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EXHIBIT 99.B9(a).
AGENCY AGREEMENT
AGREEMENT dated the ___ day of _____, 199__, by and between XXXXXX AGGRESSIVE
GROWTH FUND, a Massachusetts business trust having its principal place of
business at 000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 ("Fund"), and
INVESTORS FIDUCIARY TRUST COMPANY, a state chartered trust company organized
and existing under the laws of the State of Missouri having its principal place
of business at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("IFTC").
WHEREAS, Fund wants to appoint IFTC as Transfer Agent and Dividend
Disbursing Agent, and IFTC wants to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Documents to be Filed with Appointment. In connection with the
appointment of IFTC as Transfer Agent and Dividend Disbursing Agent
for Fund, there will be filed with IFTC the following documents:
A. A certified copy of the resolutions of the Board of Trustees of
Fund appointing IFTC as Transfer Agent and Dividend Disbursing
Agent, approving the form of this Agreement, and designating
certain persons to give written instructions and requests on
behalf of Fund.
B. A certified copy of the Agreement and Declaration of Trust of
Fund and any amendments thereto.
C. A certified copy of the Bylaws of Fund.
D. Copies of Registration Statements filed with the Securities and
Exchange Commission.
E. Specimens of all forms of outstanding share certificates as
approved by the Board of Trustees of Fund, with a certificate of
the Secretary of Fund as to such approval.
F. Specimens of the signatures of the officers of the Fund
authorized to sign share certificates and individuals authorized
to sign written instructions and requests on behalf of the Fund.
G. An opinion of counsel for Fund:
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(1) With respect to Fund's organization and existence under the
laws of The Commonwealth of Massachusetts.
(2) With respect to the status of all shares of Fund covered by
this appointment under the Securities Act of 1933, and any
other applicable federal or state statute.
(3) To the effect that all issued shares are, and all unissued
shares will be when issued, validly issued, fully paid and
non- assessable.
2. Certain Representations and Warranties of IFTC. IFTC represents and
warrants to Fund that:
A. It is a trust company duly organized and existing and in good
standing under the laws of the State of Missouri.
B. It is duly qualified to carry on its business in the State of
Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the services
contemplated in this Agreement.
D. All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
E. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
F. It is, and will continue to be, registered as a transfer agent
under the Securities Exchange Act of 1934.
3. Certain Representations and Warranties of Fund. Fund represents and
warrants to IFTC that:
A. It is a business trust duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
B. It is an investment company registered under the Investment
Company Act of 1940.
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C. A registration statement under the Securities Act of 1933 has
been filed and will be effective with respect to all shares of
Fund being offered for sale at any time and from time to time.
D. All requisite steps have been or will be taken to register
Fund's shares for sale in all applicable states, including the
District of Columbia.
E. Fund and its Trustees are empowered under applicable laws and by
the Fund's Agreement and Declaration of Trust and Bylaws to
enter into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement, Fund
hereby employs and appoints IFTC as Transfer Agent and Dividend
Disbursing Agent effective the date hereof.
B. IFTC hereby accepts such employment and appointment and agrees
that it will act as Fund's Transfer Agent and Dividend
Disbursing Agent. IFTC agrees that it will also act as agent in
connection with Fund's periodic withdrawal payment accounts and
other open-account or similar plans for shareholders, if any.
C. IFTC agrees to provide the necessary facilities, equipment and
personnel to perform its duties and obligations hereunder in
accordance with industry practice.
D. Fund agrees to use all reasonable efforts to deliver to IFTC in
Kansas City, Missouri, as soon as they are available, all its
shareholder account records.
E. Subject to the provisions of Sections 20 and 21 hereof, IFTC
agrees that it will perform all the usual and ordinary services
of Transfer Agent and Dividend Disbursing Agent and as agent for
the various shareholder accounts, including, without limitation,
the following: issuing, transferring and cancelling share
certificates, maintaining all shareholder accounts, preparing
shareholder meeting lists, mailing proxies, receiving and
tabulating proxies, mailing shareholder reports and
prospectuses, withholding federal income taxes, preparing and
mailing checks for disbursement of income and capital gains
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dividends, preparing and filing all required U.S. Treasury
Department information returns for all shareholders, preparing
and mailing confirmation forms to shareholders and dealers with
respect to all purchases and liquidations of Fund shares and
other transactions in shareholder accounts for which
confirmations are required, recording reinvestments of dividends
and distributions in Fund shares, recording redemptions of Fund
shares and preparing and mailing checks for payments upon
redemption and for disbursements to systematic withdrawal plan
shareholders.
