SAMPLE
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of this __ day of
____, 200_, by and between ______________, a _____________ business
trust (the "Trust"), and UMB Fund Services, Inc., a Wisconsin
corporation, its successors and assigns ("UMBFS").
R E C I T A L S:
WHEREAS, the Trust is registered under the 1940 Act as an
open-end management investment company; and
WHEREAS, the Trust desires to retain UMBFS to render certain
transfer agency and dividend disbursement services, and UMBFS is
willing to render such services, all in accordance with the terms of
this Agreement.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as
follows:
ARTICLE I
DEFINITIONS
In addition to any terms defined in the body of this
Agreement, the following capitalized terms shall have the meanings
set forth hereinafter whenever they appear in this Agreement:
1.01 1940 Act shall mean the Investment Company Act of 1940,
as amended from time to time.
1.02 Authorized Person shall mean any individual who is
authorized to provide UMBFS with Instructions and requests on behalf
of the Trust, whose name shall be certified to UMBFS from time to
time pursuant to Section 7.01 of this Agreement.
1.03 Board of Trustees shall mean the Board of Trustees of
the Trust.
1.04 Custodian shall mean the financial institution appointed
as custodian under the terms and conditions of the custody agreement
between the financial institution and the Trust, or its successor.
1.05 Declaration of Trust shall mean the Declaration of Trust
or other similar operational document of the Trust, as the case may
be, as the same may be amended from time to time.
1.06 Exchange Act shall mean the Securities Exchange Act of
1934, as amended from time to time.
1.07 Fund shall mean each separate series of Shares offered
by the Trust representing interests in a separate portfolio of
securities and other assets for which the Trust has appointed UMBFS
as transfer agent and dividend disbursing agent under this
Agreement.
1.08 Fund Business Day shall mean each day on which the New
York Stock Exchange, Inc. is open for trading.
1.09 Instructions shall mean an oral communication from an
Authorized Person or a written communication signed by an Authorized
Person and actually received by UMBFS. Instructions shall include
manually executed originals, telefacsimile transmissions of manually
executed originals or electronic communications.
1.10 Prospectus shall mean the current Prospectus and
Statement of Additional Information with respect to a Fund
(including any applicable supplement) actually received by UMBFS
from the Trust with respect to which the Trust has indicated a
registration statement has become effective under the Securities Act
and the 1940 Act.
1.11 Securities Act shall mean the Securities Act of 1933, as
amended from time to time.
1.12 Shares shall mean such shares of beneficial interest, or
class thereof, of each respective Fund of the Trust as may be issued
from time to time.
1.13 Shareholder shall mean a record owner of Shares of each
respective Fund of the Trust.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 Appointment. The Trust hereby appoints UMBFS as
transfer agent and dividend disbursing agent of all the Shares of
the Trust during the term of this Agreement with respect to each
Fund listed on Schedule A hereto, and any additional Fund the Trust
and UMBFS may agree to include on any amended Schedule A. UMBFS
hereby accepts such appointment as transfer agent and dividend
disbursing agent and agrees to perform the duties thereof as
hereinafter set forth.
2.02 Duties.
A. UMBFS shall perform the transfer agent and dividend
disbursement services described on Schedule B hereto and such
additional services as may be agreed to by the parties from time to
time and set forth in an amendment to Schedule B (collectively, the
"Services"). UMBFS shall have no duties or responsibilities other
than those specifically set forth in this Agreement, and no covenant
or obligation to carry out any other duties or responsibilities
shall be implied in this Agreement against UMBFS.
B. UMBFS may, in its discretion, appoint other parties to
carry out some or all of its responsibilities under this Agreement.
2.03 Deliveries.
A. In connection with UMBFS's appointment as transfer
agent and dividend disbursing agent, the Trust shall deliver or
cause the following documents to be delivered to UMBFS:
(1) A copy of the Declaration of Trust and By-laws of
the Trust and all amendments thereto, certified by the Secretary of
the Trust;
(2) A certificate signed by the President and
Secretary of the Trust specifying the number of authorized Shares
and the number of such authorized Shares issued and currently
outstanding, if any, the validity of the authorized and outstanding
Shares, whether such shares are fully paid and non-assessable, and
the status of the Shares under the Securities Act and any other
applicable federal law or regulation;
(3) A certified copy of the resolutions of the Board
of Trustees of the Trust appointing UMBFS as transfer agent and
dividend disbursing agent and authorizing the execution of this
Transfer Agency Agreement on behalf of the Trust;
(4) Copies of the Trust's Registration Statement, as
amended to date, and the most recently filed Post-Effective
Amendment thereto, filed by the Trust with the Securities and
Exchange Commission under the Securities Act and the 1940 Act,
together with any applications filed in connection therewith;
and
(5) The certificate required by Section 7.01 of this
Agreement, signed by an officer of the Trust and designating the
names of the Trust's initial Authorized Persons.
