FINANCIAL SERVICES AGREEMENT
AGREEMENT made as of the 4th day of December 1995, by and between (i)
each of the investment companies listed on Schedule A hereto as such Schedule
may be amended from time to time (collectively the "Funds," each a "Fund");
(ii) Investors Fiduciary Trust Company ("IFTC") (iii) Xxxxxxx Xxxxx Financial
Data Services, Inc. ("MLFDS") a Florida corporation; and (iv) Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S"), a Delaware corporation.
WITNESSETH:
WHEREAS the Funds are classes of one or more investment companies
registered under the Investment Company Act of 1940, as amended (the "Act");
and
WHEREAS, IFTC is the transfer agent, dividend disbursing agent, and
shareholder servicing agent for the Funds; and
WHEREAS, MLFDS, a transfer agent registered under the Securities
Exchange Act of 1934, has presented to IFTC the various administrative services
that may be performed by MLPF&S; and
WHEREAS, the Funds desire to retain NMPF&S to perform such services
and MLPF&S is willing and able to furnish such services on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, each party hereto severally agrees, as follows:
I . MLPF&S agrees to perform the administrative services specified in
Exhibit A hereto (the "Services") for the benefit of the Funds' shareholders who
maintain shares of any of such Funds in brokerage accounts with MLPF&S and
whose shares are included in the master account referred to in paragraph 1 of
Exhibit A (collectively, the "MLPF&S customers").
2. MLPF&S agrees that it will maintain and preserve all records as
required by law to be maintained and preserved in connection with providing the
Services, and will otherwise comply with all law, rules and regulations
applicable to the Services. Upon the request of the Funds, MLPF&S shall provide
copies of all the historical records relating to transactions involving the
Funds and MLPF&S customers, in each case as may reasonably be requested to
enable the Funds or its representatives, including without limitation its
auditors, investment advisor, IFTC or successor transfer agent or distributor,
to monitor and review the Services, or to comply with any request of the board
of directors (the "Directors") of the Funds or of a governmental body, self-
regulatory organization or a shareholder. MLPF&S agrees that it will permit the
Funds and IFTC or their representatives to have reasonable access to its
personnel and records in order to facilitate the monitoring of the quality of
the services. It is understood that notwithstanding anything herein to the
contrary, neither MLFDS nor MLPF&S shall be required to provide the names and
addresses of MLPF&S customers to the Funds, IFTC or their representatives,
unless applicable laws otherwise require.
3 . MLPF&S may contract with or establish relationships with MLFDS,
or other parties for the provision of the Services or other activities of MLPF&S
required by the Agreement.
4. Each of MLPF&S and MLFDS, hereby agrees to notify promptly the
Funds if for any reason either of them is unable to perform fully and promptly
any of its obligations under this Agreement.
5. Each of MLPF&S and MLFDS, hereby represent that neither of them
now owns or holds with power to vote any shares of the Funds which are
registered in the name of MLPF&S or the name of its nominee and which are
maintained in MLPF&S brokerage accounts.
6. The provisions of the Agreement shall in no way limit the
authority of any of the Funds or IFTC to take such action as either of such
parties may deem appropriate or advisable in connection with all matters
relating to the operations of any of such Funds and/or sale of its shares.
7. In consideration of the performance of the services by MLPF&S
and MLFDS, each of the Funds severally agrees to compensate MLFDS at the rate
of $16.00 annually per each MLPF&S customer account holding shares of a Fund
which shares were subject to an up-front sales load or no sales load, and
$19.00 annually per MLPF&S customer account holding shares of a Fund that are
subject to a contingent deferred sales charge ("CDSC"); provided, however, if
all shares in an MLPF&S customer account have been held for the requisite
time period such that the shares are no longer subject to a CDSC, then MLFDS
will be compensated at the rate of $16.00 annually for such MLPF&S customer
account. These rates are the current standard rates for the services provided
by MLFDS and MLPF&S hereunder. Payment shall be made monthly based upon the
number of MLPF&S customer/shareholders of a Fund who hold shares of such
Fund in a MLPF&S brokerage account for any part of the subject month. This
number shall be certified each year by independent public accountants
retained by MLPF&S as of a month selected by the Funds or IFTC, such
certification to be at the expense of MLPF&S. It is further agreed that,
notwithstanding anything herein to the contrary, MLPF&S will not request any
increase in the compensation hereunder to be effective prior to September 30,
1996.
In the event MLPF&S or MLFDS, as its agent were to mail any
Fund's proxy materials, reports, prospectuses and other information to MLPF&S
customers/shareholders of any Fund who are MLPF&S customers pursuant to
paragraph 4 of Exhibit A, IFTC or such Fund agrees to reimburse MLPF&S or
MLFDS, Inc., as the case may be, for postage, handling fees and reasonable
costs of supplies used by it in such mailings in an amount to be determined
in accordance with the rates set forth in Rule 451.90 of the New York Stock
Exchange Inc.
