EXHIBIT 9(C)
THE MICHIGAN HERITAGE FUND
TRANSFER AGENCY AND SHAREHOLDER SERVICES AGREEMENT
THIS TRANSFER AGENCY AND SHAREHOLDER SERVICES AGREEMENT (the
"Agreement") is made as of the 19th day of February, 1997, by and between
Declaration Fund (the "Trust"), a Pennsylvania Business Trust, with respect
to The Michigan Heritage Fund (the "Fund"), a separate series of the Trust
and Declaration Service Company (the "Transfer Agent"), a Pennsylvania
corporation.
WITNESSETH THAT:
WHEREAS, the Trust is registered as a Series of the Trust, an open-end,
diversified management investment company under the Investment Company Act
of 1940, as amended (the "1940 Act"), and its shares are registered under
the Securities Act of 1933, as amended (the "1933 Act"), and
WHEREAS, the Trust, a series investment company may issue its shares in
one or more series and
WHEREAS, Fund has been created as a separate series of the Trust and
the shares that will be issued by the Trust with respect to the Fund may be
issued in separate classes (hereafter the "Portfolio" or "Portfolios") and
WHEREAS, the Transfer Agent is registered as a transfer agent under
Section 17A of the Securities Exchange Act of 1934, as amended (the "1934
Act"); and
WHEREAS, the Trust on behalf of the Fund and the Transfer Agent desire
to enter into this Agreement pursuant to which the Transfer Agent will
provide transfer agent, shareholder servicing agent and dividend disbursing
agent services to the Portfolio of the Fund identified on Schedule A
hereto, as may be amended from time to time ("Schedule A"), on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust on behalf of the Fund and the
Transfer Agent, intending to be legally bound hereby, agree as follows:
1. APPOINTMENT OF TRANSFER AGENT. The Trust hereby appoints the
Transfer Agent as transfer agent, shareholder servicing agent and dividend
disbursing agent for all Shares of the Fund identified on Schedule A, and
the Transfer Agent hereby accepts such appointment under the terms of this
Agreement. The Transfer Agent shall issue, redeem and transfer shares,
provide related shareholder services, pay dividends and make other
distributions, all as set forth on Schedule B hereto, as it may be amended
from time to time ("Schedule B"), and in accordance with the terms of this
Agreement.
2. FUND DOCUMENTS. The Trust has provided the Administrator with
properly certified or authenticated copies of the following Trust related
documents in effect on the date hereof: the Trust's organizational
documents in effect on the date hereof: the Trust's organizational
documents, including the Trust Indenture and the By-Laws; the Trust's
Registration Statement on Form N-1A, including all exhibits thereto; the
Fund's current Prospectus and Statement of Additional Information; and
resolutions of the Trust's Board of Trustees authorizing the appointment of
the Transfer Agent and approving this Agreement. The Trust shall promptly
provide to the Transfer Agent copies, properly certified or authenticated,
of all amendments or supplements to the foregoing. The Trust shall provide
to the Transfer Agent copies of all other information which the Transfer
Agent may reasonably request for use in connection with the its duties,
including, but not limited to a certified copy of all Trust financial
statements relating to the Fund prepared by the Trust's independent public
accountants. The Trust shall also supply the Transfer Agent with such
number of the current Fund Prospectus, Statement of Additional Information
and shareholder reports as the Transfer Agent shall reasonable request.
3. ISSUANCE, REDEMPTION AND TRANSFER OF SHARES. The Transfer Agent
shall follow the procedures for the issuance, redemption and transfer of
Fund Shares set forth in this Section 3:
a. The Transfer Agent shall accept purchase orders and redemption
requests with respect to Fund Shares on each Fund business day in
accordance with the current Fund Prospectus and Statement of Additional
Information provided to the Transfer Agent by the Trust pursuant to
Section 2 hereof. The Trust shall provide the Transfer Agent with
sufficient advance notice to enable the Transfer Agent to effect any
changes in the purchase and redemption procedures set forth in the Fund
Prospectus and Statement of Additional Information; provided, however,
that in no event shall such advance notice be less than 30 days.
