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EXHIBIT (9)(b)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
SEI FINANCIAL MANAGEMENT CORPORATION
and
CONESTOGA FAMILY OF FUNDS
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of May, 1995, by and between
Conestoga Family of Funds, a Massachusetts business trust, having its principal
office and place of business at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇ 19087(the
"Fund"), and SEI Financial Management Corporation, a Delaware corporation
having its principal office and place of business at ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇, ▇▇ 19087("SFM").
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets; and
WHEREAS, the Fund currently offers shares in (11) eleven series listed
on Schedule A hereto (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Article 10, herein referred to as a "Portfolio", and
collectively as the "Portfolios");
WHEREAS, the Fund on behalf of the Portfolios desires to appoint SFM
as its transfer agent, dividend disbursing agent, and agent in connection with
certain other activities, and SFM desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 Terms of Appointment; Duties of SFM
1.01 Subject to the terms and conditions set forth in this
Agreement, the Fund, on behalf of the Portfolios, hereby employs and appoints
SFM to act as, and SFM agrees to act as its transfer agent for the authorized
and issued shares of beneficial interest of the Fund representing interests
in each of the respective Portfolios ("Shares"), dividend disbursing agent,
and agent in connection with any accumulation, open-account or similar plans
provided to the shareholders of each of the respective Portfolios of the Fund
("Shareholders") and set out in the currently effective prospectus and
statement of additional information ("prospectus") of the Fund on behalf of
the
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applicable Portfolio, including without limitation any periodic investment
plan or periodic withdrawal program.
1.02 SFM agrees that it will perform the following services:
(a) In accordance with any procedures which may be
established from time to time by written agreement between the Fund on behalf
of each of the Portfolios, as applicable and SFM, SFM shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Fund
authorized pursuant to the Declaration of Trust of
the Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the
appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate
documentation thereof to the Custodian;
(iv) In respect to the transactions in items (i), (ii) and
(iii) above, SFM shall execute transactions directly
with broker-dealers authorized by the Fund (or the
Distributor) who shall thereby be deemed to be acting
on behalf of the Fund;
(v) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to
any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed by
the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the
applicable Portfolio;
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(viii) Maintain records of account for and advise the Fund
and its Shareholders as to the foregoing; and
(ix) Record the issuance of Shares of the Fund and
maintain pursuant to SEC Rule 17Ad-10(e) a record of
the total number of Shares which are authorized,
based upon data provided to it by the Fund, and
issued and outstanding. SFM shall also provide the
Fund on a regular basis with the total number of
Shares which are authorized and issued and
outstanding and shall have no obligation, when
recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any
laws relating to the issue or sale of such Shares,
which functions shall be the sole responsibility of
the Fund.
(x) SFM shall provide additional services on behalf of
the Fund (i.e., escheatment services) which may be
agreed upon in writing between the Fund and SFM.
(b) In addition to and neither in lieu nor in
contravention of the services set forth in the above paragraph (a), SFM shall:
(i) perform the customary services of a transfer agent, 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: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
mailing Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts, preparing
and filing U.S. Treasury Department Forms 1099 and other appropriate forms
required with respect to dividends and distributions by federal authorities for
all Shareholders, preparing and mailing confirmation forms and statements of
account to Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and mailing
activity statements for Shareholders, and providing Shareholder account
information and (ii) provide a system which will enable the Fund to monitor the
total number of Shares sold in each State.
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(c) In addition, the Fund shall (i) identify to SFM in
writing those transactions and assets to be treated as exempt from blue sky
reporting for each State and (ii) verify the establishment of transactions for
each State on the system prior to the effective date of this Agreement. The
responsibility of SFM for the Fund's blue sky State registration status is
solely limited to monitoring the daily activity for each State, the initial
establishment of transactions subject to blue sky compliance by the Fund and
the reporting of such transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these
services in Article 1 may be established from time to time by written agreement
between the Fund and SFM, whereby SFM may perform only a portion of these
services and the Fund or other agent may perform these services on each
Portfolio's behalf.
Article 2 Fees and Expenses
2.01 For the performance by SFM pursuant to this Agreement,
the Fund agrees on behalf of each of the Portfolios to pay SFM an annual
maintenance fee for each Shareholder account as set out in Schedule B attached
hereto. Such fees and out-of-pocket expenses and advances identified under
Section 2.02 below may be changed from time to time subject to mutual written
agreement between the Fund and SFM.
2.02 In addition to the fee paid under Section 2.01 above,
the Fund agrees on behalf of each of the Portfolios to reimburse SFM for
out-of-pocket expenses as set forth in Schedule B hereto, or advances incurred
by SFM for the items set out in Schedule B attached hereto. In addition, any
other expenses incurred by SFM at the request or with the consent of the Fund,
will be reimbursed by the Fund on behalf of the applicable Portfolio.
