TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into this fourth day of April, 2009, by
and between Embarcadero Funds, Inc. (the "Company"), a Maryland corporation
having its principal place of business at 0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, XX, 00000 and Mutual Shareholder Services, LLC, a Delaware Limited
Liability Company ("MSS").
RECITALS:
A. The Company is an open-end management investment company registered
with the United States Securities and Exchange Commission under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
B. The Company desires to appoint MSS as its transfer agent and dividend
disbursing and redemption agent, and MSS desires to accept such appointment.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereby agree as follows:
1. DUTIES OF MSS.
1.01 Subject to the terms and conditions set forth in this Agreement, the
Company hereby employs and appoints MSS to act, and MSS agrees to act, as
transfer agent for the Company's authorized and issued shares of beneficial
interest of each class of each portfolio of the Company (the "Shares"), and as
dividend disbursing and redemption agent for the Company.
1.02 MSS agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Company and MSS, MSS shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation therefore
to the Custodian of the Company authorized by the Board of Directors
of the Company (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate documentation
therefore to the Custodian;
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(iv) At the appropriate time as and when it receives monies
paid to it by the Custodian with respect to any redemption, pay over
or cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Company;
(vii) Maintain records of account for and advise the Company
and its Shareholders as to the foregoing;
(viii) Maintain an Anti-Money Laundering Program and Customer
Identification Program in compliance with the USA PATRIOT Act of
2001 and regulation thereunder, and provide to the Company a copy of
MSS's Anti-Money Laundering Program, any amendments thereto, and
such appropriate certifications and reports as the Company may
request;
(ix) Perform such services as are necessary to implement and
enforce the Company's Anti-Money Laundering Program;
(x) Provide necessary and reasonable access to properly
authorized federal examiners so that they can obtain all necessary
information and records relating to the AML Program and to inspect
MSS's implementation and operation of the AML Program; and
(xi) Record the issuance of shares of the Company and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number of
shares of the Company which are authorized, based upon data provided
to it by the Company, and issued and outstanding. MSS shall also
provide the Company on a regular basis with the total number of
shares which are authorized, issued and outstanding and shall have
no obligation, when recording the issuance of shares, to monitor the
issuance of such shares or to take cognizance of any laws relating
to the issue or sale of such shares, which functions shall be the
sole responsibility of the Company.
(b) In addition, MSS shall perform all of the customary services of
a transfer agent, dividend disbursing and redemption agent, including but
not limited to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, receiving and tabulating
proxies, mailing Shareholder reports and prospectuses to current
Shareholders, withholding taxes for U.S. resident and non-resident alien
accounts, preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing and
mailing confirmation forms and statements of account to Shareholders for
all purchases and redemptions of Shares and other confirmable transactions
in Shareholder accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information and provide a
system and reports which will enable the Company to monitor the total
number of Shares sold in each State.
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Procedures applicable to certain of these services may be established from
time to time by agreement between the Company and MSS.
2. FEES AND EXPENSES
2.01 In consideration of the services to be performed by MSS pursuant to
this Agreement, the Company agrees to pay MSS the fees set forth in the fee
schedule attached hereto as Exhibit "A".
2.02 In addition to the fee paid under Section 2.01 above, the Company
agrees to reimburse MSS for out-of-pocket expenses or advances incurred by MSS
in connection with the performance of its obligations under this Agreement. In
addition, any other expenses incurred by MSS at the request or with the consent
of the Company will be reimbursed by the Company.
2.03 The Company agrees to pay all fees and reimbursable expenses within
five days following the receipt of the respective billing notice. Postage for
mailing of dividends, proxies, Company reports and other mailings to all
shareholder accounts shall be advanced to MSS by the Company at least seven days
prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF MSS
MSS represents and warrants to the Company that:
3.01 It is a Limited Liability Company duly organized and existing and in
good standing under the laws of the State of Delaware.
3.02 It is duly qualified to carry on its business in the State of Ohio.
3.03 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
3.06 MSS is duly registered as a transfer agent under the Securities Act
of 1934 and shall continue to be registered throughout the remainder of this
Agreement.
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to MSS that:
4.01 It is a corporation duly organized and existing and in good standing
under the laws of the State of Delaware.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of Incorporation
have been taken to authorize it to enter into and perform this Agreement.
4.04 It is an open-end and diversified management investment company
registered under the 0000 Xxx.
4.05 A registration statement under the Securities Act of 1933 is
currently or will become effective and will remain effective, and appropriate
state securities law filings as required, have been or will be made and will
continue to be made, with respect to all Shares of the Company being offered for
sale.