b. If applicable, the Transfer Agent shall also be sent, with
respect to each Fund business day, at such times as are agreed upon
from time to time by the Transfer Agent and the Trust, a computer tape
or electronic data transmission consistent in all respects with the
Transfer Agent's record format, as it may be amended from time to time,
which is reasonably believed by the Transfer Agent to be furnished by
or on behalf of any servicing agent approved by the Trust ("Servicing
Agent"). The Transfer Agent reserves the right to approve, in advance,
any Servicing Agent, which approval shall not be unreasonably withheld.
c. On each Fund business day, the Transfer Agent shall, as of the
time of the computation of 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, the
appropriate number of full and fractional Fund Shares based on the net
asset value per Fund Share specified in a written advice received with
respect to the Fund on such Fund business day. Notwithstanding the
foregoing, if a redemption specified in a computer tape or electronic
data transmission is for a dollar value of Fund Shares in excess of the
dollar value of Fund Shares in the specified account, the Transfer
Agent shall not effect such redemption, in whole or in part, and shall
within 24 hours orally advise the Servicing Agent which supplied such
tape of the discrepancy.
d. In connection with a reinvestment of a dividend or distribution
on Shares of the Fund, the Transfer Agent shall as of each Fund
business day, as specified in certified resolutions of the Fund's Board
of Trustees, issue Shares of the Fund based on the net asset value per
Share of such Fund specified in a written advice received from the
Trust with respect to the Fund on such Fund business day.
e. On each Fund business day, the Transfer Agent shall supply the
Trust with respect to the Fund, with a written statement specifying
with respect to the immediately preceding Fund business day: the total
number of Shares of the Fund (including fractional Shares) issued and
outstanding at the opening of business on such day; the total number of
Shares of the Fund sold on such day; the total number of Shares of the
Fund redeemed on such day; the total number of Shares of the Fund
issued, if any, pursuant to Section 3d hereof; and the total number of
Shares of the Fund issued and outstanding.
f. In connection with each purchase and each redemption of Shares,
the Transfer Agent shall send such written statements as are prescribed
by the Federal securities laws applicable to transfer agents or as
described in the Fund Prospectus and Statement of Additional
Information.
g. As of each Fund business day, the Transfer Agent shall furnish
the Trust with a written advice setting forth the number and dollar
amount of Shares to be redeemed on such Fund business day.
h. Upon receipt of a proper redemption request and moneys paid to
it by the Fund's custodian ("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 required by applicable law, (i) in the case of a redemption of
Shares pursuant to a redemption described in Section 3a hereof, make
payment in accordance with the redemption and payment procedures
described in the Fund's Prospectus and Statement of Additional
Information, and (ii) in the case of a redemption of Shares pursuant to
a computer tape or electronic data transmission described in Section 3b
hereof, make payment by directing a Federal funds wire order to the
account previously designated by the Servicing Agent specified in said
computer tape or electronic data transmission.
i. The Transfer Agent shall not be required to issue any Shares
after it has received from an officer of the Trust 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.
j. 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 in connection
with such issuance of any Fund Shares.
k. Except as otherwise provided in this Agreement, the Transfer
Agent shall transfer or redeem Shares upon presentation to the Transfer
Agent of 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. The Transfer Agent shall have the right to refuse to
transfer or redeem Shares until it is satisfied that the instructions
are valid and genuine, and for that purpose it will require, unless
otherwise instructed in writing by an authorized officer of the Trust,
a guarantee of signature by an "Eligible Guarantor Institution" as that
term is defined by Rule 17Ad-15 under the 1934 Act. The Transfer Agent
shall also have the right to refuse to transfer or redeem Shares until
it is satisfied that the requested transfer or redemption is legally
authorized. The Transfer Agent shall not be liable for its refusal to
make transfers or redemptions which the Transfer Agent, in its
reasonable 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
Commercial Code or other laws relating to the transfer of securities,
as the same may be amended from time to time.
l. If instructed by the Trust the Transfer Agent shall issue
certificates representing Shares ("Certificates"). The Trust shall
supply to the Transfer Agent a sufficient number of blank Fund Share
Certificates and, from time to time, shall supply additional blank
Certificates upon the request of the Transfer Agent. Such blank
Certificates shall be signed manually or by facsimile signature by the
duly authorized officers of the Trust, and shall bear the corporate
seal or facsimile thereof of the Trust. Notwithstanding the death,
resignation or removal of any officer of the Trust, such executed
Certificates bearing the manual or facsimile signature of such officers
shall remain valid and may be issued to shareholders until the Trust
provides to the Transfer Agent a written advice to the contrary. The
Transfer Agent may issue new Certificates to replace Certificates
represented to have been lost, destroyed or stolen upon receiving an
appropriate bond of indemnity satisfactory to the Transfer Agent, and
may issue new Certificates in exchange for and upon surrender of
mutilated Certificates. Except as otherwise provided in Section 3k
hereof, the Transfer Agent shall issue new Certificates to evidence
transfers of Shares upon surrender of outstanding Certificates in the
form deemed by the Transfer Agent to be properly endorsed for transfer
with all necessary endorser's signatures guaranteed by an Eligible
Guarantor Institution.
4. DIVIDENDS AND DISTRIBUTIONS. The Transfer Agent shall pay dividends
and make other distributions in accordance with the following procedures:
a. The Trust shall furnish to the Transfer Agent certified
resolutions of the Trust's Board of Trustees, either (i) setting forth
the date of the declaration of a dividend or distribution, the date of
accrual or payment, the record date as of which shareholders entitled
to payment or accrual shall be determined, the amount per Fund 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.
b. Upon the mail date specified in such resolutions, the Trust
shall, in the case of a cash dividend or distribution, cause the Fund's
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, specified in such resolution to the
shareholders of record on the record date. The Transfer Agent shall,
upon receipt of any such cash, make payment of such cash dividends or
distributions to the shareholders of record as 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 a Servicing Agent, as
the case may be. If the Transfer Agent does 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 Trust, withhold payment to all
shareholders of record as of the record date until sufficient cash is
provided to the Transfer Agent. In lieu of receiving from the
Custodian and paying the shareholders cash dividends or distributions,
the Transfer Agent may arrange for direct payment of cash dividends and
distributions to shareholders by the Custodian in accordance with such
procedures and controls as are mutually agreed upon from time to time
by and among the Trust, the Transfer Agent and the Custodian.
c. The Transfer Agent shall file such appropriate information
returns concerning the payment of dividends and distributions with the
proper Federal, state and local authorities as are required by law to
be filed by the Trust with respect to 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.
5. RECORDKEEPING AND OTHER INFORMATION. The Transfer Agent shall
create and maintain all necessary records in accordance with all applicable
laws, rules and regulations, including, but not limited to, records
identified on Schedule B hereto and required by Section 31(a) of the 1940
Act and the rules thereunder, as the same may be amended from time to time,
relating to the various services performed by it. All records shall be the
property of the Trust at all times and shall be available for inspection
and use by the Trust. Where applicable, such records shall be maintained
by the Transfer Agent for the periods and in the places required by Rule
31a-2 under the 1940 Act.
6. AUDIT, INSPECTION AND VISITATION. The Transfer Agent shall make
available during regular business hours all records and other data created
and maintained pursuant to this Agreement for reasonable audit and
inspection by the Trust or any person retained by the Trust. Upon
reasonable notice by the Fund, the Transfer Agent shall make available
during regular business hours its facilities and premises employed in
connection with its performance of this Agreement for reasonable visitation
by the Trust, or any person retained by the Trust.
7. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. Except as
otherwise provided herein, the Trust with respect to the Fund assumes full
responsibility for ensuring that the Fund complies with all applicable
requirements of the 1933 Act, the 1934 Act, the 1940 Act and rules
thereunder, and any other applicable laws, rules and regulations are
complied with.
8. COMPENSATION. The Trust shall pay to the Transfer Agent out of Fund
assets as compensation for services rendered hereunder the annual fee set
forth in Schedule A. The fee shall be calculated and accrued daily, and
paid monthly. The Trust shall also reimburse out of Fund assets the
Transfer Agent for its out-of-pocket expenses related to the performance of
its duties hereunder, including, without limitation, telecommunications
charges (such as toll-free lines and voice response system); postage and
delivery services; record retention costs (such as microfilm, microfiche
and off-site storage); reproduction charges; custom programming; and
traveling and lodging expenses incurred by officers and employees of the
Transfer Agent (subject to pre-approval of C. Xxxxx Xxxxxxxxx unless such
travel is required to perform Transfer Agent duties under this Agreement).
The Trust shall pay out of Fund assets the Transfer Agent's monthly
invoices for transfer agency fees and out-of-pocket expenses within 5 days
of the end of the month. If this Agreement becomes effective subsequent to
the first day of a month or terminates before the last day of a month, the
Trust shall pay out of Fund assets the Transfer Agent a transfer agency fee
that is prorated for that part of the month in which this Agreement is in
effect. All rights of compensation and reimbursement under this Agreement
for services performed by the Transfer Agent as of the termination date
shall survive the termination of this Agreement.
9. APPOINTMENT OF AGENTS. The Transfer Agent may at any time or times
in its discretion appoint (and may at any time remove) other parties as its
agent to carry out such provisions of this Agreement as the Transfer Agent
may from time to time direct; provided, however, that the appointment of
any such agent shall not relieve the Transfer Agent of any of its
responsibilities or liabilities hereunder.
10. USE OF TRANSFER AGENT'S NAME. The Trust shall not use the name of
the Transfer Agent or any of its affiliates in any Fund Prospectus,
Statement of Additional Information, sales literature or other material
relating to the Fund in a manner not approved prior thereto in writing by
the Transfer Agent; provided, however, that the Transfer Agent shall
approve all uses of its and its affiliates' names that merely refer in
accurate terms to their appointments hereunder or that are required by the
Securities and Exchange Commission (the "SEC") or a state securities
commission; and further provided, that in no event shall such approval be
unreasonably withheld.
11. USE OF FUND'S NAME. Neither the Trust, the Transfer Agent nor any
of its affiliates shall use the name of the Fund or material relating to
the Fund on any forms (including any checks, bank drafts or bank
statements) for other than internal use in a manner not approved prior
thereto by the Fund's Advisor, Xxxxxxxxx Asset Management, Inc.; provided,
however, that the Advisor shall approve all uses of the Fund's name that
merely refer in accurate terms to the appointment of the Transfer Agent
hereunder or that are required by the SEC or state securities commission;
and further provided, that in no event shall such approval be unreasonably
withheld.
12. LIABILITY OF TRANSFER AGENT. The Transfer Agent's liability shall
be limited as follows:
a. The duties of the Transfer Agent shall be limited to those
expressly set forth herein, and no implied duties are assumed by or may
be asserted against the Transfer Agent hereunder.
b. The Transfer Agent shall not be liable for any error of
judgement or mistake of law or for any loss suffered by the Trust with
respect to the Fund in connection with the matters to which this
Agreement relates, except to the extent of a loss resulting from
willful misfeasance, bad faith, negligence or reckless disregard of its
obligations and duties under this Agreement.
c. The Transfer Agent may consult counsel to the Trust or the
Trust's independent public accountants or other experts with respect to
any matter arising in connection with the Transfer Agent's duties, and
the Transfer Agent shall not be liable for any action taken or omitted
by the Transfer Agent in good faith in reliance on the oral or written
advice of such counsel, accountants or other experts.
d. The Transfer Agent shall not be liable for any action taken or
omitted by the Transfer Agent in reliance on the oral or written
instruction, authorization, approval or information provided to the
Transfer Agent by any person reasonably believed by the Transfer Agent
to be authorized by the Trust to give such instruction, authorization,
approval or information.
e. Any person, even though also an officer, director, employee or
agent of the Transfer Agent or any of its affiliates, who may be or
become an officer or Trustee of the Trust, shall be deemed, when
rendering services on behalf of the Fund as such officer or Trustee to
be rendering such services to or acting solely for the Trust and not as
an officer, employee, director or agent or one under the control or
direction of the Transfer Agent or any of its affiliates, even though
paid by one of those entities.
f. The Transfer Agent shall not be liable or responsible for any
acts or omissions of any predecessor transfer agent or any other
persons having responsibility for matters to which this Agreement
relates prior to the effective date of this Agreement nor shall the
Transfer Agent be responsible for reviewing any such act or omissions.
g. The Transfer Agent shall not be liable for any loss suffered by
the Fund or its shareholders in the event that a computer tape or
electronic data transmission from a Servicing Agent may not be
processed by the Transfer Agent for any reason beyond the reasonable
control of the Transfer Agent, or if any of the information on such
tape or transmission is reasonably believed by the Transfer Agent to be
incorrect.
h. The Transfer Agent shall not be liable for any action taken or
omitted by the Transfer Agent in reliance upon an opinion of counsel
respecting the provisions of the Uniform Commercial Code or other laws
relating to the transfers of securities, as the same may be amended
from time to time.
i. The Transfer Agent shall not be liable for its refusal to
transfer or redeem Shares in accordance with Section 3k hereof.
j. The Transfer Agent shall not be liable for any improper
dividend payments or distributions made in reliance on certified
resolutions of the Trust's Board of Trustees. In addition, the
Transfer Agent shall not be liable for the determination of the rate or
form of dividends or distributions due or payable to the shareholders
as set forth in the certified resolutions. The Transfer Agent shall
not be liable for any loss to the Fund resulting from processing by the
Transfer Agent of a dividend or distribution based on incorrect
information provided in the certified resolutions, and the Trust shall
pay to the Transfer Agent out of Fund assets any and all costs, both
direct and out-of-pocket, incurred to remedy such error.
k. The Transfer Agent shall not be liable to the Trust with
respect to the Fund for any redemption drafts processed in accordance
with written redemption draft procedures established by the Transfer
Agent and the Trust; 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.
l. The Transfer Agent shall not be liable for permitting any
person to inspect shareholder records of the Fund, if it receives an
opinion from its counsel that there is a reasonable likelihood that the
Transfer Agent will be held liable for failure to permit access to such
shareholder records. The Transfer Agent shall promptly notify the
Trust that such disclosure has been made or is to be made.
m. The Transfer Agent shall be under no duty or obligation to
inquire into, and shall not be liable for: the legality of the issue or
sale of any Fund Shares, the sufficiency of the amount to be received
therefor, or the authority of a Servicing Agent or of the Trust, to
request such sale or issuance; 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 Servicing Agent or the Trust to
request such transfer or redemption; the legality of the declaration of
any dividend by the Trust, or the legality of the issue of any Shares
in payment of any stock dividends; or the legality of any
recapitalization or readjustment of Shares.
As used in this Section 12 (except Section 12e) and in Section 13, the
term "Transfer Agent" shall include officers, employees and other agents of
the Transfer Agent).
