SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 16th day of December, 1996 by and among Xxxxxx
Xxxxxxx Asset Management Inc., a Delaware corporation ("MSAM"), ACESS
INVESTOR SERVICES, INC., a Delaware corporation ("ACCESS") and Xxxxxx Xxxxxxx
Fund, Inc., a Maryland corporation.
RECITAL:
WHEREAS, the Xxxxxx Xxxxxxx Fund, Inc. is registered as an open-end,
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act") which has issued shares of several series
(collectively, the "Funds", and individually, a "Fund"); and
WHEREAS, MSAM is responsible for the provision of certain transfer
agent, fund accounting and administration services to the Funds pursuant to
the Agreement between MSAM and the Funds dated as of November 17, 1992, as
amended (the "MSAM Administration Agreement"); and
WHEREAS, MSAM wishes to retain ACCESS to provide sub-transfer agent
services with respect to the Funds, and ACCESS is willing to furnish such
services;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE 1. TERMS OF APPOINTMENT; DUTIES OF ACCESS.
1.01 Subject to the terms and conditions set forth in this Agreement,
MSAM hereby employs and appoints ACCESS as sub-transfer agent, dividend
disbursing agent and shareholder service agent for each of the Funds;
provided, however, that ACCESS shall not perform such duties with respect to
shareholders of Xxxxxx Xxxxxxx Money Market Fund that are participants in
"PCS Program" (as used hereafter the terms "Funds" and "Fund" shall be deemed
to exclude such shareholders).
1.02 ACCESS hereby accepts such employment and appointments and agrees
that on and after the effective dated of this Agreement it will act as the
sub-transfer agent, dividend
disbursing agent and shareholder service agent for each of the Funds on the
terms and conditions set forth herein.
1.03 ACCESS agrees that its duties and obligations hereunder will be
performed in a competent, efficient and workmanlike manner with due diligence
in accordance with reasonable industry practice, and that the necessary
facilities, equipment and personnel for such performance will be provided.
1.04 In order to assure compliance with section 1.03 and to implement
a cooperative effort to improve the quality of sub-transfer agency and
shareholder services received by each of the Funds and its shareholders,
ACCESS agrees to provide and maintain quantitative performance objectives,
including maximum target turn-around times and maximum target error rates,
for the various services provided hereunder. ACCESS also agree to provide a
reporting system designed to provide MSAM and the Board of Directors of the
Funds (the "Board") on a quarterly basis with quantitative data comparing
actual performance for the period with the performance objectives. The
foregoing procedures are designed to provide a basis for continuing
monitoring by MSAM and the Board of the quality of services rendered
hereunder.
ARTICLE 2. FEES AND EXPENSES.
2.01 For the services to be performed by ACCESS pursuant to this
Agreement, MSAM agrees to pay ACCESS the fees provided in the fee schedules
agreed upon from time to time by MSAM and ACCESS.
2.02 In addition to the amounts paid under section 2.01 above, each of
the Funds agree to reimburse ACCESS promptly for reasonable out-of-pocket
expenses or advances paid on the Fund's behalf by ACCESS in connection with
its performance under this Agreement for postage, freight, envelopes, checks,
drafts, continuous forms, reports and statements, telephone, telegraph, costs
of outside mailing firms, necessary outside record storage costs, media for
storage of records (e.g., microfilm, microfiche and computer tapes) and
printing costs incurred due to special requirements of such Fund. In
addition, any other special out-of-pocket expenses paid by ACCESS at the
specific request of any of the Funds will be promptly reimbursed by the
requesting Fund. Postage for mailings of dividends, proxies, Fund reports
and other mailings to all shareholder accounts shall be advances to ACCESS by
the respective Fund three business days prior to the mailing date of such
materials.
2
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF ACCESS.
ACCESS represents and warrants to MSAM and the Funds that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
3.02 It is duly registered as a transfer agent under The Securities
Exchange Act of 1934.
3.03 It is duly qualified to carry on its business in the states of
Texas and Missouri.
3.04 It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement.
3.05 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.06 It has and will continue to have during the term of this
Agreement access to the necessary facilities, equipment and personnel to
perform its duties and obligations hereunder.
3.07 It will maintain a system regarding "as of" transactions as
follows:
(a) Each "as of" transaction effected at a price other than that
in effect on the day of processing for which an estimate has not been given
to any of the affected Funds and which is necessitated by ACCESS' error, or
delay for which ACCESS is responsible or which could have been avoided
through the exercise of reasonable care, will be identified, and the net
effect of such transactions deemed, on a daily basis for each such Fund.
(b) The cumulative effect of the transactions included in
paragraph (a) above will be determined each day throughout each month. If,
on any day during the month, the cumulative net effect upon any Fund is
negative and exceeds an amount equivalent to 1/2 of 1 cent per share of such
Fund, ACCESS shall promptly make a payment to such Fund (in cash or through
use of a credit as described in paragraph (c) below) in such amount as
necessary to reduce the negative cumulative net effect to less than 1/2 of 1
cent per share of such Fund. If on the last business day of the month the
cumulative net effect (adjusted by the amount of any payments pursuant to the
preceding sentence) upon any Fund is negative, ACCESS shall promptly make a
payment to
3
such Fund (in cash or through use of a credit as described in paragraph (c)
below) of an equivalent amount. If on the last business day of the month the
cumulative net effect (similarly adjusted) upon any Fund is positive, ACCESS
shall be entitled to recover certain past payments and to a credit against
all future payments made under this paragraph to such Fund, as described in
paragraph (c) below.
