TRANSFER AGENCY AND SERVICE AGREEMENT
Between
Xxxxxxx, Xxxxxxx Funds,Inc.
and
INVESTORS BANK & TRUST COMPANY
FORM OF
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of the first day of October, 1996 by and
between Xxxxxxx, Loevner Funds, Inc., a corporation organized under
the laws of [State of Incorporation] (the "Company"), and INVESTORS
BANK & TRUST COMPANY, a Massachusetts trust company (the "Bank").
WHEREAS, the Company desires to appoint the Bank as its transfer
agent, dividend disbursing agent and agent in connection with certain
other activities, and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as
provided in Section 17A(c) of the Securities Exchange Act of 1934, as
amended, (the "1934 Act");
WHEREAS, the Company is authorized to issue shares in separate
series, with each such series representing interests in a separate
portfolio of securities and other assets;
WHEREAS, the Company intends to initially offer shares in
[number] series, [name of each series] (such series, together with all
other series subsequently established by the Company and made subject
to this Agreement in accordance with Article 17, being herein referred
to as the "Fund(s)");
NOW, THEREFORE, in consideration of the mutual covenants herein
set forth, the Company and the Bank agree as follows:
ARTICLE 1. Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in this
Agreement, the Company on behalf of the Funds hereby employs and
appoints the Bank to act, and the Bank agrees to act, as transfer
agent for each of the Fund(s)' authorized and issued shares of
beneficial interest ("Shares"), dividend disbursing agent and agent in
connection with any accumulation, open-account or similar plans
provided to the shareholders of the Company ("Shareholders") and set
out in the currently effective prospectus and statement of additional
information, as each may be amended from time to time, (the
"Prospectus") of the Company, including without limitation any
periodic investment plan or periodic withdrawal program.
1.02 The Bank agrees that it will perform the following
services:
(a) In connection with procedures established from time to
time by agreement between the Company and the Bank, the Bank shall:
(i) Receive for acceptance orders for the purchase of
Shares and promptly deliver payment and appropriate documentation
therefor to the custodian of theCompany appointed by the Board of
Directors of the Company (the "Custodian");
(ii) Pursuant to purchase orders, issue the
appropriate number of Shares and hold such Shares in the appropriate
Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate documentation
therefor to the Custodian;
(iv) 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;
(v) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Company on behalf of a Fund;
(vii) Create and maintain all necessary records
including those specified in Article 10 hereof, in accordance with all
applicable laws, rules and regulations, including but not limited to
records required by Section 31(a) of the Investment Company Act of
1940, as amended (the "1940 Act"), and those records pertaining to the
various functions performed by it hereunder. All records shall be
available for inspection and use by the Company. Where applicable,
such records shall be maintained by the Bank for the periods and in
the places required by Rule 31a-2 under the 1940 Act;
(viii) Make available during regular business hours all
records and other data created and maintained pursuant to this Agreement
for reasonable audit and inspection by the Company, or any person
retained by the Company. Upon reasonable notice by the Company, the
Bank shall make available during regular business hours its facilities
and premises employed in connection with its performance of this Agreement
for reasonable visitation by the Company, or any person retained by the
Company;
(ix) At the expense of and at the request of the
Company, maintain an adequate supply of blank share certificates for
each Fund providing for the issuance of certificates to meet the
Bank's requirements therefor. Such share certificates shall be
properly signed by facsimile. The Company agrees that,
notwithstanding the death, resignation, or removal of any officer of
the Company whose signature appears on such certificates, the Bank may
continue to countersign certificates which bear such signatures until
otherwise directed by the Company. Share certificates may be issued
and accounted for entirely by the Bank and do not require any third
party registrar or other endorsing party;
(x) Issue replacement share certificates in lieu of
certificates which have been lost, stolen, mutilated or destroyed,
without any further action by the Board of Directors or any officer
of the Company, upon receipt by the Bank of properly executed
affidavits and lost certificate bonds, in form satisfactory to the
Bank with the Company and the Bank as obligees under the bond. At the
discretion of the Bank, and at its sole risk, the Bank may issue
replacement certificates without requiring the affidavits and lost
certificate bonds described above and the Company agrees to indemnify
the Bank against any and all losses or claims which may arise by
reason of the issuance of such new certificates in the place of the
ones allegedly lost, stolen or destroyed; and
(xi) Record the issuance of Shares of the Company and
maintain, pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of
the total number of Shares of the Company which are authorized, based
upon data provided to it by the Company, and issued and outstanding.
