Exhibit H
TRANSFER AGENT AND DIVIDEND DISBURSING AGENT SERVICE AGREEMENT
THIS AGREEMENT made on November 1, 1997 and amended on October 29, 2002 by
and between XXXXXX MUTUAL FUNDS, a Kentucky Business Trust acting for and on
behalf of each series of the Trust (hereinafter known as the "Trust") and XXXXXX
& COMPANY, INC., Lexington, Kentucky a corporation organized under the laws of
the State of Kentucky (hereinafter called "Xxxxxx").
WHEREAS, the Trust desires to appoint Xxxxxx as Transfer Agent and Dividend
Disbursing Agent, and Xxxxxx desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
SECTION 1. TERMS OF APPOINTMENT
1.01 Subject to the conditions set forth in this Agreement, The Trust
hereby employs and appoints Xxxxxx as Transfer Agent and Dividend Disbursing
Agent effective November 1, 1997.
1.02 Xxxxxx hereby accepts such employment and appointment and agrees that
on and after the effective date of its appointment it will act as The Trust's
Transfer Agent and Dividend Disbursing Agent. Xxxxxx agrees that it will also
act as agent in connection with any periodic investment plan, periodic
withdrawal program or other accumulation, open-account or similar plans for the
Trust's shareholders.
1.03 Xxxxxx agrees to provide the necessary facilities, equipment and
personnel to perform its duties and obligations hereunder in accordance with
industry practice.
1.04 Xxxxxx agrees that it will perform all the usual and ordinary services
as Transfer Agent and Dividend Disbursing Agent and as agent for the various
shareholder accounts including but not limited to: registering, issuing,
transferring and canceling stock certificates, maintaining all shareholder
accounts, preparing annual shareholder meeting lists, withholding taxes as
required by law, disbursing 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 for all purchases and liquidations of the Trust shares, causing
liquidation of shares and causing disbursements to be made to withdrawal plan
holders, and (if and to the extent not performed by the Trust) mailing proxies,
receiving and tabulating proxies and mailing shareholder reports and
prospectuses.
SECTION 2. RECEIPT OF FUNDS; SHARE PURCHASE ORDERS
2.01 Upon receipt at the office designated by Agent of any check or other
order for the payment of money drawn or endorsed to it as transfer agent for the
Trust or as plan agent for any shareholder of the Trust, Agent shall stamp the
check or other order with the date of receipt, shall forthwith process the same
for collection, and, no later than the opening of business on the second
business day following receipt of such check or such other order, shall credit
federal funds to the Trust in the face amount of the check or other order and
shall deposit the amount due the Trust in the bank account maintained for the
Trust by its custodian bank (the "Custodian"). Upon receipt of funds through the
Federal Reserve Wire System or conversion into federal funds of funds
transmitted by any other bank wire transfer system, Agent shall notify the Trust
of such deposits and shall, on a daily basis, notify the Trust of the total
amount so deposited.
2.02 Upon receipt of a check or other order in payment for shares of the
Trust purchased by an investor, accompanied, in the case of a new account, by a
completed account application, Agent shall process such order in accordance with
the procedures set forth in the Trust's current prospectus and credit the
investor's share account with the number of shares so purchased, and shall
promptly mail the investor a notice of such notice to the Trust. All such
actions are subject to any instructions which the Trust may give Agent with
respect to acceptance of orders for shares so received by Agent.
2.03 Within 30 calendar days after receipt of any check in the amount of
$200,000 or over, Agent will call the paying bank to confirm that the check has
been paid. Trust will be notified immediately if Agent receives information that
payment for any check in the amount of $200,000 or over has been refused.
Further, if Agent is unable to confirm the status of any check in the amount of
$200,000 or over within 30 calendar days of receipt of such check, Trust will be
so notified. Proceeds of a redemption of shares purchased by such check or
certificate representing
shares purchased by such check will not be mailed until payment of the check has
been confirmed.
2.04 The Trust expects that situations may develop whereby it would be
beneficial to determine if a person who has placed an order for shares has
sufficient funds in his checking account to cover the payment for the shares
purchased. Upon receipt of a request from the Trust, Agent will call the bank in
question and request that it confirm that sufficient funds to cover the purchase
are currently credited to the account in question. The results of any such calls
will be reported to the Trust.
