Exhibit 99(h)(5)
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of May, 2002 and between BOSTON ADVISORS
TRUST, a Massachusetts business trust having its principal office and place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Trust"), and
ADVEST TRANSFER SERVICES, INC. ("ATS"), a Delaware corporation having its
principal office and place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Boston Advisors Cash Reserves Fund, Boston Advisors U.S.
Government Money Market Fund, Boston Advisors Tax Free Money Market Fund and
Boston Advisors New York Municipal Money Market Fund (singly a "Fund" and
collectively, the "Funds") are each separate series of the Trust, an open-ended
management investment company registered as such with the Securities and
Exchange Commission (the "SEC") pursuant to the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, the Trust desires to appoint ATS as its transfer agent, dividend
disbursing agent and agent in connection with certain other activities, and ATS
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 ATS
1.01. Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employs and appoints ATS to act as, and ATS agrees to act as,
transfer agent for the Trust's authorized and issued shares of beneficial
interest without par value ("Shares"), dividend disbursing agent and agent in
connection with any accumulation, open-account or similar plans provided to the
shareholders of the Trust ("Shareholders") and set out in the prospectus and
statement of additional information of the Trust.
1.02. ATS agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Trust and ATS, ATS shall:
(i) receive for acceptance and processing, orders for the purchase of
Shares, and payment therefor, and promptly deliver payment and
appropriate documentation therefor to the custodian of the Trust
authorized pursuant to the Trust's governing documents (the
"Custodian");
(ii) pursuant to purchase orders or other appropriate instructions, issue
the appropriate number of Shares and hold such Shares in the
appropriate Shareholder account, and, if requested and properly
authorized, issue appropriate certificates therefor;
(iii) receive for acceptance and processing, 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 documentation;
(vi) prepare and transmit payments for dividends (if any) and distributions
declared by the Trust; and
(vii) maintain records of account for and advise the Trust and its
Shareholders as to the foregoing.
(b) In addition to and not in lieu of the services set forth in paragraph
(a) above, ATS shall 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 (i) maintaining all Shareholder accounts, (ii) preparing Shareholder
meeting lists, (iii) mailing proxies, (iv) receiving and tabulating proxies, (v)
mailing Shareholder reports and prospectuses and, if requested, statements of
additional information to current Shareholders, (vi) withholding taxes on U.S.
residents and non-resident alien accounts where applicable, (vii) 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
registered Shareholders, (viii) 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, (ix)
preparing and mailing activity statements for Shareholders, and (x) providing
Shareholder account information. The Trust shall provide ATS with any
information required in connection with the furnishing of the foregoing
services.
(c) Procedures applicable to the services provided under this Agreement may
be established from time to time by agreement between the Trust and ATS.
Article 2. Fees and Expenses
2.01. For performance by ATS pursuant to this Agreement, the Trust agrees
to pay ATS 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 ATS.
2.02. In addition to the fee paid pursuant to Section 2.01. above, the
Trust agrees to reimburse ATS for out of pocket expenses or advances incurred by
ATS for the items set out in the fee schedule attached hereto. Reimbursable
expenses include but are not limited to postage, forms, telephone, microfilm and
microfiche In addition, any other expenses incurred by ATS at the request or
with the consent of the Trust will be reimbursed by the Trust.
2.03. The Trust agrees to pay all fees and reimbursable expenses promptly;
the terms, method and procedures for which are detailed on the attached fee
schedule.
Article 3. Representations and Warranties of ATS
ATS represents and warrants to the Trust that:
3.01. It is a corporation duly organized and existing and in good standing
under the laws of Delaware.
3.02. It is duly qualified to carry on its business in all jurisdictions
where such qualification is required.
3.03. It is empowered under applicable laws and by its charter and bylaws
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.
3.06. It is and will continue to be registered with the Securities and
Exchange Commission as a transfer agent in accordance with Section 17A(c) and
(d) of the Securities Exchange Act of 1934 and the rules thereunder.
Article 4. Representations and Warranties of the Trust
The Trust represents and warrants to ATS that:
4.01. It is an unincorporated 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 governing documents
to enter into and perform this Agreement.
4.03. All proceedings required by said governing documents have been taken
to authorize it to enter into and perform this agreement.
4.04. It is an investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act").
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 Trust being offered for sale; information to the contrary will
result in immediate notification to ATS.
Article 5. Indemnification
5.01. ATS shall not be responsible for, and the Trust shall indemnify and
hold ATS 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 ATS 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 Trust's refusal or failure to comply with the terms of
this Agreement, or the Trust's lack of good faith, negligence or willful
misconduct, or the breach of any representation or warranty of the Trust
hereunder;
(c) the reliance on or use by ATS or its agents or subcontractors
of information, records or documents which (i) are received by ATS or its agents
or subcontractors and furnished to it by or on behalf of the Trust, and (ii)
have been prepared and/or maintained by the Trust or any other person or firm
(other than ATS or its agents or subcontractors) on behalf of the Trust;
(d) the reliance on, or the carrying out by ATS or its agents or
subcontractors of, any instructions or requests of the Trust's representatives;
or
(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. ATS 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 ATS's refusal or failure to comply
with the terms of this Agreement, or ATS's lack of good faith, negligence or
willful misconduct, or the breach of any representation or warranty of ATS
hereunder.
