FORM OF TRANSFER AGENCY AGREEMENT
AGREEMENT made this __ day of ________, 2005, between XXXXXX XXXXXX SELECT
FUND, INC. (the "Company"), a Maryland corporation, having its principal place
of business at ______________________, and BISYS FUND SERVICES OHIO, INC.
("BISYS"), a Delaware corporation having its principal place of business at 0000
Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, BISYS and Leader Mutual Funds ("Leader") entered into a Transfer
Agency Agreement dated April 1, 2004 (the "Leader Agreement"), whereby BISYS
agreed to perform transfer agency services for Leader, which has continued in
effect through the date hereof;
WHEREAS, the investment portfolio of Leader, listed on Schedule A, (each, a
"Fund") is expected to be transferred to the Company upon approval of such
transaction (the "Consolidation") by the shareholders of Leader and the Company
(collectively, the "Shareholders");
WHEREAS, the Company desires that BISYS continue to perform transfer agency
services for the Funds;
WHEREAS, BISYS is willing to continue to perform such services on the terms
and conditions set forth in this Agreement; and
WHEREAS, BISYS and Company wish to enter into an Agreement in order to set
forth the terms under which BISYS will continue to perform the transfer agency
services set forth herein for the Funds.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
the Company and BISYS hereby agree as follows:
1. Services
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BISYS shall perform for the Company the transfer agent services set forth
in Schedule B hereto. BISYS also agrees to perform for the Company such special
services incidental to the performance of the services enumerated herein as
agreed to by the parties from time to time. BISYS shall perform such additional
services as are provided on an amendment to Schedule B hereof, in consideration
of such fees as the parties hereto may agree.
BISYS may, at its expense and with prior notice to the Company, subcontract
with any entity or person concerning the provision of transfer agency services
contemplated hereunder (a "Sub-Transfer Agent"); provided, however, that BISYS
shall not be relieved of any of its duties and obligations under this Agreement
by the appointment of any such Sub- Transfer Agent and provided further, that
BISYS shall be responsible, to the extent provided in Section 5 hereof, for all
acts of such subcontractor as if such acts were its own.
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2. Fees
----
The Company shall pay BISYS for the services to be provided by BISYS under
this Agreement in accordance with, and in the manner set forth in, Schedule C
hereto. Fees for any additional services to be provided by BISYS pursuant to an
amendment to Schedule B hereto shall be subject to mutual agreement at the time
such amendment to Schedule B is proposed.
3. Reimbursement of Expenses and Miscellaneous Service Fees
--------------------------------------------------------
(a) In addition to paying BISYS the fees set forth in Schedule C, the
Company agrees to reimburse BISYS for BISYS's reasonable out-of-pocket expenses
(for which no xxxx-up for BISYS overhead expenses shall be included) in
providing services hereunder, including without limitation, the following:
(i) All freight and other delivery and bonding charges incurred by BISYS
in delivering materials to and from the Company and in delivering
all materials to shareholders;
(ii) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by BISYS in communication
with the Company, the Company's investment adviser or custodian,
dealers, shareholders or others as required for BISYS to perform the
services to be provided hereunder;
(iii) Sales taxes (including any paid on behalf of the Company);
(iv) The cost of microfilm or microfiche or other electronic retention of
records or other materials;
(v) Courier (delivery expenses);
(vi) Check processing fees;
(vii) Records retention / storage fees;
(viii) Fulfillment;
(ix) XXX custody and other related fees;
(x) NSCC and related costs;
(xi) Costs of statements and confirmations;
(xii) Costs of tax forms;
(xiii) Costs of all other shareholder correspondence;
(xiv) Post office boxes; and
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(xv) Any expenses BISYS shall incur at the written direction of an
officer of the Company thereunto duly authorized.
(b) In addition, BISYS shall be entitled to receive the following fees:
(i) A fee for managing and overseeing the report, print and mail
functions performed by BISYS's third-party vendors, not to exceed
$.04 per page for statements and $.03 per page for confirmations;
fees for programming in connection with creating or changing the
forms of statements, billed at the rate of $150 per hour; and costs
for postage, couriers, stock computer paper, computer disks,
statements, labels, envelopes, checks, reports, letters, tax forms,
proxies, notices or other forms of printed material (including the
costs of preparing and printing all printed materials) which shall
be required for the performance of the services to be provided
hereunder;
(ii) System development fees, billed at the rate of $150 per hour, as
approved by the Company, and all systems-related expenses, agreed in
advance, associated with the provision of special reports and
services pursuant to Item 8 of Schedule D attached hereto;
(iii) Fees for development of custom interfaces, billed at a mutually
agreed upon rate;
(iv) Ad hoc reporting fees, billed at a mutually agreed upon rate;
(v) Interactive Voice Response System fees, charged according to BISYS's
standard rate schedule, and applicable to the level of service
(e.g., basic, transaction, premium) selected;
(vi) Expenses associated with the tracking of "as-of" trades, billed at
the rate of $50 per hour, as approved by the Company; and
(vii) Expenses associated with BISYS's anti-fraud procedures and the
performance of delegated services under the written anti-money
laundering program ("AML Program") adopted by the Company.
