AGENCY AGREEMENT
AGREEMENT dated the 30th day of January, 1998, by and between XXXXXX SECURITIES
TRUST, a Massachusetts business trust ("Fund"), and XXXXXX SERVICE COMPANY, a
Delaware corporation ("Service Company").
WHEREAS, Fund wants to appoint Service Company as Transfer Agent and
Dividend Disbursing Agent, and Service Company 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 Service Company as Transfer
Agent and Dividend Disbursing Agent for Fund, there will be filed
with Service Company the following documents:
A. A certified copy of the resolutions of the Board of Trustees
of Fund appointing Service Company 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:
(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 Service Company.
Service Company represents and warrants to Fund that:
A. It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
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
Certificate of Incorporation and Bylaws to enter into and
perform the services contemplated in this Agreement.
D. All requisite corporate action has 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 Service Company 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.
2
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 Service Company as Transfer Agent
and Dividend Disbursing Agent effective the date hereof.
B. Service Company hereby accepts such employment and appointment
and agrees that it will act as Fund's Transfer Agent and
Dividend Disbursing Agent. Service Company 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. Service Company 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
Service Company 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,
Service Company 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,
3
mailing shareholder reports and prospectuses, withholding
federal income taxes, preparing and mailing checks for
disbursement of income and capital gains 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
Service Company as Transfer Agent and Dividend Disbursing
Agent, Fund will pay to Service Company 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 Service Company. The
initial agreement regarding compensation is attached as
Exhibit A.
B. Fund agrees to promptly reimburse Service Company for all
reasonable out-of-pocket expenses or advances incurred by
Service Company 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. Service Company may, at its option, arrange
to have various service providers submit invoices directly
4
to the Fund for payment of out-of-pocket expenses reimbursable
hereunder.
6. Efficient Operation of Service Company System.
A. In connection with the performance of its services under this
Agreement, Service Company is responsible for the accurate and
efficient functioning of its system at all times, including:
(1) The accuracy of the entries in Service Company's records
reflecting purchase and redemption orders and other
instructions received by Service Company 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 Service Company'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 Service Company's present
procedures with such changes as may be deemed reasonably
appropriate by Service Company or as may be reasonably
approved by or on behalf of Fund.
5
(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 Service Company, at a secure distant
location, in form available and usable forthwith in the
event of any breakdown or disaster disrupting its main
operation.
7. Indemnification.
A. Fund shall indemnify and hold Service Company 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 Service Company pursuant to this
Agreement or in connection with the agency relationship
created by this Agreement, provided that Service Company
has acted in good faith, without negligence and without
willful misconduct.
B. Service Company 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 Service Company pursuant to this
Agreement or in connection with the agency relationship
created by this Agreement, provided that Service Company
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
6
to indemnify it except with the prior written consent of the
Indemnifying Party, which shall not be unreasonably withheld.
8. Certain Covenants of Service Company 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
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 Service Company.
B. Service Company 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, Service Company
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
Service Company 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, Service Company agrees that
all records maintained by Service Company relating to the
services to be performed by Service Company under this
Agreement are the property of Fund and will be preserved and
will be surrendered promptly to Fund on request.
7
D. Service Company 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 Service Company's
certified public accountants.
E. Service Company 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.
F. Service Company will permit Fund and its authorized
representatives to make periodic inspections of its
operations at reasonable times during business hours.
G. If Service Company 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 Service Company, 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 Service Company 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 Service
Company will use all reasonable efforts to assist Fund to
obtain alternate sources of service. Service Company 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
Service Company'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 Service Company.
8
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, Service Company 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 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 Service Company with a sufficient supply of blank
share certificates and from time to time will renew such supply upon
the request of Service Company. 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.
9
11. Death, Resignation or Removal of Signing Officer.
Fund will file promptly with Service Company 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, Service Company 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 Service Company such approval, adoption, or
ratification as may be required by law.
12. Future Amendments of Agreement and Declaration of Trust and
Bylaws.
