TRANSFER AGENCY AND SERVICE AGREEMENT
between
XXXXXX ASSOCIATES INVESTMENT TRUST
and
NVEST SERVICES COMPANY, INC.
TABLE OF CONTENTS
Page
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1. Appointment and Duties...................................................1
2. Third Party Administrators for Defined Contribution Plans................3
3. Fees and Expenses........................................................4
4. Representations and Warranties of the Transfer Agent.....................5
5. Representations and Warranties of the Fund...............................6
6. Wire Transfer Operating Guidelines.......................................7
7. Data Access and Proprietary Information..................................9
8. Confidentiality.........................................................11
9. Indemnification.........................................................11
10. Standard of Care........................................................13
11. Information to be Furnished by the Fund.................................13
12. Recordkeeping...........................................................14
13. Termination of Agreement................................................14
14. Assignment and Third Party Beneficiaries................................15
15. Subcontractors..........................................................15
16. Miscellaneous...........................................................15
17. Additional Funds........................................................18
18. Limitations of Liability of the Trustees and Shareholders...............18
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of this 1st day of September, 1999, by and between XXXXXX
ASSOCIATES INVESTMENT TRUST, a Massachusetts business trust, having its
principal office and place of business at Xxx Xxxxx XxXxxxx Xxxxxx Xxxxxxx,
Xxxxxxxx 00000 (the "Fund"), and NVEST SERVICES COMPANY, INC., a Massachusetts
corporation having its principal office and place of business at 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer Agent"`).
WHEREAS, the Fund 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 Fund currently offers shares in seven series, such series being
named in the attached Schedule A, which may be amended by the parties from time
to time (each such series, together with all other series subsequently
established by the Fund and made subject to this Agreement in accordance with
SECTION 17 hereof, being herein referred to as a "Portfolio," and -collectively
as the "Portfolios");
WHEREAS, the Fund, on behalf of the Portfolios, desires to appoint the Transfer
Agent as its transfer agent, dividend disbursing agent, and agent in connection
with certain other activities, and the Transfer Agent desires to accept such
appointment; and
WHEREAS, the Transfer Agent intends to engage Boston Financial Data Services,
Inc. (the "Sub-Transfer Agent") to perform certain of the services to be
provided by the Transfer Agent hereunder and enter into a Sub-Transfer Agency
and Service Agreement with the Sub-Transfer Agent (the "Sub-TA Agreement") to
that effect, and the Fund hereby acknowledges the Transfer Agent's intent to so
engage the Sub-Transfer Agent.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. APPOINTMENT AND DUTIES
1.1 GENERAL. Subject to the terms and conditions set forth in this Agreement,
the Fund, on behalf of the Portfolios, hereby employs and appoints the
Transfer Agent to act as, and the Transfer Agent agrees to act as, its
transfer agent for the authorized and issued shares of beneficial
interest of the Fund ("Shares"), dividend disbursing agent, and agent in
connection with any accumulation, open-account, or similar plan provided
to the shareholders of each of the respective Portfolios of the Fund
("Shareholders") and set out in the currently effective prospectus(es)
and statement(s) of additional information of the Fund, including,
without limitation, any periodic investment plan or periodic withdrawal
program.
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In accordance with procedures established from time to time by agreement
between the Fund and the Transfer Agent, the Transfer Agent agrees that
it will perform the various services set forth in Schedule B hereto. As
the Fund and the Transfer Agent may, from time to time, mutually agree in
writing, the Transfer Agent may at times perform only a portion of the
services listed in Schedule B, and the Fund or its agent may perform such
services.
1.2 RETIREMENT ACCOUNTS. With respect to certain retirement plans or accounts
(such as individual retirement accounts ("IRAs"), SIMPLE IRAs, SEP IRAs,
Xxxx IRAs, Education IRAs, and 403(b) Plans (such accounts, "Retirement
Accounts")), the Transfer Agent, at the request of the Fund, may provide
or arrange for the provision of appropriate prototype plans as well as
provide or arrange for the provision of various services to such plans
and/or accounts, which services may include plan custodian services,
account set-up, maintenance, and disbursements as well as such other
services as the parties hereto shall mutually agree upon.
