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EXHIBIT 8
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 16th day of June, 1998 by and between Freedom
Mutual Fund, and Freedom Group of Tax Exempt Funds, Massachusetts business
trusts having their principal office and place of business at Xxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx (the "Trusts"), and Freedom Services Corporation, a
Massachusetts corporation having its principal office and place of business at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("FSC").
WITNESSETH
WHEREAS, the Trusts desire to appoint FSC as their transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and FSC desires to accept such appointment.
WHEREAS, the Trusts are authorized to issue shares in separate series,
with each such series representing interests in separate portfolio of securities
and other assets; and
WHEREAS, the Trusts presently offer shares of beneficial interest in four
(4) series (Freedom Cash Management Fund, Freedom Government Securities Fund,
Freedom Tax Exempt Money Fund and Freedom California Tax Exempt Money Fund) such
series, together with all other series subsequently established by the Trust and
made subject to this Agreement in accordance with Article 8, being herein
referred to as the "Fund(s)".
NOW THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
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Article 1 TERMS OF APPOINTMENT: DUTIES OF FSC
1.01 Subject to the terms and conditions set forth in this Agreement, the
Trusts hereby, employ and appoint FSC to act as, and FSC agrees to act as
transfer agent for the Funds' authorized and issued shares of beneficial
interest ("Shares"), with any accumulation, open-account or similar plans
provided to the shareholders of the Funds ("Shareholders") and set out in the
currently effective prospectuses of the Funds, including without limitation any
periodic investment plan or periodic withdrawal program.
1.02 FSC agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between Trusts and FSC, FSC shall:
(i) Receive for acceptance orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation
therefor to the Custodian of Funds (the "Custodian"):
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder
accounts;
(iii) Receive for acceptance, redemption requests and redemption
directions and deliver the appropriate documentation therefor
to the Custodian;
(iv) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over
or cause to be paid over in the appropriate manner such monies
as instructed 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 Funds;
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(vii) Maintain records of account for and advise the Funds and
their Shareholders as to the foregoing; and
(viii) Record the issuance of Shares of the Funds and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number
of shares of the Funds which are authorized, based upon data
provided to it by the Funds, and issued and outstanding. FSC
shall also provide the Funds 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 sole
responsibility of the Funds.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a) FSC 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 U.S. resident and non-resident 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 confirmations' forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder a ccounts, preparing and
mailing activity statements for Shareholders, and providing
Shareholder account information and (ii)
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provide a system which will enable the Funds to monitor the total
number of Shares sold in each State.
(c) In addition, the Funds shall (i) identify to FSC in writing those
transactions and assets to be treated as exempt from the blue sky
reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The
responsibility of FSC for the Funds' blue sky State registration
status is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Funds and
reporting of such transactions to the Funds as provided above.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Funds and FSC but the failure of the
Funds to establish such procedures with respect to any service shall not in any
way diminish the duty and obligation of FSC to perform such services hereunder.
Article 2 FEES AND EXPENSES
2.01 For performance by FSC pursuant to this Agreement, the Funds agree
to pay FSC an annual maintenance fee for each Shareholder account as set forth
in the initial fee schedule attached hereto. Such fees and out-of-pocket
expenses and advances identified under Section 2.02 below may be changed from
time to time subject to mutual written agreement between the Trusts and FSC.
2.02 In addition to the fee paid under Section 2.01 above the Funds agree
to reimburse FSC for out-of-pocket expenses or advances incurred by FSC for the
items set out in the fee schedule attached hereto. In addition, any other
expenses
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incurred by FSC at the request or with the consent of the Funds, will be
reimbursed by the Funds.
2.03 The Funds agree to pay all fees and reimbursable expenses promptly
following the mailing of the respective billing notice. Postage for mailing of
dividends, proxies, Funds' reports and other mailings to all shareholder
accounts shall be advanced to FSC by the Funds at least seven (7) days prior to
the mailing date of such materials.
Article 3 REPRESENTATIONS AND WARRANTIES OF FSC
FSC represents and warrants to the Trust that:
3.01 It is a Delaware corporation duly organized and existing and in good
standing under the laws of the State of Delaware, and as a foreign corporation
under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
3.03 It is empowered under applicable laws and by its charter and By-Laws
to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Article 4 REPRESENTATIONS AND WARRANTIES OF THE TRUSTS
The Trusts represent and warrant to FSC that:
4.01 They are each a trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
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4.02 They are empowered under applicable laws and by their Declaration of
Trust and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declarations of Trust and
By-Laws have been taken to authorize them to enter into and perform this
Agreement.
4.04 They are open-end investment companies registered under the
Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is
currently effective and will remain effective, and appropriate state securities
law filings have been made and will continue to be made, with respect to all
Shares of the Funds being offered for sale.
Article 5 INDEMNIFICATION
5.01 FSC shall not be responsible for, and the Trusts shall indemnify and
hold FSC harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of or attributable
to:
(a) All actions of FSC or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct.
(b) The Trusts' refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trusts' lack of good faith,
negligence or willful misconduct or which arise out of the breach of
any representation or warranty of the Trusts hereunder.
(c) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such
state or in violation of any stop order or other determination or
ruling by any federal agency or any state with respect to the offer
or sale of such
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Shares in such state unless such violation results from any action
or omission by FSC or any of its agents or sub-contractors which
fails to comply with written instructions of the Trusts or any
officer of the Trusts that no offers or sales be made in general or
to the residents of a particular state.
5.02 FSC shall indemnify and hold the Trusts harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liabilities arising out of or attributed to any action or failure or
omission to act by FSC as a result of FSC's lack of good faith, negligence or
willful misconduct.
5.03 At any time FSC may apply to any officer of the Trusts for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by FSC under this
Agreement, and FSC and its agents or subcontractors shall not be liable and
shall be indemnified by the Funds for any action taken or omitted by them in
reliance upon such instructions or upon the opinion of such counsel. FSC, its
agents and subcontractors' shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Trusts, 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 FSC or
its agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Trusts, and shall not be held to have
notice of any change of authority of any person, until receipt of written notice
thereof from the Trusts. FSC, its agents and subcontractors shall also be
protected and indemnified in recognizing share certificates which are reasonably
believed to bear the proper manual or facsimile signatures of the officer of the
Trusts, and the proper countersignature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
5.04 In the event any party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission
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failure or damage reasonably beyond its control, or other causes reasonably
beyond its control, such party shall not be liable for damages to the other for
any damages resulting from such failure to perform or otherwise from such
causes.
5.05 No party to this Agreement shall be liable to the other parties for
consequential damages under any provision of this Agreement or for any act or
failure to act hereunder.
5.06 In order that the indemnification provisions contained in this
Article 5 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 6 COVENANTS OF THE TRUSTS AND FSC
6.01 The Trusts shall promptly furnish to FSC the following:
(a) A certified copy of the resolution of the Board of Trustees
authorizing both the appointment of FSC and the execution and
delivery of this Agreement.
(b) A copy of the Declarations of Trust and By-Laws of the Trusts and
all amendments thereto.
6.02 FSC hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Funds for safekeeping of share
certificates, check forms
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and facsimile signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such certificates, forms and devices.
6.03 FSC shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the Rules thereunder, FSC agrees that all such records prepared or maintained by
FSC relating to the services to be performed by FSC hereunder are the property
of the Trusts and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered to the Funds on and in
accordance with their request.
6.04 FSC and the Trusts agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Trusts, FSC will endeavor to notify the Trusts and to
secure instructions from an authorized officer of the Trust as to such
instruction. FSC reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
Article 7 TERMINATION OF AGREEMENT
7.01 This Agreement may be terminated by any party upon one hundred
twenty (120) days' written notice to the other.
7.02 Should the Trusts exercise their right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the
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Trusts. Additionally, FSC reserves the right to charge for any other reasonable
expenses associated with such termination.
Article 8 ADDITIONAL FUNDS
8.01 In the event that the Trusts establish one or more of series of
Shares in addition to the present series with respect to which they desire to
have FSC render services as a transfer agent under the terms hereof, they shall
so notify FSC in writing, and if FSC agrees in writing to provide such services,
such series of Shares shall become a Fund hereunder.
Article 9 ASSIGNMENT
9.01 Except as provided in Section 9.03 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by any party without the
written consent of the other party.
9.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
9.03 FSC may, without further consent on the part of the Trusts,
subcontract for the performance hereof with or any other entity FSC deems
appropriate in order to comply with the terms and conditions of this Agreement,
provided, however, that FSC shall be as fully responsible to the Trusts for the
acts and omissions of any subcontractor as it is for its own acts and omissions.
Article 10 AMENDMENT
10.01 This Agreement may be amended or modified by a written agreement
executed by the parties hereto and authorized or approved by a resolution of the
Board of Trustees of the Trusts.
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Article 11 MASSACHUSETTS LAW TO APPLY
11.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 12 MERGER OF AGREEMENT
12.01 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
Article 13 LIMITATION ON LIABILITY
13.01 The Declarations of Trust establishing the Trusts, dated
December 22, 1980 and June 1, 1982, copies of which, together with all
amendments thereto, are on file in the Office of the Secretary of the
Commonwealth of Massachusetts, provide all persons extending credit to,
contracting with or having any claim against the Trusts shall look only to the
assets of the Trusts, and neither the shareholders nor the Trustees, nor any of
the Trusts' officers, employees, or agents shall be personally liable therefore.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
ATTEST: FREEDOM MUTUAL FUND
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxx X. Dodge
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Xxxxxx X. Dodge
Chairman
ATTEST: FREEDOM GROUP OF TAX EXEMPT FUNDS
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxx X. Dodge
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Xxxxxx X. Dodge
Chairman
ATTEST: FREEDOM SERVICES CORPORATION
/s/ Xxxx Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx X. Xxxxxxxx
President
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