4. Term
----
(a) This Agreement shall become effective as of the effective date of
the Consolidation, and shall continue in effect until the third anniversary of
such date (the "Initial Term"), provided that if the Consolidation is not
approved by the Shareholders this agreement shall not become effective and shall
be null and void. After the Initial Term, unless otherwise terminated as
provided herein, this Agreement shall be renewed automatically for successive
one year periods ("Rollover Periods"). This Agreement may be terminated only (i)
by provision of a notice of non-renewal in the manner set forth below, (ii) by
mutual agreement of the parties or (iii) for "cause," as defined below, upon the
provision of sixty (60) days advance written notice by the party alleging cause.
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Written notice of non-renewal must be provided at least one hundred and eighty
(180) days prior to the end of the Initial Term or any Rollover Period, as the
case may be.
For purposes of this Agreement, "cause" shall mean (a) a material breach of
this Agreement that has not been remedied for thirty (30) days following written
notice of such breach from the non-breaching party; (b) a final, unappealable
judicial, regulatory or administrative ruling or order in which the party to be
terminated has been found guilty of criminal or unethical behavior in the
conduct of its business; or (c) financial difficulties on the part of the party
to be terminated which are evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent or acquiescence in, a voluntary
or involuntary case under Title 11 of the United States Code, as from time to
time is in effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors. BISYS shall not terminate
this Agreement pursuant to clause (a) above based solely upon the Company's
failure to pay an amount to BISYS which is the subject of a good faith dispute,
if (i) the Company is attempting in good faith to resolve such dispute with as
much expediency as may be possible under the circumstances, and (ii) the Company
continues to perform its obligations hereunder in all other material respects
(including paying all fees and expenses not subject to reasonable dispute
hereunder).
(b) Notwithstanding the foregoing, following any such termination, in
the event that BISYS in fact continues to perform any one or more of the
services contemplated by this Agreement (or any Schedule or exhibit hereto) with
the consent of the Company, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Fees and out-of-pocket expenses incurred by BISYS but unpaid
by the Company upon such termination shall be immediately due and payable upon
and notwithstanding such termination. BISYS shall be entitled to collect from
the Company, in addition to the fees and disbursements provided by Schedule C
and Sections 2 and 3 hereof, the amount of all of BISYS's cash disbursements in
connection with BISYS's activities in effecting such termination, including
without limitation, the delivery to the Company and/or its distributor or
investment adviser and/or other parties of the Company's property, records,
instruments and documents.
(c) Subject to Section 4(d), if, for any reason other than (i)
non-renewal, (ii) mutual agreement of the parties or (iii) "cause" for
termination of BISYS hereunder, BISYS's services are terminated hereunder, BISYS
is replaced as transfer agent, or if a third party is added to perform all or a
part of the services provided by BISYS under this Agreement (excluding any Sub-
Transfer Agent appointed as provided in Section 1 hereof), then the Company
shall make a one-time cash payment, in consideration of the fee structure and
services to be provided under this Agreement, and not as a penalty, to BISYS
equal to the balance that would be due BISYS for its services hereunder during
(x) the next twelve (12) months or (y) if less than twelve (12), the number of
months remaining in the then-current term of this Agreement, assuming for
purposes of the calculation of the one-time payment that the fees that would be
earned by BISYS for each month shall be based upon the average number of
shareholder accounts and fees payable to BISYS monthly during the twelve (12)
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months prior to the date that services terminate, BISYS is replaced or a third
party is added.
The parties further acknowledge and agree that, in the event services are
terminated, BISYS is replaced, or a third party is added, as set forth above,
(i) a determination of actual damages incurred by BISYS would be extremely
difficult, and (ii) the liquidated damages provision contained herein is
intended to adequately compensate BISYS for damages incurred and is not intended
to constitute any form of penalty.
