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EX 9(a)(3)
AGENCY AGREEMENT
AGREEMENT dated the 6th day of May, 1998, by and between XXXXXX SECURITIES
TRUST, a Massachusetts business trust ("Fund"), and XXXXXX SERVICE COMPANY, a
Delaware corporation ("Service Company").
WHEREAS, Fund wants to appoint Service Company as Transfer Agent and
Dividend Disbursing Agent, and Service Company 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. In connection with the
appointment of Service Company as Transfer Agent and Dividend Disbursing
Agent for Fund, there will be filed with Service Company the following
documents:
A. A certified copy of the resolutions of the Board of Trustees of Fund
appointing Service Company 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 nonassessable.
2. Certain Representations and Warranties of Service Company. Service
Company represents and warrants to Fund that:
A. It is a corporation duly organized and existing and in good standing
under the laws of the State of Delaware.
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 Certificate of
Incorporation and Bylaws to enter into and perform the services
contemplated in this Agreement.
D. All requisite corporate action has 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.
3. Certain Representations and Warranties of Fund. Fund represents and
warrants to Service Company 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.
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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.
A. Subject to the conditions set forth in this Agreement, Fund hereby
employs and appoints Service Company as Transfer Agent and Dividend
Disbursing Agent effective the date hereof.
B. Service Company hereby accepts such employment and appointment and
agrees that it will act as Fund's Transfer Agent and Dividend
Disbursing Agent. Service Company 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. Service Company 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 Service
Company in Kansas City, Missouri, as soon as they are available, all
its shareholder account records.
E. Subject to the provisions of Sections 20 and 21 hereof, Service
Company 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
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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.
A. In consideration for the services provided hereunder by Service
Company as Transfer Agent and Dividend Disbursing Agent, Fund will
pay to Service Company 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 Service Company. The initial
agreement regarding compensation is attached as Exhibit A.
B. Fund agrees to promptly reimburse Service Company for all reasonable
out-of-pocket expenses or advances incurred by Service Company 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 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. Service Company 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 Service Company System.
A. In connection with the performance of its services under this
Agreement, Service Company is
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responsible for the accurate and efficient functioning of its system
at all times, including:
(1) The accuracy of the entries in Service Company's records
reflecting purchase and redemption orders and other instructions
received by Service Company 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 Service
Company'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 transactions, all in conformance with Service Company's
present procedures with such changes as may be deemed reasonably
appropriate by Service Company 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 Service Company, at a secure distant location, in form
available and usable forthwith in the event of any breakdown or
disaster disrupting its main operation.
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7. Indemnification.
A. Fund shall indemnify and hold Service Company 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 Service Company
pursuant to this Agreement or in connection with the agency
relationship created by this Agreement, provided that Service Company
has acted in good faith, without negligence and without willful
misconduct.
B. Service Company 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 Service Company
pursuant to this Agreement or in connection with the agency
relationship created by this Agreement, provided that Service Company
has not acted in good faith, without negligence and without willful
misconduct.
C. In order that the indemnification provisions contained 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 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 Service Company and Fund.
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
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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
Service Company.
B. Service Company 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, Service
Company 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 Service Company 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 thereunder, Service Company agrees that all records
maintained by Service Company relating to the services to be
performed by Service Company under this Agreement are the property of
Fund and will be preserved and will be surrendered promptly to Fund
on request.
D. Service Company 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 Service Company's certified public accountants.
E. Service Company 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
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reasonable efforts to continue to modernize and improve its system
without additional cost to Fund.
F. Service Company will permit Fund and its authorized representatives
to make periodic inspections of its operations at reasonable times
during business hours.
G. If Service Company 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 Service Company, 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 Service Company 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 Service Company will use all
reasonable efforts to assist Fund to obtain alternate sources of
service. Service Company 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 Service Company'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 Service Company.
9. Adjustment.
In case of any recapitalization, readjustment or other change in the
structure of Fund requiring a change in the form of share certificates,
Service Company 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.
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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.
Fund will furnish Service Company with a sufficient supply of blank share
certificates and from time to time will renew such supply upon the request
of Service Company. 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.
11. Death, Resignation or Removal of Signing Officer.
Fund will file promptly with Service Company 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, Service Company may issue or register such
share certificates as the share certificates of Fund
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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 Service Company such approval,
adoption, or ratification as may be required by law.
12. Future Amendments of Agreement and Declaration of Trust and Bylaws.
Fund will promptly file with Service Company 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.
