Exhibit (h)(2)(ii)
TRANSFER AGENCY AGREEMENT
AGREEMENT dated the 16th day of December, 2002, by and between Xxxxxxx
Investment Services Company, a Delaware corporation ("Service Company"), and
each Registered Investment Company listed in Exhibit A attached hereto (each a
"Fund" or "Trust" or "Investment Company" as the case may be; collectively, the
"Funds" or "Investment Companies").
WHEREAS, the Funds want to appoint Service Company as Transfer Agent and
Dividend Disbursing Agent, and the 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 the Funds and Investment Companies, there will be
filed with Service Company the following documents:
A. A certified copy of the resolutions of the Board of Trustees
or Board of Directors of the Investment Companies (the
"Board") 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 the Funds.
B. A certified copy of the resolutions of the Board of Trustees
or Board of Directors of the Funds 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 the Funds.
C. A certified copy of the Funds' Articles of Incorporation, and
any amendments thereto.
D. A certified copy of the Bylaws of the Funds.
E. Copies of Registration Statements filed with the Securities
and Exchange Commission.
F. Specimens of all forms of outstanding share certificates as
approved by the Board of Trustees or Board of Directors of the
Funds, with a certificate of the Secretary of the Funds as to
such approval.
G. Specimens of the signatures of the officers of the Funds
authorized to sign share certificates and individuals
authorized to sign written instructions
and requests on behalf of the Funds.
I. An opinion of counsel for the Funds:
(1) With respect to Funds' organization and existence
under the laws of the governing jurisdiction where
each entity was formed.
(2) With respect to the status of all shares of the Funds
covered by this appointment under the Securities Act
of 1933, and any other applicable federal or state
statute.
(3) To the effect that all issued shares are, and all
unissued shares will be when issued, validly issued,
fully paid and non-assessable.
2. Certain Representations and Warranties of Service Company. Service
Company represents and warrants to the Funds 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 the Funds. The Funds
represent and warrant to Service Company that:
A. It is duly organized and in good standing under the laws of
the jurisdiction where it was formed.
B. It is an investment company registered under the Investment
Company Act of 1940.
C. A registration statement under the Securities Act of 1933 has
been filed
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and will be effective with respect to all shares of the Funds
being offered for sale at any time and from time to time.
D. All requisite steps have been or will be taken to register
Funds' shares for sale in all applicable states, including the
District of Columbia.
E. The Trustees of the Funds are empowered under applicable laws
and by the Articles of Incorporation and Bylaws to enter into
and perform this Agreement.
F. The Board of Directors of the Funds are empowered under
applicable laws and by the Funds' Articles of Incorporation
and Bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement, the
Funds 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 Funds' Transfer Agent and
Dividend Disbursing Agent. Service Company agrees that it will
also act as agent in connection with the Funds' 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. The Funds' agree 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 canceling share certificates, maintaining all
shareholder accounts, preparing shareholder meeting lists,
mailing proxies, receiving and tabulating proxies, mailing
shareholder reports and prospectuses, withholding federal
income taxes, preparing and mailing checks for disbursement of
income and capital gains dividends, preparing and filing all
required U.S. Treasury Department information returns for all
shareholders, preparing and mailing confirmation forms to
shareholders
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and dealers with respect to all purchases and liquidations of
the Trusts' and Funds' shares and other transactions in
shareholder accounts for which confirmations are required,
recording reinvestments of dividends and distributions in the
Trusts' and Funds' shares, recording redemptions of Trusts'
and Funds' shares and preparing and mailing checks for
payments upon redemption and for disbursements to systematic
withdrawal plan shareholders.
F. Service Company agrees to comply with the provisions of the
USA PATRIOT Act and the BSAct, as they relate to the Funds and
Companies. Service Company further agrees to establish and
implement an Anti-Money Laundering Program, as defined in
Setion 352 of the USA PATRIOT Act. In addition to the usual
and ordinary services of Transfer Agent and Dividend
Disbursing Agent set forth in this Agreement, Service Company
shall perform with the USA PATRIOT Act and the BSAct,
including but not limited to implementing policies and
procedures, maintaining books and records and responding to
requests for information pursuant to the USA PATRIOT Act and
the BSAct.
5. Compensation and Expenses.
A. In consideration for the services provided hereunder by
Service Company as Transfer Agent and Dividend Disbursing
Agent, Funds' 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 the Funds and Service Company.
B. The Funds agree 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.
C. Service Company shall be contractually bound hereunder by the
terms of any publicly announced fee cap or waiver of its fee
or by the terms of any
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written document provided to the Funds' Board of Trustees or
Board of Directors announcing a fee cap or waiver of its fee,
or any limitation of the Funds' expenses, as if such fee cap,
fee waiver or expense limitation were fully set forth herein.
