Exhibit (h)(1)
AGENCY AGREEMENT
AGREEMENT dated the 28th day of December, 1998, by and between XXXXXX FUNDS
TRUST, a Massachusetts business trust ("Fund"), and XXXXXX SERVICE COMPANY, a
Delaware corporation ("Service Company").
WHEREAS, Fund wants to appoint Service Company as Transfer Agent and Dividend
Disbursing Agent, and Service Company 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
Service Company as Transfer Agent and Dividend Disbursing Agent for Fund, there
will be filed with Service Company the following documents:
A. A certified copy of the resolutions of the Board of Trustees
of Fund appointing Service Company 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.
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 Service Company. Service Company
represents and warrants to Fund that:
A. It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
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 Certificate
of Incorporation and Bylaws to enter into and perform the
services contemplated in this Agreement.
D. All requisite corporate action has 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 Service Company 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.
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 Service Company as Transfer Agent and Dividend Disbursing
Agent effective the date hereof.
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B. Service Company hereby accepts such employment and appointment and
agrees that it will act as Fund's Transfer Agent and Dividend Disbursing Agent.
Service Company 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. Service Company 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 Service
Company 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, Service
Company 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 canceling 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 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 Service
Company as Transfer Agent and Dividend Disbursing Agent, Fund will pay to
Service Company 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 Service Company.
The initial agreement regarding compensation is attached as Exhibit A.
B. Fund agrees to promptly reimburse Service Company for all reasonable
out-of-pocket expenses or advances incurred by Service Company 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. Service Company 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.
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6. Efficient Operation of Service Company System. In connection with the
performance of its services under this Agreement, Service Company is responsible
for the accurate and efficient functioning of its system at all times,
including:
(1) The accuracy of the entries in Service Company's records
reflecting purchase and redemption orders and other
instructions received by Service Company from dealers,
shareholders, Fund or its principal underwriter.
(2) The timely availability and the accuracy of shareholder lists,
shareholder account verifications, confirmations and other
shareholder account information to be produced from Service
Company'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
Service Company's present procedures with such changes as may
be deemed reasonably appropriate by Service Company 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 Service Company, 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 Service Company 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 Service Company pursuant to this Agreement or in
connection with the agency relationship created by this Agreement, provided that
Service Company has acted in good faith, without negligence and without willful
misconduct.
B. Service Company 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 attributable
to any action or omission by Service Company pursuant to this Agreement or in
connection with the agency relationship created by this Agreement, provided
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that Service Company 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 Service Company 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 Service Company.
B. Service Company 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, Service Company 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 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 Service Company
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, Service Company agrees that all records maintained
by Service Company relating to the services to be performed by Service Company
under this Agreement are the property of Fund and will be preserved and will be
surrendered promptly to Fund on request.
D. Service Company 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 Service Company's certified
public accountants.
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E. Service Company 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. Service Company will permit Fund and its authorized representatives
to make periodic inspections of its operations at reasonable times during
business hours.
G. If Service Company 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 Service
Company, 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 Service Company 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 Service
Company will use all reasonable efforts to assist Fund to obtain alternate
sources of service. Service Company shall have no liability to Fund for
nonperformance because of the reasons set forth in this Section 8.G; but if a
disability that, in Fund's reasonable belief, materially affects Service
Company'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 Service Company.
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,
Service Company 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
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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 Service Company with a sufficient
supply of blank share certificates and from time to time will renew such supply
upon the request of Service Company. Such certificates will be signed manually
or by facsimile signatures of the officers of Fund authorized by law and Fund's
Bylaws to 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 Service Company 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, Service Company 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 Service
Company 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 Service Company 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 Service Company
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. Service
Company 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. Service Company 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
Service Company 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. Service Company 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 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 Service Company 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
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to the approval of legal counsel for Service Company, 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
Service Company. 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. Service Company 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. Service Company
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 Service Company (which consent will not be unreasonably
withheld), but will be safely stored for possible future reference.
18. Provisions Relating to Service Company as Transfer Agent.
A. Service Company 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
Service Company with sufficient funds to pay any taxes required on the original
issue of the shares. Fund will furnish Service Company such evidence as may be
required by Service Company to show the actual value of the shares. If no taxes
are payable, Service Company 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 Service Company properly endorsed for
transfer or redemption accompanied by such documents as Service Company may deem
necessary to evidence the authority of the person making the
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transfer or redemption, and bearing satisfactory evidence of the payment of any
applicable share transfer taxes. Service Company 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. Service Company 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. Service Company 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, Service
Company will forward share certificates in "nonnegotiable" form as provided by
Fund by first class mail, all such mail deliveries to be covered while in
transit to the addressee by insurance arranged for by Service Company.
E. Service Company 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 Service Company deems necessary.
F. Service Company will issue, transfer, and split-up certificates upon
receiving written instructions from an officer of Fund and such other documents
as Service Company may deem necessary.
G. Service Company may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or otherwise wrongfully taken,
upon receiving indemnity satisfactory to Service Company, 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
Service Company has notice.
H. Service Company will supply a shareholder's list to Fund properly
certified by an officer of Service Company 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, Service
Company 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 Service Company,
Service Company will endeavor to notify Fund and to secure instructions as to
permitting or refusing such inspection. Service Company reserves the right,
however, to exhibit the share books or other books to any person in
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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. Service Company 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 Service
Company.
B. If Fund wants to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be furnished to
Service Company 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 Service Company
but the size and form of said envelopes will be subject to the approval of
Service Company. 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. Service Company 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 Service Company
or its assigns which materially interferes with the business
operation of Fund.
(2) The bankruptcy of Service Company or its assigns or the
appointment of a receiver for Service Company or its assigns.
(3) Any merger, consolidation or sale of substantially all the
assets of Service Company or its assigns.
(4) The acquisition of a controlling interest in Service Company
or its assigns, by any broker, dealer, investment adviser or
investment company except as may presently exist.
(5) Failure by Service Company or its assigns to perform its
duties in accordance with
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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.
(6) The registration of Service Company 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 Service Company
all amounts due to Service Company hereunder. Upon termination of this
Agreement, Service Company shall deliver all shareholder and account records
pertaining to Fund either to Fund or as directed in writing by Fund.
21. Assignment.
A. Neither this Agreement nor any rights or obligations hereunder may
be assigned by Service Company without the written consent of Fund; provided,
however, no assignment will relieve Service Company 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.
C. Service Company is authorized by Fund to use the system services of
DST Systems, Inc. and the system and other services, including data entry, of
Administrative Management Group, Inc.
22. Confidentiality.
A. Except as provided in the last sentence of Section 18.J hereof, or
as otherwise required by law, Service Company 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 Service Company) and
all manuals, systems and other technical information and data, not publicly
disclosed, relating to Service Company's operations and programs furnished to it
by Service Company pursuant to this Agreement and will not disclose the same to
any person except at the request or with the consent of Service Company.
Notwithstanding anything to the contrary in this Section 22.B, if an attempt is
made 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 Service Company prompt notice thereof
prior to disclosure or production so that Service Company may, at its expense,
resist such attempt.
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23. Survival of Representations and Warranties. All representations and
warranties by either party herein contained will survive the execution and
delivery of this Agreement.
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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 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 Service Company 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, Service Company 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.
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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 FUNDS TRUST
By: /s/Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
XXXXXX SERVICE COMPANY
By:
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Title:
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