TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of [Dated: , 2006] by and between PFPC INC., a
Delaware corporation ("PFPC"), and AQUILA THREE PEAKS HIGH INCOME FUND, a
Massachusetts business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services, on the terms and for the
considerations set forth in this agreement (the "Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give Oral
Instructions and Written Instructions on behalf of the Fund and listed on
the Authorized Persons Appendix attached hereto and made a part hereof or
any amendment thereto as may be received by PFPC. An Authorized Person's
scope of authority may be limited by the Fund by setting forth such
limitation in the Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC to be an
Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(i) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may be delivered
by hand, mail, tested telegram, cable, telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to serve as transfer
agent, registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC accepts
such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable,
will provide PFPC with the following:
(a) Certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of PFPC or its
affiliates to provide services to the Fund and approving this
Agreement;
(b) A copy, and all amendments thereto, of the Fund's most recent
effective registration statement;
(c) A copy of the applicable administration, advisory and/or
sub-advisory agreements, and all amendments thereto, with respect to
each Portfolio;
(d) A copy of the distribution agreement, and all amendments
thereto, with respect to each class of Shares;
(e) Copies of any shareholder servicing agreements, and all
amendments thereto, made in respect of the Fund or a Portfolio;
(f) The Fund's Declaration of Trust filed with the Secretary of
State of the Commonwealth of Massachusetts and all amendments thereto
(such Declaration of Trust, as presently in effect and as it shall
from time to time be amended, is herein called the "Declaration of
Trust"); and
(g) The Fund's By-Laws and all amendments thereto (such By-Laws,
as presently in effect and as they shall from time to time be amended,
are hereinafter called the "By-Laws").
PFPC has furnished the Fund with copies properly certified or authenticated
of its Registration Statement on Form TA-1 under the Securities and Exchange Act
of 1934, as amended and all other public reports filed with the SEC related to
the services provided to the Fund as may be requested from time to time by the
Fund.
4. Compliance with Rules and Regulations. PFPC undertakes to comply
with all applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Fund or any of
its investment portfolios.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and Written
Instructions it receives from an Authorized Person (or from a person reasonably
believed by PFPC to be an Authorized Person) pursuant to this Agreement. PFPC
may assume that any Oral Instruction or Written Instruction received hereunder
is not in any way inconsistent with the provisions of organizational documents
or this Agreement or of any vote, resolution or proceeding of the Fund's Board
of Trustees or of the Fund's shareholders, unless and until PFPC receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming Oral
Instructions so that PFPC receives the Written Instructions by the close of
business on the same day that such Oral Instructions are received. The fact that
such confirming Written Instructions are not received by PFPC shall in no way
invalidate the transactions or enforceability of the transactions authorized by
the Oral Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person, PFPC shall
incur no liability to the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions comply with the other provisions of
this Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may request advice
at its own cost from such counsel of its own choosing (who may be counsel for
the Fund, the Fund's investment adviser or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives from the Fund,
and the advice it receives from counsel, PFPC may rely upon and follow the
advice of counsel. In the event PFPC so relies on the advice of counsel, PFPC
remains liable for any action or omission on the part of PFPC which constitutes
willful misfeasance, bad faith, negligence or reckless disregard by PFPC of any
duties, obligations or responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it takes or
does not take in reliance upon directions, advice or Oral Instructions or
Written Instructions it receives from the Fund or from counsel and which PFPC
believes, in good faith, to be consistent with those directions, advice or Oral
Instructions or Written Instructions. Nothing in this section shall be construed
so as to impose an obligation upon PFPC (i) to seek such directions, advice or
Oral Instructions or Written Instructions, or (ii) to act in accordance with
such directions, advice or Oral Instructions or Written Instructions unless,
under the terms of other provisions of this Agreement, the same is a condition
of PFPC's properly taking or not taking such action. Nothing in this subsection
shall excuse PFPC when an action or omission on the part of PFPC constitutes
willful misfeasance, bad faith, negligence or reckless disregard by PFPC of any
duties, obligations or responsibilities set forth in this Agreement.