If at any time and for any reason the Transfer Agent, any of its agent or
sub-contractors, or any of their affiliates chooses to resign as
custodian of any or all Retirement Accounts, the Transfer Agent will give
the Fund at least eighty-five (85) days' prior written notice and shall
not be required to designate a successor custodian. If either party
chooses to terminate this Agreement pursuant to SECTION 13 hereof, the
Transfer Agent, any of its agents or sub-contractors, or any of their
affiliates may thereupon resign as custodian in respect to any or all of
the Retirement Accounts upon eighty-five (85) days' prior written notice
to the Fund. In either such event, the Fund will promptly distribute
notice of the custodian's resignation to such persons and in such manner
as are called for under the applicable provisions of the Retirement
Account and in form and content satisfactory to and signed by the
Transfer Agent. The Fund shall be responsible for obtaining a successor
custodian for all Retirement Accounts.
1.3 REVIEW AND MAINTENANCE OF FUND PROTOTYPE RETIREMENT PLANS OR ACCOUNT
MATERIALS.
(a) If the Fund develops and makes available its own retirement plan
prototypes or account materials (the "Fund Prototype(s)") for use in
connection with a Retirement Account or Accounts, the Fund, subject to
the terms set forth below, may appoint the Transfer Agent, one of its
agent or sub-contractors, or an affiliate thereof as the custodian with
respect to such Retirement Accounts.
(b) The Fund agrees that the Fund Prototypes will comply with
applicable sections of the Internal Revenue Code of 1986, as amended (the
"Code"), and regulations promulgated thereunder as in effect at the time.
The Fund will be responsible for establishing, maintaining, and updating
the Fund Prototypes in compliance with the Code and all other applicable
federal or state law or regulations, when changes in the law require such
updating.
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(c) The Fund agrees that the Fund Prototypes are the responsibility of
the Fund and further agrees that it will indemnify, defend, and hold
harmless the Transfer Agent, its affiliates, successors, representatives,
and assigns from and against any and all losses, damages, costs, charges,
expenses, including reasonable fees for counsel, taxes, penalties, and
liabilities (collectively, "Losses") arising out of or attributable to
the use of a Fund Prototype by the Fund or the Transfer Agent, its
agents, employees, representatives, or any other person acting on a
Fund's behalf, except to the extent that such Losses arise out of or are
attributable to the negligence, bad faith, or willful misconduct of the
Transfer Agent (or its agents, affiliates, successors, or assigns),
unless such negligence is a result of complying with a Fund Prototype.
This indemnification obligation will survive termination of this
Agreement.
(d) The Fund agrees that any modifications made by the Fund to a Fund
Prototype without the Transfer Agent's written consent or the required
written consent of any of the Transfer Agent's agents or sub-contractors
or any of their affiliates shall not increase the liabilities or
responsibilities of the Transfer Agent or that of such agent,
sub-contractor, or affiliate as custodian or limit the Transfer Agent's
ability or that of that of its agent or sub-contractor, or any of their
affiliates to resign as custodian as provided hereunder. The Fund will
furnish the Transfer Agent with a copy of each Fund Prototype. The
Transfer Agent shall not be required to review, comment, or advise on
such Fund Prototypes.
1.4 BLUE SKY. The Fund shall (a) identify to the Transfer Agent in writing
those transactions and assets to be treated as exempt from blue sky
reporting for each State and (b) 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 Transfer
Agent for the Fund's blue sky State registration status is solely limited
to the initial establishment of transactions subject to blue sky
compliance by the Fund and providing a system that will enable the Fund
to monitor the total number of Shares sold in each State.
2. THIRD PARTY ADMINISTRATORS FOR DEFINED CONTRIBUTION PLANS
2.1 The Fund may decide to make available to certain of its customers a
qualified plan program (the "Program") pursuant to which such customers
("Employers") may adopt certain plans (each, a "Plan," and collectively,
"Plans") for the benefit of Plan participants (the "Participants"), such
Plans being qualified under Section 401(a) of the Code, and administered
by third party administrators, which may be "administrators" as defined
in the Employee Retirement Income Security Act of 1974, as amended
("TPA(s)").
2.2 In accordance with the procedures established in Schedule 2.2 hereto
entitled "Third Party Administrator Procedures," as may be amended by the
Transfer Agent and the Fund from time to time ("Schedule 2.2"), the
Transfer Agent shall:
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(a) treat Shareholder accounts established by the Plans in the name of
the Plan Trustees, the Plans, or TPAs, as the case may be, as omnibus
accounts:
(b) maintain omnibus accounts on its records in the name of the TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) perform all services under SECTION 1 as transfer agent of the Funds
and not as a record-keeper for the Plans.
