EXHIBIT 9.4
AGENCY AGREEMENT
THIS AGREEMENT made as of the 1st day of January, 1997, by
and between ▇▇▇▇▇▇ OMNI INVESTMENT TRUST, a Massachusetts
business trust (the "Fund"), which consists of separate
portfolios represented by separate series of shares, and each
series of which may be comprised of one or more classes of shares
of beneficial interest (each such class, and each portfolio that
has only one class being referred to herein, together with any
such portfolios and classes hereafter constituted, where
appropriate, individually as a "Portfolio," or collectively as
the "Portfolios") having its principal place of business at ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
INVESTORS FIDUCIARY TRUST COMPANY, a state chartered trust
company organized and existing under the laws of the State of
Missouri, having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("IFTC"):
WITNESSETH:
WHEREAS, Fund desires to appoint IFTC as Transfer Agent and
Dividend Disbursing Agent, and IFTC desires to accept such
appointment;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
1. CERTAIN REPRESENTATIONS AND WARRANTIES OF IFTC. IFTC
______________________________________________ represents
and warrants to Fund that:
A. It is a trust company duly organized and existing and
in good standing under the laws of Missouri.
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 Trust
Instrument 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 this Agreement.
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2. CERTAIN REPRESENTATIONS AND WARRANTIES OF FUND. Fund
______________________________________________ represents
and warrants to IFTC 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 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
Trust Instrument and bylaws to enter into and perform this
Agreement.
3. SCOPE OF APPOINTMENT.
____________________
A. Subject to the conditions set forth in this Agreement,
Fund hereby employs and appoints IFTC as Transfer Agent and
Dividend Disbursing Agent.
B. IFTC hereby accepts such employment and appointment and
agrees that it will act as Fund's Transfer Agent and
Dividend Disbursing Agent. IFTC agrees that it will also
act as agent in connection with each Portfolio's periodic
withdrawal payment accounts and other open accounts or
similar plans for shareholders, if any.
C. IFTC 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 IFTC
in Kansas City, Missouri, as soon as they are available, all
of its shareholder account records.
E. Subject to the provisions of Sections 17 and 18 hereof,
IFTC agrees that it will perform all of 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 beneficial interest certificates,
if any, maintaining all shareholder accounts, preparing
shareholder meeting lists, mailing proxies, receiving and
tabulating proxies, mailing shareholder reports and
prospectuses, withholding taxes on nonresident alien and
foreign corporation accounts, for pension and
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deferred income, backup withholding or other instances
agreed upon by the parties, preparing and mailing checks for
disbursement of redemptions, income dividends and capital
gains distributions, preparing and filing U.S. Treasury
Department Form 1099 for all shareholders, preparing and
mailing confirmation forms to shareholders and dealers with
respect to all purchases and redemptions of Fund shares and
other transactions in shareholder accounts for which
confirmations are required, recording reinvestments of
dividends and distributions in Fund shares, and cooperating
with broker-dealers and financial intermediaries who
represent shareholders of the Fund.
4. UNLIMITED SHARES. Unless otherwise expressly limited by the
________________ Fund, the appointment of IFTC as Transfer
Agent will be construed to cover an unlimited number of
authorized shares of beneficial interest.
5. COMPENSATION AND EXPENSES.
_________________________
A. In consideration for its services hereunder as Transfer
Agent and Dividend Disbursing Agent, Fund will pay to IFTC
from time to time a reasonable compensation for all services
rendered as Agent, and also, all its reasonable out-of-
pocket expenses, charges, counsel fees, and other
disbursements (Compensation and Expenses) incurred in
connection with the agency. Such compensation is set forth
in a separate schedule, a copy of which is attached hereto
and incorporated herein by reference. IFTC shall make
reasonable efforts to ▇▇▇▇ the Fund as soon as practicable
after the end of each calendar month for the Compensation
and Expenses due for that month and said billing shall be
detailed in accordance with the such schedule. If the Fund
has not paid such Compensation and Expenses to IFTC within a
reasonable time, IFTC 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. Fund agrees to promptly reimburse IFTC for all
reasonable out-of-pocket expenses or advances incurred by
IFTC in connection with the performance of services under
this Agreement, for 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
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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. IFTC will provide to Fund no less often than monthly
a detailed accounting of all such expenses on behalf of the
Fund.