The Bank shall also provide the Company 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 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 Company.
(b) In addition to and not in lieu of the services set
forth in the above paragraph (a) or in any Schedule hereto, the Bank
shall: (i) perform all of the customary services of a transfer
agent, dividend disbursing agent and, as relevant, agent in connection
with accumulation, open-account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal
program); including but not limited to maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies,
receiving and tabulating proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding taxes on all
accounts, including nonresident 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, responding to Shareholder telephone calls and
Shareholder correspondence, preparing and mailing activity statements
for Shareholders, and providing Shareholder account information; and
(ii) provide a system which will enable the Company to monitor the
total number of shares sold in each State. The Company shall (i)
identify to the Bank in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State and (ii)
verify the establishment of transactions for each State on the system
prior to activation and thereafter monitor the daily activity for each
State. The responsibility of the Bank for a Fund's blue sky state
registration status is solely limited to the initial establishment of
transactions subject to blue sky compliance by such Fund(s) and the
reporting of such transactions to the Fund(s) as provided above.
(c) Additionally, the Bank shall utilize a system to
identify all share transactions which involve purchase and redemption
orders that are processed at a time other than the time of the
computation of net asset value per share next computed after receipt
of such orders, and shall compute the net effect upon the Fund(s) of
such transactions so identified on a daily and cumulative basis.
ARTICLE 2. Sale of Company Shares
2.01 Whenever the Company shall sell or cause to be sold any
Shares of a Fund, the Company shall deliver or cause to be delivered
to the Bank a document duly specifying: (i) the name of the Fund
whose Shares were sold; (ii) the number of Shares sold, trade date,
and price; (iii) the amount of money to be delivered to the Custodian
for the sale of such Shares and specifically allocated to such Fund;
and (iv) in the case of a new account, a new account application or
sufficient information to establish an account.
2.02 The Bank will, upon receipt by it of a check or other
payment identified by it as an investment in Shares of one of the
Funds and drawn or endorsed to the Bank as agent for, or identified as
being for the account of, one of the Funds, promptly deposit such
check or other payment to the appropriate account postings necessary
to reflect the investment. The Bank will notify the Company, or its
designee, and the Custodian of all purchases and related account
adjustments.
2.03 Under procedures as established by mutual agreement between
the Company and the Bank, the Bank shall issue to the purchaser or its
authorized agent such Shares, computed to the nearest three decimal
points, as he is entitled to receive, based on the appropriate net
asset value of the Funds' Shares, determined in accordance with the
prospectus and any applicable federal law or regulation. In issuing
Shares to a purchaser or its authorized agent, the Bank shall be
entitled to rely upon the latest directions, if any, previously
received by the Bank from the purchaser or its authorized agent
concerning the delivery of such Shares.
2.04 The Bank shall not be required to issue any Shares of the
Company where it has received a written instruction from the Company
or written notification from any appropriate federal or state
authority that the sale of the Shares of the Fund(s) in question has
been suspended or discontinued, and the Bank shall be entitled to
rely upon such written instructions or written notification.
2.05 Upon the issuance of any Shares of any Fund(s) in
accordance with foregoing provisions of this Section, the Bank shall
not be responsible for the payment of any original issue or other
taxes, if any, required to be paid by the Company in connection with
such issuance.
2.06 The Bank may establish such additional rules and
regulations governing the transfer or registration of Shares as it may
deem advisable and consistent with such rules and regulations
generally adopted by transfer agents, or with the written consent of
the Company, any other rules and regulations.
ARTICLE 3. Returned Checks
3.01 In the event that any check or other order for the transfer
of money is returned unpaid for any reason, the Bank will take such
steps as the Bank may, in its discretion, deem appropriate to protect
the Company from financial loss or as the Company or its designee may
instruct. Provided that the standard procedures, as agreed upon from
time to time, between the Company and the Bank, regarding purchases
and redemptions of Shares, are adhered to by the Bank, the Bank shall
not be liable for any loss suffered by a Fund as a result of returned
or unpaid purchase or redemption transactions. Legal or other
expenses incurred to collect amounts owed to a Fund as a consequence
of returned or unpaid purchase or redemption transactions shall be an
expense of that Fund.
