TRANSFER AGENCY AGREEMENT
This Agreement made as of the ____ day of __________, 1997 between UMB
Bank, n.a. (the "Manager"), a national banking association with its principal
place of business located at Kansas City, Missouri, Scout Capital Preservation
Fund, Inc., a Maryland corporation (the "Fund"), and Xxxxx & Xxxxxx, Inc., a
Missouri corporation (the "Transfer Agent").
WITNESSETH
That in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
1. "Approved Institution" shall mean an entity so named in a
Certificate, as hereinafter defined. From time to time, the Fund may amend a
previously delivered Certificate by delivering to the Transfer Agent a
Certificate naming an additional entity or deleting any entity named in a
previously delivered Certificate.
2. The "Board of Directors" shall mean the Board of Directors of the
Fund.
3. "Certificate" shall mean any notice, instruction or other instrument
in writing, authorized or required by this
Agreement to be given to the Transfer Agent by the Fund which is signed by any
Officer, as hereinafter defined, and actually received by the Transfer Agent.
4. "Custodian" shall mean the financial institution appointed as
custodian under the terms and conditions of the Custody Agreement between the
financial institution and the Fund, or its successor(s).
5. "Fund Business Day" shall be determined as set out in the Fund's
prospectuses as shall be effective from time to time.
6. "Officer" shall be deemed to be the Fund's President, any Vice
President, Secretary, Treasurer, Controller, any Assistant Controller, any
Assistant Treasurer and any Assistant Secretary, and any other person duly
authorized by the Board of Directors of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the Fund, and any person
reasonably believed by the Transfer Agent to be such a person.
7. "Out-of-Pocket Expenses" means amounts reasonably necessary and
actually incurred by Transfer Agent in the provision of Transfer Agent services
or pursuant to this Agreement for the following purposes: postage (and first
class mail insurance in connection with mailing Share certificates), envelopes,
check forms, continuous forms, forms for reports and statements, stationery and
other similar items, telephone and telegraph charges incurred in answering
inquiries from dealers or shareholders, microfilm used to record transactions in
shareholder accounts and computer tapes used for permanent
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storage of records and cost of insertion of materials in mailing envelopes by
outside firms. Any charges associated with special or exception processing shall
also be considered Out-of-Pocket Expenses.
8. "Prospectus" shall mean the most recent Fund prospectus actually
received by the Transfer Agent from the Fund with respect to which the Fund has
indicated a registration statement under the Securities Act of 1933, as amended,
has become effective, including the Statement of Additional Information,
incorporated by reference therein.
9. "Shares" shall mean all or any part of each class or series of the
shares of beneficial interest of the Fund or portfolio listed in the Certificate
as to which the Transfer Agent acts as transfer agent hereunder, as may be
amended from time to time, which are authorized and/or issued by the Fund.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. Effective as of the date of this Agreement, the Manager, acting for
the benefit of the Fund, hereby constitutes and appoints the Transfer Agent as
transfer agent of all the Shares of the Fund and as dividend disbursing agent
during the period of this Agreement.
2. The Transfer Agent hereby accepts appointment as transfer agent and
dividend disbursing agent and agrees to perform duties thereof as hereinafter
set forth.
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3. In connection with such appointment, the Fund upon the request of
the Transfer Agent, shall deliver the following documents to the Transfer Agent:
(i) A copy of the Articles of Incorporation of the Fund and
all amendments thereto certified by the Secretary of the Fund;
(ii) A copy of the By-laws of the Fund certified by the
Secretary of the Fund;
(iii) A copy of a resolution of the Board of Directors of the Fund
certified by the Secretary of the Fund appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Fund specifying: the
number of authorized Shares, the number of such authorized Shares issued, the
number of such authorized Shares issued and currently outstanding, the names and
specimen signatures of the Officers of the Fund and the name and address of the
legal counsel for the Fund;
(v) Specimen Share certificate for each or series class of Shares in
the form approved by the Board of Directors of the Fund (and in a format
compatible with the Transfer Agent's system), together with a Certificate signed
by the Secretary of the Fund as to such approval;
(vi) Copies of the Fund's registration statement, as amended to date,
and the most recently filed Post-Effective Amendment thereto, filed by the Fund
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and
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under the Investment Company Act of 1940, as amended, together
with any applications filed in connection therewith; and
(vii) Opinion of counsel for the Fund with respect to the validity of
the authorized and outstanding Shares, whether such Shares are fully paid and
nonassessable 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).
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. If requested by the Transfer Agent, the Fund shall deliver to the
Transfer Agent the following documents on or before the effective date of any
increase or decrease in the total number of Shares authorized to be issued:
(a) A certified copy of the amendment to the Articles of
Incorporation giving effect to such increase or decrease;
(b) In the case of an increase, an opinion of counsel for the Fund with
respect to the validity of the Shares of the Fund 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); and
(c) In the case of an increase, if the appointment of the Transfer
Agent was theretofore expressly limited, a certified
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copy of a resolution of the Board of Directors of the Fund
increasing the authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares pursuant to stock
dividends or stock splits, etc., and prior to any reduction in the number of
Shares outstanding, if requested by the Transfer Agent, the Fund shall deliver
the following documents to the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the Board of
Directors and/or the shareholders of the Fund authorizing such issuance of
additional Shares or such reduction, as the case may be; and
(b) An opinion of counsel for the Fund with respect to the validity of
the Shares 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).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other
capital adjustment requiring a change in the form of Share certificates, the
Transfer Agent will issue Share certificates in the new form in exchange for, or
upon transfer of, outstanding Share certificates in the old form, upon
receiving:
(a) A Certificate authorizing the issuance of the Share
certificates in the new form;
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(b) A certified copy of any amendment to the Articles of Incorporation
with respect to the change;
(c) Specimen Share certificates for each class of Shares in the new
form approved by the Board of Directors of the Fund, with a Certificate signed
by the Secretary of the Fund as to such approval; and
(d) An opinion of counsel for the Fund with respect to the validity of
the Shares in the new form 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 the Shares have been registered and that
the registration statement has become effective or, if exempt, the specific
grounds therefor).
2. The Fund at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new form and from time to
time will replenish such supply upon the request of the Transfer Agent. Such
blank Share certificates shall be compatible with the Transfer Agent's system
and shall be properly signed by facsimile or otherwise by Officers of the Fund
authorized by law or by the By-laws to sign Share certificates and, if required,
shall bear the corporate seal or facsimile thereof. The Fund agrees to indemnify
and exonerate, save and hold the Transfer Agent harmless from and against any
and all claims or demands that may be asserted against the Transfer Agent with
respect to the genuineness of any Share certificate supplied to the Transfer
Agent pursuant to this Article.
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ARTICLE V
ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of
the Fund's Prospectus, which Prospectus describes how sales and redemption of
Shares of the Fund shall be made, and the Transfer Agent agrees to accept
purchase orders and redemption requests with respect to Shares on each Fund
Business Day in accordance with such Prospectus. The Fund agrees to provide the
Transfer Agent with sufficient advance notice to enable the Transfer Agent to
effect any changes in the procedures set forth in the Prospectus regarding such
purchase and redemption procedure; provided, however, that in no event will such
advance notice be less than thirty (30) days.
(b) The Transfer Agent shall also accept with respect to each Fund
Business Day, at such times as are agreed upon from time to time by the Transfer
Agent and the Fund, a computer tape or electronic data transmission consistent
in all respects with the Transfer Agent's record format, as amended from time to
time, which is believed by the Transfer Agent to be furnished by or on behalf of
any Approved Institution. The Transfer Agent shall not be liable for any losses
or damages to the Fund or its shareholders in the event that a computer tape or
electronic data transmission from an Approved Institution is unable to be
processed for any reason beyond the control of the Transfer Agent, or if any of
the information on such tape or transmission is found to be incorrect.
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2. On each Fund Business Day, the Transfer Agent shall, as of the time
at which the Fund computes the net asset value of the Fund, issue to and redeem
from the accounts specified in a purchase order, redemption request or computer
tape or electronic data transmission, which in accordance with the Prospectus is
effective on such Fund Business 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 the Fund. Notwithstanding
the foregoing, if a redemption specified in a computer tape or electronic data
transmission is for a dollar value of Shares in excess of the dollar value of
uncertificated Shares in the specified account, the Transfer Agent shall not
effect such redemption in whole or in part and shall within twenty-four (24)
hours orally advise the Approved Institution which supplied such tape of the
discrepancy.
3. In connection with a reinvestment of a dividend or distribution of
Shares of the Fund, the Transfer Agent shall as of each Fund Business Day, as
specified in a Certificate or resolution described in paragraph 1 of succeeding
Article VI, issue Shares of the Fund based on the net asset value per Share of
such Fund specified in an advice received from the Fund on such Fund Business
Day.
4. On each Fund Business Day, the Transfer Agent shall supply the Fund
with a statement specifying with respect to the immediately preceding Fund
Business Day: the total number of Shares of the Fund (including fractional
Shares) issued and
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outstanding at the opening of business on such day; the total number of Shares
of the Fund sold on such day, pursuant to the preceding paragraph 2 of this
Article; the total number of Shares of the Fund redeemed from shareholders by
the Transfer Agent on such day; the total number of Shares of the Fund, if any,
sold on such day pursuant to the preceding paragraph 3 of this Article, and the
total number of Shares of the Fund issued and outstanding.
5. In connection with each purchase and each redemption of Shares, the
Transfer Agent 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, the Transfer Agent will countersign (if necessary), issue and mail to
such shareholder at the address set forth in the records of the Transfer Agent a
Share certificate for any full Share requested.
6. As of each Fund Business Day, the Transfer Agent shall furnish the
Fund with an advice setting forth the number and dollar amount of Shares to be
redeemed on such Fund Business Day in accordance with paragraph 2 of this
Article.
7. Upon receipt of a proper redemption request and moneys paid to it by
the Custodian in connection with a redemption of Shares, the Transfer Agent
shall cancel the redeemed Shares and after making appropriate deduction for any
withholding of taxes
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required of it by applicable law: (a) in the case of a redemption of Shares
pursuant to a redemption described in the preceding paragraph l(a) of this
Article, make payment in accordance with the Fund's redemption and payment
procedures described in the Prospectus; and (b) in the case of a redemption of
Shares pursuant to a computer tape or electronic data transmission described in
the preceding paragraph l(b) of this Article, make payment by directing a
federal funds wire order to the account previously designated by the Approved
Institution specified in said computer tape or electronic data transmission.
8. The Transfer Agent shall not be required to issue any Shares after
it has received from an Officer of the Fund or from an appropriate federal or
state authority written notification that the sale of Shares has been suspended
or discontinued, and the Transfer Agent shall be entitled to rely upon such
written notification.
9. Upon the issuance of any Shares in accordance with this Agreement,
the Transfer Agent shall not be responsible for the payment of any original
issue or other taxes required to be paid by the Fund in connection with such
issuance of any Shares.
10. The Transfer Agent shall accept a computer tape or electronic data
transmission consistent with the Transfer Agent's record format, as amended from
time to time, which is reasonably believed by the Transfer Agent to be furnished
by or on behalf of any Approved Institution and is represented to be
instructions with respect to the transfer of Shares from one account of such
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Approved Institution to another such account, and shall effect the transfers
specified in said computer tape or electronic data transmission. The Transfer
Agent shall not be liable for any losses to the Fund or its shareholders in the
event that a computer tape or electronic data transmission from an Approved
Institution is unable to be processed for any reason beyond the control of the
Transfer Agent, or if any of the information on such tape or transmission is
found to be incorrect.
11. (a)Except as otherwise provided in subparagraph (b) of this
paragraph and in paragraph 13 of this Article, Shares will be transferred or
redeemed upon presentation to the Transfer Agent of Share certificates or
instructions properly endorsed for transfer or redemption, accompanied by such
documents as the Transfer Agent 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. In the case of small estates where no
administration is contemplated, the Transfer Agent may, when furnished with an
appropriate surety bond, and without further approval of the Fund, transfer or
redeem Shares registered in the name of a decedent where the current market
value of the Shares being transferred does not exceed such amount as may from
time to time be prescribed by various states. The Transfer Agent reserves the
right to refuse to transfer or redeem Shares until it is satisfied that the
endorsement on the stock certificate or instructions is valid and genuine, and
for that purpose it will
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require, unless otherwise instructed by an authorized Officer of the Fund, a
guarantee of signature by an "Eligible Guarantor Institution" as that term is
defined by SEC Rule 17Ad-15. The Transfer Agent 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 the
Transfer Agent, 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. The Transfer Agent 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 of securities, and the
Fund shall indemnify the Transfer Agent for any act done or omitted by it in
good faith in reliance upon such laws. In no event will the Fund indemnify the
Transfer Agent for any act done by it as a result of willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties. The Transfer Agent
shall be entitled to accept, and shall be fully protected by the Fund in
accepting, any request from any entity to carry out any transaction in Shares
received by the Transfer Agent through any of the various programs offered
through the National Securities Clearing Corporation ("NSCC") (including, but
not limited to, Networking
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and FundServ). Any such entity shall constitute an Approved
Institution as defined herein.
(b) Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, the Transfer Agent shall be fully protected by
the Fund in not requiring any instruments, documents, assurances, endorsements
or guarantees, including, without limitation, any signature guarantees, in
connection with a redemption or transfer of Shares whenever the Transfer Agent
reasonably believes that requiring the same would be inconsistent with the
transfer and redemption procedures as described in the Prospectus.
12. Notwithstanding any provision contained in this Agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer of any Shares pursuant to paragraph 11 of this Article
or any redemption of any Shares pursuant to a computer tape or electronic data
transmission described in this Agreement, any documents, including, without
limitation, any documents of the kind described in subparagraph (a) of paragraph
11 of this Article, 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.
13. (a) As used in this Agreement, the terms "computer tape or
electronic data transmission" and "computer tape believed by the Transfer Agent
to be furnished by an Approved
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Institution", shall include any tapes generated by the Transfer Agent to reflect
information believed by the Transfer Agent to have been input by an Approved
Institution, via a remote terminal or other similar link, into a data
processing, storage or collection system, or similar system (the "System"),
located on the Transfer Agent's premises. For purposes of paragraph 1 of this
Article, such a computer tape or electronic data transmission shall be deemed to
have been furnished at such times as are agreed upon from time to time by the
Transfer Agent and Fund only if the information reflected thereon was input to
the System at such times as are agreed upon from time to time by the Transfer
Agent and the Fund.
(b) Nothing contained in this Agreement shall constitute any agreement
or representation by the Transfer Agent to permit, or to agree to permit, any
Approved Institution to input information into a System.
(c) The Transfer Agent reserves the right to approve, in advance, any
Approved Institution; such approval not to be unreasonably withheld. The
Transfer Agent also reserves the right to terminate any and all automated data
communications, at its discretion, upon a reasonable attempt to notify the Fund
when in the opinion of the Transfer Agent continuation of such communications
would jeopardize the accuracy and/or integrity of the Fund's records on the
System.
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ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a resolution
of its Board of Directors, certified by the Secretary or any Assistant
Secretary, 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 the Transfer
Agent on such payment date; or (ii) authorizing the declaration of dividends and
distributions on a daily or other periodic basis and authorizing the Transfer
Agent to rely on a Certificate setting forth the information described in
subsection (i) of this paragraph.
2. Upon the mail date specified in such Certificate or resolution, as
the case may be, the Fund shall, in the case of a cash dividend or distribution,
cause the Custodian to deposit in an account in the name of the Transfer Agent
on behalf of the Fund an amount of cash, if any, sufficient for the Transfer
Agent 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. The Transfer Agent will, upon receipt of any such cash, make
payment of such cash dividends or distributions to the shareholders of record as
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of the record date by: (i)mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address; or (ii)
wiring such amounts to the accounts previously designated by an Approved
Institution, as the case may be. The Transfer Agent shall not be liable for any
improper payments made in good faith and without negligence, in accordance with
a Certificate or resolution described in the preceding paragraph. If the
Transfer Agent shall not receive from the Custodian sufficient cash to make
payments of any cash dividend or distribution to all shareholders of the Fund as
of the record date, the Transfer Agent shall, upon notifying the Fund, withhold
payment to all shareholders of record as of the record date until sufficient
cash is provided to the Transfer Agent.
3. It is understood that the Transfer 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. It is expressly agreed and
understood that the Transfer Agent is not liable for any loss as a result of
processing a distribution based on information provided in the Certificate that
is incorrect. The Fund agrees to pay the Transfer Agent for any and all costs,
both direct and Out-of-Pocket Expenses, incurred in such corrective work as
necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such appropriate
information returns concerning the payment of dividend and capital gain
distributions with the proper federal, state and local authorities as are
required by law to be filed by
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the Fund, 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. Anything in this Agreement to the
contrary notwithstanding, the Fund shall be solely responsible for the accurate,
complete and timely filing with the proper federal, state and local authorities
of all tax information with respect to any Fund account maintained under Matrix
Level 3 through any of the various programs offered through the NSCC (including,
but not limited to, Networking and FundServ).
ARTICLE VII
CONCERNING THE FUND
1. The Fund represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing under
the laws of the State of Maryland.
(b) It is empowered under applicable laws and by its Articles of
Incorporation and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
(d) It is an investment company registered under the Investment Company
Act of 1940, as amended.
(e) A registration statement under the Securities Act of 1933, as
amended, with respect to the Shares is effective. The Fund shall notify the
Transfer Agent if such registration statement or any state securities
registrations have been
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terminated or a stop order has been entered with respect to the
Shares.
2. Each copy of the Articles of Incorporation of the Fund and copies of
all amendments thereto shall be certified by the Secretary of State (or other
appropriate official) of the state of organization, and if such Articles of
Incorporation and/or amendments are required by law also to be filed with a
county or other officer or official body, a certificate of such filing shall be
filed with a certified copy submitted to the Transfer Agent. Each copy of the
By-laws and copies of all amendments thereto, and copies of resolutions of the
Board of Directors of the Fund shall be certified by the Secretary of the Fund
under seal.
3. The Fund shall promptly deliver to the Transfer Agent written notice
of any change in the Officers authorized to sign Share certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the
Transfer Agent may issue such Share certificates of the Fund notwithstanding
such death, resignation or removal, and the Fund shall promptly deliver to the
Transfer Agent such approval, adoption or ratification as may be required by
law.
4. It shall be the sole responsibility of the Fund to deliver to the
Transfer Agent the Fund's currently effective
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Prospectus and, for purposes of this Agreement, the Transfer Agent shall not be
deemed to have notice of any information contained in such Prospectus until a
reasonable time after it is actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Fund
that:
(a) It is a corporation duly organized and existing under the laws of
the State of Missouri.
(b) It is empowered under applicable law and by its Articles of
Incorporation and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape or electronic data transmission, writing or
document reasonably believed by it to be genuine and to have been signed or made
by an Officer of the Fund or person designated by the Fund and shall not be held
to have any notice of any change of authority of any person until receipt of
written notice thereof from the Fund or such person. It shall also be protected
in processing Share certificates which bear the proper countersignature of the
Transfer Agent and which it
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reasonably believes to bear the proper manual or facsimile
signature of the Officers of the Fund.
3. The Transfer Agent upon notice to the Fund may establish such
additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent with
such rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as it may deem advisable
and is agreeable to the Fund, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular Rules 31a-2 and
31a-3 under the Investment Company Act of 1940, as amended. The Transfer Agent
acknowledges that such records are the property of the Fund. The Transfer Agent
may deliver to the Fund from time to time at its discretion, for safekeeping or
disposition by the Fund in accordance with law, such records, papers, documents
accumulated in the execution of its duties as such Transfer Agent, as the
Transfer Agent may deem expedient, other than those which the Transfer Agent is
itself required to maintain pursuant to applicable laws and regulations. The
Fund shall assume all responsibility for any failure thereafter to produce any
record, paper, cancelled Share certificate or other document so returned, if and
when required. Such records maintained by the Transfer Agent pursuant to this
paragraph 4, which have not been previously delivered to the Fund pursuant to
the foregoing provisions of this paragraph 4, shall be considered to be the
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property of the Fund, shall be made available upon request for inspection by the
Officers, employees and auditors of the Fund, and records shall be delivered to
the Fund upon request and in any event upon the date of termination of this
Agreement, as specified in Article IX of this Agreement, in the form and manner
kept by the Transfer Agent on such date of termination or such earlier date as
may be requested by the Fund.
5. The Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its bad faith, willful
misfeasance, gross negligence or reckless disregard of its duties under this
Agreement.
6. (a) The Fund shall indemnify and exonerate, save and hold harmless
the Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including reasonable attorneys' fees)
and liabilities of any and every nature which the Transfer Agent may sustain or
incur or which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be taken by any prior
transfer agent of the Fund or as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith and without gross negligence or
willful misfeasance or in reliance upon: (i) any provision of this Agreement;
(ii) the Prospectus; (iii) any instruction or order including, without
limitation, any computer tape or electronic
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data transmission reasonably believed by the Transfer Agent to have been
received from an Approved Institution; (iv) any instrument, order or Share
certificate reasonably believed by it to be genuine and to be signed,
countersigned or executed by any duly authorized Officer of the Fund; (v) any
Certificate or other instructions of an Officer; (vi) any opinion of legal
counsel for the Fund or the Transfer Agent; or (vii) any request by any entity
to carry out any transaction in Shares received by the Transfer Agent through
any of the various programs offered through the NSCC (including, but not limited
to, Networking and FundServ). The Fund shall indemnify and exonerate, save and
hold the Transfer Agent harmless from and against any and all claims (whether
with or without basis in fact or law), demands, expenses (including reasonable
attorneys' fees) and liabilities of any and every nature which the Transfer
Agent may sustain or incur or which may be asserted against the Transfer Agent
by any person by reason of or as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith in connection with its appointment or
in reliance upon any law, act, regulation or any interpretation of the same even
though such law, act or regulation may thereafter have been altered, changed,
amended or repealed.
(b) The Transfer Agent shall not settle any claim, demand,
expense or liability to which it may seek indemnity pursuant to
paragraph 6(a) above (each, an "Indemnifiable Claim") without the
express written consent of an Officer of the Fund. The Transfer
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Agent shall notify the Fund within fifteen (15) days of receipt of notification
of an Indemnifiable Claim, provided that the failure by the Transfer Agent to
furnish such notification shall not impair its right to seek indemnification
from the Fund unless the Fund is unable to adequately defend the Indemnifiable
Claim as a result of such failure, and further provided, that if as a result of
the Transfer Agent's failure to provide the Fund with timely notice of the
institution of litigation a judgment by default is entered, prior to seeking
indemnification from the Fund the Transfer Agent, at its own cost and expense,
shall open such judgment. The Fund shall have the right to defend any
Indemnifiable Claim at its own expense, provided that such defense shall be
conducted by counsel selected by the Fund and reasonably acceptable to the
Transfer Agent. The Transfer Agent may join in such defense at its own expense,
but to the extent that it shall so desire the Fund shall direct such defense.
The Fund shall not settle any Indemnifiable Claim without the express written
consent of the Transfer Agent if the Transfer Agent determines that such
settlement would have an adverse effect on the Transfer Agent beyond the scope
of this Agreement. In such event, the Fund and the Transfer Agent shall each be
responsible for their own defense at their own cost and expense, and such claim
shall not be deemed an Indemnifiable Claim hereunder. If the Fund shall fail or
refuse to defend an Indemnifiable Claim, the Transfer Agent may provide its own
defense at the cost and expense of the Fund. Anything in this Agreement to the
contrary
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notwithstanding, the Fund shall not indemnify the Transfer Agent against any
liability or expense arising out of the Transfer Agent's willful misfeasance,
bad faith, gross negligence or reckless disregard of its duties and obligations
under this Agreement. The Transfer Agent shall indemnify and hold the Fund
harmless from and against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of or attributable to any
action or failure or omission to act by the Transfer Agent as a result of the
Transfer Agent's lack of good faith, gross negligence or willful misfeasance.
7. The Transfer Agent shall not be liable to the Fund with respect to
any redemption draft on which the signature of the drawer is forged and which
the Fund's Custodian has advised the Transfer Agent to honor the redemption (but
nothing herein is meant to impose any duties upon the Fund's Custodian); nor
shall the Transfer Agent be liable for any material alteration or absence or
forgery of any endorsement, it being understood that the Transfer Agent's sole
responsibility with respect to inspecting redemption drafts is to use reasonable
care to verify the drawer's signature against signatures on file.
8. There shall be excluded from the consideration of whether the
Transfer Agent has breached this Agreement in any way, any period of time, and
only such period of time during which the Transfer Agent's performance is
materially affected, by reason of circumstances beyond its control
(collectively, "Causes"), including, without limitation, mechanical breakdowns
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of equipment (including any alternative power supply and operating systems
software), flood or catastrophe, acts of God, failures of transportation,
communication or power supply, strikes, lockouts, work stoppages or other
similar circumstances.
9. At any time the Transfer Agent may apply to an Officer of the Fund
for written instructions with respect to any matter arising in connection with
the Transfer Agent's duties and obligations under this Agreement, and the
Transfer Agent shall not be liable for any action taken or permitted by it in
good faith in accordance with such written instructions. Such application by the
Transfer Agent for written instructions from an Officer of the Fund may set
forth in writing any action proposed to be taken or omitted by the Transfer
Agent with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken. The Transfer Agent shall
not be liable for any action taken or omitted in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting any such action, the Transfer Agent has received
written instructions in response to such application specifying the action to be
taken or omitted. The Transfer Agent may consult counsel of the Fund, or upon
notice to the Fund, its own counsel, at the expense of the Fund 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 Fund or its own counsel.
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10. The Transfer Agent 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
Fund or the Transfer Agent.
If the Transfer Agent receives written notification from the
shareholder or broker dealer that the certificate issued was never received, and
such notification is made within thirty (30) days of the date of issuance, the
Transfer Agent may reissue the certificate without requiring a surety bond. The
Transfer Agent 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, the
Transfer Agent will reissue a certificate upon written authorization from an
Officer of the Fund.
11. In case of any requests or demands for the inspection of the
shareholder records of the Fund, the Transfer Agent will endeavor to notify the
Fund promptly and to secure instructions from an Officer as to such inspection.
The Transfer Agent reserves the right, however, to exhibit the shareholder
records to any person whenever it receives an opinion from its counsel that
there is a reasonable likelihood that the Transfer Agent
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will be held liable for the failure to exhibit the shareholder records to such
person; provided, however, that in connection with any such disclosure the
Transfer Agent shall promptly notify the Fund that such disclosure has been made
or is to be made.
12. At the request of an Officer of the Fund, the Transfer Agent will
address and mail such appropriate notices to shareholders as the Fund may
direct.
13. Notwithstanding any of the foregoing provisions of this Agreement,
the Transfer Agent shall be under no duty or obligation 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 Approved Institution
or of the Fund, as the case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a redemption of any
Shares, the propriety of the amount to be paid therefor, or the authority of the
Approved Institution or of the Fund, as the case may be, to request such
transfer or redemption;
(c) The legality of the declaration of any dividend by the Fund, or the
legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of Shares.
14. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement,
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and no covenant or obligation shall be implied in this Agreement
against the Transfer Agent.
15. Purchase and Prices of Services:
(a) The Manager will compensate the Transfer Agent for, and Transfer
Agent will provide, beginning on the execution date of this Agreement and
continuing until the termination of this Agreement as provided hereinafter, the
services set forth in Schedule I.
(b) The current unit prices for the services are set forth in Schedule
II (the "Schedule II Fees"). Effective as of January 1, 1997, once in each
calendar year, the Transfer Agent may elect to raise the Schedule II Fees upon
ninety (90) days prior notice to the Fund, all subject to the mutual agreement
of the parties hereto. Notwithstanding the annual right to raise the Schedule II
Fees, the Transfer Agent may increase prices due to changes in legal or
regulatory requirements subject to the approval of the Fund, which approval
shall not be unreasonably withheld.
16. Billing and Payment:
(a) The Transfer Agent shall xxxx the Manager monthly in arrears for
accounts maintained and Out-of-Pocket Expenses. The Transfer Agent may from time
to time request that the Fund advance estimated expenditures of an unusual
nature subject to reconciliation of actual expenses as soon as practicable
thereafter.
(b) The Manager shall pay the Transfer Agent in immediately
available funds at UMB Bank, n.a. in Kansas City, Missouri within
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thirty (30) days of the date of the xxxx. Any amounts due under this Agreement
which are not paid within said thirty (30) day period shall bear interest at the
rate of one and one-half percent (1 1/2%) per month from such date until paid in
full.
ARTICLE IX
TERMINATION
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 Manager, it shall be
accompanied by a copy of a resolution of the Board of Directors of the Manager,
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 the Transfer Agent, the Manager shall on or
before the termination date, deliver to the Transfer Agent a copy of a
resolution of its Board of Directors, certified by the Secretary or any
Assistant Secretary, designating a successor transfer agent or transfer agents.
In the absence of such designation by the Manager, the Fund 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 the
Transfer Agent shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement.
In the event this Agreement is terminated as provided herein, the
Transfer Agent, upon the written request of the
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Manager or the Fund, shall deliver the records of the Fund on electromagnetic
media to the Fund or its successor transfer agent. The Fund shall be responsible
to the Transfer Agent for the reasonable costs and expenses associated with the
preparation and delivery of such media.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees that prior to effecting any change in the Prospectus
which would increase or alter the duties and obligations of the Transfer Agent
hereunder, it shall advise the Transfer Agent of such proposed change at least
thirty (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 the Transfer
Agent thereto, which shall not be unreasonably withheld.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if addressed
to the Fund and mailed or delivered to it at:
BMA Tower
000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
or at such other place as the Fund may from time to time
designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Transfer Agent
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shall be sufficiently given if addressed to the Transfer Agent
and mailed or delivered to:
BMA Tower
000 Xxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
or at such other place as the Transfer Agent may from time to time designate in
writing.
4. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Manager shall be sufficiently given if
addressed to the Manager and mailed or delivered to:
UMB Bank, n.a.
Xxxxxx Xxxx, XX 00000
5. 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 and agreed to by the Fund.
6. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns.
7. This Agreement shall be governed by and construed in accordance with
the laws of the State of Missouri.
8. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
9. The provisions of this Agreement are intended to benefit only the
Manager, the Transfer Agent and the Fund, and no
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rights shall be granted to any other person by virtue of this
Agreement.
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 of the day and year
first above written.
UMB BANK, n.a.
By:
Name:
Title: President
[SEAL]
XXXXX & XXXXXX, INC.
By:
Name: Xxxxx X. Xxxxx
Title: President
[SEAL]
Agreed:
SCOUT CAPITAL PRESERVATION FUND, INC.
By:
Name:
Title:
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