EXHIBIT (9)(C)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
CGM TRUST
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
Article 1 Terms of Appointment; Duties of the Bank .................... 1
Article 2 Fees and Expenses ........................................... 5
Article 3 Representations and Warranties of the Bank .................. 6
Article 4 Representations and Warranties of the Fund .................. 7
Article 5 Indemnification ............................................. 7
Article 6 Covenants of the Trust and the Bank ......................... 11
Article 7 Termination of Agreement .................................... 12
Article 8 Assignment .................................................. 13
Article 9 Amendment ................................................... 13
Article 10 Massachusetts Law to Apply .................................. 13
Article 11 Entire Agreement ............................................ 13
Article 12 Multiple Series ............................................. 13
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 6th day of March 1992, by and between CGM
Trust, a Massachusetts business trust (the "Trust"), having its principal office
and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company having
its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Bank").
WHEREAS, the Trust, on behalf of CGM Fixed Income Fund, a series of the
Trust (the "Series" or the "Fund") desires to appoint the Bank as the Fund's
transfer agent, dividend disbursing agent and agent in connection with certain
other activities, and the Bank desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in this Agreement,
the Trust hereby employs and appoints the Bank to act as, and the Bank agrees to
act as its transfer agent for 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 Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information ("Prospectus") of the Fund,
including without limitation any periodic investment plan or periodic withdrawal
program.
1.02 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Trust 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 Authorized Custodian of the Fund (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 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; upon receipt of proper
request for transfer and surrender to it of Share certificates in
proper form for transfer, the Bank is authorized to transfer
Shares on the records of the Trust maintained by it from time to
time and upon cancellation of surrendered certificates to credit a
like amount of Shares to the transferee and to countersign, issue
and deliver new certificates, if requested;
(vi) Prepare and transmit payments for dividends and distributions
declared by the Trust;
(vii) Maintain records of account for and advise the Trust and its
Shareholders as to the foregoing;
(viii) Record the issuance of Shares of the Fund and maintain pursuant
to SEC Rule 17Ad-10(e) a record of the total number of Shares of
the Fund which are issued and outstanding. Bank shall also provide
the Trust on a regular basis with the total number of Shares which
are 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 state blue sky laws relating
to the issue or sale of such Shares, which functions shall be the
sole responsibility of the Trust; and
(ix) If a Shareholder of uncertified Shares requests the issuance of a
Share certificate or the registration of a pledge of such Shares,
the Bank, as Transfer Agent, shall countersign and mail by first
class mail a Share certificate to the Shareholder at his address
as set forth on the transfer books of the Trust, subject to any
other instructions for delivery of certificates which the Trust
may give to the Bank with respect to certificates representing
newly purchased Shares, and subject to the limitation that no
certificates representing newly purchased Shares shall be mailed
until the cash purchase price of the Shares has been deposited in
the bank account of the Fund maintained by the Custodian.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a), 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 non-resident alien accounts, withholding income dividends,
capital gains distributions and redemption proceeds as required by federal
withholding regulations, 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, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information and (ii) provide a system which will
enable the Trust to monitor the total number of Shares sold in each state. The
Trust shall (i) identify to the Bank in writing those Fund 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. The
responsibility of the Bank for the blue sky state registration status of the
Trust and the Fund is solely limited to the initial establishment of
transactions subject to blue sky compliance by the Trust or the Fund, as
appropriate, and the reporting of such transactions to the Trust as provided
above.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Trust and the Bank.
Article 2 Fees and Expenses
2.01 For performance by the Bank pursuant to this Agreement, the Trust
agrees on behalf of each of the Fund, to pay the Bank an annual maintenance fee
for each Shareholder account as set out 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 Trust and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Trust
agrees, on behalf of the Fund, 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 expenses incurred by the Bank at the
request or with the consent of the Trust, will be reimbursed by the Trust on
behalf of the Fund.
2.03 The Trust agrees, on behalf of the Fund, to pay all fees and
reimbursable expenses within five days following the mailing 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
Trust on behalf of the Fund at least seven (7) days prior to the mailing date of
such materials.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Trust that:
3.01 It is a trust company duly organized and existing and in good
standing 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 Fund
The Fund represents and warrants to the Bank that:
4.01 It is a business trust duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
4.02 It is empowered under applicable laws and by its Agreement and
Declaration of Trust, as amended (the "Declaration of Trust") and By-Laws to
enter into and perform this Agreement.
4.03 All corporate proceedings required by said Declaration of Trust and
By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is an open-end, diversified management investment company
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 Fund being offered for sale.
4.06 The beneficial interest in the Fund is divided into an unlimited
number of Shares of beneficial interest, without a par value.