7. Records; Visits. The books and records pertaining to the Fund which are
in the possession or under the control of PFPC shall be the property of the
Fund. Such books and records shall be prepared and maintained as required by the
1940 Act and other applicable securities laws, rules and regulations. PFPC will,
if so requested by counsel to the Fund, work with such counsel to develop an
acceptable modification to the manner in which such books and records are
prepared and maintained so as to comply with the reasonable opinion of such
counsel as to such laws and rules. Such modification will be subject to
additional mutually-agreed upon pricing, if any. The Fund and Authorized Persons
shall have access to such books and records at all times during PFPC's normal
business hours. Copies of any such books and records shall be provided by PFPC
to the Fund or to an Authorized Person at the Fund's expense. Prior to any
destruction of any books or records, PFPC will advise the Fund of the proposed
destruction and in accordance with instructions of the Fund, the records will be
destroyed or, at the expense of the Fund, delivered to the Fund or as it may
otherwise direct.
8. Confidentiality. PFPC agrees to keep confidential all records of the
Fund and information relating to the Fund and its shareholders, unless the
release of such records or information is otherwise consented to, in writing, by
the Fund, and shall maintain procedures reasonably designed to protect such
confidentiality. The Fund agrees that its consent shall not be unreasonably
withheld and may not be withheld where PFPC may be exposed to civil or criminal
contempt proceedings or when required to divulge such information or records to
duly constituted authorities, and that such consent shall not be required where
consent or notice to the Fund is not permitted by law or regulation.
9. Cooperation with Accountants. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available on a timely basis to such accountants for the
expression of their opinion, as required by the Fund.
10. Adequate Facilities; Disaster Recovery. PFPC shall maintain adequate
personnel and facilities, as well as adequate and reliable computer and other
equipment, necessary and appropriate to carry out its obligations under this
Agreement, including appropriate duplicate files (which shall be readable by
computer or otherwise or maintained in hard copy form, and shall be maintained
at a frequency and in a detail reasonably designed pursuant to industry
standards to provide for protection of such files in the event of a disaster to
PFPC's facilities). PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making adequate and reliable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PFPC shall periodically back up data (including
all predecessor transfer agent data delivered to PFPC by the Fund's prior
transfer agent in a machine readable format and converted by PFPC) on
appropriate media to be stored at an offsite facility of PFPC's choosing. PFPC
shall have no liability with respect to the loss of data or service
interruptions caused by equipment failure or otherwise, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad faith,
negligence or reckless disregard of its duties or obligations under this
Agreement.
11. Insurance. PFPC shall maintain adequate fidelity, error and omissions
and other insurance coverage in connection with its transfer agent services
throughout the duration of this Agreement.
12. Compensation. As compensation for services rendered by PFPC during the
term of this Agreement, for the period commencing on the date upon which PFPC
becomes transfer agent for the Fund, the Fund will pay to PFPC a fee or fees as
agreed to from time to time in writing by the Fund and PFPC. All services
detailed in this Agreement and expenses incurred in the performance of these
services will be provided by PFPC without cost to the Fund except as otherwise
stated in this Agreement or otherwise agreed to in writing.
13. Indemnification. The Fund agrees to indemnify and hold harmless PFPC
and its affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws, and
amendments thereto), and expenses, including (without limitation) attorneys'
fees and disbursements, arising directly or indirectly from (i) any action or
omission to act which PFPC takes (a) at the request or on the direction of or in
reliance on the advice of the Fund or (b) upon Oral Instructions or Written
Instructions or (ii) the acceptance, processing and/or negotiation of checks or
other methods utilized for the purchase of Shares. Neither PFPC nor any of its
affiliates shall be indemnified against any liability (or any expenses incident
to such liability) arising out of PFPC's or its affiliates' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
14. Release. PFPC understands that the obligations of this Agreement are
not binding upon any shareholder of the Fund personally, but bind only the
Fund's property; PFPC represents that it has notice of the provision in the
Fund's Declaration of Trust disclaiming shareholder liability for acts or
obligations of the Fund.
15. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the Fund
except as specifically set forth herein or as may be specifically agreed to by
PFPC in writing. PFPC shall be obligated to exercise care and diligence in the
performance of its duties hereunder, to act in good faith and to use its best
efforts, within reasonable limits, to ensure the accuracy and completeness of
all services performed under this Agreement. PFPC shall be liable for any
damages arising out of PFPC's failure to perform its duties under this Agreement
to the extent such damages arise out of PFPC's willful misfeasance, bad faith,
negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses beyond its
control, provided that PFPC has acted in accordance with the standard of care
set forth above; and (ii) PFPC shall not be under any duty or obligation to
inquire into and shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written Instruction, notice
or other instrument which conforms to the applicable requirements of this
Agreement, and which PFPC reasonably believes to be genuine; or (B) subject to
Section 10, delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, including acts of civil or military
authority, national emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable to the Fund for any consequential,
special or indirect losses or damages which the Fund may incur or suffer by or
as a consequence of PFPC's or its affiliates' performance of the services
provided hereunder, whether or not the likelihood of such losses or damages was
known by PFPC or its affiliates.
16. Description of Services.
(a) Itemized Services. PFPC shall:
(i) Calculate 12b-1 payments and payments under any Shareholder
Services Plan of the Fund, produce and mail statements and checks
where applicable or generate payments through the National
Securities Clearing Corp. (the "NSCC") to all eligible dealers,
and forward ineligible checks and statements to Aquila
Distributors, Inc. (the "Distributor");
(ii) Make weekly payment of direct commissions, including settlement
through NSCC;
(iii) Establish and maintain proper shareholder registrations;
(iv) Review new applications for required information and correspond
with shareholders to complete or correct information;
(v) Provide payment processing of checks or wires;
(vi) Prepare and certify stockholder lists in conjunction with proxy
solicitations;
(vii) Issue and countersign share certificates (when requested in
writing by a shareholder) and cancel share certificates;
(viii) Prepare and mail to shareholders confirmation of activity;
(ix) Provide toll-free lines and voice response unit for direct
shareholder use, plus customer liaison staff for on-line inquiry
response (generally until 6 p.m., New York time, on days on which
the New York Stock Exchange is open), including the ability to
receive redirected toll-free calls from the Distributor on an
as-needed basis;
(x) On a monthly basis, mail duplicate statements to: (1)
broker-dealers of their clients' activity, whether executed
through the broker-dealer or directly with PFPC, and (2) other
parties (e.g., lawyers and accountants) as requested by the
shareholders;
(xi) Provide periodic shareholder lists and statistics to the Fund;
(xii) Provide detailed data for underwriter/broker confirmations,
including daily outstanding confirmed purchases, redemptions, and
paid not issued shares;
(xiii) Prepare periodic mailing of year-end tax and statement
information;
(xiv) Provide reports, notification, and where applicable
reconciliation on a timely basis to the investment adviser,
sub-adviser, administrator, accounting agent, and custodian of
fund activity;
(xv) Perform other participating broker-dealer shareholder services,
including Fund/Serv, Automated Customer Account Transfer System
("ACATS"), Networking and terminal access for selected dealers,
and such other services as may be agreed upon from time to time;
(xvi) Promptly transmit to the Fund all reports, documents and
information as are requested by the Fund and agreed to by PFPC,
which agreement shall not be unreasonably withheld, that are
necessary to enable the Fund and its service providers to comply
with the requirements of the Internal Revenue Service, the SEC,
the National Association of Securities Dealers, Inc, the National
Securities Clearing Corp., the state blue sky authorities and any
other regulatory bodies having jurisdiction over the Fund, it
being understood and agreed that such reports shall include those
on the list contained in Exhibit B hereto, as such list may be
amended from time to time by agreement between the parties;
(xvii) Process all clerical transactions;
(xviii) Screen and maintain Transfer on Death registrations according
to Fund guidelines (except those guidelines hereafter adopted by
the Fund which are considered in PFPC's sole good-faith
discretion to be more burdensome than the guidelines in effect on