2.3 Transactions identified under SECTION 2 of this Agreement shall be deemed
exception services ("Exception Services") when such transactions:
(a) require the Transfer Agent or its sub-agent to use methods and
procedures other than those usually employed by the Transfer Agent or
its sub-agent to perform services described under SECTION 1 of this
Agreement;
(b) involve the provision of information to the Transfer Agent or its
sub-agent after the commencement of the nightly processing cycle of the
transfer agency data processing system then in use by the Transfer Agent
or its sub-agent (the "System"); or
(c) require more manual intervention by the Transfer Agent or its
sub-agent, either in the entry of data or in the modification or
amendment of reports generated by the System than is usually required
by non-retirement plan and pre-nightly transactions.
3. FEES AND EXPENSES
3.1 FEE SCHEDULE. For the performance by the Transfer Agent pursuant to
this Agreement, the Fund agrees to pay the Transfer Agent fees as set
forth in the attached fee schedule ("Schedule 3.1"). Such fees and
out-of-pocket expenses and advances identified under SECTION 3.2 below
may be changed from time to time subject to mutual written agreement
between the Fund and the Transfer Agent.
3.2 OUT-OF-POCKET EXPENSES. In addition to the fees paid under SECTION 3.1
above, the Fund agrees to reimburse the Transfer Agent for the Transfer
Agent's reasonable out-of-pocket expenses, including, but not limited
to, confirmation production, postage, investor statements, telephone,
telecommunication and line charges, microfilm, microfiche, checks,
forms (including year end forms), wire fees, mailing/receiving and
tabulating proxies, records storage, costs associated with certain
specialty products, systems, or services, as applicable (such as
"Investor," "Voice," "Fan," and "Vision"), or advances incurred by the
Transfer Agent for the items set out in Schedule 3.1 attached hereto.
In addition, any other expenses reasonably incurred by the Transfer
Agent at the request or with the consent of the Fund will be reimbursed
by the Fund.
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3.3 POSTAGE. Postage for mailing of dividends, proxies, Fund reports, and
other mailings to all shareholder accounts shall be advanced to the
Transfer Agent by the Fund at least seven (7) days prior to the mailing
date of such materials.
3.4 INVOICES. The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective billing
notice, except for any fees or expenses that are subject to good faith
dispute. In the event of such a dispute, the Fund may withhold only that
portion of the fee or expense subject to the good faith dispute. The Fund
shall notify the Transfer Agent in writing within twenty-one (21)
calendar days following the receipt of each billing notice if the Fund is
disputing any amounts in good faith. If the Fund does not provide such
notice of dispute within the required time, the billing notice will be
deemed accepted by the Fund.
4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
4.1 It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts and is duly
registered as a transfer agent under the Securities Exchange Act of 1934,
as amended.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
4.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access (either directly or pursuant to
contractual arrangements with third parties) to the necessary facilities,
equipment, and personnel to perform its duties and obligations under this
Agreement.
4.6 (a) The Sub-Transfer Agent has provided the following representation to
the Transfer Agent with respect to the Sub-Transfer Agent's "Year 2000
Readiness" (as said term is defined below):
"The Sub-Transfer Agent will take all commercially reasonable steps
to ensure that its products (and those of its third party
providers) reflect the available technology to offer products that
are Year 2000 Ready. For purposes of this Agreement, "Year 2000
Ready" or "Year 2000 Readiness" means that the products will
operate with dates in multiple centuries in the same way as the
products operate as with dates in single centuries, including, but
not limited to, century recognition of dates and calculations
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that correctly compute same century and multi-century formulas and
date values.
In a commercially reasonable time frame, the Sub-Transfer Agent
will make any necessary changes to its computer systems for such
systems to be Year 2000 Ready and will take all commercially
reasonable steps to require its third party providers to do
likewise. If any such changes are required to the Sub-Transfer
Agent's computer systems due to Year 2000 Readiness issues, such
changes being solely with respect to the Sub-Transfer Agent's
computer systems, the Transfer Agent will not be required to pay
any fee or out-of-pocket expenses to the Sub-Transfer Agent with
respect to such changes. Subject to the foregoing, if other changes
are required to the Sub-Transfer Agent's computer systems or its
third party providers' computer systems due to Year 2000 Readiness
issues, and the Sub-Transfer Agent incurs any costs related to such
changes, the resultant fee to be charged to the Transfer Agent will
be in an amount to be agreed upon by the parties hereto; PROVIDED,
HOWEVER, to the extent that such changes are not unique to the
Transfer Agent or any Fund, the fee to be charged to the Transfer
Agent will be based upon the Transfer Agent's pro-rata share of
such costs across the Sub-Transfer Agent's entire client base."
