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EXHIBIT 99.B9(a)
AGENCY AGREEMENT
AGREEMENT dated the ___ day of December, 1995, by and between
XXXXXX HORIZON FUND, a Massachusetts business trust having its
principal place of business at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx,
XX 00000 ("Fund"), and INVESTORS FIDUCIARY TRUST COMPANY, a state
chartered trust company organized and existing under the laws of
the State of Missouri having its principal place of business at
000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("IFTC").
WHEREAS, Fund wants to appoint IFTC as Transfer Agent and
Dividend Disbursing Agent, and IFTC wants to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
In connection with the appointment of IFTC as Transfer
Agent and Dividend Disbursing Agent for Fund, there will
be filed with IFTC the following documents:
A. A certified copy of the resolutions of the Board of
Trustees of Fund appointing IFTC as Transfer Agent and
Dividend Disbursing Agent, approving the form of this
Agreement, and designating certain persons to give
written instructions and requests on behalf of Fund.
B. A certified copy of the Agreement and Declaration of
Trust of Fund and any amendments thereto.
C. A certified copy of the Bylaws of Fund.
D. Copies of Registration Statements filed with the
Securities and Exchange Commission.
E. Specimens of all forms of outstanding share
certificates as approved by the Board of Trustees of
Fund, with a certificate of the Secretary of Fund as
to such approval.
F. Specimens of the signatures of the officers of the
Fund authorized to sign share certificates and
individuals authorized to sign written instructions
and requests on behalf of the Fund.
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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 IFTC. IFTC
represents and warrants to Fund that:
A. It is a trust company duly organized and existing and
in good standing under the laws of the State of
Missouri.
B. It is duly qualified to carry on its business in the
State of Missouri.
C. It is empowered under applicable laws and by its
Articles of Incorporation and Bylaws to enter into and
perform the services contemplated in this Agreement.
D. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
E. It has and will continue to have and maintain the
necessary facilities, equipment and personnel to
perform its duties and obligations under this
Agreement.
F. It is, and will continue to be, registered as a
transfer agent under the Securities Exchange Act of
1934.
3. Certain Representations and Warranties of Fund. Fund
represents and warrants to IFTC that:
A. It is a business trust duly organized and existing and
in good standing under the laws of The Commonwealth of
Massachusetts.
B. It is an investment company registered under the
Investment Company Act of 1940.
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C. A registration statement under the Securities Act of
1933 has been filed and will be effective with respect
to all shares of Fund being offered for sale at any
time and from time to time.
D. All requisite steps have been or will be taken to
register Fund's shares for sale in all applicable
states, including the District of Columbia.
E. Fund and its Trustees are empowered under applicable
laws and by the Fund's Agreement and Declaration of
Trust and Bylaws to enter into and perform this
Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement,
Fund hereby employs and appoints IFTC as Transfer
Agent and Dividend Disbursing Agent effective the date
hereof.
B. IFTC hereby accepts such employment and appointment
and agrees that it will act as Fund's Transfer Agent
and Dividend Disbursing Agent. IFTC agrees that it
will also act as agent in connection with Fund's
periodic withdrawal payment accounts and other open-
account or similar plans for shareholders, if any.
C. IFTC agrees to provide the necessary facilities,
equipment and personnel to perform its duties and
obligations hereunder in accordance with industry
practice.
D. Fund agrees to use all reasonable efforts to deliver
to IFTC in Kansas City, Missouri, as soon as they are
available, all its shareholder account records.
E. Subject to the provisions of Sections 20 and 21
hereof, IFTC agrees that it will perform all the usual
and ordinary services of Transfer Agent and Dividend
Disbursing Agent and as agent for the various
shareholder accounts, including, without limitation,
the following: issuing, transferring and cancelling
share certificates, maintaining all shareholder
accounts, preparing shareholder meeting lists, mailing
proxies, receiving and tabulating proxies, mailing
shareholder reports and prospectuses, withholding
federal income taxes, preparing and mailing checks for
disbursement of income and capital gains dividends,
preparing and filing all required U.S. Treasury
Department information returns for all shareholders,
preparing and mailing confirmation forms to
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shareholders and dealers with respect to all purchases
and liquidations of Fund shares and other transactions
in shareholder accounts for which confirmations are
required, recording reinvestments of dividends and
distributions in Fund shares, recording redemptions of
Fund shares and preparing and mailing checks for
payments upon redemption and for disbursements to
systematic withdrawal plan shareholders.
