TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this _____ day of ______,
2000, by and between Everest Series Funds Trust, a trust organized under the
laws of the State of Delaware (the "Trust") and Firstar Mutual Fund Services,
LLC, a limited liability company organized under the laws of the State of
Wisconsin ("FMFS").
WHEREAS, the Trust is an open-end investment management company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to create separate series, each with
its own separate investment portfolio;
WHEREAS, FMFS is in the business of providing, among other things,
transfer agent and dividend disbursing agent services to investment companies;
and
WHEREAS, the Trust desires to retain FMFS to provide transfer agent
services to each of the portfolios of the Trust, and each additional series of
the Trust listed on Exhibit A attached as may be amended from time to time
(individually a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Trust and FMFS agree as follows:
1. APPOINTMENT OF TRANSFER AGENT
The Trust hereby appoints FMFS as Transfer Agent of the Trust on the
terms and conditions set forth in this Agreement, and FMFS hereby accepts such
appointment and agrees to perform the services and duties set forth in this
Agreement in consideration of the compensation provided for herein.
2. DUTIES AND RESPONSIBILITIES OF FMFS
FMFS 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 orders for the purchase of the Trust's shares ("Shares");
B. Process purchase orders with prompt delivery, where appropriate, of payment
and supporting documentation to the Trust's custodian, and issue the appropriate
number of uncertificated Shares with such uncertificated Shares being held in
the appropriate shareholder account on a timely basis in accordance with
applicable securities laws;
C. Arrange for issuance of Shares obtained through transfers of funds from the
Trust's shareholders' ("Shareholders") accounts at financial institutions and
arrange for the exchange of Shares for shares of other eligible investment
companies, when permitted by the Fund's prospectus;
D. Process redemption requests received in good order and, where relevant,
deliver appropriate documentation to the Trust's custodian on a timely basis in
accordance with applicable securities laws;
E. Pay monies upon receipt from the Trust's custodian, where relevant, in
accordance with the instructions of redeeming Shareholders;
F. Process transfers of Shares in accordance with the Shareholder's
instructions;
G. Process exchanges between Funds and/or classes of Shares of Funds;
H. Prepare and transmit payments for dividends and distributions declared by the
Trust with respect to the Fund, after deducting any amount required to be
withheld by any applicable laws, rules and regulations and in accordance with
Shareholder instructions;
I. Make changes to Shareholder records, including, but not limited to, address
changes in plans (i.e., systematic withdrawal, automatic investment, dividend
reinvestment, etc.);
J. Record the issuance of Shares of the Fund and maintain, pursuant to Rule
17Ad-10(e) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), a record of the total number of Shares of the Fund which
are authorized, issued and outstanding;
K. Prepare Shareholder meeting lists and, if applicable, mail, receive and
tabulate proxies;
L. Mail Shareholder reports and prospectuses to current Shareholders;
M. Prepare and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions for all
Shareholders;
N. Provide Shareholder account information upon request and prepare and mail
confirmations and statements of account to Shareholders for all purchases,
redemption's and other confirmable transactions as agreed upon with the Trust;
O. Mail requests for Shareholders' certifications under penalties of perjury and
pay on a timely basis to the appropriate Federal authorities any taxes to be
withheld on dividends and distributions paid by the Trust, all as required by
applicable Federal tax laws and regulations;
P. Provide a Blue Sky System, which will enable the Trust to monitor the total
number of Shares of the Fund, sold in each state. In addition, the Trust or its
agent, including FMFS, shall identify to FMFS in writing those transactions and
assets to be treated as exempt from the Blue Sky reporting for each state. The
responsibility of FMFS 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 or its agent;
Q. Answer correspondence from Shareholders, securities brokers and others
relating to FMFS's duties hereunder and such other correspondence as may from
time to time be mutually agreed upon between FMFS and the Trust;
R. Reimburse the Fund(s) each month for all material losses resulting from "as
of" processing errors for which FMFS is responsible in accordance with the "as
of" processing guidelines set forth in the attached Exhibit B; and
S. Provide such other services that may be required of a transfer agent under
the rules promulgated under the 1940 Act, as amended, the Securities Act of
1933, as amended (the "Securities Act") and the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
3. COMPENSATION
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the Fee Schedule attached hereto as Exhibit A and
as mutually agreed upon and amended from time to time. The Trust agrees to pay
all fees and reimbursable expenses within ten (10) business days following the
receipt of the billing notice.
4. REPRESENTATIONS OF FMFS
FMFS represents and warrants to the Trust that:
A. It is a limited liability company duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act;
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;
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 on a timely basis; and
G. It will comply with all applicable requirements of the Securities Act and the
Exchange Act, the 1940 Act, and any other laws, rules, and regulations of
governmental authorities having jurisdiction.