B. The Trust agrees to deliver or to cause to be
delivered to UMBFS in Milwaukee, Wisconsin, at the Trust's expense,
all of its Shareholder account records in a format acceptable to
UMBFS, as well as all other documents, records and information that
UMBFS may reasonably request in order for UMBFS to perform the
Services hereunder.
ARTICLE III
COMPENSATION & EXPENSES
3.01 Compensation. As compensation for the performance of
the Services, the Trust agrees to pay UMBFS the fees set forth on
Schedule C attached hereto. Fees shall be adjusted in accordance
with Schedule C or as otherwise agreed to by the parties from time
to time. The parties may amend Schedule C to include fees for any
additional services requested by the Trust, enhancements to current
Services, or to add Funds for which UMBFS has been retained. The
Trust agrees to pay UMBFS's then current rate for any Services added
to, or any enhancements to existing Services set forth on, Schedule
C after the execution of this Agreement.
3.02 Expenses. The Trust also agrees to promptly reimburse
UMBFS for all out-of-pocket expenses or disbursements incurred by
UMBFS in connection with the performance of Services under this
Agreement. Out-of-pocket expense shall include, but not be limited
to, those items specified on Schedule C hereto. If requested by
UMBFS, out-of-pocket expenses are payable in advance. Payment of
postage expenses, if prepayment is requested, is due at least seven
days prior to the anticipated mail date. In the event UMBFS
requests advance payment, UMBFS shall not be obligated to incur such
expenses or perform the related Service(s) until payment is
received.
3.03 Payment Procedures.
A. The Trust agrees to pay all amounts due hereunder
within thirty (30) days of the date reflected on the statement for
such Services (the "Due Date"). Except as provided in Schedule C,
UMBFS shall xxxx Service fees monthly, and out-of-pocket expenses as
incurred (unless prepayment is requested by UMBFS). UMBFS may, at
its option, arrange to have various service providers submit
invoices directly to the Trust for payment of reimbursable out-of-
pocket expenses.
B. The Trust is aware that its failure to remit to UMBFS
all amounts due on or before the Due Date will cause UMBFS to incur
costs not contemplated by this Agreement, including, but not limited
to carrying, processing and accounting charges. Accordingly, in the
event that UMBFS does not receive any amounts due hereunder by the
due date, the Trust agrees to pay a late charge on the overdue
amount equal to one and one-half percent (1.5%) per month or the
maximum amount permitted by law, whichever is less. In addition,
the Trust shall pay UMBFS's reasonable attorney's fees and court
costs if any amounts due UMBFS are collected by or through an
attorney. The parties hereby agree that such late charge represents
a fair and reasonable computation of the costs incurred by reason of
the Trust's late payment. Acceptance of such late charge shall in
no event constitute a waiver by UMBFS of the Trust's default or
prevent UMBFS from exercising any other rights and remedies
available to it.
C. In the event that any charges are disputed, the Trust
shall, on or before the Due Date, pay all undisputed amounts due
hereunder and notify UMBFS in writing of any disputed charges for
out-of-pocket expenses which it is disputing in good faith. Payment
for such disputed charges shall be due on or before the close of the
fifth (5th) business day after the day on which UMBFS provides to
the Fund documentation which an objective observer would agree
reasonably supports the disputed charges (the "Revised Due Date").
Late charges shall not begin to accrue as to charges disputed in
good faith until the first day after the Revised Due Date.
3.04 Allocation of Risk. The Trust acknowledges that the
fees charged by UMBFS under this Agreement reflect the allocation of
risk between the parties, including the exclusion of remedies and
limitations on liability in Article VIII. Modifying the allocation
of risk from what is stated herein would affect the fees that UMBFS
charges. Accordingly, in consideration of those fees, the Trust
agrees to the stated allocation of risk.
ARTICLE IV
PROCESSING AND PROCEDURES
4.01 Issuance, Redemption and Transfer of Shares
A. UMBFS agrees to accept purchase orders and redemption
requests with respect to the Shares of each Fund via postal mail,
telephone or personal delivery on each Fund Business Day in
accordance with such Fund's Prospectus; provided, however, that
UMBFS shall only accept purchase orders from states in which the
Shares are qualified for sale, as indicated from time to time by the
Trust. UMBFS shall, as of the time at which the net asset value of
each Fund is computed on each Fund Business Day, issue to and redeem
from the accounts specified in a purchase order or redemption
request in proper form and accepted by the Fund the appropriate
number of full and fractional Shares based on the net asset value
per Share of the respective Fund specified in an advice received on
such Fund Business Day from or on behalf of the Fund. UMBFS shall
not be responsible for the payment of any original issue or other
taxes required to be paid by the Trust in connection with the
issuance of any Shares in accordance with this Agreement. UMBFS
shall not be required to issue any Shares after it has received from
an Authorized Person or from an appropriate federal or state
authority written notification that the sale of Shares has been
suspended or discontinued, and UMBFS shall be entitled to rely upon
such written notification. Payment for Shares shall be in the form
of a check, wire transfer, Automated Clearing House transfer or such
other methods to which the parties shall mutually agree.
