EXHIBIT 99.23(h)(2)
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into on this ____ day of November,
1998, by and between The Xxxxxxx Funds, a business trust organized under the
laws of the State of Delaware (hereinafter referred to as the "Trust") on behalf
of any of its separate series as described in Exhibit A to this Agreement (each
such series is hereafter referred to as a "Fund" and collectively as the
"Funds") and Firstar Mutual Fund Services, LLC, a corporation organized under
the laws of the State of Wisconsin (hereinafter referred to as the "Agent").
WHEREAS, the Trust is an open-ended management investment company which is
registered under the Investment Company Act of 1940, as amended (the " 1940
Act"); and
WHEREAS, the Agent is in the business of administering transfer and
dividend disbursing agent functions for the benefit of its customers;
NOW, THEREFORE, the Trust and the Agent do mutually promise and agree as
follows:
1. Terms of Appointment; Duties of the Agent
Subject to the terms and conditions set forth in this Agreement, the Trust
hereby employs and appoints the Agent to act as transfer agent and dividend
disbursing agent.
The Agent shall perform all of the customary services of a transfer agent
and 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:
A. Receive and process orders for the purchase of shares of the Funds
received in good order and issue and credit shareholder accounts
with the appropriate number of certified or uncertified shares.
Receive payments by check, Fed wire, or through Automated Clearing
House ("ACH") processing. Prepare and process daily deposit or
delivery of payment and proper supporting documentation to the
Trust's custodian.
B. Establish shareholder accounts with appropriate demographic data,
information regarding participation in plans (i.e., systematic
withdrawal, automatic investment, dividend reinvestment, etc.) and
information regarding tax I.D. certification or non-resident alien
records, including backup withholding. Make changes to shareholder
accounts to reflect changes in demographic data or participation in
plans.
C. Maintain valid and appropriate participation with the National
Securities Clearing Corporation ("NSCC") and provide access to
NSCC's Fund/Serv System for the Funds as agreed from time-to-time
with the Trust.
D. Produce shareholder lists and ad hoc reports for proxy solicitations
or as requested by Trust management, including lists of linked
accounts within Funds or across multiple
funds to facilitate combined statements, or lists of accounts linked by
social security number, last name and/or address to facilitate household
mailings.
E. Create and produce mailing labels for regular, periodic or special
mailings to shareholders or households.
F. Receive and process redemption requests received in good order by
mail, telephone or other proper method, including automated
processing of systematic withdrawal transactions on a monthly basis.
Deliver appropriate redemption documentation to the Trust's
custodian.
G. Administer distribution of redemption proceeds, in coordination with
Trust's custodian, by check, Fed Wire or ACH processing.
H. Process transfers of shares in accordance with the shareowner's
instructions;
I. Process exchanges between Funds within the same family of Funds upon
request by mail, telephone, or other proper method;
J. Issue and/or cancel certificates as instructed; replace lost,
stolen, or destroyed certificates upon receipt of satisfactory
indemnification or surety bond;
K. Prepare and transmit payments for dividends and distributions
declared by the Trust by providing automated processing of dividend
and capital gains payments with daily, monthly, quarterly, or annual
distributions. Payment options will include reinvestment, directed
payment to another Fund, or cash via mail, Fed Wire or ACH.
L. Record the issuance of shares of the Trust and maintain, pursuant to
Securities Exchange Act of 1934 Rule 17Ad-10(e), a record of the
total number of shares of the Trust which are authorized, issued,
and outstanding;
M. Prepare shareholder meeting lists and, if applicable, mail, receive,
and tabulate proxies;
N. Provide toll-free telephone lines and sufficient personnel to answer
shareholder calls. Telephone representatives should provide routine
account information; respond to requests for information regarding
transaction details including direct and wire purchases,
redemptions, exchanges, transfers, systematic withdrawals, or
purchases, Fund SERV, or wire order trades; assist in problem
solving; and process telephone transactions.
O. Provide silent monitoring of telephone representatives to ensure
quality of customer service and record and maintain tape recordings
of all shareholder calls for a six-month period.
P. Customer inquiries or problems communicated by mail, telephone, or
other proper method should be researched by Agent personnel in a
reasonably prompt manner and any difficulties should be reported to
the Trust. Such inquiries/problems may include
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shareholder account information, historical account information,
stop payments on checks, transaction details or lost certificates.
Q. Prepare and mail laser printed confirmations and/or account
statements for all purchases, redemptions and other confirmable
transactions on a monthly basis, or as requested by the Trust.
Shareholder account statements should show beginning and ending
share price and account value and daily activity including dividends
and distributions, with share price and transaction amounts.
R. Mail prospectuses (with statements or confirmations if requested),
prospectus stickers or supplements, statements of additional
information and shareholder reports to current shareholders, as
requested by the Trust.