5. Compensation and Expenses.
A. In consideration for the services provided hereunder
by IFTC as Transfer Agent and Dividend Disbursing
Agent, Fund will pay to IFTC from time to time
compensation as agreed upon for all services rendered
as Agent, and also, all its reasonable out-of-pocket
expenses and other disbursements incurred in
connection with the agency. Such compensation will be
set forth in a separate schedule to be agreed to by
Fund and IFTC. The initial agreement regarding
compensation is attached as Exhibit A.
B. Fund agrees to promptly reimburse IFTC for all
reasonable out-of-pocket expenses or advances incurred
by IFTC in connection with the performance of services
under this Agreement including, but not limited to,
postage (and first class mail insurance in connection
with mailing share certificates), envelopes, check
forms, continuous forms, forms for reports and
statements, stationery, and other similar items,
telephone and telegraph charges incurred in answering
inquiries from dealers or shareholders, microfilm used
each year to record the previous year's transactions
in shareholder accounts and computer tapes used for
permanent storage of records and cost of insertion of
materials in mailing envelopes by outside firms. IFTC
may, at its option, arrange to have various service
providers submit invoices directly to the Fund for
payment of out-of-pocket expenses reimbursable
hereunder.
6. Efficient Operation of IFTC System.
A. In connection with the performance of its services
under this Agreement, IFTC is responsible for the
accurate and efficient functioning of its system at
all times, including:
(1) The accuracy of the entries in IFTC's records
reflecting purchase and redemption orders and
other instructions received by IFTC from dealers,
shareholders, Fund or its principal underwriter.
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(2) The timely availability and the accuracy of
shareholder lists, shareholder account
verifications, confirmations and other shareholder
account information to be produced from IFTC's
records or data.
(3) The accurate and timely issuance of dividend and
distribution checks in accordance with
instructions received from Fund.
(4) The accuracy of redemption transactions and
payments in accordance with redemption
instructions received from dealers, shareholders
or Fund or other authorized persons.
(5) The deposit daily in Fund's appropriate special
bank account of all checks and payments received
from dealers or shareholders for investment in
shares.
(6) The requiring of proper forms of instructions,
signatures and signature guarantees and any
necessary documents supporting the rightfulness of
transfers, redemptions and other shareholder
account transactions, all in conformance with
IFTC's present procedures with such changes as may
be deemed reasonably appropriate by IFTC or as may
be reasonably approved by or on behalf of Fund.
(7) The maintenance of a current duplicate set of
Fund's essential or required records, as agreed
upon from time to time by Fund and IFTC, at a
secure distant location, in form available and
usable forthwith in the event of any breakdown or
disaster disrupting its main operation.
7. Indemnification.
A. Fund shall indemnify and hold IFTC harmless from and
against any and all claims, actions, suits, losses,
damages, costs, charges, counsel fees, payments,
expenses and liabilities arising out of or
attributable to any action or omission by IFTC
pursuant to this Agreement or in connection with the
agency relationship created by this Agreement,
provided that IFTC has acted in good faith, without
negligence and without willful misconduct.
B. IFTC shall indemnify and hold Fund harmless from and
against any and all claims, actions, suits, losses,
damages, costs, charges, counsel fees, payments,
expenses and liabilities arising out of or
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attributable to any action or omission by IFTC
pursuant to this Agreement or in connection with the
agency relationship created by this Agreement,
provided that IFTC has not acted in good faith,
without negligence and without willful misconduct.
C. In order that the indemnification provisions contained
in this Section 7 shall apply, upon the assertion of a
claim for which either party (the "Indemnifying
Party") may be required to provide indemnification
hereunder, the party seeking indemnification (the
"Indemnitee") shall promptly notify the Indemnifying
Party of such assertion, and shall keep such party
advised with respect to all developments concerning
such claim. The Indemnifying Party shall be entitled
to assume control of the defense and the negotiations,
if any, regarding settlement of the claim. If the
Indemnifying Party assumes control, the Indemnitee
shall have the option to participate in the defense
and negotiations of such claim at its own expense.
