Exhibit 9(b)(3)
COMPASS AND TRAK 2000 SERVICE AGREEMENT
THIS AGREEMENT is made as of this 1st day of October, 1995, by and
between XXXXXXX TRUST COMPANY, a New Hampshire banking corporation ("Trust
Company") and XXXXXXX MUTUAL FUNDS, INC., a Maryland Corporation (the "Fund").
WITNESSETH:
WHEREAS, Trust Company is engaged in the business of providing certain
recordkeeping and other services; and
WHEREAS, Trust Company and the Fund entered into a "Compass Service
Agreement," dated January 1, 1990 (the "Former Agreement") under which Trust
Company has been providing certain recordkeeping and other services, and Trust
Company also has been performing certain recordkeeping and other services for
the Fund in connection with the TRAK 2000 system; and
WHEREAS, the Fund is engaged in business as an open-end investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, Trust Company is willing to continue to provide to the Fund
such recordkeeping and other services in connection with the COMPASS and TRAK
2000 systems and in addition is willing to provide certain order processing
services as agent for the Fund; and
WHEREAS, Trust Company and the Fund wish to amend, restate and replace
the Former Agreement with this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. Terms of Appointment; Performance of Duties.
1.1. Appointment. Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints Trust Company (i) to act as, and
Trust Company agrees to act as, recordkeeping agent with respect to the
authorized and issued shares of capital stock of the Fund ("Shares") or units
representing such Shares ("Units"), and (ii) to act as an agent of the Fund for
the purpose of receiving requests for the purchase and redemption of Shares or
Units (collectively, "Shares") and communicating such requests to the Fund's
transfer agent ("Transfer Agent"), in connection with certain retirement and
employee benefit plans established under the Internal Revenue Code of 1986
including but not limited to defined contribution plans, Section 403(b) plans,
individual retirement accounts and deferred compensation plans (each a "Plan" or
collectively the "Plans"), utilizing the Comprehensive Participant Accounting
Services ("COMPASS") or TRAK 2000 system, and established by plan
administrators, employers, trustees, custodians and other persons (each
individually an "Administrator" or collectively the "Administrators") on behalf
of employers (each individually an "Employer" or collectively the "Employers")
and individuals for certain participants in such Plans (each individually a
"Participant" or collectively the "Participants").
1.2. Recordkeeping. Trust Company agrees that it will perform the
following recordkeeping services in connection with the COMPASS and TRAK 2000
systems in accordance with procedures established from time to time by agreement
between the Fund and Trust Company. Subject to instructions from the
Administrators, Trust Company shall:
(i) receive from Administrators instructions for the purchase of
Shares of the Fund, confirm compliance with such instructions and, as agent of
the respective Administrators, deliver within a reasonable time such
instructions and any appropriate documentation therefor to the Transfer Agent of
the Fund duly appointed by the Directors of the Fund (the "Transfer Agent");
(ii) record the purchase by Plans of the appropriate number of
Shares or Units and within a reasonable time allocate such Shares or Units among
the Participants' accounts;
(iii) record dividends and capital gains distributions on behalf
of Participants;
(iv) receive from Administrators instructions for redemption and
repurchase requests and directions, confirm compliance with such instructions
and as agent of the respective Administrators deliver within a reasonable time
such instructions and any appropriate documentation therefor to the Transfer
Agent;
(v) record the redemption or repurchase by Plans of the
appropriate number of Shares or Units and within a reasonable time make the
appropriate adjustments among the Participants' accounts;
(vi) certify to the Fund no less frequently than annually the
number of Participants accounts for which records are maintained hereunder;
(vii) maintain records of account for and advise the Fund and
Administrators and Participants, when appropriate, as to the foregoing;
(viii) maintain all Plan and Participant accounts other than
accounts maintained by the Transfer Agent; and
(ix) maintain and mail administrative reports and Participant
statements.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Fund and Trust Company.