S. Provide appropriate transfer agency services to facilitate
Fund-sponsored XXX and SEP-XXX plans using Firstar Trust Company as
custodian, as well as Fund-sponsored qualified retirement plans
(such as 401(k) and 403(b) plans).
T. Prepare and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to dividends
and distributions for all shareholders;
U. Provide a Blue Sky System which will enable the Trust to monitor the
total number of Fund shares sold in each state. In addition, the
Trust shall identify to the Agent in writing those transactions and
assets to be treated as exempt from the Blue Sky reporting to the
Trust for each state. The responsibility of the Agent for the
Trust's Blue Sky state registration status is solely limited to the
initial compliance by the Trust and the reporting of such
transactions to the Trust.
2. Compensation
The Trust agrees to pay the Agent for performance of the duties listed in
this Agreement; the fees and out-of-pocket expenses include, but are not limited
to the following: printing, postage, forms, stationery, record retention,
mailing, insertion, programming, labels, shareholder lists and proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Trust and the Agent.
The Trust agrees to pay all fees and reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
3. Representations of Agent
The Agent represents and warrants to the Trust that:
A. It is a trust company duly organized, existing and in good standing
under the laws of Wisconsin;
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B. It is a registered transfer agent under the Securities Exchange Act
of 1934 as amended.
C. It is duly qualified to carry on its business in the state of
Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws
to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it
to enter and perform this Agreement; and
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
G. It will comply with all applicable requirements of the Securities
Act of 1933 and the Securities Exchange Act of 1934, as amended, the
Investment Company Act of 1940, as amended, and any laws, rules, and
regulations of governmental authorities having jurisdiction.
4. Representations of the Trust
The Trust represents and warrants to the Agent that:
A. The Trust is an open-ended diversified investment company registered
under the 1940 Act;
B. The Trust is a business Trust organized, existing, and in good
standing under the laws of the State of Delaware;
C. The Trust is empowered under applicable laws and by its Agreement
and Declaration of Trust and bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Agreement and Declaration
of Trust have been taken to authorize it to enter into and perform
this Agreement;
E. The Trust will comply with all applicable requirements of the
Securities Act of 1933 and the Securities Exchange Act of 1934, as
amended, the 1940 Act, and any laws, rules, and regulations of
governmental authorities having jurisdiction; and
F. 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.
5. Covenants of the Trust and Agent
The Trust shall furnish the Agent a certified copy of the resolution of
the Board of Trustees of the Trust authorizing the appointment of the Agent and
the execution of this Agreement. The Trust shall
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provide to the Agent a copy of the Agreement and Declaration of Trust , bylaws
of the Trust and all amendments.
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable and as required by
the 1940 Act and related rules. To the extent required by Section 31 of the 1940
Act and the rules thereunder, the Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed by the Agent
hereunder are the property of the Trust and will be preserved, maintained and
made available in accordance with such section and rules and will be surrendered
to the Trust on and in accordance with its request.
6. Indemnification; Remedies Upon Breach
The Agent shall exercise reasonable care in the performance of its duties
under this Agreement. The Agent shall not be liable for any loss suffered by the
Fund in connection with matters to which this Agreement relates, including
losses resulting from mechanical breakdowns or the failure of communication or
power supplies beyond the Agent's control, except a loss resulting from the
Agent's refusal or failure to comply with the terms of this Agreement or from
bad faith, negligence, or willful misconduct on its part in the performance of
its duties under this Agreement. Notwithstanding any other provision of this
Agreement, the Trust shall indemnify and hold harmless the Agent from and
against any and all claims, demands, losses, expenses, and liabilities (whether
with or without basis in fact or law) of any and every nature (including
reasonable attorneys' fees) which the Agent may sustain or incur or which may be
asserted against the Agent by any person arising out of any action taken or
omitted to be taken by it in performing the services hereunder (i) in accordance
with the foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to the Agent by any duly authorized officer of the Trust,
such duly authorized officer to be included in a list of authorized officers
furnished to the Agent attached as Schedule D and as amended from time to time
in writing by resolution of the Board of Trustees of the Trust.
Further, the Trust will indemnify and hold the Agent harmless against any
and all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action, or suit as
a result of the negligence of the Trust or the principal underwriter (unless
contributed to by the Agent's breach of this Agreement or other Agreements
between the Trust and the Agent, or the Agent's own negligence or bad faith); or
as a result of the Agent acting upon telephone instructions relating to the
exchange or redemption of shares received by the Agent and reasonably believed
by the Agent under a standard of care customarily used in the industry to have
originated from the record owner of the subject shares; or as a result of acting
in reliance upon any genuine instrument or stock certificate signed,
countersigned, or executed by any person or persons authorized to sign,
countersign, or execute the same.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such a
breakdown at the expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans that are comparable to those employed
by the financial services industry, with appropriate parties, making reasonable
provision for emergency use of electrical data processing equipment to the
extent appropriate equipment is available. Representatives of the Trust shall be
entitled to inspect the Agent's premises and
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operating capabilities at any time during regular business hours of the Agent,
upon reasonable notice to the Agent.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the Trust may be asked to
indemnify or hold the Agent harmless, the Trust shall be fully and promptly
advised of all pertinent facts concerning the situation in question, and it is
further understood that the Agent will use all reasonable care to notify the
Trust promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Trust.