(d) The parties acknowledge that the Company intends to reorganize its
investment portfolios, including merging certain Funds, in June of 2005 (the
"Merger"), subject to Shareholder approval. The parties agree that this
Agreement may be terminated upon the effective date of the Merger without
application of the liquidated damages provision contained in Section 4(c) above
provided the terms of that certain letter agreement between Xxxxxx Asset
Management, Inc., BISYS Fund Services Ohio, Inc., and BISYS Fund Services
Limited Partnership, dated October 18, 2004, (the "Xxxxxx Letter Agreement") are
otherwise fulfilled.
5. Standard of Care; Uncontrollable Events; Limitation of Liability
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BISYS shall use reasonable professional diligence to ensure the accuracy of
all services performed under this Agreement, but shall not be liable to the
Company for any action taken or omitted by BISYS in the absence of bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties. The duties of BISYS shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against BISYS
hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Company's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS's reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, acts of terrorism and communication lines
failures that are not the fault of either party. In the event of force majeure,
computer or other equipment failures or other events beyond its reasonable
control, BISYS shall follow applicable procedures in its disaster recovery and
business continuity plan and use all commercially reasonable efforts to minimize
any service interruption.
BISYS shall provide the Company, at such times as the Company may
reasonably require, copies of reports rendered by independent public accountants
on the internal controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement.
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NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES
WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6. Legal Advice
------------
BISYS shall notify the Company at any time BISYS believes that it is in
need of the advice of counsel (other than counsel in the regular employ of BISYS
or any affiliated companies) with regard to BISYS's responsibilities and duties
pursuant to this Agreement. After so notifying the Company, BISYS, at its
discretion, shall be entitled to seek, receive and act upon advice of legal
counsel of its choosing, such advice to be at the expense of the Company unless
relating to a matter involving BISYS's willful misfeasance, bad faith, gross
negligence or reckless disregard of BISYS's responsibilities and duties
hereunder, and BISYS shall in no event be liable to the Company or any Fund or
any shareholder or beneficial owner of the Company for any action reasonably
taken pursuant to such advice.
7. Instructions / Certain Procedures, etc.
---------------------------------------
Whenever BISYS is requested or authorized to take action hereunder by the
Company or, when concerning an account in a Fund, pursuant to instructions from
the relevant shareholder or a properly authorized agent of such shareholder
("shareholder's agent"), BISYS shall be entitled to rely upon any certificate,
letter or other instrument or communication (including electronic mail),
reasonably believed by BISYS to be genuine and to have been properly made,
signed or authorized by an officer or other authorized agent of the Company or,
if applicable, by the shareholder or shareholder's agent, and shall be entitled
to receive as conclusive proof of any fact or matter required to be ascertained
by it hereunder a certificate signed by an officer of the Company or any other
person authorized by the Company's Board of Directors (hereafter referred to as
the "Board") or by the shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely conclusively
upon the terms of the Prospectuses and Statement of Additional Information of
the Company relating to the relevant Funds to the extent that such services are
described therein unless BISYS receives written instructions to the contrary in
a timely manner from the Company.
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The parties hereto may amend any procedures adopted, approved or set forth
herein by written agreement as may be appropriate or practical under the
circumstances, and BISYS may conclusively assume that any special procedure
which has been approved by an executive officer of the Company (other than an
officer or employee of BISYS) does not conflict with or violate any requirements
of the Company's Articles of Incorporation, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
The Company acknowledges receipt of a copy of BISYS's policy related to the
acceptance of trades for prior day processing (the "BISYS As-Of Trading
Policy"). BISYS may amend the BISYS As-of Trading Policy from time to time in
its sole discretion. A copy of any such amendments shall be delivered to the
Company upon request. BISYS may apply the BISYS As-Of Trading Policy whenever
applicable, unless BISYS agrees in writing to process trades according to such
other as-of trading policy as may be adopted by the Company and furnished to
BISYS by the Company.
The Company acknowledges and agrees that deviations from BISYS's written
transfer agent compliance procedures may involve a substantial risk of loss. In
the event an authorized representative of the Company requests that an exception
be made from any written compliance or transfer agency procedures adopted by
BISYS, or any requirements of the AML Program, BISYS may in its sole discretion
determine whether to permit such exception. In the event BISYS determines to
permit such exception, the same shall become effective when set forth in a
written instrument executed by an authorized representative of the Company
(other than an employee of BISYS) and delivered to BISYS (an "Exception");
provided that an Exception concerning the requirements of the Company's AML
Program shall be authorized by the Company's AML Compliance Officer (as defined
in Section 14). An Exception shall be deemed to remain effective until the
relevant instrument expires according to its terms (or if no expiration date is
stated, until BISYS receives written notice from the Company that such
instrument has been terminated and the Exception is no longer in effect).
Notwithstanding any provision in this Agreement that expressly or by implication
provides to the contrary, as long as BISYS acts in good faith, BISYS shall have
no liability for any loss, liability, expenses or damages to the Company
resulting from the Exception, and the Company shall indemnify BISYS and hold
BISYS harmless from any loss, liability, expenses (including reasonable
attorneys fees) and damages resulting to BISYS therefrom.
8. Indemnification
---------------
The Company agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character arising out of or in any way relating to BISYS's
actions taken or omissions with respect to the performance of services under
this Agreement or based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to BISYS by the Company, the
investment adviser, fund accountant, administrator, or custodian thereof;
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provided that this indemnification shall not apply to actions or omissions of
BISYS in cases of its own bad faith, willful misfeasance, negligence or reckless
disregard by it of its obligations and duties.
BISYS shall indemnify, defend, and hold the Company harmless from and
against any and all claims, actions and suits and all losses, damages, costs,
charges, reasonable counsel fees and disbursements, payments, expenses and
liabilities (including reasonable investigation expenses) resulting directly and
proximately from BISYS's willful misfeasance, bad faith or negligence in the
performance of its duties or by reason of reckless disregard of its obligations
and duties hereunder.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited. In order that the indemnification provisions contained herein shall
apply, however, it is understood that if in any case a party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to identify and notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying party,
but failure to do so in good faith shall not affect the rights hereunder except
to the extent the indemnifying party is materially prejudiced thereby. As to any
matter eligible for indemnification, an indemnified Party shall act reasonably
and in accordance with good faith business judgment and shall not effect any
settlement or confess judgment without the consent of the indemnifying Party,
which consent shall not be withheld or delayed unreasonably.
The indemnifying party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by it and reasonably satisfactory to the indemnified party, whose
approval shall not be unreasonably withheld. In the event that the indemnifying
party elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by it. An indemnifying party shall not effect any settlement without
the consent of the indemnified party (which shall not be withheld or delayed
unreasonably by the indemnified party) unless such settlement imposes no
liability, responsibility or other obligation upon the indemnified party and
relieves it of all fault. If the indemnifying party does not elect to assume the
defense of suit, it will reimburse the indemnified party for the reasonable fees
and expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
9. Record Retention and Confidentiality
------------------------------------
BISYS shall keep and maintain on behalf of the Company all books and
records which the Company or BISYS is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
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limitation Rules 31a-1 and 31a-2 under the Investment Company Act of 1940, as
amended (the "1940 Act"), relating to the maintenance of books and records in
connection with the services to be provided hereunder. BISYS further agrees that
all such books and records shall be the property of the Company and to make such
books and records available for inspection at reasonable times by the Company,
the AML Compliance Officer, by the Securities and Exchange Commission (the
"Commission") or other regulators having jurisdiction over the Company. Records
may be edited or redacted to maintain confidentiality of materials related to
other clients of BISYS.
BISYS shall otherwise keep confidential all books and records relating to
the Company and its shareholders, except when (i) disclosure is required by law,
(ii) BISYS is advised by counsel that it may incur liability for failure to make
a disclosure, (iii) BISYS is requested to divulge such information by
duly-constituted authorities or court process, or (iv) BISYS is requested to
make a disclosure by a shareholder or shareholder's agent with respect to
information concerning an account as to which such shareholder has either a
legal or beneficial interest or when requested by the Company or the dealer of
record as to such account. BISYS shall provide the Company with reasonable
advance notice of disclosure pursuant to items (i) - (iii) of the previous
sentence, to the extent reasonably practicable. The provisions of this Section 9
are subject to the provisions of Section 21.
10. Reports
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BISYS shall furnish to the Company and to its properly-authorized auditors,
investment advisers, examiners, distributors, dealers, underwriters, salesmen,
insurance companies and others designated by the Company in writing, such
reports at such times as are prescribed in Schedule D attached hereto, or as
subsequently agreed upon by the parties pursuant to an amendment to Schedule D.
The Company agrees to examine each such report or copy promptly and will report
or cause to be reported any errors or discrepancies therein. In the event that
errors or discrepancies, except such errors and discrepancies as may not
reasonably be expected to be discovered by the recipient after conducting a
diligent examination, are not so reported promptly, a report will for all
purposes be accepted by and binding upon the Company and any other recipient,
and BISYS shall have no liability for errors or discrepancies therein and shall
have no further responsibility with respect to such report except to perform
reasonable corrections of such errors and discrepancies within a reasonable time
after requested to do so by the Company.
11. Rights of Ownership
-------------------
All computer programs and procedures employed or developed by or on behalf
of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data except such
computer programs and procedures are the exclusive property of the Company and
all such other records and data shall be furnished to the Company in appropriate
form as soon as practicable after termination of this Agreement for any reason.
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12. Return of Records
-----------------
BISYS may at its option at any time, and shall promptly upon the Company's
demand, turn over to the Company and cease to retain BISYS's files, records and
documents created and maintained by BISYS pursuant to this Agreement which are
no longer needed by BISYS in the performance of its services or for its legal
protection. If not so turned over to the Company, such documents and records
shall be retained by BISYS for six years from the year of creation. At the end
of such six-year period, such records and documents shall be turned over to the
Company unless the Company authorizes in writing the destruction of such records
and documents.
13. Bank Accounts
-------------
BISYS is hereby granted such power and authority as may be necessary to
establish one or more bank accounts for the Company with such bank or banks as
are selected or approved by the Company, as may be necessary or appropriate from
time to time in connection with the services required to be performed hereunder.
The Company shall be deemed to be the customer of such Bank or Banks for all
purposes in connection with such accounts. To the extent that the performance of
such services hereunder shall require BISYS to disburse amounts from such
accounts in payment of dividends, redemption proceeds or for other purposes
hereunder, the Company shall provide such bank or banks with all instructions
and authorizations necessary for BISYS to effect such disbursements.
14. Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to BISYS that: (a) as of the close of
business on the Effective Date, each Fund which is in existence as of the
Effective Date has authorized unlimited shares, (b) by virtue of its Declaration
of Company, shares of each Fund which are redeemed by the Company may be sold by
the Company from its treasury, and (c) this Agreement has been duly authorized
by the Company and, when executed and delivered by the Company, will constitute
a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties.
The Company also represents and warrants that (a) the Company has adopted
the written AML Program that has been submitted to BISYS pursuant to Section 17,
and has appointed an officer of the Company as the Company's anti-money
laundering compliance officer ("AML Compliance Officer"), (b) the AML Program
and the designation of the AML Officer have been approved by the Board, (c) the
delegation of certain services thereunder to BISYS, as provided in Section 21,
has been approved by the Board, and (d) the Company will submit any material
amendments to the AML Program to BISYS for BISYS's review and consent prior to
adoption in accordance with Section 19.
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15. Representations and Warranties of BISYS
---------------------------------------
BISYS represents and warrants that: (a) BISYS has been in, and shall
continue to be in compliance in all material respects with all provisions of
law, including Section 17A(c) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), required in connection with the performance of its duties
under this Agreement; (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other data of the
Company and BISYS's records, data, equipment, facilities and other property used
in the performance of its obligations hereunder are adequate and that it will
make such changes therein from time to time as are reasonably required for the
secure performance of its obligations hereunder; and (c) this Agreement has been
duly authorized by BISYS and, when executed and delivered by BISYS, will
constitute a legal, valid and binding obligation of BISYS, enforceable against
BISYS in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
right and remedies of creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
16. Insurance
---------
BISYS shall maintain a fidelity bond covering larceny and embezzlement and
an insurance policy with respect to directors and officers errors and omissions
coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Company, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Company should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. BISYS shall notify the Company of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Company should the total outstanding claims made by BISYS under its insurance
coverage materially impair, or threaten to materially impair, the adequacy of
its coverage.
17. Information to be Furnished by the Company and Funds
----------------------------------------------------
The Company will furnish to BISYS the following, as amended and current as
of the Effective Date:
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(a) A copy of the Declaration of Company of the Company and of any
amendments thereto, certified by the proper official of the state in which such
Declaration has been filed.
(b) Certified copies of the following documents:
(i) The Company's Bylaws and any amendments thereto;
(ii) Resolutions of the Directors covering (A) approval of this Agreement
and authorization of a specified officer of the Company to execute
and deliver this Agreement and authorization for specified officers
of the Company to instruct BISYS hereunder, and (B) authorization of
BISYS to act as Transfer Agent for the Company.
(c) A list of all officers of the Company, with the Company's AML
Compliance Officer included among the officers therein, and any other persons
(who may be associated with the Company or its investment advisor), together
with specimen signatures of those officers and other persons who (except as
otherwise provided herein to the contrary) shall be authorized to instruct BISYS
in all matters.
(d) Two copies of the following (if such documents are employed by the
Company):
(i) Prospectuses and Statement of Additional Information;
(ii) Distribution Agreement; and
(iii) All other forms commonly used by the Company or its Distributor with
regard to their relationships and transactions with shareholders of
the Funds.
(e) A certificate as to shares of beneficial interest of the Company
authorized, issued, and outstanding as of the Effective Date and as to receipt
of full consideration by the Company for all shares outstanding, such statement
to be certified by the Treasurer of the Company.
(f) A copy of the Company's written AML Program, including related
Policies and Procedures.
18. Information Furnished by BISYS
------------------------------
BISYS will furnish to the Company evidence of the following upon request:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this Agreement;
(b) Authorization of BISYS to act as Transfer Agent for the Company.
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(c) The current BISYS "As-of" Trading Policy.
19. Amendments to Documents
-----------------------
The Company shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 17 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Company agrees
that no amendments will be made to the Prospectuses or Statement of Additional
Information of the Company, or the AML Program, which might have the effect of
changing the procedures employed by BISYS in providing the services agreed to
hereunder or which amendment might affect the duties of BISYS hereunder unless
the Company first obtains BISYS's approval of such amendments or changes, which
approval shall not be withheld unreasonably.
20. Reliance on Amendments
----------------------
BISYS may rely on any amendments to or changes in any of the documents and
other items to be provided by the Company pursuant to Sections 17 and 19 of this
Agreement and, subject to the provisions of Section 5 hereof, the Company hereby
indemnifies and holds harmless BISYS from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character which may
result from actions or omissions on the part of BISYS in reasonable reliance
upon such amendments and/or changes. Although BISYS is authorized to rely on the
above-mentioned amendments to and changes in the documents and other items to be
provided pursuant to Sections 17 and 19 hereof, in the event the same relate to
services provided by BISYS hereunder, BISYS shall have no liability for failure
to comply with or take any action in conformity with such amendments or changes
unless the Company first obtains BISYS's written consent to and approval of such
amendments or changes.
21. Compliance with Laws
--------------------
Except for the obligations of BISYS set forth in Section 9 hereof, the
Company assumes full responsibility for the preparation, contents, and
distribution of each prospectus of the Company as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, and any other laws, rules and regulations of governmental
authorities having jurisdiction. BISYS shall have no obligation to take
cognizance of any laws relating to the sale of the Company's shares. The Company
represents and warrants that all shares of the Company that are offered to the
public are covered by an effective registration statement under the 1933 Act and
the 1940 Act.
The Company acknowledges that it is a financial institution subject to the
law entitled Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of 2001 and
the Bank Secrecy Act (collectively, the "AML Acts") and shall comply with the
AML Acts and applicable regulations adopted thereunder (collectively, the
"Applicable AML Laws") in all relevant respects, subject to the delegation of
certain responsibilities to BISYS, as provided in the next paragraph below.
13
The Company hereby delegates to BISYS the performance, on behalf of the
Company, of the anti-money laundering services set forth under Item 6 of
Schedule B (the "AML Services") as concerns the shareholder accounts maintained
by BISYS pursuant to this Agreement (including direct accounts; accounts
maintained through FUND/SERV and Networking, to the extent provided below, and
omnibus accounts, to the extent provided below). BISYS agrees to the foregoing
delegation and agrees to perform such services in accordance with the Company's
AML Program. In connection therewith, BISYS agrees to maintain policies and
procedures, and related internal controls, that are consistent with the
Company's AML Program and the requirement that the Company employ procedures
reasonably designed to achieve compliance with the Applicable AML Laws. BISYS's
obligations under this delegation shall be subject to Sections 19 and 20, which
require that the AML Program and any material amendments thereto be submitted to
BISYS for its review and consent prior to adoption.
The Company agrees and acknowledges that, notwithstanding the delegation
provided for in the foregoing paragraph, the Company maintains full
responsibility for ensuring that its AML Program is, and shall continue to be,
reasonably designed to ensure compliance with the Applicable AML Laws, in light
of the particular business of the Company, taking into account factors such as
its size, location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Company also acknowledges
that the performance of the AML Services involves the exercise of discretion
which in some circumstances may result in consequences to the Company and its
shareholders (such as in the case of the reporting of suspicious activities and
the freezing of shareholder accounts). In this regard, (i) under circumstances
in which the AML Program authorizes the taking of certain actions, BISYS is
granted the discretion to take any such action as may be authorized under the
AML Program, and consultation with Company shall not be required in connection
therewith unless specifically required under the AML Program, and (ii) the
Company instructs BISYS that it may avail the Company of any safe harbor from
civil liability that may be available under Applicable AML Laws for making a
disclosure or filing a report thereunder.
As concerns Networking Level III accounts and omnibus accounts, the AML
Services performed by BISYS are subject to a more limited scope, as discussed in
the Release entitled "Customer Identification Programs for Mutual Funds", issued
on May 9, 2003, concerning the final rule of the Department of the Treasury (31
CFR 103) and the SEC (17 CFR 270), and in subsequent guidance, issued jointly by
Treasury and the SEC on August 11, 2003, entitled "Question and Answer Regarding
the Mutual Fund Customer Identification Program Rule" (31 CFR 103.131).