ARTICLE 4 . Redemptions
4.01 Shares of any Fund may be redeemed in accordance with the
procedures set forth in the Prospectus of the Company and the Bank
will duly process all redemption requests.
ARTICLE 5. Transfers and Exchanges
5.01 The Bank is authorized to review and process transfers of
Shares of each Fund, exchanges between Funds on the records of the
Funds maintained by the Bank, and exchanges between the Company and
any other entity as may be permitted by the Prospectus of the Company.
If Shares to be transferred are represented by outstanding
certificates, the Bank will, upon surrender to it of the certificates
in proper form for transfer, and upon cancellation thereof,
countersign and issue new certificates for a like number of Shares and
deliver the same. If the Shares to be transferred are not represented
by outstanding certificates, the Bank will, upon an order therefor by
or on behalf of the registered holder thereof in proper form, credit
the same to the transferee on its books. If Shares are to be
exchanged for Shares of another Fund, the Bank will process such
exchange in the same manner as a redemption and sale of Shares,
except that it may in its discretion waive requirements for
information and documentation.
ARTICLE 6. Right to Seek Assurances
6.01 The Bank 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 shall incur no liability for
the refusal, in good faith, to make transfers or redemptions which the
Bank, in its judgment, deems improper or unauthorized, or until it is
satisfied that there is no basis for any claims adverse to such
transfer or redemption. The Bank may, in effecting transfers, rely
upon the provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the
same may be amended from time to time, which in the opinion of legal
counsel for the Company or the Bank's own legal counsel, do not
require certain documents in connection with the transfer or
redemption of Shares of any Fund, and the Company shall indemnify the
Bank for any act done or omitted by it in reliance upon such laws or
opinions of counsel of the Company or of the Bank.
ARTICLE 7. Distributions
7.01 The Company will promptly notify the Bank of the
declaration of any dividend or distribution. The Company shall
furnish to the Bank a resolution of the Board of Directors of the
Company certified by the Secretary (a "Certificate"): (i) authorizing
the declaration of dividends on a specified periodic basis and
authorizing the Bank to rely on oral instructions or a Certificate
specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined and the amount
payable per share to Shareholders of record as of such record date
and the total amount payable to the Bank on the payment date; or (ii)
setting forth the date of the declaration of any dividend or
distribution by a Fund, the date of payment thereof, the record date
as of which Shareholders entitled to payment shall be determined, and
the amount payable per share to the Shareholders of record as of
that date and the total amount payable to the Bank on the payment
date.
7.02 The Bank, on behalf of the Company, shall instruct the
Custodian to place in a dividend disbursing account funds equal to the
cash amount of any dividend or distribution to be paid out. The Bank
will calculate, prepare and mail checks to (at the address as it
appears on the records of the Bank), or (where appropriate) credit
such dividend or distribution to the account of, Fund Shareholders,
and maintain and safeguard all underlying records.
7.03 The Bank will replace lost checks at its discretion and in
conformity with regular business practices.
7.04 The Bank will maintain all records necessary to reflect the
crediting of dividends which are reinvested in Shares of the Company,
including without limitation daily dividends.
7.05 The Bank shall not be liable for any improper payments made
in accordance with a resolution of the Board of Directors of the
Company.
7.06 If the Bank shall not receive from the Custodian sufficient
cash to make payment to all Shareholders of the Company as of the
record date, the Bank shall, upon notifying the Company, withhold
payment to all Shareholders of record as of the record date until such
sufficient cash is provided to the Bank and shall not be liable for
any claim arising out of such withholding.
ARTICLE 8. Other Duties
8.01 In addition to the duties expressly provided for herein,
the Bank shall perform such other duties and functions and shall be
paid such amounts therefor as may from time to time be agreed to in
writing.
ARTICLE 9. Taxes
9.01 It is understood that the Bank shall file such appropriate
information returns concerning the payment of dividends and capital
gain distributions and tax withholding with the proper Federal, State
and local authorities as are required by law to be filed by the
Company and shall withhold such sums as are required to be withheld by
applicable law.
