TRANSFER AGENCY AND SERVICE AGREEMENT
between
XXXX XXXXX FOCUS TRUST, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
----
1. Terms of Appointment and Duties.........................................1
2. Third Party Administrators for Defined Contribution Plans ..............4
3. Fees and Expenses.......................................................5
4. Representations and Warranties of the Transfer Agent....................6
5. Representations and Warranties of the Fund..............................6
6. Wire Transfer Operating Guidelines......................................7
7. Data Access and Proprietary Information.................................8
8. Indemnification........................................................10
9. Standard of Care.......................................................11
10. Year 2000..............................................................12
11. Confidentiality .......................................................12
12. Covenants of the Fund and the Transfer Agent...........................13
13. Termination of Agreement...............................................13
14. Assignment and Third Party Beneficiaries...............................14
15. Subcontractors.........................................................14
16. Miscellaneous..........................................................15
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 1st day of August, 1998, by and between XXXX XXXXX
Focus Trust, Inc., a Maryland corporation, having its principal office and place
of business at 000 Xxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxx 00000-0000
(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 "Transfer Agent").
WHEREAS, the Fund desires to appoint the Transfer Agent as its transfer agent,
dividend disbursing agent, custodian of certain retirement plans and agent in
connection with certain other activities, and the Transfer Agent 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 and Duties
-------------------------------
1.1 Co-Transfer Agent. For the period commencing on August 1, 1998 and
ending on September 11, 1998 and subject to the terms and conditions
set forth in this Agreement, the Fund hereby employs and appoints the
Transfer Agent to act as, and the Transfer Agent agrees to act as, a
Co-Transfer Agent to the Fund for the services as outlined below:
(a) Provide the transfer agency services under Section 1.2 and 1.3 as
a Co-Transfer Agent through an omnibus account in the name of
Xxxx Xxxxx Xxxx Xxxxxx, Inc. for the exclusive benefit of
customers maintained on the stock transfer records of First Data
Corporation, the Fund's present transfer agent.
(b) Transactions identified under Section 1.1 of this Agreement shall
be deemed exception services ("Exception Services") when such
transactions
o Require the Transfer Agent to use methods and procedures other
than those usually employed by the Transfer Agent to perform
services under Section 1.2 of this Agreement;
o Involve the provision of information to the Transfer Agent after
the commencement of the nightly processing cycle of the TA2000
System; or
o Require more manual intervention by the Transfer Agent, 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-omnibus accounts and pre-nightly transactions.
1.2 Transfer Agency Services. Commencing on September 11, 1998 and
subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints the Transfer Agent to act as, and
the Transfer Agent agrees to act as its sole transfer agent for the
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Fund's authorized and issued shares of its common stock, $ 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 the
Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information ("prospectus") of
the Fund, including without limitation any periodic investment plan
or periodic withdrawal program. The Transfer Agent agrees that it
will perform the following services:
(a) In accordance with procedures established from time to time
by agreement between the Fund and the Transfer Agent, the
Transfer Agent 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 Transfer Agent 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) Prepare and transmit payments for dividends and
distributions declared by the Fund;
(viii) Issue replacement certificates for those
certificates alleged to have been lost, stolen or
destroyed upon receipt by the Transfer Agent of
indemnification satisfactory to the Transfer Agent
and protecting the Transfer Agent and the Fund, and
the Transfer Agent 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
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(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 Transfer
Agent 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.
1.3 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, the
Transfer Agent shall perform the following services:
(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 and filing U.S.
Treasury Department Forms 1099 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.
(b) Control Book (also known as "Super Sheet"). Maintain a daily
record and produce a daily report for the Fund of all
transactions and receipts and disbursements of money and
securities and deliver a copy of such report for each Fund
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
Transfer Agent 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 Transfer Agent 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
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Fund to monitor the total number of Shares sold in each
State;
(d) National Securities Clearing Corporation (the "NSCC"). (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 Transfer Agent 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 Transfer Agent; (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 the affected Fund's
records on DST Systems, Inc. computer system TA2000 ("TA2000
System") in accordance with NSCC's Networking and Fund/SERV
rules for those broker-dealers; (iii) 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 Transfer Agent. The Transfer Agent 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.