The Indemnitee shall in no event confess, admit to,
compromise, or settle any claim for which the
Indemnifying Party may be required to indemnify it
except with the prior written consent of the
Indemnifying Party, which shall not be unreasonably
withheld.
8. Certain Covenants of IFTC and Fund.
A. All requisite steps will be taken by Fund from time to
time when and as necessary to register the Fund's
shares for sale in all states in which Fund's shares
shall at the time be offered for sale and require
registration. If at any time Fund receives notice of
any stop order or other proceeding in any such state
affecting such registration or the sale of Fund's
shares, or of any stop order or other proceeding under
the Federal securities laws affecting the sale of
Fund's shares, Fund will give prompt notice thereof to
IFTC.
B. IFTC hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to
Fund for safekeeping of share certificates, check
forms, and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
Further, IFTC agrees to carry insurance, as specified
in Exhibit B hereto, with insurers reasonably
acceptable to Fund and in minimum amounts that are
reasonably acceptable to Fund, which will not be
changed without the consent of Fund, which consent
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shall not be unreasonably withheld, and which will be
expanded in coverage or increased in amounts from time
to time if and when reasonably requested by Fund. If
IFTC determines that it is unable to obtain any such
insurance upon commercially reasonable terms, it shall
promptly so advise Fund in writing. In such event,
Fund shall have the right to terminate this Agreement
upon 30 days notice.
C. To the extent required by Section 31 of the Investment
Company Act of 1940 and Rules thereunder, IFTC agrees
that all records maintained by IFTC relating to the
services to be performed by IFTC under this Agreement
are the property of Fund and will be preserved and
will be surrendered promptly to Fund on request.
D. IFTC agrees to furnish Fund semi-annual reports of its
financial condition, consisting of a balance sheet,
earnings statement and any other reasonably available
financial information reasonably requested by Fund.
The annual financial statements will be certified by
IFTC's certified public accountants.
E. IFTC represents and agrees that it will use all
reasonable efforts to keep current on the trends of
the investment company industry relating to
shareholder services and will use all reasonable
efforts to continue to modernize and improve its
system without additional cost to Fund.
F. IFTC will permit Fund and its authorized
representatives to make periodic inspections of its
operations at reasonable times during business hours.
G. If IFTC is prevented from complying, either totally or
in part, with any of the terms or provisions of this
Agreement, by reason of fire, flood, storm, strike,
lockout or other labor trouble, riot, war, rebellion,
accidents, acts of God, equipment, utility or
transmission failure or damage, and/or any other cause
or casualty beyond the reasonable control of IFTC,
whether similar to the foregoing matters or not, then
upon written notice to Fund, the requirements of this
Agreement that are affected by such disability, to the
extent so affected, shall be suspended during the
period of such disability; provided, however, that
IFTC shall make reasonable effort to remove such
disability as soon as possible. During such period,
Fund may seek alternate sources of service without
liability hereunder; and IFTC will use all reasonable
efforts to assist Fund to obtain alternate sources of
service. IFTC shall have no liability to Fund for
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nonperformance because of the reasons set forth in
this Section 8.G; but if a disability that, in Fund's
reasonable belief, materially affects IFTC's ability
to perform its obligations under this Agreement
continues for a period of 30 days, then Fund shall
have the right to terminate this Agreement upon 10
days written notice to IFTC.
9. Adjustment.
In case of any recapitalization, readjustment or other
change in the structure of Fund requiring a change in the
form of share certificates, IFTC will issue or register
certificates in the new form in exchange for, or in
transfer of, the outstanding certificates in the old form,
upon receiving the following:
A. Written instructions from an officer of Fund.
B. Certified copy of any amendment to the Agreement and
Declaration of Trust or other document effecting the
change.
C. Certified copy of any order or consent of each
governmental or regulatory authority required by law
for the issuance of the shares in the new form, and an
opinion of counsel that no order or consent of any
other government or regulatory authority is required.
D. Specimens of the new certificates in the form approved
by the Board of Trustees of Fund, with a certificate
of the Secretary of Fund as to such approval.
E. Opinion of counsel for Fund:
(1) With respect to the status of the shares of Fund
in the new form under the Securities Act of 1933,
and any other applicable federal or state laws.
(2) To the effect that the issued shares in the new
form are, and all unissued shares will be when
issued, validly issued, fully paid and non-
assessable.
