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EXHIBIT-99.B9(a)
AGENCY AGREEMENT
AGREEMENT dated the 1st day of January, 1989, by and between
XXXXXX TOTAL RETURN FUND, a Massachusetts business trust having
its principal place of business at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, XX 00000 ("Fund"), and INVESTORS FIDUCIARY TRUST
COMPANY, a state chartered trust company organized and existing
under the laws of the State of Missouri having its principal
place of business at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000 ("IFTC").
WHEREAS, Fund wants to appoint IFTC as Transfer Agent and
Dividend Disbursing Agent, and IFTC wants to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
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In connection with the appointment of IFTC as Transfer
Agent and Dividend Disbursing Agent for Fund, there
will be filed with IFTC the following documents:
A. A certified copy of the resolutions of the Board
of Trustees of Fund appointing IFTC as Transfer
Agent and Dividend Disbursing Agent, approving the
form of this Agreement, and designating certain
persons to give written instructions and requests
on behalf of Fund.
B. A certified copy of the Agreement and Declaration
of Trust of Fund and any amendments thereto.
C. A certified copy of the Bylaws of Fund.
D. Copies of Registration Statements filed with the
Securities and Exchange Commission.
E. Specimens of all forms of outstanding share
certificates as approved by the Board of Trustees
of Fund, with a certificate of the Secretary of
Fund as to such approval.
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F. Specimens of the signatures of the officers of the
Fund authorized to sign share certificates and
individuals authorized to sign written
instructions and requests on behalf of the Fund.
G. An opinion of counsel for Fund:
(1) With respect to Fund's organization and
existence under the laws of The Commonwealth
of Massachusetts.
(2) With respect to the status of all shares of
Fund covered by this appointment under the
Securities Act of 1933, and any other
applicable federal or state statute.
(3) To the effect that all issued shares are, and
all unissued shares will be when issued,
validly issued, fully paid and non-
assessable.
2. Certain Representations and Warranties of IFTC. IFTC
represents and warrants to Fund that:
A. It is a trust company duly organized and existing
and in good standing under the laws of the State
of Missouri.
B. It is duly qualified to carry on its business in
the State of Missouri.
C. It is empowered under applicable laws and by its
Articles of Incorporation and Bylaws to enter into
and perform the services contemplated in this
Agreement.
D. All requisite corporate proceedings have been
taken to authorize it to enter into and perform
this Agreement.
E. It has and will continue to have and maintain the
necessary facilities, equipment and personnel to
perform its duties and obligations under this
Agreement.
F. It is, and will continue to be, registered as a
transfer agent under the Securities Exchange Act
of 1934.
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3. Certain Representations and Warranties of Fund. Fund
represents and warrants to IFTC that:
A. It is a business trust duly organized and existing
and in good standing under the laws of The
Commonwealth of Massachusetts.
B. It is an investment company registered under the
Investment Company Act of 1940.
C. A registration statement under the Securities Act
of 1933 has been filed and will be effective with
respect to all shares of Fund being offered for
sale at any time and from time to time.
D. All requisite steps have been or will be taken to
register Fund's shares for sale in all applicable
states, including the District of Columbia.
E. Fund and its Trustees are empowered under
applicable laws and by the Fund's Agreement and
Declaration of Trust and Bylaws to enter into and
perform this Agreement.
4. Scope of Appointment.
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A. Subject to the conditions set forth in this
Agreement, Fund hereby employs and appoints IFTC
as Transfer Agent and Dividend Disbursing Agent
effective the date hereof.
B. IFTC hereby accepts such employment and
appointment and agrees that it will act as Fund's
Transfer Agent and Dividend Disbursing Agent.
IFTC agrees that it will also act as agent in
connection with Fund's periodic withdrawal payment
accounts and other open-account or similar plans
for shareholders, if any.
C. IFTC agrees to provide the necessary facilities,
equipment and personnel to perform its duties and
obligations hereunder in accordance with industry
practice.
D. Fund agrees to use all reasonable efforts to
deliver to IFTC in Kansas City, Missouri, as soon
as they are available, all its shareholder account
records.