5. REPRESENTATIONS OF THE TRUST
The Trust represents and warrants to FMFS that:
A. The Trust is an open-end investment company registered under the 1940 Act;
B. The Trust is organized, existing, and in good standing under the laws of
Delaware;
C. The Trust is empowered under applicable laws and by its Declaration of Trust
and Bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the 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,
the Exchange Act, the 1940 Act, and any laws, rules and regulations of
governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act and the 1940 Act will
become 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.
6. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
FMFS shall exercise reasonable care in the performance of its duties
under this Agreement. FMFS shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust in connection with matters
to which this Agreement relates, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies beyond FMFS's
control, except a loss arising out of or relating to the FMFS'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, if
FMFS has exercised reasonable care in the performance of its duties under this
Agreement, the Trust shall indemnify and hold harmless FMFS 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 FMFS may sustain or incur or which may be asserted
against FMFS by any person arising out of any action taken or omitted to be
taken by it in performing the services hereunder, except for any and all claims,
demands, losses expenses, and liabilities arising out of or relating to FMFS's
refusal or failure to comply with the terms of this Agreement or from bad faith,
negligence or from willful misconduct on its part in performance of its duties
under this Agreement, (i) in accordance with the foregoing standards, or (ii) in
reliance upon any written or oral instruction provided to FMFS by any duly
authorized officer of the Trust, such duly authorized officer to be included in
a list of authorized officers furnished to FMFS and as amended from time to time
in writing by resolution of the Board of Trustees of the Trust.
FMFS 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 the Trust may sustain or incur or which may be asserted
against the Trust by any person arising out of any action taken or omitted to be
taken by FMFS as a result of FMFS's refusal or failure to comply with the terms
of this Agreement, its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, FMFS shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues.
FMFS 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 FMFS. FMFS
agrees that it shall, at all times, have reasonable contingency plans with
appropriate parties, making reasonable provision for emergency use of electrical
data processing equipment. Representatives of the Trust shall be entitled to
inspect FMFS's premises and operating capabilities at any time during regular
business hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS 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 indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all reasonable care to
notify the indemnitor promptly concerning any situation which presents or
appears likely to present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee against any claim,
which may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or other expenses for which it
shall seek indemnification under this section unless the claim against the
indemnitee shall be adverse to the claim of the indemnitor. The indemnitee shall
in no case confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
7. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Trust,
all records and other information relative to the Trust and prior, present, or
potential Shareholders (and clients of said Shareholders) and not to use such
records and information for any purpose other than the performance of its
responsibilities and duties hereunder, 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 FMFS may be exposed to civil or criminal
contempt proceedings for failure to comply after being requested to divulge such
information by duly constituted authorities, or when so requested by the Trust.
8. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof and, unless
sooner terminated as provided herein, shall continue automatically in effect for
successive annual periods. The Agreement may be terminated by either party upon
giving ninety (90) days prior written notice to the other party or such shorter
period as is mutually agreed upon by the parties. However, this Agreement may be
amended by mutual written consent of the parties.
9. RECORDS
FMFS 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 but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the 1940 Act, and the rules thereunder. FMFS agrees that all such records
prepared or maintained by FMFS relating to the services to be performed by FMFS
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 on and in accordance with its request.
10. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Wisconsin.
However, nothing herein shall be construed in a manner inconsistent with the
1940 Act or any rule or regulation promulgated by the Securities and Exchange
Commission thereunder.
11. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor to any
of FMFS's duties or responsibilities hereunder is designated by the Trust by
written notice to FMFS, FMFS will promptly, upon such termination and at the
expense of the Trust, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by FMFS under this
Agreement in a form reasonably acceptable to the Trust (if such form differs
from the form in which FMFS has maintained, the Trust shall pay any direct
expenses associated with transferring the data to such form), and will cooperate
in the transfer of such duties and responsibilities, including provision for
assistance from FMFS's personnel in the establishment of books, records, and
other data by such successor.
12. NOTICES
Notices of any kind to be given by either party to the other party
shall be in writing and shall be duly given if mailed or delivered as follows:
NOTICE TO THE TRUST SHALL BE SENT TO: NOTICE TO FMFS SHALL BE SENT TO:
------------------------------------- --------------------------------
Everest Series Funds Trust Firstar Mutual Fund Services, LLC
5711 Xxxxx, Xxxxxxxx 00000 000 Xxxx Xxxxxxxx Xxxxxx
Attn: Xxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxx 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer or one or more counterparts as of the day and year
first written above.
EVEREST SERIES FUNDS TRUST FIRSTAR MUTUAL FUND SERVICES, LLC
By:______________________________ By: _______________________________
Print: __________________________ Print: ____________________________
Title: __________________________ Title:_____________________________