2.05 Agent will maintain written documentation of each telephone call
which is made under the procedures outlined above.
2.06 None of the above procedures shall preclude Agent from inquiring as
to the status of any check received by it in payment for Trust shares as Agent
may deem appropriate or necessary to protect both the Trust and the Agent.
SECTION 3. RETURNED CHECKS
In the event that any check or other order for the payment of money is
returned unpaid for any reason, Agent shall:
3.01 Give prompt notification to the Trust of the non-payment of said
check;
3.02 Take such other steps, including re-depositing said check for
collection or redelivering said check to the investor, as Agent may in its
discretion, deem appropriate, or as the Trust may instruct.
3.03 If the check or other order remains unpaid after such additional
steps have been taken, and in the absence of other instructions from Trust,
Agent shall take such steps as may be necessary to enable Trust to redeem any
shares purchased on the basis of such returned check or order. Upon redemption,
Agent shall credit the proceeds of such redemption plus any dividends declared
with respect to such shares up to the amount paid for the shares to the Trust's
account. Agent shall forward such returned check or order to the person who
originally submitted same. In the event that the amount paid for such shares
exceeds the proceeds of the redemption
of such shares plus the amount of any dividends declared with respect to such
shares, Agent shall receive reimbursement of such excess from Trust.
SECTION 4. REDEMPTIONS
Agent shall receive and shall stamp with the date of receipt, all
certificates delivered to it for redemption or repurchase as well as all
requests for redemptions or repurchase of shares and shall process said
certificate and redemption and repurchase requests as follows:
4.01 Upon receipt of a request for redemption, Agent will determine if any
of the shares to be redeemed have been purchased within the previous thirty (30)
calendar days. If it is determined that any portion of the shares to be redeemed
have been purchased within the previous thirty (30) calendar days, Agent will
promptly obtain the necessary information relative to the check used to purchase
the shares, and will call the paying bank requesting confirmation that the check
in question has been paid.
4.02 If such certificates, redemption request or repurchase request comply
with the standards for redemption or repurchase as approved by the Trust and if
it is determined that none of the shares to be redeemed have been purchased
within the previous thirty (30) calendar days or if Agent has not received
information that the check in question has been returned to Agent as unpaid by
the close of Agent's business on the date of receipt of the redemption request,
Agent shall notify Trust of the total number of shares presented and covered by
such requests received by Agent on said date. On or prior to the seventh
calendar day succeeding any such receipt of certificates or request for
redemption or repurchase, Agent shall from cash available in the bank account
maintained by the Custodian, pay the applicable redemption or repurchase price,
as the case may be, to the investor as set forth in the Articles of
Incorporation and the then current prospectus of the Trust.
4.03 If by the end of the seventh (7) calendar day after receipt of a
redemption request Agent has been unable to determine the status of any check in
question, Agent will calculate the amount due to the shareholder for shares
which were purchased and credited to the shareholder's account over thirty (30)
days prior to receipt of the redemption request and will send a check
representing the proceeds of the redemption of these shares to the shareholder,
together
with a letter of explanation. Funds representing redemption of shares purchased
within the prior thirty (30) days will be held until the paying bank can confirm
payment of the check used for purchase of shares.
4.04 If any certificate or request for redemption or repurchase does not
comply with the standards for redemption approved by the Trust, Agent shall
promptly notify the investor of such fact, together with the reason therefor,
and shall effect such redemption or repurchase at the price applicable to the
date and time of receipt of documents complying with said standards, or in the
case of a repurchase, at such other time as the Trust shall so direct.
SECTION 5. INFORMATION TO BE FURNISHED TO SHAREHOLDERS
5.01 Agent shall answer that correspondence from shareholders relating to
their accounts and such other correspondence as may from time to time be
mutually agreed upon.
5.02 Agent shall mail such proxy cards and other material supplied to it
by by Trust in connection with shareholder meetings of Trust and shall receive,
examine and tabulate returned proxies and certify the vote of the Trust.
SECTION 6. FEES AND EXPENSES
6.01 For the services to be rendered by Xxxxxx pursuant to paragraph 1.04,
the Trust agrees to pay Xxxxxx such fees as set out in the appendix attached
hereto and made a part hereof.