ARTICLE 10. Books and Records
10.01 The Bank shall maintain confidential records showing for
each Shareholder's account the following: (i) names, addresses and tax
identification numbers; (ii) numbers of Shares held; (iii)
historical information (as available from prior transfer agents)
regarding the account of each Shareholder, including dividends paid
and date and price of all transactions on a Shareholder's account;
(iv) any stop or restraining order placed against a Shareholder's
account; (v) information with respect to withholdings; (vi) any
capital gain or dividend reinvestment order, plan application,
dividend address and correspondence relating to the current
maintenance of a Shareholder's account; (vii) certificate numbers and
denominations for any Shareholders holding certificates; (viii) any
information required in order for the Bank to perform the calculations
contemplated or required by this Agreement; and (ix) such other
information and data as may be required by applicable law.
10.02 Any records required to be maintained by Rule 31a-1 under
the 1940 Act will be preserved for the periods prescribed in Rule 31a-
2 under the 1940 Act. Such records may be inspected by the Company
during regular business hours upon reasonable notice. The Bank may,
at its option at any time, and shall forthwith upon the Company's
demand, turn over to the Company and cease to retain in the Bank's
files, records and documents created and maintained by the Bank in
performance of its service or for its protection. At the end of the
six-year retention period, such documents will either be turned over
to the Company, or destroyed in accordance with the Company's
authorization.
10.03 Procedures applicable to the services to be performed
hereunder may be established from time to time by agreement between
the Fund(s) and the Bank. The Bank shall have the right to utilize
any shareholder accounting and recordkeeping systems which, in its
opinion, qualifies to perform any services to be performed hereunder.
The Bank shall keep records relating to the services performed
hereunder, in the form and manner as it may deem advisable.
ARTICLE 11. Fees and Expenses.
11.01 For performance by the Bank pursuant to this Agreement,
the Fund(s) agree to pay the Bank an annual maintenance fee for each
Shareholder account as set out in the initial fee schedule attached as
Appendix A hereto. Such fees and out-of-pocket expenses and advances
identified under Section 11.02 below may be changed from time to time
subject to mutual written agreement between the Fund(s) and the Bank.
11.02 In addition to the fee paid under Section 11.01 above,
the Fund(s) agree to reimburse the Bank for out-of-pocket expenses or
advances incurred by the Bank for the items set out in the fee
schedule attached hereto. In addition, any other expenses incurred by
the Bank at the request or with the consent of the Fund(s) including,
without limitation, any equipment or supplies which the Company
specifically orders or requiresthe Bank to purchase, will be
reimbursed by the Fund(s).
11.03 The Fund(s) agree to pay all fees and reimbursable
expenses within thirty days following the mailing 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(s) at least seven (7) days prior to
the mailing date of such materials. Any waiver or extension by the
Bank of the five and seven day time periods enumerated in this section
2.03 shall not constitute a dismissal of any monies due under this
Agreement nor shall such waiver or extension apply to any future
monies due to the Bank hereunder.
ARTICLE 12. Representations and Warranties of the Bank
The Bank represents and warrants to the Company that:
12.01 It is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of Massachusetts.
12.02 It is empowered under applicable laws and by its charter
and by-laws to enter into and perform this Agreement.
12.03 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
12.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
ARTICLE 13. Representations and Warranties of the Company
The Company represents and warrants to the Bank that:
13.01 It is a corporation duly organized and existing and in
good standing under the laws of the State of its incorporation as set
forth in the preamble hereto.
13.02 It is empowered under applicable laws and by its charter
documents and by-laws to enter into and perform this Agreement.
13.03 All proceedings required by said charter documents and by-
laws have been taken to authorize it to enter into and perform this
Agreement.
13.04 It is a open-end investment company registered under the
0000 Xxx.
13.05 A registration statement on Form N-1A (including a
prospectus and statement of additional information) under the
Securities Act of 1933 and the 1940 Act 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 Company being offered for sale.
13.06 When Shares are hereafter issued in accordance with the
terms of the Prospectus, such Shares shall be validly issued, fully
paid and nonassessable by the Fund(s).