14
22. Notices
-------
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Company, to
_________________________________________________, Attn: ________________; with
a copy to the Company at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attn:
_____________; and if to BISYS, to it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000; Attn: President, or at such other address as such party may from time to
time specify in writing to the other party pursuant to this Section.
23. Assignment
----------
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Section 23 shall not limit or in any way affect BISYS's right
to appoint a Sub- Transfer Agent pursuant to Section 1 hereof. This Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns.
24. Activities of BISYS
-------------------
The services of BISYS rendered to the Company hereunder are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses and interests. It is understood that Directors, officers,
employees and Shareholders of the Company are or may be or become interested in
BISYS, as officers, employees or otherwise and that partners, officers and
employees of BISYS and its counsel are or may be or become similarly interested
in the Company, and that BISYS may be or become interested in the Company as a
Shareholder or otherwise
25. Privacy
-------
Nonpublic personal financial information relating to consumers or customers
of the Company provided by, or at the direction of the Company to BISYS, or
collected or retained by BISYS in the course of performing its duties as
transfer agent, shall be considered confidential information. BISYS shall not
give, sell or in any way transfer such confidential information to any person or
entity, other than affiliates of BISYS except at the direction of the Company or
as required or permitted by law (including Applicable AML Laws). BISYS
represents, warrants and agrees that it has in place and will maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of records and information relating to consumers or customers of the
Company. The Company represents to BISYS that it has adopted a Statement of its
privacy policies and practices as required by the Commission's Regulation S-P
and agrees to provide BISYS with a copy of that statement annually.
15
26. Miscellaneous
-------------
(a) Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and subject to the
approval of the Consolidation by the Shareholders supersedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the Leader Agreement, provided
that if the Consolidation is not approved by the Shareholders, the Leader
Agreement shall remain in full force and shall be unaffected by this Agreement.
This Agreement shall not supersede or otherwise affect any provisions of the
Xxxxxx Letter Agreement.
(c) This Agreement may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute one and the
same agreement.
(d) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXXX XXXXXX SELECT FUND, INC.
By:
----------------------------------------------
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:
----------------------------------------------
Name:
Title:
16
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUND
AND BISYS FUND SERVICES OHIO, INC.
Date: _______________, 2005
FUNDS
-----
LEADER Short-Term Bond Fund Regions Xxxxxx Xxxxxx Select LEADER Short-
Term Bond
17
SCHEDULE B
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUND
AND BISYS FUND SERVICES OHIO, INC.
Date: _____________, 2005
SERVICES
--------
1. Shareholder Transactions
------------------------
(a) Process shareholder purchase and redemption orders.
(b) Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions.
(c) Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
(d) Issue periodic statements for shareholders.
(e) Process transfers and exchanges.
(f) Process dividend payments, including the purchase of new shares,
through dividend reimbursement.
2. Shareholder Information Services
--------------------------------
(a) Make information available to shareholder servicing unit and other
remote access units regarding trade date, share price, current
holdings, yields, and dividend information.
(b) Produce detailed history of transactions through duplicate or special
order statements upon request.
(c) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders.
(d) Provide toll-free lines for direct shareholder use and customer
liaison staff with on-line inquiry capability.
3. Compliance Reporting
--------------------
(a) Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. and the States in
which the Fund is registered.
(b) Prepare and distribute appropriate Internal Revenue Service forms for
corresponding Fund and shareholder income and capital gains.
18
(c) Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
--------------------------------------
(a) Provide reports for tracking rights of accumulation and purchases made
under a Letter of Intent.
(b) Account for separation of shareholder investments from transaction
sale charges for purchase of Fund shares.
(c) Calculate fees due under 12b-1 plans for distribution and marketing
expenses.
(d) Track sales and commission statistics by dealer and provide for
payment of commissions on direct shareholder purchases in a load Fund.
5. Shareholder Account Maintenance
-------------------------------
(a) Maintain all shareholder records for each account in the Company.
(b) Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
(c) Record shareholder account information changes.
(d) Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
------------------------------
(a) Verify shareholder identity upon opening new accounts.
(b) Monitor, identify and report shareholder transactions and identify and
report suspicious activities that are required to be so identified and
reported, and provide other required reports to the Securities and
Exchange Commission, the U.S. Treasury Department, the Internal
Revenue Service or each agency's designated agent, in each case
consistent with the Company's AML Program and applicable law.
(c) Place holds on transactions in shareholder accounts or freeze assets
in shareholder accounts, as provided in the Company's AML Program and
applicable law.
