030387-2
TRANSFER AGENCY AND SERVICE AGREEMENT
between
XXXX XXXXX INCOME TRUST, INC.
and
STATE STREET BANK AND TRUST COMPANY
SA2 5/86
WP0052c
TABLE OF CONTENTS
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Page
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Article 1 Terms of Appointment; Duties of the Bank.........................2
Article 2 Fees and Expenses................................................5
Article 3 Representations and Warranties of the Bank.......................6
Article 4 Representations and Warranties of the Fund.......................7
Article 5 Indemnification..................................................7
Article 6 Covenants of the Fund and the Bank..............................ll
Article 7 Termination of Agreement........................................13
Article 8 Additional Funds................................................13
Article 9 Assignment......................................................14
Article 10 Amendment.......................................................14
Article 11 Massachusetts Law to Apply......................................15
Article 12 Merger of Agreement.............................................15
Article 13 Miscellaneous...................................................15
TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
AGREEMENT made as of the 19th day of June 1987, by and between XXXX
XXXXX INCOME TRUST, INC., a Maryland corporation, having its principal office
and place of business at 0 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the
"Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
having its principal office and place of business at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
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; and
WHEREAS, the Fund intends to initially offer Shares in two series, the
Xxxx Xxxxx Investment Grade Income Portfolio and Xxxx Xxxxx U.S. Government
Intermediate-Term Portfolio (such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Article 8, being herein referred to, as a Portfolio, and
collectively as the "Portfolios);
WHEREAS, the Fund, on behalf of the Portfolios desires to appoint the
Bank as its transfer agent, dividend disbursing agent and agent in connection
with certain other activities, and the Bank desires to accept such appointment;
WHEREAS, Xxxx Xxxxx Xxxx Xxxxxx, Incorporated ("Xxxx Xxxxx") may
provide certain Shareholder and Record-Keeping Services (collectively
"Shareholder and Record-Keeping Services") in connection with the Portfolios and
such Shareholder and Record-Keeping Services shall be separate and distinct from
services provided by the Bank and the Fund shall indemnify and hold the Bank
harmless for the acts and omissions of Xxxx Xxxxx.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of the Bank
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1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund, on behalf of the Portfolios, hereby employs and appoints
the Bank to act as, and the Bank agrees to act as its transfer agent for the
authorized and issued shares of beneficial interest of the Fund representing
interests in each of the respective Portfolios ("Shares"), dividend disbursing
agent and agent in connection with any accumulation, open-account or similar
plans provided to the Shareholders of each of the respective Portfolios of the
Fund ("Shareholders") and set out in the currently effective Prospectuses and
Statement of Additional Information ("Prospectuses") of the Fund on behalf of
the applicable Portfolio, including without limitation any periodic investment
plan or periodic withdrawal program.
1.02 The Bank agrees that it will perform the following
services:
(a) In accordance with the Prospectuses and procedures
established from time to time by agreement between the Fund on behalf of each of
the Portfolios, as applicable, and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefor to the Custodian of the Fund
(the "Custodian);
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(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the
appropriate Shareholder account;
(iii) Receive for acceptance, redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian;
(iv) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to
any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed
directly or indirectly by the redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of -the
applicable Portfolio; and
(vii) Maintain records of account for and advise the Fund
and its Shareholders as to the foregoing; and
(viii) Record the issuance of Shares and maintain pursuant
to Rule 17Ad-10(e) under the Securities Exchange Act
of 1934 a record of the total number of Shares which
are authorized, based upon data provided to it by the
Fund, and issued and outstanding. Bank shall also
provide the Fund on a regular basis with the total
number of Shares which are authorized and issued and
outstanding
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and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such
Shares or to take cognizance of any laws relating to
the issue or sale of such Shares, which functions
shall be the sole responsibility of the Fund.
(b) In addition to and not in lieu of the services set forth
in the above paragraph (a), the Bank shall: (i) perform the customary services
of a transfer agent, dividend disbursing agent and, as relevant, agent in
connection with accumulation, open account or similar plans (including without
limitation any periodic investment plan or periodic withdrawal program);
including but not limited to: maintaining all Shareholder accounts, preparing
Shareholder record date lists for special meetings and for mailings to
Shareholders; addressing and mailing proxies, receiving and tabulating proxies,
and doing all other things necessary in connection with proxy solicitation,
addressing and mailing Shareholder reports, prospectuses and other materials to
current Shareholders; withholding, and paying to the appropriate federal and
state authorities, taxes on U.S. resident and non-resident alien accounts;
preparing, filing and mailing to Shareholders U.S. Treasury Department Forms
1099 and other appropriate forms required with respect to dividends and
distributions by federal and state authorities for all registered Shareholders;
preparing and mailing purchase and sale confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and mailing
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activity statements for Shareholders, providing Shareholder account information
and (ii) provide a system which will enable the Fund to monitor the total number
of Shares sold in each State.
