Exhibit 8 (a)
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of April, 1999 by and between THE FULCRUM
TRUST, a Massachusetts business trust (the "Company"), and INVESTORS BANK &
TRUST COMPANY, a Massachusetts trust company (the "Bank").
WHEREAS, the Company desires to appoint the Bank as its transfer agent and
dividend disbursing agent, and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Company is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Company offers shares in the series listed on Appendix A
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hereto (such series, together with all other series subsequently established by
the Company and made subject to this Agreement in accordance with Section 17,
being herein referred to as the "Fund(s)");
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
the Company and the Bank agree as follows:
1. Terms of Appointment; Duties of the Bank.
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1.1 Subject to the terms and conditions set forth in this Agreement, the
Company on behalf of the Funds hereby employs and appoints the Bank to act, and
the Bank agrees to act, as transfer agent for each of the Fund(s)' authorized
and issued shares of beneficial interest ("Shares"), dividend disbursing agent
and agent in connection with any accumulation, open-account or similar plans
provided to the shareholders of the Company ("Shareholders") and set out in the
currently effective prospectus and statement of additional information, as each
may be amended from time to time, (the "Prospectus") of the Company, including
without limitation any periodic investment plan or periodic withdrawal program.
1.2 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to time by
agreement between the Company and the Bank, the Bank shall:
(i) Receive for acceptance orders for the purchase of Shares
and promptly deliver payment and appropriate documentation therefor to the
custodian of the Company appointed by the Board of Trustees of the Company (the
"Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation therefor to the Custodian;
(iv) At the appropriate time and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or cause to be paid
over in the appropriate manner such monies as instructed by the redeeming
Shareholders;
(v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Company on behalf of a Fund;
(vii) Create and maintain all necessary records including those
specified in Article 10 hereof, in accordance with all applicable laws, rules
and regulations, including but not limited to records required by Section 31(a)
of the Investment Company Act of 1940, as amended (the "1940 Act"), and those
records pertaining to the various functions performed by it hereunder. All
records shall be available for inspection and use by the Company. Where
applicable, such records shall be maintained by the Bank for the periods and in
the places required by Rule 31a-2 under the 1940 Act;
(viii) Make available during regular business hours all records
and other data created and maintained pursuant to this Agreement for reasonable
audit and inspection by the Company, or any person retained by the Company. Upon
reasonable notice by the Company, the Bank shall make available during regular
business hours its facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the Company, or any
person retained by the Company;
(ix) At the expense of and at the request of the Company,
maintain an adequate supply of blank share certificates for each Fund providing
for the issuance of certificates to meet the Bank's requirements therefor. Such
share certificates shall be properly signed by facsimile. The Company agrees
that, notwithstanding the death, resignation, or removal of any officer of the
Company whose signature appears on such certificates, the Bank may continue to
countersign certificates which bear such signatures until otherwise directed by
the Company. Share certificates may be issued and accounted for entirely by the
Bank and do not require any third party registrar or other endorsing party;
(x) Issue replacement share certificates in lieu of
certificates which have been lost, stolen, mutilated or destroyed, without any
further action by the Board of Trustees or any officer of the Company, upon
receipt by the Bank of properly executed affidavits and lost certificate bonds,
in form satisfactory to the Bank with the Company and the Bank as obligees under
the bond. At the discretion of the Bank, and at its sole risk, the Bank may
issue replacement certificates without requiring the affidavits and lost
certificate bonds described above and the Company agrees to indemnify the Bank
against any and all losses or claims which may arise by reason of the issuance
of such new certificates in the place of the ones allegedly lost, stolen or
destroyed; and
(xi) Record the issuance of Shares of the Company and maintain,
pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of the total number of
Shares of the Company which are authorized, based upon data provided to it by
the Company, and issued and outstanding. The Bank shall also provide the Company
on a regular basis with the total number of Shares which are authorized and
issued and outstanding and shall have no obligation, when recording the issuance
of Shares, to monitor the issuance of such Shares or to take cognizance of any
laws relating to the issue or sale of such Shares, which functions shall be the
responsibility of the Company.