5. INDEMNIFICATION
5.01 MSS shall not be responsible for, and the Company shall indemnify and
hold MSS harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable
to:
(a) All actions of MSS or its agents or subcontractors required to
be taken pursuant to this Agreement, provided that such actions are taken
in good faith and without negligence, bad faith, willful misconduct or
reckless disregard of its duties hereunder.
(b) The Company's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Company's lack of good faith,
negligence, willful misconduct or reckless disregard of its duties
hereunder, or which arise out of the breach of any representation or
warranty of the Company hereunder.
(c) The reliance on or use by MSS or its agents or subcontractors of
information, records and documents which (i) are received by MSS or its
agents or subcontractors and furnished to it by or on behalf of the
Company, and (ii) have been prepared and/or maintained by the Company or
any other person or firm on behalf of the Company.
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(d) The reliance on, or the carrying out by MSS or its agents or
subcontractors of, any written instructions or requests of duly authorized
officers or agents of the Company.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or
in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such
Shares in such state.
5.02 MSS shall indemnify and hold the Company 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 MSS as a result of MSS's lack of good faith, gross or
ordinary negligence, willful misconduct or reckless disregard of its duties
hereunder.
5.03 At any time MSS may apply to any duly authorized officer or agent of
the Company for instructions, and may consult with legal counsel with respect to
any matter arising in connection with the services to be performed by MSS under
this Agreement, and MSS and its agents or subcontractors shall not be liable and
shall be indemnified by the Company for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. MSS, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Company, reasonably believed
to be genuine and to have been signed by a duly authorized person or persons, or
upon any instruction, information, data, records or documents provided MSS or
its agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by a duly authorized officer or agent of the
Company. MSS, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of the Company,
and the proper countersignature of any former transfer agent or registrar, or of
a co-transfer agent or co-registrar.
5.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
5.05 Upon the assertion of a claim for which either party may be required
to indemnify the other, the party of seeking indemnification shall promptly
notify the other party of such assertion, and shall keep the other party advised
with respect to all developments concerning such claim. The party who may be
required to indemnify shall have the option to participate with the party
seeking indemnification the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
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6. COVENANTS OF THE COMPANY AND MSS
6.01 The Company shall promptly furnish to MSS a certified copy of the
resolution of the Board of Directors of the Company authorizing the appointment
of MSS and the execution and delivery of this Agreement. Periodically
thereafter, the Company shall promptly furnish to MSS a copy of the resolution
or other Board action designating the person or persons who are duly authorized
to provide instructions to MSS under this Agreement.
6.02 MSS hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Company for safekeeping of stock certificates,
check forms and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such certificates, forms and
devices.
6.03 MSS shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the 1940 Act, as amended, and the Rules thereunder,
MSS agrees that all such records prepared or maintained by MSS relating to the
services to be performed by MSS hereunder are the property of the Company and
will be preserved, maintained and made available in accordance with such Section
and Rules, and will be surrendered promptly to the Company on and in accordance
with its request.
6.04 MSS and the Company agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Company, MSS will endeavor to notify the Company and
to secure instructions from an authorized officer of the Company as to such
inspection. MSS reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by its counsel that it may be held liable
for the failure to exhibit the Shareholder records to such person, and shall
promptly notify the Company of any unusual request to inspect or copy the
shareholder records of the Company or the receipt of any other unusual request
to inspect, copy or produce the records of the Company.
7. TERM OF AGREEMENT
7.01 This Agreement shall become effective as of the date hereof and shall
remain in force for a period of three years. This Agreement will automatically
renew for successive annual terms unless one party provides written notice to
the other party 90 days prior to the annual renewal date that the agreement will
not be renewed. Each party to this Agreement has the option to terminate this
Agreement during the initial three year term and any renewal period, without
penalty, upon 90 days prior written notice.
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7.02 Should the Company exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be paid by
the Company. Additionally, MSS reserves the right to charge for any other
reasonable expenses associated with such termination.
8. MISCELLANEOUS
8.01 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other party. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns.
8.02 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the Board
of Directors of the Company.
8.03 The provisions of this Agreement shall be construed and interpreted
in accordance with the laws of the State of Ohio as at the time in effect and
the applicable provisions of the 1940 Act. To the extent that the applicable law
of the State of Ohio, or any of the provisions here in, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
8.04 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
8.05 All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when received or when sent by telex or
facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
To the Company: To MSS:
Embarcadero Funds Mutual Shareholder Services, LLC
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxx Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Embarcadero Funds: Mutual Shareholder Services, LLC
By: /s/ Xxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Its: President Its: President
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