1.3. Order Processing.
(a) In addition to the recordkeeping to be performed in accordance
with Section 1.02 above, the Fund hereby appoints Trust Company, and Trust
Company agrees to act, as the Fund's agent for the purpose of receiving requests
for the purchase and redemption of Shares or Units and communicating such
requests to the Fund's Transfer Agent, subject to and in accordance with the
terms of this Agreement, and as follows:
(i) Trust Company shall receive from the Plans, Plan
participants, Plan sponsors, authorized Plan committees or Plan trustees,
according to Trust Company's agreement with each Plan, by the close of regular
trading on the New York Stock Exchange (the "Close of Trading") each business
day that the New York Stock Exchange is open for business ("Business Day")
instructions for the purchase and redemption of Shares (together,
"Instructions"). Instructions received by Trust Company after the Close of
Trading on any Business Day shall be treated as received on the next Business
Day.
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(ii) In connection with the COMPASS system, Trust Company
shall compute net purchase requests or net redemption requests for Shares of the
Fund for each Plan based on Instructions received each Business Day.
(iii) Trust Company shall communicate purchase and redemption
requests for Shares of the Fund, netted in accordance with (ii) above in the
case of COMPASS ("Orders"), to the Transfer Agent, for acceptance by the Fund or
its agents, in the manner specified herein, and promptly deliver, or instruct
the Plans (or the Plans' trustees as the case may be) to deliver, appropriate
documentation and, in the case of purchase requests, payment therefor to the
Transfer Agent. Orders shall be based solely on Instructions received by Trust
Company from the Plans, Plan participants, Plan sponsors, authorized Plan
committees or Plan trustees.
(b) Trust Company shall maintain adequate records related to, and
advise the Transfer Agent as to, the foregoing, as instructed by the Fund, or by
the Transfer Agent or other person designated to act on the Fund's behalf. To
the extent required under the 1940 Act and rules thereunder, Trust Company
agrees that such records maintained by it hereunder will be preserved,
maintained and made available in accordance with the provisions of the 1940 Act
and rules thereunder, and copies or, if required, originals will be surrendered
promptly to the Fund, Transfer Agent or other person designated to act on the
Fund's behalf, on and in accordance with its request. Records surrendered
hereunder shall be in machine readable form, except to the extent that Trust
Company has maintained such records only in paper form. This provision shall
survive the termination of this Agreement.
(c) Trust Company shall perform its duties hereunder subject to
the terms and conditions of the Fund's current prospectus; the Fund and the
Trust Company may establish such additional procedures for order processing not
inconsistent with the terms of this Agreement as they reasonably determine to be
necessary or advisable from time to time.
(d) Trust Company acknowledges that it is not authorized by the
Fund to register the transfer of the Fund's Shares or to transfer record
ownership of the Fund's Shares, and that only the Transfer Agent is authorized
to perform such activities.
1.4. Agents of Trust Company. Trust Company may engage one or more
individuals, corporations, partnerships, trusts or other entities (including
affiliates of Trust Company) to act as its subcontractor(s) or agent(s)
("Agents") in providing the services contemplated hereunder. Any such Agent
shall be required to comply with the terms of this Agreement applicable to the
performance of such services it is performing as though it were the Trust
Company. Further, the Trust Company shall be solely responsible for, and assumes
all liability for, the actions and inactions of such Agents in connection with
their performance of such services.
2. Fees and Expenses.
2.1. Fees. For performance by Trust Company of services pursuant to
this Agreement, the Fund agrees to pay Trust Company an annual maintenance fee
for each Participant account as set out in the fee schedule, as amended from
time to time. Such fee schedule and out-of-pocket expenses and advances
identified under Section 2.2 below may be changed from time to time by mutual
agreement between the Fund and Trust Company. The parties hereto acknowledge
that the fees payable hereunder are for administrative and recordkeeping
services only and do not constitute payment in any manner for investment
advisory or distribution services.
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2.2. Expenses. In addition to the fee paid under Section 2.1 above, the
Fund agrees to reimburse Trust Company for out-of-pocket expenses or advances
incurred by Trust Company for the items set out in the fee schedule. In
addition, any other expenses incurred by Trust Company, at the request or with
the consent of the Fund, will be reimbursed by the Fund. The Fund agrees to pay
all fees and reimbursable expenses promptly. Postage and the cost of materials
for mailing of administrative reports, Participant statements and other mailings
to all Employer accounts or Participants shall be advanced to Trust Company by
the Fund at least two (2) days prior to the mailing date of such materials or
paid within two (2) days of the receipt by the Fund of a xxxx therefor.
