FORM OF TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this 5th day of October,
1998, by and between The Xxxxx Funds, a Delaware business trust (the "Trust")
and Firstar Mutual Fund Services, LLC, a limited liability company organized
under the laws of the State of Wisconsin (the "Agent").
WHEREAS, the Trust is an open-end management investment company which
is registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Agent is a limited liability company and, among other
things, 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 employ and appoint 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 orders for the purchase of shares, with prompt delivery,
where appropriate, of payment and supporting documentation to the
Trust's custodian;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such uncertificated
shares being held in the appropriate shareholder account;
C. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Trust's
custodian;
D. Pay monies upon receipt from the Trust's custodian, where
relevant in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the shareowner's
instructions;
F. Process exchanges between series of the Trust and other funds
managed by Xxxxx Capital Management, Inc., the Trust's investment
adviser;
G. Issue and cancel certificates as instructed; replace lost, stolen
or destroyed certificates upon receipt of satisfactory
indemnification or surety bond;
H. Prepare and transmit payments for dividends and distributions
declared by the Trust;
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 Trust and maintain, pursuant
to Rule 17Ad-10(e) under Securities Exchange Act of 1934, as
amended (the "Exchange Act"), a record of the total number of
shares of the Trust 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 Form 1099 and other
appropriate information 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, redemptions and other confirmable transactions
as agreed upon with the Trust; and
O. Provide a Blue Sky System which will enable the Trust to monitor
the total number of 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 in accordance with the attached Schedule A; 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. If the Trust elects
to terminate this Agreement prior to the first anniversary of this Agreement,
the Trust agrees to reimburse Agent for the difference between the standard fee
schedule and the discounted fee schedule agreed to between the parties.
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The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following receipt of the billing notice.
3. Representations of Agent
The Agent 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; 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, as amended (the "Securities Act"), the Exchange Act,
the 1940 Act, and any laws, rules, and regulations of
governmental authorities having jurisdiction.
4. Representations of the Trust
The Trust represent and warrant to the Agent that:
A. The Trust is an open-end diversified investment company 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 Trust
Instrument and bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Trust Instrument 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
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F. A registration statement under the Securities Act 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 (the "Board") authorizing the appointment of
the Agent and the execution of this Agreement. The Trust shall provide to the
Agent a copy of the Trust Instrument, 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. 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 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
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
and as amended from time to time in writing by resolution of the Board.
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,
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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 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 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.
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8. Additional Series
The Trust is authorized to issue separate classes of shares of
beneficial interest representing interests in separate investment portfolios.
The parties intend that each portfolio established by the Trust, now or in the
future, be covered by the terms and conditions of this agreement.
9. 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 but not inconsistent with 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 on and in accordance with its request.
10. 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.
11. Amendment, Assignment, Termination and Notice
A. This Agreement may be amended by the mutual written consent of
the parties.
B. This Agreement may be terminated upon ninety (90) days' written
notice given by one party to the other.
C. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of
the other party.
D. 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 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. If to
the Trust, such notice should be sent to 00 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000.
E. In the event that the Trust gives to the Agent its written
intention to terminate and appoints 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.
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F. 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.
12. Year 2000 Compliance
The Agent represents that it has examined and tested its internal
systems which have been developed to support the services outlined herein, and
as of the date of this Agreement, has no knowledge of any situation or
circumstance that will inhibit the systems' ability to perform the expected
functions, or inhibit the Agent's ability to provide the expected services as a
result of any business interruptions or other business problems relating to
dates or days before, during, and after the year 2000. In connection with the
foregoing, the Agent represents that it has made reasonable inquiry of its
business partners and other entities with whom it conducts business and has
carefully considered the responses of those third-parties.
The Xxxxx Funds Firstar Mutual Fund Services, LLC
By: ______________________________ By: ______________________________
Print:_____________________________ Print:_____________________________
Title:_____________________________ Title:_____________________________
Date:_____________________________ Date:_____________________________
Attest: __________________________ Attest: ___________________________
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SCHEDULE A
Transfer Agent and Shareholder Servicing
Annual Fee Schedule
|X| $16.00 per shareholder account - load/no-load funds
|X| Minimum annual fees of $24,000 for the first fund and $14,000 for each
additional fund and/or class of share
|X| Plus out-of-pocket expenses, including but not |X| ACH Shareholder Services
limited to: -- $125.00 per month per fund group
o Telephone - toll free lines o $ .50 per account set-up and/or change
o Postage o $ .50 per item for AIP purchases
o Programming o $ .50 per item for EFT payments and purchases
o Stationery/Envelope o $3.50 per correction, reversal, return item
o Mailing
o Insurance
o Proxies
o Retention of records
o Microfilm/fiche of records
o Special reports
o ACH fees
o NSCC charges
o All other out-of-pocket expenses
Service Charges to Investors
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|X| Qualified Plan Fees (Billed to Investors)
o Annual maintenance fee per account (Cap at $25.00 per SSN) $12.50 / acct
o Transfer to successor trustee $15.00 / trans.
o Distribution to participant (Exclusive of SWP) $15.00 / trans.
o Refund of excess contribution $15.00 / trans.
