AGENCY AGREEMENT
THIS AGREEMENT made the ______ day of ____________, 1995, by and
between MENTOR INSTITUTIONAL TRUST, a Massachusetts business trust, having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Fund"), and CENTRAL FIDELITY NATIONAL BANK having its principal place of
business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("CFNB"): WITNESSETH:
WHEREAS, Fund desires to appoint CFNB as Transfer Agent and Dividend
Disbursing Agent, and CFNB desires 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 CFNB as Transfer Agent and Dividend Disbursing Agent for
Fund, there will be filed with CFNB the following documents:
A. A certified copy of the resolutions of the Trustees of Fund
appointing CFNB as Transfer Agent and Dividend Disbursing
Agent, approving the form of this Agreement, and designating
certain persons to sign share certificates, if any, and give
written instructions and requests on behalf of Fund;
B. A certified copy of the Agreement and Declaration of Trust of
Fund and all amendments thereto;
C. A certified copy of the Bylaws of Fund;
D. Copies of Registration Statements and amendments thereto, filed
with the Securities and Exchange Commission;
E. Specimens of all forms of outstanding share certificates, in
the forms approved by the Trustees of Fund, with a certificate
of the Secretary of Fund, as to such approval;
F. Specimens of the signatures of the officers of the Fund
authorized to sign share certificates and individuals
authorized to sign written instructions and requests;
G. An opinion of counsel for Fund with respect to:
(1) Fund's organization and existence under the laws of
its state of organization,
(2) The status of all shares of beneficial interest of
Fund under the Securities Act of 1933, as amended, and
any other applicable federal or state statute and
(3) That all issued shares are, and all unissued shares
will be, when issued, validly issued, fully paid and
nonassessable.
2. Certain Representations and Warranties of CFNB.
CFNB represents and warrants to Fund that:
A. It is a trust company duly organized and existing and in good
standing under the laws of Virginia.
B. It is duly qualified to carry on its business in the State of
Virginia.
C. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform the services contemplated in
this Agreement.
D. It is registered as a transfer agent to the extent required
under the Securities Exchange Act of 1934.
E. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under the Agreement.
3. Certain Representations and Warranties of Fund.
Fund represents and warrants to CFNB that:
A. It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It is an open-end diversified management investment company
registered under the Investment Company Act of 1940, as
amended.
C. A registration statement under the Securities Act of 1933 has
been filed and will be effective with respect to all shares of
Fund being offered for sale.
D. All requisite steps have been or will be taken to register
Fund's shares for sale in all applicable states.
E. Fund is empowered under applicable laws and by its Agreement
and Declaration of Trust and bylaws to enter into and perform
this Agreement.
4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement, Fund
hereby appoints CFNB as Transfer Agent and Dividend Disbursing
Agent.
B. CFNB hereby accepts such appointment and agrees that it will
act as Fund's Transfer Agent and Dividend Disbursing Agent.
CFNB agrees that it will also act as agent in connection with
Fund's periodic withdrawal payment accounts and other open
accounts or similar plans for shareholders, if any.
C. CFNB agrees to provide the necessary facilities, equipment and
personnel to perform its duties and obligations hereunder in
accordance with industry practice.
D. Fund agrees to use its best efforts to deliver to CFNB in
Richmond, Virginia, as soon as they are available, originals or
copies of all of its shareholder account records.
