EXHIBIT 9(d)
TRANSFER AGENCY AGREEMENT
(Xxxxxxx High-Yield Bond Fund)
This TRANSFER AGENCY AGREEMENT (the "Agreement") is made as of April
6, 1998, between XXXXXX MANAGEMENT CORPORATION, a Michigan corporation
("Xxxxxx Management"), having its principal office and place of business at
0000 Xxxxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, and XXXXXXX
INVESTMENTS, a Massachusetts business trust (the "Trust"), having its office
at 0000 Xxxxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000.
The Trust is registered with the Securities and Exchange Commission
(the "Commission") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and intends to
offer a series of its shares to be known as "Xxxxxxx High-Yield Bond Fund"
(the "Fund"). Xxxxxx Management is registered with the Commission as a
transfer agent pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
The parties hereto pursuant to the terms hereof enter into the
following Agreement:
1. Appointment As Agent. The Trust hereby appoints Xxxxxx
Management to serve as transfer agent and dividend disbursing agent for the
Fund and Xxxxxx Management agrees to provide such services as provided
herein. As transfer agent, Xxxxxx Management agrees to furnish to each
shareholder a statement which shows all activity in the shareholder's
account, including purchases, redemptions, and reinvestment of dividends,
since the last such statement, such statements to be mailed at such
intervals as may be requested by the Trust, and on behalf of the Trust, to
forward any inquiries or correspondence from or with shareholders to such
persons as the Trust may designate from time to time. In addition, Xxxxxx
Management regularly will furnish the Trust with current shareholder lists
and information necessary to keep the shares in balance with the Trust's
records. Xxxxxx Management shall provide such computer services as may be
required to maintain a record of the status of each shareholder account,
including dividends accrued to such account on a daily basis, and shall
provide terminal facilities for processing of shareholder purchase and
redemption requests as well as maintenance of customer data. The mailing of
all financial statements, statements, notices and prospectuses to
shareholders is to be performed by Xxxxxx Management, subject to
reimbursement for out of pocket expenses, as provided in Section 2.
2. Fees for Services of the Agent. As compensation for all
services rendered and to be rendered by Xxxxxx Management pursuant to this
Agreement, the Trust shall pay to Xxxxxx Management an annual fee equal to
$11.00 for each shareholder account, calculated monthly based upon 1/12 of
such annual amount multiplied by the number of shareholder accounts on the
date of each monthly mailing of shareholder statements (plus 1/12 of $11.00
for each duplicate statement mailed), or if no such monthly mailing is to be
made, as of the last day of each calendar month. The Trust will also
reimburse Xxxxxx Management for any direct out-of-pocket expenses for forms
and mailing costs used in performing its functions, except that customary
out-of-pocket expenses (including postage) incurred in connection with the
periodic mailing of shareholder account statements on a basis no more
frequently than once per month shall be borne by Xxxxxx Management and not
reimbursed by the Trust.
3. Term; Termination. This Agreement shall become effective
with respect to the Fund on the date hereof and shall remain in full force
until April 1, 2000, unless sooner terminated as hereinafter provided. This
Agreement shall continue in force from year to year thereafter with respect
to the Fund, but only as long as such continuance is specifically approved
for the Fund at least annually in the manner required by the 1940 Act and
the rules and regulations thereunder; provided, however, that if the
continuation of this Agreement is not approved for the Fund, Xxxxxx
Management may continue to serve in such capacity for the Fund in the manner
and to the extent permitted by the 1940 Act and the rules and regulations
thereunder.
This Agreement shall automatically terminate in the event of its
assignment by Xxxxxx Management, and may be terminated by the Board of
Trustees of the Trust, by vote of a majority of the outstanding voting
securities of the Trust, or by Xxxxxx Management, at any time without cause
and without the payment of any penalty on sixty (60) days' written notice by
one party to the other party. This Agreement may also be terminated
immediately, upon delivery of notice of termination and without the payment
of any penalty, by the Trust in the event that the Board of Trustees
determines that Cause for termination exists. The term "Cause" shall
include, without limitation, (i) a material breach of this Agreement or
other action or omission by Xxxxxx Management which has or is likely to have
a material and imminent adverse effect on the Fund or its shareholders, (ii)
any other breach of this Agreement by Xxxxxx Management which is not cured
within twenty (20) business days after written notice of such breach from
the Board, (iii) the insolvency or the filing of bankruptcy or
reorganization proceedings by or against Xxxxxx Management, or (iv) the
conviction of Xxxxxx Management or any director or executive officer of
Xxxxxx Management of a felony. The terms "assignment" and "majority of the
outstanding voting securities" have the meanings set forth in the 1940 Act
and the rules and regulations thereunder. Termination of this Agreement
shall not affect the right of Xxxxxx Management to receive payments on any
unpaid balance of the compensation described in Section 2 earned prior to
the effective date of such termination.
4. Specific Provisions Concerning Xxxxxx Management Acting as
Transfer Agent.
(a) Recording of Shares. Xxxxxx Management, as Transfer Agent,
is authorized, empowered and directed to record units of beneficial interest
of the Fund ("shares"), including shares of original issue, in such names
and for such number of shares as shall be directed by the Trust. The
recording of ownership of shares of the Fund may be integrated with Xxxxxx
Management's accounting and record keeping systems in any manner deemed
appropriate by Xxxxxx Management, provided that any such system shall be
capable of accurate and timely recording of ownership of Fund shares; and
provided further that notwithstanding such integration, each listing of
ownership of Fund shares so recorded pursuant to any integrated system shall
constitute a register of ownership of Fund shares. Upon receipt of a
purchase order for the purchase of shares and sufficient information to
enable Xxxxxx Management to establish a shareholder account, and after
confirmation of receipt or crediting of monies for the order from the
Custodian for the Fund (the "Custodian"), Xxxxxx Management shall issue and
credit the account of the shareholder with shares in the manner described in
the Fund's then current Prospectus. Upon receipt of a redemption order,
Xxxxxx Management shall redeem the number of shares indicated thereon from
the redeeming shareholders account and receive from the Custodian and
disburse to the redeeming shareholder the redemption proceeds therefor, or
arrange for direct payment of redemption proceeds to such shareholder by the
Custodian, in accordance with such procedures and controls as are mutually
agreed upon from time to time by and among the Trust, Xxxxxx Management, and
the Custodian.
(b) Refusal or Delay of Transfers; Guaranties; Proof Of
Ownership: Particular Action or Instructions. Xxxxxx Management as Transfer
Agent may refuse or delay to record an issuance or redemption of shares
unless and until it shall have been satisfied in its sole discretion that
the requested issuance or redemption is authorized, in which case it may
require such evidence and/or guaranty as shall be satisfactory to it until
it shall have been satisfied in its discretion as to the power, authority
and capacity of any person whose act may be relied upon to effect the
issuance or redemption requested. Xxxxxx Management shall incur no
liability for the refusal in good faith to record an issuance or redemption
which it, in its judgment, deems improper or unauthorized.
Xxxxxx Management as Transfer Agent is authorized to take or suffer
any action in accordance with instructions in writing signed by an officer
of the Trust in recording shares, notwithstanding any irregularity or lack
of power, authority or capacity of some party to the transaction, and
without any further inquiry concerning or examination into any facts, acts
or instruments. Xxxxxx Management as Transfer Agent, upon receipt of
instructions in writing from an officer of the Trust, will address and mail
to the shareholders such notices, proxy material, financial statements, and
other printed matter as the Trust may desire to send. Xxxxxx Management as
Transfer Agent shall make available to the Trust, and to such persons
responsible for administration of Trust affairs as the Trust may designate,
computerized access to the current list of the registered holders of shares
as shown by the Transfer Agent's records.
In case of any demand upon Xxxxxx Management for inspection of the
records of ownership of shares of the Trust, Xxxxxx Management shall
endeavor to notify the Trust and to secure instructions from an officer of
the Trust to permit or to refuse to permit such inspection. In the absence
of instructions to the contrary, Xxxxxx Management will be authorized to
exhibit such records to any duly accredited representative of any Federal or
State governmental authority upon request of such representative, or
pursuant to order of a court. Xxxxxx Management reserves the right,
however, to exhibit such records to any person in case it is advised by its
legal counsel that it may be held liable for the failure to exhibit such
records to such person.
5. Specific Provisions Concerning Xxxxxx Management Acting as
Dividend Disbursing Agent. Xxxxxx Management will act as Dividend
Disbursing Agent for the Fund. As Dividend Disbursing Agent it will, as
agent for each shareholder, reinvest all dividends and distributions for the
shareholder in additional full and fractional shares of the Fund, or, if a
proper election has been filed by the shareholder, shall distribute such
distributions and dividends, on the date upon which the dividend or
distribution is to be paid, and of the record date as of which the list is
to be taken of persons entitled to receive such dividend or distribution.
The Trust shall cause to be deposited with Xxxxxx Management prior to 12:00
Noon, Central Time, on the day on which the dividend or distribution is to
be paid the amount of money necessary for the payment of such dividend or
distribution, without which deposit Xxxxxx Management will not be under any
obligation to distribute such dividend or distribution.
Dividend checks shall be of a form and size compatible for use on
the mechanical equipment of Xxxxxx Management. A sufficient supply of such
checks must be in the possession of Xxxxxx Management on the record date.
Any portion of monies deposited with Xxxxxx Management for the payment of a
dividend or distribution, which shall remain unclaimed by the person or
persons entitled thereto at the end of three years from the payment date of
such dividend or distribution, shall be returned to the Trust, to be held by
the Trust for the same purpose as if held by Xxxxxx Management, and
thereafter any person entitled to payment out of said Trust shall look only
to the Trust for payment thereof, although such person say have in his
possession the dividend check drawn by Xxxxxx Management as Transfer Agent
and Dividend Disbursing Agent for the amount payable. If a shareholder
shall report to Xxxxxx Management that any such check so mailed has been
lost, stolen or destroyed and that he has not received the proceeds thereof
and if the check has not been paid, then, upon execution of an indemnity
agreement in form satisfactory to Xxxxxx Management and the Trust, Xxxxxx
Management may stop payment upon such check and may issue and deliver to
such shareholder a new check for like amount. Such indemnity agreement may
be in the form of an endorsement upon the new check. Xxxxxx Management may
defer the issue of the new check for a period of 30 days or more. Xxxxxx
Management shall prepare and file with the Internal Revenue Service and
other appropriate taxing authorities, and address and mail to shareholders
or their authorized representatives such returns and information relating to
dividends and distributions paid by the Trust as are required to be so
prepared, filed and mailed by applicable laws, rules and regulations, or
such substitute form of notice as may from time to time be permitted or
required by the Internal Revenue Service or other appropriate taxing
authorities. On behalf of the Trust, Xxxxxx Management shall pay on a
timely basis to the appropriate Federal authorities any taxes required by
applicable Federal tax laws to be withheld by the Trust on dividends and
distributions paid by the Trust.
6. Limitation of Trust Liability. The Declaration of Trust
establishing Xxxxxxx Investments, dated July 19, 1993, a copy of which,
together with all amendments thereto (the "Declaration"), is on file in the
office of the Secretary of the Commonwealth of Massachusetts, provides that
the name "Xxxxxxx Investments" refers to the Trustees under the Declaration
collectively as Trustees, but not as individuals or personally; and no
Trustee, shareholder, officer, employee or agent of Xxxxxxx Investments,
shall be held to any personal liability, nor shall result be had to their
private property for the satisfaction of any obligation or claim or
otherwise in connection with the affairs of said Xxxxxxx Investments, but
the Trust Estate only shall be liable.
7. General. Xxxxxx Management shall be protected in acting
upon any paper or document believed by it to be genuine and to have been
signed by the proper person or persons and shall not be held to have notice
of any change of authority of any person, until receipt of written notice
thereof from the Trust. Xxxxxx Management represents that it has and is
currently registered as a transfer agent with the Commission and has
complied with the regulations of the appropriate federal agency for
registered transfer agents. Xxxxxx Management agrees that it will continue
to be registered as a transfer agent with the appropriate federal agency for
the duration of this Agreement.
Unless otherwise expressly limited by the resolution of appointment
or by subsequent Trust action, the appointment of Xxxxxx Management as
Transfer Agent and Dividend Disbursing Agent will be construed to cover an
unlimited amount of authorized shares of the Fund, provided that Xxxxxx
Management shall not register or record any shares of the Fund in excess of
the number of shares which the Trust may hereafter designate in writing.
Xxxxxx Management shall maintain records for the Fund showing for each
shareholder's account such historical information and shareholder data as
may be requested by the Trust. Xxxxxx Management shall furnish the Trust
state by state registration reports, such periodic and special reports as
the Trust may reasonably request, and such other information, including
shareholder lists and statistical information concerning accounts, as may be
agreed upon from time to time between the Trust and Xxxxxx Management. Any
such records required to be maintained by Rule 3la-1 under the 1940 Act
shall be preserved for the periods prescribed in Rule 3la-2. Records may be
inspected by the Trust at reasonable times. Records and documents shall be
retained six years from the year of creation, during the first two of which
such documents will be in readily accessible form. At the end of the six
year period, such records and documents will either be turned over to the
Trust or destroyed, in accordance with the Trusts authorization.
In the event of equipment failures beyond Xxxxxx Management's
control, Xxxxxx Management shall, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions but shall have no
liability with respect thereto. Xxxxxx Management shall enter into and
shall maintain in effect with appropriate parties one or more agreements
making reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available. Xxxxxx
Management warrants that all software code owned by or under its control,
used in the performance of its obligations under this agreement, will be
Year 2000 compliant. For purposes of this paragraph, "Year 2000 Compliant"
means that the software will continue to operate beyond December 31, 1999,
without creating any logical or mathematical inconsistencies concerning any
date after December 31, 1999, and without decreasing the functionality of
the system applicable to dates prior to January 1, 2000, including, but not
limited to, making changes to (a) date and data century recognition; (b)
calculations which accommodate same-century and multi-century formulas and
date values; and (c) input/output of date values which reflect century
dates. All changes described in this paragraph will be made at no
additional cost to the Fund.
At any time Xxxxxx Management may apply to any officer of the Trust
for instructions, and may consult with legal counsel for the Trust or its
own legal counsel, at the expense of the Trust, in respect of any matter
arising in connection with the agency, and it shall not be liable for any
action taken or not taken or suffered by it in good faith in accordance with
such instructions or with the opinion of counsel. However, nothing in this
paragraph shall be construed as imposing upon Xxxxxx Management any
obligation (i) to seek such directions or advice, or (ii) to act in
accordance with such directions or advice when received, unless, under the
terms of another provision of this Agreement, the same is a condition to
Xxxxxx Management's properly taking or omitting to take such action. The
Trust will hold Xxxxxx Management harmless against the claim or demand of
any person as a result of action taken or not taken upon instructions from
the Trust.
This Agreement shall be governed by the laws of the State of
Michigan, without reference to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on behalf of each of them by their duly authorized officers the
date and year first above written.
XXXXXXX INVESTMENTS XXXXXX MANAGEMENT CORPORATION
By: /S/ XXXX X. XXXXXXXX By: /S/ XXXX X. XXXXXX
Xxxx X. Xxxxxxxx, Chairman Xxxx X. Xxxxxx, President
