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Exhibit 99.b.9.a
TRANSFER AGENCY AND SERVICE AGREEMENT
between
AMERICAN AADVANTAGE FUNDS
and
STATE STREET BANK AND TRUST COMPANY
1C-Domestic Trust/Series
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TABLE OF CONTENTS
Page
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1. Terms of Appointment; Duties of the Bank . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Representations and Warranties of the Bank . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Representations and Warranties of the Fund . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Wire Transfer Operating Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Data Access and Proprietary Information . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8. Registration as a Transfer Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9. Year 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11. Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
13. Covenants of the Fund and the Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
14. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
15. Additional Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18. Massachusetts Law to Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
19. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
20. Consequential Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
21. Merger of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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22. Limitations of Liability of the Trustees
or Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
23. Separate Liability of Portfolios . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
24. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
25. Reproduction of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
26. Notices 13
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of January, 1998, by and between AMERICAN
AADVANTAGE FUNDS, a Massachusetts business trust, having its principal office
and place of business at 0000 Xxxx Xxxxxx Xxxxxxxxx, XX0000, Xxxx Xxxxx, Xxxxx
00000 (the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, the Fund currently offers shares in nine (9) series, such series shall
be named in the attached Schedule A which may be amended by the parties from
time to time (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
Article 11, being herein referred to as a "Portfolio", and collectively as the
"Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Bank as
its transfer agent, dividend disbursing agent, custodian of certain retirement
plans (as may be applicable) and agent in connection with certain other
activities, and the Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
l. Terms of Appointment; Duties of the Bank
1.1 APPOINTMENT. 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 its
beneficial interest, ("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 of the Fund
("Shareholders") and set out in the currently effective prospectus
and statement of additional information ("prospectus") of the Fund on
behalf of the applicable Portfolio, including without limitation any
periodic investment plan or periodic withdrawal program.
1.2 TRANSFER AGENT SERVICES. The Bank agrees that it will perform the
following services:
(a) In accordance with procedures established from time to
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time by agreement between the Fund on behalf of each of the
Portfolios, as applicable and the Bank, the Bank shall:
(i) receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Fund
authorized pursuant to the Declaration of Trust of
the Fund (the "Custodian");
(ii) pursuant to purchase orders, record 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;
(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 on behalf of the
applicable Portfolio;
(viii) maintain records of account for and advise the Fund
and its Shareholders as to the foregoing; and
(ix) 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 and each
Portfolio which are authorized, based upon data
provided to it by the Fund on behalf of each
Portfolio, and issued and outstanding. The Bank
shall also provide the Fund and each Portfolio on a
regular basis with the total number of shares which
are authorized and issued and outstanding and shall
have no obligation, when recording the
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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 (as may be applicable) 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 Shareholder
proxies, 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 and report such
data to the Fund or its designee.
(c) In addition, the Fund shall (i) identify to the Bank in
writing those Shareholder 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 in Section 1.2
(b) 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 on behalf of each Portfolio and
the Bank per the attached service responsibility schedule.
The Bank may at times perform only a portion of these
services and the Fund or its agent may perform these
services on the Fund's behalf.
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(e) The Bank shall provide additional services on behalf of the
Fund (e.g., escheatment services) which may be agreed upon
in writing between the Fund and the Bank.
2. Fees and Expenses
2.1 For the performance by the Bank pursuant to this Agreement, the Fund
agrees on behalf of each of the Portfolios to pay the Bank the fees
as set out in the initial fee schedule attached hereto.
2.2 In addition to the fee paid under Section 2.1 above, the Fund agrees
on behalf of each of the Portfolios to reimburse the Bank for
out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche,
mailing and tabulating proxies, records storage, or advances incurred
by the Bank for the items set out in the fee schedule attached
hereto. Such fees and out-of-pocket expenses and advances identified
may be changed from time to time subject to mutual written agreement
between the Fund and the Bank. In addition, any other expenses
incurred by the Bank at the request or with the consent of the Fund,
will be reimbursed by the Fund on behalf of the applicable Portfolio.
2.3 The Fund agrees on behalf of each of the Portfolios to pay all fees
and reimbursable expenses within twenty 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 two (2) days prior
to the mailing date of such materials.
3. Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
3.1 It is a trust company duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
3.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
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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.
3.6 It will comply with all applicable laws and regulations in performing
its duties required hereunder.
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 The Commonwealth of Massachusetts.
4.2 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
4.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform
this Agreement.
4.4 It is an open-end 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
on behalf of each of the Portfolios 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. Wire Transfer Operating Guidelines/Articles 4A of the Uniform
Commercial Code
5.1 The Bank is authorized to promptly debit the appropriate Fund
account(s) upon the receipt of a payment order in compliance with the
selected security procedure (the "Security Procedure") chosen for
funds transfer and in the amount of money that the Bank has been
instructed to transfer. The Bank shall execute payment orders in
compliance with the Security Procedure and with the Fund instructions
on the execution date provided that such payment order is received by
the close of the funds-transfer business day of the Bank, unless the
payment order specifies a later time. All payment orders and
communications received after the customary deadline will be deemed
to have been received the next business day.
5.2 The Fund acknowledges that the Security Procedure it has designated
on the Fund Selection Form was selected by the Fund from security
procedures offered by the Bank. The Fund shall restrict access to
confidential information relating
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to the Security Procedure to authorized persons as communicated to
the Bank in writing. Each party must notify the other party
immediately if it has reason to believe unauthorized persons may have
obtained access to such information or of any change in that party's
authorized personnel. The Bank shall verify the authenticity of all
Fund instructions according to the Security Procedure.
5.3 The Bank shall process all payment orders on the basis of the account
number contained in the payment order. In the event of a discrepancy
between any name indicated on the payment order and the account
number, the account number shall take precedence and govern.
5.4 The Bank reserves the right to decline to process or delay the
processing of a payment order which (a) is in excess of the collected
balance in the account to be charged at the time of the Bank's
receipt of such payment order; (b) would cause the Bank, in the
Bank's reasonable judgement, to exceed any volume, aggregate dollar,
network, time, credit or similar limits which are applicable to the
Bank; or (c) the Bank, upon reasonable belief after verifying the
authenticity of the payment order according to the Security
Procedures is unable to satisfy itself that the transaction has been
properly authorized.
5.5 The Bank shall use reasonable efforts to act on all authorized
requests to cancel or amend payment orders received in compliance
with the Security Procedure provided that such requests are received
in a timely manner affording the Bank reasonable opportunity to act.
However, the Bank assumes no liability if after using reasonable
efforts the request for amendment or cancellation cannot be
satisfied.
5.6 The Bank shall assume no responsibility for failure to detect any
erroneous payment order provided that the Bank complies with the
payment order instructions as received and the Bank complies with the
Security Procedure. The Security Procedure is established for the
purpose of authenticating payment orders only and not for the
detection of errors in payment orders.
5.7 The Bank shall assume no responsibility for lost interest with
respect to the refundable amount of any unauthorized payment order,
unless the Bank is notified of the unauthorized payment order within
thirty (30) days of notification by the Bank of the acceptance of
such payment order. In no event (including failure to execute a
payment order) shall the Bank be liable for special, indirect or
consequential damages, even if advised of the possibility of such
damages.
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5.8 When the Fund initiates or receives Automated Clearing House credit
and debit entries pursuant to these guidelines and the rules of the
National Automated Clearing House Association and the New England
Clearing House Association, the Bank will act as an Originating
Depository Financial Institution and/or receiving depository
Financial Institution, as the case may be, with respect to such
entries. Credits given by the Bank with respect to an ACH credit
entry are provisional until the Bank receives final settlement for
such entry from the Federal Reserve Bank. If the Bank does not
receive such final settlement, the Fund agrees that the Bank shall
receive a refund of the amount credited to the Fund in connection
with such entry, and the party making payment to the Fund via such
entry shall not be deemed to have paid the amount of the entry.
5.9 Confirmation of Bank's execution of payment orders shall ordinarily
be provided within twenty-four (24) hours notice of which may be
delivered through the Bank's proprietary information systems, or by
facsimile or call-back. Fund must report any objections to the
execution of an order within thirty (30) days.
6. Data Access and Proprietary Information
6.1 The Fund acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by the Bank as part of
the Fund's ability to access certain Fund-related data ("Customer
Data") maintained by the Bank on data bases under the control and
ownership of the Bank or other third party ("Data Access Services")
constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial
value to the Bank or other third party. In no event shall
Proprietary Information be deemed Customer Data. The Fund agrees to
treat all Proprietary Information as proprietary to the Bank and
further agrees that it shall not divulge any Proprietary Information
to any person or organization except as may be provided hereunder.
Without limiting the foregoing, the Fund agrees for itself and its
employees and agents:
(a) to access Customer Data solely from locations as may be
designated in writing by the Bank and solely in accordance
with the Bank's applicable user documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any portion
of the Proprietary Information, and if such access is
inadvertently obtained, to inform in a timely
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manner of such fact and dispose of such information in
accordance with the Bank's instructions;
(d) excluding the Fund's principal office in Fort Worth, Texas,
to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other computer
facility or other location, except with the prior written
consent of the Bank;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in
Proprietary Information at common law, under federal
copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 6. The obligations of this Section shall
survive any earlier termination of this Agreement.
6.2 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.
6.3 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.
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7. Indemnification
7.1 The Bank shall not be responsible for, and the Fund shall on behalf
of the applicable Portfolio indemnify and hold the Bank harmless from
and against, any and all losses, damages, costs, charges, reasonable
counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of the Bank or its agents or subcontractors
required to be taken pursuant to this Agreement, provided
that such actions are taken in good faith and without
negligence or willful misconduct;
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the 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 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 on behalf of the applicable Portfolio;
(e) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other
determination or ruling by any federal or any state agency
with respect to the offer or sale of such Shares;
(f) upon the Fund's request entering into any agreements
required by the National Securities Clearing Corporation (the
"NSCC") required by the NSCC for the transmission of Fund or
Shareholder data through the NSCC clearing systems.
7.2 At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with Fund counsel with respect to any
matter arising in connection with the services to be performed by the
Bank under this Agreement, and the Bank and its agents or
subcontractors shall not be liable and shall be indemnified by the
Fund on behalf of the applicable Portfolio for any action taken or
omitted by it in 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,
reasonably believed to be genuine and to have been
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signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided the Bank or its
agents or subcontractors by machine readable input, telex, CRT data
entry or other similar means authorized by the Fund, and shall not be
held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund.
7.3 The Bank shall indemnify and hold the Fund harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action
or failure or omission to act by the Bank as a result of the Bank's
lack of good faith, gross negligence or willful misconduct.
7.4 In order that the indemnification provisions contained in this
Section 7 shall apply, upon the assertion of a claim for which the
one party (the "Indemnitor") may be required to indemnify the other
party (the "Indemnitee"), the Indemnitee shall promptly notify the
Indemnitor of such assertion, and shall keep the Indemnitor advised
with respect to all developments concerning such claim. The
Indemnitor shall have the option to participate with the Indemnitee
in the defense of such claim or to defend against said claim in its
own name or in the name of the Indemnitee. The Indemnitee shall in
no case confess any claim or make any compromise in any case in which
the Indemnitor may be required to indemnify the Indemnitee except
with the Indemnitor's prior written consent.
8. Registration as a Transfer Agent
Bank and its record keeping Transfer Agent NFDS are currently
registered with the appropriate federal agency for the registration
of transfer agents, or is otherwise permitted to lawfully conduct its
activities without such registration and that it will remain so
registered for the duration of this Agreement. Bank agrees that it
will promptly notify the Fund in the event of any material change in
its status as a registered transfer agent. Should Bank fail to be
registered with the appropriate federal agency as a transfer agent at
any time during this Agreement, and such failure to register does not
permit Bank to lawfully conduct its activities, the Fund may
terminate this Agreement upon five days written notice to Bank.
9. Year 2000
Notwithstanding anything in this Agreement to the contrary, the
Bank's only warranty with respect to year 2000 compliance is that the
Bank's processing systems and software (the "TA2000 System") will be
year 2000 compliant during the term set forth in Section 14 of this
Agreement.
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As used in this Agreement "year 2000 complaint" shall mean that the
software will perform in accordance with the terms of this Agreement
regardless of the century with respect to which date data is
encountered by the software; provided, that (i) all date data
received by the Bank for use by the software is accurate and in
formats specified by the Bank from time to time, (ii) all date data
generated by the software is accepted by the Fund in formats provided
by the Bank from time to time, and (iii) the Bank shall not be
obligated to provide date data for interface functions such as
screens, reports or data transmission files in any format other than
that specified by the Bank from time to time. Notwithstanding the
foregoing, the Bank makes no representation or warranty as to the
ability of any hardware, firmware, software, products or services
provided to the Bank software, including the TA2000 System, in
circumstances where data received from any fund system or any other
system is invalid, incorrect or otherwise corrupt.
10. Insurance
Bank shall maintain insurance of the types and in the amounts deemed
by it to be appropriate. To the extent that policies of insurance
may provide for coverage of claims for liability by the parties set
forth in this Agreement, the contracts of insurance shall take
precedence, and no provision of this Agreement shall be construed to
relieve an insurer of any obligation to pay claims to the Fund, Bank
or other insured party which would otherwise be a covered claim in
the absence of any provision of this Agreement provided however, that
this Section 10 does not void, reduce or jeopardize the insurance
coverage of the insured party.
11. Security
Bank represents and warrants that, to the best of its knowledge, the
various procedures and systems which Bank has implemented with regard
to the safeguarding from loss or damage attributable to fire, theft
or any other cause (including provision for twenty-four hours a day
restricted access) of the Fund's blank checks, certificates, records
and other data hereunder are adequate, and that it will make such
changes therein from time to time as in its judgment are required for
the secure performance of its obligations hereunder. Bank shall
review such systems and procedures on a periodic basis and the fund
shall have access to review these systems and procedures.
12. Standard of Care
The Bank shall at all times act in good faith and agrees to use its
best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss
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or damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its
employees.
13. Covenants of the Fund and the Bank
13.1 The Fund shall on behalf of each of the Portfolios promptly furnish
to the Bank the following:
(a) A copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Bank and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Fund
and all amendments thereto.
13.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of check
forms and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such forms and
devices.
13.3 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of 1940,
as amended, and the Rules thereunder, the Bank agrees that all such
records prepared or maintained by the Bank relating to the services
to be performed by the Bank hereunder are the property of the Fund
and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered promptly to the
Fund on and in accordance with its request.
13.4 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.
13.5 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the
Fund and to secure instructions from an authorized officer of the
Fund as to such inspection. The Bank reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised
by its counsel that it may be held liable for the failure to exhibit
the Shareholder records to such person.
14. Termination of Agreement
14.1 Unless otherwise provided in this Agreement, this Agreement may be
terminated by either party upon ninety (90) days written notice to
the other.
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14.2 Should the Fund exercise its right to terminate, reasonable
out-of-pocket expenses associated with the movement of records and
material will be borne by the Fund on behalf of the applicable
Portfolio(s). Additionally, the Bank reserves the right to charge
for any other reasonable expenses associated with such termination.
15. Additional Funds
In the event that the Fund establishes one or more series of Shares
in addition to the series named in the attached Schedule A with
respect to which it desires to have the Bank render services as
transfer agent under the terms hereof, it shall so notify the Bank in
writing, and if the Bank agrees in writing to provide such services,
such series of Shares shall become a Portfolio hereunder.
16. Assignment
16.1 Except as provided in Section 16.3 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party.
16.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
16.3 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)(2) of the
Securities Exchange Act of 1934, as amended ("Section 17A(c)(2)"),
(ii) a BFDS subsidiary duly registered as a transfer agent pursuant
to Section 17A(c)(2) or (iii) a BFDS affiliate; provided, however,
that the Bank shall be as fully responsible to the Fund for the acts
and omissions of any subcontractor as it is for its own acts and
omissions.
17. 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 Trustees of the Fund.
18. Massachusetts Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth
of Massachusetts.
17
19. 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.
20. 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.
18
21. 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.
22. Limitations of Liability of the Trustees and Shareholders
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of The Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed on behalf of the Trustees of
the Trust as Trustees and not individually and that the obligations
of this instrument are not binding upon any of the Trustees or
Shareholders individually but are binding only upon the assets and
property of the Fund.
23. Separate Liability of Portfolios
Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Portfolio of the Fund
are separate and distinct from the assets and liabilities of each
other Portfolio and that no Portfolio shall be liable or shall be
charged for any debt, obligation or liability of any other Portfolio,
whether arising under the Agreement or otherwise.
24. 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.
25. Reproduction of Documents
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other
similar process. The parties hereto each agree that any such
reproduction shall be admissible in evidence as the original itself
in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was
made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction shall likewise be
admissible in evidence.
19
26. Notices
All notices under this Agreement shall be made orally, in writing,
or by any other means mutually acceptable to the parties. If in
writing, a notice shall be sufficient if personally delivered,
mailed, first class postage prepaid, or sent via facsimile with
return confirmation to the party entitled to receive such notices at
the following addresses:
(a) if to the Fund, to:
AMERICAN AADVANTAGE FUNDS
0000 Xxxx Xxxxxx Xxxx.
MD 5645
Xxxx Xxxxx, XX 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to the Bank, to:
State Street Bank and Trust Company
C/O Boston Financial Data Services, Inc.
Attention: President
0 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as either party shall have furnished to the
other in writing.
20
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.
AMERICAN AADVANTAGE FUNDS
BY: /s/ XXXXXXX X. XXXXX
-----------------------------------------
President
ATTEST:
/s/ XXXXX X. XXXXXXXXX
------------------------------
STATE STREET BANK AND TRUST
COMPANY
BY: /s/ XXXXXX X. XXXXX
-----------------------------------------
Executive Vice President
ATTEST:
/s/ S. CESSI
------------------------------
00
XXXXX XXXXXX BANK & TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
----------------- --------------
Bank Fund
---- ----
1. Receives orders for the purchase X
of Shares.
2. Issue Shares and hold Shares in X
Shareholders accounts.
3. Receive redemption requests. X
4. Effect transactions 1-3 above X
directly with broker-dealers.
5. Pay over monies to redeeming X
Shareholders.
6. Effect transfers of Shares. X
7. Prepare and transmit dividends X
and distributions.
8. Issue Replacement Certificates. N/A
9. Reporting of abandoned property. X
10. Maintain records of account. X
11. Maintain and keep a current and X
accurate control book for each
issue of securities.
12. Mail proxies. X
13. Mail Shareholder reports. X
14. Mail prospectuses to current X
Shareholders.
15. Withhold taxes on U.S. resident X
and non-resident alien accounts.
22
Service Performed Responsibility
----------------- --------------
Bank Fund
---- ----
16. Prepare and file U.S. Treasury X
Department forms.
17. Prepare and mail account and X
confirmation statements for
Shareholders.
18. Provide Shareholder account X
information.
19. Blue sky reporting. X
]
* Such services are more fully described in Section 1.2 (a), (b) and (c)
of the Agreement.
AMERICAN AADVANTAGE FUNDS
BY:/s/XXXXXXX X. XXXXX
-------------------
Xxxxxxx X. Xxxxx
ATTEST:
/s/ XXXXX X. XXXXXXXXX
----------------------
STATE STREET BANK AND TRUST
COMPANY
BY:/s/ XXXXXX X. XXXXX
------------------------
Executive Vice President
ATTEST:
/s/ X. XXXXX
----------------------
23
SCHEDULE A
Balanced Fund
Growth and Income Fund
Intermediate Bond Fund
International Equity Fund
Limited-Term Income Fund
Money Market Fund
Municipal Money Market Fund
U.S. Government Money Market Fund
S&P 500 Index Fund