At any time Service Company 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. Service Company 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. Service Company 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 Service Company 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. Service Company will also be protected in
recognizing share certificates that it reasonably 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.
The acceptance by Service Company 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 Service Company, which approval will
not be unreasonably withheld.
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15. Certification of Documents.
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 Service Company.
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.
Service Company 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 Certificates.
Service Company 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
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 Service Company (which
consent will not be unreasonably withheld), but will be safely stored for
possible future reference.
18. Provisions Relating to Service Company as Transfer Agent.
A. Service Company 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
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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
Service Company with sufficient funds to pay any taxes required on the
original issue of the shares. Fund will furnish Service Company such
evidence as may be required by Service Company to show the actual value
of the shares. If no taxes are payable, Service Company 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 Service Company
properly endorsed for transfer or redemption accompanied by such
documents as Service Company 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. Service Company 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. Service Company 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 to make transfers
or redemptions which, in its judgment, are improper, unauthorized, or
otherwise not rightful. Service Company 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, Service Company
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 Service
Company.
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E. Service Company 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 instructions from any officer of Fund and such other documents
as Service Company deems necessary.
F. Service Company will issue, transfer, and split-up certificates
upon receiving written instructions from an officer of Fund and such
other documents as Service Company may deem necessary.
G. Service Company may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken, upon receiving indemnity satisfactory to Service
Company, 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
Service Company has notice.
H. Service Company will supply a shareholder's list to Fund properly
certified by an officer of Service Company 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, Service
Company will address and mail notices to shareholders.
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 Service
Company, Service Company will endeavor to notify Fund and to secure
instructions as to permitting or refusing such inspection. Service
Company 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.
A. Service Company will, at the expense of Fund, provide a special form
of check containing the
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imprint of any device or other matter desired by Fund. Said checks
must, however, be of a form and size convenient for use by
Service Company.
B. If Fund wants to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be furnished
to Service Company 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 Service
Company but the size and form of said envelopes will be subject to
the approval of Service Company. 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. Service Company will maintain one or more deposit accounts as Agent
for Fund, into which the funds for payment of dividends, distributions,
redemptions or other disbursements provided for hereunder will be
deposited, and against which checks will be drawn.
20. Termination of Agreement.
A. This Agreement may be terminated by either party upon sixty (60) days
prior written notice to the other party.
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 Service Company
or its assigns which materially interferes with the business
operation of Fund.
(2) The bankruptcy of Service Company or its assigns or the
appointment of a receiver for Service Company or its assigns.
(3) Any merger, consolidation or sale of substantially all the
assets of Service Company or its assigns.
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(4) The acquisition of a controlling interest in Service Company or its
assigns, by any broker, dealer, investment adviser or investment
company except as may presently exist.
(5) Failure by Service Company 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 Service Company 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 Service Company all
amounts due to Service Company hereunder. Upon termination of this
Agreement, Service Company shall deliver all shareholder and account
records pertaining to Fund either to Fund or as directed in writing by
Fund.
21. Assignment.
A. Neither this Agreement nor any rights or obligations hereunder may be
assigned by Service Company without the written consent of Fund;
provided, however, no assignment will relieve Service Company 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.
C. Service Company is authorized by Fund to use the system services of DST
Systems, Inc. and the system and other services, including data entry,
of Administrative Management Group, Inc.
22. Confidentiality.
A. Except as provided in the last sentence of Section 18.J hereof, or as
otherwise required by law, Service Company will keep confidential all
records of and information in its possession relating to Fund or its
shareholders or shareholder accounts
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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 Service
Company) and all manuals, systems and other technical information and
data, not publicly disclosed, relating to Service Company's operations
and programs furnished to it by Service Company pursuant to this
Agreement and will not disclose the same to any person except at the
request or with the consent of Service Company. 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 Service Company prompt
notice thereof prior to disclosure or production so that Service
Company may, at its expense, resist such attempt.
23. Survival of Representations and Warranties.
All representations and warranties by either party herein contained will
survive the execution and delivery of this Agreement.
24. Miscellaneous.
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
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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 Service Company for recovery of that
portion of the compensation and expenses (or any other liability of
Fund arising hereunder) allocated to a particular Portfolio, whether in
accordance with the express terms hereof or otherwise, Service Company
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.
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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 SECURITIES TRUST, on behalf of
Xxxxxx Small Cap Relative Value Fund ATTEST:
By:
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Xxxx X. Xxxxxx Title:
President
XXXXXX SERVICE COMPANY ATTEST:
By:
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Title: TITLE:
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EXHIBIT B
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.
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