ARTICLE 14. Indemnification
14.01 Except as set forth in subparagraph (f) hereof, the Bank
shall not be responsible for, and the Company shall indemnify and hold
the Bank harmless from and against, any and all losses, damages,
costs, charges, legal fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions taken or omitted to be taken by the Bank
or its agents or subcontractors in good faith in reliance on or use by
the Bank or its agents or subcontractors of information, records and
documents which (i) are received by the Bank or its agents or
subcontractors and furnished to such party by or on behalf of the
Fund(s), (ii) have been prepared and/or maintained by the Fund(s) or
any other person or firm on behalf of the Fund(s), or (iii) were
received by the Bank or its agents or subcontractors from a prior
transfer agent.
(b) Any action taken or omitted to be taken by the Bank in
good faith reliance upon any law, act, regulation (a "Regulation") or
interpretation of a Regulation even though such Regulation may
thereafter have been altered, changed, amended or repealed.
(c) The Fund(s)' refusal or failure to comply with the
terms of this Agreement, or which arise out of the Funds' lack of good
faith, negligence or willful misconduct or which arise out of the
breach of any representation or warranty of the Fund(s) hereunder.
(d) The reliance on, or the carrying out by the Bank or
its agents or subcontractors of any instructions or requests, whether
written or oral, of the Fund(s).
(e) The offer or sale of Shares by the Company in violation
of (i) any requirement under the federal securities laws or
regulations; (ii) any requirement under the securities laws or
regulations of any state; or (iii) any stop order or other
determination or ruling by any federal or state agency with respect to
the offer or sale of such Shares.
14.02 The Bank shall indemnify and hold the Fund(s) harmless
from and against any and all losses, damages, costs, charges, legal
fees, payments, expenses and liability arising out of or attributed 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, willful misconduct,
knowing violation of law or fraud.
14.03 At any time the Bank may apply to any officer of the
Company for instructions, and may consult with legal counsel of the
Bank or the Company 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 Company for any action taken or omitted
by it in reliance upon such instructions or upon the opinion of such
counsel except for a knowing violation of law. The Bank, its agents
and subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Fund(s),
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 to the Bank or its agents or
subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Fund(s), and the Bank, its
agents and subcontractors shall not be held to have notice of any
change of authority of any person, until receipt of written notice
thereof from the Fund(s). The Bank, its agents and subcontractors
shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper manual
or facsimile signatures of an officer of the Company, and one proper
countersignature of any former transfer agent or registrar, or of a
co-transfer agent or co-registrar.
14.04 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, interruption of electrical power or other utilities,
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.
14.05 Neither party to this Agreement shall be liable to the
other party for special, incidental or consequential damages, even if
the other party has been advised of the possibility of such damages,
under any provision of this Agreement or for any act or failure to act
hereunder as contemplated by this Agreement.
14.06 Notwithstanding anything to the contrary in this
Agreement, in no event shall the Bank's liability under this Agreement
exceed in general money damages a total cumulative maximum amount of
one hundred percent of the amounts actually paid by the Company to the
Bank under this Agreement. The existence of more than one claim shall
not enlarge or extend this limit.
14.07 In order that the indemnification provisions contained in
this Article 14 shall apply, upon the assertion of a claim for which
either party may be required to indemnify the other, the party seeking
the 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 seeking
indemnification shall give the indemnifying party full and complete
authority, information and assistance to defend such claim or
proceeding, and the indemnifying party shall have, at its option, sole
control of the defense of such claim or proceeding and all negotiations
for its compromise or settlement.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, which consent shall not be unreasonably
withheld.
ARTICLE 15. Covenants of the Company and the Bank
15.01 The Company shall promptly furnish to the Bank the
following:
(a) A certified copy of the resolution of the Directors of
the Company authorizing the appointment of the Bank and the execution
and delivery of this Agreement.
(b) A copy of the charter documents and by-laws of the
Company and all amendments thereto.
(c) Copies of each vote of the Directors designating
authorized persons to give instructions to the Bank, and a Certificate
providing specimen signatures for such authorized persons.
(d) Certificates as to any change in any officer or Director
of the Company.
(e) If applicable a specimen of the certificate of Shares
in each Fund of the Company in the form approved by the Directors,
with a Certificate as to such approval.
(f) Specimens of all new certificates for Shares,
accompanied by the Directors' resolutions approving such forms.
(g) All account application forms and other documents
relating to shareholder accounts or relating to any plan, program or
service offered by the Company.