10. Share Certificates.
Fund will furnish IFTC with a sufficient supply of blank
share certificates and from time to time will renew such
supply upon the request of IFTC. Such certificates will
be signed manually or by facsimile signatures of the
officers of Fund authorized by law and Fund's Bylaws to
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sign share certificates and, if required, will bear the
trust seal or facsimile thereof.
11. Death, Resignation or Removal of Signing Officer.
Fund will file promptly with IFTC written notice of any
change in the officers authorized to sign share
certificates, written instructions or requests, together
with two signature cards bearing the specimen signature of
each newly authorized officer, all as certified by an
appropriate officer of the Fund. In case any officer of
Fund who will have signed manually or whose facsimile
signature will have been affixed to blank share
certificates will die, resign, or be removed prior to the
issuance of such certificates, IFTC may issue or register
such share certificates as the share certificates of Fund
notwithstanding such death, resignation, or removal, until
specifically directed to the contrary by Fund in writing.
In the absence of such direction, Fund will file promptly
with IFTC such approval, adoption, or ratification as may
be required by law.
12. Future Amendments of Agreement and Declaration of Trust
and Bylaws.
Fund will promptly file with IFTC copies of all material
amendments to its Agreement and Declaration of Trust and
Bylaws and Registration Statement made after the date of
this Agreement.
13. Instructions, Opinion of Counsel and Signatures.
At any time IFTC may apply to any officer of Fund for
instructions, and may consult with legal counsel for Fund
at the expense of Fund, or with its own legal counsel at
its own expense, with respect to any matter arising in
connection with the agency; and it will not be liable for
any action taken or omitted by it in good faith in
reliance upon such instructions or upon the opinion of
such counsel. IFTC is authorized to act on the orders,
directions or instructions of such persons as the Board of
Trustees of Fund shall from time to time designate by
resolution. IFTC will be protected in acting upon any
paper or document, including any orders, directions or
instructions, reasonably believed by it to be genuine and
to have been signed by the proper person or persons; and
IFTC will not be held to have notice of any change of
authority of any person so authorized by Fund until
receipt of written notice thereof from Fund. IFTC will
also be protected in recognizing share certificates that
it reasonably believes to bear the proper manual or
facsimile signatures of the officers of Fund, and the
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proper countersignature of any former Transfer Agent or
Registrar, or of a Co-Transfer Agent or Co-Registrar.
14. Papers Subject to Approval of Counsel.
The acceptance by IFTC of its appointment as Transfer
Agent and Dividend Disbursing Agent, and all documents
filed in connection with such appointment and thereafter
in connection with the agencies, will be subject to the
approval of legal counsel for IFTC, which approval will
not be unreasonably withheld.
15. Certification of Documents.
The required copy of the Agreement and Declaration of
Trust of Fund and copies of all amendments thereto will be
certified by the appropriate official of The Commonwealth
of Massachusetts; and if such Agreement and Declaration of
Trust and amendments are required by law to be also filed
with a county, city or other officer or official body, a
certificate of such filing will appear on the certified
copy submitted to IFTC. A copy of the order or consent of
each governmental or regulatory authority required by law
for the issuance of Fund shares will be certified by the
Secretary or Clerk of such governmental or regulatory
authority, under proper seal of such authority. The copy
of the Bylaws and copies of all amendments thereto and
copies of resolutions of the Board of Trustees of Fund
will be certified by the Secretary or an Assistant
Secretary of Fund.
16. Records.
IFTC will maintain customary records in connection with
its agency, and particularly will maintain those records
required to be maintained pursuant to sub-paragraph
(2)(iv) of paragraph (b) of Rule 31a-1 under the
Investment Company Act of 1940, if any.
17. Disposition of Books, Records and Cancelled Certificates.
IFTC will send periodically to Fund, or to where
designated by the Secretary or an Assistant Secretary of
Fund, all books, documents, and all records no longer
deemed needed for current purposes and share certificates
which have been cancelled in transfer or in exchange, upon
the understanding that such books, documents, records, and
share certificates will not be destroyed by Fund without
the consent of IFTC (which consent will not be
unreasonably withheld), but will be safely stored for
possible future reference.
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18. Provisions Relating to IFTC as Transfer Agent.
A. IFTC will make original issues of share certificates
upon written request of an officer of Fund and upon
being furnished with a certified copy of a resolution
of the Board of Trustees authorizing such original
issue, an opinion of counsel as outlined in Section
1.G or 9.E of this Agreement, the certificates
required by Section 10 of this Agreement and any other
documents required by Section 1 or 9 of this
Agreement.
B. Before making any original issue of certificates, Fund
will furnish IFTC with sufficient funds to pay any
taxes required on the original issue of the shares.
Fund will furnish IFTC such evidence as may be
required by IFTC to show the actual value of the
shares. If no taxes are payable, IFTC will upon
request be furnished with an opinion of outside
counsel to that effect.
C. Shares will be transferred and new certificates issued
in transfer, or shares accepted for redemption and
funds remitted therefor, upon surrender of the old
certificates in form deemed by IFTC properly endorsed
for transfer or redemption accompanied by such
documents as IFTC may deem necessary to evidence the
authority of the person making the transfer or
redemption, and bearing satisfactory evidence of the
payment of any applicable share transfer taxes. IFTC
reserves the right to refuse to transfer or redeem
shares until it is satisfied that the endorsement or
signature on the certificate or any other document is
valid and genuine, and for that purpose it may require
a guarantee of signature by such persons as may from
time to time be specified in the prospectus related to
such shares or otherwise authorized by Fund. IFTC
also reserves the right to refuse to transfer or
redeem shares until it is satisfied that the requested
transfer or redemption is legally authorized, and it
will incur no liability for the refusal in good faith
to make transfers or redemptions which, in its
judgment, are improper, unauthorized, or otherwise not
rightful. IFTC may, in effecting transfers or
redemptions, rely upon Simplification Acts or other
statutes which protect it and Fund in not requiring
complete fiduciary documentation.
D. When mail is used for delivery of share certificates,
IFTC will forward share certificates in
"nonnegotiable" form as provided by Fund by first
class mail, all such mail deliveries to be covered
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while in transit to the addressee by insurance
arranged for by IFTC.
E. IFTC will issue and mail subscription warrants and
certificates provided by Fund and representing share
dividends, exchanges or split-ups, or act as
Conversion Agent upon receiving written instructions
from any officer of Fund and such other documents as
IFTC deems necessary.
F. IFTC will issue, transfer, and split-up certificates
upon receiving written instructions from an officer of
Fund and such other documents as IFTC may deem
necessary.
G. IFTC may issue new certificates in place of
certificates represented to have been lost, destroyed,
stolen or otherwise wrongfully taken, upon receiving
indemnity satisfactory to IFTC, and may issue new
certificates in exchange for, and upon surrender of,
mutilated certificates. Any such issuance shall be in
accordance with the provisions of law governing such
matter and any procedures adopted by the Board of
Trustees of the Fund of which IFTC has notice.
H. IFTC will supply a shareholder's list to Fund properly
certified by an officer of IFTC for any shareholder
meeting upon receiving a request from an officer of
Fund. It will also supply lists at such other times
as may be reasonably requested by an officer of Fund.
I. Upon receipt of written instructions of an officer of
Fund, IFTC will address and mail notices to
shareholders.
J. In case of any request or demand for the inspection of
the share books of Fund or any other books of Fund in
the possession of IFTC, IFTC will endeavor to notify
Fund and to secure instructions as to permitting or
refusing such inspection. IFTC reserves the right,
however, to exhibit the share books or other books to
any person in case it is advised by its counsel that
it may be held responsible for the failure to exhibit
the share books or other books to such person.
19. Provisions Relating to Dividend Disbursing Agency.
A. IFTC will, at the expense of Fund, provide a special
form of check containing the imprint of any device or
other matter desired by Fund. Said checks must,
however, be of a form and size convenient for use by
IFTC.
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B. If Fund wants to include additional printed matter,
financial statements, etc., with the dividend checks,
the same will be furnished to IFTC within a reasonable
time prior to the date of mailing of the dividend
checks, at the expense of Fund.
C. If Fund wants its distributions mailed in any special
form of envelopes, sufficient supply of the same will
be furnished to IFTC but the size and form of said
envelopes will be subject to the approval of IFTC. If
stamped envelopes are used, they must be furnished by
Fund; or, if postage stamps are to be affixed to the
envelopes, the stamps or the cash necessary for such
stamps must be furnished by Fund.
D. IFTC will maintain one or more deposit accounts as
Agent for Fund, into which the funds for payment of
dividends, distributions, redemptions or other
disbursements provided for hereunder will be
deposited, and against which checks will be drawn.
20. Termination of Agreement.
A. This Agreement may be terminated by either party upon
sixty (60) days prior written notice to the other
party.
B. Fund, in addition to any other rights and remedies,
shall have the right to terminate this Agreement
forthwith upon the occurrence at any time of any of
the following events:
(1) Any interruption or cessation of operations by
IFTC or its assigns which materially interferes
with the business operation of Fund.
(2) The bankruptcy of IFTC or its assigns or the
appointment of a receiver for IFTC or its assigns.
(3) Any merger, consolidation or sale of substantially
all the assets of IFTC or its assigns.
(4) The acquisition of a controlling interest in IFTC
or its assigns, by any broker, dealer, investment
adviser or investment company except as may
presently exist.
(5) Failure by IFTC or its assigns to perform its
duties in accordance with this Agreement, which
failure materially adversely affects the business
operations of Fund and which failure continues for
thirty (30) days after written notice from Fund.
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(6) The registration of IFTC or its assigns as a
transfer agent under the Securities Exchange Act
of 1934 is revoked, terminated or suspended for
any reason.
C. In the event of termination, Fund will promptly pay
IFTC all amounts due to IFTC hereunder. Upon
termination of this Agreement, IFTC shall deliver all
shareholder and account records pertaining to Fund
either to Fund or as directed in writing by Fund.
21. Assignment.
A. Except for the assignment of responsibilities pursuant
to the Services Agreement ("Services Agreement")
between IFTC and Xxxxxx Service Company ("KSVC"),
which Fund has approved, neither this Agreement nor
any rights or obligations hereunder may be assigned by
IFTC without the written consent of Fund; provided,
however, no assignment will relieve IFTC of any of its
obligations hereunder.
B. This Agreement including, without limitation, the
provisions of Section 7 will inure to the benefit of
and be binding upon the parties and their respective
successors and assigns including KSVC pursuant to the
aforesaid Services Agreement.
C. KSVC is authorized by Fund to use the system services
of DST Systems, Inc.
22. Confidentiality.
A. Except as provided in the last sentence of Section
18.J hereof, or as otherwise required by law, IFTC
will keep confidential all records of and information
in its possession relating to Fund or its shareholders
or shareholder accounts and will not disclose the same
to any person except at the request or with the
consent of Fund.
B. Except as otherwise required by law, Fund will keep
confidential all financial statements and other
financial records (other than statements and records
relating solely to Fund's business dealings with IFTC)
and all manuals, systems and other technical
information and data, not publicly disclosed, relating
to IFTC's operations and programs furnished to it by
IFTC pursuant to this Agreement and will not disclose
the same to any person except at the request or with
the consent of IFTC. Notwithstanding anything to the
contrary in this Section 22.B, if an attempt is made
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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 IFTC prompt notice thereof prior
to disclosure or production so that IFTC may, at its
expense, resist such attempt.
23. Survival of Representations and Warranties.
All representations and warranties by either party herein
contained will survive the execution and delivery of this
Agreement.
24. Miscellaneous.
A. This Agreement is executed and delivered in the State
of Illinois and shall be governed by the laws of said
state (except as to Section 24.G hereof which shall be
governed by the laws of The Commonwealth of
Massachusetts).
B. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement
properly authorized and executed by both parties
hereto.
C. The captions in this Agreement are included for
convenience of reference only, and in no way define or
limit any of the provisions hereof or otherwise affect
their construction or effect.
D. This Agreement shall become effective as of the date
hereof.
E. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an
original but all of which together shall constitute
one and the same instrument.
F. If any part, term or provision of this Agreement is
held by the courts to be illegal, in conflict with any
law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be
affected, and the rights and obligations of the
parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
G. All parties hereto are expressly put on notice of
Fund's Agreement and Declaration of Trust which is on
file with the Secretary of The Commonwealth of
Massachusetts, and the limitation of shareholder and
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trustee liability contained therein. This Agreement
has been executed by and on behalf of Fund by its
representatives as such representatives and not
individually, and the obligations of Fund hereunder
are not binding upon any of the Trustees, officers or
shareholders of the Fund individually but are binding
upon only the assets and property of Fund. With
respect to any claim by IFTC for recovery of that
portion of the compensation and expenses (or any other
liability of Fund arising hereunder) allocated to a
particular Portfolio, whether in accordance with the
express terms hereof or otherwise, IFTC shall have
recourse solely against the assets of that Portfolio
to satisfy such claim and shall have no recourse
against the assets of any other Portfolio for such
purpose.