(c) The Fund shall (i) identify to the Bank in writing those
transactions and assets to be treated as exempt from blue sky reporting for each
State and (ii) verify the establishment of transactions for each State on the
system prior to activation and thereafter monitor the daily activity for each
State. The responsibility of the Bank for 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 the reporting of such transactions to the
Fund as provided above.
(d) In reference to services set forth above, the Bank shall
not provide some of the customary duties of a transfer agent which shall consist
of Shareholder and Record-Keeping Services provided by Xxxx Xxxxx, which include
preparing and mailing purchase and sale confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, and preparing and mailing
activity statements for Shareholders.
Procedures applicable to certain of these services described
in paragraphs (a) and (b) and (c) may be established from time to time by
agreement between the Fund and the Bank and shall be subject to the review and
approval of the Fund. The failure of the Fund to establish such procedures with
respect to any service shall not in any way diminish the duty and obligations of
the Bank to perform such service hereunder.
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Article 2 Fees and Expenses
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2.01 For the performance by the Bank pursuant to this
Agreement, the Fund agrees on behalf of each of the Portfolios, to pay the Bank
an annual maintenance fee for each Shareholder account as set out in the initial
fee schedule attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 2.02 below may be changed from time to time subject to
mutual written agreement between the Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the
Fund agrees on behalf of the Portfolios, to reimburse the Bank for out-of-pocket
expenses or advances incurred by the Bank for the items set out in the fee
schedule attached hereto. In addition, any other expenses incurred by the Bank
at the request or with the consent of the Fund which are not properly borne by
the Bank as part of its duties and obligations under this Agreement will be
reimbursed by the Fund on behalf of the applicable Portfolio. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
Shareholder accounts shall be advanced to the Bank by the Fund at least seven
(7) days prior to the mailing date of such materials.
Article 3 Representations and Warranties of the Bank
------------------------------------------
The Bank represents and warrants to the Fund that:
3.01 It is a trust company duly organized and existing and in
good standing under the laws of The Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in The
Commonwealth of Massachusetts.
3.03 It is empowered under applicable laws and by its charter
and by-laws to enter into and perform this Agreement.
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3.04 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
Article 4 Representations and Warranties of the Fund
------------------------------------------
The Fund represents and warrants to the Bank that;
4.01 It is a Maryland corporation duly organized and existing
and in good standing under the laws of Maryland.
4.02 It is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.04 It is an open-end and diversified investment company
registered under the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933
and the Investment Company Act of 1940 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 being offered for sale.
Article 5 Indemnification
---------------
5.01 The Bank shall not be responsible for, and the Fund shall
on behalf of the applicable Portfolio, indemnify and hold the Bank harmless from
and against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to:
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(a) All actions of the Bank or its agent or subcontractors
required to be taken pursuant to this Agreement, provided such actions are taken
in good faith and without negligence or willful misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct or which arise out of the breach of any representation or warranty of
the Fund hereunder.
(c) The reliance on or use by the Bank or its agents or
subcontractors on information, records and documents which (i) are received by
the Bank or its agents or subcontractors and furnished to it by or on behalf of
the Fund, and (ii) have been prepared and/or maintained by the Fund or any other
person or firm on behalf of the Fund.
(d) The reliance on, or the carrying out by the Bank or its
agents or subcontractors of any instructions or requests of the Fund on behalf
of the applicable Portfolio. "Written Instructions" means written instructions
delivered by mail, tested telegram-cable, telex or facsimile sending device and
received by the Bank, or its agent or subcontractors, signed by authorized
persons.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such state or
in violation of any stop order or other determination or ruling by any federal
agency or any state with respect to the offer or sale of such Shares in such
state.
5.02 The Fund shall not be responsible for, and the Bank shall
indemnify and hold the Fund harmless from and against
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any and all losses, damages, and any and all reasonable cost, charges, counsel
fees, payments, expenses and liability arising out of or attributed to any
action or failure or omission to act by the Bank as a result of the lack of good
faith, negligence or willful misconduct of the Bank or any of its agents or
subcontractors referred to in Article 9.03 (i) and (ii) or which arise out of
the breach of any representation or warranty of the Bank hereunder.
5.03 At any time the Bank may apply to any authorized officer
of the Fund for instructions, and may consult with experienced securities
counsel with respect to any matter arising in connection with the services to be
performed by the Bank under this Agreement, and the Bank and its agents and
subcontractors shall not be liable and shall be indemnified by the Fund on
behalf of the applicable Portfolio for any action taken or omitted by it in good
faith in reliance upon such instructions or upon the opinion of such counsel
that such actions or omissions comply with the terms of this Agreement or with
all applicable laws. The Bank, its agents and subcontractors shall be protected
and indemnified in acting upon any paper or document furnished by or on behalf
of the Fund, reasonably believed by the Bank to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided the Bank or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means authorized
by the Fund, and shall not be held to have notice of any change. of authority of
any person, until receipt of written notice thereof from the Fund. The Bank, its
agents and
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subcontractors shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Fund, and the proper
countersignature of any former transfer agent or registrar, or of a co-transfer
agent or co-registrar.
5.04 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. In addition, the Bank shall make reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available, and the Bank shall further use
reasonable care to minimize the likelihood of such damage, loss of data, delays
and/or errors and should such damage, loss of data, delays and/or errors occur,
the Bank shall use its best efforts to mitigate the effects of such occurrence.
5.05 Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this Agreement or
for any act or failure to act hereunder.
5.06 In order that the indemnification provisions contained in
this Article 5 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.
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The party who may be required to indemnify shall have the option to participate
with the party seeking indemnification in the defense of such claim. 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.
Article 6 Covenants of the Fund and the Bank
----------------------------------
6.01 The Fund shall, on behalf of the Portfolios promptly
furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of
Directors of the Fund authorizing the appointment of the Bank and the execution
and delivery of this Agreement.
(b) A copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
6.02 The Bank 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.
6.03 The Bank shall keep records relating to the services to
be performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Coopany Act of 1940, as amended,
and the Rules thereunder, the Bank agrees that all such records prepared or
maintained by the Bank relating to the services to be performed by the Bank
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such
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Section and Rules, and will be surrendered to the Fund on and in accordance with
its request.
6.04 The Bank and the Fund agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
6.05 In case of any requests or demands for the inspection of
the Shareholder records of the Fund, the Bank will endeavor to notify the Fund
and to secure instructions from an authorized officer of the Fund as to such
inspection. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it i8 advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
Article 7 Termination of Agreement
------------------------
7.01 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
7.02 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Portfolio to which such expenses relate. Additionally, the Bank
reserves the right to charge for any other reasonable expenses associated with
such termination. In the event that the Corporation designates a successor to
any of the Bank's obligations hereunder, the Bank shall, at the expense and
direction of each Fund, transfer to such successor a certified list of the
Shareholders of such Fund,
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a complete record of the account of each Shareholder, and all other relevant
books, records and other data established or maintained by the Bank hereunder.
Article 8 Additional Funds
----------------
8.01 In the event that the Fund establishes one or more series
of Shares in addition to Xxxx Xxxxx Investment Grade Income Portfolio and Xxxx
Xxxxx U.S. Government Intermediate-Term Portfolio with respect to which it
desires to have the Bank render services as transfer agent under the terms
hereof, it shall 90 notify the Bank in writing, and if the Bank agrees in
writing to provide such services, such series of Shares shall become a Portfolio
hereunder.
Article 9 Assignment
----------
9.01 Except as provided in Section 9.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by the Bank
without the written consent of the other party.
9.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
9.03 The Bank may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered as
a transfer agent pursuant to Section 17A(c)(l) of the Securities Exchange Act of
1934 ("Section 17A(c)(l)"), (ii) a BFDS subsidiary duly registered as a transfer
agent pursuant to Section 17A(c)(l), (iii) a BFDS affiliate or (iv) Xxxx Xxxxx,
for the performance of Shareholder
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and Record-Keeping Services described herein; provided, however that the Bank
shall be as fully responsible to the Fund for the acts and omissions of any
subcontractor as it is for its own acts and omissions except for Xxxx Xxxxx
where the Fund shall indemnify and hold the Bank harmless for the act and
omissions of Xxxx Xxxxx.
Article 10 Amendment
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10.01 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Directors of the Fund.
Article 11 Massachusetts Law to Apply
--------------------------
11.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 12 Merger of Agreement
-------------------
12.01 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.
Article 13 Miscellaneous
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13.01 The Fund authorizes the Bank to provide Xxxx Xxxxx any
information it provides or makes available to the Fund in connection with this
Agreement.
13.02 The Bank agrees to treat all records and other
information relative to the Fund and its prior, present or potential
Shareholders confidentially and the Bank on behalf of itself and its employees
agrees to keep confidential all such information, except after prior
notification to and approval in writing by the Fund, which approval shall not be
unreasonably
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withheld and may not be withheld where the Bank may be exposed to civil or
criminal contempt proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, or when so requested by the
Fund.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf under their seals by
and through their duly authorized officers, as of the day and year first above
written.
XXXX XXXXX INCOME TRUST, INC.
/s/ Xxxxx X. Xxxxxxxxx
BY: ____________________________________
ATTEST:
/s/ C. Xxxxxxx Xxxxxxxx
BY:________________________________
STATE STREET BANK AND TRUST COMPANY
/s/ X.X. Xxxxxx, Xx.
BY:______________________________________
Vice President
ATTEST:
/s/ X. Xxxxxxx
BY:__________________________
Assistant Secretary
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