2.03 The Fund agrees on behalf of each of the Portfolios to
pay all fees and reimbursable expenses within five days following the receipt
of the respective billing notice. Postage for mailing of dividends, proxies,
Fund reports and other mailings to all Shareholder accounts shall be advanced
to SFM by the Fund at least seven (7) days prior to the mailing date of such
materials.
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Article 3 Representations and Warranties of SFM
SFM represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in
good standing under the laws of the State of Delaware.
3.02 It is duly qualified to carry on its business in the
State of Delaware.
3.03 It is empowered under applicable laws and by its Charter
and By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to SFM that:
4.01 It is a business trust duly organized and existing and
in good standing under the laws of the Commonwealth of Massachusetts.
4.02 It is empowered under applicable laws and by its
Declaration of Trust and Code of Regulations to enter into and perform this
Agreement.
4.03 All proceedings required by said Declaration of Trust
and Code of Regulations have been taken to authorize it to enter into and
perform this Agreement.
4.04 It is an open-end and management investment company
registered under the Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of
1933, as amended, on behalf of each of the Portfolios is currently effective
and will remain effective.
Article 5 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases, computer
programs, screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by SFM as part of the Fund's
ability to access certain Fund-related data ("Customer Data")
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maintained by SFM on data bases under the control and ownership of SFM or other
third party ("Data Access Services") constitute copyrighted, trade secret, or
other proprietary information (collectively, "Proprietary Information") of
substantial value to SFM or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Fund agrees to treat all Proprietary
Information as proprietary to SFM and further agrees that it shall not divulge
any Proprietary Information to any person or organization except as may be
provided hereunder. Without limiting the foregoing, the Fund agrees for itself
and its employees and agents:
(a) to access Customer Data solely from locations as may
be designated in writing by SFM and solely in
accordance with SFM's applicable user documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
portion of the Proprietary Information, and if such
access is inadvertently obtained, to inform in a
timely manner of such fact and dispose of such
information in accordance with SFM's instructions;
(d) to refrain from causing or allowing third-party data
acquired hereunder from being retransmitted to any
unauthorized computer facility or other location,
except with the prior written consent of SFM;
(e) that the Fund shall have access only to those
authorized transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by SFM
to protect at SFM's expense the rights of SFM in
Proprietary Information at common law, under federal
copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Article 5. The obligations of this Article
shall survive any earlier termination of this Agreement.
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5.02 If the Fund notifies SFM that any of the Data Access
Services do not operate in material compliance with the most recently issued
user documentation for such services, SFM shall endeavor in a timely manner to
correct such failure. Organizations from which SFM may obtain certain data
included in the Data Access Services are solely responsible for the contents of
such data and the Fund agrees to make no claim against SFM arising out of the
contents of such third-party data, including, but not limited to, the accuracy
thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. SFM EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY
STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Fund include the
ability to originate electronic instructions to SFM in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder information
or other information (such transactions constituting a "COEFI"), then in such
event SFM shall be entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such instruction
is undertaken in conformity with security procedures established by SFM from
time to time.
Article 6 Indemnification
6.01 SFM shall not be responsible for, and the Fund shall
indemnify and hold SFM harmless from and against, any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liability
arising out of or attributable to:
(a) All actions of SFM or its agent or subcontractors
required to be taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any representation or warranty of
the Fund hereunder.
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(c) The reliance on or use by SFM or its agents or
subcontractors of information, records, documents or services which (i) are
received by SFM or its agents or subcontractors, and (ii) have been prepared,
maintained or performed by the Fund or any other person or firm on behalf of
the Fund including but not limited to any previous transfer agent or registrar,
provided that such actions are taken in good faith and without negligence or
willful misconduct.
(d) The reliance on, or the carrying out by SFM or its agents
or subcontractors of any instructions or requests of the Fund on behalf of the
applicable Portfolio, provided that such actions are taken in good faith and
without negligence or willful misconduct.
(e) The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such state
or in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such Shares in
such state, provided that such actions are taken in good faith and without
negligence or willful misconduct.
6.02 At any time SFM may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by SFM under this
Agreement, and SFM and its agents or subcontractors shall not be liable and
shall be indemnified by the Fund on behalf of the applicable Portfolio for any
action taken or omitted by it in reliance upon such instructions or upon the
written opinion of such counsel. SFM, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document furnished by or
on behalf of the Fund, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided SFM or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means authorized
by the Fund, and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Fund. SFM, its
agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the proper
manual or facsimile signatures of the officers of the
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Fund, and the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions contained
in this Article 6 shall apply, upon the assertion of a claim for which the Fund
may be required to indemnify SFM, SFM shall promptly notify the Fund of such
assertion, and shall keep the Fund advised with respect to all developments
concerning such claim. The Fund shall have the option to participate with SFM
in the defense of such claim or to defend against said claim in its own name or
in the name of SFM. SFM shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to indemnify SFM
except with the Fund's prior written consent.