(b) To the extent the Sub-Transfer Agent breaches the foregoing
representations and covenants or otherwise violates any of its
obligations to the Transfer Agent under the Sub-TA Agreement with respect
to the Sub-Transfer Agent's Year 2000 Readiness and such breach or
violation results in or is reasonably likely to result in a loss to the
Fund (a "Fund Y2K Loss"), the Transfer Agent hereby represents and
warrants that it will promptly notify the Fund of such event and, if so
requested by the Fund in writing, the Transfer Agent will, on behalf of
the Fund, pursue all rights and remedies that it may have against the
Sub-Transfer Agent in law, equity, or otherwise that arise from such
breach or violation by the Sub-Transfer Agent.
(c) Notwithstanding the foregoing, with respect to any Xxxx X0X Loss,
the parties hereto expressly acknowledge and agree that the Fund shall
have no recourse against the Transfer Agent for any Fund costs, expenses,
or losses that directly result from (i) the Fund's failure to respond in
a timely manner to the Transfer Agent's notification to the Fund of a
Xxxx X0X Loss; or (11) the Fund's affirmative instruction to the Transfer
Agent to not pursue a Fund Y2K Loss.
5. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Transfer Agent that:
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5.1 It is a business trust duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
5.2 It is empowered under applicable laws and by its Declaration of Trust
and By-Laws to enter into and perform this Agreement.
5.3 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
5.4 It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
5.5 A registration statement under the Securities Act of 1933, as amended,
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 Fund being offered for sale.
6. WIRE TRANSFER OPERATING GUIDELINES
6.1 The Transfer Agent is authorized to promptly debit the appropriate Fund
bank account(s) upon the receipt of a payment order in compliance with
the selected security procedure (the "Security Procedure") chosen for
funds transfer and in the amount of money that the Transfer Agent has
been instructed to transfer. The Transfer Agent shall execute payment
orders in compliance with the Security Procedure and with the Fund
instructions on the execution date, provided that such payment order is
received by the customary deadline for processing such a request, unless
the payment order specifies a later time. All payment orders and
communications received after this the customary deadline will be deemed
to have been received the next business day.
6.2 The Fund acknowledges that the Security Procedure it has designated on
the Transfer Agent's Wire Transfer Security Procedures Customer Selection
Form (the form of which is attached hereto as Schedule 6.2) was selected
by the Fund from security procedures offered by the Transfer Agent. The
Fund shall restrict access to confidential information relating to the
Security Procedure to authorized persons as communicated to the Transfer
Agent in writing. The Fund shall notify the Transfer Agent immediately if
it has reason to believe unauthorized persons may have obtained access to
such information or of any change in the Fund's authorized personnel. The
Transfer Agent shall verify the authenticity of all Fund instructions
according to the Security Procedure.
6.3 The Transfer Agent shall process all payment orders on the basis of the
account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the
account number, the account number shall take precedence and govern.
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6.4 The Transfer Agent reserves the right to decline to process or delay
the processing of a payment order (a) which is in excess of the collected
balance in the account to be charged at the time of the Transfer Agent's
receipt of such payment order; (b) if initiating such payment order would
cause the Transfer Agent, in the Transfer Agent's sole judgement, to
exceed any volume, aggregate dollar, network, time, credit or similar
limits that are applicable to the Transfer Agent or any of its
sub-agents; or (c) if the Transfer Agent, in good faith, is unable to
satisfy itself that the transaction has been properly authorized.
6.5 The Transfer Agent shall use reasonable efforts to act on all
authorized requests to cancel or amend payment orders received in
compliance with the Security Procedure, provided that such requests are
received in a timely manner affording the Transfer Agent reasonable
opportunity to act. However, the Transfer Agent assumes no liability if
the request for amendment or cancellation cannot be satisfied.
6.6 The Transfer Agent shall assume no responsibility for failure to detect
any erroneous payment order, provided that the Transfer Agent complies
with the payment order instructions as received and the Transfer Agent
complies with the Security Procedure. The Security Procedure is
established for the purpose of authenticating payment orders only and not
for the detection of errors in payment orders.
6.7 The Transfer Agent shall assume no responsibility for lost interest
with respect to the refundable amount of any unauthorized payment order.
In no event (including failure to execute a payment order) shall the
Transfer Agent be liable for special, indirect, or consequential damages,
even if advised of the possibility of such damages.
6.8 When the Fund initiates or receives Automated Clearing House ("ACH")
credit and debit entries pursuant to these guidelines and the rules of
the National Automated Clearing House Association and the New England
Clearing House Association, the Transfer Agent or its sub-agent will act
as an "Originating Depository Financial Institution" and/or "Receiving
Depository Financial Institution," as the case may be, with respect to
such entries. Credits given by the Transfer Agent or its sub-agent with
respect to an ACH credit entry are provisional until the Transfer Agent
or its sub-agent receives final settlement for such entry from the
Federal Reserve Bank. If the Transfer Agent or its sub-agent does not
receive such final settlement, the Fund agrees that the Transfer Agent
shall receive a refund of the amount credited to the Fund in connection
with such entry, and the party making payment to the Fund via such entry
shall not be deemed to have paid the amount of the entry.