6. OPERATION OF IFTC SYSTEM. In connection with the
________________________ performance of its services under
this Agreement, IFTC is responsible for such items as:
A. The accuracy of entries in IFTC's records reflecting
orders and instructions received by IFTC from dealers,
shareholders, Fund or its principal underwriter;
B. 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;
C. The accurate and timely issuance of dividend and
distribution checks in accordance with instructions received
from Fund;
D. The accuracy of redemption transactions and payments in
accordance with redemption instructions received from
dealers, shareholders or Fund;
E. The deposit daily in Fund's appropriate special bank
account of all checks and payments received from dealers or
shareholders for investment in shares;
F. 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 IFTC's and the Fund's present procedures
with such changes as may be required or approved by Fund;
and
G. 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.
7. INDEMNIFICATION.
_______________
A. IFTC will not be responsible for, and Fund will hold
harmless and indemnify IFTC from and against any loss by or
liability to the Fund or a third party, including reasonable
attorney's fees, in connection with any claim or suit
asserting any such liability arising out of or attributable
to actions taken or omitted by IFTC pursuant to this
Agreement, unless IFTC has acted negligently or in bad
faith. The matters covered by this indemnification
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include but are not limited to those of Section 13 hereof.
Fund will be responsible for, and will have the right to
conduct or control the defense of any litigation asserting
liability, including reasonable attorney's fees, against
which IFTC is indemnified hereunder. IFTC will not be under
any obligation to prosecute or defend any action or suit in
respect of the agency relationship hereunder, which, in its
opinion, may involve it in expense or liability, unless Fund
will, as often as requested, furnish IFTC with reasonable,
satisfactory security and indemnity against such expense or
liability.
B. IFTC will hold harmless and indemnify Fund from and
against any loss or liability arising out of IFTC's
negligence or bad faith in performing its duties under this
Agreement, including reasonable attorney's fees.
8. CERTAIN COVENANTS OF IFTC 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 IFTC.
B. IFTC hereby agrees to perform such transfer agency
functions as are set forth in Section 3.E above and
establish and maintain facilities and procedures reasonably
acceptable to Fund for safekeeping of shares of beneficial
interest 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 and not to substantially
reduce such level of insurance without prior notice to the
Fund.
C. To the extent required by Section 31 of the Investment
Company Act of 1940 as amended and Rules thereunder, IFTC
agrees that all records maintained by IFTC relating to the
services to be performed by IFTC under this Agreement are
the property of Fund and will be preserved and will be
surrendered promptly to Fund on request.
D. IFTC agrees to furnish Fund semiannual reports of its
financial condition, consisting of a balance sheet, earnings
statement and any other financial information
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reasonably requested by Fund. The annual financial
statements will be certified by IFTC's certified public
accountants.
E. IFTC 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. IFTC 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.
9. 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 beneficial interest
certificates, IFTC 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 written instructions
from an officer of Fund, along with such written documentation as
IFTC deems necessary.
10. BENEFICIAL INTEREST CERTIFICATES. Fund will furnish IFTC
________________________________ with a sufficient supply of
blank beneficial interest certificates and from time to time will
renew such supply upon the request of IFTC. Such certificates
will be signed manually or by facsimile signatures of the
officers of Fund authorized by law and by bylaws to sign such
certificates, and if required, will bear the corporate seal or
facsimile thereof.
11. DEATH, RESIGNATION OR REMOVAL OF SIGNING OFFICER. Fund will
________________________________________________ file
promptly with IFTC written notice of any change in the officers
authorized to sign 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 certificates will die,
resign, or be removed prior to the issuance of such certificates,
IFTC may issue or register such certificates as the 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
IFTC such approval, adoption, or ratification as may be required
by law.
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12. FUTURE AMENDMENTS OF TRUST INSTRUMENT AND BYLAWS. Fund will
________________________________________________ promptly
file with IFTC copies of all material amendments to its Trust
Instrument or bylaws made after the date of this Agreement.
13. INSTRUCTIONS, OPINION OF COUNSEL AND SIGNATURES. At any
_______________________________________________ time IFTC
may apply to any person authorized by the Fund to give
instructions to IFTC, 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 in good faith in reliance upon such
instructions or upon the opinion of such counsel. IFTC 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 beneficial interest 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.
14. PAPERS SUBJECT TO APPROVAL OF COUNSEL. The acceptance by
_____________________________________ IFTC 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 IFTC (which approval will be not
unreasonably withheld).
15. RECORDS. IFTC 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 for the period and in the
manner prescribed by Rule 31a-2 under the Investment Company Act
of 1940, if any.
16. DISPOSITION OF BOOKS, RECORDS AND CANCELED CERTIFICATES.
_______________________________________________________ IFTC
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 beneficial interest certificates which have been
canceled in transfer or in exchange, upon the understanding that
such books, documents, records, and beneficial interest
certificates will not be destroyed by Fund without the consent of
IFTC (which consent will not be unreasonably withheld), but will
be safely stored for possible future reference.
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17. PROVISIONS RELATING TO IFTC AS TRANSFER AGENT.
_____________________________________________
A. IFTC will make original issues of beneficial interest
certificates upon written request of an officer of Fund and
such other written documentation as IFTC deems necessary,
and receipt of necessary funds for the payment of any
original issue tax.
B. Before making any original issue of certificates Fund
will furnish IFTC with sufficient funds to pay all required
taxes on the original issue of the shares of beneficial
interest, if any. Fund will furnish IFTC such evidence as
may be required by IFTC to show the actual value of such
shares. If no taxes are payable IFTC will be furnished with
an opinion of outside counsel to that effect.
C. Shares of beneficial interest will be transferred and
new certificates issued in transfer, or shares of beneficial
interest accepted for redemption and funds remitted
therefor, upon surrender of the old certificates in form
deemed by IFTC properly endorsed for transfer or redemption
accompanied by such documents as IFTC may deem necessary to
evidence that authority of the person making the transfer or
redemption, and bearing satisfactory evidence of the payment
of any applicable transfer taxes. IFTC 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 financial
institution as permitted by the Fund's prospectus or as
otherwise required by applicable law. IFTC 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 or unauthorized. IFTC
may, in effecting transfers or redemptions, rely upon
Simplification Acts or other statutes which protect it and
Fund in not requiring complete fiduciary documentation. In
cases in which IFTC is not directed or otherwise required to
maintain the consolidated records of shareholder's accounts,
IFTC will not be liable for any loss which may arise by
reason of not having such records, provided that such loss
could not have been prevented by the exercise of ordinary
diligence.
D. When mail is used for delivery of beneficial interest
certificates IFTC will forward certificates in
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"nonnegotiable" form by first class or registered mail and
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 IFTC.
18. IFTC will issue and mail subscription warrants, certificates
representing dividends, exchanges or split ups, or act as
Conversion Agent upon receiving written instructions from any
officer of Fund and such other documents as IFTC deems necessary.
A. IFTC will issue, transfer, and split up certificates
and will issue certificates of beneficial interest
representing full shares upon surrender of scrip
certificates aggregating one full share or more when
presented to IFTC for that purpose upon receiving written
instructions from an officer of Fund and such other
documents as IFTC may deem necessary.
B. IFTC 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 IFTC
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 the bylaws of Fund governing
such matter.
C. IFTC will supply a shareholder's list to Fund for its
annual 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.
D. Upon receipt of written instructions of an officer of
Fund, IFTC will address and mail notices to shareholders.
E. In case of any request or demand for the inspection of
the shareholder records of Fund or any other books in the
possession of IFTC, IFTC will endeavor to notify Fund and to
secure instructions as to permitting or refusing such
inspection. IFTC reserves the right, however, to exhibit
the shareholder records 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 shareholder records or other
books to such person.
F. In the event that any check or other order for the
payment of money is returned unpaid for any reason, IFTC
will: (i) within three days give written notice of such
return to the Fund or its designee; (ii) place a stop
transfer order against all Fund shares issued
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in certificate form as a result of such check or order or
cancel the purchase of Fund shares issued in book-entry form
as a result of such check or order, (iii) take such other
steps as IFTC may, in its discretion, deem appropriate or as
the Fund or its designee may instruct.
G. Upon receipt of all necessary information and
documentation relating to a redemption, IFTC will issue to
the Fund's custodian an advice setting forth the number of
shares of the Fund received by IFTC for redemption. IFTC
shall, upon notification that the custodian has transferred
funds for the redemption of shares to a redemption account
at IFTC or at another bank, pay such moneys to the
shareholder, his authorized agent or legal representative.
H. IFTC is authorized to review and process transfers of
shares of the Fund and exchanges between the Fund and other
mutual funds for which IFTC acts as transfer agent as
permitted in the prospectus for the Fund, on the records of
the Fund maintained by IFTC. If shares to be transferred
are represented by outstanding certificates, IFTC shall,
upon surrender to it of the certificates in proper form for
transfer, and upon cancellation thereof, countersign and
issue new certificates for a like number of shares (if so
requested by the registered holder thereof) and deliver the
same. If the shares to be transferred are not represented
by outstanding certificates, IFTC shall upon an order
thereof by or on behalf of the registered holder thereof in
proper form, credit the same to the transferee on its books.
If shares are to be exchanged for shares of another mutual
fund, IFTC will process such shares exchanged in the same
manner as a redemption and sale of shares, except that it
may in its discretion waive requirements for information and
documentation.
I. Unless otherwise instructed by the Fund, IFTC shall
maintain records showing for each investor's account the
following: (i) names, addresses, tax identifying numbers
and assigned account numbers; (ii) numbers of shares held;
(iii) historical information regarding the account of each
shareholder, including dividends paid and date and price of
all transactions on a shareholder's account; (iv) any stop
or restraining order placed against a shareholder's account
or on lost and/or replaced certificates; (v) information
with respect to withholdings in the case of a foreign
account; (vi) any capital gain or dividend reinvestment
order, account application, dividend address and
correspondence relating to the current maintenance of a
shareholder's account; (vii) certificate numbers and
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denominations for any shareholders holding certificates; and
(viii) any information required in order to permit the Fund
to confirm that IFTC has properly performed the calculations
contemplated or required by this Agreement.
J. IFTC will maintain records necessary to reflect the
crediting of dividends which are reinvested in shares of the
Fund.
K. IFTC will investigate all shareholder inquiries related
to shareholder accounts and respond promptly to
correspondence from shareholders.
L. If requested and as directed by the Fund, IFTC will
address and mail all communications to shareholders or their
nominees, including proxy material and periodic reports to
shareholders.
M. In connection with special and annual meetings of
shareholders, IFTC will prepare shareholder lists, mail and
certify as to the mailing of proxy materials, process and
tabulate returned proxy cards, report on proxies voted and
received by IFTC prior to meetings as stated in the proxy
statement, and certify to the Secretary of the Fund shares
to be voted at meetings.
N. In addition to the duties expressly provided for
herein, IFTC shall perform such other duties and functions
as are set forth in the Compensation and Expenses schedule
hereto from time to time.
19. PROVISIONS RELATING TO DIVIDEND DISBURSING AGENCY.
_________________________________________________
A. IFTC will maintain one or more deposit accounts as
Agent for the Fund, into which the funds for payment of
dividends, distributions, redemptions or other disbursements
provided for hereunder will be deposited, and against which
checks for the foregoing purposes will be drawn (Accounts).
Such Accounts may be maintained in IFTC's own banking
department, in State Street Bank and Trust Company, and in
such other banks or trust companies as may be designated by
IFTC and as properly authorized by resolution of the
Trustees of the Fund, such Accounts, however, to be in the
name of IFTC as agent of the Fund and subject only to its
draft or order.
B. Upon the receipt of proper instructions, as described
below, which may be continuing instructions when deemed
appropriate by the parties, IFTC shall pay out monies of the
Fund in such Accounts in the following cases only:
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1. For the redemption of Fund shares according to the
Fund's then current prospectus;
2. For the payment of any dividends declared by the
Fund or other distributions to shareholders of the
Fund; and
3. For any other proper purpose, but only upon
receipt of proper instructions specifying the amount of
such payment, setting forth the purpose for which such
payment is to be made, declaring such purpose to be a
proper purpose, and naming the person or persons to
whom such payment is to be made.