Except as provided herein, the terms and provisions of the
Agreement shall remain in full force and effect without
amendment.
6. Efficient Operation of Service Company System.
A. In connection with the performance of its services under this
Agreement, Service Company is 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, Fund or other authorized
persons.
(5) The deposit daily in Funds' 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
the Funds.
(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
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and usable forthwith in the event of any breakdown or
disaster disrupting its main operation.
(8) Maintain records in compliance of the Uniting and
Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of
2001, as may be amended from time to time, and all
regulations promulgated pursuant thereto
(collectively, the "USA PATRIOT ACT") and the Bank
Secrecy Act, as amended, and any regulations
promulgated pursuant thereto (collectively, the
"BSA"), 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:
(9) Establish and implement an Anti-Money Laundering
Program, as defined in Section 352 of the USA PATRIOT
ACT.
7. Indemnification.
A. The Funds 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 Funds 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
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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 the Funds.
A. All requisite steps will be taken by Funds from time to time
when and as necessary to register the Funds' shares for sale
in all states in which Funds' shares shall at the time be
offered for sale and require registration. If at any time the
Fund receives notice of any stop order or other proceeding in
any such state affecting such registration or the sale of Fund
shares, or of any stop order or other proceeding under the
Federal securities laws affecting the sale of the Fund shares,
the appropriate Fund will give prompt notice thereof to
Service Company.
B. Service Company hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to Funds for
safekeeping of share certificates, check forms, and facsimile
signature imprinting devices. Further, Service Company agrees
to carry insurance as specified in Exhibit B hereto, with
insurers reasonably acceptable to Funds and in minimum
accounts that are reasonably acceptable to Funds, which
consent shall not be unreasonably withheld, and which will be
expanded in coverage or increased in amounts from time to time
if an when reasonably requested by Funds. If Service Company
determines that it is unable to obtain any such insurance upon
commercially reasonable terms, it shall promptly so advise the
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 upon 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 reasonable efforts to continue to modernize
and improve its system without additional cost to
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Fund.
F. Service Company will permit Funds and authorized
representatives to make periodic inspections of its operations
at reasonable times during business hours. All books and
records required to be maintained for the Funds under the USA
PATRIOT Act and the BSAct shall be made available, for
inspection and copying, to the U.S. Department of Treasury's
Financial Crimes Enforcement Network and the Securities and
Exchange Commission as may be requested pursuant to the USA
PATRIOT Act and the BSAct.
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 the Funds, 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 the appropriate officer of the
Funds.
B. Certified copy of any amendment to the Funds' Articles of
Incorporation 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,
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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
appropriate Board of Trustees or Board of Directors, with a
certificate of the from the appropriate Secretary of the Fund
to such approval.
E. Opinion of counsel for Funds and Companies:
(1) With respect to the status of the shares of the
Funds, 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.
The Funds 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 appropriate officers of the
Funds authorized by law and Bylaw of the appropriate Fund, and to sign
share certificates and, if required, will bear the seal or facsimile
thereof.
11. Death, Resignation or Removal of Signing Officer.
The Funds 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 Funds. In case any officer of Funds
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
the Funds notwithstanding such death, resignation, or removal, until
specifically directed to the contrary by the Funds in writing. In the
absence of such direction, Funds will file promptly with Service
Company such approval, adoption, or ratification as may be required by
law.
12. Future Amendments of Articles of Incorporation.
The Funds will promptly file with Service Company copies of all
material amendments to its respective Articles of Incorporation and
Registration Statement
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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 the Funds for
instructions, and may consult with legal counsel for the Funds, at the
expense of the appropriate Funds, 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 or
Board of Directors 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 the Funds until
receipt of written notice thereof from the appropriate 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 the Funds, 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.
15. Certification of Documents.
The required copy of the Agreement and Articles of Incorporation of
Funds and copies of all amendments thereto will be certified by the
appropriate official of the jurisdiction where it was formed; and if
such Agreement and Articles of Incorporation 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 or Board of
Directors will be certified by the Secretary or an Assistant Secretary
of the appropriate Fund.
16. Records.
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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. Service Company
shall create and maintain true and complete books and records as
required for the Fund by the USA PATRIOT Act and the BSA.
17. Disposition of Books, Records and Cancelled Certificates.
Service Company will send periodically to Funds, or to where designated
by the Secretary or an Assistant Secretary of the Funds and Companies,
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
Funds 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 the Funds,
and upon being furnished with a certified copy of a resolution
of the Board of Trustees or Board of Directors, as the case
may be, authorizing such original issue, an opinion of counsel
as outlined in Section 1.G or 9.E of this Agreement, the
certificates required by Section 10 of this Agreement and any
other documents required by Section 1 or 9 of this Agreement.
