EX. 9(a)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
INCOME MANAGERS TRUST
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. Fees and Expenses.......................................................2
3. Representations and Warranties of the Bank..............................3
4. Representations and Warranties of the Fund..............................3
5. Data Access and Proprietary Information.................................4
6. Indemnification.........................................................5
7. Covenants of the Fund and the Bank......................................6
8. Termination of Agreement................................................7
9. Additional Portfolios...................................................7
10. Assignment..............................................................7
11. Amendment...............................................................8
12. Massachusetts Law to Apply..............................................8
13. Force Majeure...........................................................8
14. Consequential Damages...................................................8
15. Merger of Agreement.....................................................8
16. Limitations of Liability of the Trustees and Shareholders, Officers,
Employees and Agent.....................................................8
17. Counterparts............................................................9
18. Notices.................................................................9
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 2nd day of July, 1993, by and between INCOME MANAGERS
TRUST, a New York common law trust, having its principal office and place of
business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 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, 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 seven series, Xxxxxxxxx &
Xxxxxx Cash Reserves Portfolio, Xxxxxxxxx & Xxxxxx Government Money Portfolio,
Xxxxxxxxx & Xxxxxx Limited Maturity Bond Portfolio, Xxxxxxxxx & Xxxxxx
Government Income Portfolio, Xxxxxxxxx & Xxxxxx Ultra Short Bond Portfolio,
Xxxxxxxxx & Xxxxxx Municipal Money Portfolio and Xxxxxxxxx & Xxxxxx Municipal
Securities Portfolio (such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
Article 9, 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:
1. TERMS OF APPOINTMENT; DUTIES OF THE BANK
-----------------------------------------
1.1 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 each Portfolio's
beneficial interests ("Shares").
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 on behalf of each of the Portfolios, as
applicable and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the initial purchase of or
increase in, Shares, and promptly deliver payment and
appropriate documentation thereof to the Custodian of the Fund
authorized pursuant to the Declaration of Trust of the Fund
(the "Custodian");
(ii) Pursuant to orders to increase Shares, record the appropriate
number of Shares in the name of the holder ("Shareholder") and
hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance requests and directions to withdraw (in
whole or in part) Shares and deliver the appropriate
documentation thereof to the Custodian;
(iv) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any withdrawal, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the withdrawing Shareholder(s);
(v) Maintain records of account for and advise for each Portfolio
and its Shareholders as to the foregoing; and
(vi) Record the issuance of shares of each Portfolio and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number of
shares of the Fund and each Portfolio which are authorized,
based upon data provided to it by the Fund, on behalf of each
Portfolio, and issued and outstanding. The Bank shall also
provide the Fund and each Portfolio 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 on behalf of each Portfolio.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall perform
the customary services of a transfer agent.
(c) Procedures as to who shall provide certain of these services in
Section 1 may be established from time to time by agreement between
the Fund on behalf of each Portfolio and the Bank per the attached
service responsibility schedule. 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.
(d) 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
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2.1 For the performance by the Bank pursuant to this Agreement, the Fund, on
behalf of each Portfolio agrees to pay the Bank an annual maintenance fee
for each Shareholder account 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.
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2.2 In addition to the fee paid under Section 2.1 above, the Fund, on behalf of
the applicable Portfolio, 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 on behalf of the applicable Portfolio.
2.3 The Fund, on behalf of the applicable Portfolio, agrees to pay all fees and
reimbursable expenses within five days following the mailing 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 material.
3. REPRESENTATIONS AND WARRANTIES OF THE BANK
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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 business trust duly organized and existing and in good standing
under the laws of New York.
4.2 It is empowered under applicable laws and by its Declaration of Trust and
By-Laws to enter into and perform this Agreement.
4.3 All corporate proceedings required by said Declaration of Trust and By-Laws
have been taken to authorize it to enter into and perform this Agreement.
4.4 It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
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5. DATA ACCESS AND PROPRIETARY INFORMATION
------------------------------------------
5.1 The Fund acknowledges that the computer programs, screen formats, report
formats (except such screen formats and report formats as may be necessary
to respond to shareholder problems or inquiries), 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 in a timely manner of such fact and dispose of such
information in accordance with the Bank's instructions;
(d) 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.
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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
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6.1 The Bank shall not be responsible for, and the Fund shall on behalf of the
applicable Portfolio 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 agents 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 reasonable reliance on, or the carrying out by the Bank or its
agents or subcontractors of any instructions or requests of the Fund
on behalf of the applicable Portfolio.
(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 and each Portfolio thereof
harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributed
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 on behalf of the applicable
Portfolio for any action taken or omitted by it in reasonable 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.