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E. Subject to the provisions of Sections 20 and 21
hereof, IFTC agrees that it will perform all the
usual and ordinary services of Transfer Agent and
Dividend Disbursing Agent and as agent for the
various shareholder accounts, including, without
limitation, the following: issuing, transferring
and cancelling share certificates, maintaining all
shareholder accounts, preparing shareholder
meeting lists, mailing proxies, receiving and
tabulating proxies, mailing shareholder reports
and prospectuses, withholding federal income
taxes, preparing and mailing checks for
disbursement of income and capital gains
dividends, preparing and filing all required U.S.
Treasury Department information returns for all
shareholders, preparing and mailing confirmation
forms to shareholders and dealers with respect to
all purchases and liquidations of Fund shares and
other transactions in shareholder accounts for
which confirmations are required, recording
reinvestments of dividends and distributions in
Fund shares, recording redemptions of Fund shares
and preparing and mailing checks for payments upon
redemption and for disbursements to systematic
withdrawal plan shareholders.
5. Compensation and Expenses.
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A. In consideration for the services provided
hereunder by IFTC as Transfer Agent and Dividend
Disbursing Agent, Fund will pay to IFTC from time
to time compensation as agreed upon for all
services rendered as Agent, and also, all its
reasonable out-of-pocket expenses and other
disbursements incurred in connection with the
agency. Such compensation will be set forth in a
separate schedule to be agreed to by Fund and
IFTC. The initial agreement regarding
compensation is attached as Exhibit A.
B. Fund agrees to promptly reimburse IFTC for all
reasonable out-of-pocket expenses or advances
incurred by IFTC in connection with the
performance of services under this Agreement
including, but not limited to, postage (and first
class mail insurance in connection with mailing
share certificates), envelopes, check forms,
continuous forms, forms for reports and
statements, stationery, and other similar items,
telephone and telegraph charges incurred in
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answering inquiries from dealers or shareholders,
microfilm used each year to record the previous
year's transactions in shareholder accounts and
computer tapes used for permanent storage of
records and cost of insertion of materials in
mailing envelopes by outside firms. IFTC may, at
its option, arrange to have various service
providers submit invoices directly to the Fund for
payment of out-of-pocket expenses reimbursable
hereunder.
6. Efficient Operation of IFTC System.
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A. In connection with the performance of its services
under this Agreement, IFTC is responsible for the
accurate and efficient functioning of its system
at all times, including:
(1) The accuracy of the entries in IFTC's records
reflecting purchase and redemption orders and
other instructions received by IFTC from
dealers, shareholders, Fund or its principal
underwriter.
(2) The timely availability and the accuracy of
shareholder lists, shareholder account
verifications, confirmations and other
shareholder account information to be
produced from IFTC's records or data.
(3) The accurate and timely issuance of dividend
and distribution checks in accordance with
instructions received from Fund.
(4) The accuracy of redemption transactions and
payments in accordance with redemption
instructions received from dealers,
shareholders or Fund or other authorized
persons.
(5) The deposit daily in Fund's appropriate
special bank account of all checks and
payments received from dealers or
shareholders for investment in shares.
(6) The requiring of proper forms of
instructions, signatures and signature
guarantees and any necessary documents
supporting the rightfulness of transfers,
redemptions and other shareholder account
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transactions, all in conformance with IFTC's
present procedures with such changes as may
be deemed reasonably appropriate by IFTC or
as may be reasonably approved by or on behalf
of Fund.
(7) The maintenance of a current duplicate set of
Fund's essential or required records, as
agreed upon from time to time by Fund and
IFTC, at a secure distant location, in form
available and usable forthwith in the event
of any breakdown or disaster disrupting its
main operation.
7. Indemnification.
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A. Fund shall indemnify and hold IFTC harmless from
and against any and all claims, actions, suits,
losses, damages, costs, charges, counsel fees,
payments, expenses and liabilities arising out of
or attributable to any action or omission by IFTC
pursuant to this Agreement or in connection with
the agency relationship created by this Agreement,
provided that IFTC has acted in good faith,
without negligence and without willful misconduct.
B. IFTC shall indemnify and hold Fund harmless from
and against any and all claims, actions, suits,
losses, damages, costs, charges, counsel fees,
payments, expenses and liabilities arising out of
or attributable to any action or omission by IFTC
pursuant to this Agreement or in connection with
the agency relationship created by this Agreement,
provided that IFTC has not acted in good faith,
without negligence and without willful misconduct.