the date of this Agreement);
(xix) Provide electronic imaging and time-stamping of all incoming
mail;
(xx) Compute and track all front-end and contingent deferred sales
charges imposed upon the purchase and redemption of Shares;
(xxi) Track and convert Shares in accordance with the share conversion
features described in the prospectus of the Fund;
(xxii) Answer written or telephonic correspondence relating to its
duties hereunder (including providing written acknowledgement of
address changes to previous addresses of record) and such other
correspondence as may from time to time be mutually agreed upon
between PFPC and the Fund; inquiries of a non-routine nature
shall be referred to the Fund;
(xxiii) Remit supporting detail of underwriter fees to the Distributor
on a semi-monthly basis;
(xxiv) Until such time as Fund management and legal counsel to the
Fund determine otherwise and so inform PFPC in Written
Instructions, establish, maintain for the benefit of the Fund and
control the flow of funds through separate subscription,
redemption and dividend disbursement accounts (each an
"Operational Account") provided by PNC Bank, N.A. or by such
other financial institution as may be agreed upon by the Fund and
PFPC;
(xxv) To the extent reasonably feasible, reverse trades (including
backing out dividends) due to nonreceipt of funds, improper
registration, or other sufficient reason;
(xxvi) Compute and track all letters of intent;
(xxvii) Screen all transactions with respect to the Fund's Blue Sky
requirements of which PFPC is informed by the Fund by Written
Instructions, and comply with the Written Instructions of the
Fund in effect from time to time limiting issuance of Shares to
specified states (based on address of registration), including
screening for Shares sold in states other than those so specified
(but relating only to those Shares sold after PFPC commences its
duties as transfer agent hereunder);
(xxviii) Provide abandoned property reporting and filing to meet the
escheat requirements of each of the states named by the Fund in
Written Instructions;
(xxix) Maintain a record of all incoming checks, new account
applications and documentation set forth in Section 16(g), on
filmstrips, another microfilm retrieval method or otherwise so as
to be retrievable and reproducible, upon reasonable request,
within time frames that meet reasonable industry standards;
(xxx)Process W-9 or similar forms received by PFPC and review taxpayer
identification numbers for all same number (e.g., 000 00 0000),
sequential numbering (e.g., 000 00 0000) and non-numeric numbers
(e.g., 128 4A 3927) and other conditions of obvious irregularity
in accordance with PFPC's normal operating procedures;
(xxxi) On a semi-monthly or other basis acceptable to PFPC and the
Fund (but in no event more frequently than once per month per
shareholder account) initiate, accept and process pre-authorized
checks or, when available, electronic funds transfers drawn
against shareholders' checking accounts;
(xxxii) In accordance with policies and procedures established by the
Fund and PFPC, furnish to shareholders dividend and redemption
checks alleged to have been lost, stolen, destroyed or not
received; and
(xxxiii) Record all incoming telephone conversations and telephonic
transactions that are received via the Fund's published customer
service numbers and retain such recordings for a minimum of six
months.
(xxxiv) Post and perform shareholder transfers and post and perform
exchanges for shares of other funds with which the Fund has
exchange privileges, pursuant to shareholder instructions; and
(xxxv) Reconcile to Fund accounting records and pay dividends and
other distributions, including direct deposit credits through the
Automatic Clearing House ("ACH") upon proper written shareholder
authorization.
(b) Purchase of Shares. PFPC shall issue Shares and credit an account of an
investor, in the manner described in the Fund's prospectus, once it has screened
for blue sky compliance pursuant to Section 16(a)(xxvii) and Transfer on Death
registration compliance pursuant to Section 16(a)(xviii) and receives:
(i) A purchase order or application, either directly from an investor
or otherwise, complying with requirements for purchases
prescribed by the prospectus;
(ii) Proper information to establish a shareholder account; and
(iii) A purchase check or confirmation of receipt or crediting of
available funds for such order to the Fund's custodian.
In opening new shareholder accounts, PFPC will assign account numbers. PFPC
shall assign Aquila Distributors, Inc. as broker of record whenever dealer
information is omitted and send a copy of any related application to Aquila
Distributors, Inc.
PFPC must receive a completed application before any redemption orders are
accepted and processed for an account opened directly by an investor.
(c) Redemption of Shares. PFPC shall redeem Shares only if that function is
properly authorized by the Declaration of Trust or resolution of the Fund's
Board of Trustees. If the Fund is a money-market fund, PFPC shall arrange, in
accordance with the Fund's prospectus, for a shareholder's redemption of shares
from a shareholder's account with a checkwriting privilege. Shares shall be
redeemed and payment therefor shall be made in accordance with the Fund's
prospectus, including provisions set forth therein for automatic redemption,
telephone redemption requests and check-writing privileges, when the
recordholder tenders Shares in proper form and amount and properly directs the
method of redemption. If Shares are received in proper form, Shares shall be
redeemed before the funds are provided to PFPC from the Fund's custodian. If the
recordholder has not directed that redemption proceeds be wired, when the
custodian provides PFPC with funds, a redemption check shall be sent to and made
payable to the recordholder, unless:
(i) the surrendered certificate is drawn to the order of an assignee
or holder and transfer authorization is signed by the
recordholder;
(ii) Transfer authorizations are signed by the recordholder when
Shares are held in book-entry form;
(iii) Such redemption is through money market fund check-writing
capabilities; or
(iv) such redemption is in settlement of dealer confirmed redemptions
via Fund/Serv.
Consistent with provisions set forth in the prospectus, redemption proceeds
shall be wired upon request. When a broker-dealer notifies PFPC of a redemption
desired by a customer, and the Fund's custodian provides PFPC with funds, PFPC
shall prepare and send the redemption check to the broker-dealer, made payable
to the broker-dealer on behalf of its customer.
PFPC shall establish procedures reasonably designed to ensure that
redemption requirements established by PFPC and agreed to by the Fund have been
met, including the receipt and examination of stock certificates and related
endorsements, signature guarantees and obtaining any needed papers or documents,
including a properly completed application, where required. No redemptions in
accounts represented in whole or in part by certificates shall be effected
without cancellation of an adequate number of certificate Shares, if necessary.
No signature guarantees shall be acceptable if received by facsimile and
signature guarantees must reasonably appear to have been provided by an eligible
guarantor institution of a type described as such in the prospectus which is a
participant in a medallion program recognized by the Securities Transfer
Association or in instructions received from the Fund; provided, however, that
PFPC may accept a signature guarantee received by facsimile if so instructed by
Oral or Written Instructions.
(d) Dividends and Distributions. Upon receipt of a resolution of the Fund's
Board of Trustees authorizing the declaration and payment of dividends and
distributions, PFPC shall issue dividends and distributions declared by the Fund
in Shares, or, upon shareholder election, pay such dividends and distributions
in cash, if and as provided for in the Fund's prospectus. Such issuance or
payment, as well as payments upon redemption as described above, shall be made
after deduction and payment of the required amount of funds to be withheld in
accordance with any applicable tax laws or other laws, rules or regulations.
PFPC shall timely mail to the Fund's shareholders and appropriate taxing
authorities such tax forms and other information, or permissible substitute
notice, relating to dividends and distributions paid by the Fund as are required
to be filed and mailed by applicable law, rule or regulation. PFPC shall
prepare, maintain and file with the IRS and other appropriate taxing authorities
reports relating to all dividends paid by the Fund to its shareholders as
required by tax or other law, rule or regulation.
(e) Communications to Shareholders. PFPC shall address, enclose and mail
all communications by the Fund to its shareholders (pre-sorting where reasonably
practicable), including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Shares;
(iii) Monthly or quarterly statements (with extra print lines for
additional information, such as additional dividend information,
to shareholders), generally by the fifth business day after the
dividend payable date, providing a combined check and statement
to shareholders electing cash distributions;
(iv) Dividend and distribution notices (at year-end, such notices will
be upon Written Instructions);
(v) Tax form information (upon Written Instructions);
(vi) Forms W-9 or W-8 as appropriate;
(vii) Prospectuses;
(viii) Account-related shareholder correspondence that is considered
in PFPC's sole discretion to be routine; and
(ix) Any other routine shareholder communications as agreed to between
the Fund and PFPC.
