REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE XXXXXXX XXXXXX TRUST, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Terms of Appointment; Duties of theBank............1
2. Fees and Expenses..................................3
3. Representations and Warranties of the Bank.........4
4. Representations and Warranties of the Fund.........5
5. Data Access and Proprietary Information............6
6. Indemnification....................................8
7. Standard of Care..................................11
8. Covenants of the Fund and the Bank................11
9. Termination of Agreement..........................13
10. Assignment........................................13
11. Amendment.........................................14
12. Massachusetts Law to Apply........................14
13. Force Majeure.....................................14
14. Consequential Damages.............................14
15. Merger of Agreement...............................15
16. Counterparts......................................15
REGISTRAR,TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the day of , 1994, by and between THE XXXXXXX XXXXXX TRUST,
INC., a Maryland corporation, having its principal office and place of business
at 0000 Xxxx-Xxxx Xxxxxxx, Xxxxxxxx, 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 desires to appoint the Bank
as its registrar, 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
1.1 Subject to the terms and conditions set forth in
this Agreement, the Fund
hereby employs and appoints the Bank to act as, and
the Bank agrees to act
as registrar, transfer agent for the Fund's
authorized and issued shares
of its common stock, ("Shares"), dividend
disbursing agent, custodian of
certain retirement plans and agent in
connection with any dividend
reinvestment plan in effect as of the date of this
Agreement.
1.2 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 and the
Bank, the Bank shall:
(i) Issue and record the appropriate number
of Shares as
authorized and hold such Shares in the
appropriate
Shareholder account;
(ii) Effect transfers of Shares by the
registered owners
thereof upon receipt of appropriate
documentation;
(iii) Prepare and transmit payments for
dividends and
distributions declared by the Fund;
(iv) Act as agent for Shareholders
pursuant to the dividend
reinvestment and cash purchase plan as
amended from time to time
and mutually agreed upon by the
Fund and the Bank in
substantially the form attached as
Exhibit A hereto; and
(vi) 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;
(b) In addition to and neither in lieu nor in contravention of the services set
forth in the above paragraph (a), the Bank shall: (i) perform all the customary
services of a registrar, transfer agent, dividend disbursing agent, custodian of
certain retirement plans and agent of the dividend reinvestment and cash
purchase plan as described in Section 1 consistent with those requirements in
effect as at the date of this Agreement. The detailed definition, frequency,
limitations and associated costs (if any) set out in the attached fee schedule,
include but not limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies and proxy material to current
shareholders and receiving and tabulating proxies, mailing Shareholder reports
to current Shareholders, withholding and paying on a timely basis taxes on U.S.
resident and non-resident alien accounts where applicable, preparing and filing
U.S. Treasury Department Forms 1099 and other appropriate forms required with
respect to dividends and distributions by federal or state authorities for all
registered Shareholders, preparing and mailing confirmations and statements of
account to shareholders for all confirmable transactions in shareholder
accounts, and providing shareholder information. (c) The Bank shall provide
additional services on behalf of the Fund (i.e., escheatment services) which may
be agreed upon in writing between the Fund and the Bank.
2. Fees and Expenses
2.1 For the performance by the Bank pursuant to this Agreement, the Fund agrees
to pay the Bank an annual maintenance fee as set out in the initial fee schedule
attached hereto. Such fees and out-of-pocket expenses and advances identified
under Section 2.2 below may be changed from time to time subject to mutual
written agreement between the Fund and the Bank. 2.2 In addition to the fee paid
under Section 2.1 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, tabulating proxies, records storage, or
advances incurred by the Bank for the items set out in the fee schedule 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. 2.3 The Fund
agrees to pay all fees and reimbursable expenses within five days following the
receipt of the respective billing notice. 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. Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
3.1 It is a trust company duly organized and
existing and in good standing
under the laws of the Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its
business in the
Commonwealth of Massachusetts.
3.3 It is empowered under applicable laws and by its
Charter and By-Laws to
enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been
taken to authorize it to
enter into and perform this Agreement.
3.5 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. Representations and Warranties of the Fund
The Fund represents and warrants to the Bank that:
4.1 It is a corporation duly organized and existing and
in good standing under
the laws of Maryland.
4.2 It is empowered under applicable laws and by its
Articles of Incorporation
and By-Laws to enter into and perform this
Agreement.
4.3 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.
4.4 It is a closed-end, diversified investment
company registered under the
Investment Company Act of 1940, as amended.