H. This Agreement, together with the Fee Schedule, is the
entire contract between the parties relating to the
subject matter hereof and supersedes all prior
agreements between the parties.
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 HORIZON FUND
By______________________________
Title:__________________________
ATTEST:
______________________________
Title:________________________
INVESTORS FIDUCIARY TRUST COMPANY
By_______________________________
Title:___________________________
ATTEST:
______________________________
Title:________________________
16
17
EXHIBIT A
FEE SCHEDULE (MULTIPLE CLASSES OF SHARES)
TRANSFER AGENCY FUNCTION FEE PAYABLE BY FUND
CLASS A, C AND I CLASS B
1. Annual open shareholder
account fee (per year per
account).
a. Non-daily dividend series. $6.00 $6.00
b. Daily dividend series. $8.00 $8.00
2. Annual closed shareholder account
fee (per year per account). $6.00 $6.00
3. Contingent deferred sales charge Not
account fee (per year per open Applicable $2.25
account).
4. Establishment of new shareholder
account (per new account). $4.00 $4.00
5. Payment of dividend (per dividend
per account). $ .40 $ .40
6. Automated transaction (per
transaction).** $ .50 $ .50
7. Non-monetary transactions fee (per
year per open account). $2.00 $2.00
8. All other shareholder inquiry,
correspondence and research trans-
actions (per transaction). $1.25 $1.25
The out-of-pocket expenses of IFTC will be reimbursed by Fund in
accordance with the provisions of Section 5 of the Agency
Agreement. All fees will be subject to offset by earnings
allowances under the Custody Agreement between Fund and IFTC.
The attached Transfer Agency Fee Schedule Supplement is a part of
this Exhibit A.
__________________
* The new shareholder account fee is not applicable to Class A
Share accounts established in connection with a conversion
from Class B Shares.
** Automated transaction includes, without limitation, money
market series purchases and redemptions, ACH purchases,
systematic exchanges and conversions from Class B Shares
to Class A Shares.
18
TRANSFER AGENCY FEE SCHEDULE SUPPLEMENT
For purposes of the following limitation, "Class Expenses" are
expenses identified as attributable to a particular class of the
Fund and charged directly to the class. Class Expenses are
limited to the following: registration fees, directors' or
trustees' fees, expenses of periodic meetings of directors,
trustees or shareholders, transfer agency fees, legal and
accounting fees (other than fees for income tax return
preparation or income tax advice), and costs of shareholder
communications required by law (e.g., the preparation and mailing
of prospectuses and proxy statements). Class Expenses
specifically do not include Rule 12b-1 fees and administrative
service fees. Transfer agency fees and expenses will be limited
for any class of the Fund to the extent necessary to ensure that
the Class Expenses allocated to each share of a class of the Fund
for a fiscal year will differ from the Class Expenses allocated
to each share of any other class of the Fund by less than 50
basis points (.50%) of the average daily net asset value per
share of the class of shares with the smallest average net asset
value (adjusted as necessary for classes in effect for a partial
year). For a Fund with multiple series, the foregoing shall be
applied to each series separately.
19
EXHIBIT B
IFTC INSURANCE COVERAGE
DESCRIPTION OF POLICY:
Fidelity Bond
Covers losses caused by dishonesty of employees, physical
loss of securities on or outside of premises while in
possession of authorized person, loss caused by forgery or
alteration of checks or similar instruments.
Errors and Omissions Insurance
Covers claims made for actual or alleged negligent acts,
errors or omissions committed in the performance of
transfer agency services.
Mail Insurance (applies to all full service operations)
Provides indemnity for the following types of securities
lost in the mails:
Non-negotiable securities mailed to domestic locations
via registered mail.
Non-negotiable securities mailed to domestic locations
via first-class or certified mail.
Non-negotiable securities mailed to foreign locations
via registered mail.
Negotiable securities mailed to all locations via
registered mail.