E. CFNB agrees that it will perform the usual and ordinary
services as transfer, dividend disbursing and shareholders'
servicing agent for the Fund, and as agent of the Fund for
shareholder accounts thereof, in a timely manner, including
issuing (including countersigning), transferring and canceling
share certificates; maintaining all shareholder accounts;
providing transaction journals; preparing shareholder meeting
lists, mailing proxies and proxy materials, receiving and
tabulating proxies, certifying the shareholder votes in the
Fund; mailing shareholder reports and prospectuses;
withholding, as required by Federal law, taxes on shareholders
accounts, disbursing income dividends and capital gains
distributions to shareholders, preparing, filing and mailing
U.S. Treasury Department Forms 1099, W2-P, 1042S and backup
withholding as required for all shareholders; preparing and
mailing confirmation forms to shareholders and dealers, as
instructed, for all purchases and liquidations of shares of the
Fund and other confirmable transactions in shareholders'
accounts; recording reinvestment of dividends and distributions
in shares of the Fund; maintaining those records necessary to
carry out CFNB's duties hereunder, including all information
reasonably required by the Fund to account for all transactions
in Fund shares, calculating the appropriate sales charge with
respect to each purchase of Fund shares as set forth in the
prospectus for the Fund, determining the portion of each sales
charge payable to the dealer participating in a sale in
accordance with schedules delivered to CFNB by the Fund's
principal underwriter or distributor (hereinafter "principal
underwriter") from time to time, disbursing dealer commissions
collected to such dealers, determining the portion of each
sales charge payable to such principal underwriter and
disbursing such commissions to the principal underwriter;
receiving correspondence pertaining to any former, existing or
new shareholder account, processing such correspondence for
proper record keeping and responding promptly to shareholder
correspondence; processing, as provided in the Fund's
prospectus, purchases or redemptions or instructions to settle
any mail or wire order purchases or redemptions received in
proper order as set forth in the prospectus, rejecting promptly
any request not received in proper order (as defined by the
Fund or its designated agents), and causing exchanges of shares
to be executed in accordance with the Fund's instructions and
prospectus and the general exchange privilege application, as
they may be amended from time to time; mailing to dealers
confirmations of wire order trades; and mailing copies of
shareholder statements to shareholders and registered
representatives of dealers in accordance with the Fund's
instructions.
It is understood by CFNB that, under the current structure of
the Fund, CFNB will maintain records and perform the services
as detailed in this Agency Agreement for only one shareholder
account.
F. CFNB will use reasonable efforts to provide, reasonably
promptly under the circumstances, the same services with
respect to any new, additional functions or features or any
changes or improvements to existing functions or features as
provided in the Fund's prospectus as amended from time to time,
provided, however, that CFNB is advised in advance by the Fund
of any changes therein. If any addition to improvement of or
change in the features and functions currently provided by CFNB
requested by the Fund requires an enhancement or modification,
CFNB shall not be liable therefore until such modification or
enhancement is installed. If any new, additional function or
feature or change or improvement to existing functions or
features or new service measurably increases CFNB's cost of
performing the services required hereunder at the current level
of service, CFNB shall advise the Fund of amount of such
increase and if the Fund elects to utilize such function,
feature or service shall be entitled to increase its fees by
the amount of the increase in costs.
5. Limit of Authority.
Unless otherwise expressly limited by the resolution of appointment or
by subsequent action by the Fund, the appointment of CFNB as Transfer
Agent will be construed to cover the full amount of authorized shares
of the class or classes for which CFNB is appointed as the same will,
from time to time, be constituted, and any subsequent increases in such
authorized amount.
6. Compensation and Expenses.
A. In consideration for its services hereunder as Transfer Agent
and Dividend Disbursing Agent, Fund will pay to CFNB from time
to time, as compensation for all services rendered as Agent,
the fees set forth in a separate schedule to be agreed to by
Fund and CFNB in writing from time to time and also all its
reasonable out-of- pocket expenses, charges, counsel fees, and
other disbursements (Compensation and Expenses) incurred in
connection with the agency. If the Fund has not paid such
Compensation and Expenses to CFNB within a reasonable time,
CFNB may charge against any monies held under this Agreement,
the amount of any Compensation and/or Expenses for which it
shall be entitled to reimbursement under this Agreement.
B. The Fund also agrees promptly to reimburse CFNB for all
reasonable out-of-pocket expenses or disbursements incurred by
CFNB in connection with the performance of services under this
Agreement including, but not limited to, expenses for postage
(in advance if requested), express delivery services, freight
charges, envelopes, checks, drafts, forms (continuous or
otherwise), specially requested reports and statements,
telephone calls, telegraphs, stationery supplies, reasonable
outside counsel fees, outside mailing firms magnetic tapes,
reels or cartridges (if sent to Fund or to a third party at
Fund's request) and magnetic tape handling charges, record
storage and media for storage of records (e.g., microfilm,
microfiche, optical platters, computer tapes), computer
equipment installed at the Fund's request at the Fund's or
third party's premises, telecommunications equipment and
related telephone lines, proxy soliciting, processing and/or
tabulating costs, and NSCC transaction fees to the extent any
of the foregoing are paid by CFNB. The Fund agrees to pay
postage expenses at least one day in advance if so requested.