(f) Third Party Proxy Provider. PFPC shall assist the Fund in obtaining
competitive bids for proxy services. Proxy services shall be provided by a third
party. The Fund understands and agrees that PFPC bears no responsibility for the
provision of any proxy services or the manner in which any proxy services are
provided, that PFPC will not be considered the Fund's agent in connection with
the provision of any proxy services, and that any party providing proxy services
to the Fund shall not be considered to be the agent of PFPC or to have any other
relationship with PFPC with respect to such services. Such proxy services, which
will be decided upon solely between the Fund and the third party provider, shall
include proxy mailing, receiving and tabulating proxy cards for the meetings of
the Fund's shareholders, communicating to the Fund daily and final results of
such tabulation accompanied by appropriate certificates, and preparing and
furnishing to the Fund certified lists of shareholders as of such date, and in
such form and containing such information as may be required by the Fund to
comply with any applicable provisions of law or its Declaration of Trust and/or
By-Laws relating to such meetings. Notwithstanding the foregoing provisions of
this Subsection (f), PFPC shall furnish to the third-party proxy provider such
information as is reasonably requested by such provider pertaining to
shareholder registration information and record-date share positions to permit
the Fund to obtain the benefits of the services necessary for conduct of its
shareholder meetings.
(g) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address, United States Tax Identification or Social
Security number, and any pertinent beneficiary information;
(ii) Number and class of Shares held and number and class of Shares
for which certificates, if any, have been issued, including
certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and the
date and price for all transactions in a shareholder's account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings, including withholdings
in the case of a foreign account and accounts subject to backup
withholding; and
(vii) Any information required in order for the transfer agent to
perform any calculations contemplated or required by this
Agreement.
PFPC shall use its best efforts to convert for use in its system such data
of the predecessor transfer agent that has been provided to PFPC as shall permit
PFPC to maintain on its system such converted data covering a minimum of 18
months prior to commencement of its services as transfer agent of the Fund. PFPC
is not responsible for errors or omissions in or caused by the records of any
predecessor transfer agent. PFPC shall inform the Fund of material errors coming
to its attention in the course of performance of its duties hereunder. PFPC
shall maintain on its system in a readily viewable form pertinent account
information (i.e., the information listed in this Section 16(g)) relating to
shareholders of the Fund (including all predecessor transfer agent data
delivered to PFPC by the Fund's prior transfer agent in a machine readable
format and converted by PFPC) for a minimum of 13 months after the date of the
transaction or other matter to which the information relates and shall
thereafter maintain such information in a readily accessible format to the
extent required by the 1940 Act and other applicable securities laws, rules and
regulations.
(h) Lost or Stolen Certificates. PFPC shall place a stop notice against any
certificate reported to be lost, stolen, destroyed or not received and comply
with all applicable federal regulatory requirements for reporting such loss or
alleged misappropriation. A new certificate shall be registered and issued only
upon:
(i) The shareholder's pledge of a lost instrument bond or such other
appropriate indemnity bond issued by a surety company approved by
PFPC; and
(ii) Completion of a release and indemnification agreement signed by
the shareholder to protect PFPC and its affiliates.
(i) Shareholder Inspection of Fund Records. Upon a request from any Fund
shareholder to inspect Fund records, PFPC will notify the Fund and the Fund will
issue instructions granting or denying each such request. Unless PFPC has acted
contrary to the Fund's instructions, the Fund agrees and does hereby release
PFPC from any liability for refusal of permission for a particular shareholder
to inspect the Fund's records.
(j) Withdrawal of Shares and Cancellation of Certificates. Upon receipt of
Written Instructions, PFPC shall cancel outstanding certificates surrendered by
the Fund to reduce the total amount of outstanding Shares by the number of
Shares surrendered by the Fund.
(k) Fraud Detection Procedures. PFPC shall establish procedures that are
reasonably designed to detect fraudulent purchase, redemption and distribution
checks (including fraudulent or forged endorsements and altered payment
amounts); however, PFPC shall have no liability for loss resulting from any
fraud perpetrated or attempted to be perpetrated on the Fund, unless PFPC has
acted with willful misfeasance, bad faith, negligence or reckless disregard of
its duties hereunder. Such procedures shall take into account the type of
accounts involved, the sums involved and cost/benefit considerations.
(l) Third Party Checks. PFPC shall not accept any third party check (i.e.,
an investment check whose payee is other than the Fund or PFPC) except pursuant
to Written Instructions.
(m) Relationship Officer. PFPC agrees to provide a Relationship Officer to
serve as the primary point of contact between the Fund and PFPC. PFPC will
exercise due care in assigning an individual who is conversant with standard
investment company practices.
(n) Additional Services.
(i) PFPC shall, in addition to the services herein itemized, if so
requested by the Fund and agreed to by PFPC, which shall bargain
in good faith regarding such requests and the fees and charges to
be paid therefor, for such additional fees and charges as the
Fund and PFPC may from time to time agree, perform and do all
other acts and services as required by the Fund's prospectus or
the law or that are customarily performed and done by transfer
agents, dividend disbursing agents, and shareholder servicing
agents of open-end mutual funds such as the Fund.
(ii) PFPC shall, in addition to the services herein itemized, provide
such additional services to the Fund and in such manner as are
normally provided by PFPC to its mutual fund transfer agency
customers in the normal course of business, subject to additional
mutually-agreed upon pricing, if any.
(o) Procedures. In order to facilitate the carrying out of the services set
forth in this Agreement, PFPC shall follow the procedures attached hereto as
Exhibit C and PFPC and the Fund may from time to time mutually agree to changes
thereto.
17. Duration and Termination. This Agreement shall continue until
terminated by the Fund on sixty (60) days' prior written notice or by PFPC on
one-hundred-twenty (120) days' prior written notice to the other party,
provided, however, that without the Fund's consent PFPC shall not for a period
of three years after the date of this Agreement terminate this Agreement with
the intent to enter into a new agreement with the Fund that provides for higher
fees.
18. Notices. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notices shall be addressed (a) if to PFPC, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to the Fund, at 000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, Attn: President or (c) if to neither of
the foregoing, at such other address as shall have been given by like notice to
the sender of any such notice or other communication by the other party. If
notice is sent by confirming telegram, cable, telex or facsimile sending device,
it shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days after it has
been mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
19. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
20. Delegation; Assignment. PFPC may assign its rights and delegate its
duties hereunder only to any wholly-owned direct or indirect subsidiary of PNC
Bank, National Association or PNC Bank Corp., provided that (i) PFPC gives the
Fund thirty (30) days' prior written notice; (ii) the delegate (or assignee)
agrees with PFPC and the Fund to comply with all relevant provisions of the 1940
Act; and (iii) PFPC and such delegate (or assignee) promptly provide such
information as the Fund may request, and respond to such questions as the Fund
may ask, relative to the delegation (or assignment), including (without
limitation) the capabilities of the delegate (or assignee).
21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
22. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
23. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if any, with
respect to delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
(c) Governing Law. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of conflicts
of law.
(d) Partial Invalidity. 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.
(e) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
(f) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
-------------------------------------
Title:
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AQUILA THREE PEAKS HIGH INCOME FUND
By:
-------------------------------------
Title:
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EXHIBIT A
THIS EXHIBIT A, [dated as of , 2006], is Exhibit A to that certain
Transfer Agency Services Agreement dated as of , 2006 between PFPC Inc. and
AQUILA THREE PEAKS HIGH INCOME FUND.
PORTFOLIOS
Aquila Three Peaks High Income Fund
AUTHORIZED PERSONS APPENDIX
On the date of the Agreement and thereafter until further notice, the
following persons shall be Authorized Persons as defined therein:
Name (Type) Signature
Xxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxxx
Xxxxxxx X. Childs, III Xxxxxxx X. Childs, III
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxx
Xxxxxx X. XxXxxxxx Xxxxxx X. XxXxxxxx
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxxx
Xxxxxxx X. X'Xxxxx Xxxxxxx X. X'Xxxxx
Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
Exhibit B
Report List for Aquila Group of Funds
12b-1 Report
5 Percent or More Shareholder Listing
5 Percent or More Shareholder Listing - sorted by ssn Account Analysis by Type
Asset Report by Dealer for Management Company
Asset Report by Fund and Dealer
Blue Sky Sales Report
Capital Stock Reporting
Daily Transaction Journal
Dealer Commission Check Register/Dealer Commission Statement
DTS Activity Summary
DTS Liquidation Placements
DTS Outstanding Trades by Fund
DTS Posted Transactions
DTS Purchase Placement
Matrix Summary by Fund With Dealer Name
Matrix Summary by Management Company With Dealer Name
Month to Sales (Demographics by Account Group)
Monthly Statistical Report
Monthly Wire Order (Purchases/Redemptions)
New Account Journal
Next Day NSCC Settlement Detail
NSAR Based on trade date
Transactions at a Glance
