan participant (the "Plan
Participant"), such Plan(s) being qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended ("Code") and administered by
third party administrators which may be plan administrators as defined in
the Employee Retirement Income Security Act of 1974, as amended (the
"TPA(s)").
2.2 In accordance with the procedures established in the initial Schedule 2.1
entitled "Third Party Administrator Procedures", as may be amended by the
Bank and the Fund from time to time ("Schedule 2.1"), the Bank shall:
(a) Treat Shareholder accounts established by the Plans in the name of
the Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under Section 1 as transfer agent of the Funds
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and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be deemed
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exception services ("Exception Services") when such transactions:
(a) Require the Bank to use methods and procedures other than those
usually employed by the Bank to perform services under Section 1 of
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this Agreement;
(b) Involve the provision of information to the Bank after the
commencement of the nightly processing cycle of the TA2000 System; or
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(c) Require more manual intervention by the Bank, either in the entry of
data or in the modification or amendment of reports generated by the
TA2000 System than is usually required by non-retirement plan and
pre-nightly transactions.
3. Fees and Expenses
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3.1 Fee Schedule. For the performance by the Bank pursuant to this Agreement,
the Fund agrees to pay the Bank an annual maintenance fee for each
Shareholder account as set forth in the attached fee schedule ("Schedule
3.1"). Such fees and out-of-pocket expenses and advances identified under
Section 3.2 below may be changed from time to time subject to mutual
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written agreement between the Fund and the Bank.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Fund agrees to reimburse the Bank for out-of-pocket expenses,
including but not limited to confirmation production, postage, forms,
telephone, microfilm, microfiche, mailing and tabulating proxies, records
storage, or advances incurred by the Bank for the items set out in
Schedule 3.1 attached hereto. In addition, any other expenses incurred by
the Bank at the request or with the consent of the Fund, will be
reimbursed by the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, Fund reports and other
mailings to all shareholder accounts shall be advanced to the Bank by the
Fund at least seven (7) days prior to the mailing date of such materials.
3.4 Invoices. The Fund agrees to pay all fees and reimbursable expenses within
thirty (30) days following the receipt of the respective billing notice,
except for any fees or expenses which are subject to good faith dispute.
In the event of such a dispute, the Fund may only withhold that portion of
the fee or expense subject to the good faith dispute. The Fund shall
notify the Bank in writing within twenty-one (21) calendar days following
the receipt of each billing notice if the Fund is disputing any amounts in
good faith. If the Fund does not provide such notice of dispute within the
required time, the billing notice will be deemed accepted by the Fund.
4. Representations and Warranties of the Bank
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The Bank represents and warrants to the Fund that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
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4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
4.6 It is registered as a transfer agent under Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended ("Exchange Act").
5. Representations and Warranties of the Fund
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The Fund represents and warrants to the Bank that:
5.1 It is a corporation duly organized and existing and in good standing under
the laws of Maryland.
5.2 It is empowered under applicable laws and by its Articles of Incorporation
and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Articles of Incorporation and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end and diversified management investment company registered
under the Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended 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 Fund being offered for sale.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
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Code
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6.1 The Bank is authorized to promptly debit the appropriate Fund account(s)
upon the receipt of a payment order in compliance with the selected
security procedure (the "Security Procedure") chosen for funds transfer
and in the amount of money that the Bank has been instructed to transfer.
The Bank shall execute payment orders in compliance with the Security
Procedure and with the Fund instructions on the execution date provided
that such payment order is received by the customary deadline (currently
3:00 p.m. Eastern time) for processing such a request, unless the payment
order specifies a later time. All payment orders and communications
received after this the customary deadline will be deemed to have been
received the next business day.
6.2 The Fund acknowledges that the Security Procedure it has designated on the
Fund Selection Form was selected by the Fund from security procedures
offered by the Bank. The Fund shall restrict access to confidential
information relating to the Security Procedure to authorized persons as
communicated to the Bank in writing. The Fund must notify the Bank
immediately if it has reason to believe unauthorized persons may have
obtained access to such information or of any change in the Fund's
authorized
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personnel. The Bank shall verify the authenticity of all Fund instructions
according to the Security Procedure.
6.3 The Bank shall process all payment orders on the basis of the account
number contained in the payment order. In the event of a discrepancy
between any name indicated on the payment order and the account number,
the account number shall take precedence and govern.
