Exhibit (9)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
MENTOR VARIABLE INVESTMENT PORTFOLIOS
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
1. Terms of Appointment: Duties of the Bank................3
2. Fees and Expenses........................................5
3. Representations and Warranties...........................6
4. Representations and Warranties of the Fund...............6
5. Data Access and Proprietary Information..................7
6. Indemnification .........................................8
7. Standard of Care........................................10
8. Covenants of the Fund and the Bank......................10
9. Termination of Agreement................................11
10. Assignment..............................................11
11. Amendment...............................................11
12. Virginia Law to Apply...................................11
13. Force Majeure...........................................12
14. Consequential Damages...................................12
15. Merger of Agreement.....................................12
16. Counterparts............................................12
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the day of , 1998, by and between Mentor Variable
Investment Portfolios, a Massachusetts business trust, having its principal
office and place of business at 000 Xxxx Xxxx Xxxxxx, X.X. Xxx 00000, Xxxxxxxx,
Xxxxxxxx 00000-0000 (the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company having its principal office and place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "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 five series, the Mentor
VIP Balanced Portfolio, Mentor VIP Capital Growth Portfolio, Mentor VIP
Perpetual International Portfolio, Mentor VIP Growth Portfolio and Mentor VIP
Strategy Portfolio (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Article 10, being herein referred to as "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund 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 the
Fund's authorized and issued shares of beneficial interest of the Fund
representing interests of each of the respective Portfolios ("Shares"),
dividend disbursing agent, custodian of certain retirement plans and
agent in connection with any accumulation, open-account or similar
plans provided to the shareholders of each of the respective Portfolios
("Shareholders") and set out in the currently effective prospectus and
statement of additional information ("prospectus") for the Fund,
including without limitation and periodic investment plan or periodic
withdrawal program.
1.2. The Bank agrees that it will perform the following services:
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(a) In accordance with procedures established from time to time by
agreement between the Fund and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation thereof to the custodian of the Fund's
portfolio securities and cash (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the
appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate
documentation thereof to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and
(iii) above, the Bank shall execute transactions
directly with broker-dealers authorized by the Fund
who shall thereby be deemed to be acting on behalf of
the Fund;
(v) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to
any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed by
the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Fund;
(viii) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon
receipt by the Bank of indemnification satisfactory
to the Bank and protecting the Bank and the Fund, the
Bank, at its option and with the consent of the Fund,
may issue replacement certificates in place of
mutilated stock certificates upon presentation
thereof and without such indemnity;
(ix) Maintain records of account for and advise the Fund
and its Shareholders as to the foregoing; and
(x) Record the issuance of Shares of the Fund and
maintain pursuant to SEC Rule 17Ad-10(e) a record of
the total number of Shares of the Fund which are
authorized, based upon data provided bo it by the
Fund, and issued and outstanding. The Bank shall also
provide the Fund on a regular basis with the total
number of Shares which are authorized and
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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.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), the Bank shall:
(i) perform the customary services of a transfer agent,
dividend disbursing agent, custodian of certain retirement
plans and, as relevant, agent in connection with accumulation,
open-account or similar plans (including without limitation
any periodic investment plan or periodic withdrawal program),
including but not limited to: maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing
proxies, mailing Shareholder reports and prospectuses to
current Shareholders, withholding taxes on U.S. resident and
non-resident alien accounts, preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms
required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and
mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and
other confirmable transactions in Shareholder accounts,
preparing and mailing activity statements for Shareholders,
and providing Shareholder account information and (ii) provide
a system which will enable the Fund to monitor the total
number of Shares sold in each State.
(c) In addition, the Fund shall (i) identify to the Bank in
writing those transactions and assets to be treated as exempt
from blue sky reporting for each State and (ii) verify the
establishment of transactions for each State on the system
prior to activation and thereafter monitor the daily activity
for each State. The responsibility of the Bank for the Fund's
blue sky State registration status is solely limited to the
initial establishment of transactions subject to blue sky
compliance by the Fund and the reporting of such transactions
to the Fund as provided above.
(d) 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 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.
(e) 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
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.
2.2. In addition to the fee paid under Section 2.1 above, the Fund agrees to
reimburse the Bank for out-of-pocket expenses, including but not
limited to confirmation production, postage, forms, telephone,
microfilm, microfiche, tabulating proxies, records storage, or advances
incurred by the Bank for the items set out in the fee schedule attached
hereto. In addition, any other expenses reasonably incurred by the Bank
at the request or with the consent of the Fund, will be reimbursed by
the Fund.
2.3. The Fund agrees to pay all fees and reimbursable expenses within five
days following the receipt of the respective billing notice. Postage
for mailing of dividends, proxies, Fund reports and other mailings to
all shareholder accounts shall be advanced to the Bank by the Fund at
least seven (7) days prior to the mailing date of such materials.
3. Representations and Warranties
The Bank represents and warrants to the Fund that:
3.1. It is a trust company duly organized and existing 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 Massachusetts.
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4.2. It is empowered under applicable laws and by its Articles of
Incorporation and By- Laws to enter into and perform this Agreement.
4.3. All corporate proceedings required by said Articles of Incorporation
and By-Laws have been taken to authorize it to enter into and perform
this Agreement.
4.4. It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
4.5. A registration statement under the Securities act of 1933, as amended
is currently effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made,
with respect to all Shares of the Fund being offered for sale.
5. Data Access and Proprietary Information
5.1. The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Bank as part of the
Fund's ability to access certain Fund-related data ("Customer Data")
maintained by the Bank on data bases under the control and ownership of
the Bank or other third part ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to the
Bank or other such 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;
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(d) to refrain from causing or allowing Proprietary Information
acquired hereunder from being retransmitted to any other
computer facility or other location, except with the prior
written consent to the Bank;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law, under federal copyright
law and under other federal or state law.