8. MLFDS shall indemnify and hold harmless the Funds and IFTC
from and against any and all of losses or liabilities that any one or more of
them may incur, including without limitation reasonable attorneys' fees,
expenses and cost, arising out of or related to the performance or
non-performance of MLPF&S or MLFDS of its responsibilities under this
Agreement, excluding, however, any such claims, suits, loss, damage or cost
caused by, or contributed to, by the Funds or IFTC, as to which the Funds and
IFTC shall indemnify, hold harmless and defend MLFDS and MLPF&S on the same
basis as set forth above.
9. This Agreement may be terminated at any time by each of MLPF&S
and MLFDS or by any of the Funds as to itself upon 30 days written notice to
MLFDS. This Agreement may also be terminated at any time without penalty upon
30 days written notice to MLFDS that a majority of the Directors of any of the
Funds have determined to terminate its agreement(s) with IFTC pertaining to its
transfer agent services. The provisions of paragraph 2 shall continue in full
force and effect after termination of this Agreement. Notwithstanding the
foregoing, this Agreement shall not require MLPF&S to preserve any records
relating to this Agreement beyond the time periods otherwise required by the
laws to which MLPF&S is subject.
10. Any other Fund for which IFTC serves as transfer agent may become
a party to this Agreement by giving written notice to MLPF&S or MLFDS that it
has elected to become a party hereto and by having this Agreement executed on
its behalf.
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11. It is understood and agreed that in performing the services under
this Agreement, neither MLPF&S nor MLFDS acting in its capacity described
herein shall be acting as an agent for any of the Funds.
12. This agreement including its Exhibit and Schedule, constitutes
the entire agreement between the parties with respect to the matters dealt with
herein, and supersedes any previous agreements and documents with respect to
such matters.
IN WITNESS HEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXXXX XXXXX FINANCIAL DATA
XXXXX INCORPORATED SERVICES, INC.
By: By:
----------------------------- -----------------------------
Print Name: Xxxxx X. Xxxxx Print Name: Xxxxxx X. Xxxxxxxx
Title: Sr. Vice President Title: President
Xxxxx Associates, Inc. Funds Set Forth on Schedule A
INVESTORS FIDUCIARY TRUST THE XXXXX GROWTH FUND, INC.
COMPANY
By: By:
-------------------------- ----------------------------
Print Name: Print Name:
------------------ --------------------
Title: Title:
----------------------- --------------------------
XXXXX FUNDS, INC.
By:
----------------------------
Print Name:
--------------------
Title:
------------------------
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EXHIBIT A
Pursuant to the Agreement by and among the parties hereto, MLPF&S shall
perform the following Services:
1. Maintain separate records for each shareholder of the Funds who
hold shares of a Fund in a brokerage account with MLPF&S ("MLPF&S customers"),
which records shall reflect shares purchased and redeemed and share balances.
MLPF&S shall maintain a single master account with the transfer agent of the
Fund on behalf of MLPF&S customers and such account shall be in the name of
MLPF&S or its nominee as the record owner of the shares owned by such customers.
2. Disburse or credit to MLPF&S customers all proceeds of redemptions
of shares of the Fund and all dividends and other distributions not reinvested
in shares of the Fund.
3. Prepare and transmit to MLPF&S customers periodic account
statements showing the total number of shares owned by the customer as of the
statement closing date, purchases and redemptions of Fund shares by the customer
during the period covered by the statement and the dividends and other
distributions paid to the customer during the statement period (whether paid in
cash or reinvested in Fund shares).
4. Transmit to MLPF&S customers proxy materials and reports and other
information received by MLPF&S from any of the Funds and required to be sent to
shareholders under the federal securities laws, and, upon request of the Fund's
transfer agent transmit to MLPF&S customers material fund communications deemed
by the Fund, through its Board of Directors or other similar governing body, to
be necessary and proper for receipt by all fund beneficial shareholders.
5 . Transmit to the Fund's transfer agent purchase and redemption
orders on behalf of MLPF&S customers.
6. Provide to the Funds, or to IFTC acting in its capacity as
transfer agent for any of the Funds, or any of the agents designated by any of
them, such periodic reports as shall reasonably be concluded to be necessary to
enable any of the Funds and its distributor to comply with State Blue Sky
requirements.
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SCHEDULE A
to the
FINANCIAL SERVICES AGREEMENT
The Xxxxx Growth Fund, Inc. -- Class A
The Xxxxx Growth Fund, Inc. -- Class B
The Xxxxx Growth Fund, Inc. -- Class C
The Xxxxx Growth Fund, Inc. -- Class X
Xxxxx U.S. Emerging Growth Fund -- Class B
Xxxxx U.S. Emerging Growth Fund -- Class C
Xxxxx U.S. Emerging Growth Fund -- Class D
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