6.4 The Bank reserves the right to decline to process or delay the processing
of a payment order which (a) is in excess of the collected balance in the
account to be charged at the time of the Bank's receipt of such payment
order; (b) if initiating such payment order would cause the Bank, in the
Bank's sole judgement, to exceed any volume, aggregate dollar, network,
time, credit or similar limits which are applicable to the Bank; or (c) if
the Bank, in good faith, is unable to satisfy itself that the transaction
has been properly authorized.
6.5 The Bank shall use reasonable efforts to act on all authorized requests to
cancel or amend payment orders received in compliance with the Security
Procedure provided that such requests are received in a timely manner
affording the Bank reasonable opportunity to act. However, the Bank
assumes no liability if the request for amendment or cancellation cannot
be satisfied.
6.6 The Bank shall assume no responsibility for failure to detect any
erroneous payment order provided that the Bank complies with the payment
order instructions as received and the Bank complies with the Security
Procedure. The Security Procedure is established for the purpose of
authenticating payment orders only and not for the detection of errors in
payment orders.
6.7 The Bank shall assume no responsibility for lost interest with respect to
the refundable amount of any unauthorized payment order, unless the Bank
is notified of the unauthorized payment order within thirty (30) days of
confirmation by the Bank of the acceptance of such payment order. In no
event (including failure to execute a payment order) shall the Bank be
liable for special, indirect or consequential damages, even if advised of
the possibility of such damages.
6.8 When the Fund initiates or receives Automated Clearing House credit and
debit entries pursuant to these guidelines and the rules of the National
Automated Clearing House Association and the New England Clearing House
Association, the Bank will act as an Originating Depository Financial
Institution and/or receiving depository Financial Institution, as the case
may be, with respect to such entries. Credits given by the Bank with
respect to an ACH credit entry are provisional until the Bank receives
final settlement for such entry from the Federal Reserve Bank. If the
Bank does not receive such final settlement, the Fund agrees that the Bank
shall receive a refund of the amount credited to the Fund in connection
with such entry, and the party making payment to the Fund via such entry
shall not be deemed to have paid the amount of the entry.
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6.9 Confirmation of Bank's execution of payment orders shall ordinarily be
provided within twenty four (24) hours, notice of which may be delivered
through the Bank's proprietary information systems, or by facsimile or
call-back. Fund must report any objections to the execution of an order
within thirty (30) days.
7. Data Access and Proprietary Information
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7.1 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Bank as part of the Fund's ability to
access certain Fund-related data ("Customer Data") maintained by the Bank
on data bases under the control and ownership of the Bank or other third
party ("Data Access Services") constitute copyrighted, trade secret, or
other proprietary information (collectively, "Proprietary Information") of
substantial value to the Bank or other third party. In no event shall
Proprietary Information be deemed Customer Data. The Fund agrees to
treat all Proprietary Information as proprietary to the Bank and further
agrees that it shall not divulge any Proprietary Information to any person
or organization except as may be provided hereunder. Without limiting the
foregoing, the Fund agrees for itself and its employees and agents to:
(a) Access Customer Data solely from locations as may be designated in
writing by the Bank and solely in accordance with the Bank's
applicable user documentation;
(b) Refrain from copying or duplicating in any way the Proprietary
Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose of
such information in accordance with the Bank's instructions;
(d) Refrain from causing or allowing information transmitted from the
Bank's computer to the Fund's or its affiliates' terminal to be
retransmitted to any other computer terminal or other device except
as expressly permitted by the Bank (such permission not to be
unreasonably withheld);
(e) Allow the Fund to have access only to those authorized transactions
agreed upon by the parties;
(f) Honor all reasonable written requests made by the Bank to protect at
the Bank's expense the rights of the Bank in Proprietary Information
at common law, under federal copyright law and under other federal or
state law.
7.2 Neither Proprietary Information or Customer Data shall include all or any
portion of any of the foregoing items that: (i) are or become publicly
available without breach of this Agreement; (ii) are released for general
disclosure by a written release by the Bank; or (iii) are already in the
possession of the receiving party at the time or receipt without
obligation of confidentiality or breach of this Agreement.
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7.3 The parties acknowledge that their obligation to protect the other's
Proprietary Information or Customer Data is essential to the business
interest of the Bank and the other party and that the disclosure of such
Proprietary Information or Customer Data in breach of this Agreement would
cause the other party immediate, substantial and irreparable harm, the
value of which would be extremely difficult to determine. Accordingly, the
parties agree that, in addition to any other remedies that may be
available in law, equity, or otherwise for the disclosure or use of the
Proprietary Information or Customer Data in breach of this Agreement, the
party whose Proprietary Information or Customer Data is disclosed shall be
entitled to seek and obtain a temporary restraining order, injunctive
relief, or other equitable relief against the continuance of such breach.
7.4 If the Fund notifies the Bank that any of the Data Access Services do not
operate in material compliance with the most recently issued user
documentation for such services, the Bank shall endeavor in a timely
manner to correct such failure. Organizations from which the Bank may
obtain certain data included in the Data Access Services are solely
responsible for the contents of such data and the Fund agrees to make no
claim against the Bank arising out of the contents of such third-party
data, including, but not limited to, the accuracy thereof. DATA ACCESS
SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN
CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. THE
BANK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED
HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to originate
electronic instructions to the Bank 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 the Bank 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 security procedures established by the Bank from time to
time.
7.6 Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 7. The obligations of this Section
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shall survive any earlier termination of this Agreement.
8. Indemnification
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8.1 The Bank shall not be responsible for, and the Fund shall indemnify and
hold the Bank harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out
of or attributable to:
(a) All actions of the Bank or its agent or affiliated subcontractors
required to be taken pursuant to this Agreement, provided that such
actions are taken in good faith and without negligence or willful
misconduct;
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(b) The Fund's lack of good faith, negligence or willful misconduct which
arise out of the breach of any representation or warranty of the Fund
hereunder;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Bank, or its agents or affiliated subcontractors on:
(i) any information, records, documents, data, stock certificates or
services, which are received by the Bank or its agents or affiliated
subcontractors by machine readable input, facsimile, CRT data entry,
electronic instructions or other similar means authorized by the
Fund, and which have been prepared, maintained or performed by the
Fund or any other person or firm on behalf of the Fund including but
not limited to any previous transfer agent or registrar; (ii) any
instructions or requests of the Fund or any of its officers; (iii)
any instructions or opinions of legal counsel with respect to any
matter arising in connection with the services to be performed by the
Bank under this Agreement which are provided to the Bank after
consultation with such legal counsel; or (iv) any paper or document,
reasonably believed to be genuine, authentic, or signed by the proper
person or persons;
(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination
or ruling by any federal or any state agency with respect to the
offer or sale of such Shares;
(e) The negotiation and processing of any checks including without
limitation for deposit into the Fund's demand deposit account
maintained by the Bank;
(f) Upon the Fund's request entering into any agreements required by the
National Securities Clearing Corporation (the "NSCC") required by the
NSCC for the transmission of Fund or Shareholder data through the
NSCC clearing systems;
8.2 In order that the indemnification provisions contained in this Section 8
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shall apply, upon the assertion of a claim for which the Fund may be
required to indemnify the Bank, the Bank shall promptly notify the Fund of
such assertion, and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have the option to
participate with the Bank in the defense of such claim or to defend
against said claim in its own name or in the name of the Bank. The Bank
shall in no case confess any claim or make any compromise in any case in
which the Fund may be required to indemnify the Bank except with the
Fund's prior written consent.
9. Standard of Care
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9.1 The Bank shall at all times act in good faith and agrees to use its best
efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of its
employees, except as provided in Section 9.2 below.
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9.2 In the case of Exception Services as defined in Section 2.3 herein, the
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Bank shall be held to a standard of gross negligence and encoding and
payment processing errors shall not be deemed negligence.
10. Year 2000
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The Bank will take reasonable steps to ensure that its products (and those
of its third-party suppliers) reflect the available technology to offer
products that are Year 2000 ready, including, but not limited to, century
recognition of dates, calculations that correctly compute same century and
multi century formulas and date values, and interface values that reflect
the date issues arising between now and the next one-hundred years, and if
any changes are required, the Bank will make the changes to its products
at a price to be agreed upon by the parties and in a commercially
reasonable time frame and will require third-party suppliers to do
likewise.
11. Confidentiality
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11.1 The Bank and the Fund agree that they will not, at any time during the
term of this Agreement or after its termination, reveal, divulge, or make
known to any person, firm, corporations or other business organization,
any customers' lists, trade secrets, cost figures and projections, profit
figures and projections, or any other secret or confidential information
whatsoever, whether of the Bank or of the Fund, used or gained by the Bank
or the Fund during performance under this Agreement. The Fund and the
Bank further covenant and agree to retain all such knowledge and
information acquired during and after the term of this Agreement
respecting such lists, trade secrets, or any secret or confidential
information whatsoever in trust for the sole benefit of the Bank or the
Fund and their successors and assigns. In the event of breach of the
foregoing by either party, the remedies provided by Section 7.3 shall be
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available to the party whose confidential information is disclosed. The
above prohibition of disclosure shall not apply to the extent that the
Bank must disclose such data to its sub-contractor or Fund agent for
purposes of providing services under this Agreement.
11.2 In the event of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund
and to secure instructions from an authorized officer of the Fund as to
such inspection. The Bank reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel
that it may be held liable for the failure to exhibit the Shareholder
records to such person.
11.3 In the event that any requests or demands are made for the inspection of
the Shareholder records of the Fund, other than requests for records of
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Shareholders pursuant to standard subpoenas from state or federal
-----------------------------------------------------------------
government authorities (i.e., divorce and criminal actions), the Bank will
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endeavor to notify the Fund and to secure instructions from an authorized
officer of the Fund as to such inspection. The Bank expressly reserves
the right, however, to exhibit the Shareholder records to any person
whenever it is advised by
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counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
12. Covenants of the Fund and the Bank
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12.1 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Directors of the
Fund authorizing the appointment of the Bank and the execution and
delivery of this Agreement; and
(b) A copy of the Articles of Incorporation and By-Laws of the Fund and
all amendments thereto.
12.2 The Bank hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Fund for safekeeping of stock certificates,
check forms and facsimile signature imprinting devices, if any; and for
the preparation or use, and for keeping account of, such certificates,
forms and devices.
12.3 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended,
and the Rules thereunder, the Bank agrees that all such records prepared
or maintained by the Bank relating to the services to be performed by the
Bank hereunder are the property of the Fund and will be preserved,
maintained and made available in accordance with such Section and Rules,
and will be surrendered promptly to the Fund on and in accordance with its
request.
13. Termination of Agreement
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13.1 This Agreement may be terminated by either party upon ninety (90) days
written notice to the other.
13.2 Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be
borne by the Fund. Additionally, the Bank reserves the right to charge for
any other reasonable expenses associated with such termination and a
charge equivalent to the average of one (1) month's fees.
13.3 Upon termination of this Agreement, each party shall return to the other
party all copies of confidential or proprietary materials or information
received from such other party hereunder, other than materials or
information required to be retained by such party under applicable laws or
regulations.
14. Assignment and Third Party Beneficiaries
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14.1 Except as provided in Section 15.1 below, neither this Agreement nor any
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rights or obligations hereunder may be assigned by either party without
the written consent of the
12
other party. Any attempt to do so in violation of this Section shall be
void. Unless specifically stated to the contrary in any written consent
to an assignment, no assignment will release or discharge the assignor
from any duty or responsibility under this Agreement.
14.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits in this
Agreement to anyone other than the Bank and the Fund, and the duties and
responsibilities undertaken pursuant to this Agreement shall be for the
sole and exclusive benefit of the Bank and the Fund. This Agreement shall
inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
14.3 This Agreement does not constitute an agreement for a partnership or joint
venture between the Bank and the Fund. Other than as provided in Section
-------
15.1, neither party shall make any commitments with third parties that are
---
binding on the other party without the other party's prior written
consent.
15. Subcontractors
--------------
15.1 The Bank may, without further consent on the part of the Fund, subcontract
for the performance hereof with (i) Boston Financial Data Services, Inc.,
a Massachusetts corporation ("BFDS") which is duly registered as a
transfer agent pursuant to Section 17A(c)(2) of the Exchange Act, (ii) a
BFDS subsidiary duly registered as a transfer agent or (iii) a BFDS
affiliate duly registered as a transfer agent; provided, however, that the
Bank shall be fully responsible to the Fund for the acts and omissions of
BFDS or its subsidiary or affiliate as it is for its own acts and
omissions.