(c) At the end of each month, any positive cumulative net effect
upon any Fund shall be deemed to be a credit to ACCESS which shall first be
applied to recover from that Fund any payments made by ACCESS to such Fund
under paragraph (b) above during the year. Any portion of a credit to ACCESS
not so used shall remain as a credit to be used as payment against the amount
of any future negative cumulative net effects that would otherwise require a
payment to such Fund pursuant to paragraph (b) above.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF MSAM.
MSAM hereby represents and warrants on behalf or itself and the
Fund that:
4.01 MSAM is duly organized and in good standing under the laws of the
State of Delaware.
4.02 The Funds are duly organized and existing and in good standing
under the laws of the State of Maryland.
4.03 The Funds are series of an open-end, management investment
company registered under the Investment Company Act of 1940, as amended.
4.04 MSAM is empowered under applicable laws and regulations and by
its Articles of Incorporation and by-laws to enter into and perform this
Agreement.
4.05 All requisite proceedings have been taken by MSAM's and the
Funds' Boards to authorize MSAM to enter into and perform this Agreement.
4.06 A registration statement under the Securities Act of 1933, as
amended, is currently effective and will remain effective, and appropriate
state securities laws filings have been made and will continue to be made,
with respect to all Fund shares being offered for sale.
4
ARTICLE 5. INDEMNIFICATION.
5.01 ACCESS shall not be responsible for and MSAM shall indemnify and
hold ACCESS harmless from and against any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and liabilities arising
out of or attributable to:
(a) All actions of ACCESS required to be taken by ACCESS for the
benefit of such Fund pursuant to this Agreement, provided ACCESS has acted in
good faith with due diligence and without negligence or willful misconduct.
(b) The reasonable reliance by ACCESS on, or reasonable use by
ACCESS for the benefit of a Fund of, information, records and documents which
have been prepared or maintained by or on behalf of such Fund or have been
furnished to ACCESS by or on behalf of such Fund.
(c) The reasonable reliance by ACCESS on, or the carrying out by
ACCESS for the benefit of a Fund of, any instructions or requests of such
Fund.
(d) The offer or sale of such Fund's shares in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any 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 unless such
violation results from any failure by ACCESS to comply with written
instructions of such Fund that no offers or sales of such Fund's shares be
made in general or to the residents of a particular state.
(e) Such Fund's refusal or failure to comply with the terms of
this Agreement, or such Fund's lack of good faith, negligence or willful
misconduct or the breach of any representative or warranty of such Fund
hereunder.
5.02 ACCESS shall indemnify and hold MSAM and each of the Funds
harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributable to ACCESS' refusal or failure to comply with the terms of this
Agreement, or ACCESS' lack of good faith, negligence or willful misconduct,
or the breach of any representation or warranty of ACCESS hereunder.
5.03 At any time ACCESS may apply to any authorized officer of any of
the Funds for instructions, and may consult with any of the Funds' legal
counsel, at the expense of such
5
concerned Fund, with respect to any matter arising in connection with the
services to be performed by ACCESS under this Agreement, and ACCESS shall not
be liable and shall be indemnified by such concerned Fund for any action
taken or omitted by it in good faith in reasonable reliance upon such
instructions or upon the opinion of such counsel. ACCESS shall be protected
and indemnified in acting upon any paper or document reasonably believed by
ACCESS to be genuine and to have been signed by the proper person or persons
and shall not be held to have notice of any change of authority of any
person, until receipt of written notice from the concerned Fund. ACCESS
shall also be protected and indemnified in recognizing stock certificates
which ACCESS reasonably believes to bear the proper manual or facsimile
signatures of the officers of the concerned 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 any 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, 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.
5.05 In no event and under no circumstances shall any party to this
Agreement be liable to another party for consequential damages under any
provision of this Agreement or for ant 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 one party may
be required to indemnify another, 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 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
comprise 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 MSAM AND ACCESS.
6.01 MSAM shall promptly furnish to ACCESS the following:
(a) Certified copies of the resolution of the Funds' Board
authorizing the appointment of ACCESS and the execution and delivery of this
Agreement.
6
(b) Certified copies of the Funds' Articles of Incorporation and
by-laws and all amendments thereto.
6.02 ACCESS hereby agrees to maintain facilities and procedures
reasonably acceptable to MSAM and the Funds 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.