6.9 Confirmation of the Transfer Agent's execution of payment orders shall
ordinarily be provided within twenty-four (24) hours, notice of which may
be delivered through the Transfer Agent's or its sub-agent's proprietary
information systems, or by facsimile or call-back. The Fund must notify
the Transfer Agent of any objections to the execution of an order within
thirty (30) days.
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7. DATA ACCESS AND PROPRIETARY INFORMATION
7.1 The Fund acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent or its sub-agent as
part of the Fund's ability to access certain Fund-related data ("Customer
Data") maintained by the Transfer Agent on databases under the control
and ownership of the Transfer Agent or its sub-agent ("Data Access
Services") constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial
value to the Transfer Agent or its sub-agent. In no event shall
Proprietary Information be deemed Customer Data. The Fund agrees to treat
all Proprietary Information as proprietary to the Transfer Agent or its
sub-agent and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be provided
hereunder. Without limiting the foregoing, the Fund agrees for itself and
its employees and agents to:
(a) use such programs and databases (i) solely on the Fund's computers,
or (ii) solely from equipment at the locations agreed to between the Fund
and the Transfer Agent, and (iii) solely in accordance with the Transfer
Agent's or its sub-agent's applicable user documentation;
(b) refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Fund's computer(s)) the
Proprietary Information;
(c) refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and, if such access is inadvertently obtained,
to inform the Transfer Agent in a timely manner of such fact and dispose
of such information in accordance with the Transfer Agent's instructions;
(d) refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Fund's terminal to be retransmitted to
any other computer terminal or other device except as expressly permitted
by the Transfer Agent;
(e) allow the Fund to have access only to those authorized transactions
as agreed to between the Fund and the Transfer Agent; and
(f) honor all reasonable written requests made by the Transfer Agent to
protect at the Transfer Agent's or its sub-agent's expense the rights of
the Transfer Agent or its subagent in Proprietary Information at common
law, under federal copyright law and under other federal or state law.
7.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that (a) are or become publicly available without
breach of this Agreement; (b) are released for general disclosure by a
written release by the Transfer Agent or its sub-agent;
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or (c) are already in the possession of the receiving party at the time
or receipt without obligation of confidentiality or breach of this
Agreement.
7.3 The Fund acknowledges that its obligation to protect the Transfer
Agent's and its subagent's Proprietary Information is essential to the
business interest of the Transfer Agent and that the disclosure of such
Proprietary Information in breach of this Agreement would cause the
Transfer Agent or its sub-agent immediate, substantial, and irreparable
harm, the value of which would be extremely difficult to determine.
Accordingly, the parties agree that, in addition to any other remedies
that may be available at law, in equity or otherwise for the disclosure
or use of the Proprietary Information in breach of this Agreement, the
Transfer Agent or its sub-agent shall be entitled to seek and obtain a
temporary restraining order, injunctive relief, or other equitable relief
against the continuance of such breach.
7.4 If the Fund notifies the Transfer Agent that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall
endeavor in a timely manner to correct such failure. Organizations from
which the Transfer Agent or its sub-agent may obtain certain data
included in the Data Access Services are solely responsible for the
contents of such data, and the Fund agrees to make no claim against the
Transfer Agent or its sub-agent arising out of the contents of such
third-party data, including, but not limited to, the accuracy thereof.
DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. THE TRANSFER AGENT AND ITS SUB-AGENTS EXPRESSLY DISCLAIM
ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
7.5 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent or its sub-agent
in order to (a) effect the transfer or movement of cash or Shares; or (b)
transmit Shareholder information or other information, then in such event
the Transfer Agent and its sub-agent shall be entitled to rely on the
validity and authenticity of such instruction without undertaking any
further inquiry as long as such instruction is undertaken in conformity
with security procedures established by the Transfer Agent or its
sub-agent from time to time.
7.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this SECTION 7. The obligations of the Fund
under this Section shall survive any termination of this Agreement.
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8. CONFIDENTIALITY
8.1 Subject to the provisions of SECTION 8.2 hereof, the Transfer Agent and
the Fund agree that they will not, at any time during the term of this
Agreement or after its termination, reveal, divulge or make known to any
person, firm, corporation, or other business organization any information
regarding shareholders of the Fund or their accounts with the Fund,
customers' lists, trade secrets, cost figures and projections, profit
figures and projections or any other secret or confidential information
whatsoever, whether of the Transfer Agent or its sub-agent or of the
Fund, used or gained by the Transfer Agent or its sub-agent or the Fund
during performance under this Agreement. The Fund and the Transfer Agent
further covenant and agree to retain all such knowledge and information
acquired during and after the term of this Agreement respecting such
lists, trade secrets, or any secret or confidential information
whatsoever in trust for the sole benefit of the Transfer Agent or its
sub-agent or the Fund and their successors and assigns. In the event of
breach of the foregoing, the remedies provided by SECTION 7.3 shall be
available to the party whose confidential information is disclosed. The
above prohibition of disclosure shall not apply to the extent that the
Transfer Agent must disclose such data to its sub-agent or to agents or
representatives of the Fund for purposes of providing services under this
Agreement, provided that they have agreed to maintain the confidentiality
of such information.
8.2 In the event that any requests or demands are made for the inspection
of the Shareholder records of the Fund, other than request for records of
Shareholders pursuant to subpoenas from state or federal government
authorities, the Transfer Agent will endeavor to notify the Fund and to
secure instructions from an authorized officer of the Fund as to such
inspection. The Transfer Agent expressly reserves, for itself and its
sub-agents, the right, however, to exhibit the Shareholder records to any
person whenever it is advised by counsel that it may be held liable for
the failure to exhibit the Shareholder records to such person or if
required by law or court order.
9. INDEMNIFICATION
9.1 The Transfer Agent shall not be responsible for, and the Fund shall
indemnify and hold the Transfer Agent harmless from and against, any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(a) all actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such
actions are taken in good faith and without negligence or willful
misconduct;
(b) the Fund's (or its trustees', officers' or employees') lack of good
faith, negligence, or willful misconduct;
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(c) the Transfer Agent's (and its sub-agent's) reliance upon, and any
subsequent use of or action taken or omitted by the Transfer Agent (or
its sub-agents) based on (i) any information. records, documents, data,
stock certificates, or services that are received by the Transfer Agent
or its agents or subcontractors by machine readable input, facsimile, CRT
data entry, electronic instructions, or other similar means authorized by
the Fund, and that have been prepared, maintained, or performed by the
Fund or any other person or firm on behalf of the Fund, including, but
not limited to, any previous transfer agent or registrar; (ii) any
instructions or requests of the Fund or any of its officers; (iii) any
instructions or opinions of reputable legal counsel with respect to any
matter arising in connection with the services to be performed by the
Transfer Agent under this Agreement that are provided to the Transfer
Agent after consultation with such legal counsel; or (iv) any paper or
document, reasonably believed to be genuine, authentic or signed by the
proper person or persons;
(d) the offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be registered
or in violation of any stop order or other determination or ruling by any
federal or any state agency with respect to the offer or sale of such
Shares, unless such violation of state securities law was directly
attributable to the Transfer Agent's negligence, bad faith, or willful
misconduct (with respect to this SECTION 9.1(d), in addition to
indemnifying and holding harmless the Transfer Agent, the Fund shall
also indemnify and hold harmless the Transfer Agent's agents and
sub-contractors);
(e) the negotiation and processing of any checks, including, without
limitation, for deposit into any bank account of the Fund; or
(f) the Transfer Agent's entering into any agreements required by the
National Securities Clearing Corporation ("NSCC") for the transmission of
Fund or Shareholder data through the NSCC clearing systems.
9.2 The Fund shall not be responsible for, and the Transfer Agent shall
indemnify and hold the Fund harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments, expenses, and
liabilities arising out of or attributable to (a) any actions or
omissions of the Transfer Agent as a result of the Transfer Agent's lack
of good faith, negligence, or willful misconduct; or (b) the Transfer
Agent's breach of its representations and warranties under SECTION 4.6
hereof, PROVIDED, HOWEVER, that if, pursuant to SECTION 4.6(b) hereof,
the Transfer Agent pursues a claim against the Sub-Transfer Agent for a
Xxxx X0X Loss and, with respect to all or a portion of such claim, the
Sub-Transfer Agent successfully asserts a defense that all or a portion
of such Fund Y2K Loss resulted from the acts or omissions of the Fund
prior to September 1, 1999, the Fund shall bear all legal costs and
expenses associated with the Transfer Agent's unsuccessful pursuit of
such Fund Y2K Loss.
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9.3 In order that the indemnification provisions contained in this SECTION 9
shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion and shall keep the
other party advised with respect to all developments concerning such
claim. The party who may be required to indemnify hereunder shall have
the option with counsel selected by it to participate with the party
seeking indemnification in the defense of such claim or to defend against
said claim in its own name or in the name of the other party. 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
shall not be unreasonably withheld).
10. STANDARD OF CARE
10.1 The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to insure the accuracy of
all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors
unless such errors are caused by its negligence, bad faith, or willful
misconduct or that of its employees, except as provided in SECTION 10.2
below. The parties agree that any encoding or payment processing errors
and the liability arising under SECTION 4-209 of the Uniform Commercial
Code shall be governed by this SECTION 10.1.
10.2 In the case of Exception Services as defined in SECTION 2.3 herein, the
Transfer Agent shall be held to a standard of gross negligence.
11. INFORMATION TO BE FURNISHED BY THE FUND
11.1 The Fund shall promptly furnish to the Transfer Agent the following:
(a) a certified copy of the resolution of the Board of Trustees of the
Fund authorizing the appointment of the Transfer Agent and the execution
and delivery of this Agreement;
(b) a copy of the Declaration of Trust and By-Laws of the Fund and all
amendments thereto;
(c) a list of all officers of the Fund, together with specimen
signatures of those officers, who are authorized to instruct the Transfer
Agent in all matters; and
(d) two copies of the following:
1. all of its current Prospectuses and Statements of Additional
Information; and
2. all other forms commonly used by the Fund with regard to its
relationships and transactions with Shareholders of the Fund.
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12. RECORDKEEPING
12.1 The Transfer Agent hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund 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.
12.2 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in such form and manner as it may deem advisable. To
the extent required by Section 31 of the Investment Company Act of 1940,
as amended, and the Rules thereunder, the Transfer Agent agrees that all
such records prepared or maintained by the Transfer Agent relating to the
services to be performed by the Transfer Agent hereunder are the property
of the Fund and will be preserved, maintained, and made available in
accordance with such Section and Rules, and will be surrendered promptly
to the Fund on and in accordance with its request.
13. TERMINATION OF AGREEMENT
13.1 This Agreement may be terminated by either party upon one hundred twenty
(120) days' written notice to the other.
13.2 Should the Fund exercise its right to terminate this Agreement, all
out-of-pocket expenses associated with the movement of records and
material will be borne by the Fund. Additionally, the Transfer Agent
reserves the right to charge for any other reasonable expenses associated
with such termination. Payment of such expenses or costs shall be in
accordance with SECTION 3.4 of this Agreement.
13.3 Upon termination of this Agreement, each party shall return to the
other party all copies of confidential or proprietary materials or
information received from such other party hereunder, other than
materials or information required to be retained by such party under
applicable laws or regulations. In addition, the Transfer Agent shall
promptly provide to the Fund or a successor transfer agent all records
and information required to be maintained by the Transfer Agent
hereunder. To the extent reasonably possible, the Transfer Agent shall
deliver such records and information in machine readable form.
13.4 Upon the resignation by the Transfer Agent or any of its agents or
sub-contractors or their affiliates as custodian of a Retirement Account,
the Transfer Agent shall promptly return to the Fund and shall require
its agents or sub-contractors to promptly return to the Fund all Fund and
Fund Shareholder records and information held or maintained by such party
in its capacity as Retirement Account custodian. To the extent reasonably
possible, such records and information shall be delivered to the Fund in
machine readable form.
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14. ASSIGNMENT AND THIRD PARTY BENEFICIARIES
14.1 Except as provided in SECTION 15.1 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party. Any attempt to do so in
violation of this Section shall be void. Unless specifically stated to
the contrary in any written consent to an assignment, no assignment will
release or discharge the assignor from any duty or responsibility under
this Agreement.
14.2 Except as explicitly stated elsewhere in this Agreement, nothing under
this Agreement shall be construed to give any rights or benefits under
this Agreement to anyone other than the Transfer Agent and the Fund, and
the duties and responsibilities undertaken pursuant to this Agreement
shall be for the sole and exclusive benefit of the Transfer Agent and the
Fund. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
14.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Fund.
15. SUBCONTRACTORS
15.1 The Transfer Agent may, without further consent on the part of the
Fund, engage subcontractors to perform any of the obligations of the
Transfer Agent under this Agreement; provided, however, that the Transfer
Agent shall be fully responsible to the Fund for the acts and omissions
of the subcontractor as it is for its own acts and omissions.