15.2 Nothing herein shall impose any duty upon the Bank in connection with or
make the Bank liable for the actions or omissions to act of unaffiliated
third parties such as by way of example and not limitation, Airborne
Services, Federal Express, United Parcel Service, the U.S. mails, the NSCC
and telecommunication companies, provided, if the Bank selected such
company, the Bank shall have exercised due care in selecting the same.
16. Miscellaneous
-------------
16.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Board of Directors of the Fund.
16.2 Massachusetts Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
16.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment properly maintained by the Bank or transmission failure
or damage reasonably beyond its control, or other
13
causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to
perform or otherwise from such causes.
16.4 Consequential Damages. Neither party to this Agreement shall be liable to
the other party for consequential damages under any provision of this
Agreement or for any consequential damages arising out of any act or
failure to act hereunder.
16.5 Survival. All provisions regarding indemnification, warranty, liability,
and limits thereon, and confidentiality and/or protection of proprietary
rights and trade secrets shall survive the termination of this Agreement.
16.6 Severability. If any provision or provisions of this Agreement shall be
held invalid, unlawful, or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
16.7 Priorities Clause. In the event of any conflict, discrepancy or ambiguity
between the terms and conditions contained in this Agreement and any
Schedules or attachments hereto, the terms and conditions contained in
this Agreement shall take precedence.
16.8 Waiver. No waiver by either party or any breach or default of any of the
covenants or conditions herein contained and performed by the other party
shall be construed as a waiver of any succeeding breach of the same or of
any other covenant or condition.
16.9 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect
to the subject matter hereof whether oral or written.
16.10 Counterparts. This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
16.11 Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other
similar process. The parties hereto each agree that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course
of business, and that any enlargement, facsimile or further reproduction
shall likewise be admissible in evidence.
16.12 Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by facsimile or first class mail,
postage prepaid, addressed as follows or to such other address or
addresses of which the respective party shall have notified the other.
14
(a) If to the Bank, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Security Capital Real Estate Mutual Funds Incorporated
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Xx.
Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Copies to: Xxxxx Xxxxxx, Esq.
Chief Compliance Officer
17. Additional Funds. In the event that the Fund establishes one or more series
of Shares in addition to the attached Schedule A with respect to which it
desires to have the Bank render services as transfer agent under the terms
hereof, it shall so notify the Bank in writing, and if the Bank agrees in
writing to provide such services, such series of Shares shall become a
Portfolio hereunder.
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
SECURITY CAPITAL REAL ESTATE
MUTUAL FUNDS INCOPORPORATED
BY: /s/ Xxxx X. Xxxxxxx, Xx.
----------------------------------------------
Xxxx X. Xxxxxxx, Xx.
Managing Director
ATTEST:
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------
STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Executive Vice President
ATTEST:
/s/ X. Xxxxx
-----------------------------
16
SCHEDULE A
Dated June 30, 1998
Security Capital U.S. Real Estate Shares - Class I Shares*
Security Capital U.S. Real Estate Shares - Class R Shares*
Security Capital European Real Estate Shares - Class I Shares
Security Capital European Real Estate Shares - Class R Shares
Security Capital Asia/Pacific Real Estate Shares - Class I Shares
Security Capital Asia/Pacific Real Estate Shares - Class R Shares
Security Capital Real Estate Arbitrage Shares - Class I Shares
*services and fees relating thereto commencing August 10, 1998
SECURITY CAPITAL REAL ESTATE STATE STREET BANK AND
MUTUAL FUNDS INCORPORATED BANK AND TRUST COMPANY
BY: /s/ Xxxx X. Xxxxxxx, Xx. BY: /s/ Xxxxxx X. Xxxxx
------------------------------ ------------------------------
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR(S) PROCEDURES
Dated June 30, 1998
1. On each Business Day, the TPA(s) shall receive, on behalf of and as agent
of the Fund(s), Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the
purchases of Shares, and (ii) requests by the Plan for the redemption of
Shares; in each case based on the Plan's receipt of purchase orders and
redemption requests by Participants in proper form by the time required by
the term of the Plan, but not later than the time of day at which the net
asset value of a Fund is calculated, as described from time to time in that
Fund's prospectus. Each Business Day on which the TPA receives
Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such Instructions,
to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Bank of the net amount of such purchases or
redemptions, as the case may be, for each of the Plans. In the case of net
purchases by any Plan, the TPA(s) shall instruct the Trustees of such Plan
to transmit the aggregate purchase price for Shares by wire transfer to the
Bank on (TD+1). In the case of net redemptions by any Plan, the TPA(s)
shall instruct the Fund's custodian to transmit the aggregate redemption
proceeds for Shares by wire transfer to the Trustees of such Plan on
(TD+1). The times at which such notification and transmission shall occur
on (TD+1) shall be as mutually agreed upon by each Fund, the TPA(s), and
the Bank.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Bank and such
account shall be in the name of that Plan, the TPA(s), or the nominee of
either thereof as the record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of Shares
and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan as
of the statement closing date, purchases and redemptions of Shares by the
Plan during the period covered by the statement, and the dividends and
other distributions paid to the Plan on Shares during the statement period
(whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to the
Plans prospectuses, proxy materials, reports, and other information
provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to each
Fund or any agent designated by it such periodic reports covering Shares of
each Plan as each Fund shall reasonably conclude are necessary to enable
the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders and
redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses, proxy
materials, periodic reports and other materials relating to each Fund be
furnished to Participants in which event the Bank or each Fund shall mail
or cause to be mailed such materials to Participants. With respect to any
such mailing, the TPA(s) shall, at the request of the Bank or each Fund,
provide at the TPA(s)'s expense complete and accurate set of mailing labels
with the name and address of each Participant having an interest through
the Plans in Shares.
SECURITY CAPITAL REAL ESTATE STATE STREET BANK AND
MUTUAL FUNDS INCORPORATED BANK AND TRUST COMPANY
BY: /s/ Xxxx X. Xxxxxxx, Xx. BY: /s/ Xxxxxx X. Xxxxx
----------------------------- -------------------------------
2
SCHEDULE 3.1
Fee Information for Services as
Plan, Transfer and Dividend Disbursing Agent
SECURITY CAPITAL
Dated June 30, 1998
--------------------------------------------------------------------------------
ANNUAL ACCOUNT SERVICE FEES
--------------------------------------------------------------------------------
Daily Dividend Fund $ 14.00
Non-Daily Dividend Fund $ 12.00
Closed Account Fee $ 1.80
Minimum (per Fund/Class)
1st Fund $40,000
2nd & 3rd Fund $30,000
4th & 5th Fund $20,000
5th Fund+ $15,000
Each class is considered a fund and will be billed accordingly.
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. A
charge is made for an account in the month that an account opens or closes.
Account service fees are the higher of: open account charges plus closed
account charges or the fund minimum.
--------------------------------------------------------------------------------
ACTIVITY BASED FEES
--------------------------------------------------------------------------------
New Account Set-up $ 5.00/each
Manual Transactions $ 1.50/each
Telephone Calls $ 2.50/each
Correspondence $ 1.50/each
Research Requests $ 1.50/each
--------------------------------------------------------------------------------
BANKING SERVICES
--------------------------------------------------------------------------------
Checkwriting Setup $ 5.00
Checkwriting (per draft) $ 1.00
ACH $ .35
--------------------------------------------------------------------------------
OTHER FEES
--------------------------------------------------------------------------------
Investor Processing $ 1.80/Investor
12b-1 Commissions $ 1.20/account
--------------------------------------------------------------------------------
CONVERSION FEES
--------------------------------------------------------------------------------
Per Account Fee $ 1.00
Minimum (per complex) $25,000
--------------------------------------------------------------------------------
XXX CUSTODIAL FEES
--------------------------------------------------------------------------------
Annual Maintenance $ 10.00/account
--------------------------------------------------------------------------------
OUT-OF-POCKET EXPENSES BILLED AS INCURRED
--------------------------------------------------------------------------------
Out-of-Pocket expenses include but are not limited to: confirmation statements,
average cost statements, investor statements, postage, forms, audio response,
telephone, records retention, customized programming / enhancements, federal
wire, transcripts, microfilm, microfiche, and expenses incurred at the specific
direction of the fund.
THESE FEES WILL BE SUBJECT TO AN ANNUAL COST OF LIVING ADJUSTMENT BASED ON
REGIONAL CONSUMER PRICE INDEX.
SECURITY CAPITAL REAL ESTATE STATE STREET BANK AND
MUTUAL FUNDS INCORPORATED BANK AND TRUST COMPANY
BY:/s/ Xxxx X Xxxxxxx Xx. BY:/s/ Xxxxxx X Xxxxx
---------------------- -------------------
2