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(b) In addition to and not in lieu of the services set forth in the
above paragraph (a) or in any Schedule hereto, the Bank shall: (i) perform all
of the customary services of a transfer agent, dividend disbursing agent and, as
relevant, agent in connection with accumulation, open-account or similar plans
(including without limitation any periodic investment plan or periodic
withdrawal program); including but not limited to maintaining all Shareholder
accounts, preparing Shareholder meeting lists, mailing proxies, receiving and
tabulating proxies, mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes on all accounts, including nonresident alien
accounts, preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and mailing confirmation
forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, responding to Shareholder telephone calls and Shareholder
correspondence, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information; and (ii) if requested by the Company,
provide a system which will enable the Company to monitor the total number of
shares sold in each State. If the Company requests assistance with respect to
any state securities law issues (blue sky) or state-by-state tracking, the
Company shall (i) identify to the Bank in writing those transactions and assets
to be treated as exempt from blue sky reporting for each State and (ii) verify
the establishment of transactions for each State on the system prior to
activation and thereafter monitor the daily activity for each State. If the
Company requests assistance with respect to any state securities law issues
(blue sky) or state-by-state tracking, the responsibility of the Bank for a
Fund's blue sky registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by such Fund(s) and
the reporting of such transactions to the Fund(s) as provided above.
(c) Additionally, the Bank shall utilize a system to identify all
share transactions which involve purchase and redemption orders that are
processed at a time other than the time of the computation of net asset value
per share next computed after receipt of such orders, and shall compute the net
effect upon the Fund(s) of such transactions so identified on a daily and
cumulative basis.
2. Sale of Company Shares.
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2.1 Whenever the Company shall sell or cause to be sold any Shares of a
Fund, the Company shall deliver or cause to be delivered to the Bank a document
duly specifying: (i) the name of the Fund whose Shares were sold; (ii) the
number of Shares sold, trade date, and price; (iii) the amount of money to be
delivered to the Custodian for the sale of such Shares and specifically
allocated to such Fund; and (iv) in the case of a new account, a new account
application or sufficient information to establish an account.
2.2 The Bank will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Funds and drawn or
endorsed to the Bank as agent for, or identified as being for the account of,
one of the Funds, promptly deposit such check or other payment to the
appropriate account postings necessary to reflect the investment. The Bank will
notify the Company, or its designee, and the Custodian of all purchases and
related account adjustments.
2.3 Under procedures as established by mutual agreement between the
Company and the Bank, the Bank shall issue to the purchaser or its authorized
agent such Shares, computed to the nearest three decimal points, as he is
entitled to receive, based on the appropriate net asset value of the Funds'
Shares, determined in accordance with the prospectus and any applicable federal
law or regulation. In issuing Shares to a purchaser or its authorized agent, the
Bank shall be entitled to rely upon the latest
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directions, if any, previously received by the Bank from the purchaser or its
authorized agent concerning the delivery of such Shares.
2.4 The Bank shall not be required to issue any Shares of the Company
where it has received a written instruction from the Company or written
notification from any appropriate federal or state authority that the sale of
the Shares of the Fund(s) in question has been suspended or discontinued, and
the Bank shall be entitled to rely upon such written instructions or written
notification.
2.5 Upon the issuance of any Shares of any Fund(s) in accordance with
foregoing provisions of this Section, the Bank shall not be responsible for the
payment of any original issue or other taxes, if any, required to be paid by the
Company in connection with such issuance.
2.6 The Bank may, by written notice to the Company, establish such
additional rules and regulations governing the transfer or registration of
Shares as it may deem advisable and consistent with such rules and regulations
generally adopted by transfer agents, or with the written consent of the
Company, any other rules and regulations.
3. Returned Checks. In the event that any check or other order for the
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transfer of money is returned unpaid for any reason, the Bank will take such
steps as the Bank may, in its discretion, deem appropriate to protect the
Company from financial loss or as the Company or its designee may instruct.
Provided that the standard procedures, as agreed upon from time to time, between
the Company and the Bank, regarding purchases and redemptions of Shares, are
adhered to by the Bank, and absent any negligence, bad faith or willful
misconduct by the Bank, the Bank shall not be liable for any loss suffered by a
Fund as a result of returned or unpaid purchase or redemption transactions.