5. Compensation and Expenses.
A. In consideration for the services provided hereunder by IFTC as
Transfer Agent and Dividend Disbursing Agent, Fund will pay to
IFTC from time to time compensation as agreed upon for all
services rendered as Agent, and also, all its reasonable
out-of-pocket expenses and other disbursements incurred in
connection with the agency. Such compensation will be set forth
in a separate schedule to be agreed to by Fund and IFTC. The
initial agreement regarding compensation is attached as Exhibit
A.
B. Fund agrees to promptly reimburse IFTC for all reasonable
out-of-pocket expenses or advances incurred by IFTC in
connection with the performance of services under this Agreement
including, but not limited to, postage (and first class mail
insurance in connection with mailing share certificates),
envelopes, check forms, continuous forms, forms for reports and
statements, stationery, and other similar items, telephone and
telegraph charges incurred in answering inquiries from dealers
or shareholders, microfilm used each year to record the previous
year's transactions in shareholder accounts and computer tapes
used for permanent storage of records and cost of insertion of
materials in mailing envelopes by outside firms. IFTC may, at
its option, arrange to have various service providers submit
invoices directly to the Fund for payment of out-of-pocket
expenses reimbursable hereunder.
6. Efficient Operation of IFTC System.
A. In connection with the performance of its services under this
Agreement, IFTC is responsible for the
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accurate and efficient functioning of its system at all times,
including:
(1) The accuracy of the entries in IFTC's records reflecting
purchase and redemption orders and other instructions
received by IFTC from dealers, shareholders, Fund or its
principal underwriter.
(2) The timely availability and the accuracy of shareholder
lists, shareholder account verifications, confirmations and
other shareholder account information to be produced from
IFTC's records or data.
(3) The accurate and timely issuance of dividend and
distribution checks in accordance with instructions
received from Fund.
(4) The accuracy of redemption transactions and payments in
accordance with redemption instructions received from
dealers, shareholders or Fund or other authorized persons.
(5) The deposit daily in Fund's appropriate special bank
account of all checks and payments received from dealers or
shareholders for investment in shares.
(6) The requiring of proper forms of instructions, signatures
and signature guarantees and any necessary documents
supporting the rightfulness of transfers, redemptions and
other shareholder account transactions, all in conformance
with IFTC's present procedures with such changes as may be
deemed reasonably appropriate by IFTC or as may be
reasonably approved by or on behalf of Fund.
(7) The maintenance of a current duplicate set of Fund's
essential or required records, as agreed upon from time to
time by Fund and IFTC, at a secure distant location, in
form available and usable forthwith in the event of any
breakdown or disaster disrupting its main operation.
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7. Indemnification.
A. Fund shall indemnify and hold IFTC harmless from and against any
and all claims, actions, suits, losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of
or attributable to any action or omission by IFTC pursuant to
this Agreement or in connection with the agency relationship
created by this Agreement, provided that IFTC has acted in good
faith, without negligence and without willful misconduct.
B. IFTC shall indemnify and hold Fund harmless from and against any
and all claims, actions, suits, losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of
or attributable to any action or omission by IFTC pursuant to
this Agreement or in connection with the agency relationship
created by this Agreement, provided that IFTC has not acted in
good faith, without negligence and without willful misconduct.
C. In order that the indemnification provisions contained in this
Section 7 shall apply, upon the assertion of a claim for which
either party (the "Indemnifying Party") may be required to
provide indemnification hereunder, the party seeking
indemnification (the "Indemnitee") shall promptly notify the
Indemnifying Party of such assertion, and shall keep such party
advised with respect to all developments concerning such claim.
The Indemnifying Party shall be entitled to assume control of
the defense and the negotiations, if any, regarding settlement
of the claim. If the Indemnifying Party assumes control, the
Indemnitee shall have the option to participate in the defense
and negotiations of such claim at its own expense. The
Indemnitee shall in no event confess, admit to, compromise, or
settle any claim for which the Indemnifying Party may be
required to indemnify it except with the prior written consent
of the Indemnifying Party, which shall not be unreasonably
withheld.
8. Certain Covenants of IFTC and Fund.
A. All requisite steps will be taken by Fund from time to time when
and as necessary to register the Fund's shares for sale in all
states in which Fund's shares shall at the time be offered for
sale and require registration. If at any time Fund receives
notice of any stop order or other
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proceeding in any such state affecting such registration or the
sale of Fund's shares, or of any stop order or other proceeding
under the Federal securities laws affecting the sale of Fund's
shares, Fund will give prompt notice thereof to IFTC.
B. IFTC hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to Fund for safekeeping of
share 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.
Further, IFTC agrees to carry insurance, as specified in Exhibit
B hereto, with insurers reasonably acceptable to Fund and in
minimum amounts that are reasonably acceptable to Fund, which
will not be changed without the consent of Fund, which consent
shall not be unreasonably withheld, and which will be expanded
in coverage or increased in amounts from time to time if and
when reasonably requested by Fund. If IFTC determines that it
is unable to obtain any such insurance upon commercially
reasonable terms, it shall promptly so advise Fund in writing.
In such event, Fund shall have the right to terminate this
Agreement upon 30 days notice.
C. To the extent required by Section 31 of the Investment Company
Act of 1940 and Rules thereunder, IFTC agrees that all records
maintained by IFTC relating to the services to be performed by
IFTC under this Agreement are the property of Fund and will be
preserved and will be surrendered promptly to Fund on request.
D. IFTC agrees to furnish Fund semi-annual reports of its financial
condition, consisting of a balance sheet, earnings statement and
any other reasonably available financial information reasonably
requested by Fund. The annual financial statements will be
certified by IFTC's certified public accountants.
E. IFTC represents and agrees that it will use all reasonable
efforts to keep current on the trends of the investment company
industry relating to shareholder services and will use all
reasonable efforts to continue to modernize and improve its
system without additional cost to Fund.
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F. IFTC will permit Fund and its authorized representatives to make
periodic inspections of its operations at reasonable times
during business hours.
G. If IFTC is prevented from complying, either totally or in part,
with any of the terms or provisions of this Agreement, by reason
of fire, flood, storm, strike, lockout or other labor trouble,
riot, war, rebellion, accidents, acts of God, equipment, utility
or transmission failure or damage, and/or any other cause or
casualty beyond the reasonable control of IFTC, whether similar
to the foregoing matters or not, then upon written notice to
Fund, the requirements of this Agreement that are affected by
such disability, to the extent so affected, shall be suspended
during the period of such disability; provided, however, that
IFTC shall make reasonable effort to remove such disability as
soon as possible. During such period, Fund may seek alternate
sources of service without liability hereunder; and IFTC will
use all reasonable efforts to assist Fund to obtain alternate
sources of service. IFTC shall have no liability to Fund for
nonperformance because of the reasons set forth in this Section
8.G; but if a disability that, in Fund's reasonable belief,
materially affects IFTC's ability to perform its obligations
under this Agreement continues for a period of 30 days, then
Fund shall have the right to terminate this Agreement upon 10
days written notice to IFTC.
9. Adjustment.
In case of any recapitalization, readjustment or other change in the
structure of Fund requiring a change in the form of share
certificates, IFTC will issue or register certificates in the new
form in exchange for, or in transfer of, the outstanding certificates
in the old form, upon receiving the following:
A. Written instructions from an officer of Fund.
B. Certified copy of any amendment to the Agreement and Declaration
of Trust or other document effecting the change.
C. Certified copy of any order or consent of each governmental or
regulatory authority required by law for the issuance of the
shares in the new form, and an opinion of counsel that no order
or
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consent of any other government or regulatory authority is
required.
D. Specimens of the new certificates in the form approved by the
Board of Trustees of Fund, with a certificate of the Secretary
of Fund as to such approval.
E. Opinion of counsel for Fund:
(1) With respect to the status of the shares of Fund in the new
form under the Securities Act of 1933, and any other
applicable federal or state laws.
(2) To the effect that the issued shares in the new form are,
and all unissued shares will be when issued, validly
issued, fully paid and non-assessable.
10. Share Certificates.
Fund will furnish IFTC with a sufficient supply of blank share
certificates and from time to time will renew such supply upon the
request of IFTC. Such certificates will be signed manually or by
facsimile signatures of the officers of Fund authorized by law and
Fund's Bylaws to sign share certificates and, if required, will bear
the trust seal or facsimile thereof.
11. Death, Resignation or Removal of Signing Officer.
Fund will file promptly with IFTC written notice of any change in the
officers authorized to sign share certificates, written instructions
or requests, together with two signature cards bearing the specimen
signature of each newly authorized officer, all as certified by an
appropriate officer of the Fund. In case any officer of Fund who
will have signed manually or whose facsimile signature will have been
affixed to blank share certificates will die, resign, or be removed
prior to the issuance of such certificates, IFTC may issue or
register such share certificates as the share certificates of Fund
notwithstanding such death, resignation, or removal, until
specifically directed to the contrary by Fund in writing. In the
absence of such direction, Fund will file promptly with IFTC such
approval, adoption, or ratification as may be required by law.
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12. Future Amendments of Agreement and Declaration of Trust and Bylaws.
Fund will promptly file with IFTC copies of all material amendments
to its Agreement and Declaration of Trust and Bylaws and Registration
Statement made after the date of this Agreement.
13. Instructions, Opinion of Counsel and Signatures.
At any time IFTC may apply to any officer of Fund for instructions,
and may consult with legal counsel for Fund at the expense of Fund,
or with its own legal counsel at its own expense, with respect to any
matter arising in connection with the agency; and it will not be
liable for any action taken or omitted by it in good faith in
reliance upon such instructions or upon the opinion of such counsel.
IFTC is authorized to act on the orders, directions or instructions
of such persons as the Board of Trustees of Fund shall from time to
time designate by resolution. IFTC will be protected in acting upon
any paper or document, including any orders, directions or
instructions, reasonably believed by it to be genuine and to have
been signed by the proper person or persons; and IFTC will not be
held to have notice of any change of authority of any person so
authorized by Fund until receipt of written notice thereof from Fund.
IFTC will also be protected in recognizing share certificates that it
reasonably believes to bear the proper manual or facsimile signatures
of the officers of Fund, and the proper countersignature of any
former Transfer Agent or Registrar, or of a Co-Transfer Agent or
Co-Registrar.
14. Papers Subject to Approval of Counsel.
The acceptance by IFTC of its appointment as Transfer Agent and
Dividend Disbursing Agent, and all documents filed in connection with
such appointment and thereafter in connection with the agencies, will
be subject to the approval of legal counsel for IFTC, which approval
will not be unreasonably withheld.
15. Certification of Documents.
The required copy of the Agreement and Declaration of Trust of Fund
and copies of all amendments thereto will be certified by the
appropriate official of The Commonwealth of Massachusetts; and if
such Agreement and Declaration of Trust and amendments are required
by law to be also filed with a county, city or other officer or
official body, a certificate of such filing
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will appear on the certified copy submitted to IFTC. A copy of the
order or consent of each governmental or regulatory authority
required by law for the issuance of Fund shares will be certified by
the Secretary or Clerk of such governmental or regulatory authority,
under proper seal of such authority. The copy of the Bylaws and
copies of all amendments thereto and copies of resolutions of the
Board of Trustees of Fund will be certified by the Secretary or an
Assistant Secretary of Fund.
16. Records.
IFTC will maintain customary records in connection with its agency,
and particularly will maintain those records required to be
maintained pursuant to sub- paragraph (2)(iv) of paragraph (b) of
Rule 31a-1 under the Investment Company Act of 1940, if any.
17. Disposition of Books, Records and Cancelled Certificates.
IFTC will send periodically to Fund, or to where designated by the
Secretary or an Assistant Secretary of Fund, all books, documents,
and all records no longer deemed needed for current purposes and
share certificates which have been cancelled in transfer or in
exchange, upon the understanding that such books, documents, records,
and share certificates will not be destroyed by Fund without the
consent of IFTC (which consent will not be unreasonably withheld),
but will be safely stored for possible future reference.
18. Provisions Relating to IFTC as Transfer Agent.
A. IFTC will make original issues of share certificates upon
written request of an officer of Fund and upon being furnished
with a certified copy of a resolution of the Board of Trustees
authorizing such original issue, an opinion of counsel as
outlined in Section 1.G or 9.E of this Agreement, the
certificates required by Section 10 of this Agreement and any
other documents required by Section 1 or 9 of this Agreement.
B. Before making any original issue of certificates, Fund will
furnish IFTC with sufficient funds to pay any taxes required on
the original issue of the shares. Fund will furnish IFTC such
evidence as may be required by IFTC to show the actual value of
the shares. If no taxes are payable,
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IFTC will upon request be furnished with an opinion of outside
counsel to that effect.
C. Shares will be transferred and new certificates issued in
transfer, or shares accepted for redemption and funds remitted
therefor, upon surrender of the old certificates in form deemed
by IFTC properly endorsed for transfer or redemption accompanied
by such documents as IFTC may deem necessary to evidence the
authority of the person making the transfer or redemption, and
bearing satisfactory evidence of the payment of any applicable
share transfer taxes. IFTC reserves the right to refuse to
transfer or redeem shares until it is satisfied that the
endorsement or signature on the certificate or any other
document is valid and genuine, and for that purpose it may
require a guarantee of signature by such persons as may from
time to time be specified in the prospectus related to such
shares or otherwise authorized by Fund. IFTC also reserves the
right to refuse to transfer or redeem shares until it is
satisfied that the requested transfer or redemption is legally
authorized, and it will incur no liability for the refusal in
good faith to make transfers or redemptions which, in its
judgment, are improper, unauthorized, or otherwise not rightful.
IFTC may, in effecting transfers or redemptions, rely upon
Simplification Acts or other statutes which protect it and Fund
in not requiring complete fiduciary documentation.
D. When mail is used for delivery of share certificates, IFTC will
forward share certificates in "nonnegotiable" form as provided
by Fund by first class mail, all such mail deliveries to be
covered while in transit to the addressee by insurance arranged
for by IFTC.
E. IFTC will issue and mail subscription warrants and certificates
provided by Fund and representing share dividends, exchanges or
split-ups, or act as Conversion Agent upon receiving written
instruc- tions from any officer of Fund and such other documents
as IFTC deems necessary.
F. IFTC will issue, transfer, and split-up certificates upon
receiving written instructions from an officer of Fund and such
other documents as IFTC may deem necessary.
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G. IFTC may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken, upon receiving indemnity satisfactory to IFTC,
and may issue new certificates in exchange for, and upon
surrender of, mutilated certificates. Any such issuance shall
be in accordance with the provisions of law governing such
matter and any procedures adopted by the Board of Trustees of
the Fund of which IFTC has notice.
H. IFTC will supply a shareholder's list to Fund properly certified
by an officer of IFTC for any shareholder meeting upon receiving
a request from an officer of Fund. It will also supply lists at
such other times as may be reasonably requested by an officer of
Fund.
I. Upon receipt of written instructions of an officer of Fund, IFTC
will address and mail notices to shareholders.
J. In case of any request or demand for the inspection of the share
books of Fund or any other books of Fund in the possession of
IFTC, IFTC will endeavor to notify Fund and to secure
instructions as to permitting or refusing such inspection. IFTC
reserves the right, however, to exhibit the share books or other
books to any person in case it is advised by its counsel that it
may be held responsible for the failure to exhibit the share
books or other books to such person.
19. Provisions Relating to Dividend Disbursing Agency.
A. IFTC will, at the expense of Fund, provide a special form of
check containing the imprint of any device or other matter
desired by Fund. Said checks must, however, be of a form and
size convenient for use by IFTC.
B. If Fund wants to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be
furnished to IFTC within a reasonable time prior to the date of
mailing of the dividend checks, at the expense of Fund.
C. If Fund wants its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to
IFTC but the size and form of said envelopes will be subject to
the
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approval of IFTC. If stamped envelopes are used, they must be
furnished by Fund; or, if postage stamps are to be affixed to
the envelopes, the stamps or the cash necessary for such stamps
must be furnished by Fund.
D. IFTC will maintain one or more deposit accounts as Agent for
Fund, into which the funds for payment of dividends,
distributions, redemptions or other disbursements provided for
hereunder will be deposited, and against which checks will be
drawn.
20. Termination of Agreement.
A. This Agreement may be terminated by either party upon sixty (60)
days prior written notice to the other party.
B. Fund, in addition to any other rights and remedies, shall have
the right to terminate this Agreement forthwith upon the
occurrence at any time of any of the following events:
(1) Any interruption or cessation of operations by IFTC or its
assigns which materially interferes with the business
operation of Fund.
(2) The bankruptcy of IFTC or its assigns or the appointment of
a receiver for IFTC or its assigns.
(3) Any merger, consolidation or sale of substantially all the
assets of IFTC or its assigns.
(4) The acquisition of a controlling interest in IFTC or its
assigns, by any broker, dealer, investment adviser or
investment company except as may presently exist.
(5) Failure by IFTC or its assigns to perform its duties in
accordance with this Agreement, which failure materially
adversely affects the business operations of Fund and which
failure continues for thirty (30) days after written notice
from Fund.
(6) The registration of IFTC or its assigns as a transfer agent
under the Securities Exchange Act of 1934 is revoked,
terminated or suspended for any reason.
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C. In the event of termination, Fund will promptly pay IFTC all
amounts due to IFTC hereunder. Upon termination of this
Agreement, IFTC shall deliver all shareholder and account
records pertaining to Fund either to Fund or as directed in
writing by Fund.
21. Assignment.
A. Except for the assignment of responsibilities pursuant to the
Services Agreement ("Services Agreement") between IFTC and
Xxxxxx Service Company ("KSVC"), which Fund has approved,
neither this Agreement nor any rights or obligations hereunder
may be assigned by IFTC without the written consent of Fund;
provided, however, no assignment will relieve IFTC of any of its
obligations hereunder.
B. This Agreement including, without limitation, the provisions of
Section 7 will inure to the benefit of and be binding upon the
parties and their respective successors and assigns including
KSVC pursuant to the aforesaid Services Agreement.
C. KSVC is authorized by Fund to use the system services of DST
Systems, Inc.
22. Confidentiality.
A. Except as provided in the last sentence of Section 18.J hereof,
or as otherwise required by law, IFTC will keep confidential all
records of and information in its possession relating to Fund or
its shareholders or shareholder accounts and will not disclose
the same to any person except at the request or with the consent
of Fund.
B. Except as otherwise required by law, Fund will keep confidential
all financial statements and other financial records (other than
statements and records relating solely to Fund's business
dealings with IFTC) and all manuals, systems and other technical
information and data, not publicly disclosed, relating to IFTC's
operations and programs furnished to it by IFTC pursuant to this
Agreement and will not disclose the same to any person except at
the request or with the consent of IFTC. Notwithstanding
anything to the contrary in this Section 22.B, if an attempt is
made pursuant to subpoena or other legal process to require Fund
to disclose or produce any of the
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aforementioned manuals, systems or other technical information
and data, Fund shall give IFTC prompt notice thereof prior to
disclosure or production so that IFTC may, at its expense,
resist such attempt.
23. Survival of Representations and Warranties.
All representations and warranties by either party herein contained
will survive the execution and delivery of this Agreement.
24. Miscellaneous.
A. This Agreement is executed and delivered in the State of
Illinois and shall be governed by the laws of said state (except
as to Section 24.G hereof which shall be governed by the laws of
The Commonwealth of Massachusetts).
B. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and
executed by both parties hereto.
C. The captions in this Agreement are included for convenience of
reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effect.
D. This Agreement shall become effective as of the date hereof.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
F. If any part, term or provision of this Agreement is held by the
courts to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to
be illegal or invalid.
G. All parties hereto are expressly put on notice of Fund's
Agreement and Declaration of Trust which is on file with the
Secretary of The Commonwealth of Massachusetts, and the
limitation of shareholder
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and trustee liability contained therein. This Agreement has
been executed by and on behalf of Fund by its representatives as
such representatives and not individually, and the obligations
of Fund hereunder are not binding upon any of the Trustees,
officers or shareholders of the Fund individually but are
binding upon only the assets and property of Fund. With respect
to any claim by IFTC for recovery of that portion of the
compensation and expenses (or any other liability of Fund
arising hereunder) allocated to a particular Portfolio, whether
in accordance with the express terms hereof or otherwise, IFTC
shall have recourse solely against the assets of that Portfolio
to satisfy such claim and shall have no recourse against the
assets of any other Portfolio for such purpose.