In addition, any other expenses incurred by CFNB at the request
or with the consent of the Fund will be promptly reimbursed by
the Fund.
7. Operation of CFNB System.
A. In connection with the performance of its services under this
Agreement, CFNB is responsible for such items as:
(1) The accuracy of entries in CFNB records reflecting
orders and instructions received by CFNB from dealers,
shareholders, Fund or its principal underwriter;
(2) The availability and the accuracy of shareholder
lists, shareholder account verifications,
confirmations and other shareholder account
information to be produced from its 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 or Fund;
(5) The deposit daily in Fund's 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 legality of transfers,
redemptions and other shareholder account
transactions, all in conformance with CFNB's present
procedures with such changes as may be required or
approved by Fund; and
(7) The maintenance of a current duplicate set of Fund's
essential records at a secure distant location, in a
form available and usable forthwith in the event of
any breakdown or disaster disrupting its main
operation.
8. Indemnification.
A. CFNB shall at all times use reasonable care, due diligence and
act in good faith in performing its duties under this
Agreement. Except to the extent caused by CFNB's bad faith
conduct, CFNB shall not be responsible for, and the Fund shall
indemnify and hold CFNB harmless from and against, any and all
losses, damages, costs, charges, counsel fees, payments,
expenses and liability which may be asserted against or for
which may be held to be liable, to the extent arising out of or
attributable to:
(1) All actions of CFNB required to be taken by CFNB
pursuant to this Agreement, provided that CFNB has
acted in good faith and with due diligence and
reasonable care;
(2) The Fund's refusal or failure to comply with the terms
of this Agreement, the Fund's negligence or willful
misconduct, or the breach of any representation or
warranty of the Fund hereunder;
(3) The good faith reliance on, or the carrying out of,
any written or recorded oral instructions or requests
of persons designated by the Fund in writing from time
to time as authorized to give instructions on its
behalf or representatives of the Fund's investment
advisor, sponsor or principal underwriter or CFNB's
good faith reliance on, or use of, information, data,
records and documents received from, or which have
been prepared and/or maintained by the Fund, its
investment advisor, its sponsor or its principal
underwriter;
(4) Defaults by dealers or shareowners with respect to
payment for share orders previously entered;
(5) The offer or sale of the Fund's shares in violation of
any requirement under federal securities laws or
regulations or the securities laws or regulations of
any state or in violation of any stop order or other
determination or ruling by any federal agency or state
with respect to the offer or sale of such shares in
such state (unless such violation results from CFNB's
failure to comply with written instructions of the
Fund or of any officer of the Fund that no offers or
sales be made in or to residents of such state);
(6) Errors, inaccuracies, and omissions in, or errors,
inaccuracies or omissions of CFNB arising out of or
resulting from such errors, inaccuracies and omissions
in, the Fund's records, shareholder and other records,
delivered to CFNB hereunder by the Fund or its prior
agent(s).
B. CFNB shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of CFNB's
failure to comply with the terms of this Agreement or arising
out of or attributable to CFNB's negligence or willful
misconduct or breach of any representation or warranty of CFNB
hereunder. In the event CFNB shall be liable under this
subsection, then the Fund shall (unless the liability arises
out of CFNB's willful misconduct) take reasonable steps with to
mitigate the amount of such liability.
C. EXCEPT FOR VIOLATIONS OF SECTION 23., IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO
ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY, FOR
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY ACT OR
FAILURE TO ACT UNDER ANY PROVISION OF THIS AGREEMENT EVEN IF
ADVISED OF THE POSSIBILITY THEREOF.
9. Certain Covenants of CFNB and Fund.
A. All requisite steps will be taken by Fund from time to time
when and as necessary to register the Fund's shares for sale in
all states in which Fund's shares shall at the time be offered
for sale and require registration. If at any time Fund will
receive notice of any stop order or other proceeding in any
such state affecting such registration or the sale of Fund's
shares, or of any stop order or other proceeding under the
federal securities laws affecting the sale of Fund's shares,
Fund will give prompt notice thereof to CFNB.
B. CFNB hereby agrees to perform such transfer agency functions as
are set forth in Section 4E, above and establish and maintain
facilities and procedures reasonably acceptable to Fund for
safekeeping of share 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, and to carry such insurance as it considers adequate
and reasonably available.