3. Representations and Warranties of Trust Company.
Trust Company represents and warrants to the Fund that:
(i) It is a banking corporation duly organized and existing and in good
standing under the laws of The State of New Hampshire.
(ii) It has the legal power and authority to carry on its business in
any jurisdiction where it does business.
(iii) It is empowered under applicable laws and by its charter and
By-Laws to enter into and perform this Agreement.
(iv) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
(v) 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 Trust Company that:
(i) It is a corporation duly organized and existing and in good
standing under the laws of Maryland.
(ii) It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
(iii) All proceedings required by said Articles of Incorporation and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
(iv) It is an investment company registered under the 1940 Act.
(v) It makes available its Shares in connection with certain Plans.
(vi) A majority of the Directors of the Fund who are not interested
persons have made findings to the effect that:
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(a) the Agreement is in the best interest of the Fund and its
shareholders;
(b) the services to be performed pursuant to the Agreement are
services required for the operation of the Fund;
(c) Trust Company can provide services the nature and quality of
which are at least equal to those provided by others offering the same or
similar services; and
(d) the fees charged by Trust Company for such services are fair
and reasonable in the light of the usual and customary charges made by others
for services of the same nature and quality.
(vii) A registration statement under the Securities Act of 1933, as
amended (the "33 Act"), has been filed and has become effective, and appropriate
state securities law filings have been made with respect to all Shares of the
Fund being offered for sale. The Fund shall notify Trust Company (i) if such
registration statement or any state securities registration or qualification has
been terminated or a stop order has been entered with respect to the Shares or
(ii) if such registration statement shall have been amended to cover Shares of
any additional Series (as hereinafter defined in Section 8.1).
5. Indemnification.
5.1. By Fund. Trust Company shall not be responsible for, and the Fund
shall indemnify and hold Trust Company harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(a) All actions of Trust Company or its agents 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 refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
(c) The reliance on or use by Trust Company or its agents of
information, records and documents which (i) are received by Trust Company or
its agents and furnished to it by or on behalf of the Fund, and (ii) have been
prepared and/or maintained by the Fund or any other person or firm (except Trust
Company) on behalf of the Fund.
(d) The reliance on or the carrying out by Trust Company or its
agents of any written instructions or requests of the Fund or any person acting
on behalf 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.
5.2. By Trust Company. Trust Company shall indemnify and hold the Fund
harmless from and against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liabilities arising out of or attributable to Trust
Company's refusal or failure to comply with the terms of this Agreement, or
which arise out of Trust Company's lack of good faith, negligence or willful
misconduct or which arise out of the breach of any representation or warranty of
Trust Company hereunder.
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5.3. Reliance. At any time Trust Company may apply to any officer of
the Fund for instructions, and may consult with legal counsel (which may also be
legal counsel for the Fund) with respect to any matter arising in connection
with the services to be performed by Trust Company under this Agreement, and
Trust Company shall not be liable and shall be indemnified by the Fund for any
action taken or omitted by it in reliance upon such instructions or upon the
opinion of such counsel. Trust Company and its agents 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 Trust Company or its agents by telephone, in person,
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.
5.4. Acts of God. 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 to
the other for any damages resulting from such failure to perform or otherwise
from such causes.
5.5. Procedures. In order that the indemnification provisions contained
in this Article 5 shall apply, upon the assertion of a claim for which either
party may be required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion, and shall keep the
other party advised with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option to participate with
the party seeking indemnification in the defense of such claim. The party
seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent.
6. Covenants of the Fund and Trust Company.
6.1. Adequate Facilities. Trust Company hereby agrees to establish and
maintain facilities, personnel, and computer and other facilities and procedures
reasonably acceptable to the Fund for safekeeping of records, for the
preparation or use, and for keeping account of, such records, and for order
processing.
6.2. Insurance. Trust Company shall at all times maintain insurance
coverage which is reasonable and customary in light of its duties hereunder and
its other obligations and activities, and shall notify the Fund of any changes
in its insurance coverage unless the Fund is covered by the same policy and such
change is also applicable to the Fund.