Notwithstanding the above, nothing in the agreement shall restrict the ability
of the Fund to obtain access to or make copies of, or otherwise use freely, all
Customer Data in the Bank's possession or control, or shall be read to derogate
from the Fund's sole legal ownership thereof. Each party shall take reasonable
efforts to advise its employees of their obligations pursuant to this Section 5.
The obligations of this Section shall survive any earlier termination of this
Agreement.
5.2. If the Fund notifies the Bank that any of the Data Access Services do
not operate in material compliance with the most recently issued user
documentation for such services, the Bank shall endeavor in a timely
manner to correct such failure. Organizations from which the Bank may
obtain certain data included in the Data Access Services are solely
responsible for the contents of such data and the Fund agrees to make
no claim against the Bank arising out of the contents of such
third-party data, including, but not limited to, the accuracy thereof.
DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS,
AS AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT
THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
5.3. If the transactions available to the Fund include the ability to
originate electronic instructions to the Bank in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, 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 and agreed to in advance by the Fund.
6. Indemnification
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6.1. The Bank shall not be responsible for, and the Fund shall indemnify and
hold the Bank harmless from and against, any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and
liability to the extent arising out of or attributable to:
(a) All actions of the Bank or its agent or subcontractors
required to be taken pursuant to this Agreement, provided that
such actions are taken in good faith and without negligence or
willful misconduct.
(b) The Fund's bad faith, negligence or willful misconduct in
connection with the material 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 (other than the Bank in any respect) including but
not limited to any previous transfer agent or registrar.
(d) The reliance on, or the carrying out by the Bank or its agents
or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the
securities laws or regulations of any state that such Shares
be registered in such state or in violation of any stop order
or other determination or ruling by any federal agency or any
state with respect to the offer or sale of such Shares in such
state.
6.2. At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with the Fund's legal counsel with
respect to any matter arising in connection with the services to be
performed by the Bank under this Agreement, and the Bank and its agents
or subcontractors shall not be liable and shall be indemnified by the
Fund for any action taken reasonably or omitted by it in reliance upon
such instructions or upon the opinion of such counsel. The Bank, its
agents and subcontractors shall be protected and indemnified in acting
upon any paper or document furnished by or on behalf of the Fund,
reasonably believed to be genuine and to have been signed by the proper
person or persons, or upon any instruction, information, data, records
or documents provided the Bank or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means
authorized by the Fund, and reasonably believed to be genuine and to
have been originated by the proper person or persons, 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
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protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures
of the officers of the Fund, and the proper countersignature of any
former transfer agent or former registrar, or of a co-transfer agent or
co-registrar.
6.3. In order that the indemnification provisions contained in this Section
6 shall apply, upon the assertion of a claim for which the Fund may be
required to indemnify the Bank, the Bank shall promptly notify the Fund
of such assertion, and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall have the option to
participate with the Bank in the defense of such claim or to defend
against said claim in its own name or in the name of the Bank in which
event the Fund shall have no further obligation to indemnify the Bank
for any expenses thereafter incurred by the Bank in connection with
such defense. The Bank shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to indemnify
the Bank except with the Fund's prior written consent.
7. Standard of Care
The Bank shall at all times act in good faith and agrees to use its
best efforts to insure the accuracy of all services performed under
this Agreement, but assumes no responsibility and shall not be liable
for loss or damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees.
8. Covenants of the Fund and the Bank
8.1. The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Directors
of the Fund authorizing the appointment of the Bank and the
execution and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
8.2. The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices,
if any; and for the preparation or use, and for keeping account of,
such certificates, forms and devices.
8.3. The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable unless
otherwise agreed to by the Bank and the Fund. 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
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prepared or maintained by the Bank relating to the services to be
performed by the Bank hereunder are the property of the Fund and will
be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to the Fund on and
in accordance with its request.
8.4. The Bank and the Fund agree that all books, records, information and
data pertaining to the business of the other party which are exchanged
or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
8.5. In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the
Fund and to secure instructions from an authorized officer of the Fund
as to such inspection. The Bank reserves the right, however, to exhibit
the Shareholder records to any person whenever it is advised by its
counsel that it may beheld liable for the failure to exhibit the
Shareholder records to such person.
9. Termination of Agreement
9.1. This Agreement may be terminated by either party upon ninety (90) days
written notice to the other.
9.2. Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be
borne by the Fund.
10. Additional Funds
In the event the Fund establishes one or more series of Shares in
addition to the Portfolios with respect to which it desires to have the
Bank render services as transfer agent under the terns 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.
11. Assignment
11.1. 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.
11.2. This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
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11.3. The Bank may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(1) of the
Securities Exchange Act of 1934, as amended ("Section 17A(c)(1)"), (ii)
a BFDS subsidiary duly registered as a transfer agent pursuant to
Section 17A(c)(1) or (iii) a BFDS affiliate duly registered as a
transfer agent pursuant to Section 17A(c)(1); provided, however, that
the Bank shall be fully responsible to the Fund for the acts and
omissions of any subcontractor.
12. Amendment
This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of
the Board of Directors of the Fund.
13. Virginia Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth
of Virginia.
14. 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.
15. Consequential Damages
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act
hereunder.
16. 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.
17. Limitations of Liability of the Trustees and Shareholders
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A copy of the Declaration of Trust of the Fundt is on file with the
Secretary of State of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees
of the Fund as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or officers
of the Fund or shareholders of any Portfolio of the Trust but are
binding only upon the assets and property of the relevant Portfolio of
the Trust.
18. 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.
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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.
MENTOR VARIABLE INVESTMENT
PORTFOLIOS
BY:
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ATTEST:
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STATE STREET BANK AND TRUST
COMPANY
BY:
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ATTEST:
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