C. To the extent required by Section 31 of the Investment Company
Act of 1940 as amended and Rules thereunder, CFNB agrees that
all records maintained by CFNB relating to the services to be
performed by CFNB under this Agreement are the property of Fund
and will be preserved and will be surrendered promptly to Fund
on request.
D. CFNB agrees to furnish Fund semiannual reports of its financial
condition, consisting of a balance sheet, earnings statement
and any other financial information reasonably requested by
Fund. The annual financial statements will be certified by
CFNB's certified public accountants.
E. CFNB represents and agrees that it will use its best efforts to
keep current on the trends of the investment company industry
relating to shareholder services and will use its best efforts
to continue to modernize and improve.
F. CFNB will permit Fund and its authorized representatives to
make periodic inspections of its operations as such would
involve the Fund at reasonable times during business hours.
10. Recapitalization or Readjustment.
In case of any recapitalization, readjustment or other change in the
capital structure of Fund requiring a change in the form of share
certificates, CFNB 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:
A. Written instructions from an officer of Fund;
B. Certified copy of the amendment to the Fund's Agreement and
Declaration of Trust or other document effecting the change;
C. Certified copy of the order or consent of each governmental or
regulatory authority, required by law to the issuance of the
shares in the new form, and an opinion of counsel that the
order or consent of no other government or regulatory authority
is required;
D. Specimens of the new certificates in the form approved by the
Trustees of Fund, with a certificate of the Secretary of Fund
as to such approval;
E. Opinion of counsel for Fund stating:
(1) The status of the shares of beneficial interest of
Fund in the new form under the Securities Act of 1933,
as amended and any other applicable federal or state
statute; and
(2) That the issued shares in the new form are, and all
unissued shares will be, when issued, validly issued,
fully paid and nonassessable.
11. Share Certificates.
Fund will furnish CFNB with a sufficient supply of blank share
certificates and from time to time will renew such supply upon the
request of CFNB. Such certificates will be signed manually or by
facsimile signatures of the officers of Fund authorized by law and by
bylaws to sign share certificates, and if required, will bear the
corporate seal or facsimile thereof.
12. Death, Resignation or Removal of Signing Officer.
Fund will file promptly with CFNB written notice of any change in the
offices authorized to sign share certificates, written instructions or
requests, together with two signature cards bearing the specimen
signature of each newly authorized officer. In case any officer of
Fund 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. CFNB may issue or
register such share certificates as the share certificates of Fund
notwithstanding such death, resignation, or removal, until specifically
directed to the contrary by Fund in writing. In the absence of such
direction, Fund will file promptly with CFNB such approval, adoption,
or ratification as may be required by law.
13. Future Amendments of Charter and Bylaws.
Fund will promptly file with CFNB copies of all material amendments to
its Agreement and Declaration of Trust or bylaws made after the date of
this Agreement.
14. Instructions, Opinion of Counsel and Signatures.
At any time CFNB may apply to any person authorized by the Fund to give
instructions to CFNB, and may with the approval of a Fund officer
consult with legal counsel for Fund or its own legal counsel at the
expense of Fund, 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 reasonably and in good faith in reliance upon such instructions or
upon the opinion of such counsel. CFNB will be protected in acting
upon any paper or document reasonably believed by it to be genuine and
to have been signed by the proper person or persons and will not be
held to have notice of any change of authority of any person, until
receipt of written notice thereof from Fund. It will also be protected
in recognizing share certificates which it reasonably believes to bear
the proper manual or facsimile signatures of the officers of Fund, and
the proper countersignature of any former Transfer Agent or Registrar,
or of a co-Transfer Agent or co-Registrar.
15. Omnibus Accounts.
The Fund recognizes that the Fund shall be marketed primarily through
broker-dealers whose clients' positions and holdings in the Fund will
be contained within an omnibus account in the broker-dealer's name.
Accordingly, the books and records of the Fund as maintained by CFNB
may not reflect the name, address and other identifying information
concerning the ultimate investors but merely the name address and other
identifying information concerning the nominee broker-dealer. Further,
CFNB shall not have any role or responsibility in choosing, accepting
or rejecting prospective broker-dealer nominees. Accordingly, CFNB
shall have no responsibility or liability for the actions or omissions
of any such broker-dealer.
16. [Intentionally Omitted].
17. Records.
CFNB will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained
pursuant to subparagraph (2)(iv) of paragraph (b) of Rule 31a-1 under
the Investment Company Act of 1940, if any.
18. Disposition of Books, Records and Canceled Certificates.
CFNB will send periodically to Fund, or to where designated by the
Secretary or an Assistant Secretary of Fund, all books, documents, and
all records no longer deemed needed for current purposes and share
certificates which have been canceled in transfer or in exchange, upon
the understanding that such books, documents, records, and share
certificates will be maintained by the Fund under and in accordance
with the requirements of Section 17Ad-7 adopted under the Securities
Exchange Act of 1934. Such materials relating to share certificates
which have been stopped and replaced and share certificates escheated
will not be destroyed by Fund without the written consent of CFNB
(which consent will not be unreasonably withheld), but will be safely
stored for possible future reference.
19. Provisions Relating to CFNB as Transfer Agent.
A. CFNB will make original issues of share certificates upon
written request of an officer of Fund and upon being furnished
with a certified copy of a resolution of the Trustees
authorizing such original issue, an opinion of counsel as
outlined in paragraphs 1.D and G. of this Agreement, any
documents required by paragraphs 5. or 10. of this Agreement,
and necessary funds for the payment of any original issue tax.
B. Before making any original issue of certificates Fund will
furnish CFNB with sufficient funds to pay all required taxes on
the original issue of the share, if any. Fund will furnish
CFNB such evidence as may be required by CFNB to show the
actual value of the shares.
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
reasonably deemed by CFNB properly endorsed for transfer or
redemption accompanied by such documents as CFNB may reasonably
deem necessary to evidence that authority of the person making
the transfer or redemption, and bearing satisfactory evidence
of the payment of any applicable share transfer taxes. CFNB
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 guaranty of signature by a firm
having membership in the New York Stock Exchange, Midwest Stock
Exchange, American Stock Exchange, Pacific Coast Stock
Exchange, or any other exchange acceptable to CFNB or by a bank
or trust company approved by it. CFNB 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
reasonable judgment, are improper or unauthorized. CFNB may,
in effecting transfers or redemptions, rely upon Simplification
Acts or other statutes which protect it and Fund in not
requiring complete fiduciary documentation.
D. When mail is used for delivery of share certificates CFNB will
forward share certificates in "nonnegotiable" form by first
class or registered mail and share certificates in "negotiable"
form by registered mail, all such mail deliveries to be covered
while in transit to the addressee by insurance arranged for by
CFNB.
E. CFNB will issue and mail subscription warrants, certificates
representing share dividends, exchanges or split ups, or act a
Conversion Agent upon receiving written instructions from any
officer of Fund and such other documents as CFNB deems
necessary.
F. CFNB will issue, transfer, and split up certificates and will
issue certificates representing full shares upon surrender of
scrip certificates aggregating one full share or more when
presented to CFNB for that purpose upon receiving written
instructions from an officer of Fund and such other documents
as CFNB may deem necessary.
G. CFNB may issue new certificates in place of certificates
represented to have been lost, destroyed, stolen or otherwise
wrongfully taken upon receiving instructions from Fund and
indemnity satisfactory to CFNB and Fund, and may issue new
certificates in exchange for, and upon surrender of, mutilated
certificates. Such instructions from Fund will be in such form
as will be approved by the Trustees of Fund and will be in
accordance with the provisions of law and by the bylaws of Fund
governing such matter.
H. CFNB will supply a shareholder's list to Fund for any
shareholder meeting upon receiving a request from an officer of
Fund. It will also supply lists at such other times as may be
requested by an officer of Fund.
I. Upon receipt of written instructions of an officer of Fund,
CFNB will address and mail notices to shareholders.
J. In case of any request or demand for the inspection of the
share books of Fund or any other books in the possession of
CFNB, CFNB will endeavor to notify Fund and to secure
instructions as to permitting or refusing such inspection. CFNB
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.
20. Provisions Relating to Dividend Disbursing Agency.
A. CFNB will, at the expense of Fund, provide a special form of
check containing the imprint of any device or other matter
desired by Fund. Said checks must, however, be of a form and
size convenient for use by CFNB.
B. If Fund desires to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be
furnished CFNB within a reasonable time prior to the date of
mailing of the dividend checks, at the expense of Fund.
C. If Fund desires its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to
CFNB but the size and form of said envelopes will be subject to
the approval of CFNB. If stamped envelopes are used, they must
be furnished by Fund; or if postage stamps are to be affixed to
the envelopes, the stamps or the cash necessary for such stamps
must be furnished by Fund.
D. CFNB will maintain one or more deposit accounts as Agent for
Fund, into which the monies received by CFNB as agent of the
Fund and monies for payment of dividends, distributions,
redemptions or other disbursements provided for hereunder will
be deposited, and against which checks will be drawn. If CFNB
shall, in its sole discretion, advance funds to the account of
the Fund which results in an overdraft on any account of Fund
maintained at CFNB, the amount of the overdraft shall be
payable on demand along with the overdraft fee provided for in
the then-current fee schedule. CFNB shall be entitled to
offset the amount owed for any such overdraft against any other
monies of Fund held by CFNB.
E. CFNB is authorized and directed to stop payment of checks
theretofore issued hereunder, but not presented for payment,
when the payees thereof allege either that they have not
received the checks or that such checks have been mislaid,
lost, stolen, destroyed or through no fault of theirs, are
otherwise beyond their control, and cannot be produced by them
for presentation and collection, and, upon receipt of
appropriate indemnities or undertakings from the payees, to
issue and deliver duplicate checks in replacement thereof.
21. Assumption of Duties By the Fund.
The Fund may assume certain duties and responsibilities of CFNB or
those usual and ordinary services of Transfer Agent and Dividend
Disbursement Agent as those terms are referred to in Section 4.E. of
this Agreement including but not limited to accepting shareholder
instructions and transmitting orders based on such instructions to
CFNB, preparing and mailing confirmations, obtaining certified TIN
numbers, and disbursing monies of the Fund. To the extent the Fund or
its agent or affiliate assumes such duties and responsibilities, CFNB
shall be relieved from all responsibility and liability therefor.
22. Termination of Agreement.
A. This Agreement may be terminated by either party upon receipt
of ninety (90) days' written notice from the other party.
B. Fund, in addition to any other rights and remedies, shall have
the right to terminate this Agreement forthwith upon the
occurrence at any time of any of the following events:
(1) Any interruption or cessation of operations by CFNB or
its assigns which materially interferes with the
business operation of Fund;
(2) The insolvency or bankruptcy of CFNB or the
appointment of a receiver for CFNB;
(3) Any merger, consolidation or sale of substantially all
the assets of CFNB;
(4) The acquisition of a controlling interest in CFNB by
any broker, dealer, investment adviser or investment
company except as may presently exist; or
(5) Failure by CFNB or its assigns to perform it duties in
accordance with the Agreement, which failure
materially adversely affects the business operations
of Fund and which failure continues for ten (10)
business days after receipt of written notice from
Fund; provided, however, that notwithstanding the
foregoing, if such failure cannot reasonably be cured
within ten (10) business days, then CFNB shall have
such time as is reasonably necessary to cure such
failure, but not to exceed thirty (30) days.
C. In the event of termination, Fund will promptly pay CFNB all
amounts due to CFNB hereunder.
D. In the event of termination, (1) CFNB will transfer the books
and records of the Fund to the designated successor transfer
for reasonable compensation therefore, and (2) CFNB will
provide other reasonably necessary information relating to its
services provided hereunder other than CFNB Protected
Information (as defined in Section 23.C.) for reasonable
compensation therefore.
23. Confidentiality.
A. CFNB agrees that, except as provided in the last sentence of
Section 19.J. hereof, or as otherwise required by law, CFNB
will keep confidential all records of and information in its
possession relating to Fund or its shareholders or shareholder
accounts and will not disclose the same to any person except at
the request or with the consent of Fund.
B. Fund agrees that, except as otherwise required by law, Fund
will keep confidential all financial statements and other
financial records (other than statements and records relating
solely to Fund's business dealings with CFNB or Fund
operations) and all manuals, systems and other technical
information and data not publicly disclosed, relating to CFNB's
operations and programs furnished to it by CFNB pursuant to the
Agreement and will not disclose the same to any person except
at the request or with the consent of CFNB.
C. If either party believes at any time that it is or may be
required by law to disclose confidential information of the
other party, it shall notify such other party thereof as
promptly as possible and permit the other party to contest the
disclosure by appropriate legal proceedings or other action.