(h) A list of all Shareholders of the Fund(s) with the
name, address and tax identification number of each Shareholder, and
the number of Shares of the Fund(s) held by each, certificate numbers
and denominations ( if any certificates have been issued), lists of
any account against which stops have been placed, together with the
reasons for said stops, and the number of Shares redeemed by the
Fund(s).
(i) An opinion of counsel for the Company with respect to
the validity of the Shares and the status of such Shares under the
Securities Act of 1933.
(j) Copies of the Fund(s) registration statement on Form N-
1A (if applicable)as amended and declared effective by the Securities
and Exchange Commission and all post-effective amendments thereto.
(k) Such other certificates, documents or opinions as the
Bank may deem necessary or appropriate for the Bank in the proper
performance of its duties hereunder.
15.02 The Bank hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Company for
safekeeping of stock certificates, check forms and facsimile signature
imprinting devices, if any; and for the preparation or use, and for
keeping account of, such certificates, forms and devices.
15.03 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 1940 Act 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 confidential property of the Company and will
be preserved, maintained and made available in accordance with such
Section and Rules, and will be surrendered to the Company on and in
accordance with its request.
15.04 The Bank and the Company 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.
15.05 In case of any requests or demands for the inspection of
the Shareholder records of the Company, the Bank will endeavor to
notify the Company and to secure instructions from an authorized
officer of the Company as to suchrequest or demand. 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 subject to
enforcement or other action by any court or regulatory body for the
failure to exhibit the Shareholder records to such person.
ARTICLE 16. Term of Agreement
16.01 Termination of Agreement. The term of this Agreement shall
be three years commencing upon the date first above written (the
"Initial Term"), unless earlier terminated as provided herein. After
the expiration of the Initial Term, the term of this Agreement shall
automatically renew for successive one-year terms (each a "Renewal
Term") unless notice of non-renewal is delivered by the non-renewing
party to the other party no later than sixty days prior to the
expiration of the Initial Term or any Renewal Term, as the case may
be.
(a) Either party hereto may terminate this Agreement prior
to the expiration of the Initial Term in the event the other party
violates any material provision of this Agreement, provided that the
non-violating party gives written notice of such violation to the
violating party and the violating party does not cure such violation
within 90 days of receipt of such notice.
(b) Either party may terminate this Agreement during any
Renewal Term upon sixty days written notice to the other party. Any
termination pursuant to this paragraph 16.01(b) shall be effective
upon expiration of such sixty days, provided, however, that the
effective date of such termination may be postponed to a date not more
than ninety days after delivery of the written notice: (i) at the
request of the Bank, in order to prepare for the transfer by the Bank
of its duties hereunder; or (ii) at the request of the Fund, in order
to give the Fund an opportunity to make suitable arrangements for a
successor transfer agent.
16.02 Should the Company exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and
material will be borne by the Company. Additionally, the Bank
reserves the right to recover from the Company any other reasonable
expenses associated with such termination.
ARTICLE 17. Additional Funds
17.01 In the event that the Company establishes one or more
series of Shares in addition to the initial series 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 Fund hereunder.
ARTICLE 18. Assignment
18.01 Except as provided in Section 18.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by
either party without the written consent of the other party.
18.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and
assigns.
18.03 The Bank, may without further consent on the part of the
Company, subcontract for the performance of any of the services to be
provided hereunder to third parties, including any affiliate of the
Bank, provided that the Bank shall remain liable hereunder for any
acts or omissions of any subcontractor as if performed by the Bank.
ARTICLE 19. Amendment
19.01 This Agreement may be amended or modified only by a written
agreement executed by both parties.
ARTICLE 20. Governing Law
20.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its conflict of laws provisions.
ARTICLE 21. Merger of Agreement and Severability
21.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
21.02 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
21.03 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original; but such counterparts shall
together, constitute only one instrument.
ARTICLE 22. Notices
22. 01 Any notice or other instrument in writing authorized or required
by this Agreement to be given to either party hereto will be sufficiently
given if addressed to such party and mailed or delivered to it at its office
at the address set forth below:
For the Fund(s): [ ]
Attention:
For the Bank: Investors Bank & Trust Company
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention:
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed in their names and on their behalf under their seals by
and through their duly authorized officers, as of the day and the year
first above written.
[Name of Investment Company]
By: __________________________
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By: __________________________
Name:
Title:
