AMENDMENT TO THE TRANSFER AGENT SERVICING AGREEMENT
AMENDMENT
TO THE
THIS AMENDED AGREEMENT is made and
entered into as of this 16th day of December, 2003, by and between Brandywine Blue Fund, Inc., a
Maryland Corporation (the "Fund") and U.S. Bancorp Fund Services,
LLC, a Wisconsin limited liability company ("USBFS").
WHEREAS, the Fund 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
interest in separate series, with each such series representing interests in a
separate portfolio of securities and other assets;
WHEREAS, USBFS is, among other things,
in the business of administering transfer and dividend disbursing agent
functions for the benefit of its customers; and
WHEREAS, the Fund desires to retain
USBFS to provide transfer and dividend disbursing agent services to each series
of the Fund listed on Exhibit A hereto (as amended from time to time) (each
a “Fund”, collectively the “Funds”).
NOW, THEREFORE, in consideration of the
promises and mutual covenants 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:
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1.
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Appointment
of USBFS as Transfer Agent
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The
Fund hereby appoints USBFS as transfer agent of the Fund on the terms and
conditions set forth in this Agreement, and USBFS hereby accepts such
appointment and agrees to perform the services and duties set forth in
this Agreement.
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2.
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Services
and Duties of USBFS
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USBFS
shall perform all of the customary services of a transfer agent and
dividend disbursing agent for the Funds, and as relevant, agent in
connection with accumulation, open account or similar plans (including
without limitation any periodic investment plan or periodic withdrawal
program), including but not limited
to:
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A.
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Receive
and process all orders for the purchase, exchange, and/or redemption of
shares in accordance with Rule 22c-1 of the Investment Company Act of 1940
(“the 1940 Act”).
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B.
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Process
purchase orders with prompt delivery, where appropriate, of payment and
supporting documentation to the Fund’s custodian, and issue the
appropriate number of uncertificated shares with such uncertificated
shares being held in the appropriate shareholder
account.
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1
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C.
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Arrange
for issuance of shares obtained through transfers of funds from Fund
shareholders’ accounts at financial institutions and arrange for the
exchange of shares for shares of other eligible investment companies, when
permitted by the Fund’s current prospectus
(“Prospectus”).
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D.
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Process
redemption requests received in good order and, where relevant, deliver
appropriate documentation to the Fund's
custodian.
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E.
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Pay
monies upon receipt from the Fund's custodian, where relevant, in
accordance with the instructions of redeeming
shareholders.
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F.
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Process
transfers of shares in accordance with the shareholder's
instructions.
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G.
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Prepare
and transmit payments for dividends and distributions declared by the Fund
with respect to the Fund, after deducting any amount required to be
withheld by any applicable laws, rules and regulations and in accordance
with shareholder instructions.
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H.
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Make
changes to shareholder records, including, but not limited to, address
changes in plans (e.g., systematic withdrawal, automatic investment,
dividend reinvestment).
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I.
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Record
the issuance of shares of the Fund and maintain, pursuant to Rule
17A(d)-10(e) promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), a record of the total number of shares of
the Fund which are authorized, issued and
outstanding
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J.
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Prepare
shareholder meeting lists for
proxies.
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K.
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Prepare
and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions
for all shareholders.
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L.
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Provide
shareholder account information upon request and prepare and mail
confirmations and statements of account to shareholders for all purchases,
redemptions and other confirmable transactions as agreed upon with the
Fund.
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M.
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Mail
requests for shareholders’ certifications under penalties of perjury and
pay on a timely basis to the appropriate federal authorities any taxes to
be withheld on dividends and distributions paid by the Fund, all as
required by applicable federal tax laws and
regulations.
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2
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N.
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Provide
a Blue Sky system that will enable the Fund to monitor the total number of
shares of the Fund sold in each state. In addition, the Fund or
its agent, including USBFS, shall identify to USBFS in writing those
transactions and assets to be treated as exempt from the Blue Sky
reporting for each state. The responsibility of USBFS for the
Fund's Blue Sky state registration status is solely limited to the initial
compliance by the Fund and the reporting of such transactions to the Fund
or its agent.
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O.
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Answer
correspondence from shareholders, securities brokers and others relating
to USBFS’s duties hereunder and such other correspondence as may from time
to time be mutually agreed upon between USBFS and the
Fund.
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P.
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Reimburse
the Fund each month for all material losses resulting from “as of”
processing errors for which USBFS is responsible in accordance with the
“as of” processing guidelines set forth on Exhibit
B hereto.
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3.
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Representations
of USBFS
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USBFS
represents and warrants to the Fund that:
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A.
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It
is a limited liability corporation duly organized, existing and in good
standing under the laws of
Wisconsin;
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B.
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It
is a registered transfer agent under the Exchange
Act.
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C.
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It
is duly qualified to carry on its business in the State of
Wisconsin;
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D.
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It
is empowered under applicable laws and by its charter and bylaws to enter
into and perform this Agreement;
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E.
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All
requisite corporate proceedings have been taken to authorize it to enter
and perform this Agreement;
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F.
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It
has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement; and
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G.
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It
will comply with all applicable requirements of the Securities Act of
1933, as amended, and the Exchange Act, the 1940 Act, and any laws, rules,
and regulations of governmental authorities having
jurisdiction.
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4.
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Representations
of the Fund
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The Fund
represents and warrants to USBFS that:
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A.
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The
Fund is an open-end investment company under the 1940
Act;
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B.
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The
Fund is a corporation organized, existing, and in good standing under the
laws of Maryland;
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C.
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The
Fund is empowered under applicable laws and by its Corporate Charter and
Bylaws to enter into and perform this
Agreement;
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D.
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All
necessary proceedings required by the Corporate Charter have been taken to
authorize it to enter into and perform this
Agreement;
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E.
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The
Fund will comply with all applicable requirements of the Securities Act,
the Exchange Act, the 1940 Act, and any laws, rules and regulations of
governmental authorities having jurisdiction;
and
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F.
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A
registration statement under the Securities Act will be made effective and
will remain effective, and appropriate state securities law filings have
been made and will continue to be made, with respect to all shares of the
Fund being offered for sale.
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5.
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Compensation
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USBFS
shall be compensated for providing the services set forth in this
Agreement in accordance with the fee schedule set forth on Exhibit C
hereto (as amended from time to time). The Fund shall pay all
fees and reimbursable expenses within thirty (30) calendar days following
receipt of the billing notice, except for any fee or expense subject to a
good faith dispute. The Fund shall notify USBFS in writing
within thirty (30) calendar days following receipt of each invoice if the
Fund is disputing any amounts in good faith. The Fund shall
settle such disputed amounts within ten (10) calendar days of the day on
which the parties agree to the amount to be paid. With the
exception of any fee or expense the Fund is disputing in good faith as set
forth above, unpaid invoices shall accrue a finance charge of one and
one-half percent (1½%) per month, after the due
date. Notwithstanding anything to the contrary, amounts owed by
the Fund to USBFS shall only be paid out of assets and property of the
particular Fund involved.
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6.
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Indemnification;
Limitation of Liability
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A.
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USBFS
shall exercise reasonable care in the performance of its duties under this
Agreement. USBFS shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Fund in connection with
matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies
beyond USBFS’s control, except a loss arising out of or relating to
USBFS’s refusal or failure to comply with the terms of this Agreement or
from bad faith, negligence, or willful misconduct on its part in the
performance of its duties under this Agreement. Notwithstanding
any other provision of this Agreement, if USBFS has exercised reasonable
care in the performance of its duties under this Agreement, the Fund shall
indemnify and hold harmless USBFS from and against any and all claims,
demands, losses, expenses, and liabilities of any and every nature
(including reasonable attorneys' fees) which USBFS may sustain or incur or
which may be asserted against USBFS by any person arising out of any
action taken or omitted to be taken by it in performing the services
hereunder, except for any and all claims, demands, losses, expenses, and
liabilities arising out of or relating to USBFS’s refusal or failure to
comply with the terms of this Agreement or from bad faith, negligence or
from willful misconduct on its part in performance of its duties under
this Agreement, (i) in accordance with the foregoing standards, or (ii) in
reliance upon any written or oral instruction provided to USBFS by any
duly authorized officer of the Fund, such duly authorized officer to be
included in a list of authorized officers furnished to USBFS and as
amended from time to time in writing by resolution of the Board of
Trustees of the Fund (the “Board of Trustees” or
“Trustees”).
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USBFS
shall indemnify and hold the Fund harmless from and against any and all
claims, demands, losses, expenses, and liabilities of any and every nature
(including reasonable attorneys' fees) that the Fund may sustain or incur
or that may be asserted against the Fund by any person arising out of any
action taken or omitted to be taken by USBFS as a result of USBFS’s
refusal or failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
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In
the event of a mechanical breakdown or failure of communication or power
supplies beyond its control, USBFS shall take all reasonable steps to
minimize service interruptions for any period that such interruption
continues beyond USBFS’s control. USBFS will make every
reasonable effort to restore any lost or damaged data and correct any
errors resulting from such a breakdown at the expense of
USBFS. USBFS agrees that it shall, at all times, have
reasonable contingency plans with appropriate parties, making reasonable
provision for emergency use of electrical data processing equipment to the
extent appropriate equipment is available. Representatives of
the Fund shall be entitled to inspect USBFS’s premises and operating
capabilities at any time during regular business hours of USBFS, upon
reasonable notice to USBFS.
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Notwithstanding
the above, USBFS reserves the right to reprocess and correct
administrative errors at its own
expense.
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B.
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In
order that the indemnification provisions contained in this section shall
apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully
and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnitee will use all
reasonable care to notify the indemnitor promptly concerning any situation
that presents or appears likely to present the probability of a claim for
indemnification. The indemnitor shall have the option to defend
the indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it
will so notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no
case confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor’s prior written consent.
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7.
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Proprietary
and Confidential Information
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USBFS
agrees on behalf of itself and its directors, officers, and employees to
treat confidentially and as proprietary information of the Fund all
records and other information relative to the Fund and prior, present, or
potential shareholders (and clients of said shareholders) and not to use
such records and information for any purpose other than the performance of
its responsibilities and duties hereunder, except after prior notification
to and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where USBFS may be exposed
to civil or criminal contempt proceedings for failure to comply after
being requested to divulge such information by duly constituted
authorities, or when so requested by the
Fund.
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Further,
USBFS will adhere to the privacy policies adopted by the Fund pursuant to
Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to
time (the “Act”). Notwithstanding the foregoing, USBFS will not
share any nonpublic personal information concerning any of the Fund’s
shareholders with any third party unless specifically directed by the Fund
or allowed under one of the exceptions noted under the
Act.
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8.
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Anti-Money
Laundering Program
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The Fund
acknowledges that it has had an opportunity to review, consider and comment upon
the procedures provided by USBFS describing various tools designed to promote
the detection and reporting of potential money laundering activity by monitoring
certain aspects of shareholder activity (the “Monitoring Procedures”) as well as
written procedures for verifying a customer’s identity (the “Customer
Identification Procedures”), together referred to as the “Procedures,” and the
Fund has determined that the Procedures, as part of the Fund’s overall
anti-money laundering program, are reasonably designed to prevent the Fund from
being used for money laundering or the financing of terrorist activities and to
achieve compliance with the applicable provision of the Bank Secrecy Act and the
implementing regulations thereunder.
Based on
this determination, the Fund hereby instructs and directs USBFS to implement the
Procedures on the Fund’s behalf, as such may be amended or revised from time to
time.
6
It is
contemplated that these Procedures will be amended from time to time by the
parties as additional regulations are adopted and/or regulatory guidance is
provided relating to the Fund’s anti-money laundering
responsibilities.
USBFS
agrees to provide to the Fund:
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(a)
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Prompt
written notification of any transaction or combination of transactions
that USBFS believes, based on the Procedures, evidence money laundering
activity in connection with the Fund or any shareholder of the
Fund;
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(b)
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Prompt
written notification of any customer(s) that USBFS reasonably believes,
based upon the Procedures, to be engaged in money laundering activity,
provided that the Fund agrees not to communicate this information to the
customer;
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(c)
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Any
reports received by USBFS from any government agency or applicable
industry self-regulatory organization pertaining to USBFS’s anti-money
laundering monitoring on behalf of the
Fund;
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(d)
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Prompt
written notification of any action taken in response to anti-money
laundering violations as described in (a), (b) or (c);
and
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(e)
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An
annual report of its monitoring and customer identification activities on
behalf of the Fund. USBFS shall provide such other reports on
the monitoring and customer identification activities conducted at the
direction of the Fund as may be agreed to from time to time by USBFS and
the Fund.
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The Fund
hereby directs, and USBFS acknowledges, that USBFS shall (i) permit federal
regulators access to such information and records maintained by USBFS and
relating to USBFS’s implementation of the Procedures on behalf of the Fund, as
they may request, and (ii) permit such federal regulators to inspect USBFS’s
implementation of the Procedures on behalf of the Fund.
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9.
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Term
of Agreement; Amendment
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This
Agreement shall become effective as of the date first written above and
will continue in effect for a period of three years. Subsequent
to the initial three-year term, this Agreement may be terminated by either
party upon giving ninety (90) days prior written notice to the other party
or such shorter period as is mutually agreed upon by the
parties. However, this Agreement may be amended by mutual
written consent of the parties.
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7
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10.
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Duties
in the Event of Termination
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In
the event that, in connection with termination, a successor to any of
USBFS’s duties or responsibilities hereunder is designated by the Fund by
written notice to USBFS, USBFS will promptly, upon such termination and at
the expense of the Fund, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by USBFS
under this Agreement in a form reasonably acceptable to the Fund (if such
form differs from the form in which USBFS has maintained, the Fund shall
pay any expenses associated with transferring the data to such form), and
will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from USBFS’s personnel in the
establishment of books, records, and other data by such
successor.
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11.
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Records
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USBFS
shall keep records relating to the services to be performed hereunder in
the form and manner, and for such period, as it may deem advisable and is
agreeable to the Fund, but not inconsistent with the rules and regulations
of appropriate government authorities, in particular, Section 31 of the
1940 Act and the rules thereunder. USBFS agrees that all such
records prepared or maintained by USBFS relating to the services to be
performed by USBFS hereunder are the property of the Fund and will be
preserved, maintained, and made available in accordance with such
applicable sections and rules of the 1940 Act and will be promptly
surrendered to the Fund on and in accordance with its
request. Further, federal examiners shall have access to
information and records relating to anti-money laundering activities
performed by USBFS hereunder and USBFS consents to any inspection
authorized by law or regulation in connection
thereof.
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12.
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Governing
Law
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This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To
the extent that the applicable laws of the State of Wisconsin, or any of
the provisions herein, conflict with the applicable provisions of the 1940
Act, the latter shall control, and nothing herein shall be construed in a
manner inconsistent with the 1940 Act or any rule or order of the
Securities and Exchange Commission
thereunder.
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13.
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Data
Necessary to Perform Services
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The Fund
or its agent, which may be USBFS, shall furnish to USBFS the data necessary to
perform the services described herein at such times and in such form as mutually
agreed upon. If USBFS is also acting in another capacity for the
Fund, nothing herein shall be deemed to relieve USBFS of any of its obligations
in such capacity.
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14.
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Assignment
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This
Agreement may not be assigned by either party without the prior written consent
of the other party.
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15.
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Notices
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Any
notice required or permitted to be given by either party to the other shall be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three (3) days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
Notice to
USBFS shall be sent to:
U.S. Bancorp Fund Services,
LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
and notice to the Fund shall be sent to:
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
a duly authorized officer on one or more counterparts as of the date first above
written.
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BRANDYWINE
BLUE FUND, INC.
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U.S.
BANCORP FUND SERVICES, LLC
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By:
/s/ Xxxxx Xxxxxxxx
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By:
/s/ Xxxx Xxxx
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Title:
Vice President and Secretary
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Title:
Vice President
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9
Exhibit
A
Amendment
to the
Fund
Names
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Name of Fund
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Date
Added
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Brandywine
Blue Fund, Inc.
Brandywine
Advisors Fund
10
Exhibit
B
Amendment
to the
As
Of Processing Policy
USBFS will reimburse each Fund for any
net material loss that may exist on the Fund’s books and for which USBFS is
responsible, at the end of each calendar month. “Net Material Loss”
shall be defined as any remaining loss, after netting losses against any gains,
which impacts a Fund’s net asset value per share by more than ½
cent. Gains and losses will be reflected on the Fund’s daily share
sheet, and the Fund will be reimbursed on a monthly basis for the amount
necessary to bring the net material loss to a level not more than
$.0045.
USBFS will reimburse each Fund
immediately, to a level under the materiality threshold, for any material loss
which impacts a Fund’s net asset value per share by more that 1
cent.
USBFS will notify the advisor to
the Fund on the daily share sheet of any losses for which the advisor may be
held accountable.
11
Exhibit
C
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TRANSFER AGENT & SHAREHOLDER SERVICES
BRANDYWINE FUNDS
ANNUAL FEE SCHEDULE
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Service
Charges to the Fund*
Shareholder
Account Fee (Subject to Minimum)
No-Load -
$14.00
/account
Networked
Accts - $11.00
/account
Closed
Accounts - $14.00
/account
Annual
Minimum
$22,000
Brandywine Fund
$10,000
Brandywine Blue, Brandywine Advisors
Activity
Charges
Telephone
Calls - $1.00
/call
E-mail
Services
$200 /month
administration
$3.00 /e-mail
received
Daily
Valuation Trades - $6.75
/trade
Lost
Shareholder Search - $5.00
/search
XXX
Xxxx Xxxxxxx (xxxx Xxxxx 0 Accounts)
0-999
accounts - $500.00/year
1,000-4,999
accounts - $1,000/year
5,000-9,999
accounts - $2,500/year
10,000+
accounts - $5000/year
AML
New Account Service - $1.00/new
domestic accounts, $2.00/new
foreign account and $0.25/verification
ACH/EFT
Shareholder Services:
$125.00
/month/fund group
$ .50
/ACH item, setup, change
$5.00
/correction, reversal
Out-of-pocket
Costs - Including but not limited to:
Telephone
toll-free lines, call transfers, etc.
Mailing,
sorting and postage
Stationery,
envelopes
Programming,
special reports
Insurance,
record retention, microfilm/fiche
Proxies,
proxy services
ACH
fees, NSCC charges
All
other out-of-pocket expenses
Fees
are billed monthly.
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Service
Charges to Investors
Qualified
Plan Fees (Billed to Investors)
$15.00
/qualified plan acct (Cap at $30.00/SSN)
$15.00
/Xxxxxxxxx ESA acct (Cap at $30.00/SSN)
$25.00 /transfer
to successor trustee
$25.00
/participant distribution (Excluding SWPs)
$25.00 /refund
of excess contribution
Additional
Shareholder Fees (Billed to Investors)
$15.00 /outgoing
wire transfer
$15.00
/overnight delivery
$25.00 /return
check or ACH
$25.00 /stop
payment
$ 5.00
/research request per account (Cap at $25.00/request)
(For requested items of the second calendar year [or previous] to the
request)
Technology
Charges
1. Fund
Group Setup (first cusip) - $2,000 /fund
group
2. Fund
Setup - $1,500 /cusip
(beyond first cusip)
3. Development/Programming
- $150
/hour
4. File
Transmissions – subject to requirements
5. Selects
- $300 per
select
6. Extraordinary
services – charged as incurred
Conversion
of Records (if necessary) – Estimate to be provided.
Custom
processing, re-processing
All
other extraordinary services
Vision – Inquiry Only
Broker
ID / Month $5.00 /
ID
Per
Inquiry $0.05 /
Inquiry
Fan Web
Monthly
Fee $625.00
Inquiry
Fee $0.10
ea.
Prospect
Services
Fulfillment
Fees $100.00 /
month
Per
Minute
$0.99 /
min
Fed
Wireing Fee for Advisory
$30.00 /
Month
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12