B. Before making any original issue of certificates, the Funds
will furnish Service Company with sufficient funds to pay any
taxes required on the original issue of the shares. The Funds
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, and 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
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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
such 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 the
Funds.
D. When mail is used for delivery of share certificates, Service
Company will forward share certificates in "nonnegotiable"
form as provided by the Funds by first class mail, all such
mail deliveries to be covered while in transit to the
addressee by insurance arranged for by Service Company.
E. Service Company will issue and mail subscription warrants and
certificates provided by the Funds and representing share
dividends, exchanges or split-ups, or act as conversion agent
upon receiving written instructions from any officer of the
appropriate 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 the 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 or Board of Directors of the
appropriate Fund which Service Company has notice.
H. Service Company will supply shareholder's list properly
certified by an officer of Service Company for any Fund
shareholder meeting. The Service Company will also supply
lists at such other times as may be reasonably requested by an
officer of the Funds.
I. Upon receipt of written instructions of an officer of the
Funds, the Service Company will address and mail notices to
Fund shareholders.
J. In case of any request or demand for the inspection of the
share books of Fund any other books of
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Fund in the possession of Service Company, including a request
from FinCEN or the SEC under Paragraph F of Section 8 hereof,
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 the appropriate Fund,
provide a special form of check containing the imprint of any
device or other matter desired by the Fund. Said checks must,
however, be of a form and size convenient for use by Service
Company.
B. If the Funds want 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 the appropriate Fund.
C. If the Funds want 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 Funds; or, if
postage stamps are to be affixed to the envelopes, the stamps
or the cash necessary for such stamps must be furnished by
Funds.
D. Service Company will maintain one or more deposit accounts as
agent for Funds, into which the funds for payment of
dividends, dstributions, 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. The Funds, in addition to any other rights and remedies, shall
have the right to terminate this Agreement 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 the Funds.
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(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.
(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 the Funds, 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, the Funds 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 the
Funds as directed in writing by each Fund.
21. Assignment.
A. Neither this Agreement nor any rights or obligations hereunder
may be assigned by Service Company without the written consent
of the Funds. In the event that any duties under this
Agreement are assigned pursuant to the terms of this Section
19, the Service Company shall not be relieved of any of its
obligations under this Agreement.
B. This Agreement will inure to the benefit of and be binding
upon the parties and their respective successors and assigns.
C. Service Company is authorized by Funds 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 the Funds or Companies or their
respective shareholders, and will not disclose the same
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to any person except at the request or with the consent of the
Funds or Companies.
B. Except as otherwise required by law, Funds 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 subsection B,
if an attempt is made pursuant to subpoena or other legal
process to require the Funds to disclose or produce any of the
aforementioned manuals, systems or other technical information
and data, the Funds 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 New
York and shall be governed by the laws of said state (except
as related to matter under Section 24.G hereof which shall be
governed by the laws of the governing jurisdiction where each
entity was formed).
B. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized
and executed by both parties hereto.
C. The captions in this Agreement are included for convenience of
reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effect.
D. This Agreement shall become effective as of the date hereof.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument.
F. If any part, term or provision of this Agreement is held by
the courts to be illegal, in conflict with any law or
otherwise invalid, the remaining portion
15
or portions shall be considered severable and not 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 Funds'
respective Articles of Incorporation, which is on file with
the governing body for the jurisdiction where the Funds were
formed, and such shareholder, director and trustee liability
limitations. This Agreement has been executed by, and on
behalf of, each Fund representatives, acting in capacity as a
representative of such Fund, and not in an individually
capacity. Accordingly, the obligations of the Funds are not
binding upon any trustee, director, officers or shareholders
of the Fund, but are binding upon only the assets and property
of Funds. With respect to any claim by Service Company for
recovery of that portion of the compensation and expenses (or
any other liability of the Funds arising hereunder) allocated
to a particular Fund, whether in accordance with the express
terms hereof or otherwise, Service Company shall have recourse
solely against the assets of that Fund to satisfy such claim,
and shall have no recourse against the assets of any other
Fund.
H. This Agreement, together with the any Fee Schedule, is the
entire contract between the parties and supersedes all prior
agreements between the parties.
16
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.
FUNDS/INVESTMENT COMPANIES
By:
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Secretary
ATTEST:
-----------------------------
Name:
Title:
XXXXXXX INVESTMENTS SERVICE COMPANY
By:
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: President
ATTEST:
-----------------------------
Name:
Title:
