TRANSFER AGENCY AGREEMENT
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THIS AGREEMENT is made as of this day of April, 1997, by and between The
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Xxxxxxxxxx Funds, a Delaware business trust (the "Trust"), and Sunstone
Investor Services, LLC, a Wisconsin limited liability company ("Sunstone").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company and
is authorized to issue shares of beneficial interests ("Shares") in separate
series with each such series representing the interests in a separate portfolio
of securities and other assets;
WHEREAS, the Trust desires to retain Sunstone to render the transfer agency
and other services contemplated hereby with respect to each of the investment
portfolios of the Trust as are listed on Schedule A hereto and any additional
investment portfolios the Trust and Sunstone may agree upon and include on
Schedule A as such Schedule may be amended from time to time (such investment
portfolios and any additional investment portfolios are individually referred to
as a "Fund" and collectively the "Funds"), and Sunstone is willing to render
such services.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
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APPOINTMENT OF TRANSFER AGENT
A. APPOINTMENT.
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1. The Trust hereby constitutes and appoints Sunstone as transfer agent
and dividend disbursing agent of all the Shares of the Funds during the period
of this Agreement, and Sunstone hereby accepts such appointment as transfer
agent and dividend disbursing agent and agrees to perform the duties thereof as
hereinafter set forth.
2. Sunstone shall perform the transfer agent and dividend disbursing
agent services described on Schedule B hereto. To the extent that the Trust
requests Sunstone to perform any additional services in a manner not consistent
with Sunstone's usual processing procedures, Sunstone and the Trust shall
mutually agree as to the services to be accomplished, the manner of
accomplishment and the compensation to which Sunstone shall be entitled with
respect thereto.
3. Sunstone may, in its discretion, appoint in writing other parties
qualified to perform transfer agency and shareholder services approved by the
Trust (individually, a "Sub-transfer Agent") to carry out some or all of its
responsibilities under this Agreement with respect to a Fund; provided, however,
that unless the Trust shall enter into a written agreement with such Sub-
transfer Agent, the Sub-transfer Agent shall be the agent of Sunstone and not
the agent of the Trust or such Fund and, in such event Sunstone shall be fully
responsible for the acts or omissions of such Sub-transfer Agent and shall not
be relieved of any of its responsibilities hereunder by the appointment of such
Sub-transfer Agent.
4. Sunstone shall have no duties or responsibilities whatsoever
hereunder except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against Sunstone.
B. DOCUMENTS/RECORDS.
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1. In connection with such appointment, the Trust shall deliver or
cause to be delivered the following documents to Sunstone:
a) A copy of the Agreement and Declaration of Trust and By-laws of
the Trust and all amendments thereto, and a copy of the resolutions of the Board
of Trustees of the Trust appointing Sunstone and authorizing the execution of
this Transfer Agency Agreement on behalf of the Funds, each certified by the
Secretary of the Trust;
b) A certificate signed by the President and Secretary of the Trust
specifying: the number of authorized Shares and the number of such authorized
Shares issued and currently outstanding, if any; the names and specimen
signatures of the officers of the Trust authorized to sign written stock
certificates, and the individuals authorized to provide oral instructions and to
sign written instructions and requests on behalf of the Trust (hereinafter
referred to as "Authorized Person(s)"), and to change the persons authorized
to provide such instructions from time to time, it being understood Sunstone
shall not be held to have notice of any change in the authority of any
Authorized Person until receipt of written notice thereof from the Trust;
c) In the event the Trust issues Share certificates, specimen Share
certificates for each Fund in the form approved by the Board of Trustees of the
Trust (and in a format compatible with Sunstone's operating system), together
with a certificate signed by the Secretary of the Trust as to such approval;
d) Copies of the Trust's Registration Statement, as amended to date,
and the most recently filed Post-Effective Amendment thereto, filed by the Trust
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "1933 Act"), and under the 1940 Act, as amended, together with
any applications filed in connection therewith; and
e) Opinion of counsel for the Trust with respect to the Trust's
organization and existence under the laws of its state of organization, the
validity of the authorized and outstanding Shares, whether such Shares are fully
paid and non-assessable and the status of such Shares under the Securities Act
of 1933, as amended, and any other applicable federal law or regulation (i.e.,
if subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor.)
2. The Trust agrees to deliver or to cause to be delivered to Sunstone
in Milwaukee, Wisconsin, at the Trust's expense, all of its shareholder account
records relating to the Funds in a format acceptable to Sunstone and all such
other documents, records and information as Sunstone may reasonably request in
order for Sunstone to perform its services hereunder.
ARTICLE II
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COMPENSATION & EXPENSES
A. COMPENSATION. In consideration for its services hereunder as transfer
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agent and dividend disbursing agent, each Fund will pay to Sunstone such
compensation as shall be set forth in a separate fee schedule to be agreed to by
each Fund and Sunstone from time to time. A copy of the initial fee schedule is
attached hereto as Schedule C.
B. EXPENSES. The Trust on behalf of each Fund also agrees to promptly
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reimburse Sunstone for all out-of-pocket expenses or disbursements incurred by
Sunstone in connection with the performance of services under this Agreement
including, but not limited to, expenses for postage, express delivery services,
freight charges, envelopes, checks, drafts, forms (continuous or otherwise),
specially requested reports and statements, bank account service fees and
charges, telephone calls, telegraphs, stationery supplies, outside printing and
mailing firms, magnetic tapes, reels or cartridges (if sent to a Fund or to a
third party at the Trust's request) and magnetic tape handling charges, on-site
and off-site record storage, media for storage of records (e.g., microfilm,
microfiche, optical platters, computer tapes and disks), computer equipment
installed at the Trust's request at the Trust's or a third party's premises,
telecommunications equipment, telephone/telecommunication lines between the
Trust and its agents, on one hand, and Sunstone on the other, proxy soliciting,
processing and/or tabulating costs, transmission of statement data for remote
printing or processing, and transaction fees to the extent any of the foregoing
are paid by Sunstone. If requested by Sunstone, postage and other out-of-pocket
expenses are payable in advance, and in the event requested, postage is due at
least seven days prior to the anticipated mail date. In the event Sunstone
requests advance payment, Sunstone shall not be obligated to incur such expenses
or perform the related service(s) until payment is received.
C. PAYMENT PROCEDURES.
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1. Amounts due hereunder shall be due and paid by the Trust on behalf
of the respective Fund on or before the fifteenth (15th) day after the date of
the statement therefor (the "Due Date"). Service fees are billed monthly, and
out-of-pocket expenses are billed as incurred (unless prepayment is requested by
Sunstone). Sunstone may, at its option, arrange to have various service
providers submit invoices directly to the Trust for payment of out-of-pocket
expenses reimbursable hereunder. The Trust is aware that its failure to pay all
amounts in a timely fashion so that they will be received by Sunstone on or
before the Due Date will give rise to costs to Sunstone not contemplated by this
Agreement, including but not limited to carrying, processing and accounting
charges. Accordingly, in the event that any amounts due hereunder are not
received by Sunstone by the Due Date, the Trust shall pay a late charge equal to
one and one-half percent (1.5%) per month or the maximum amount permitted by
law, whichever is less. In addition, the Trust shall pay reasonable attorney's
fees and court costs of Sunstone if any amounts due Sunstone are collected by or
through an attorney. The parties hereby agree that such late charge represents
a fair and reasonable computation of the costs incurred by reason of late
payment or payment of amounts not properly due. Acceptance of such late charge
shall in no event constitute a waiver of the Fund's default or prevent the non-
defaulting party from exercising any other rights and remedies available to it.
2. In the event that any charges are disputed, the Trust shall, on or
before the Due Date, pay all undisputed amounts due hereunder and notify
Sunstone in writing of any disputed charges for out-of-pocket expenses which it
is disputing in good faith. Payment for such disputed charges shall be due on
or before the close of the fifth (5th) business day after the day on which
Sunstone provides to the Trust documentation which an objective observer would
agree reasonably supports the disputed charges (the "Revised Due Date"). Late
charges shall not begin to accrue as to charges disputed in good faith until the
first day after the Revised Due Date.
ARTICLE III
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PROCESSING AND PROCEDURES
A. ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
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1. Sunstone acknowledges that it has received a copy of the Trust's
Prospectus (as hereinafter defined), which Prospectus describes how sales and
redemptions of shares of each Fund shall be made and Sunstone agrees to accept
purchase orders and redemption requests with respect to Fund shares on each Fund
Business Day in accordance with such Prospectus. "Fund Business Day" shall be
deemed to be each day on which the New York Stock Exchange is open for trading,
and "Prospectus" shall mean the last Trust prospectus actually received by
Sunstone from the Trust with respect to which the Trust has indicated a
registration statement under the 1933 Act has become effective, including the
Statement of Additional Information, incorporated by reference therein.
2. On each Fund Business Day Sunstone shall, as of the time at which
the net asset value of a Fund is computed, issue to and redeem from the accounts
specified in a purchase order or redemption request, which in accordance with
the Prospectus is effective on such day, the appropriate number of full and
fractional Shares based on the net asset value per Share of such Fund specified
in an advice received on such Fund Business Day from or on behalf of the Fund.
3. Upon the issuance of any Shares in accordance with this Agreement,
Sunstone shall not be responsible for the payment of any original issue or other
taxes required to be paid by the Trust in connection with such issuance of any
Shares.
4. Sunstone shall not be required to issue any Shares after it has
received from an Authorized Person or from an appropriate federal or state
authority written notification that the sale of Shares has been suspended or
discontinued, and Sunstone shall be entitled to rely upon such written
notification.
5. Upon receipt of a redemption request and monies paid to it by the
Custodian in connection with a redemption of Shares, Sunstone shall cancel the
redeemed Shares and after making appropriate deduction for any withholding of
taxes required of it by applicable law, make payment in accordance with the
Trust's redemption and payment procedures described in the Prospectus.
6. (a) Except as otherwise provided in sub-paragraph (b) of this
paragraph, Shares will be transferred or redeemed upon presentation to Sunstone
of Share certificates, if any, or instructions properly endorsed for transfer,
exchange or redemption, accompanied by such documents as Sunstone deems
necessary to evidence the authority of the person making such transfer or
redemption, and bearing satisfactory evidence of the payment of stock transfer
taxes. Sunstone reserves the right to refuse to transfer or redeem Shares until
it is satisfied that the endorsement on the stock certificate, if any, or
instructions is valid and genuine, and for that purpose it will require, unless
otherwise instructed by an Authorized Person or except as provided in sub-
paragraph (b) of this paragraph, a guarantee of signature by an "Eligible
Guarantor Institution" as that term is defined by SEC Rule 17Ad-15. Sunstone
also reserves the right to refuse to transfer or redeem Shares until it is
satisfied that the requested transfer or redemption is legally authorized, and
it shall incur no liability for the refusal, in good faith, to make transfers or
redemptions which Sunstone, in its judgment, deems improper or unauthorized, or
until it is satisfied that there is no basis to any claims adverse to such
transfer or redemption. Sunstone may, in effecting transfers and redemptions of
Shares, rely upon those provisions of the Uniform Act for the Simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be
amended from time to time, applicable to the transfer in question, and the Trust
shall indemnify Sunstone for any act done or omitted by it in good faith in
reliance upon such laws.
(b) Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, Sunstone shall be fully protected by the Trust
in not requiring any instruments, documents, assurances, endorsements or
guarantees, including, without limitation, any signature guarantees, in
connection with a redemption, exchange or transfer, of Shares whenever Sunstone
reasonably believes that requiring the same would be inconsistent with the
transfer and redemption procedures as described in the Prospectus.
7. Notwithstanding any provision contained in this Agreement to the
contrary, Sunstone shall not be required or expected to require, as a condition
to any transfer or redemption of any Shares pursuant to a computer tape or
electronic data transmission, any documents to evidence the authority of the
person requesting the transfer or redemption and/or the payment of any stock
transfer taxes, and shall be fully protected in acting in accordance with the
applicable provisions of this Article IV.
8. In connection with each purchase and each redemption of Shares,
Sunstone shall send such statements as are prescribed by the Federal securities
laws applicable to transfer agents or as described in the Prospectus. If the
Prospectus indicates that certificates for Shares are available and if
specifically requested in writing by any shareholder, or if otherwise required
hereunder, Sunstone will countersign, issue and mail to such shareholder at the
address set forth in the records of Sunstone a Share certificate for any full
Share requested.
9. On each Fund Business Day Sunstone shall supply the Trust with a
statement specifying with respect to the immediately preceding Fund Business
Day: the total number of Shares of each Fund (including fractional Shares)
issued and outstanding at the opening of business on such day; the total number
of Shares of each Fund sold on such day; the total number of Shares of each Fund
and the dollar amount redeemed from Shareholders by Sunstone on such day; and
the total number of Shares of each Fund issued and outstanding.
10. Procedures for effecting purchase, redemption or transfer
transactions accepted from investors by telephone or other methods shall be
established by mutual agreement between the Trust and Sunstone consistent with
the terms of the Prospectus. Sunstone upon notice to the Trust may establish
such additional procedures, rules and regulations governing the transfer or
registration of Share certificates, if any, or the purchase, redemption or
transfer of Shares, as it may deem advisable and consistent with the Prospectus
and such rules and regulations generally adopted by mutual fund transfer agents.
Sunstone shall not be liable, and shall be held harmless by the Trust, for its
actions or omissions which are consistent with the foregoing procedures.
B. DIVIDENDS AND DISTRIBUTIONS.
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1. The Trust shall furnish to Sunstone a copy of a resolution of its
Board of Trustees, certified by an Authorized Person, either (i) setting forth
the date of the declaration of a dividend or distribution, the date of accrual
or payment, as the case may be, thereof, the record date as of which
shareholders entitled to payment, or accrual, as the case may be, shall be
determined, the amount per Share of such dividend or distribution, the payment
date on which all previously accrued and unpaid dividends are to be paid, and
the total amount, if any, payable to Sunstone on such payment date, or (ii)
authorizing the declaration of dividends and distributions on a daily or other
periodic basis and authorizing Sunstone to rely on a certificate of an
Authorized Person setting forth the information described in subsection (i) of
this paragraph.