2. Third Party Administrators for Defined Contribution Plans
---------------------------------------------------------
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 Transfer Agent and the Fund from time to time ("Schedule 2.1"),
the Transfer Agent 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
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(c) Perform all services under Section 1 as transfer agent of the
Funds and not as a record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be
deemed exception services ("Exception Services") when such
transactions:
(a) Require the Transfer Agent to use methods and procedures other
than those usually employed by the Transfer Agent to perform
services under Section 1 of this Agreement;
(b) Involve the provision of information to the Transfer Agent
after the commencement of the nightly processing cycle of the
TA2000 System; or
(c) Require more manual intervention by the Transfer Agent, 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
-----------------
3.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent 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 written agreement between
the Fund and the Transfer Agent.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Fund agrees to reimburse the Transfer Agent 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
Transfer Agent for the items set out in Schedule 3.1 attached hereto.
In addition, any other expenses incurred by the Transfer Agent 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
Transfer Agent 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 Transfer Agent 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
6
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 Transfer Agent
----------------------------------------------------
The Transfer Agent 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.
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.
5. Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Transfer Agent 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.
7
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code
---------------------------------------------------------------------
6.1 The Transfer Agent 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
Transfer Agent has been instructed to transfer. The Transfer Agent
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 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 Transfer Agent. The Fund shall restrict
access to confidential information relating to the Security Procedure
to authorized persons as communicated to the Transfer Agent in
writing. The Fund must notify the Transfer Agent 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
personnel. The Transfer Agent shall verify the authenticity of all
Fund instructions according to the Security Procedure.
6.3 The Transfer Agent 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 Transfer Agent 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
Transfer Agent's receipt of such payment order; (b) if initiating
such payment order would cause the Transfer Agent, in the Transfer
Agent's sole judgement, to exceed any volume, aggregate dollar,
network, time, credit or similar limits which are applicable to the
Transfer Agent; or (c) if the Transfer Agent, in good faith, is
unable to satisfy itself that the transaction has been properly
authorized.
6.5 The Transfer Agent 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 Transfer Agent
reasonable opportunity to act. However, the Transfer Agent assumes no
liability if the request for amendment or cancellation cannot be
satisfied.
6.6 The Transfer Agent shall assume no responsibility for failure to
detect any erroneous payment order provided that the Transfer Agent
complies with the payment order instructions as received and the
Transfer Agent 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.
8
6.7 The Transfer Agent shall assume no responsibility for lost interest
with respect to the refundable amount of any unauthorized payment
order, unless the Transfer Agent is notified of the unauthorized
payment order within thirty (30) days of notification by the Transfer
Agent of the acceptance of such payment order. In no event (including
failure to execute a payment order) shall the Transfer Agent 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 Transfer Agent 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 Transfer Agent with respect to an
ACH credit entry are provisional until the Transfer Agent receives
final settlement for such entry from the Federal Reserve Bank. If the
Transfer Agent does not receive such final settlement, the Fund
agrees that the Transfer Agent 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.
6.9 Confirmation of Transfer Agent's execution of payment orders shall
ordinarily be provided within twenty four (24) hours notice of which
may be delivered through the Transfer Agent'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
---------------------------------------
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 Transfer Agent as
part of the Fund's ability to access certain Fund-related data
("Customer Data") maintained by the Transfer Agent on data bases
under the control and ownership of the Transfer Agent or other third
party ("Data Access Services") constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent 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 Transfer Agent 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) Use such programs and data bases (i) solely on the Fund's
computers, or (ii) solely from equipment at the location
agreed to between the Fund and the Transfer Agent and (iii)
solely in accordance with the Transfer Agent's applicable
user documentation;
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(b) Refrain from copying or duplicating in any way (other than
in the normal course or performing processing on the Fund's
computer(s)), 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
Transfer Agent's instructions;
(d) Refrain from causing or allowing information transmitted
from the Transfer Agent's computer to the Fund's terminal to
be retransmitted to any other computer terminal or other
device except as expressly permitted by the Transfer Agent
(such permission not to be unreasonably withheld);
(e) Allow the Fund to have access only to those authorized
transactions as agreed to between the Fund and the Transfer
Agent;
(f) Honor all reasonable written requests made by the Transfer
Agent to protect at the Transfer Agent's expense the rights
of the Transfer Agent 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 Transfer Agent; 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.