H. This Agreement, together with the Fee Schedule, is the entire
contract between the parties relating to the subject matter
hereof and supersedes all prior agreements between the parties.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officer as of the day and year first set forth
above.
XXXXXX AGGRESSIVE GROWTH FUND
By______________________________
Title:__________________________
ATTEST:
_____________________________
Title:_______________________
INVESTORS FIDUCIARY TRUST COMPANY
By______________________________
Title:__________________________
ATTEST:
_____________________________
Title:_______________________
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EXHIBIT A
FEE SCHEDULE (MULTIPLE CLASSES OF SHARES)
TRANSFER AGENCY FUNCTION FEE PAYABLE BY FUND
CLASS A, C AND I CLASS B
1. Annual open shareholder
account fee (per year per
account).
a. Non-daily dividend series. $6.00 $6.00
b. Daily dividend series. $8.00 $8.00
2. Annual closed shareholder account
fee (per year per account). $6.00 $6.00
3. Contingent deferred sales charge Not
account fee (per year per open Applicable $2.25
account).
4. Establishment of new shareholder
account (per new account). $4.00 $4.00
5. Payment of dividend (per dividend
per account). $ .40 $ .40
6. Automated transaction (per
transaction).** $ .50 $ .50
7. Non-monetary transactions fee (per
year per open account). $2.00 $2.00
8. All other shareholder inquiry,
correspondence and research trans-
actions (per transaction). $1.25 $1.25
The out-of-pocket expenses of IFTC will be reimbursed by Fund in accordance
with the provisions of Section 5 of the Agency Agreement. All fees will be
subject to offset by earnings allowances under the Custody Agreement between
Fund and IFTC. The attached Transfer Agency Fee Schedule Supplement is a part
of this Exhibit A.
----------------
* The new shareholder account fee is not applicable to Class A Share
accounts established in connection with a conversion from Class B Shares.
** Automated transaction includes, without limitation, money market series
purchases and redemptions, ACH purchases, systematic exchanges and
conversions from Class B Shares to Class A Shares.
20
TRANSFER AGENCY FEE SCHEDULE SUPPLEMENT
For purposes of the following limitation, "Class Expenses" are expenses
identified as attributable to a particular class of the Fund and charged
directly to the class. Class Expenses are limited to the following:
registration fees, directors' or trustees' fees, expenses of periodic meetings
of directors, trustees or shareholders, transfer agency fees, legal and
accounting fees (other than fees for income tax return preparation or income
tax advice), and costs of shareholder communications required by law (e.g., the
preparation and mailing of prospectuses and proxy statements). Class Expenses
specifically do not include Rule 12b-1 fees and administrative service fees.
Transfer agency fees and expenses will be limited for any class of the Fund to
the extent necessary to ensure that the Class Expenses allocated to each share
of a class of the Fund for a fiscal year will differ from the Class Expenses
allocated to each share of any other class of the Fund by less than 50 basis
points (.50%) of the average daily net asset value per share of the class of
shares with the smallest average net asset value (adjusted as necessary for
classes in effect for a partial year). For a Fund with multiple series, the
foregoing shall be applied to each series separately.
21
EXHIBIT B
IFTC INSURANCE COVERAGE
DESCRIPTION OF POLICY:
Fidelity Bond
Covers losses caused by dishonesty of employees, physical loss of
securities on or outside of premises while in possession of authorized person,
loss caused by forgery or alteration of checks or similar instruments.
Errors and Omissions Insurance
Covers claims made for actual or alleged negligent acts, errors or
omissions committed in the performance of transfer agency services.
Mail Insurance (applies to all full service operations)
Provides indemnity for the following types of securities lost in the
mails:
Non-negotiable securities mailed to domestic locations via
registered mail.
Non-negotiable securities mailed to domestic locations via
first-class or certified mail.
Non-negotiable securities mailed to foreign locations via
registered mail.
Negotiable securities mailed to all locations via registered
mail.