(d) Create documentation to provide a basis for law enforcement
authorities to trace illicit funds.
(e) Maintain all records or other documentation related to shareholder
accounts and transactions therein that are required to be prepared and
maintained pursuant to the Company's AML Program, and make the same
available for inspection by (i) the Company's AML Compliance Officer,
(ii) any auditor of the Company's AML Program or related procedures,
policies or controls that has been designated by the Company in
writing, or (iii) regulatory or law enforcement authorities, and
19
otherwise make said records or other documents available at the
direction of the Company's AML Compliance Officer.
(f) Arrange for periodic reviews, at least annually, to be performed by
internal auditors or other auditors chosen by BISYS concerning the
BISYS operations related to the AML Services.
(g) Perform such other related services as are required by the AML
Program.
20
SCHEDULE C
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUND
AND BISYS FUND SERVICES OHIO, INC.
Date: _______________, 2005
TRANSFER AGENCY FEES
--------------------
Annual per CUSIP fee: $18,000
Per CUSIP fees are currently waived for the Tax-Exempt Money Market Fund; $9,000
of the per CUSIP fees are currently waived for Investor class B Shares of all
variable NAV funds. The foregoing waivers will continue until March 31, 2006,
and will then be decreased by 50% for remainder of Initial Term and any Rollover
Term
Annual per account fees:
Open accounts $22.50
Closed accounts $ 5.00
AML SERVICING FEES
------------------
Annual program servicing $1,425.00
(to be billed in equal monthly amounts of $118.75)
Systems costs:
Early Warning annual fee $575.00
Early Warning per record cost $0.22
(for new account* registration
review - does not apply to Network
Level III accounts)
Equifax - per request cost $5.00
*CHANGES TO ACCOUNT REGISTRATION INFORMATION OR OTHER ACCOUNT-RELATED
INFORMATION MAY RESULT IN CHARACTERIZING THE ACCOUNT AS A "NEW ACCOUNT" FOR
THESE PURPOSES.
CPI ESCALATION
--------------
The fixed fees and other fees expressed as stated dollar amounts in this
schedule and in the Agreement shall be increased annually commencing on the
one-year anniversary date of the Effective Date by the percentage increase since
the Effective Date in consumer prices for services as measured by the United
States Consumer Price Index entitled "All Services Less Rent of Shelter" or a
similar index should such index no longer be published.
21
SCHEDULE D
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN REGIONS XXXXXX XXXXXX SELECT FUND
AND BISYS FUND SERVICES OHIO, INC.
Date: _______________, 2005
REPORTS
-------
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
(a) Beginning Balance
(b) Transactions
(c) Shareholder Transactions
(d) Reinvested Dividends
(e) Exchanges
(f) Adjustments
(g) Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants
describing control structure policies and procedures relating to transfer
agency operations pursuant to AICPA Statement on Auditing Standards Number
70.
8. Such special reports and additional information that the parties may agree
upon, from time to time.
9. In addition to the forgoing, following each quarterly period, BISYS will
provide a report to the following effect pertaining to the AML Services
rendered by BISYS hereunder during such quarterly period:
(a) performed good order review for all new and reregistered accounts;
(b) performed acceptance review for all monetary instruments received;
22
(c) administered signature guarantee policy in accordance with prospectus
requirements;
(d) administered escrow hold policy in accordance with prospectus
requirements;
(e) verified customer address changes;
(f) verified customer identification for all new accounts and all name
changes on existing accounts;
(g) monitored all purchase transactions made with cash equivalents
totaling in excess of $10,000 resulting in the filing of [x] Form 8300
reports during the period. The Fund does not accept cash or currency;
(h) monitored all accounts for suspicious activity resulting in the filing
of [x] Form SAR reports during the period;
(i) reviewed shareholder names against lists of suspected terrorist and
terrorist organizations supplied by various governmental
organizations, such as the Office of Foreign Asset Control resulting
in the freezing and reporting of [x] accounts during the period;
(j) reviewed shareholder names in compliance with FinCEN 314(a) requests,
resulting in the reporting of accounts during the period;
(k) created the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds; and
(l) maintained all records and other documentation related to shareholder
accounts and transactions required to e prepared and maintained
pursuant to the Fund's anti-money laundering program for all BISYS
transfer agent services.
The following will be provided in such report if the Company falls under the
related USA PATRIOT Act provisions:
(m) performed the required due diligence to help prevent the opening of
any accounts for foreign shell banks during the period either directly
or through correspondent accounts; and
(n) performed required due diligence on any new correspondent accounts
opened during the period.
23