B. Upon receipt of a redemption request and monies paid
to it by the Custodian in connection with a redemption of Shares,
UMBFS shall cancel the redeemed Shares and after making appropriate
deduction for any withholding of taxes required of it by applicable
federal law, make payment in accordance with the Fund's redemption
and payment procedures described in the Prospectus.
C. Except as otherwise provided in this paragraph,
UMBFS will transfer or redeem Shares upon presentation to UMBFS of
instructions endorsed for exchange, transfer or redemption,
accompanied by such documents as UMBFS deems necessary to evidence
the authority of the person making such transfer or redemption.
UMBFS reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement or instructions are valid
and genuine. For that purpose, it will require, unless otherwise
instructed by an Authorized Person or except as otherwise provided
in this paragraph, a guarantee of signature by an "Eligible
Guarantor Institution" as that term is defined by SEC Rule 17Ad-15.
UMBFS 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 shall incur no liability for the refusal,
in good faith, to make transfers or redemptions which UMBFS, in its
judgment, deems improper or unauthorized, or until it is satisfied
that there is no reasonable basis to any claims adverse to such
transfer or redemption. UMBFS may, in effecting transfers and
redemptions of Shares, rely upon those provisions of the Uniform Act
for the Simplification of Fiduciary Security Transfers (or such
other statutes which protect it and the Trust in not requiring
complete fiduciary documentation) and shall not be responsible for
any act done or omitted by it in good faith in reliance upon such
laws. Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, UMBFS shall be fully
protected by each Fund in not requiring any instruments, documents,
assurances, endorsements or guarantees, including, without
limitation, any signature guarantees, in connection with a
redemption, exchange or transfer of Shares whenever UMBFS reasonably
believes that requiring the same would be inconsistent with the
transfer and redemption procedures described in the Prospectus.
D. Notwithstanding any provision contained in this
Agreement to the contrary, UMBFS shall not be required or expected
to require, as a condition to any transfer or redemption of any
Shares pursuant to a computer tape or electronic data transmission,
any documents to evidence the authority of the person requesting the
transfer or redemption and/or the payment of any stock transfer
taxes, and shall be fully protected in acting in accordance with the
applicable provisions of this Article.
E. In connection with each purchase and each redemption
of Shares, UMBFS shall send such statements as are prescribed by the
Federal securities laws applicable to transfer agents or as
described in the Prospectus. It is understood that certificates for
Shares have not been and will not be offered by the Trust or
available to investors.
F. UMBFS and the Trust shall establish procedures for
effecting purchase, redemption or transfer transactions accepted
from investors by telephone or other methods consistent with the
terms of the Prospectus. UMBFS may establish such additional
procedures, rules and regulations governing the purchase, redemption
or transfer of Shares, as it may deem advisable and consistent with
the Prospectus and industry practice. UMBFS shall not be liable,
and shall be held harmless by the Trust, for its actions or
omissions which are consistent with the foregoing procedures.
G. The Trust agrees to provide UMBFS with prior notice
of any increase or decrease in the total number of Shares authorized
to be issued, or the issuance of any additional Shares of a Fund
pursuant to stock dividends, stock splits, recapitalizations,
capital adjustments or similar transactions, and to deliver to UMBFS
such documents, certificates, reports and legal opinions as UMBFS
may reasonably request.
4.02 Dividends and Distributions.
A. The Trust shall give or cause to be given to UMBFS a
copy of a resolution of its Board of Trustees, that either:
(i) sets forth the date of the declaration of a
dividend or distribution, the date of accrual or payment, as the
case may be, thereof, the record date as of which Shareholders
entitled to payment or accrual, as the case may be, shall be
determined, the amount per Share of such dividend or distribution,
the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to
UMBFS on such payment date, or
(ii) authorizes the declaration of dividends and
distributions on a daily or other periodic basis and further
authorizes UMBFS to rely on a certificate of an Authorized Person
setting forth the information described in subsection (i) of this
paragraph.
B. In connection with a reinvestment of a dividend or
distribution of Shares of a Fund, UMBFS shall as of each Fund
Business Day, as specified in a certificate or resolution described
in paragraph A, issue Shares of the Fund based on the net asset
value per Share of such Fund specified in an advice received from or
on behalf of the Fund on such Fund Business Day.