6.3. Records. Trust Company shall keep records relating to the services
to be performed hereunder, in the form and manner as it may deem advisable.
6.4. Confidentiality. Trust Company 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.
6.5. Inspection. In case of any requests or demands for the inspection
of the records relating to Plan accounts and Participant accounts with the Fund,
Trust Company will endeavor to notify the Fund and to secure instructions from
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an authorized officer of the Fund as to such inspection. Trust Company reserves
the right, however, to exhibit such records to any person whenever it is
reasonably advised by counsel to the Fund that it may be held liable for the
failure to exhibit such records to such person.
6.6. Laws Applicable to Fund. Trust Company acknowledges that the Fund,
as a registered investment company under the 1940 Act, is subject to the
provisions of the 1940 Act and the rules and regulations thereunder, and that
the offer and sale of the Fund's Shares are subject to the provisions of federal
and state laws and regulations applicable to the offer and sale of securities.
The Fund acknowledges that Trust Company is not responsible for the Fund's
compliance with such laws, rules and regulations. If the Fund advises Trust
Company that a procedure of Trust Company related to the discharge of its
obligations hereunder has or may have the effect of causing the Fund to violate
any of such laws or regulations, Trust Company shall use its best efforts to
develop an alternative procedure which does not have such effect.
6.7. Relationship to Plans. Trust Company acknowledges to the Fund
that, as the offeror of COMPASS and TRAK 2000, Trust Company does not act as a
plan administrator or as a fiduciary under the Employee Retirement Income
Security Act of 1974, as amended from time to time, with respect to any Plan.
Trust Company shall not be responsible for determining whether the terms of a
particular Plan or the Shares of the Fund are appropriate for the Plan or
Participant and does not guarantee the performance of the Fund.
7. Termination of Agreement.
This Agreement may be terminated by either party on the last day of the
month next commencing after thirty (30) days written notice to the other party.
Upon termination of this Agreement, the Fund shall pay to Trust Company such
fees and expenses as may be due as of the date of such termination. Should the
Fund exercise its right to terminate this Agreement, Trust Company reserves the
right to charge for any other reasonable expenses associated with such
termination.
8. Additional Series of the Fund.
8.1. Establishment of Series. Shares of the Fund are of a single class;
however, Shares may be divided into additional series ("Series") that may be
established from time to time by action of the Directors of the Fund. If the
context requires and unless otherwise specifically provided herein, the term
"Fund" as used in this Agreement shall mean in addition each separate Series
currently existing or subsequently created, and the term "Shares" shall mean all
shares of capital stock of the Fund, whether of a single class or divided into
separate Series of the Fund currently existing or hereinafter created.
8.2. Notice to Trust Company. In the event that the Fund establishes
one or more or additional Series of Shares in addition to the original Series
with respect to which it desires to have Trust Company render services as
recordkeeping agent under the terms hereof, it shall so notify Trust Company in
writing, and upon the effectiveness of a registration statement under the 33
Act, as amended, relating to such Series of Shares and unless Trust Company
objects in writing to providing such services, such Series shall be subject to
this Agreement.
8.3. Suspension. In the event that the Fund suspends the offering of
Shares of any one or more Series, it shall so notify Trust Company in writing to
such effect.
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9. Assignment.
Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other party. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns.
10. Amendment.
This Agreement may be amended or modified by a written agreement
executed by both parties.
11. 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.
12. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
hereto.
13. Correspondence.
Trust Company will answer correspondence from Administrators relating
to Plan and Plan participant accounts and such other correspondence as may from
time to time be mutually agreed upon and notify the Fund of any correspondence
which may require an answer from the Fund.
14. Further Actions.
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
15. Interpretive Provisions.
In connection with the operation of this Agreement, Trust Company and
the Fund may agree from time to time on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions are to be signed by the parties and annexed hereto, but no
such provisions shall contravene any applicable federal or state law or
regulation and no such interpretive or additional provision shall be deemed to
be an amendment of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
XXXXXXX TRUST COMPANY
By: /s/Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
Title: Vice President & Treasurer
XXXXXXX MUTUAL FUNDS, INC.
By: /s/Xxxxx X. Xxx
------------------------------------
Xxxxx X. Xxx
Title: Vice President
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