Reasonable legal or other expenses incurred to collect amounts owed to a Fund as
a consequence of returned or unpaid purchase or redemption transactions shall be
an expense of that Fund.
4. Redemptions. Shares of any Fund may be redeemed in accordance with the
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procedures set forth in the Prospectus of the Company and the Bank will duly
process all redemption requests.
5. Transfers and Exchanges. The Bank is authorized to review and process
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transfers of Shares of each Fund, exchanges between Funds on the records of the
Funds maintained by the Bank, and exchanges between the Company and any other
entity as may be permitted by the Prospectus of the Company. If Shares to be
transferred are represented by outstanding certificates, the Bank will, upon
surrender to it of the certificates in proper form for transfer, and upon
cancellation thereof, countersign and issue new certificates for a like number
of Shares and deliver the same. If the Shares to be transferred are not
represented by outstanding certificates, the Bank will, upon an order therefor
by or on behalf of the registered holder thereof in proper form, credit the same
to the transferee on its books. If Shares are to be exchanged for Shares of
another Fund, the Bank will process such exchange in the same manner as a
redemption and sale of Shares, except that it may in its discretion waive
requirements for information and documentation.
6. Right to Seek Assurances. The Bank reserves the right to refuse to
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transfer or redeem Shares until it is satisfied that the requested transfer or
redemption is legally authorized, and it shall incur no liability for the
refusal, absent any negligence, bad faith or willful misconduct by the Bank, to
make transfers or redemptions which the Bank, in its judgment, deems improper or
unauthorized, or until it is satisfied that there is no basis for any claims
adverse to such transfer or redemption. The Bank may, in effecting transfers,
rely upon the provisions of the Uniform Act for the Simplification of Fiduciary
Security Transfers or the Uniform Commercial Code, as the same may be amended
from time to time,
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which in the opinion of legal counsel for the Company or the Bank's own legal
counsel, do not require certain documents in connection with the transfer or
redemption of Shares of any Fund.
7. Distributions.
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7.1 The Company will promptly notify the Bank of the declaration of any
dividend or distribution. The Company shall furnish to the Bank a resolution of
the Board of Trustees of the Company, certified by the Secretary (a
"Certificate"): (i) authorizing the declaration of dividends on a specified
periodic basis and authorizing the Bank to rely on oral instructions or a
Certificate specifying the date of the declaration of such dividend or
distribution, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined and the amount payable per
share to Shareholders of record as of such record date and the total amount
payable to the Bank on the payment date; or (ii) setting forth the date of the
declaration of any dividend or distribution by a Fund, the date of payment
thereof, the record date as of which Shareholders entitled to payment shall be
determined, and the amount payable per share to the Shareholders of record as of
that date and the total amount payable to the Bank on the payment date.
7.2 The Bank, on behalf of the Company, shall instruct the Custodian to
place in a dividend disbursing account funds equal to the cash amount of any
dividend or distribution to be paid out. The Bank will calculate, prepare and
mail checks to (at the address as it appears on the records of the Bank), or
(where appropriate) credit such dividend or distribution to the account of, Fund
Shareholders, and maintain and safeguard all underlying records.
7.3 The Bank will replace lost checks at its discretion and in conformity
with regular business practices.
7.4 The Bank will maintain all records necessary to reflect the crediting
of dividends which are reinvested in Shares of the Company, including without
limitation daily dividends, if any.
7.5 Absent any negligence, bad faith or willful misconduct by the Bank,
The Bank shall not be liable for any improper payments made in accordance with a
resolution of the Board of Trustees of the Company.
7.6 If the Bank shall not receive from the Custodian sufficient cash to
make payment to all Shareholders of the Company as of the record date, the Bank
shall, upon notifying the Company, withhold payment to all Shareholders of
record as of the record date until such sufficient cash is provided to the Bank
and, absent any negligence, bad faith or willful misconduct by the Bank, shall
not be liable for any claim arising out of such withholding.