IFTC shall disburse funds from such Accounts as directed
upon receipt of instructions from the Fund. All
instructions shall be given only by persons designated in
writing to IFTC by the Fund to be authorized to give
instructions to IFTC under this Agreement. Instructions may
be in writing executed by an authorized representative of
the Fund or, if IFTC reasonably believes such instructions
to be by an authorized representative of the Fund, via
telecommunications.
C. The Fund will promptly notify IFTC of the declaration
of any dividend or distribution. The Fund shall furnish to
IFTC a written document specifying the date of the
declaration of such dividend or distribution, the date of
payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable
per share to shareholders of record as of that date, and the
total amount payable to IFTC on the payment date.
D. IFTC will, on or before the payable date of any
dividend or distribution, notify the Fund's custodian and
the Fund of the estimated amount of cash required to pay
said dividend or distribution. On or before the mailing
date of such dividend or distribution, Fund shall instruct
the custodian to place in a dividend disbursing account at
IFTC or another bank, funds equal to the cash amount to be
paid out. IFTC will calculate, prepare and mail checks to,
or (where appropriate) credit such dividend or distribution
to the account of, Fund shareholders, and maintain and
safeguard all required underlying records.
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E. As directed by the Fund, IFTC shall prepare and mail to
each Fund shareholder such information with respect to each
dividend or distribution as is required by applicable
federal income tax laws and regulations and by the
Investment Company Act of 1940.
F. As directed by the Fund, IFTC shall file such
appropriate information returns concerning the payment of
dividends and capital gain distributions with the proper
federal authorities as are required by federal law to be
filed by the Fund and shall withhold such sums as are
required to be withheld by federal law.
G. IFTC will, at the expense of the Fund, provide a
special form of check containing the imprint of any device
or other matter desired by Fund. Such form of checks must,
however, be compatible with the equipment employed by IFTC
and its agents.
H. If the Fund desires to include additional printed
matter, financial statements, etc. with the dividend checks,
the same will be furnished to IFTC within a reasonable time
prior to the date of mailing of the dividend checks, at the
expense of the Fund.
I. If the Fund desires that its distributions be mailed in
any special form of envelopes, a sufficient supply of the
same will be furnished to IFTC, but the size and form of
said envelopes will be subject to the approval of IFTC. 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 the Fund prior to mailing.
J. IFTC 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 collections, and, to
issue and deliver duplicate checks in replacement thereof
upon receipt of properly executed affidavits.
20. ASSUMPTION OF DUTIES BY THE FUND. The Fund may assume
________________________________ certain duties and
responsibilities of IFTC or those usual and ordinary services of
Transfer Agent and Dividend Disbursement Agent as those terms are
referred to in Section 3.E of this Agreement including but not
limited to accepting shareholder instructions and transmitting
orders based on such instructions to IFTC, preparing and mailing
confirmations, obtaining certified TIN numbers, and disbursing
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monies of the Fund. To the extent the Fund or its agent or
affiliate assumes such duties and responsibilities, IFTC
shall be relieved from all responsibility and liability
therefor.
21. TERMINATION OF AGREEMENT.
________________________
A. This Agreement may be terminated by either party upon
receipt of sixty (60) 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
IFTC or its assigns which materially interferes with
the business operation of Fund;
(2) The bankruptcy of IFTC or its assigns or the
appointment of a receiver for IFTC or its assigns;
(3) Any merger, consolidation or sale of substantially
all the assets of IFTC or its assigns;
(4) The acquisition of a controlling interest in IFTC
or its assigns, by any broker, dealer, investment
adviser or investment company except as may presently
exist; or
(5) Failure by IFTC or its assigns to perform its
duties in accordance with the Agreement, which failure
materially adversely affects the business operations of
Fund and which failure continues for thirty (30) days
after receipt of written notice from Fund; or
(6) The Fund does not receive shareholder approval to
enter into an investment advisory agreement with ▇▇▇▇▇▇
Associates, Inc. and a sub-advisory agreement with
Perkins, Wolf, ▇▇▇▇▇▇▇▇▇ & Company on or before
February _____, 1997.
