TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this 1ST day of APRIL ,
1996, by and between The Xxx Xxxxxxx Trust (hereinafter referred to as the
"Trust") and Firstar Trust Company, a corporation organized under the laws of
the State of Wisconsin (hereinafter referred to as the "Agent").
WHEREAS, the Trust is a Delaware business trust organized as a series
company currently consisting of one series, the Growth Fund.
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 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 employs and appoints 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), in accordance with
the current prospectus and statement of additional information of Trust, and
in accordance with the requirements of the Investment Company Act of 1940, as
amended, and the rules thereunder, including but not limited to:
A. Receive orders for the purchase of shares;
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;
D. Pay monies 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;
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 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 Section 7ad-10(e), 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 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 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; 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 Trust and the Agent.
Notwithstanding the foregoing, if the Trust terminates this Agreement prior to
the second anniversary of this Agreement, the Trust agrees to reimburse
Firstar Trust Company for the difference between the standard fee schedule and
the discounted fee schedule agreed to between the parties.
The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the mailing of the billing notice.
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3. REPRESENTATIONS OF AGENT
The Agent represents and warrants to the Trust 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.
G. It will comply with all applicable requirements of the
Securities and Exchange Acts of 1933 and 1934, as amended,
the Investment Company Act of 1940, as amended, and any
laws, rules, and regulations of governmental authorities
having jurisdiction.
4. REPRESENTATIONS OF THE TRUST
The Trust represents and warrants to the Agent that:
A. The Trust is an open-ended diversified investment company
under the Investment Company Act of 1940;
B. The Trust is a corporation or business trust organized,
existing, and in good standing under the laws of Delaware:
C. The Trust is empowered under applicable laws and by its
Declaration of Trust and bylaws to enter into and perform
this Agreement;
D. All necessary proceedings required by the Declaration of
Trust have been taken to authorize them to enter into and
perform this Agreement;
E. The Trust will comply with all applicable requirements of
the Securities Act of 1933 and the Securities and Exchange
Act of 1934, each as amended, the Investment Company Act of
1940, as amended, and any laws, rules and regulations of
governmental authorities having jurisdiction; and
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F. A registration statement under the Securities Act of 1933 is
currently effective, or will be prior to the sale of any
shares to the public, 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 TRUST AND AGENT
The Trust shall furnish the Agent a certified copy of the resolution
of the Board of Trustees of the Trust authorizing the appointment of the Agent
and the execution of this Agreement. The Trust shall provide to the Agent a
copy of the Declaration of Trust, 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 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 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 its best efforts 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 of Trustees of the Trust.
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
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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 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.
These indemnification provisions shall survive the termination of this
agreement.
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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
ADDITIONAL SERIES. The Xxx Xxxxxxx Trust is authorized to
issue separate classes of shares of beneficial interest representing interests
in separate investment portfolios or separate classes of shares of any series.
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.
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 Trust 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 Trust 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 Trust 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, NOTICE AND SEVERABILITY
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 subject to
completion by Transfer Agent of any orders, etc. in process.
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.
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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, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxx 00000. If to
the Trust, such notice should be sent to XXXXX XXXXXXX .
E. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule, or otherwise,
the remainder of this Agreement shall not be affected
thereby.
F. In the event that the Trust 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.
G. 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.
THE XXX XXXXXXX TRUST FIRSTAR TRUST COMPANY
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXXXX X. XXXX
Attest: /S/ XXXXXX X. XXXXXX Attest: /S/ XXXXXX XXXXX
Assistant Secretary
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