8. Other Duties. In addition to the duties expressly provided for herein, the
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Bank shall perform such other duties and functions and shall be paid such
amounts therefor as may from time to time be agreed to by the parties in
writing.
9. Taxes. It is understood that the Bank shall file such appropriate
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information returns concerning the payment of dividends and capital gain
distributions and tax withholding with the proper Federal, State and local
authorities as are required by law to be filed by the Company and shall withhold
such sums as are required to be withheld by applicable law.
10. Books and Records.
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10.1 The Bank shall maintain confidential records showing for each
Shareholder's account the following: (i) names, addresses and tax identification
numbers; (ii) numbers of Shares held; (iii) historical information (as available
from prior transfer agents) regarding the account of each Shareholder, including
dividends paid and date and price of all transactions on a Shareholder's
account; (iv) any stop or restraining order placed against a Shareholder's
account; (v) information with respect to withholdings; (vi) any capital gain or
dividend reinvestment order, plan application, dividend address and
correspondence relating to the current maintenance of a Shareholder's account;
(vii) certificate numbers and denominations for any Shareholders holding
certificates; (viii) any information required in order for the Bank to perform
the calculations contemplated or required by this Agreement; and (ix) such other
information and data as may be required by applicable law.
10.2 Any records required to be maintained by Rule 31a-1 under the 1940
Act will be preserved for the periods prescribed in Rule 31a-2 under the 1940
Act. Such records may be inspected by the Company during regular business hours
upon reasonable notice. The Bank may, at its option at any time, and shall
forthwith upon the Company's demand, turn over to the Company and cease to
retain in the Bank's files, records and documents created and maintained by the
Bank in performance of its service or for its protection. At the end of the six-
year retention period, such documents will either be turned over to the Company,
or destroyed in accordance with the Company's authorization.
10.3 Procedures applicable to the services to be performed hereunder may
be established from time to time by agreement between the Fund(s) and the Bank.
The Bank shall have the right to utilize any shareholder accounting and
recordkeeping systems which, in its reasonable opinion, qualifies to perform any
services to be performed hereunder. The Bank shall keep records relating to the
services performed hereunder, in the form and manner as it may deem reasonably
advisable provided that the term and manner are permissible under applicable
law, including the 1940 Act.
11. Fees and Expenses.
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11.1 For performance by the Bank pursuant to this Agreement, the Fund(s)
agree to pay the Bank an annual maintenance fee for each Shareholder account as
set out in the initial fee schedule attached as Appendix B hereto. Such fees
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and out-of-pocket expenses and advances identified under Section 11.2 below may
be changed from time to time subject to mutual written agreement between the
Fund(s) and the Bank.
11.2 In addition to the fee paid under Section 11.1 above, the Fund(s)
agree to reimburse the Bank for out-of-pocket expenses or advances incurred by
the Bank for the items set out in the fee schedule attached hereto. In
addition, any other reasonable expenses incurred by the Bank at the request or
with the consent of the Fund(s) including, without limitation, any equipment or
supplies which the Company specifically orders or requires the Bank to purchase,
will be reimbursed by the Fund(s).
11.3 The Fund(s) agree to pay all fees and reimbursable expenses within
thirty days following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to the Bank by the Fund(s) at least seven
(7) days prior to the mailing date of such materials. Any waiver or extension
by the Bank of the thirty and seven day time periods enumerated in this section
11.3 shall not constitute a dismissal of any monies due under this Agreement nor
shall such waiver or extension apply to any future monies due to the Bank
hereunder.
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12. Representations and Warranties of the Bank.
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The Bank represents and warrants to the Company that:
12.1 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
12.2 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform this Agreement.
12.3 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
12.4 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
12.5 It is duly registered as a transfer agent as provided in Section
17A(c) of the 1934 Act.
13. Representations and Warranties of the Company.
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The Company represents and warrants to the Bank that:
13.1 It is a business trust duly organized and existing and in good
standing under the laws of the State of its organization as set forth in the
preamble hereto.
13.2 It is empowered under applicable laws and by its charter documents
and by-laws to enter into and perform this Agreement.