C. In the event of termination, Fund will promptly pay
IFTC all amounts due to IFTC hereunder.
D. In the event of termination, IFTC will use its best
efforts to transfer the books and records of the Fund to the
designated successor transfer agent and to provide other
information relating to its service provided hereunder for
reasonable compensation therefor.
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22. ASSIGNMENT. Neither this Agreement nor any rights or
__________ obligations hereunder may be assigned by IFTC
without the written consent of Fund; provided, however, no
assignment will relieve IFTC of any of its obligations hereunder.
IFTC may, however, employ agents to assist it in performing its
duties hereunder. This Agreement will inure to the benefit of
and be binding upon the parties and their respective successors
and assigns.
23. CONFIDENTIALITY.
_______________
A. IFTC agrees that, except as provided in the last
sentence of Section 17.J hereof, or as otherwise required by
law, IFTC 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 to keep confidential all financial
statements and other financial records (other than
statements and records relating solely to Fund's business
dealings with IFTC) and all manuals, systems and other
technical information and data, not publicly disclosed,
relating to IFTC's operations and programs furnished to it
by IFTC pursuant to this Agreement and will not disclose the
same to any person except at the request or with the consent
of IFTC.
C. The Fund acknowledges that IFTC and DST Systems, Inc.
(DST) have proprietary rights in and to the computerized
data processing recordkeeping system used by IFTC to perform
services hereunder including, but not limited to the
maintenance of shareholder accounts and records, processing
of related information and generation of output (the MFS
System), including, without limitation any changes or
modifications of the MFS System and any other IFTC or DST
programs, data bases, supporting documentation, or
procedures ("collectively IFTC Protected Information") which
the Fund's access to the MFS System or computer hardware or
software may permit the Fund or its employees or agents to
become aware of or to access and that the IFTC Protected
Information constitutes confidential material and trade
secrets of IFTC. The Fund agrees to maintain the
confidentiality of the IFTC Protected Information. The Fund
acknowledges that any unauthorized use, misuse, disclosure
or taking of IFTC Protected Information which is
confidential as provided by law, or which is a trade secret,
residing or existing internal or
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external to a computer, computer system, or computer
network, or the knowing and unauthorized accessing or
causing to be accessed of any computer, computer system, or
computer network, may be subject to civil liabilities and
criminal penalties under applicable state law. The Fund
will advise all of its employees and agents who have access
to any IFTC Protected Information or to any computer
equipment capable of accessing IFTC or DST hardware or
software of the foregoing. IFTC and DST are intended to be,
and shall be, third party beneficiaries of the Fund's
obligations and undertakings contained in this Section.
24. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
__________________________________________ representations
and warranties by either party herein contained will survive the
execution and delivery of this Agreement.
25. LIMITATION OF LIABILITY. Notice is hereby given that the
_______________________ Fund is a business trust organized
under the laws of the Commonwealth of Massachusetts pursuant to a
Declaration of Trust filed in the office of the Secretary of
State of the Commonwealth of Massachusetts. All parties to this
Agreement acknowledge and agree that the Fund is a series Fund
and all debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular
series shall be enforceable against the assets held with respect
to such series only, and not against the assets of the Fund
generally or against the assets held with respect to any other
series and further that no trustee, officer or holder of shares
of beneficial interest of the Fund shall be personally liable for
any of the foregoing.
26. MISCELLANEOUS.
_____________
A. This Agreement is executed and delivered in the State
of Missouri and shall be governed by the laws of said state.
B. All the terms and provisions of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by
the respective successors and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or
modified, in any manner except by a written agreement
properly authorized and executed by both parties hereto.
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D. The captions in this 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.
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 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.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their respective duly authorized officers.
INVESTORS FIDUCIARY TRUST COMPANY
By: ______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive
Vice President
▇▇▇▇▇▇ OMNI INVESTMENT TRUST
By:________________________________
Title: ___________________________
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