2. In connection with a reinvestment of a dividend or distribution of
Shares of a Fund, Sunstone shall as of each Fund Business Day, as specified in a
certificate or resolution described in paragraph 1, issue Shares of the Fund
based on the net asset value per Share of such Fund specified in an advice
received from or on behalf of the Fund on such Fund Business Day.
3. Upon the mail date specified in such certificate or resolution, as
the case may be, the Trust shall, in the case of a cash dividend or
distribution, cause the Custodian to deposit in an account in the name of
Sunstone as agent for the Trust, an amount of cash, if any, sufficient for
Sunstone to make the payment, as of the mail date, specified in such Certificate
or resolution, as the case may be, to the Shareholders who were of record on the
record date. Sunstone will, upon receipt of any such cash, make payment of such
cash dividends or distributions to the shareholders of record as of the record
date. Sunstone shall not be liable for any improper payments made in good faith
and in accordance with a certificate or resolution described in the preceding
paragraph. If Sunstone shall not receive from the Custodian sufficient cash to
make payments of any cash dividend or distribution to all shareholders of a Fund
as of the record date, Sunstone shall, upon notifying the Trust, withhold
payment to all shareholders of record as of the record date until sufficient
cash is provided to Sunstone.
4. It is understood that Sunstone in its capacity as transfer agent and
dividend disbursing agent shall in no way be responsible for the determination
of the rate or form of dividends or capital gain distributions due to the
shareholders pursuant to the terms of this Agreement. It is further understood
that Sunstone shall file with the Internal Revenue Service and shareholders such
appropriate federal tax forms concerning the payment of dividend and capital
gain distributions but shall in no way be responsible for the collection or
withholding of taxes due on such dividends or distributions due to shareholders,
except and only to the extent, required by applicable law.
C. AUTHORIZATION AND ISSUANCE OF SHARES; RECAPITALIZATION OR CAPITAL
ADJUSTMENT.
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1. Prior to the effective date of any increase or decrease in the total
number of Shares authorized to be issued, or the issuance of any additional
Shares of a Fund pursuant to stock dividends, stock splits, recapitalizations,
capital adjustments or similar transactions, the Trust agrees to deliver to
Sunstone such documents, certificates, reports and legal opinions as Sunstone
may reasonably request.
2. In the event the Trust issues Share certificates, Sunstone may issue
new Share certificates in place of certificates represented to have been lost,
stolen, or destroyed upon receiving written instructions from the shareholder
accompanied by proof of an indemnity or surety bond issued by a recognized
insurance institution specified by the Trust or Sunstone. If Sunstone receives
written notification from the shareholder or broker dealer that the certificate
issued was never received, and such notification is made within 30 days of the
date of issuance, Sunstone may reissue the certificate without requiring a
surety bond. Sunstone may also reissue certificates which are represented as
lost, stolen, or destroyed without requiring a surety bond provided that the
notification is in writing and accompanied by an indemnification signed on
behalf of a member firm of the New York Stock Exchange and signed by an officer
of said firm with the signature guaranteed. Notwithstanding the foregoing,
Sunstone will reissue a certificate upon written authorization from an
Authorized Person.
D. RECORDS.
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1. Sunstone shall keep such records as are specified in Schedule D
hereto 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 Rules 31a-2 and 31a-3 under
the 1940 Act. Sunstone may deliver to the Trust from time to time at Sunstone's
discretion, for safekeeping or disposition by the Trust in accordance with law,
such records, papers and documents accumulated in the execution of its duties as
such transfer agent, as Sunstone may deem expedient, other than those which
Sunstone is itself required to maintain pursuant to applicable laws and
regulations. The Trust shall assume all responsibility for any failure
thereafter to produce any record, paper, canceled Share certificate, or other
document so returned, if and when required. To the extent required by Section
31 of the 1940 Act and the rules and regulations thereunder, the records
specified in Schedule D hereto maintained by Sunstone, which have not been
previously delivered to the Trust pursuant to the foregoing provisions of this
paragraph, shall be considered to be the property of the Trust, shall be made
available upon request for inspection by the officers, employees, and auditors
of the Trust, and shall be delivered to the Trust promptly upon request and in
any event upon the date of termination of this Agreement, in the form and manner
kept by Sunstone on such date of termination or such earlier date as may be
requested by the Trust.
2. Sunstone agrees to keep all records and other information relative
to the Trust and its shareholders confidential. In case of any requests or
demands for the inspection of the shareholder records of the Trust, Sunstone
will endeavor to notify the Trust promptly and to secure instructions from an
officer as to such inspection. Sunstone reserves the right, however, to exhibit
the shareholder records to any person whenever it receives advice from its
counsel that there is a reasonable likelihood that Sunstone will be held liable
for the failure to exhibit the shareholder records to such person; provided,
however, that in connection with any such disclosure Sunstone shall promptly
notify the Trust that such disclosure has been made or is to be made.
Notwithstanding the foregoing, Sunstone may disclose information when requested
by a shareholder concerning an account as to which such shareholder claims a
legal or beneficial interest or when requested by the Trust, the shareholder or
the dealer of record as to such account.
ARTICLE IV
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CONCERNING THE TRUST
A. REPRESENTATIONS. The Trust represents and warrants to Sunstone that:
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(a) It is a business trust duly organized and existing under the laws of
the State of Delaware, it is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform this Agreement, and
all requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
(b) It is an investment company registered under the 1940 Act.
(c) A registration statement under the 1933 Act with respect to the
Shares is effective. The Trust shall notify Sunstone if such registration
statement or any state securities registrations have been terminated, lapse or a
stop order has been entered with respect to the Shares.
B. COVENANTS.
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1. The Trust or its agent upon instructions from the Trust will provide
to Sunstone copies of all amendments to its Agreement and Declaration of Trust
and By-laws made after the date of this Agreement. If requested by Sunstone,
each copy of the Agreement and Declaration of Trust and copies of all amendments
thereto shall be certified by the Secretary of the Trust. Each copy of the By-
Laws and copies of all amendments thereto, and copies of resolutions of the
Board of Trustees, shall be certified by the Secretary of the Trust, if
requested by Sunstone.
2. The Trust shall deliver to Sunstone the Trust's currently effective
Prospectus and, for purposes of this Agreement, Sunstone shall not be deemed to
have notice of any information contained in such Prospectus until a reasonable
time after it is actually received by Sunstone.
3. All requisite steps will be taken by the Trust from time to time
when and as necessary to register the Trust's shares for sale in all states in
which the Trust's shares shall at the time be offered for sale and require
registration. If at any time the Trust receives notice of any stop order or
other proceeding in any such state affecting such registration or the sale of
Trust's shares, or of any stop order or other proceeding under the federal
securities laws affecting the sale of the Trust's shares, the Trust will give
prompt notice thereof to Sunstone.
4. The Trust will comply with all applicable requirements of the 1933
Act, the Securities Exchange Act of 1934, as amended, the 1940 Act, blue sky
laws, and any other applicable laws, rules and regulations.
5. The Trust agrees that prior to effecting any change in the
Prospectus which would increase or alter the duties and obligations of Sunstone
hereunder, it shall advise Sunstone of such proposed change at least 30 days
prior to the intended date of the same, and shall proceed with such change only
if it shall have received the written consent of Sunstone thereto, which shall
not be unreasonably withheld.
ARTICLE V
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CONCERNING THE TRANSFER AGENT
A. REPRESENTATIONS. Sunstone represents and warrants to the Trust that:
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(a) It is a limited liability company duly organized and existing under
the laws of the State of Wisconsin, is empowered under applicable law and by its
Articles of Organization and Operating Agreement to enter into and perform this
Agreement, and all requisite proceedings have been taken to authorize it to
enter into and perform this Agreement.
(b) It is duly registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934, as amended, to the extent required. Sunstone
shall promptly give written notice to the Trust in the event that its
registration is revoked or a proceeding is commenced that could result in such
revocation.
B. LIMITATION OF LIABILITY; INDEMNIFICATION.
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1. Sunstone shall use its best efforts to ensure the accuracy of all
services performed under this Agreement, but shall not be liable for any loss or
damage, including counsel fees, resulting from its actions or omissions to act
or otherwise, in the absence of its bad faith, willful misfeasance, gross
negligence or reckless disregard of its duties under this agreement. Sunstone
shall not be liable in acting upon any writing or document reasonably believed
by it to be genuine and to have been signed or made by an Authorized Person or
verbal instructions which the individual receiving the instructions on behalf of
Sunstone reasonably believes in good faith to have been given by an Authorized
Person, and Sunstone shall not be held to have any notice of any change of
authority of any person until receipt of written notice thereof from the Trust
or such person.
2. The Trust agrees to indemnify and hold harmless Sunstone, its
employees, agents, members, officers and nominees from and against any and all
claims, demands, actions and suits, whether groundless or otherwise, and from
and against any and all judgments, liabilities, losses, damages, costs, charges,
counsel fees and other expenses of every nature and character arising out of or
in any way relating to Sunstone's actions taken or nonactions with respect to
the performance of services under this Agreement or based, if applicable, upon
reliance on information, records, instructions (oral or written) or requests
given or made to Sunstone by the Trust, its officers, trustees, agents or
representatives, or resulting from a breach by the Trust of any representation,
covenant or warranty contained in this Agreement; provided that this
indemnification shall not apply to actions or omissions of Sunstone in cases of
its own willful misfeasance or gross negligence, and further provided that prior
to confessing any claim against it which may be the subject of this
indemnification, Sunstone shall give the Trust written notice of and reasonable
opportunity to defend against said claim in its own name or in the name of
Sunstone. The indemnity and defense provisions provided hereunder shall
indefinitely survive the termination of this Agreement.
3. Sunstone shall indemnify and hold harmless the Trust, its officers,
trustees, employees and agents from and against any and all claims, demands,
actions and suits, whether groundless or otherwise, and from and against any and
all judgments, liabilities, losses, damages, costs, charges, counsel fees and
other expenses of every nature and character that the Trust may sustain or incur
or that may be asserted against the Trust by any person as a result of
Sunstone's gross negligence or willful misfeasance in the performance of its
duties or obligations under this Agreement, or resulting from a breach by
Sunstone of any representation or warranty contained in this Agreement; provided
that this indemnification shall not apply to actions or omissions of the Trust
in cases of its own willful misfeasance or gross negligence, and further
provided that prior to confessing any claim against it which may be the subject
of this indemnification, the Trust shall give Sunstone written notice of and
reasonable opportunity to defend against said claim in its own name or in the
name of the Trust. The indemnity and defense provisions provided hereunder
shall indefinitely survive the termination of this Agreement.
4. Sunstone assumes no responsibility hereunder, and shall not be
liable, for any damage, loss of data, errors, delay or any other loss whatsoever
caused by events beyond its reasonable control. Sunstone will, however, take
all reasonable steps to minimize service interruptions for any period that such
interruption continues beyond Sunstone's control.
5. In no event and under no circumstances shall either party to this
agreement be liable to anyone, including, without limitation to the other party,
for punitive damages for any act or failure to act under any provision of this
agreement even if advised of the possibility thereof.
6. At any time Sunstone may request instructions and/or receive
directions from an Authorized Person with respect to any matter arising in
connection with Sunstone's duties and obligations under this Agreement, and
Sunstone shall not be liable for any action taken or permitted by it in good
faith in accordance with such instructions or directions. Such request for
instructions by Sunstone may set forth any action proposed to be taken or
omitted by Sunstone with respect to its duties or obligations under this
Agreement and the date on and/or which such action shall be taken. Sunstone
shall not be liable for any action taken or omitted in accordance with a
proposal included in any such request on or after the date specified therein
unless, prior to taking or omitting any such action, Sunstone has received
instructions in response to such application specifying the action to be taken
or omitted. Sunstone may consult counsel of the Trust, or upon notice to and
consent of the Trust, its own counsel, at the expense of the Trust and shall be
fully protected with respect to anything done or omitted by it in good faith in
accordance with the advice or opinion of counsel to the Trust or its own
counsel.
7. Notwithstanding any of the provisions of this Agreement, Sunstone
shall be under no duty or obligation under this Agreement to inquire into, and
shall not be liable for:
(a) The legality of the issue or sale of any Shares, the sufficiency
of the amount to be received therefor, or the authority of the Trust, as the
case may be, to request such sale or issuance;
(b) The legality of a transfer or exchange of Shares, or of a
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Trust, as the case may be, to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the Trust, or
the legality of the issue of any Shares in payment of any stock dividend, or the
legality of any Recapitalization or readjustment of Shares.
ARTICLE VI
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TERM
1. Unless sooner terminated as provided for herein, this Agreement
shall remain in full force and effect for a period of one year from the date
hereof, and thereafter shall automatically extend for additional, successive
twelve (12) month terms unless earlier terminated as provided below.
2. Either of the parties hereto may terminate this Agreement by giving
to the other party a notice in writing specifying the date of such termination,
which shall be not less than sixty (60) days after the date of receipt of such
notice. In the event such notice is given by the Trust, it shall be accompanied
by a copy of a resolution of the Board of Trustees of the Trust, certified by
the Secretary or any Assistant Secretary, electing to terminate this Agreement
and designating the successor transfer agent or transfer agents. In the event
such notice is given by Sunstone, the Trust shall on or before the termination
date, deliver to Sunstone a copy of a resolution of its Board of Trustees
certified by the Secretary or any Assistant Secretary designating a successor
transfer agent or transfer agents. In the absence of such designation by the
Trust, the Trust shall upon the date specified in the notice of termination of
this Agreement and delivery of the records maintained hereunder, be deemed to be
its own transfer agent and Sunstone shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement. Fees and out-of-pocket expenses
incurred by Sunstone, but unpaid by the Trust upon such termination, shall be
immediately due and payable upon and notwithstanding such termination.
3. In the event this Agreement is terminated as provided herein,
Sunstone, upon the written request of the Trust, shall deliver the records of
the Trust to the Trust or its successor transfer agent in the form maintained by
Sunstone. The Trust shall be responsible to Sunstone for all out-of-pocket
expenses and for the reasonable costs and expenses associated with the
preparation and delivery of such media in the form and manner maintained by
Sunstone, including: (a) transportation of forms and other Trust materials used
in connection with the processing of Trust transactions by Sunstone; and (b)
transportation of Trust records and files in the possession of Sunstone. To the
extent the Trust requests, and Sunstone agrees to, any custom programming in
connection with the preparation of such media or the preparation and delivery of
materials in a form different than maintained by Sunstone, the Trust shall be
responsible for all costs and expenses of Sunstone associated therewith.
Sunstone shall not reduce the level of service provided to the Trust following
notice of termination by the Trust.
ARTICLE VII
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MISCELLANEOUS
A. NOTICES. Any notice required or to be permitted to be given by either
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party to the other shall be in writing and shall be deemed to have been given
when sent by registered or certified mail, postage prepaid, return receipt
requested, as follows: Notice to Sunstone shall be sent to Sunstone Investor
Services, LLC, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000,
Attention Xxxxxx X. Xxxxxxx, and notice to the Trust shall be sent to The
Xxxxxxxxxx Funds, 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 60606-
4002, Attention: Xxxxxx X. Xxxxxxx III.
B. AMENDMENTS/ASSIGNMENTS.
----------------------
1. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the formality of this
Agreement.
2. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns. This Agreement shall not
be assignable by either party without the written consent of the other party
except that Sunstone may assign this Agreement to an affiliate with advance
written notice to the Trust.
C. WISCONSIN LAW. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Wisconsin (except as to paragraph I
below which shall be construed in accordance with Delaware law). If any part,
term or provision of this Agreement is determined by the courts or any
regulatory authority having jurisdiction over the issue to be illegal, in
conflict with any law or otherwise invalid, the remaining portion or portions
shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
D. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
E. BACK-UP FACILITY. During the terms of this Agreement, Sunstone shall
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provide a facility capable of safeguarding the transfer agency and dividend
disbursing records of the Trust in case of damage to the primary facility
providing those services (the "Back-Up Facility"). Transfer of the transfer
agency and dividend records of the Trust to the Back-Up Facility shall commence
as soon as practicable after damage to the primary facility results in an
inability to provide the transfer agency and dividend disbursing services.
After the primary facility has recovered, Sunstone shall again utilize it to
provide the transfer agency and dividend disbursing services to the Trust.
Sunstone shall use reasonable efforts to provide the services described in this
Agreement from the Back-Up Facility.
F. PRIOR TRANSFER AGENT(S). Sunstone will endeavor to assist in resolving
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shareholder inquiries and errors relating to the period during which prior
transfer agents acted as such for the Trust. Any such inquiries or errors which
cannot be expediently resolved by Sunstone will be referred to the Trust.
G. NON-EXCLUSIVE; OTHER AGREEMENTS. The services of Sunstone hereunder are
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not deemed exclusive and Sunstone shall be free to render similar services to
others. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto and any
actions taken or omitted by any party hereunder shall not affect any rights or
obligations of any other party hereunder.
H. CAPTIONS. The captions in the Agreement are included for convenience of
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reference only, and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
I. MISCELLANEOUS. This Agreement is executed by or on behalf of the Trust
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and the obligations hereunder are not binding upon any of the Trustees, officers
or shareholders of the Trust individually but are binding only upon the Funds to
which such obligations pertain and the assets and property of such Funds.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as the day and year
first above written.
SUNSTONE INVESTOR SERVICES, LLC THE XXXXXXXXXX FUNDS
("SUNSTONE") (THE "TRUST")
By: By:
-------------------------------- --------------------------------
(Signature) (Signature)
-------------------------------- --------------------------------
(Name) (Name)
-------------------------------- --------------------------------
(Title) (Title)
-------------------------------- --------------------------------
(Date Signed) (Date Signed)
SCHEDULE A
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
THE XXXXXXXXXX FUNDS
AND
SUNSTONE INVESTOR SERVICES, LLC
NAME OF FUNDS
--------------
XXXXXXXXXX BALANCED FUND
SCHEDULE B
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
THE XXXXXXXXXX FUNDS
AND
SUNSTONE INVESTOR SERVICES, LLC
SERVICES
--MAINTENANCE OF SHAREHOLDER ACCOUNTS
- Maintain records for each shareholder account
- Scan account documents for electronic storage
- Issue customer statements
- Record changes to shareholder account information
- Maintain account documentation files for each shareholder
- Establish and maintain XXX accounts
--SHAREHOLDER SERVICING AND SHAREHOLDER TRANSACTIONS
- Respond to written and telephone (recorded lines) inquiries from
shareholders for information about their accounts (7:00 a.m. to 7:00 p.m.
Milwaukee time)
- Process shareholder purchase and redemption orders, including those of
automatic investment and systematic withdrawal plans
- Set up account information, including address, dividend options, taxpayer
identification numbers and wire instructions
- Issue transaction confirmations
- Process transfers and exchanges
- Process dividend payments by check, wire or ACH or purchase new shares
through dividend reinvestment
- Shareholder tax withholding and reporting
--COMPLIANCE REPORTING AND PROXY PROCESSING
- Provide required reports to the Securities and Exchange Commission
- Prepare and distribute required Internal Revenue Service forms relating to
earned income and capital gains to fund and shareholders
- Issue tax withholding reports to the Internal Revenue Service
- Mail, process and tabulate proxies
--DEALER PROCESSING
- Provide dealer access through NSCC's FundSERV
- Calculate fees due under 12b-1 plans for distribution and marketing
expenses
--TELEPHONE SERVICE REPRESENTATIVES ON-LINE ACCESS RESPONDING TO SHAREHOLDER OR
DEALER INQUIRIES RELATED TO:
- Account registration
- Share balances
- Account options
- Dividend and capital gain distribution status
- Withholding status
- Transaction dates and types;
- Shares traded
- Social security number/tax ID number
- External account number
- Address
- Customer or account type
- Dealer, branch and rep information
- Dollars available/not available in the account
- Shares purchased/redeemed today
- Dividend accrual, current dividend period; and
- Market value of shares
--STANDARD REPORTS
- Shareholder base analysis (monthly)
- New account listing (weekly)
- Purchases, redemptions, exchanges (monthly)
- Servicing summary (monthly)
SCHEDULE C
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
THE XXXXXXXXXX FUNDS
AND
SUNSTONE INVESTOR SERVICES, LLC
--FEES FOR THE XXXXXXXXXX FUNDS
Base annual fee:
Balanced Fund $2,500
Annual shareholder account fee: 21.00 open accounts
3.00 closed accounts
16.00 open matrix level three
accounts (broker-dealer
accounts)
Minimum annual fee:
Balanced Fund 21,000
The fee assumes a single class of shares, implementation of a 12b-1 plan;
availability of automatic investment plans and systematic withdrawal plans
(using Sunstone's regular processing date); annual dividend distributions;
annual capital gains distributions; and all standard reports.
The base annual fee plus the greater of the minimum annual fee or annual
shareholder account fee will be charged. In addition, all account
maintenance and processing fees, out-of-pocket expenses, and additional
fees apply to both Xxxxxxxxxx and Northern Fund accounts.
--ONE-TIME SET-UP FEES
(per fund family)
NSCC FundSERV set-up $2,500
NSCC networking 1,500
Northern Money Market Fund(s) (per fund) 2,500
Fund set-up (per fund) 2,000
VRU set-up 2,000
Remote access per location 500
--ACCOUNT MAINTENANCE AND PROCESSING FEES
(per occurrence)
Omnibus account transaction 2.50
Transaction processing - FundSERV .20
Locating lost shareholders 8.00
--OUT-OF-POCKET EXPENSES
Per check processing (dividend, capital
gains, redemption) .25
Per statement and confirm processing .25
Per tax form processing .15
Per label printing for proxy or
marketing purposes .05
Production of ad hoc reports 100.00 minimum
Bulk mailings/insert handling charge
1 insert .25
2 - 3 inserts (per piece) .20
4 - 5 inserts (per piece) .15
Bank account service fees and any other
bank charges At cost
Statement paper At cost
Envelopes At cost
Tax forms At cost
Postage and express delivery charges At cost
Telephone and long distance charges At cost
Fax charges At cost
P.O. box rental At cost
800-phone number At cost
Inventory and records storage At cost
FundSERV charges At cost
Remote access ID
First user 250.00
Each additional user 100.00
Remote access line charges At cost
--CUSTOM PROGRAMMING
Additional fees may apply for special programming to meet your servicing
requirements or to create custom reports.
--ADDITIONAL FEES WHICH WILL BE PASSED ON TO SHAREHOLDERS
Outgoing wire fee Varies by bank
Account transcripts older than 2 years
(per year, per fund) 5.00
Non-sufficient funds Varies by bank
XXX/SEP processing/403(b)
Annual maintenance or custodial
fee (per shareholder) 15.00
Account termination (transfer or rollover) 15.00
Out-of-pocket expenses (e.g., travel, blue sky licenses)At cost
SCHEDULE D
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
THE XXXXXXXXXX FUNDS
AND
SUNSTONE INVESTOR SERVICES, LLC
RECORDS MAINTAINED BY SUNSTONE
Account applications
Canceled certificates plus stock powers and supporting documents
Checks including check registers, reconciliation records, any adjustment
records and tax withholding documentation
Indemnity bonds for replacement of lost or missing stock certificates and
checks
Liquidation, redemption, withdrawal and transfer requests including stock
powers, signature guarantees and any supporting documentation
Shareholder correspondence
Shareholder transaction records
Share transaction history of the Funds
Proxy records for shareholder meetings
Tax reports sent to shareholders and the Internal Revenue Service