6.02 The Trust agrees to promptly reimburse Xxxxxx for all reasonable
out-of-pocket expenses or advances incurred by Xxxxxx in connection with the
performance of services under the Agreement including, but not limited to,
expenditures for reasonable counsel fees, postage, envelopes, checks, continuous
forms, reports and statements, telephone, telegraph, stationery, supplies, costs
of outside mailing firms, record storage costs and media for storage of records
(e.g., microfilm, computer tapes) so long as supplies purchased are expected to
last for a reasonable period of time. In addition, any other expenses incurred
by Xxxxxx at the request or with the consent of the Trust will be promptly
reimbursed by the Trust.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF XXXXXX
Xxxxxx represents and warrants to the Trust that:
7.01 It is a Corporation duly organized and existing in good standing under
the laws of the State of Kentucky.
7.02 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform the services contemplated in this Agreement;
7.03 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement; and
7.04 It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and obligations under
the Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to Xxxxxx that:
8.01 It is a Trust duly organized and existing and in good standing under
the laws of the State of Kentucky;
8.02 It is an open-end diversified management investment company registered
under the Investment Company Act of 1940;
8.03 A registration statement under the Securities Act of 1933 is currently
effective with respect to all shares of the Trust being offered for sale;
8.04 The Trust is empowered under the applicable laws and regulations and
by its charter and by-laws to enter into and perform this Agreement; and all
requisite corporate proceedings have been taken to authorize it to enter into
and perform this Agreement.
SECTION 9. INDEMNIFICATION
9.01 Xxxxxx shall not be responsible for and the Trust shall indemnify and
hold Xxxxxx harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of Xxxxxx required to be taken by Xxxxxx pursuant to
this Agreement provided that Xxxxxx has acted in good faith and with due
diligence.
(b) The reliance on, or use by Xxxxxx of, information furnished or
records and documents received by Xxxxxx which have been prepared and/or
maintained by the Trust, or any other person or firm on behalf of the
Trust.
(c) Defaults by dealers with respect to payment for share orders
previously entered.
(d) The reliance on, or carrying out of, any instructions or
requests of the Trust.
(e) The offer of sale of the Trust's shares in violation of any
requirement under the securities laws or regulations of any state that
such shares be registered in such state of in violation of any stop
order or other determination or ruling by any state with respect to
the offer or sale of such shares in such state (unless such violation
results from Xxxxxx'x failure to comply with written instructions of
the Trust or of any other officer of the Trust that no offers or sales
be made in or to residents of such state).
9.02 It is understood that if any case the Trust may be asked to
indemnify or save 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 Agent will use all reasonable care to identify and 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 Agent against any claim which may be
subject of this indemnification, and in the event that the Trust so elects it
will so notify Agent, and thereupon the Trust shall take over complete defense
of the claim, and Agent shall in such situation initiate no further legal or
other expenses for which it shall seek indemnification. Agent shall in no case
confess any claim or make any compromise in any case in which the Trust will be
asked to indemnify Agent except with the Trust's prior written consent. In the
event of any advance of cash for any purpose made by Agent resulting from orders
or instructions of the Trust, or in the event that Agent shall incur any claims,
liabilities or related expenses in connection with the performance of this
agreement, except such as may arise from its own negligent action, negligent
failure to act or willful misconduct, any property at any time held for the
account of the Trust shall be security therefor.
9.03 Xxxxxx shall indemnify and hold the Trust harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of
Xxxxxx'x failure to comply with the terms of this Agreement or which arise out
of Xxxxxx'x negligence or misconduct.
9.04 At any time Xxxxxx may apply to any officer of the Trust for
instructions, and may consult with legal counsel for the Trust at the expense of
the Trust, with respect to any matter arising in connection with the services to
be performed by Xxxxxx under this Agreement and Xxxxxx shall be indemnified by
the Trust for any action taken or omitted by it in good faith in reliance upon
such instructions or upon the opinion of counsel for the Trust. Xxxxxx shall be
protected and indemnified in acting upon any paper or document believed by it to
be genuine and to have been signed by the proper person or persons and shall not
be held to have notice of any change of authority of any person, until receipt
of written notice thereof from the Trust. Xxxxxx shall also be protected and
indemnified in recognizing stock certificates which Xxxxxx reasonably believes
to bear the proper manual or facsimile signatures of the officer or the Trust,
and the proper counter-signature of any former transfer agent or registrar, or
of a co-transfer agent or co-registrar.