13. INDEMNIFICATION. The Trust shall indemnify and hold harmless the
Transfer Agent out of Fund assets against any and all liability, loss,
damage, claim and expense (including, without limitation, reasonable
attorneys' fees and disbursements and investigation expenses incident
thereto), arising directly or indirectly from any act or omission to act by
the Transfer Agent (i) in connection with the performance of its duties
under this Agreement or (ii) for which it is not liable pursuant to Section
12 of this Agreement. This indemnity shall apply to any liability and
expense arising under applicable securities laws. The Transfer Agent shall
not be entitled to indemnity hereunder for any liability or expense
resulting from the Transfer Agent's own willful misfeasance, bad faith,
negligence or reckless disregard of its duties and obligations under this
Agreement. The right to indemnity hereunder shall include the right to
advancement of defense expenses in the event of any pending or threatened
litigation; provided, however, that the Transfer Agent shall agree that any
advancement of expenses shall be returned to the Fund with interest at an
annual rate of prime plus one percent if it is ultimately determined by an
administrative or judicial tribunal that the expenses (and related
liability, if any) resulted form the Transfer Agent's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
The Transfer Agent shall give prompt written notice to the Trust of a
written assertion or claim of any threatened or pending legal proceeding
which may be subject to indemnity under this Section; provided, however,
that the Transfer Agent's failure to notify the Trust of such threatened or
pending legal proceeding shall not operate to relieve the Trust of any
liability arising hereunder. The Trust shall be entitled, if it so elects,
to assume the defense of any claim subject to this Indemnity and such
defense shall be conducted by counsel chosen by the Trust and satisfactory
to the Transfer Agent; provided, however, that if the defendants include
both the Transfer Agent and the Trust, and the Transfer Agent shall have
reasonably concluded that there may be one or more legal defenses available
to it which are different from or additional to those available to the
Trust ("conflict of interest"), the Trust shall not have the right to elect
to defend the claim on behalf of the Transfer Agent, and the Transfer Agent
shall have the right to select separate counsel to defend such claim on
behalf of the Transfer Agent. In the event that the Trust elects to assume
the defense of any claim pursuant to the preceding sentence and retains
counsel satisfactory to the Transfer Agent, the Transfer Agent shall bear
the fees and expenses of additional counsel retained by it, except for
reasonable investigation costs which shall be borne by the Trust. If the
Trust (i) does not elect to assume the defense of a claim, (ii) elects to
assume the defense of a claim but chooses counsel that is not satisfactory
to the Transfer Agent, or (iii) has no right to assume the defense of a
claim because of a conflict of interest, the Trust shall advance or
reimburse the Transfer Agent, at the election of the Transfer Agent, out of
Fund assets, the reasonable fees and expenses of any counsel retained by
the Transfer Agent, including reasonable investigation costs providing such
fees and expenses are reimbursable to the Transfer Agent according to the
terms of this Agreement.
14. SCOPE OF DUTIES. The Transfer Agent and the Trust shall regularly
consult with each other regarding the Transfer Agent's performance of its
obligations and its compensation under the foregoing provisions. In
connection therewith, the Trust shall submit to the Transfer Agent, at a
reasonable time in advance of filing with the SEC, copies of any amended or
supplemented Registration Statement of the Fund (including exhibits) under
the 1933 Act and the 1940 Act, and, at a reasonable time in advance of
their proposed use, copies of any amended or supplemented forms relating to
any plan, program or service offered with respect to the Fund. Any change
in such materials that would require any change in the Transfer Agent's
obligations under the foregoing provisions shall be subject to the Transfer
Agent's approval. In the event that a change in such documents or in the
procedures contained therein increases the cost or burden to the Transfer
Agent of performing its obligations hereunder, the Transfer Agent shall be
entitled to receive reasonable compensation therefor.
15. DURATION. This Agreement shall become effective on the date first
written above and shall continue in force for two years from that date (the
"Initial Term"). Thereafter, this Agreement shall continue in force from
year to year (each a "Successive Term"), provided continuance after the
Initial Term is approved at least annually by the vote of a majority of the
Trustees of the Trust.
16. TERMINATION. This Agreement shall terminate as follows:
a. This Agreement shall terminate automatically in the event of
its assignment, unless mutually agreed to by the parties hereto.
b. Either the Trust, the Fund or the Transfer Agent may terminate
this Agreement prior to the commencement of any Successive Term by
providing to the other party at least 90 days prior written notice of
such termination.
c. Any of the parties (the "terminating party") may immediately
terminate this Agreement during the Initial Term or any Successive Term
in the event of a material breach of this Agreement by one of the other
parties (the "breaching party"), provided that the terminating party
has given to the breaching party written notice of such breach and the
breaching party has not remedied such breach within 45 days after
receipt of such notice.
Upon the termination of this Agreement, the Trust shall pay to the
Transfer Agent out of Fund assets such compensation and out-of-pocket
expenses as may be payable for the period prior to the effective date of
such termination. In the event that the Trust designates a successor to
any of the Transfer Agent's obligations hereunder, the Transfer Agent
shall, at the expense and direction of the Fund, transfer to such successor
all relevant books, records and other data established or maintained by the
Transfer Agent under the foregoing provisions.
Sections 8, 10, 11, 12, 13, 16, 17, 21, 22, 23, 24, 25 and 26 shall
indefinitely survive any termination of this Agreement.
17. FORCE MAJEURE. The Transfer Agent shall not be liable for any
delays or errors in the performance of its obligations hereunder occurring
by reason of circumstances not reasonably foreseeable and beyond its
control, including but not limited to acts of civil or military authority,
national emergencies, work stoppages, fire, flood, catastrophe, acts of
God, insurrection, war, riot or failure of communication or power supply.
In the event of equipment breakdowns which are beyond the reasonable
control of the Transfer Agent and not primarily attributable to the failure
of the Transfer Agent to reasonably maintain or provide for the maintenance
of such equipment, the Transfer Agent shall, at no additional expense to
the Trust, take reasonable steps in good faith to minimize service
interruptions, but shall have no liability with respect thereto.
18. AMENDMENT. The terms of this Agreement shall not be waived,
altered, modified, amended or supplemented in any manner whatsoever except
by a written instrument signed by the Transfer Agent and the Trust.
19. NON-EXCLUSIVE SERVICES. The services of the Transfer Agent
rendered to the Trust on behalf of the Fund are not exclusive. The
Transfer Agent may render such services to any other investment company and
have other businesses and interests.
20. DEFINITIONS. As used in this Agreement, the terms "assignment"
and "interested person" shall have the respective meanings specified in the
1940 Act and rules enacted thereunder as now in effect or hereafter
amended.
21. CONFIDENTIALITY. The Transfer Agent and the Trust shall treat
confidentially and as proprietary information of the Fund all records and
other information relating to the Fund and prior, present or potential
shareholders and shall not use such records and information for any purpose
other than performance of its responsibilities and duties hereunder, except
as may be required by administrative or judicial tribunals or as requested
by the Advisor.
22. NOTICE. Any notices and other communications required or
permitted hereunder shall be in writing and shall be effective upon
delivery by hand or upon receipt if sent by certified or registered mail
(postage prepaid and return receipt requested) or by a nationally
recognized overnight courier service (appropriately marked for overnight
delivery) or upon transmission if sent by telex or facsimile (with request
for immediate confirmation of receipt in a manner customary for
communications of such respective type and with physical delivery of the
communication being made by one or the other means specified in this
Section 21 as promptly as practicable thereafter). Notices shall be
addressed as follows:
(b) if to the Trust:
Declaration Trust
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
ATTN: Xx. Xxxxxxx X. Xxxxx, Secretary
with a copy to:
Xxxxxxxxx Asset Management, Inc.
000 XXX Xxxxxx
Xxxx Xxxxxxx, XX 00000
ATTN: Mr. C. Xxxxx Xxxxxxxxx
(b) if to the Transfer Agent:
Declaration Services Company
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Mr. Xxxxxxx Xxxxx, President
or to such other respective addresses as the Trust or the Transfer
Agent shall designate by like notice, provided that notice of a change of
address shall be effective only upon receipt thereof.
23. SEVERABILITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
24. GOVERNING LAW. This Agreement shall be administered, construed
and enforced in accordance with the laws of the Commonwealth of
Pennsylvania to the extent that such laws are not preempted by the
provisions of any law of the United States heretofore or hereafter enacted,
as the same may be amended from time to time.
25. ENTIRE AGREEMENT. This Agreement (including the Exhibits attached
hereto) contains the entire agreement and understanding of the parties with
respect to the subject matter hereof and supersedes all prior written or
oral agreements and understandings with respect thereto.
26. MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction. This Agreement may be executed in
two counterparts, each of which taken together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
DECLARATION FUND with respect to
The Michigan Heritage Fund
/S/ Xxxxxxx X. Xxxxx
By: -------------------------------
Xxxxxxx X. Xxxxx, Secretary
DECLARATION SERVICE COMPANY
/S/ Xxxxxxx X. Xxxxx
By: ---------------------------
Xxxxxxx X. Xxxxx, President
SCHEDULE A
The Michigan Heritage Fund
Portfolio and Fee Schedule
Portfolios covered by Transfer Agency and Shareholder Services Agreement:
The Michigan Heritage Fund
Fees for Transfer Agent services on
behalf of the Portfolios:
System setup, development of statements, etc. $75.00/hour Inside personnel
$150.00/hour Outside personnel
Transfer Agent, Dividend Disbursing & $ 18 Annual per account
Shareholder Services
1st Year Minimum Fee $ 18,000
2nd Year Minimum Fee 21,000
3rd Year Minimum Fee 24,000
Plus standard out of pocket expenses including (but not limited to):
postage, courier, telephone line, travel (subject to pre-approval by C.
Xxxxx Xxxxxxxxx unless such travel is required to perform Transfer Agent
duties under this Agreement), statement and confirmation costs, Fund
specific costs related to Fund/SERV and Networking, printing, bank service
charges, wire charges, and other standard miscellaneous items.
SCHEDULE B
Transfer Agent, Shareholders Servicing Agent and
Dividend Disbursing Agent Services provided by Declaration Services Company
1. Examine and process new accounts, subsequent payments, liquidations,
exchanges, transfers, telephone transactions, check redemptions,
automatic withdrawals, and wire order trades.
2. Reinvest or pay dividends and make other distributions.
3. Answer investor and dealer telephone and/or written inquiries, except as
otherwise agreed by the Transfer Agent and the Fund.
4. Process and confirm address changes.
5. Process standard account record changes as required, i.e. Dividend
Codes, etc.
6. Microfilm and/or store source documents for transactions, such as
account applications and correspondence.
7. Perform backup withholding for those accounts in accordance with Federal
regulations.
8. Solicit missing taxpayer identification numbers.
9. Provide remote access inquiry to Fund records via Fund supplied hardware
(Fund responsible for connection line and monthly fee).
10. Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
a. Name and address, including zip code.
b. Balance of Shares.
c. Number of Shares, issuance date of each Share outstanding and
cancellation date of each Share no longer outstanding, if issued.
d. Balance of dollars available for redemption.
e. Dividend code (daily accrual, monthly reinvest, monthly cash or
quarterly cash).
f. Type of account code.
g. Establishment date indicating the date an account was opened,
carrying forward pre-conversion data as available.
h. Original establishment date for accounts opened by exchange.
i. W-9 withholding status and periodic reporting.
j. State of residence code.
k. Social security or taxpayer identification number, and indication of
certification.
l. Historical transactions on the account for the most recent 18
months, or other period as mutually agreed to from time to time.
m. Indication as to whether phone transaction can be accepted for this
account. Beneficial owner code, i.e. male, female, joint tenant,
etc.
11. Provide the following reports and statements:
a. Prepare daily journals for Fund reflecting all Shares and dollar
activity for the previous day.
b. Supply information monthly for Fund's preparation of Blue Sky
reporting.
c. Supply monthly purchase, redemption and liquidation information for
use in Fund's N-SAR report.
d. Provide monthly average daily balance reports for Fund.
e. Prepare and mail copies of summary statements to dealers and
investment advisors.
f. Mail transaction confirmation statements daily to investors.
g. Address and mail four periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably
specified by the Transfer Agent).
h. Mail periodic statement to investors.
i. Compute, prepare and furnish all necessary reports to governmental
authorities: Forms 1099R, 1099DIV, 1099B, 1042 and 1042S.
j. Enclose various marketing material as designated by the Fund in
statement mailings, i.e. monthly and quarterly statements (material
must be adaptable to mechanical equipment as reasonably specified by
the Transfer Agent).
12. Prepare and mail confirmation statements to dealers daily.
13. Prepare certified list of stockholders for proxy mailing.