13.3 All proceedings required by said charter documents and by-laws have
been taken to authorize it to enter into and perform this Agreement.
13.4 It is a open-end investment company registered under the 1940 Act.
13.5 A registration statement on Form N-1A (including a prospectus and
statement of additional information) under the Securities Act of 1933 and the
1940 Act is currently effective and will remain effective as long as the Company
publicly offers its shares.
13.6 When Shares are hereafter issued in accordance with the terms of the
Prospectus, such Shares shall be validly issued, fully paid and nonassessable by
the Fund(s).
14. Indemnification.
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14.1 The Bank shall exercise reasonable care and shall act without
negligence, bad faith or willful misconduct in the performance of its duties and
obligations hereunder. Notwithstanding anything in this Agreement to the
contrary, in no event shall the Bank or any of its officers, directors or
employees (collectively, the "Indemnified Parties") be liable to the Fund or any
third party, and the Fund shall indemnify and hold the Bank and the Indemnified
Parties harmless from and against any and all loss, damage, liability, actions,
suits, claims, costs and expenses, including legal fees, (a "Claim") arising as
a result of any act or omission of the Bank or any Indemnified Party under this
Agreement, except to the
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extent that any Claim results from the negligence, willful misfeasance, willful
misconduct or bad faith of the Bank or any Indemnified Party. Without limiting
the foregoing, neither the Bank nor the Indemnified Parties shall be liable for,
and the Bank and the Indemnified Parties shall be indemnified against, any Claim
arising as a result of:
(a) Any actions taken or omitted to be taken by the Bank or its
agents or subcontractors in good faith in reliance on, or use by the Bank or its
agents or subcontractors of, information, records and documents which (i) are
received by the Bank or its agents or subcontractors and furnished to such party
by or on behalf of the Fund(s), (ii) have been prepared and/or maintained by the
Fund(s) or any other person or firm on behalf of the Fund(s), or (iii) were
received by the Bank or its agents or subcontractors from a prior transfer
agent.
(b) Any action taken or omitted to be taken by the Bank in good faith
reliance upon any law, act, regulation (a "Regulation") or interpretation of a
Regulation by reputable legal counsel even though such Regulation may thereafter
have been altered, changed, amended or repealed.
(c) The Fund(s)' refusal or failure to comply with the terms of this
Agreement, or which arise out of the Funds' lack of good faith, negligence or
willful misconduct or which arise out of the material breach of any
representation or warranty of the Fund(s) hereunder.
(d) The reasonable reliance on, or the carrying out by the Bank or
its agents or subcontractors of any instructions or requests, whether written or
oral, of the Fund(s).
(e) The offer or sale of Shares by the Company in violation of (i)
any requirement under the federal securities laws or regulations; (ii) any
requirement under the securities laws or regulations of any state; or (iii) any
stop order or other determination or ruling by any federal or state agency with
respect to the offer or sale of such Shares.
(f) Acts of God, earthquakes, fires, floods, storms or other
disturbances of nature, epidemics, strikes, riots, nationalization,
expropriation, currency restrictions, acts of war, civil war or terrorism,
insurrection, nuclear fusion, fission or radiation, the interruption, loss or
malfunction of utilities, transportation or computers (hardware or software) and
computer facilities, the unavailability of energy sources and other similar
happenings or events beyond the reasonable control of the Bank, except as
results from the Bank's own negligence, bad faith or willful misconduct.
Notwithstanding the foregoing, the Bank has and shall maintain appropriate back-
up and disaster recovery facilities and shall use it best efforts to provide all
required information and services hereunder to the Fund as soon as possible
after any such delay in performance.