6.03 ACCESS shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable;
provided, however, that all accounts, books and other records of each of the
Funds (hereinafter referred to as "Fund Records") prepared or maintained by
ACCESS hereunder shall be maintained and kept current in compliance with
Section 31 of the Investment Company Act of 1940 and the Rules thereunder
(such Section and Rules being hereinafter referred to as the "1940 Act
Requirements"). To the extent required by the 1940 Act Requirements, ACCESS
agrees that all Fund Records prepared or maintained by ACCESS hereunder are
the property of the concerned Fund and shall be perserved and made available
in accordance with the 1940 Act Requirements, and shall be surrendered
promptly to the concerned Fund on its request. ACCESS agrees at such
reasonable times as may be requested by the Board and at least quarterly to
provide (i) written confirmation to the Board that all Fund Records are
maintained and kept current in accordance with the 1940 Act Requirements, and
(ii) such other reports regarding its performance hereunder as may be
reasonably requested by the Board.
6.04 ACCESS and each of the Funds 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 any of
the Fund Records, ACCESS will endeavor to notify each of the concerned Funds
and to secure instructions from an authorized officer of each of the
concerned Funds as to such inspection. ACCESS reserves the right, however,
to exhibit such Fund Records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit such Fund
records to such person.
7
ARTICLE 7. TERM AND TERMINATION OF AGREEMENT.
7.01 This Agreement shall remain in effect until terminated by a party
with respect to that party for good and reasonable cause at any time by
giving written notice to the other party at least 120 days prior to the date
on which such termination is to be effective. Any unpaid fees or
reimbursable expenses payable to ACCESS shall be due on any such termination
date. ACCESS agrees to use its best effort to cooperate with each of the
Funds and the successor sub-transfer agent or agents in accomplishing an
orderly transition.
ARTICLE 8. MISCELLANEOUS.
8.01 Except as provided in section 8.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by any party without
the written consent of ACCESS or MSAM, as the case may be; provided, however,
that no consent shall be required for any merger of any of the Fund with, or
any sale of all or substantially all the assets of any of the Funds to,
another investment company.
8.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
8.03 ACCESS may, without further consent on the part of MSAM or any of
the Funds, subcontract with DST, Inc., a Missouri corporation, or any other
qualified servicer, for the performance of data processing activities;
provided, however, that ACCESS shall be as fully responsible to MSAM and each
of the Funds for the acts and omissions of DST, Inc., or other qualified
servicer as it is for its own acts and omissions.
8.04 ACCESS may, without further consent on the part of MSAM or any of
the Funds, provide services to its affiliated companies. Such services may
be provided at cost.
8.05 This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes any
prior agreement with respect thereto, whether oral or written, and this
Agreement may not be modified except by written instrument executed by the
affected parties.
8.06 In the event of a change in the business or regulatory
environment affecting all or any portion of this Agreement, the parties
hereto agree to renegotiate such affected portions in good faith.
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf and through their duly authorized
officers, as of the date first above written.
XXXXXX XXXXXXX ASSET
MANAGEMENT INC.
BY:
-------------------------
NAME:
-----------------------
ITS:
------------------------
ATTEST:
---------------------
XXXXXX XXXXXXX FUND, INC.
BY:
-------------------------
NAME:
-----------------------
ITS:
------------------------
ATTEST:
---------------------
ACCESS INVESTOR SERVICE, INC.
BY:
-------------------------
NAME:
-----------------------
ITS:
------------------------
ATTEST:
---------------------
9
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf and through their duly authorized officers,
as of the date first above written.
XXXXXX XXXXXXX ASSET
MANAGEMENT INC.
BY:
-------------------------
NAME:
-----------------------
ITS:
------------------------
ATTEST:
---------------------
XXXXXX XXXXXXX FUND, INC.
BY:
-------------------------
NAME:
-----------------------
ITS:
------------------------
ACCESS INVESTOR SERVICE, INC.
BY:
----------------------------
NAME: Xxxx X. Xxxxxxxxxx
--------------------------
ITS: President, Chief Executive Officer
and Director
-----------------------------------
ATTEST:
---------------------
10
PRICING SCHEDULE
PRICE PER ACCOUNT PLUS OUT OF POCKETS
Xxx Xxxxxx Global Equity Allocation Fund $23.38
Xxx Xxxxxx Asian Growth Fund 23.38
Xxx Xxxxxx American Value Fund 23.38
Xxx Xxxxxx Latin American Fund 23.38
Xxx Xxxxxx Emerging Markets Fund 23.38
Xxx Xxxxxx Aggressive Equity Fund 23.38
Xxx Xxxxxx U.S. Real Estate Fund 23.38
Xxx Xxxxxx International Magnum Fund 23.38
Xxx Xxxxxx Global Equity Fund 23.38
Xxx Xxxxxx Equity Growth Fund 23.38
Xxx Xxxxxx Emerging Markets Debt Fund 26.22
Xxx Xxxxxx Global Fixed Income 26.22
Xxx Xxxxxx Worldwide High Income 26.22
Xxx Xxxxxx High Yield Fund 26.22
Xxxxxx Xxxxxxx Money Market Fund 28.94
Xxxxxx Xxxxxxx Government Obligations 28.94
Money Market Fund
Xxx Xxxxxx Global Franchise Fund 23.38
*Add $1.00 for Class B or Class C Surcharge
11