C. Upon the mail date specified in such certificate or
resolution, as the case may be, the Trust shall, in the case of a
cash dividend or distribution, cause the Custodian to deposit in an
account in the name of UMBFS on behalf of a Fund, an amount of cash
sufficient for UMBFS to make the payment, as of the mail date
specified in such certificate or resolution, as the case may be, to
the Shareholders who were of record on the record date. UMBFS will,
upon receipt of any such cash, make payment of such cash dividends
or distributions to the Shareholders as of the record date. UMBFS
shall not be liable for any improper payments made in accordance
with a certificate or resolution described in the preceding
paragraph. If UMBFS shall not receive from the Custodian sufficient
cash to make payments of any cash dividend or distribution to all
Shareholders of a Fund as of the record date, UMBFS shall, upon
notifying the Trust, withhold payment to such Shareholders until
sufficient cash is provided to UMBFS.
D. It is understood that UMBFS in its capacity as
transfer agent and dividend disbursing agent shall in no way be
responsible for the determination of the rate or form of dividends
or capital gain distributions due to the Shareholders pursuant to
the terms of this Agreement. It is further understood that UMBFS
shall file with the Internal Revenue Service and Shareholders such
appropriate federal tax forms concerning the payment of dividend and
capital gain distributions but shall in no way be responsible for
the collection or withholding of taxes due on such dividends or
distributions due to shareholders, except and only to the extent,
required by applicable federal law.
4.03 Records.
A. UMBFS shall keep those records specified in Schedule
D hereto in the form and manner, and for such period, as it may deem
advisable but not inconsistent with the rules and regulations of
appropriate government authorities, in particular Rules 31a-2 and
31a-3 under the 1940 Act. UMBFS may deliver to the Trust from time
to time at UMBFS's discretion, for safekeeping or disposition by the
Trust in accordance with law, such records, papers and documents
accumulated in the execution of its duties as transfer agent, as
UMBFS may deem expedient, other than those which UMBFS is itself
required to maintain pursuant to applicable laws and regulations.
The Trust shall assume all responsibility for any failure thereafter
to produce any record, paper, or other document so returned, if and
when required. To the extent required by Section 31 of the 1940 Act
and the rules and regulations thereunder, the records specified in
Schedule D hereto maintained by UMBFS, which have not been
previously delivered to the Trust pursuant to the foregoing
provisions of this paragraph, shall be considered to be the property
of the Trust, shall be made available upon request for inspection by
the officers, employees, and auditors of the Trust, and shall be
delivered to the Trust promptly upon request and in any event upon
the date of termination of this Agreement, in the form and manner
kept by UMBFS on such date of termination or such earlier date as
may be requested by the Trust. Notwithstanding anything contained
herein to the contrary, UMBFS shall be permitted to maintain copies
of any such records, papers and documents to the extent necessary to
comply with the recordkeeping requirements of federal and state
securities laws, tax laws and other applicable laws.
B. UMBFS agrees to keep all records and other information
relative to the Funds' Shareholders confidential, not to use such
information other than for purposes of fulfilling its duties under
the Agreement and not to disclose such information except: (i) when
requested to divulge such information by duly-constituted
authorities or court process, or (ii) when requested by a
Shareholder or Shareholder's agent with respect to information
concerning an account as to which such Shareholder has either a
legal or beneficial interest, or (iii) when requested by the Trust,
a Fund, the Shareholder, the Shareholder's agent or the dealer of
record with respect to such account, or (iv) to an affiliate, as
defined by Section 248.3(a) of Regulation S-P (17 CFR 248.1-248.30);
or (v) pursuant to any other exception permitted by Sections 248.14
and 248.15 of Regulation S-P in the ordinary course of business to
carry out the activities covered by the exception under which UMBFS
received the information. In case of any requests or demands for
inspection of the records of the Funds, UMBFS will endeavor to
notify the Trust promptly and to secure instructions from a
representative of the Trust as to such inspection. Records and
information which have become known to the public through no
wrongful act of UMBFS or any of its employees, agents or
representatives, and information which was already in the possession
of UMBFS prior to receipt thereof, shall not be subject to this
paragraph.
ARTICLE V
REPRESENTATION AND WARRANTIES
5.01 Representations of Trust. The Trust represents and
warrants to UMBFS that:
A. It is a business trust duly organized and existing
under the laws of the State of Massachusetts; it is empowered under
applicable laws and by its Declaration of Trust 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.
B. Any officer of the Trust has the authority to
appoint additional Authorized Persons, to limit or revoke the
authority of any previously designated Authorized Person, and to
certify to UMBFS the names of such Authorized Persons.
C. It is duly registered as an investment company under
the 1940 Act.
D. A registration statement under the Securities Act is
currently effective and will remain effective, and appropriate state
securities laws filings have been made and will continue to be made,
with respect to Shares of the Trust being offered for sale.