15.2 Except as otherwise provided in SECTION 15.1, nothing herein shall
impose any duty upon the Transfer Agent in connection with or make the
Transfer Agent liable for the actions or omissions to act of unaffiliated
third parties, such as, by way of example and not limitation, Airborne
Services, Federal Express, United Parcel Service, the U.S. Mails, NSCC,
and telecommunication companies, provided, if the Transfer Agent selected
such company, the Transfer Agent shall have exercised due care in
selecting the same.
16. MISCELLANEOUS
16.1 RELATIONSHIP OF PARTIES. The parties agree that they are independent
contractors and not partners or co-venturers, and nothing contained
herein shall be interpreted or construed otherwise.
16.2 AMENDMENT. This Agreement may be amended or modified by a written
agreement executed by both parties.
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16.3 MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
16.4 FORCE MAJEURE. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond
its control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes.
16.5 CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be liable
to the other party for consequential damages under any provision of this
Agreement or for any consequential damages arising out of any act or
failure to act hereunder.
16.6 SURVIVAL. All provisions regarding indemnification, warranty, liability,
and limits thereon and confidentiality and/or protections of proprietary
rights and trade secrets shall survive the termination of this Agreement.
16.7 SEVERABILITY. If any provision or provisions of this Agreement shall be
held invalid, unlawful or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
16.8 PRIORITIES CLAUSE. In the event of any conflict, discrepancy, or
ambiguity between the terms and conditions contained in this Agreement
and any schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
16.9 WAIVER. No waiver by either party or any breach or default of any of the
covenants or conditions herein contained and performed by the other party
shall be construed as a waiver of any succeeding breach of the same or of
any other covenant or condition.
16.10 MERGER OF AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
16.11 COUNTERPARTS. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
16.12 REPRODUCTION OF DOCUMENTS. This Agreement and all schedules, exhibits,
attachments, and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic, or other
similar process. The parties hereto each agree that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence
and whether or not such reproduction was made by a party in the regular
course of business,
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and that any enlargement, facsimile, or further reproduction shall
likewise be admissible in evidence.
16.13 YEAR 2000. The Transfer Agent will take all commercially reasonable
steps to ensure that its products (and those of its third party
providers) reflect the available technology to offer products that are
Year 2000 Ready. For purposes of this Agreement, "Year 2000 Ready" or
"Year 2000 Readiness" means that the products will operate with dates in
multiple centuries in the same way as the products operate as with dates
in single centuries, including, but not limited to, century recognition
of dates and calculations that correctly compute same century and
multi-century formulas and date values.
In a commercially reasonable time frame, the Transfer Agent will make any
necessary changes to its proprietary computer systems for such systems to
be Year 2000 Ready and will take all commercially reasonable steps to
require its third party providers to do likewise. If any such changes are
required to the Transfer Agent's computer systems due to Year 2000
Readiness issues, such changes being solely with respect to the Transfer
Agent's computer systems, the Fund will not be required to pay any fee or
out-of-pocket expenses to the Transfer Agent with respect to such
changes. Subject to the foregoing, if other changes are required to the
Transfer Agent's computer systems or its third party providers' computer
systems due to Year 2000 Readiness issues, and the Transfer Agent incurs
any costs related to such changes, the resultant fee to be charged to the
Fund, if appropriate, will be reasonable and in an amount to be mutually
agreed upon by the parties hereto; PROVIDED, HOWEVER, to the extent that
such changes are not unique to the Fund, the fee that may be charged to
the Fund will be based upon the Fund's pro-rata share of such costs
across the Transfer Agent's entire client base.
16.14 NOTICES. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a) If to Nvest Services Company, Inc., to:
Nvest Services Company, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
With a copy to: General Counsel
Facsimile: (000) 000-0000
(b) If to the Fund, to:
Xxxxxx Associates Investment Trust
Xxx Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
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17. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of Shares in
addition to those named on the attached Schedule A with respect to which
it desires to have the Transfer Agent render services as transfer agent
under the terms hereof, it shall so notify the Transfer Agent in writing,
and, if the Transfer Agent agrees in writing to provide such services,
such series of Shares shall become a Portfolio hereunder.
18. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
A copy of the Fund's Declaration of Trust is on file with the Secretary
of The Commonwealth of Massachusetts, and notice is hereby given that
this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument
are not binding upon any of the Trustees or Shareholders individually,
but are binding only upon the assets and property of the Fund.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXXXX ASSOCIATES INVESTMENT TRUST
BY: /s/ Xxxxxx X. Xxxx
----------------------------------
(Hereunto Duly Authorized)
ATTEST:
-----------------------------------
NVEST SERVICES COMPANY, INC.
BY: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxxxxxx X. Xxxxxx, President
ATTEST:
/s/ [ILLEGIBLE]
-----------------------------------
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