Article 5 Indemnification
5.01 The Bank shall not be responsible for, and the Trust on behalf of
the Fund shall indemnify and hold the Bank harmless from and against, any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to:
(a) All actions of the Bank or its agent 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 Trust's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trust's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Trust hereunder.
(c) The 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 it by or on behalf of the Fund, and
(ii) have been prepared and/or maintained by the Fund or any other person or
firm on behalf of the Fund.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests of the Fund.
(e) 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 Shares in such state.
5.02 The Bank shall indemnify and hold the Trust harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by the Bank as a result of the Bank's lack of good faith,
negligence or willful misconduct.
5.03 At any time the Bank may apply to any officer of the Trust for
instructions, and may consult with legal counsel 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 Fund for any action taken or omitted by it without
negligence and in good faith in reliance upon such instructions or upon the
opinion of such counsel. 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 Trust, 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 the Bank or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means authorized
by the Trust, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Trust. The Bank,
its agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of the Fund, 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 either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission 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. The Bank shall use its best efforts to minimize the likelihood of
such damage resulting from the events described in the immediately preceding
sentence and if such damage occurs, the Bank shall use its best efforts to
mitigate the effects of such events.
5.05 Neither party to this Agreement shall be liable to the other party
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 Trust and the Bank
6.01 The Trust shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Trustees of the Trust
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 Fund and all
amendments thereto.
6.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust 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.
6.03 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 Investment Company Act of 1940, as amended,
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 property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
6.04 The Bank and the Trust 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 Trust relating to the Fund, the Bank will endeavor to
notify the Trust and to secure instructions from an authorized officer of the
Trust as to such inspection. 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 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 either party upon one hundred
twenty (120) days written notice to the other.
7.02 Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Trust on behalf of the Fund. Additionally, the Bank reserves the right to
charge for any other reasonable expenses associated with such termination.
Article 8 Assignment
8.01 Except as provided in Section 8.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
8.03 The Bank may, without further consent on the part of the Trust,
subcontract for the performance hereof with (i) Boston Financial Data Services,
Inc., a Massachusetts corporation ("BFDS") which is duly registered as a
transfer agent pursuant to Section 17A(c)(1) of the Securities Exchange Act of
1934 ("Section 17A(c)(1)"), (ii) a BFDS subsidiary duly registered as a transfer
agent pursuant to Section 17A(c)(1); provided, however, that the Bank shall be
as fully responsible to the Trust for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
Article 9 Amendment
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties.
Article 10 Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 11 Entire Agreement
11.01 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
Article 12 Multiple Series
Notwithstanding any other provision hereof, the rights, obligations and
remedies under this Agreement of the parties hereto shall constitute rights,
obligations and remedies only with respect to the Series and the assets of the
Series, and no other series of the Trust shall have any rights, obligations or
remedies under this Agreement.
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.
CGM Trust
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. Lake
---------------------------------
Vice President and Secretary
STATE STREET BANK AND TRUST COMPANY
BY: /s/ [Illegible]
------------------------------
Senior Vice President
ATTEST:
/s/ [Illegible]
---------------------------------
Assistant Secretary
A copy of the Agreement and Declaration of Trust establishing CGM Trust
is on file with the Secretary of The Commonwealth of Massachusetts, and notice
is hereby given that this Agreement is executed with respect to the Fund on
behalf of the Fund by officers of the Trust as officers and not individually and
that the obligations of or arising out of this Agreement are not binding upon
any of the trustees, officers and shareholders individually but are binding only
upon the assets and property belonging to the Fund.
STATE STREET BANK AND TRUST COMPANY
FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
Bank Fund
1. Receives orders for the purchase of Shares. X
2. Issue Shares and hold Shares in Shareholders accounts. X
3. Receive redemption requests. X
4. Effect transactions 1-3 above directly with broker-dealers. X
5. Pay over monies to redeeming Shareholders. X
6. Effect transfers of Shares. X
7. Prepare and transmit dividends and distributions. X
8. Issue Replacement Certificates. X
9. Reporting of abandoned property. X
10. Maintain records of account. X
11. Maintain and keep a current and accurate control book for
each issue of securities. X
12. Mail proxies. X
13. Mail Shareholder reports. X
14. Mail prospectuses to current Shareholders. X
15. Withhold taxes on U.S. resident and non-resident alien
accounts. X
16. Prepare and file U.S. Treasury Department forms. X
17. Prepare and mail account and confirmation statements
for Shareholders. X
18. Provide Shareholder account information. X
19. Blue sky reporting. X
*Such services are more fully described in Article 1.02(a), (b) and (c) of the
Agreement.
CGM Trust
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. Lake
------------------------------------
Vice President and Secretary
STATE STREET BANK AND TRUST COMPANY
BY: /s/ [Illegible]
--------------------------------------
Senior Vice President
ATTEST:
/s/ [Illegible]
------------------------------------
Assistant Secretary