14.2 At any time the Bank may apply to any officer of the Company for
instructions, and may consult with legal counsel of the Bank or the Company with
respect to any matter arising in connection with the services to be performed by
the Bank under this Agreement, and the Bank and its agents or subcontractors
shall not be liable and shall be indemnified by the Company for any action taken
or omitted by it in reasonable reliance upon such instructions or upon the
opinion of such counsel except for a knowing violation of law. The Bank, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Fund(s), reasonably believed
to be genuine and to have been signed by the proper person or persons, or upon
any instruction, information, data, records or documents provided to the Bank or
its agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Fund(s), and the Bank, its agents and
subcontractors shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Fund(s). The Bank,
its agents and subcontractors shall also be
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protected and indemnified in recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signatures of an officer of the
Company, and one proper countersignature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
14.3 The Bank agrees to indemnify and hold the Company and its Trustees,
officers and employees harmless from and against any and all losses, damages,
liabilities, claims, costs and expenses, including legal fees and expenses,
resulting from any claim, demand, action or suit arising out of the Bank's
negligence, willful misfeasance, or bad faith in the performance of its
obligations and duties under this Agreement.
14.4 Notwithstanding anything to the contrary in this Agreement, in no
event shall the Bank or the Indemnified Parties be liable to the Company or any
third party for any special, consequential or punitive damages hereunder.
15. Covenants of the Company and the Bank.
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15.1 The Company shall promptly furnish to the Bank the following (the
Company need not furnish information that the Bank already maintains based on
the Bank's previous or current work for the Company):
(a) A certified copy of the resolution of the Trustees of the Company
authorizing the appointment of the Bank and the execution and delivery of this
Agreement.
(b) A copy of the declaration of trust and by-laws of the Company and
all amendments thereto.
(c) Copies of each vote of the Trustees designating authorized
persons to give instructions to the Bank, and a Certificate providing specimen
signatures for such authorized persons.
(d) Certificates as to any change in any officer or Trustee of the
Company.
(e) If applicable a specimen of the certificate of Shares in each
Fund of the Company in the form approved by the Trustees, with a Certificate as
to such approval.
(f) Specimens of all new certificates for Shares, accompanied by the
Trustees' resolutions approving such forms.
(g) All account application forms and other documents relating to
shareholder accounts or relating to any plan, program or service offered by the
Company.
(h) A list of all Shareholders of the Fund(s) with the name, address
and tax identification number of each Shareholder, and the number of Shares of
the Fund(s) held by each, certificate numbers and denominations (if any
certificates have been issued), lists of any account against which stops have
been placed, together with the reasons for said stops, and the number of Shares
redeemed by the Fund(s).
(i) An opinion of counsel for the Company with respect to the
validity of the Shares and the status of such Shares under the Securities Act of
1933.
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(j) Copies of the Fund(s)' most recent post-effective amendment to
the registration statement on Form N-1A and all post-effective amendments
thereto.
(k) Such other certificates, documents or opinions as the Bank may
deem necessary or appropriate for the Bank in the proper performance of its
duties hereunder.
15.2 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
15.3 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the 1940 Act and the Rules thereunder, the Bank agrees
that all such records prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder are the confidential property of
the Company and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered to the Company on and in
accordance with its request.
15.4 The Bank and the Company 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.
15.5 In case of any requests or demands for the inspection of the
Shareholder records of the Company, the Bank will endeavor to notify the Company
and to secure instructions from an authorized officer of the Company as to such
request or demand. The Bank reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be subject to enforcement or other action by any court or regulatory body
for the failure to exhibit the Shareholder records to such person.
16. Term of Agreement.
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16.1 The term of this Agreement shall be three years commencing upon the
date hereof (the "Initial Term"), unless earlier terminated as provided herein.
After the expiration of the Initial Term, the term of this Agreement shall
automatically renew for successive one-year terms (each a "Renewal Term") unless
notice of non-renewal is delivered by the non-renewing party to the other party
no later than ninety days prior to the expiration of the Initial Term or any
Renewal Term, as the case may be.
(a) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term in the event the other party
violates any material provision of this Agreement, provided that the non-
violating party gives written notice of such violation to the violating party
and the violating party does not cure such violation within 90 days of receipt
of such notice.