24. Changes and Modifications.
A. During the term of this Agreement CFNB will use on behalf of
the Fund without additional cost all modifications,
enhancements, or changes which CFNB may make to its
shareholder/transfer agent processing system in the normal
course of its business and which are applicable to functions
and features offered by the Fund, unless substantially all CFNB
clients are charged separately for such modifications,
enhancements or changes, including, without limitation,
substantial system revisions or modifications necessitated by
changes in existing laws, rules or regulations. The Fund
agrees to pay CFNB promptly for modifications and improvements
utilized by the Fund which are charged for separately at the
rate provided for in CFNB's standard pricing schedule which
shall be identical for substantially all clients, if a standard
pricing schedule shall exist, provided that CFNB shall give the
Fund ninety (90) days' advance written notice thereof. If
there is no standard pricing schedule, the parties shall
mutually agree upon the rates to be charged.
B. CFNB shall have the right, at any time and from time to time,
to alter and modify any systems, programs, procedures or
facilities used or employed in performing its duties and
obligations hereunder; provided that the Fund will be notified
as promptly as possible prior to implementation of such
alterations and modifications and that no such alteration or
modification or deletion shall materially adversely change or
affect the operations and procedures of the Fund unless the
Fund is given sixty (60) days' prior notice to allow the fund
to change its procedures; and provided further, that if any fee
increase shall result therefrom, CFNB shall give the Fund
ninety (90) days' advance written notice thereof.
25. Force Majeure.
CFNB shall not be responsible or liable for its failure or delay in
performance of its obligations under this Agreement to the extent
arising out of or caused, directly or indirectly, by circumstances
beyond its reasonable control, including, without limitation:
any interruption, loss or malfunction or any utility,
transportation, computer (hardware or software) or
communication service; inability to obtain labor, material,
equipment or transportation, or a delay in mails; governmental
or exchange action, statute, ordinance, rulings, regulations,
or direction; war, strike, riot, emergency, civil disturbance,
terrorism, vandalism, explosions, labor disputes, freezes,
floods, fires, tornados, acts of God or public enemy,
revolutions, or insurrection; or any other cause, contingency,
circumstance or delay not subject to CFNB's reasonable control.
26. Declaration of Trust.
A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of the Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees
of the Fund as Trustees and not individually and that the obligations
of or arising out of this instrument are not binding upon any of the
Trustees or beneficiaries individually, but binding only upon the
assets and property of the Fund.
27. Miscellaneous.
A. This Agreement shall be construed according to, and the rights
and liabilities of the parties hereto shall be governed by, the
laws of the State of Virginia.
B. All terms and provisions of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns.
C. The representations and warranties, and the indemnification
extended hereunder, if any, are intended to and shall continue
after and survive the expiration, termination or cancellation
of this Agreement.
D. No provisions of the Agreement may be amended or modified in
any manner except by a written agreement properly authorized
and executed by each party hereto.
E. The captions in the Agreement are included for convenience of
reference only, and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
F. This Agreement may be executed 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.
G. If any part, term or provision of this Agreement is by the
courts held to be illegal, in conflict with any law or
otherwise invalid, the remaining portion or portions shall be
considered severable and not be 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.
H. This Agreement may not be assigned by any party hereto without
prior written consent of the other parties.
I. Neither the execution nor performance of this Agreement shall
be deemed to create a partnership or joint venture by and
between Fund and CFNB.
J. Except as specifically provided herein, this Agreement does not
in any way affect any other agreements entered into among the
parties hereto and any actions taken or omitted by any party
hereunder shall not affect any rights or obligations of any
other party hereunder.
K. The failure of either party to insist upon the performance of
any terms or conditions of this Agreement or to enforce any
rights resulting from any breach of any of the terms or
conditions of this Agreement, including the payment of damages,
shall not be construed as a continuing or permanent waiver of
any such term, conditions, rights or privileges, but the same
shall continue and remain in full force and effect as if no
such forbearance or waiver had occurred.
L. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement, draft or
agreement or proposal with respect to the subject matter
hereof, whether oral or written, and this Agreement may not be
modified except by written instrument executed by both parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, to be effective the
_______ day of ________________, 1995.
CENTRAL FIDELITY NATIONAL BANK
By:_________________________________
Title:______________________________
MENTOR INSTITUTIONAL TRUST
By:________________________________
Title:_____________________________