The Trust shall have the option to defend the Agent against any claim which may
be the subject of this indemnification. In the event that the Trust so elects,
it will so notify the Agent and thereupon the Trust shall take over complete
defense of the claim, and the Agent shall in such situation initiate no further
legal or other expenses for which it shall seek indemnification under this
section. The Agent shall in no case confess any claim or make any compromise in
any case in which the Trust will be asked to indemnify the Agent except with the
Trust's prior written consent.
The Agent shall indemnify and hold the Trust harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which may be asserted against the Trust by any person arising
out of any action taken or omitted to be taken by the Agent as a result of the
Agent's refusal or failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
7. Confidentiality
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Trust and its
shareholders and shall not be disclosed to any other party, except after prior
notification to and approval in writing by the Trust, which approval shall not
be unreasonably withheld and may not be withheld where the Agent may be exposed
to civil or criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities.
8. Records
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Trust and as required by the rules and regulations of
appropriate government authorities, in particular, Section 31 of the 1940 Act
and the rules thereunder. The Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed by the Agent
hereunder are the property of the Trust and will be preserved, maintained, and
made available with such section and rules of the 1940 Act and will be promptly
surrendered to the Trust upon and in accordance with its request.
9. Wisconsin Law to Apply
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the state of Wisconsin.
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10. Term, Amendment, Termination, Assignment, and Notice
A. This Agreement shall become effective on the date above first
written and, unless sooner terminated as provided herein, shall
continue automatically for successive annual periods, provided that
the continuance of the Agreement is approved by a majority of the
Trustees of the Trust.
B. This Agreement may be amended by the mutual written consent of the
parties.
C. This Agreement may be terminated upon ninety (90) day's written
notice given by one party to the other.
D. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of the
other party.
E. Any notice required to be given by the parties to each other under
the terms of this Agreement shall be in writing, addressed and
delivered, or mailed to the principal place of business of the other
party. If to the agent, such notice should to be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Trust, such notice should be sent to:
The Xxxxxxx Funds
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
F. In the event that the Trust gives to the Agent its written intention
to terminate and appoint a successor transfer agent, the Agent
agrees to cooperate in the transfer of its duties and
responsibilities to the successor, including any and all relevant
books, records and other data established or maintained by the Agent
under this Agreement.
G. Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will
be paid by the Trust.
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The Xxxxxxx Funds Firstar Mutual Fund Services, LLC
By: By:
------------------------------- --------------------------------
Date: Date:
------------------------------ ------------------------------
Attest: Attest:
---------------------------- ----------------------------
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Schedule A
Transfer Agent Servicing Agreement
Annual Fee Schedule
o $16.00 per shareholder account
o Minimum annual fee of $22,000 for the first Fund and $12,000 for each
additional Fund.
o Plus out-of-pocket expenses, including but not limited to:
o Telephone - toll-free lines
o Postage
o Programming
o Stationery/envelopes
o Mailing
o Insurance
o Proxies
o Retention of records
o Microfilm/fiche of records
o Special reports
o All other out-of-pocket expenses
o ACH fees
o Fees are billed monthly
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Schedule B
Transfer Agent Servicing Agreement
Shareholder Fees
(Charged to Investors)
Defined Contribution
403(b)(7), 401(k)
XXX Accounts Plan Accounts
I. Qualified Plan Fees
Annual maintenance fee per account $12.50 $12.50
Transfer to successor trustee 15.00 15.00
Distribution to a participant (exclusive
of systematic withdrawal plans) 15.00 15.00
Refund of excess contribution 15.00 15.00
II. Additional Shareholder Fees
Amount
Any outgoing wire $12.00/wire
Telephone exchange 5.00/telephone exchange
Return check fee 15.00/return check
Stop payment fee (liquidation, dividend draft check) 15.00/stop paymen
Research fee 5.00/research item
(For requested items of the second calendar
year [or previous] to the request)
These fees are subject to change upon notification by Firstar
Mutual Fund Services, LLC to the mutual fund client
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Schedule C
Transfer Agent Servicing Agreement
Automatic Investment Plan Processing
ACH Service
o Automatic Investment Plan
o Telephone Purchase, Liquidation
o EFT Payments of Dividends, Capital Gains, SWP's
o $125.00 per month per Fund group
o $0.50 per account set-up and/or change
o $0.50 per item for AIP purchases
o $0.50 per item for EFT payments, purchases
o $3.50 per correction, reversal, or return item
o Fees are billed monthly
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Schedule D
Transfer Agent Servicing Agreement
Authorized Officers to Give Instructions
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