5.03. At any time ATS may apply to any officer of the Trust designated by
the President of the Trust in a written notice to ATS for instructions, and may
consult with the Trust's legal counsel with respect to any matter arising in
connection with the services to be performed by ATS under this Agreement, and
ATS and its agents or subcontractors shall not be liable and shall be
indemnified by the Trust for any action taken or omitted by it in reliance upon
such instructions or upon the opinion of such
counsel. ATS, its agents and subcontractors shall be protected and indemnified
in acting upon any papers or documents 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 instructions, information, data, reports or documents
provided ATS or its agents or subcontractors by telephone, in person, or by
machine readable input, telex, CRT data entry or other similar means authorized
by the Trust. ATS, 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 Trust. ATS, 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 officers of
the Trust, 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
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 to the other for any damages
resulting from such failure to perform or otherwise from such causes.
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 ATS
6.01. The Trust shall promptly furnish to ATS the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Trust authorizing the appointment of ATS and the execution and delivery of
this Agreement.
(b) A copy of the Declaration of Trust and Bylaws of the Trust and
all amendments thereto.
6.02. ATS hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Trust for safekeeping of Share certificates (if
any), 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. Promptly after the date of this agreement ATS will notify the Trust of
such procedures it has established and, from time to time thereafter, ATS will
notify the Trust of any change in such procedures. Any procedures specified in
such notifications will be deemed accepted by the Trust unless the Trust
delivers notice to ATS to the contrary (such notice delivered by the Trust to
specify the respects in which such procedures are not acceptable).
6.03. ATS 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 and regulations
promulgated thereunder, ATS agrees that all such records prepared or maintained
by ATS relating to the services to be performed by ATS hereunder are the
property of the Trust and will be preserved, maintained at the expense of the
Trust and made available in accordance with such section, rules and regulations,
and will be surrendered promptly to the Trust at its request. ATS hereby agrees
that it will not use or employ, or permit any other person or entity within its
control to use or employ, any such books, records, information or data for any
purpose not authorized by the Board of Trustees of the Trust. ATS acknowledges
that its services under this Agreement (including, without limitation, the
mailing of any shareholder communications) are subject to the direction of the
Trust and agrees that it will accept direction only from the President of the
Trust, or from other persons designated in writing by the President of the Trust
or authorized by action of the Board of Trustees.
6.04 ATS 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 to that party's directors, trustees, officers, employees, legal counsel,
accountants, administrator, custodian or other consultants or service providers
that need this confidential information to perform their duties to that party
and 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, ATS will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. ATS 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, unless the
Trust indemnifies ATS to its reasonable satisfaction against such liability. ATS
will make all reasonable efforts to consult with an authorized officer of the
Trust personnel and obtain such indemnification prior to any such disclosure.
Article 7. Termination of Agreement
7.01. This Agreement shall become effective on the date hereof. Unless
terminated as herein provided, this Agreement shall remain in full force and
effect until April 30, 2004 and shall continue in full force and effect for
successive periods of one year thereafter, but only so long as each such
continuance is approved (i) by either the Trustees of the Trust or by vote of a
majority of the outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of
the Trust, and, in either event, (ii) by vote of a majority of the Trustees of
the Trust who are not parties to this Agreement or interested persons (as
defined in the ▇▇▇▇ ▇▇▇) of any such party, cast in person at a meeting called
for the purpose of voting on such approval.
7.02. This Agreement may be terminated at any time without the payment of
any penalty by vote of the Trustees of the Trust or by vote of a majority of the
outstanding voting securities (as defined in the ▇▇▇▇ ▇▇▇) of the Trust or by
ATS, on sixty days' written notice to the other party.
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. ATS may, without further consent on the part of the Trust,
subcontract for the performance hereof with any ATS affiliate duly registered as
a transfer agent, provided, however, that ATS 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 hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
Article 11. Merger of Agreement
11.01. 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 12. Limitation of Liability
12.01. A copy of the Declaration of Trust of the Trust is on file with the
Secretary of State of the Commonwealth of Massachusetts and notice is hereby
given that this Agreement is executed on behalf of the Trustees of the Trust as
trustees and not individually and that the obligations of this Agreement are not
binding upon the Trustees or holders of Shares individually but are binding only
upon the assets or property of the Trust. No Fund will be liable for the
obligations incurred by any other Fund 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.
BOSTON ADVISORS TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
Attest:
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
ADVEST TRANSFER SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
Attest:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary
ADVEST TRANSFER SERVICES, INC.
Fee Information for Services as
Plan, Transfer and Dividend Disbursing Agent
Initial Fee Schedule
BOSTON ADVISORS TRUST
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General
Fees are based on an annual per shareholder account charge for account
maintenance plus out-of-pocket expenses. Annual maintenance charges for
the Trust are given below.
Annual Maintenance Charges
The annual maintenance charge includes the processing of all
transactions and correspondence. The fee is billable on a monthly basis
at the rate of 1/12 of the annual fee. A charge is made for an account
in the month that an account opens or closes. The annual per account
fee includes the processing of an unlimited number of dividend
distributions and share transactions.
Basic annual per account fee $20.00
Out-of-Pocket Expenses
Out-of-Pocket expenses include but are not limited to: postage, forms,
telephone, microfilm, microfiche, and expenses incurred at the specific
direction of the Trust.
Payment
The above fees will be charged against the Trust's custodian checking
account five (5) days after the invoice is mailed to the Trust's
offices.
BOSTON ADVISORS TRUST ADVEST TRANSFER SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President President