|X| Additional Shareholder Fees (Billed to Investors)
o Any outgoing wire transfer $ 12.00 / wire
o Telephone exchange $ 5.00 exch.
o Return check fee $ 20.00 /item
o Stop payment (Liquidation, dividend, draft check) $ 20.00 / stop
o Research fee (For requested items of the second calendar year [or previous] to $ 5.00 / item
the request) (Cap at $25.00)
|X| Fees and out-of-pocket expenses are billed to the fund monthly
NSCC
Out-of-Pocket Charges
|X| NSCC Interfaces
-- Set-Up
o Fund/SERV, Networking, ACATS, Exchanges DCCS, $5,000 set-up (one time)
RAT
o Commission Settlement $5,000 set-up (one time)
-- Processing
o FundServ $ 50 / month
o Networking $ 250 / month
o CPU Access $ 40 / month
o FundServ Transactions $ .35 / trade
o Networking - per item $ .025 / monthly dividend fund
o Networking - per item $ .015 / non-mo. dividend fund
o First Data $ .10 / next-day FundServ trade
o First Data $ .15 / same-day FundServ trade
-- NSCC Implementation
o 8 to 10 weeks lead time
Mutual Fund Services
Additional Out-of-Pocket Expenses
|X| Database Select Request $200 per select request
|X| Postage $.31 per one ounce pre-sort first class envelope
|X| Shareholder Records Search $3.00 per search of lost shareholder (based upon 2 returned
mail items)
|X| PAR System Restore $1,500 per restore
|X| Data and Report Transmission
-- Monthly Service and Support
-- Per Record transmitted $160 per month
$.01 per record
|X| New Fund Programming
-- Fund Group Setup $1,500 per fund group
-- Fund Addition to Existing Group $600 per fund
-- Additional Classes to Existing Group $250 per class
-- Additional Programming $150.00 per hour
Firstar Client Remote Connectivity
Installation and Operating Costs
---------------------------------------------------------------------------------------------------------------------
|X| Tier 1 |X| Installation $1,500 per concurrent session
-- Remote access to AMtrust, CPORT, PAR (one-time)
-- Installation support |X| Maintenance $125 per month per concurrent
-- Help Desk maintenance and support connection
o Connectivity
o Application (Client will have additional costs of communication
connection at client site, modems, PC requirements)
---------------------------------------------------------------------------------------------------------------------
|X| Tier II |X| Installation $2,600 per concurrent session
-- Remote access to Trust Touch (one-time) Additional PC's -
-- Installation support $100 per PC beyond concurrent connection
-- Help Desk maintenance and support requirement
o Connectivity $100 setup per additional
o Application connection
|X| Maintenance $125 per month per concurrent
connection
(Client will have
additional costs of
communication connection
at client site, modems,
PC requirements)
---------------------------------------------------------------------------------------------------------------------
|X| Tier III |X| Installation $2,600 per concurrent session
-- Remote access to Firstar Impress (one-time) Additional PC's -
-- Installation support $100 per PC beyond concurrent connection
-- Help Desk maintenance and support requirement
o Connectivity $100 setup per additional
o Application connection
|X| Maintenance $125 per month per concurrent
-- Recommend WAN connection
connection starting at $170 per month per
256kb license per concurrent
connection
(Client will have
additional costs of
communication connection
at client site, modems,
PC requirements)
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Mutual Fund Services
Internet Services
|X| Internet Services |X| Customer assistance with fund net site integration
|X| Internet on-line
access to shareholder account
data subject to
Firstar security constraints
|X| PIN administration through Firstar customer service
|X| Shareholder Transactions-exchange, redemption, purchase based
upon preauthorized shareholder instructions
|X| Fund Group Setup
o Initial Access |X| $25,000 per fund group (one-time)
o Technical Setup |X| $135.00 per hour (maximum $4,500.00)
o Page Customization |X| $135.00 per hour (maximum $6,700.00)
|X| Recurring Costs
o Annual Access |X| $10,000 per year
o Account Inquiries |X| $ .25 per inquiry
o Financial Transactions |X| $ 1.00 per financial transaction
o PIN Administration |X| $ .40 per PIN assignment or acknowledgment
|X| Firstar Customer Requirements |X| Customer net site
|X| Provide content for site integration
|X| Signed Firstar service agreement
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DAZL
Out-of-Pocket Charges
|X| DAZL Services - DAZL (Data Access Zip Link) is the electronic delivery
system transfer of mutual fund data and shareholder account data to the
financial intermediary firm (financial planners, broker/dealers, etc.) that
can be easily imported into the intermediary firm's portfolio management
software.
|X| DAZL and DAZL Direct
(Electronic data delivery of fund and shareholder information to financial
intermediaries/advisors-either mainframe to mainframe or file delivery to
electronic mailbox service)
o Set-up $5,000 / interface
o Monthly Usage $1,000 / month
o Transmission $ .015 / price record
$ .025 / other record
o Enhancement $ 125 / hour
(Electronic data delivery of fund and shareholder information and generate
financial transactions from financial intermediary firms back to Firstar,
capabilities through DAZL)
o Same charges as above
o No charge for transmission of financial trades to Firstar
Dated as of October 5, 1998