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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 Fund of such assertion, and shall keep the other party
advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with
the party seeking indemnification in the defense of such claim or to defend
against said claim in its own name or in the name of the other party. The
party seeking indemnification shall in no case confess any claim or make
any compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
7. COVENANTS OF THE FUND AND THE BANK
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7.1 The Fund shall on behalf of each Portfolio promptly furnish to the Bank the
following:
(a) A certified copy of the resolution of the Trustees of the Fund
authorizing the appointment of the Bank and the execution and delivery
of this Agreement.
(b) A copy of the Declaration of the Trust and By-Laws of the Fund and all
amendments thereto.
7.2 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.
7.3 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.
6
7.4 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.
7.5 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.
7.6 Notwithstanding any other provisions of this Agreement, the parties agree
that the assets and liabilities of each Portfolio of the Fund are separate
and distinct from the assets and liabilities of each other Portfolio and
that no Portfolio shall be liable or shall be charged for any debt,
obligation or liability of any other Portfolio, whether arising under the
Agreement or otherwise.
8. TERMINATION OF AGREEMENT
------------------------
This Agreement may be terminated by either party upon one hundred (120)
days written notice to the other.
8.2 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 on behalf of the applicable Portfolio(s). 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.
9. ADDITIONAL PORTFOLIOS
---------------------
In the event that the Fund establishes one or more series of Shares in
addition to Xxxxxxxxx & Xxxxxx Cash Reserves Portfolio, Xxxxxxxxx & Xxxxxx
Government Money Portfolio, Xxxxxxxxx & Xxxxxx Limited Maturity Bond
Portfolio, Xxxxxxxxx & Xxxxxx Government Income Portfolio, Xxxxxxxxx &
Xxxxxx Ultra Short Bond Portfolio, Xxxxxxxxx & Xxxxxx Municipal Money
Portfolio and Xxxxxxxxx & Xxxxxx Municipal Securities Portfolio 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.
10. ASSIGNMENT
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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.
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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)
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
Trustees 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.
15. MERGER OF AGREEMENT15. 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. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS, OFFICERS,
EMPLOYEES AND AGENT
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The parties agree that neither the Shareholders, Trustees, officers,
employees nor any agent of the Fund shall be liable hereunder and that
the parties to this Agreement other than the Fund shall look solely to
the Fund property for the performance of this Agreement or payment of any
claim under this Agreement.
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17. 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.
18. NOTICES
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All notices, requests, consents and other communications hereunder
(collectively "communications") shall be in writing and shall be
personally delivered or mailed, first class postage prepaid,
(a) if to the Fund, to
Income Managers Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxx
Vice President
(b) if to the Bank, to
Boston Financial Data Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxxxxxx & Xxxxxx Fund Group
or such other address as either party shall have furnished to the other in
writing; PROVIDED that any communication may be sent by "tested" telex or any
other form of electronic transmission capable of producing a permanent record
and agreed upon by the parties in writing.
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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.
INCOME MANAGERS TRUST
BY: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxxx X. Xxxxxx
ATTEST:
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
STATE STREET BANK AND TRUST COMPANY
BY: /S/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx
Executive Vice President
ATTEST:
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
00
XXXXX XXXXXX XXXX & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES
Service Performed Responsibility
----------------- --------------
Bank Fund
---- ----
1. Receive orders for the purchase of X
Shares.
2. Hold Shares in Shareholders X
accounts.
3. Receive withdrawal requests. X
4. Pay over monies to withdrawing X
Shareholders.
5. Maintain records of account. X
6. Maintain and keep a current and X
accurate control book for each
issue of securities.
INCOME MANAGERS TRUST STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
--------------------- --------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
Attest: /s/ Xxxxxxx X. Xxxxxxx Attest: /s/ Xxxxx X. Xxxxx
----------------------- ------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxx
11
FEE SCHEDULE
FOR
TRANSFER AGENCY AGREEMENT
BETWEEN
STATE STREET BANK AND TRUST COMPANY
AND
INCOME MANAGERS TRUST
In reference to Section 2 of the Transfer Agency Agreement, there shall be no
additional fees or out-of-pocket expenses charged to any Portfolio under this
Agreement. Any compensation to be provided to the Bank for the services provided
hereunder is set forth in the Custody Agreement between the Fund and the Bank
dated as of July 2, 1993.
Dated As Of July 2, 1993.
INCOME MANAGERS TRUST STATE STREET BANK AND
TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
-------------------------- -------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
Attest: /s/ Xxxxxxx X. Xxxxxxx Attest: /s/ Xxxxx X. Xxxxx
----------------------- -------------------
Xxxxxxx X. Xxxxxxx Xxxxx X. Xxxxx