Fund will promptly file with Service Company 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 Service Company 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. Service Company 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. Service
Company 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 Service Company 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. Service
Company will also be protected in recognizing share certificates
10
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 Service Company 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
Service Company, 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 will appear on the
certified copy submitted to Service Company. 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.
Service Company 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.
Service Company will send periodically to Fund, or to where
designated by the Secretary or an Assistant
11
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 Service Company (which
consent will not be unreasonably withheld), but will be safely
stored for possible future reference.
18. Provisions Relating to Service Company as Transfer Agent.
A. Service Company 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 Service Company with sufficient funds to pay any
taxes required on the original issue of the shares. Fund
will furnish Service Company such evidence as may be
required by Service Company to show the actual value of the
shares. If no taxes are payable, Service Company 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 Service Company properly endorsed for
transfer or redemption accompanied by such documents as
Service Company 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. Service Company 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
12
related to such shares or otherwise authorized by Fund.
Service Company 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. Service Company 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, Service
Company 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 Service Company.
E. Service Company 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 instructions from any officer of Fund
and such other documents as Service Company deems necessary.
F. Service Company will issue, transfer, and split-up
certificates upon receiving written instructions from an
officer of Fund and such other documents as Service Company
may deem necessary.
G. Service Company may issue new certificates in place of
certificates represented to have been lost, destroyed,
stolen or otherwise wrongfully taken, upon receiving
indemnity satisfactory to Service Company, 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 Service Company has notice.
H. Service Company will supply a shareholder's list to Fund
properly certified by an officer of Service Company for any
shareholder meeting upon receiving a request from an officer
of Fund. It
13
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,
Service Company 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 Service Company, Service Company will
endeavor to notify Fund and to secure instructions as to
permitting or refusing such inspection. Service Company
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. Service Company 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 Service Company.
B. If Fund wants to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be
furnished to Service Company 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 Service Company but the size and form of said
envelopes will be subject to the approval of Service
Company. 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. Service Company 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.
14
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 Service
Company or its assigns which materially interferes with
the business operation of Fund.
(2) The bankruptcy of Service Company or its assigns or the
appointment of a receiver for Service Company or its
assigns.
(3) Any merger, consolidation or sale of substantially all
the assets of Service Company or its assigns.
(4) The acquisition of a controlling interest in Service
Company or its assigns, by any broker, dealer,
investment adviser or investment company except as may
presently exist.
(5) Failure by Service Company 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 Service Company or its assigns as a
transfer agent under the Securities Exchange Act of 1934
is revoked, terminated or suspended for any reason.
C. In the event of termination, Fund will promptly pay Service
Company all amounts due to Service Company hereunder. Upon
termination of this Agreement, Service Company shall deliver
all shareholder and account records pertaining to Fund either
to Fund or as directed in writing by Fund.
15
21. Assignment.
A. Neither this Agreement nor any rights or obligations hereunder
may be assigned by Service Company without the written consent
of Fund; provided, however, no assignment will relieve Service
Company 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.
C. Service Company is authorized by Fund to use the system
services of DST Systems, Inc. and the system and other
services, including data entry, of Administrative
Management Group, Inc.
22. Confidentiality.
A. Except as provided in the last sentence of Section 18.J
hereof, or as otherwise required by law, Service Company 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 Service Company) and all
manuals, systems and other technical information and data,
not publicly disclosed, relating to Service Company's
operations and programs furnished to it by Service Company
pursuant to this Agreement and will not disclose the same
to any person except at the request or with the consent of
Service Company. 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 aforementioned manuals, systems or
other technical information and data, Fund shall give
Service Company prompt notice thereof prior to disclosure
or production so that Service Company may, at its expense,
resist such attempt.
16
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 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
17
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 Service Company 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, Service Company 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.
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 SECURITIES TRUST, on behalf of
Xxxxxx U.S. Growth and Income Fund ATTEST:
By: ------------------------ ------------------------
Xxxx X. Xxxxxx Title:
President
XXXXXX SERVICE COMPANY ATTEST:
By: ----------------------- -------------------------
Title:
TITLE:
18