SECTION 10. COVENANTS OF XXXXXX AND THE TRUST
10.01 The Trust shall promptly furnish to Xxxxxx the following:
(a) A certified copy of the resolution of the Board of Directors of
the Trust authorizing the appointment of Xxxxxx and the execution and
delivery of this Agreement.
(b) Certified copy of the Articles of Incorporation and By-Laws of
the Trust and all amendments thereto.
(c) Specimens of all forms of outstanding stock certificates in the
form approved by the Trust's Board of Directors with a certificate of the
Secretary of the Trust as to such approval.
10.02 Xxxxxx hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms, and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of such certificates,
forms and devices.
10.03 To the extent required by SECTION 31 of the Investment Company Act
of 1940 and Rules thereunder, Xxxxxx agrees that all records maintained by
Xxxxxx relating to the services to be performed by Xxxxxx under this Agreement
are the property of the Trust and will be preserved and will be surrendered
promptly to the Trust on request.
10.04 Xxxxxx and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation of and the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any other
person.
SECTION 11. ANTI-MONEY LAUNDERING (added by amendment 10/29/02)
11.01 The Trust hereby delegates to and Xxxxxx accepts delegation of the
responsibilities embodied in the Anti-Money Laundering Policy of Xxxxxx Mutual
Funds as adopted by the Board of Trustees at its meeting on August 22, 2002 and
as may be further amended to conform with requirements of federal laws, rules
and regulations. Xxxxxx agrees that any and all records maintained by or created
by Xxxxxx to effectuate the Anti-Money Laundering Policy of Xxxxxx Mutual Funds
shall be available for inspection by federal examiners upon request. Xxxxxx
acknowledges and agrees that all employees of Xxxxxx will cooperate with the
Anti-Money Laundering Policy of Xxxxxx Mutual Funds and that failure to do so,
or involvement in money laundering activities, may result in suspension,
termination and/or civil or criminal liability. Xxxxxx further agrees that any
and all records maintained by or created by Xxxxxx to effectuate the Anti-Money
Laundering Policy of Xxxxxx Mutual Funds shall be available for independent
third party audit as determined by the Board of Trustees, and that all employees
of Xxxxxx will cooperate fully with the independent third party auditors.
SECTION 12. TERMINATION AND AGREEMENT
12.01 This Agreement may be terminated by either party by ninety (90) days
written notice to the other.
SECTION 13. ASSIGNMENT
13.01 Neither this Agreement nor any rights or obligations hereunder may
be assigned by Xxxxxx without the written consent of the Trust.
13.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their corporate seals by and
through their duly authorized officers, as of the day and the year first above
written.
XXXXXX MUTUAL FUNDS
By:________________________
Title:_____________________
ATTEST:
By:__________________________________
Title:_______________________________
XXXXXX & COMPANY, INC.
By:________________________
Title:_____________________
ATTEST:
By:__________________________________
Title:_______________________________
In Witness Whereof, the parties hereto have caused this Agreement as
amended 10/29/02 to be executed in their names and on their behalf under their
corporate seals by and through their duly authorized officers this the 29/th/
day of October, 2002.
XXXXXX MUTUAL FUNDS
By:________________________
Title:_____________________
ATTEST:
By:__________________________________
Title:_______________________________
XXXXXX & COMPANY, INC.
By:___________________________
Title:________________________
ATTEST:
By:__________________________________
Title:_______________________________
AGREEMENT AS TO FEES FOR TRANSFER AGENT/DIVIDEND DISBURSING AGENT
SHAREHOLDER SERVICES OF XXXXXX & COMPANY, INC.
Xxxxxx & Company, Inc., in accordance with the Agreement dated November
1, 1997 by and between Xxxxxx & Company, Inc. and Xxxxxx Mutual Funds, shall be
compensated monthly at a rate of 1/12 of .15% on the first $20,000,000 and 1/12
of .12% of all net assets over $20,000,000 per the monthly average net asset
value as is declared and determined by each individual series at the close of
each month.
Additionally, the Trust shall reimburse Xxxxxx & Company, Inc., for
out-of-pocket expenses incurred on behalf of the Trust. Theses expenses include,
but are not necessarily limited to, postage, insurance, telephone charges, and
cost of forms. Xxxxxx & Company, Inc., will xxxx the Trust monthly for the
service fee and expenses.