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 Transfer Agent 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 Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from
which the Transfer Agent may obtain certain data included in the Data
Access Services are solely responsible for the contents of such data
10
and the Fund agrees to make no claim against the Transfer Agent 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 TRANSFER AGENT 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 Transfer Agent 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
Transfer Agent 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 Transfer Agent 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 shall survive any earlier termination of this Agreement.
8. Indemnification
---------------
8.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent 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 Transfer Agent or its agent or
subcontractors required to be taken pursuant to this
Agreement, provided that such actions are taken in good faith
and without negligence or willful misconduct;
(b) The 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 Transfer Agent, or its agents or
subcontractors on: (i) any information, records, documents,
data, stock certificates or services, which are received by
the Transfer Agent or its agents or 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 Transfer Agent under
this Agreement which are provided to the Transfer Agent after
11
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 Transfer Agent;
(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 shall apply, upon the assertion of a claim for which the
Fund may be required to indemnify the Transfer Agent, the Transfer
Agent 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
Transfer Agent in the defense of such claim or to defend against said
claim in its own name or in the name of the Transfer Agent. The
Transfer Agent shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to indemnify
the Transfer Agent except with the Fund's prior written consent.
9. Standard of Care
----------------
9.1 The Transfer Agent 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.
9.2 In the case of Exception Services as defined in Section 2.3 herein,
the Transfer Agent shall be held to a standard of gross negligence
and encoding and payment processing errors shall not be deemed
negligence.
10. Year 2000
---------
The Transfer Agent 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
12
issues arising between now and the next one-hundred years, and if any
changes are required, the Transfer Agent 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
---------------
11.1 The Transfer Agent 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
Transfer Agent or of the Fund, used or gained by the Transfer Agent
or the Fund during performance under this Agreement. The Fund and the
Transfer Agent 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 Transfer Agent 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 available to the party whose
confidential information is disclosed. The above prohibition of
disclosure shall not apply to the extent that the Transfer Agent must
disclose such data to its sub-contractor or Fund agent for purposes
of providing services under this Agreement.
11.2 In the event that any requests or demands are made for the inspection
of the Shareholder records of the Fund, other than request for
records of Shareholders pursuant to standard subpoenas from state or
federal government authorities (i.e., divorce and criminal actions),
the Transfer Agent will endeavor to notify the Fund and to secure
instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves the right, however,
to exhibit the Shareholder records to any person whenever it is
advised by counsel that it may be held liable for the failure to
exhibit the Shareholder records to such person or if required by law
or court order.
12. Covenants of the Fund and the Transfer Agent
--------------------------------------------
12.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) A certified copy of the resolution of the Board of Directors
of the Fund authorizing the appointment of the Transfer
Agent 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 Transfer Agent 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
13
devices, if any; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
12.3 The Transfer Agent 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 Transfer Agent agrees
that all such records prepared or maintained by the Transfer Agent
relating to the services to be performed by the Transfer Agent
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
------------------------
13.1 This Agreement may be terminated by either party upon one hundred
twenty (120) 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 Transfer Agent reserves the
right to charge for any other reasonable expenses associated with
such termination and a charge equivalent to the average of three (3)
months' fees. Payment of such expenses or costs shall be in
accordance with Section 3.4 of this Agreement.
14. Assignment and Third Party Beneficiaries.
----------------------------------------
14.1 Except as provided in Section 15.1 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the 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 Transfer Agent
and the Fund, and the duties and responsibilities undertaken pursuant
to this Agreement shall be for the sole and exclusive benefit of the
Transfer Agent 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 Transfer Agent 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.
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15. Subcontractors
---------------
15.1 The Transfer Agent 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 Securities Exchange Act of 1934, as amended, (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 Transfer Agent 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 Transfer Agent in
connection with or make the Transfer Agent 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 Transfer Agent selected such company, the
Transfer Agent 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 or transmission failure or damage reasonably beyond
its control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes.
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.
15
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 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.
(a) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Telephone: (617) 774-_______
Facsimile: (000) 000-0000
(b) If to the Fund, to:
16
Xxxx Xxxxx Focus Trust, Inc.
000 Xxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Attention:
Telephone:
Facsimile:
17
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.
XXXX XXXXX FOCUS TRUST, INC.
BY: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
ATTEST: /s/ Xxxxx X. Xxxx
STATE STREET BANK AND TRUST
COMPANY
BY: /s/ Xxxxxx X. Xxxxx
------------------------------------
Executive Vice President
ATTEST: /s/ illegible
18