(b) If a majority of the Board of Trustees reasonably determines that
the performance of the Bank under this Agreement has been unsatisfactory,
written notice (the "Notice") of such determination setting forth the reasons
for such determination shall be provided to the Bank. Such determination shall
be based upon such information as the Board in its sole discretion elects to
consider, including the Bank's performance against the "Performance Goals" (as
defined below). In order to be effective, any Notice must be executed by two
officers of the Company. The Bank shall, within sixty
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(60) days after receipt of the Notice, either (i) correct the deficiencies
listed in the Notice; or (ii) renegotiate terms of this Agreement in a form
satisfactory to the Company. If the conditions of the preceding sentence are not
met within such sixty (60) day period, the Fund may terminate this Agreement
without additional action by the Fund's Board of Trustees upon an additional
sixty (60) days written notice. For the purposes of this Section, "Performance
Goals" shall mean the performance goal criteria mutually agreed between the
parties. The parties agree to develop the initial Performance Goals no later
than June 30, 1999 and agree to periodically review the Performance Goals for
necessary updates due to changes in the nature or scope of services provided
hereunder.
16.2 The Company shall reimburse the Bank for any reasonable out-of-pocket
expenses incurred by the Bank in connection with the termination of this
Agreement, such as fees for any special processing in connection with such
transfer. The Company shall not be liable for severance payments, retention
bonuses or termination bonuses to the Bank or its employees in connection with
the termination of this Agreement.
16.3 At any time after the termination of this Agreement, the Company may,
upon written request, have reasonable access to the records of the Bank relating
to its performance of its duties as transfer agent.
17. Additional Funds. In the event that the Company establishes one or more
----------------
series of Shares in addition to the series listed on Appendix A hereto with
----------
respect to which it desires to have the Bank render services as transfer agent
under the terms hereof, it shall so notify the Bank in writing, and if the Bank
agrees in writing to provide such services, such series of Shares shall become
a Fund hereunder and Appendix A shall be appropriately amended.
----------
18. Assignment.
----------
18.1 Except as provided in Section 18.3 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party.
18.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
18.3 The Bank may, without further consent on the part of the Company,
subcontract for the performance of any of the services to be provided hereunder
to third parties, including any affiliate of the Bank, provided that the Bank
shall remain liable hereunder for any acts or omissions of any subcontractor as
if performed by the Bank.
19. Amendment. This Agreement may be amended or modified only by a written
---------
agreement executed by both parties.
20. Governing Law. This Agreement shall be construed and the provisions
-------------
thereof interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts, without regard to its conflict of laws provisions.
21. Merger of Agreement and Severability.
------------------------------------
11
21.1 This Agreement constitutes the entire agreement between the parties
hereto regarding transfer agency and related services, and supersedes any prior
agreement with respect to the subject hereof whether oral or written.
21.2 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
21.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall together,
constitute only one instrument.
22. Notices. Any notice or other instrument in writing authorized or
-------
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below:
For the Fund(s):
The Fulcrum Trust
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
With a copy to: Counsel
For the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxxx X'Xxxxxxx, Director, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
23. Limitation of Liability. A copy of the Agreement and Declaration of
-----------------------
Trust of the Company is on file with the Secretary of State of the Commonwealth
of Massachusetts, and notice is hereby given that this Agreement is executed by
or on behalf of the Company by the Trustees as Trustees or by the officers as
officers and not individually, and that the obligations of this Agreement are
not binding upon any of the Trustees, officers or shareholders of the Company,
but are binding only upon the assets and property of the Company. The parties
hereto agree that no shareholder, Trustee or officer of the Company may be held
personally liable or responsible for any obligation of the Company arising out
of this Agreement.
25. Several Obligations of the Funds. This Agreement is an agreement
--------------------------------
entered into between the Bank and the Company with respect to each Fund. With
respect to any obligation of the Company on behalf of any Fund arising out of
this Agreement, the Bank shall look for payment or satisfaction of such
obligation solely to the assets of the Fund to which such obligation relates as
though the Bank had separately contracted with the Company by separate written
instrument with respect to each Fund.
26. Headings. The headings of the paragraphs hereof are included for
--------
convenience of reference only and do not form a part of this Agreement.
[Remainder of Page Intentionally Left Blank]
12
[INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and the year first above written.