C. In order that the indemnification provisions
maintained in this Section 7 shall apply, upon the
assertion of a claim for which either party (the
"Indemnifying Party") may be required to provide
indemnification hereunder, the party seeking
indemnification (the "Indemnitee") shall promptly
notify the Indemnifying Party of such assertion,
and shall keep such party advised with respect to
all developments concerning such claim. The
Indemnifying Party shall be entitled to assume
control of the defense and the negotiations, if
any, regarding settlement of the claim. If the
Indemnifying Party assumes control, the Indemnitee
shall have the option to participate in the
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defense and negotiations of such claim at its own
expense. The Indemnitee shall in no event
confess, admit to, compromise, or settle any claim
for which the Indemnifying Party may be required
to indemnify it except with the prior written
consent of the Indemnifying Party, which shall not
be unreasonably withheld.
8. Certain Covenants of IFTC and Fund.
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A. All requisite steps will be taken by Fund from
time to time when and as necessary to register the
Fund's shares for sale in all states in which
Fund's shares shall at the time be offered for
sale and require registration. If at any time
Fund receives notice of any stop order or other
proceeding in any such state affecting such
registration or the sale of Fund's shares, or of
any stop order or other proceeding under the
Federal securities laws affecting the sale of
Fund's shares, Fund will give prompt notice
thereof to IFTC.
B. IFTC hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to
Fund for safekeeping of share certificates, check
forms, and facsimile signature imprinting devices,
if any; and for the preparation or use, and for
keeping account of, such certificates, forms and
devices. Further, IFTC agrees to carry insurance,
as specified in Exhibit B hereto, with insurers
reasonably acceptable to Fund and in minimum
amounts that are reasonably acceptable to Fund,
which will not be changed without the consent of
Fund, which consent shall not be unreasonably
withheld, and which will be expanded in coverage
or increased in amounts from time to time if and
when reasonably requested by Fund. If IFTC
determines that it is unable to obtain any such
insurance upon commercially reasonable terms, it
shall promptly so advise Fund in writing. In such
event, Fund shall have the right to terminate this
Agreement upon 30 days notice.
C. To the extent required by Section 31 of the
Investment Company Act of 1940 and Rules
hereunder, IFTC agrees that all records maintained
by IFTC relating to the services to be performed
by IFTC under this Agreement are the property of
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Fund and will be preserved and will be surrendered
promptly to Fund on request.
D. IFTC agrees to furnish Fund semi-annual reports of
its financial condition, consisting of a balance
sheet, earnings statement and any other reasonably
available financial information reasonably
requested by Fund. The annual financial
statements will be certified by IFTC's certified
public accountants.
E. IFTC represents and agrees that it will use all
reasonable efforts to keep current on the trends
of the investment company industry relating to
shareholder services and will use all reasonable
efforts to continue to modernize and improve its
system without additional cost to Fund.
F. IFTC will permit Fund and its authorized
representatives to make periodic inspections of
its operations at reasonable times during business
hours.
G. If IFTC is prevented from complying, either
totally or in part, with any of the terms or
provisions of this Agreement, by reason of fire,
flood, storm, strike, lockout or other labor
trouble, riot, war, rebellion, accidents, acts of
God, equipment, utility or transmission failure or
damage, and/or any other cause or casualty beyond
the reasonable control of IFTC, whether similar to
the foregoing matters or not, then upon written
notice to Fund, the requirements of this Agreement
that are affected by such disability, to the
extent so affected, shall be suspended during the
period of such disability; provided, however, that
IFTC shall make reasonable effort to remove such
disability as soon as possible. During such
period, Fund may seek alternate sources of service
without liability hereunder; and IFTC will use all
reasonable efforts to assist Fund to obtain
alternate sources of service. IFTC shall have no
liability to Fund for nonperformance because of
the reasons set forth in this Section 8.G; but if
a disability that, in Fund's reasonable belief,
materially affects IFTC's ability to perform its
obligations under this Agreement continues for a
period of 30 days, then Fund shall have the right
to terminate this Agreement upon 10 days written
notice to IFTC.
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9. Adjustment.
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In case of any recapitalization, readjustment or other
change in the structure of Fund requiring a change in
the form of share certificates, IFTC will issue or
register certificates in the new form in exchange for,
or in transfer of, the outstanding certificates in the
old form, upon receiving the following:
A. Written instructions from an officer of Fund.
B. Certified copy of any amendment to the Agreement
and Declaration of Trust or other document
effecting the change.
C. Certified copy of any order or consent of each
governmental or regulatory authority required by
law for the issuance of the shares in the new
form, and an opinion of counsel that no order or
consent of any other government or regulatory
authority is required.
D. Specimens of the new certificates in the form
approved by the Board of Trustees of Fund, with a
certificate of the Secretary of Fund as to such
approval.
E. Opinion of counsel for Fund:
(1) With respect to the status of the shares of
Fund in the new form under the Securities Act
of 1933, and any other applicable federal or
state laws.
(2) To the effect that the issued shares in the
new form are, and all unissued shares will be
when issued, validly issued, fully paid and
non-assessable.
10. Share Certificates.
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Fund will furnish IFTC with a sufficient supply of
blank share certificates and from time to time will
renew such supply upon the request of IFTC. Such
certificates will be signed manually or by facsimile
signatures of the officers of Fund authorized by law
and Fund's Bylaws to sign share certificates and, if
required, will bear the trust seal or facsimile
thereof.
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11. Death, Resignation or Removal of Signing Officer.
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Fund will file promptly with IFTC written notice of any
change in the officers authorized to sign share
certificates, written instructions or requests,
together with two signature cards bearing the specimen
signature of each newly authorized officer, all as
certified by an appropriate officer of the Fund. In
case any officer of Fund who will have signed manually
or whose facsimile signature will have been affixed to
blank share certificates will die, resign, or be
removed prior to the issuance of such certificates,
IFTC may issue or register such share certificates as
the share certificates of Fund notwithstanding such
death, resignation, or removal, until specifically
directed to the contrary by Fund in writing. In the
absence of such direction, Fund will file promptly with
IFTC such approval, adoption, or ratification as may be
required by law.
12. Future Amendments of Agreement and Declaration of Trust
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and Bylaws.
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Fund will promptly file with IFTC copies of all
material amendments to its Agreement and Declaration of
Trust and Bylaws and Registration Statement made after
the date of this Agreement.
13. Instructions, Opinion of Counsel and Signatures.
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At any time IFTC may apply to any officer of Fund for
instructions, and may consult with legal counsel for
Fund at the expense of Fund, or with its own legal
counsel at its own expense, with respect to any matter
arising in connection with the agency; and it will not
be liable for any action taken or omitted by it in good
faith in reliance upon such instructions or upon the
opinion of such counsel. IFTC is authorized to act on
the orders, directions or instructions of such persons
as the Board of Trustees of Fund shall from time to
time designate by resolution. IFTC will be protected
in acting upon any paper or document, including any
orders, directions or instructions, reasonably believed
by it to be genuine and to have been signed by the
proper person or persons; and IFTC will not be held to
have notice of any change of authority of any person so
authorized by Fund until receipt of written notice
thereof from Fund. IFTC will also be protected in
recognizing share certificates that it reasonably
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believes to bear the proper manual or facsimile
signatures of the officers of Fund, and the proper
countersignature of any former Transfer Agent or
Registrar, or of a Co-Transfer Agent or Co-Registrar.
14. Papers Subject to Approval of Counsel.
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The acceptance by IFTC of its appointment as Transfer
Agent and Dividend Disbursing Agent, and all documents
filed in connection with such appointment and
thereafter in connection with the agencies, will be
subject to the approval of legal counsel for IFTC,
which approval will not be unreasonably withheld.
15. Certification of Documents.
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The required copy of the Agreement and Declaration of
Trust of Fund and copies of all amendments thereto will
be certified by the appropriate official of The
Commonwealth of Massachusetts; and if such Agreement
and Declaration of Trust and amendments are required by
law to be also filed with a county, city or other
officer or official body, a certificate of such filing
will appear on the certified copy submitted to IFTC. A
copy of the order or consent of each governmental or
regulatory authority required by law for the issuance
of Fund shares will be certified by the Secretary or
Clerk of such governmental or regulatory authority,
under proper seal of such authority. The copy of the
Bylaws and copies of all amendments thereto and copies
of resolutions of the Board of Trustees of Fund will be
certified by the Secretary or an Assistant Secretary of
Fund.
16. Records.
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IFTC will maintain customary records in connection with
its agency, and particularly will maintain those
records required to be maintained pursuant to sub-
paragraph (2)(iv) of paragraph (b) of Rule 31a-1 under
the Investment Company Act of 1940, if any.
17. Disposition of Books, Records and Cancelled
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Certificates.
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IFTC will send periodically to Fund, or to where
designated by the Secretary or an Assistant Secretary
of Fund, all books, documents, and all records no
longer deemed needed for current purposes and share
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certificates which have been cancelled in transfer or
in exchange, upon the understanding that such books,
documents, records, and share certificates will not be
destroyed by Fund without the consent of IFTC (which
consent will not be unreasonably withheld), but will be
safely stored for possible future reference.
18. Provisions Relating to IFTC as Transfer Agent.
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A. IFTC will make original issues of share
certificates upon written request of an officer of
Fund and upon being furnished with a certified
copy of a resolution of the Board of Trustees
authorizing such original issue, an opinion of
counsel as outlined in Section 1.G or 9.E of this
Agreement, the certificates required by Section 10
of this Agreement and any other documents required
by Section 1 or 9 of this Agreement.
B. Before making any original issue of certificates,
Fund will furnish IFTC with sufficient funds to
pay any taxes required on the original issue of
the shares. Fund will furnish IFTC such evidence
as may be required by IFTC to show the actual
value of the shares. If no taxes are payable,
IFTC will upon request be furnished with an
opinion of outside counsel to that effect.
C. Shares will be transferred and new certificates
issued in transfer, or shares accepted for
redemption and funds remitted therefor, upon
surrender of the old certificates in form deemed
by IFTC properly endorsed for transfer or
redemption accompanied by such documents as IFTC
may deem necessary to evidence the authority of
the person making the transfer or redemption, and
bearing satisfactory evidence of the payment of
any applicable share transfer taxes. IFTC
reserves the right to refuse to transfer or redeem
shares until it is satisfied that the endorsement
or signature on the certificate or any other
document is valid and genuine, and for that
purpose it may require a guarantee of signature by
such persons as may from time to time be specified
in the prospectus related to such shares or
otherwise authorized by Fund. IFTC also reserves
the right to refuse to transfer or redeem shares
until it is satisfied that the requested transfer
or redemption is legally authorized, and it will
incur no liability for the refusal in good faith
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to make transfers or redemptions which, in its
judgment, are improper, unauthorized, or otherwise
not rightful. IFTC may, in effecting transfers or
redemptions, rely upon Simplification Acts or
other statutes which protect it and Fund in not
requiring complete fiduciary documentation.
D. When mail is used for delivery of share
certificates, IFTC will forward share certificates
in "nonnegotiable" form as provided by Fund by
first class mail, all such mail deliveries to be
covered while in transit to the addressee by
insurance arranged for by IFTC.
E. IFTC will issue and mail subscription warrants and
certificates provided by Fund and representing
share dividends, exchanges or split-ups, or act as
Conversion Agent upon receiving written instruc-
tions from any officer of Fund and such other
documents as IFTC deems necessary.
F. IFTC will issue, transfer, and split-up
certificates upon receiving written instructions
from an officer of Fund and such other documents
as IFTC may deem necessary.
G. IFTC may issue new certificates in place of
certificates represented to have been lost,
destroyed, stolen or otherwise wrongfully taken,
upon receiving indemnity satisfactory to IFTC, and
may issue new certificates in exchange for, and
upon surrender of, mutilated certificates. Any
such issuance shall be in accordance with the
provisions of law governing such matter and any
procedures adopted by the Board of Trustees of the
Fund of which IFTC has notice.
H. IFTC will supply a shareholder's list to Fund
properly certified by an officer of IFTC for any
shareholder meeting upon receiving a request from
an officer of Fund. It will also supply lists at
such other times as may be reasonably requested by
an officer of Fund.
I. Upon receipt of written instructions of an officer
of Fund, IFTC will address and mail notices to
shareholders.
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J. In case of any request or demand for the
inspection of the share books of Fund or any other
books of Fund in the possession of IFTC, IFTC will
endeavor to notify Fund and to secure instructions
as to permitting or refusing such inspection.
IFTC reserves the right, however, to exhibit the
share books or other books to any person in case
it is advised by its counsel that it may be held
responsible for the failure to exhibit the share
books or other books to such person.
19. Provisions Relating to Dividend Disbursing Agency.
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A. IFTC will, at the expense of Fund, provide a
special form of check containing the imprint of
any device or other matter desired by Fund. Said
checks must, however, be of a form and size
convenient for use by IFTC.
B. If Fund wants to include additional printed
matter, financial statements, etc., with the
dividend checks, the same will be furnished to
IFTC within a reasonable time prior to the date of
mailing of the dividend checks, at the expense of
Fund.
C. If Fund wants its distributions mailed in any
special form of envelopes, sufficient supply of
the same will be furnished to IFTC but the size
and form of said envelopes will be subject to the
approval of IFTC. If stamped envelopes are used,
they must be furnished by Fund; or, if postage
stamps are to be affixed to the envelopes, the
stamps or the cash necessary for such stamps must
be furnished by Fund.
D. IFTC will maintain one or more deposit accounts as
Agent for Fund, into which the funds for payment
of dividends, distributions, distributions,
redemptions or other disbursements provided for
hereunder will be deposited, and against which
checks will be drawn.
20. Termination of Agreement.
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A. This Agreement may be terminated by either party
upon sixty (60) days prior written notice to the
other party.
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B. Fund, in addition to any other rights and
remedies, shall have the right to terminate this
Agreement forthwith upon the occurrence at any
time of any of the following events:
(1) Any interruption or cessation of operations
by IFTC or its assigns which materially
interferes with the business operation of
Fund.
(2) The bankruptcy of IFTC or its assigns or the
appointment of a receiver for IFTC or its
assigns.
(3) Any merger, consolidation or sale of
substantially all the assets of IFTC or its
assigns.
(4) The acquisition of a controlling interest in
IFTC or its assigns, by any broker, dealer,
investment adviser or investment company
except as may presently exist.
(5) Failure by IFTC or its assigns to perform its
duties in accordance with this Agreement,
which failure materially adversely affects
the business operations of Fund and which
failure continues for thirty (30) days after
written notice from Fund.
(6) The registration of IFTC or its assigns as a
transfer agent under the Securities Exchange
Act of 1934 is revoked, terminated or
suspended for any reason.
C. In the event of termination, Fund will promptly
pay IFTC all amounts due to IFTC hereunder. Upon
termination of this Agreement, IFTC shall deliver
all shareholder and account records pertaining to
Fund either to Fund or as directed in writing by
Fund.
21. Assignment.
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A. Except for the assignment of responsibilities
pursuant to the Services Agreement ("Services
Agreement") between IFTC and Xxxxxx Service
Company ("KSVC"), which Fund has approved, neither
this Agreement nor any rights or obligations
hereunder may be assigned by IFTC without the
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written consent of Fund; provided, however, no
assignment will relieve IFTC of any of its
obligations hereunder.
B. This Agreement including, without limitation, the
provisions of Section 7 will inure to the benefit
of and be binding upon the parties and their
respective successors and assigns including KSVC
pursuant to the aforesaid Services Agreement.
C. KSVC is authorized by Fund to use the system
services of DST Systems, Inc.
22. Confidentiality.
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A. Except as provided in the last sentence of Section
18.J hereof, or as otherwise required by law, IFTC
will keep confidential all records of and
information in its possession relating to Fund or
its shareholders or shareholder accounts and will
not disclose the same to any person except at the
request or with the consent of Fund.
B. Except as otherwise required by law, Fund will
keep confidential all financial statements and
other financial records (other than statements and
records relating solely to Fund's business
dealings with IFTC) and all manuals, systems and
other technical information and data, not publicly
disclosed, relating to IFTC's operations and
programs furnished to it by IFTC pursuant to this
Agreement and will not disclose the same to any
person except at the request or with the consent
of IFTC. Notwithstanding anything to the contrary
in this Section 22.B, if an attempt is made
pursuant to subpoena or other legal process to
require Fund to disclose or produce any of the
aforementioned manuals, systems or other technical
information and data, Fund shall give IFTC prompt
notice thereof prior to disclosure or production
so that IFTC may, at its expense, resist such
attempt.
23. Survival of Representations and Warranties.
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All representations and warranties by either party
herein contained will survive the execution and
delivery of this Agreement.
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24. Miscellaneous.
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A. This Agreement is executed and delivered in the
State of Illinois and shall be governed by the
laws of said state (except as to Section 24.G
hereof which shall be governed by the laws of The
Commonwealth of Massachusetts).
B. No provisions of this Agreement may be amended or
modified in any manner except by a written
agreement properly authorized and executed by both
parties hereto.
C. The captions in this Agreement are included for
convenience of reference only, and in no way
define or limit any of the provisions hereof or
otherwise affect their construction or effect.
D. This Agreement shall become effective as of the
date hereof.
E. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be
deemed an original but all of which together shall
constitute one and the same instrument.
F. If any part, term or provision of this Agreement
is held by the courts to be illegal, in conflict
with any law or otherwise invalid, the remaining
portion or portions shall be considered severable
and not be affected, and the rights and
obligations of the parties shall be construed and
enforced as if the Agreement did not contain the
particular part, term or provision held to be
illegal or invalid.
G. All parties hereto are expressly put on notice of
Fund's Agreement and Declaration of Trust which is
on file with the Secretary of The Commonwealth of
Massachusetts, and the limitation of shareholder
and trustee liability contained therein. This
Agreement has been executed by and on behalf of
Fund by its representatives as such
representatives and not individually, and the
obligations of Fund hereunder are not binding upon
any of the Trustees, officers or shareholders of
the Fund individually but are binding upon only
the assets and property of Fund. With respect to
any claim by IFTC for recovery of that portion of
the compensation and expenses (or any other
-17-
18
liability of Fund arising hereunder) allocated to
a particular Portfolio, whether in accordance with
the express terms hereof or otherwise, IFTC shall
have recourse solely against the assets of that
Portfolio to satisfy such claim and shall have no
recourse against the assets of any other Portfolio
for such purpose.
H. This Agreement, together with the Fee Schedule, is
the entire contract between the parties relating
to the subject matter hereof and supersedes all
prior agreements between the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officer as of the
day and year first set forth above.
XXXXXX TOTAL RETURN FUND
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: President
-------------------------
ATTEST:
/s/ Xxxxxx X. Xxxxxxx
-------------------------
Title: Secretary
-----------------
INVESTORS FIDUCIARY TRUST COMPANY
By /s/ Xxxxx X. Xxxxx
------------------------------
Title: President
---------------------------
ATTEST:
/s/ Xxxxxx Xxxxxxx
--------------------------
Title: Assistant Secretary
-------------------
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19
EXHIBIT A
---------
FEE SCHEDULE
------------
Transfer Agency Function by Fund Fee Payable
-------------------------------- ------------
1. Maintenance of open shareholder $6.00 per year
account. account
2. Maintenance of closed shareholder $6.00 per year
account. account
3. Establishment of new shareholder $4.00 per new
account. account
4. Payment of dividend. $.25 per
dividend payment
per account
5. Dividend reinvestment from Xxxxxx $.50 per
Unit Investment Trusts. transaction
6. Process purchase or redemption of $1.00 per
shares transaction. transaction
7. All other shareholder account $1.00 per
transactions. transaction
The out-of-pocket expenses of IFTC will be reimbursed by Fund in
accordance with the provisions of paragraph 5 of the Agency
Agreement. All fees will be subject to offset by earnings
allowances under the Custody Agreement between Fund and IFTC.
20
EXHIBIT B
---------
IFTC INSURANCE COVERAGE
-----------------------
DESCRIPTION OF POLICY:
BROKERS BLANKET BOND, STANDARD FORM 14
Covering losses caused by dishonesty of employees, physical
loss of securities on or outside of premises while in
possession of authorized person, loss caused by forgery or
alteration of checks or similar instruments.
ERRORS AND OMISSIONS INSURANCE
Covering replacement of destroyed records and computer
errors and omissions.
SPECIAL FORGERY BOND
Covering losses through forgery or alteration of checks or
drafts of customers processed by insured but drawn on or
against them.
MAIL INSURANCE (APPLIES TO ALL FULL SERVICE OPERATIONS)
Provides indemnity for the following types of securities
lost in the mails:
Non-negotiable securities mailed to domestic locations
via registered mail.
Non-negotiable securities mailed to domestic locations
via first-class or certified mail.
Non-negotiable securities mailed to foreign locations
via registered mail.
Negotiable securities mailed to all locations via
registered mail.