Article 7 Standard of Care
7.01 SFM shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and
shall not be liable for loss or damage due to errors unless said errors are
caused by its negligence, bad faith, or willful misconduct of that of its
employees.
Article 8 Covenants of the Fund and SFM
8.01 The Fund shall promptly furnish to SFM the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund authorizing the appointment of SFM and the execution and
delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Fund
and amendments thereto.
8.02 SFM hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of check forms
and facsimile signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such forms and devices.
8.03 SFM 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, SFM agrees that all such records prepared or
maintained by SFM relating to the services to be performed by SFM hereunder
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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
promptly to the Fund on and in accordance with its request.
8.04 SFM and the Fund agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
8.05 In case of any requests or demands for the inspection of
the Shareholder records of any of the Fund, SFM will endeavor to notify the
Fund and to secure instructions from an authorized officer of the Fund as to
such inspection. SFM reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
Article 9 Termination of Agreement
9.01 This Agreement may be terminated by either party upon
one hundred twenty (120) days written notice to the other.
9.02 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material
will be borne by the Fund on behalf of the applicable Portfolio(s).
Additionally, SFM reserves the right to charge for any other reasonable
expenses associated with such termination up to a maximum of $20,000.
Article 10 Additional Funds
10.01 In the event that the Fund establishes one or more
additional series of Shares with respect to which it desires to have SFM render
services as transfer agent under the terms hereof, it shall notify SFM in
writing, and if SFM agrees in writing to provided such services, such series of
Shares shall become a Portfolio hereunder.
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Article 11 Assignment
11.01 Except as provided in Section 10.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
11.02 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
11.03 SFM may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered
as a transfer agent pursuant to Section 17A(c)(1) of the Securities Exchange
Act of 1934, as amended ("Section 17A(c)(1)"), (ii) a BFDS subsidiary duly
registered as a transfer agent pursuant to Section 17A(c)(1) or (iii) a BFDS
affiliate; provided, however, that SFM shall be as fully responsible to the
Fund for the acts and omissions of any subcontractor as it is for its own acts
and omissions.
Article 12 Amendment
12.01 This Agreement may be amended or modified by a written
agreement executed by both parties.
Article 13 Massachusetts Law to Apply
13.01 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the Commonwealth
of Massachusetts.
Article 14 Force Majeure
14.01 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
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Article 15 Consequential Damages
15.01 Neither party to this Agreement shall be liable to the
other party for consequential damages under any provision of this Agreement or
for any consequential damages arising out of any act or failure to act
hereunder.
Article 16 Merger of Agreement
16.01 This Agreement constitutes the entire agreement between
the parties hereto and supersedes any prior agreement with respect to the
subject matter hereof whether oral or written.
Article 17 Approvals and Limitations
17.01 All agreements and consents on behalf of the
Fund in connection with this Agreement shall require the approval of the Board
of Trustees of the Fund.
17.02 The names "Conestoga Family of Funds" and "Trustees of
Conestoga Family of Funds" refer respectively to the Trust created and
the Trustees, as trustees but not individually or personally, acting from time
to time under a Declaration of Trust dated August 1, 1989 which is hereby
referred to and a copy of which is on file at the office of the State Secretary
of the Commonwealth of Massachusetts and at the principal office of the Trust.
The obligations of "Conestoga Family of Funds" entered into in the name or on
behalf thereof by any of the Trustees, represenatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Trustees, Shareholders or represenatives of the Trust personally, but bind only
the Trust property, and all persons dealing with any class of shares of the
Trust must look solely to the Trust property belonging to such class for the
enforcement of any claims against the Trust.
Article 18 Counterparts
18.01 This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
CONESTOGA FAMILY OF FUNDS
BY: [SIG]
----------------------
ATTEST:
[SIG]
----------------------
SEI FINANCIAL MANAGEMENT
CORPORATION
BY: [SIG]
----------------------
Vice President
ATTEST:
[SIG]
----------------------
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SCHEDULE A
TO THE TRANSFER AGENCY
AND SERVICE AGREEMENT
DATED
MAY 1, 1995
Conestoga Cash Management Fund
Conestoga Tax-Free Fund
Conestoga U.S. Treasury Securities Fund
Conestoga Equity Fund
Conestoga International Equity Fund
Conestoga Special Equity Fund
Conestoga Bond Fund
Conestoga Intermediate Income Fund
Conestoga Pennsylvania Tax-Free Bond Fund
Conestoga Short-Term Income Fund
Conestoga Balanced Fund
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SCHEDULE B
TO THE TRANSFER AGENCY
AND SERVICE AGREEMENT
DATED
MAY 1, 1995
Pursuant to Article 2, the Fund shall pay SFM an annual fee equal to .02% of
total assets of the Fund plus $25 per account and out of pocket expenses which
include but are not limited to: confirmation statements, postage, forms, audio
response, telephone, records retention, transcripts, microfiche, and expenses
incurred at the specific direction of the fund.
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