E. All outstanding Shares are validly issued, fully
paid and non-assessable and when Shares are hereafter issued in
accordance with the terms of the Trust's Declaration of Trust and
its Prospectus with respect to each Fund, such Shares shall be
validly issued, fully paid and non-assessable.
F. All shareholder tax reporting has been completed
timely and accurately, including the distribution of Forms 5498s for
the 200_ tax year.
G. The Funds, and all shareholder accounts, are in
balance and all accounts reconciled and current as of the date of
this Agreement, and (1) there are no outstanding issues relating to
transfer agent activities and shareholder and Trust record keeping,
including those related to shareholder accounts and transaction
activity, and (2) there are no existing or potential claims,
litigation or demands by shareholders or others relating to the
Trust, or any of the Funds or their officers or Trustees, except as
disclosed in writing and dated as of the date of this Agreement to
UMBFS.
5.02 Representations of UMBFS. UMBFS represents and warrants
to the Trust that:
A. It is a corporation duly organized and existing
under the laws of the State of Wisconsin; it is empowered under
applicable law and by its Articles of Incorporation and By-laws to
enter into and perform this Agreement; and all requisite proceedings
have been taken to authorize it to enter into and perform this
Agreement.
B. It is duly registered as a transfer agent under
Section 17A of the 1934 Act to the extent required.
C. It has received a copy of each Fund's Prospectus
which describes how sales and redemptions of Shares shall be made.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 Information Updates. During the term of this Agreement
the Trust shall have the ongoing obligation to provide UMBFS with
the following documents as soon as they become effective: (i)
certified copies of all amendments to its Declaration of Trust and
By-laws made after the date of this Agreement; and (ii) a copy of
each Fund's currently effective Prospectus. For purposes of this
Agreement, UMBFS shall not be deemed to have notice of any
information contained in any such Prospectus until a reasonable time
after it is actually received by UMBFS.
6.02 Share Qualification. The Trust agrees to take or cause
to be taken all requisite steps to qualify the Shares for sale in
all states in which the Shares shall at the time be offered for sale
and require qualification. If the Trust receives notice of any stop
order or other proceeding in any such state affecting such
qualification or the sale of Shares, or of any stop order or other
proceeding under the federal securities laws affecting the sale of
Shares, the Trust will give prompt notice thereof to UMBFS.
6.03 Compliance with Laws. The Trust will comply with all
applicable requirements of the Securities Act, the Exchange Act, the
1940 Act, blue sky laws, and any other applicable laws, rules and
regulations.
6.04 Additional Duties. The Trust agrees that it shall
advise UMBFS at least 30 days prior to effecting any change in the
Prospectus which would increase or alter the duties and obligations
of UMBFS hereunder, and shall proceed with such change only if it
shall have received the written consent of UMBFS thereto.
6.05 Transfer Agent System. UMBFS shall retain all right,
title and interest in and any and all computer programs, screen
formats, report formats, procedures, data bases, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, trade secrets,
trademarks and other related legal rights provided, developed or
utilized by UMBFS in connection with the Services provided by UMBFS
to the Trust hereunder.
ARTICLE VII
TRUST INSTRUCTIONS
7.01 Authorized Persons. Upon the execution of this
Agreement, the Trust shall provide UMBFS with a certificate
containing the names of the initial Authorized Persons in a form
acceptable to UMBFS. Any officer of the Trust shall be considered
an Authorized Person (unless such authority is limited in a writing
from the Trust and received by UMBFS) and has the authority to
appoint additional Authorized Persons, to limit or revoke the
authority of any previously designated Authorized Person, and to
certify to UMBFS the names of the Authorized Persons from time to
time. The Trust shall provide UMBFS with an updated certificate
evidencing the appointment, removal or change of authority of any
Authorized Person, it being understood UMBFS shall not be held to
have notice of any change in the authority of any Authorized Person
until receipt of written notice thereof from the Trust.
7.02 Acceptance of Instructions. UMBFS, its officers, agents or
employees shall accept Instructions given to them by any person
representing or acting on behalf of the Trust only if such
representative is an Authorized Person. The Trust agrees that when
oral Instructions are given, it shall, upon the request of UMBFS,
confirm such Instructions in writing.
7.03 Request for Instructions. At any time, UMBFS may request
Instructions from the Trust with respect to any matter arising in
connection with this Agreement. If such Instructions are not
received within a reasonable time, then UMBFS may seek advice from
legal counsel for the Trust at the expense of the Trust, or its own
legal counsel at its own expense, and it shall not be liable for any
action taken or not taken by it in good faith in accordance with
such Instructions or in accordance with advice of counsel.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
8.01 Limitation of Liability. Notwithstanding anything
contained in this Agreement to the contrary, UMBFS shall not be
liable for any error of judgment or mistake of law or for any loss
suffered by the Trust or the Funds in connection with the matters to
which this Agreement relates, except for a loss resulting from
UMBFS's willful misfeasance, bad faith or gross negligence in the
performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement. Furthermore, UMBFS
shall not be liable for (1) any action taken or omitted to be taken
in accordance with or in reliance upon written or oral instructions,
advice, data, documents or information (without investigation or
verification) received by UMBFS from an officer or representative of
the Trust or from a representative of any of the parties referenced
in Section 10.09, or (2) any action taken or omission by a Fund, the
Trust, investment adviser(s) or any past or current service
provider.
8.02 Indemnification. The Trust agrees to indemnify and hold
harmless UMBFS, its employees, agents, officers, directors,
affiliates and nominees ("Indemnified Parties") from and against any
and all claims, demands, actions and suits, and from and against any
and all judgments, liabilities, losses, damages, costs, charges,
counsel fees and other expenses of every nature and character which
may be asserted against or incurred by any Indemnified Party or for
which any Indemnified Party may be held liable (a "Claim") arising
out of or in any way relating to any of the following:
(a) any action or omission of UMBFS except to the
extent a Claim resulted from UMBFS's willful misfeasance, bad faith,
gross negligence in the performance of its duties or from reckless
disregard by it of its obligations and duties hereunder;
(b) UMBFS's reliance on, implementation of, or use,
without investigation or verification, of information, data,
records and documents received by UMBFS from the Trust, or from a
representative of any of the parties referenced in Section 10.09, or
any third party acting on behalf of the Trust;
(c) the reliance on, or the implementation of, any
Instructions or any other advice, instructions, requests or
directions of the Trust or from a representative of any of the
parties referenced in Section 10.09, or any third party acting on
behalf of the Trust;
(d) UMBFS's acting upon telephone or electronic
instructions relating to the purchase, exchange or redemption of
Shares received by UMBFS in accordance with procedures established
by UMBFS and the Trust;
(e) any action taken by or omission of the Trust,
investment adviser or sub-adviser(s) or any past or current service
provider;
(f) the acceptance, processing and/or negotiation of a
fraudulent payment for the purchase of Shares unless the result of
UMBFS's or its affiliates' willful misfeasance, bad faith or gross
negligence in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement.
In the absence of a finding to the contrary, the acceptance,
processing and/or negotiation of a fraudulent payment for the
purchase of Shares shall be presumed not to have been the result of
UMBFS's or its affiliates' willful misfeasance, bad faith or gross
negligence.
(g) the offer or sale of Shares in violation of any
requirement under the securities laws or regulations of any state
that such Shares be qualified for sale in such state or in violation
of any stop order or determination or ruling by any state with
respect to the offer or sale of such Shares in such state; or
(h) the Trust's refusal or failure to comply with the
terms of the Agreement, or any Claim that arises out of the Trust's
negligence or misconduct or breach of any representation or warranty
of the Trust made herein.
8.03 Indemnification Procedures. UMBFS will notify the Trust
promptly after identifying any situation which it believes presents
or appears likely to present a Claim for which the Trust may be
required to indemnify or hold UMBFS harmless hereunder. In such
event, the Trust shall have the option to defend UMBFS against any
Claim, and, in the event that the Trust so elects, such defense
shall be conducted by counsel chosen by the Trust and approved by
UMBFS in its reasonable discretion. UMBFS shall not confess any
Claim or make any compromise in any case in which the Trust will be
asked to provide indemnification, except with the Trust's prior
written consent. The obligations of the parties under the Sections
8.02 and 8.03 shall survive the termination of this Agreement.
8.04 Force Majeure. UMBFS assumes no responsibility
hereunder, and shall not be liable, for any damage, loss of data or
documents, errors, delay or any other loss whatsoever caused by
events beyond its reasonable control. UMBFS will, however, take all
reasonable steps to minimize service interruptions for any period
that such interruption continues beyond UMBFS's control.
8.05 Consequential Damages. In no event and under no
circumstances shall UMBFS, its affiliates or any of its or their
officers, directors, agents or employees be liable to anyone,
including, without limitation, the other party, under any theory of
tort, contract, strict liability or other legal or equitable theory
for lost profits, exemplary, punitive, special, indirect or
consequential damages for any act or failure to act under any
provision of this Agreement regardless of whether such damages were
foreseeable and even if advised of the possibility thereof.
8.06 Additional Limitations and Exclusions. Notwithstanding
any other provision of this Agreement, UMBFS shall have no duty or
obligation under this Agreement to inquire into, and shall not be
liable for:
(a) The legality of the issue or sale of any Shares,
the sufficiency of the amount to be received therefor, or the
authority of the Trust, as the case may be, to request such sale or
issuance;
(b) The legality of a transfer of Shares or of a
purchase or redemption of any Shares, the propriety of the amount to
be paid therefor, or the authority of the Trust, as the case may be,
to request such transfer or redemption;
(c) The legality of the declaration of any dividend by
the Trust, or the legality of the issue of any Shares in payment of
any stock dividend; or
(d) The legality of any recapitalization or
readjustment of Shares.
ARTICLE IX
TERM AND TERMINATION
9.01 Term. This Agreement shall become effective with
respect to each Fund listed on Schedule A hereof as of the date
hereof and, with respect to each Fund not in existence on that date,
on the date an amendment to Schedule A to this Agreement relating to
that Fund is executed. This Agreement shall continue in effect with
respect to each Fund until terminated as provided herein.
9.02 Termination.
(a) Either party may terminate this Agreement at any
time by giving the other party a written notice not less than sixty
(60) days prior to the date the termination is to be effective. In
the event such notice is given by the Trust pursuant to Section
9.02, it shall be accompanied by a copy of a resolution of the Board
of Trustees of the Trust certified by the Secretary or any Assistant
Secretary, electing to terminate this Agreement and designating the
successor transfer agent or transfer agents. In the event such
notice is given by UMBFS, the Trust shall on or before the
termination date, deliver to UMBFS a copy of a resolution of its
Board of Trustees certified by the Secretary or any Assistant
Secretary designating a successor transfer agent or transfer agents.
In the absence of such designation by the Trust, the Trust shall be
deemed to be its own transfer agent as of the termination date and
UMBFS shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement. Fees and out-of-pocket expenses
incurred by UMBFS, but unpaid by the Trust upon such termination,
shall be immediately due and payable upon and notwithstanding such
termination.
(b) Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control, as hereinafter defined, of
the Trust's investment adviser or sponsor, the Trust's ability to
terminate this Agreement pursuant to this Section 9 shall be
suspended from the time of such agreement until eighteen months
after the Change of Control. For purposes of this Agreement, a
"Change of Control" of the investment adviser or sponsor means a
change in ownership or control of more than fifty percent (50%) of
the common stock or shares of beneficial interest of such investment
adviser or sponsor or its parent company.
9.03 Effect of Termination. Upon the termination of the
Agreement as provided herein, UMBFS, upon the written request of the
Trust, shall deliver the records of the Trust to the Trust or its
successor transfer agent in the form maintained by UMBFS (to the
extent permitted by applicable license agreements) at the expense of
the Trust. The Trust shall be responsible to UMBFS for all costs
and expenses associated with the preparation and delivery of such
media and all reasonable trailing expenses incurred by UMBFS,
including, but not limited to: (a) out-of-pocket expenses; (b) any
custom programming requested by the Trust in connection with the
preparation of such media and agreed upon by UMBFS; (c)
transportation of forms and other materials used in connection with
the processing of Trust transactions by UMBFS; and (d)
transportation of records and files in the possession of UMBFS. In
addition, UMBFS shall be entitled to such compensation as the
parties may mutually agree for any services other than the
preparation and delivery of such media requested by the Trust and
agreed to by UMBFS in connection with the termination of this
Agreement or the liquidation or merger of the Trust. UMBFS shall
not reduce the level of service provided to the Trust prior to
termination following notice of termination by the Trust.
ARTICLE X
MISCELLANEOUS
10.01 Notices. Any notice required or permitted to be given
by either party to the other under this Agreement shall be in
writing and shall be deemed to have been given when sent by either
an overnight delivery service or by registered or certified mail,
postage prepaid, return receipt requested, to the addresses listed
below, or to such other location as either party may from time to
time designate in writing:
If to UMBFS: UMB Fund Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Executive Vice President
If to the Trust: _________________________
_________________________
_________________________
Attention: _________________
10.02 Amendments/Assignments.
A. Except as provided to the contrary herein, this
Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the formality of
this Agreement.
B. This Agreement shall extend to and shall be binding
upon the parties hereto, and their respective successors and
assigns. This Agreement shall not be assignable by either party
without the written consent of the other party, except that UMBFS
may assign this Agreement to an affiliate with advance written
notice to the Trust and except as provided in Section 2.02.
10.03 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
Wisconsin, without regard to its conflict of law provisions.
10.04 Severability. If any part, term or provision of this
Agreement is determined by the courts or any regulatory authority
having jurisdiction over the issue 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.
10.05 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an
original; but such counterparts shall, together, constitute only one
instrument.
10.06 Non-Exclusivity; Other Agreements. The services of
UMBFS hereunder are not deemed exclusive and UMBFS shall be free to
render similar and other services to others. Except as specifically
provided herein, this Agreement does not in any way affect any other
agreements entered into among the parties hereto and any actions
taken or omitted by any party hereunder shall not affect any rights
or obligations of any other party hereunder.
10.07 Captions. The captions in the Agreement are included
for convenience of reference only, and in no way define or limit any
of the provisions hereof or otherwise affect their construction or
effect.
10.08 Trust Limitations. This Agreement is executed by the
Trust with respect to each of the Funds and the obligations
hereunder are not binding upon any of the trustees, officers or
shareholders of the Trust individually but are binding only upon the
Fund to which such obligations pertain and the assets and property
of such Fund. All obligations of the Trust under this Agreement
shall apply only on a Fund-by-Fund basis, and the assets of one Fund
shall not be liable for the obligations of another Fund. The Fund's
Declaration of Trust is on file with the State of _______________.
10.09 Reliance on Information and Instructions. The Trustees
of the Trust shall cause the officers, trustees, investment
adviser(s) and sub-advisers, legal counsel, independent accountants,
custodian and other service providers and agents, past or present,
for the Funds to cooperate with UMBFS and to provide UMBFS with such
information, documents and advice as necessary and/or appropriate or
as requested by UMBFS, in order to enable UMBFS to perform its
duties hereunder. In connection with its duties hereunder, UMBFS
shall (without investigation or verification) be entitled, and is
hereby instructed to, rely upon any and all instructions, advice,
information or documents provided to UMBFS by an officer or
representative of the Funds or by any of the aforementioned persons.
UMBFS shall be entitled to rely on any document that it reasonably
believes to be genuine and to have been signed or presented by the
proper party. Fees charged by such persons shall be an expense of
the Trust. UMBFS shall not be held to have notice of any change of
authority of any officer, agent, representative or employee of the
Trust, investment adviser(s) or service provider until receipt of
written notice thereof from the Trust. As used in this Agreement,
the term "investment adviser" includes all sub-advisers or persons
performing similar services.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
UMB FUND SERVICES, INC.
_______________________________
By: ______________________________ By:
________________________________
(Signature) (Signature)
______________________________
________________________________
(Name) (Name)
______________________________
________________________________
(Title) (Title)
______________________________
________________________________
(Date Signed) (Date Signed)
Schedule A
to the
Transfer Agency Agreement
by and between
________________________
and
UMB Fund Services, Inc.
Name of Funds
Schedule B
to the
Transfer Agency Agreement
by and between
____________________
and
UMB Fund Services, Inc.
SERVICE SCHEDULE
? Set up and maintain shareholder accounts and records, including
IRAs and other retirement accounts
? Store account documents electronically
? Receive and respond to investor account inquiries by telephone or
mail, or by e-mail if the response does not require the reference
to specific shareholder account information
? Process purchase and redemption orders, transfers, and exchanges,
including automatic purchases and redemptions via postal mail,
telephone and personal delivery, provided payment for shares is
in the form of a check, wire transfer or requested Automated
Clearing House transfer, or such other means as the parties shall
mutually agree
? Process dividend payments by check, wire or ACH, or reinvest
dividends
? Issue daily transaction confirmations and monthly or quarterly
statements
? Mail prospectus, annual and semiannual reports, and other
shareholder communications to existing shareholders
? File IRS Forms 1099, 5498, 1042, 1042-S and 945 with shareholders
and/or the IRS
? Handle load and multi-class processing, including rights of
accumulation and purchases by letters of intent
? Calculate 12b-1 plan fees
? Provide standards to structure forms and applications for
efficient processing
? UMBISG 4.prompt services (per fund group)
? Tier I and II - Basic Service
The foregoing services do not include correcting, verifying or
addressing any prior actions or inactions by any Fund or by any
prior service provider. To the extent UMBFS agrees to take such
actions, those actions taken shall be deemed part of this service
schedule.
Optional Services
The Funds may contract with UMBFS to provide one or more of the
following optional services. Additional fees apply.
? Personal follow-up calls to prospects who return incomplete
applications
? Comprehensive clerical confirmation statements for maintenance
transactions
? UMBISG 4.netr services, UMBFS's array of Internet services,
including Adviser Services, RIA/Broker Services, Shareholder
Services, NAV Services and email services.
? Average cost calculations and cost basis statements
? Shareholder "welcome" packages with initial confirmation
? Access to UMBFS's Tax and Retirement Group to answer questions
and coordinate retirement plan options
? Follow up on IRAs, soliciting beneficiary and other information
and sending required minimum distribution reminder letters
? Money market funds for short-term investment or exchanges
? Dedicated service representatives
? Weekend and holiday shareholder services
? Customized reorder form tracking
? Give dealers access through NSCC's Fund/SERV and Networking
? Customized forms and applications
? Postal Clean Up
Schedule C
to the
Transfer Agent Agreement
by and between
_______________________
and
UMB Fund Services, Inc.
(to be provided)
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