THE FULCRUM TRUST
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------
Title: Vice President
------------------------
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
------------------------
Title: Senior Director
------------------------
14
Appendices
----------
Appendix A ............................... Series or Funds
Appendix B ............................... Fee Schedule
Appendix A
----------
Portfolios
. The Value Portfolio
. The Growth Portfolio
. The International Growth Portfolio
. The Strategic Income Portfolio
. The Global Interactive/Telecomm Portfolio
Appendix B
----------
The Fulcrum Trust
Fee Schedule
==========================================================================
CUSTODY, FUND ACCOUNTING, CALCULATION OF N.A.V., FUND ADMINISTRATION AND
TRANSFER AGENCY
==========================================================================
A. Domestic Custody, Fund Accounting, Calculation of N.A.V. , Fund
----------------------------------------------------------------
Administration and Transfer Agency
----------------------------------
The following fees will apply to all assets for which Investors Bank
provides custody, fund accounting, calculation of N.A.V., fund
administration and transfer agency (up to 14 accounts). This fee does not
include transactions or global custody costs.
Annual Fee
----------
First $2 Billion of Net Assets 3.5 Basis Points
Next $2 Billion of Net Assets 2.5 Basis Points
Assets in excess of $4 Billion 2.0 Basis Points
The yearly minimum fee for each fund is $75,000.
B. Transactions
. DTC/Fed Book Entry $ 8**
. Physical Securities 35
. Options and Futures 18
. GNMA Securities 30
. Principal Paydown 5
. Foreign Currency 18***
. Outgoing Wires 7
. Incoming Wires 5
** Assumes trade information is sent electronically to Investors Bank in the
ISITC/SWIFT format. Manual trades will be billed at $12.00 per trade. There
are no transaction charges for use of the Investors Bank Repo.
***There are no transaction charges for F/X contracts executed by Investors
Bank.
C. Foreign Subcustodian Fees
-------------------------
. Incremental basis point and transaction fees will be charged for
all foreign assets for which we are custodian. The asset based fees
and transaction fees vary by country, based upon the attached global
custody fee schedule. Local duties, script fees, registration,
exchange fees, and other market charges are out-of-pocket.
. Investors Bank will require the fund to hold all international
assets at the subcustodian of our choice.
============================================================================
MISCELLANEOUS
============================================================================
A. Out-of-Pocket
-------------
. These charges consist of:
-Reasonable Legal Expenses -Non Standard Extracts
-Printing, Delivery & Postage -Data Transmissions
-Third Party Review -Forms & Supplies
-Extraordinary Travel Expenses -Micro Rental
-Customized Systems Development/Reports -InvestView
-Pricing and Verification services
-Telecommunications
-Financial Statement Printing/Edgarization
-Support Equipment Rental
B. Domestic Balance Credit
-----------------------
. We allow use of balance credit against fees (excluding out-of-pocket
charges) for fund balances arising out of the custody relationship. The
credit is based on collected balances reduced by balances required to
support the activity charges of the accounts. The monthly earnings
allowance is equal to 75% of the 90-day T-xxxx rate.
C. Foreign Exchange, Cash Management and Securities Lending
--------------------------------------------------------
. This Fee Schedule assumes Investors Bank will perform foreign exchange,
cash management and security lending services for the portfolios.
Securities lending revenue is split with the portfolios and Investors
Bank on a 60/40% basis: 60% going to the portfolio.
D. Payment
-------
. The above fees will be charged against the fund's custodian checking
account five business days after the invoice is mailed.
E. Systems
-------
. The details of any systems work will be determined after a thorough
business analysis. System's work will be billed on a time and material
basis. Investors Bank provides an allowance of 10 systems hours for data
extract set up and reporting extract set up. Additional hours will be
billed on a time and material basis.
F. Term
----
. The term of this Fee Schedule shall be three years commencing upon the
date of conversion of the Company's assets to the Bank (the "Initial
term").
* This fee schedule is contingent on Investors Bank providing custody and
related services for the Allmerica Investment Trust and Allmerica Separate
Accounts.
* This fee schedule is confidential between Investors Bank and the Fund and
shall not be disclosed to any third party without the written consent of both
parties, except the Fund may include this fee schedule in filings with the
Securities and Exchange Commission as required.
