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TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this thirteenth day of
February, 1997, by and between Xxxxxx Series Trust, a Delaware business trust
(hereinafter referred to as the "Fund") and Firstar Trust Company, a
corporation organized under the laws of the State of Wisconsin (hereinafter
referred to as the "Agent").
WHEREAS, the Fund is an open-ended management investment company which is
registered under the Investment Company Act of 1940; and
WHEREAS, the Agent is a trust 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 Fund 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 Fund
hereby employs and appoints the Agent to act as transfer agent and dividend
disbursing agent.
The Fund is authorized to issue separate Series 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.
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 Fund'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 Fund's custodian;
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D. Pay monies (upon receipt from the Fund'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 funds within the same
family of funds if applicable;
G. Issue and/or 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 Fund;
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 Securities Exchange Act of 1934 Rule
17ad-10(e), a record of the total number of shares of the Fund
which are authorized, issued and outstanding and such other
records as are required to be maintained by a transfer agent
for open-end registered investment companies by the rules
under the Securities Exchange Act of 1934, as amended;
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, redemptions and
other confirmable transactions as agreed upon with the Fund;
and
O. Provide a Blue Sky System which will enable the
Fund to monitor the total number of shares sold in each state.
In addition, the Fund shall identify to the Agent in writing
those transactions and assets to be treated as exempt from the
Blue Sky reporting to the Fund for each state. The
responsibility of the Agent for the Fund's Blue Sky state
registration status
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is solely limited to the initial compliance by the Fund and
the reporting of such transactions to the Fund.
2. COMPENSATION
The Fund agrees to pay the Agent for performance of the duties listed in
this Agreement; the fees and out-of-pocket expenses include, but are not
limited to the following: printing, postage, forms, stationery, record
retention, mailing, insertion, programming, labels, shareholder lists and proxy
expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Fund and the Agent.
The Fund agrees to pay all fees and reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
3. REPRESENTATIONS OF AGENT
The Agent represents and warrants to the Fund that:
A. It is a trust company duly organized, existing
and in good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the
Securities Exchange Act of 1934 as amended.
C. It is duly qualified to carry on its business in
the state of Wisconsin;
D. It is empowered under applicable laws and by its
charter and bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been
taken to authorize it to enter and perform this Agreement; and
F. It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its
duties and obligations under this Agreement; and
G. It will comply with all applicable requirements
of the Securities Act of 1933 and the Securities Exchange Act
of 1934, as amended, the Investment Company Act of 1940, as
amended, and any laws, rules, and regulations of governmental
authorities having jurisdiction.
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4. REPRESENTATIONS OF THE FUND
The Fund represents and warrants to the Agent that:
A. The Fund is an open-ended diversified investment
company under the Investment Company Act of 1940;
B. The Fund is a Delaware business trust organized,
existing, and in good standing under the laws of Delaware;
C. The Fund 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 the Fund to
enter into and perform this Agreement;
E. The Fund will comply with all applicable
requirements of the Securities Act of 1933, as amended,
Securities Exchange Act of 1934, as amended, the Investment
Company Act of 1940, as amended, and any laws, rules and
regulations of governmental authorities having jurisdiction;
and
F. A registration statement under the Securities Act
of 1933 is currently effective and will remain effective, and
appropriate state securities law filings have been made and
will continue to be made, with respect to all shares of the
Fund being offered for sale.
5. COVENANTS OF THE FUND AND AGENT
The Fund shall furnish the Agent a certified copy of the resolution of the
Board of Trustees of the Fund authorizing the appointment of the Agent and the
execution of this Agreement. The Fund shall provide to the Agent a copy of the
Declaration of Trust, bylaws of the Fund, 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 Investment Company Act of 1940, as amended, 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 Fund and will be preserved, maintained and
made available in accordance with such section and rules and will be
surrendered to the Fund 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 Fund in connection with
matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power
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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 Fund 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
Fund, 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 of Trustees of the Fund.
Further, the Fund 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 Fund (unless contributed to by the Agent's
breach of this Agreement or other Agreements between the Fund and the Agent, or
the Agent's own negligence or bad faith); or as a result of the Agent acting
upon telephone instructions relating to the exchange or redemption of shares
received by the Agent and reasonably believed by the Agent under a standard of
care customarily used in the industry to have originated from the record owner
of the subject shares; or as a result of acting in reliance upon any genuine
instrument or stock certificate signed, countersigned, or executed by any
person or persons authorized to sign, countersign, or execute the same.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, the Agent shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every reasonable effort to
restore any lost or damaged data and correct any errors resulting from such a
breakdown at the expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing equipment
to the extent appropriate equipment is available. Representatives of the Fund
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 Fund may be asked to
indemnify or hold the Agent harmless, the Fund 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
Fund promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Fund.
The Fund shall have the option to defend the Agent against any claim which may
be the subject of this indemnification. In the
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event that the Fund so elects, it will so notify the Agent and thereupon the
Fund 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 Fund will be asked to
indemnify the Agent except with the Fund's prior written consent.
The Agent shall indemnify and hold the Fund 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 Fund 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 Fund and its
shareholders and shall not be disclosed to any other party, except after prior
notification to and approval in writing by the Fund, which approval shall not
be unreasonably withheld and may not be withheld where the Agent may be exposed
to civil or criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities.
8. RECORDS
The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Fund but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
The Investment Company Act of 1940, as amended (the "Investment Company 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 Fund and will be preserved, maintained, and
made available with such section and rules of the Investment Company Act and
will be promptly surrendered to the Fund on and in accordance with its request.
9. WISCONSIN LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the state of Wisconsin.
10. 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)
day's written notice given by one party to the other.
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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 Firstar Trust Company/Mutual Fund
Services located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000. If to the Fund, such notice should be sent to
Xxxxxx Series Trust located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
X.X. 00000.
E. In the event that the Fund gives to the Agent its
written intention to terminate and appoint a successor
transfer agent, the Agent agrees to cooperate in the transfer
of its duties and responsibilities to the successor, including
any and all relevant books, records and other data established
or maintained by the Agent under this Agreement.
F. Should the Fund exercise its right to terminate,
except where such termination follows a breach of this
Agreement by the Agent, all out-of-pocket expenses associated
with the movement of records and material will be paid by the
Fund. Trustees and shareholders shall not be personally liable
for obligations of the Fund in connection with any matter
arising from or in connection with this Agreement.
Xxxxxx Series Trust Firstar Trust Company
By: /s/ Xxxxx Xxxxxx By: /s/ Xxx X. Xxxxxxx
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Print: Xxxxx Xxxxxx Print: Xxx X. Xxxxxxx
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Title: Chief Financial Officer/Treasurer Title: First Vice President
Date: February 13, 1997 Date: February 27, 1997
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Attest: /s/ Xxxxx X. Xxxxxxxxx Attest:
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Assistant Secretary
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