4.5 To the extent required by federal securities laws a
registration statement
under the Securities Act of 1933, as amended, is
currently effective, and
appropriate state securities law filings have
been made with respect to
all Shares of the Fund being offered for sale;
information to the contrary
will result in immediate notification to the Bank.
4.6 It shall make all required filings under
federal and state securities
laws.
5. Data Access and Proprietary Information 5.1 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: (a) to 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) to refrain from
copying or duplicating in any way the Proprietary Information; (c) to refrain
from obtaining unauthorized access to any portion of the Proprietary
Information, and if such access is inadvertently obtained, to inform the Bank in
a timely manner of such fact and dispose of such information in accordance with
the Bank's instructions; (d) to refrain from causing or allowing third-party
data acquired hereunder from being retransmitted to any other computer facility
or other location, except with the prior written consent of the Bank; (e) that
the Fund shall have access only to those authorized transactions agreed upon by
the parties; and (f) to 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. Each party shall take reasonable efforts to advise its employees
of their obligations pursuant to this Section 5. The obligations of this Section
shall survive any earlier termination of this Agreement. 5.2 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. 5.3 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, (such transactions constituting a
"COEFI"), 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.
6. Indemnification 6.1 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
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 on or use by the Bank or its agents or
subcontractors of information, records, documents or services which (i) are
received by the Bank or its agents or subcontractors, and (ii) 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. (d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of, any instructions or requests of the Fund. (e) The offer or
sale of Shares in violation of any requirement under the federal securities laws
or regulations or the securities laws or regulations of any state that such
Shares be registered in such state or in violation of any stop order or other
determination or ruling by any federal agency or any state with respect to the
offer or sale of such Shares in such state. 6.2 The Bank shall indemnify and
hold the Fund harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to any action or failure or omission to act by the Bank as a result
of the Bank's lack of good faith, negligence or willful misconduct. 6.3 At any
time, the Bank may apply to any officer of the Fund for instructions, and may
consult with legal counsel with respect to any matter arising in connection with
the services to be performed by the Bank under this Agreement, and the Bank and
its agents or subcontractors shall not be liable and shall be indemnified by the
Fund for any action taken or omitted by it in reliance upon such instructions or
upon the opinion of such counsel. The Bank, its agents and subcontractors shall
be protected and indemnified in acting upon any paper or document furnished by
or on behalf of the Fund, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided the Bank or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means authorized
by the Fund, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Fund. The Bank, its
agents and subcontractors shall also be protected and indemnified in recognizing
stock certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Fund, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar. 6.4 In order that the indemnification
provisions contained in this Section 6 shall apply, upon the assertion of a
claim for which either party may be required to indemnify the other, the party
seeking indemnification shall promptly notify the other party of such assertion,
and shall keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify shall have the
option to participate with the party seeking indemnification in the defense of
such claim. The party seeking indemnification shall in no case confess any claim
or make any compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
7. Standard of Care 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.
8. Covenants of the Fund and the Bank
8.1 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.
(b) A copy of the Articles of Incorporation
and By-Laws of
the Fund and all amendments thereto.
8.2 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.
8.3 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.
8.4 The Bank and the Fund agree that all books, records, information and data
pertaining to the business of the other party which are exchanged or received
pursuant to the negotiation or the carrying out of this Agreement shall remain
confidential, and shall not be voluntarily disclosed to any other person, except
as may be required by law.
8.5 In case 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.
9. Termination of Agreement
9.1 This Agreement may be terminated by either party
upon one hundred twenty
(120) days written notice to the other.
9.2 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/or a
charge equivalent to the average of three (3)
months' fees.
10. Assignment
10.1 Except as provided in Section 10.3 below, neither
this Agreement nor any
rights or obligations hereunder may be assigned
by either party without
the written consent of the other party.
10.2 This Agreement shall inure to the benefit of
and be binding upon the
parties and their respective permitted successors
and assigns.
10.3 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)(1) of
the Securities Exchange
Act of 1934, as amended ("Section 17A(c)(1)"); (ii)
a BFDS subsidiary duly
registered as a transfer agent pursuant to Section
17A(c)(1); or (iii) a
BFDS affiliate; provided, however, that the
Bank shall be as fully
responsible to the Fund for the acts and omissions
of any subcontractor as
it is for its own acts and omissions.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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. 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.
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.
THE XXXXXXX XXXXXX TRUST, INC.
BY:
ATTEST:
STATE STREET BANK AND TRUST COMPANY
BY:__________________________________
Executive Vice President
ATTEST:
