TRANSFER AGENCY AGREEMENT
EXHIBIT (h)(2)
THIS TRANSFER AGENCY AGREEMENT is made as of this 29th day of January, 2007, by and between
Xxxxxxxx Capital Management Trust, a Delaware statutory trust (the
“Trust”), and UMB Fund
Services, Inc., a Wisconsin corporation, its successors and assigns (“UMBFS”).
RECITALS:
WHEREAS, the Trust is registered under the 1940 Act as an open-end management investment
company; and
WHEREAS, the Trust desires to retain UMBFS to render certain transfer agency and dividend
disbursement services, and UMBFS is willing to render such services, all in accordance with the
terms of this Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein
and other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to any terms defined in the body of this Agreement, the following capitalized
terms shall have the meanings set forth hereinafter whenever they appear in this Agreement:
1.01 1940 Act shall mean the Investment Company Act of 1940, as amended from time to
time.
1.02 AML Laws shall mean the rules promulgated under the Bank Secrecy Act and
Sections 312, 326 and 352 of the USA PATRIOT Act.
1.03 Authorized Person shall mean any individual who is authorized to provide UMBFS
with Instructions and requests on behalf of the Trust, whose name shall be certified to UMBFS
from time to time pursuant to Section 8.01 of this Agreement.
1.04 Board of Trustees shall mean the Board of Trustees of the Trust.
1.05 Custodian shall mean the financial institution appointed as custodian under the
terms and conditions of the custody agreement between the financial institution and the Trust, or
its successor.
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1.06 Declaration of Trust shall mean the Declaration of Trust or other similar
operational document of the Trust, as the case may be, as the same may be amended from
time to time.
1.07 Exchange Act shall mean the Securities Exchange Act of 1934, as amended from
time to time.
1.08 Fund shall mean each separate series of Shares offered by the Trust
representing interests in a separate portfolio of securities and other assets for which the
Trust has appointed UMBFS as transfer agent and dividend disbursing agent under this
Agreement.
1.09 Fund Business Day shall mean each day on which the New York Stock Exchange,
Inc. is open for trading.
1.10 Instructions shall mean an oral communication from an Authorized Person or a
written communication signed by an Authorized Person and actually received by UMBFS.
Instructions shall include manually executed originals, telefacsimile transmissions of
manually executed originals or electronic communications.
1.11 Prospectus shall mean the current Prospectus and Statement of Additional
Information with respect to a Fund (including any applicable supplement) actually received by
UMBFS from the Trust with respect to which the Trust has indicated a registration statement
has become effective under the Securities Act and the 1940 Act.
1.12 Securities Act shall mean the Securities Act of 1933. as amended from time to
time.
1.13 Shares shall mean such shares of beneficial interest, or class thereof, of
each respective Fund of the Trust as may be issued from time to time.
1.14 Shareholder shall mean a record owner of Shares of each respective Fund of
the Trust.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 Appointment. The Trust hereby appoints UMBFS as transfer agent and dividend
disbursing agent of all the Shares of the Trust during the term of this Agreement with
respect to each Fund listed on Schedule A hereto, and any additional Fund the Trust and UMBFS
may agree to include on any amended Schedule A. UMBFS hereby accepts such appointment as
transfer agent and dividend disbursing agent and agrees to perform the duties thereof as
hereinafter set forth.
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2.02 Duties.
A. UMBFS shall perform the transfer agent and dividend disbursement services described on
Schedule B hereto and such additional services as may be agreed to by the parties from time to
time and set forth in an amendment to Schedule B (collectively, the “Services”). UMBFS shall have
no duties or responsibilities other than those specifically set forth in this Agreement, and no
covenant or obligation to carry out any other duties or responsibilities shall be implied in this
Agreement against UMBFS.
B. UMBFS may, in its discretion, appoint other parties to carry out some or all of its
responsibilities under this Agreement.
2.03 Deliveries.
A. In connection with UMBFS’ appointment as transfer agent and dividend disbursing agent,
the Trust shall deliver or cause the following documents to be delivered to UMBFS:
(1) A copy of the Declaration of Trust and By-laws of the Trust and all amendments thereto,
certified by the Secretary of the Trust;
(2) A certificate signed by the President and Secretary of the Trust specifying the number
of authorized Shares and the number of such authorized Shares issued and currently outstanding,
if any, the validity of the authorized and outstanding Shares, whether such shares are fully paid
and non-assessable, and the status of the Shares under the Securities Act and any other applicable
federal law or regulation;
(3) A certified copy of the resolutions of the Board of Trustees of the Trust appointing
UMBFS as transfer agent and dividend disbursing agent and authorizing the execution of this
Transfer Agency Agreement on behalf of the Trust;
(4) Copies of the Trust’s Registration Statement, as amended to date, and the most recently
filed Post-Effective Amendment thereto, filed by the Trust with the Securities and Exchange
Commission under the Securities Act and the 1940 Act, together with any applications filed in
connection therewith;
(5) The certificate required by Section 8.01 of this Agreement, signed by an officer of the
Trust and designating the names of the Trust’s initial Authorized Persons; and
(6) A certificate as of January 26, 2007 certifying that all accounts have been reconciled
through that date as required by Section 5.01(G)(1).
B. The Trust agrees to deliver or to cause to be delivered to UMBFS in Milwaukee, Wisconsin,
at the Trust’s expense, all of its Shareholder account records in a format acceptable to UMBFS,
as well as all other documents, records and information that UMBFS may reasonably request in
order for UMBFS to perform the Services hereunder.
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ARTICLE III
COMPENSATION & EXPENSES
3.01 Compensation. As compensation for the performance of the Services, the Trust
agrees to pay UMBFS the fees set forth on Schedule C attached hereto. Fees shall be adjusted
in accordance with Schedule C or as otherwise agreed to by the parties from time to time. The
parties may amend Schedule C to include fees for any additional services requested by the Trust,
enhancements to current Services, or to add Funds for which UMBFS has been retained. The Trust
agrees to pay UMBFS’ then current rate for any Services added to, or any enhancements to existing
Services set forth on, Schedule C after the execution of this Agreement.
3.02 Expenses. The Trust also agrees to promptly reimburse UMBFS for all
out-of-pocket expenses or disbursements incurred by UMBFS in connection with the performance of
Services under this Agreement. Out-of-pocket expense shall include, but not be limited to, those
items specified on Schedule C hereto. If requested by UMBFS, out-of-pocket expenses are payable in
advance. Payment of postage expenses, if prepayment is requested, is due at least seven days prior
to the anticipated mail date. In the event UMBFS requests advance payment, UMBFS shall not be
obligated to incur such expenses or perform the related Service(s) until payment is received.
3.03 Payment Procedures.
A. The Trust agrees to pay all amounts due hereunder within thirty (30) days of the date
reflected on the statement for such Services (the “Due Date”). Except as provided in Schedule C,
UMBFS shall xxxx Service fees monthly, and out-of-pocket expenses as incurred (unless prepayment is
requested by UMBFS). UMBFS may, at its option, arrange to have various service providers submit
invoices directly to the Trust for payment of reimbursable out-of-pocket expenses.
B. The Trust is aware that its failure to remit to UMBFS all amounts due on or before the Due
Date will cause UMBFS to incur costs not contemplated by this Agreement, including, but not limited
to carrying, processing and accounting charges. Accordingly, in the event that UMBFS does not
receive any amounts due hereunder by the due date, the Trust agrees to pay a late charge on the
overdue amount equal to one and one-half percent (1.5%) per month or the maximum amount permitted
by law, whichever is less. In addition, the Trust shall pay UMBFS’ reasonable attorney’s fees and
court costs if any amounts due UMBFS are collected by or through an attorney. The parties hereby
agree that such late charge represents a fair and reasonable computation of the costs incurred by
reason of the Trust’s late payment. Acceptance of such late charge shall in no event constitute a
waiver by UMBFS of the Trust’s default or prevent UMBFS from exercising any other rights and
remedies available to it.
C. In the event that any charges are disputed, the Trust shall, on or before the Due Date, pay
all undisputed amounts due hereunder and notify UMBFS in writing of any disputed charges for
out-of-pocket expenses which it is disputing in good faith. Payment for such disputed charges shall be
due on or before the close of the fifth (5th) business day after the day on which UMBFS provides to
the Fund documentation which an objective observer would agree reasonably supports the disputed
charges (the
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“Revised Due Date”). Late charges shall not begin to accrue as to charges disputed in good faith
until the first day after the Revised Due Date.
3.04 Allocation of Risk. The Trust acknowledges that the fees charged by UMBFS under
this Agreement reflect the allocation of risk between the parties, including the exclusion of
remedies and limitations on liability in Article IX. Modifying the allocation of risk from what is
stated herein would affect the fees that UMBFS charges. Accordingly, in consideration of those
fees, the Trust agrees to the stated allocation of risk.
ARTICLE IV
PROCESSING AND PROCEDURES
4.01 Issuance, Redemption and Transfer of Shares
A. UMBFS agrees to accept purchase orders and redemption requests with respect to the Shares
of each Fund via postal mail, telephone or personal delivery on each Fund Business Day in
accordance with such Fund’s Prospectus; provided, however, that UMBFS shall only accept purchase
orders from states in which the Shares are qualified for sale or are able to be sold pursuant to an
exemption, as indicated from time to time by the Trust. UMBFS shall, as of the time at which the
net asset value of each Fund is computed on each Fund Business Day, issue to and redeem from the
accounts specified in a purchase order or redemption request in proper form and accepted by the
Fund the appropriate number of full and fractional Shares based on the net asset value per Share of
the respective Fund specified in an advice received on such Fund Business Day from or on behalf of
the Fund. UMBFS shall not be responsible for the payment of any original issue or other taxes
required to be paid by the Trust in connection with the issuance of any Shares in accordance with
this Agreement. UMBFS shall not be required to issue any Shares after it has received from an
Authorized Person or from an appropriate federal or state authority written notification that the
sale of Shares has been suspended or discontinued, and UMBFS shall be entitled to rely upon such
written notification. Payment for Shares shall be in the form of a check, wire transfer, Automated
Clearing House transfer or such other methods to which the parties shall mutually agree.
B. Upon receipt of a redemption request and monies paid to it by the Custodian in connection
with a redemption of Shares, UMBFS shall cancel the redeemed Shares and after making appropriate
deduction for any withholding of taxes required of it by applicable federal law, make payment in
accordance with the Fund’s redemption and payment procedures described in the Prospectus.
C. Except as otherwise provided in this paragraph, UMBFS will transfer or redeem Shares upon
presentation to UMBFS of instructions endorsed for exchange, transfer or redemption, accompanied by
such documents as UMBFS deems necessary to evidence the authority of the person making such
transfer or redemption. UMBFS reserves the right to refuse to transfer or redeem Shares until it
is satisfied that the endorsement or instructions are valid and genuine. For that purpose, it will
require, unless otherwise instructed by an Authorized Person or except as otherwise provided in
this paragraph, a guarantee of signature by an “Eligible Guarantor Institution” as that term is
defined by SEC Rule 17Ad-15. UMBFS also reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the requested transfer or redemption is legally authorized, and it shall
incur no liability for the
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refusal, in good faith, to make transfers or redemptions which UMBFS, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no reasonable basis to any claims
adverse to such transfer or redemption. UMBFS may, in effecting transfers and redemptions of
Shares, rely upon those provisions of the Uniform Act for the Simplification of Fiduciary Security
Transfers (or such other statutes which protect it and the Trust in not requiring complete
fiduciary documentation) and shall not be responsible for any act done or omitted by it in good
faith in reliance upon such laws. Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, UMBFS shall be fully protected by each Fund in not requiring any
instruments, documents, assurances, endorsements or guarantees, including, without limitation, any
Medallion signature guarantees, in connection with a redemption, exchange or transfer of Shares
whenever UMBFS reasonably believes that requiring the same would be inconsistent with the transfer
and redemption procedures described in the Prospectus.
D. Notwithstanding any provision contained in this Agreement to the contrary, UMBFS shall not
be required or expected to require, as a condition to any transfer or redemption of any Shares
pursuant to a computer tape or electronic data transmission, any documents to evidence the
authority of the person requesting the transfer or redemption and/or the payment of any stock
transfer taxes, and shall be fully protected in acting in accordance with the applicable provisions
of this Article.
E. In connection with each purchase and each redemption of Shares, UMBFS shall send such
statements as are prescribed by the Federal securities laws applicable to transfer agents or as
described in the Prospectus. It is understood that certificates for Shares have not been and will
not be offered by the Trust or available to investors.
F. UMBFS and the Trust shall establish procedures for effecting purchase, redemption or
transfer transactions accepted from investors by telephone or other methods consistent with the
terms of the Prospectus. UMBFS may establish such additional procedures, rules and regulations
governing the purchase, redemption or transfer of Shares, as it may deem advisable and consistent
with the Prospectus and industry practice. UMBFS shall not be liable, and shall be held harmless by
the Trust, for its actions or omissions which are consistent with the foregoing procedures.
G. The Trust agrees to provide UMBFS with prior notice of any increase or decrease in the
total number of Shares authorized to be issued, or the issuance of any additional Shares of a Fund
pursuant to stock dividends, stock splits, recapitalizations, capital adjustments or similar
transactions, and to deliver to UMBFS such documents, certificates, reports and legal opinions as
UMBFS may reasonably request.
4.02 Dividends and Distributions.
A. The Trust shall give or cause to be given to UMBFS a copy of a resolution of its Board of
Trustees, that either:
(i) sets forth the date of the declaration of a dividend or distribution, the date of accrual
or payment, as the case may be, thereof, the record date as of which Shareholders entitled to
payment or accrual, as the case may be, shall be determined, the amount per Share of such dividend
or distribution,
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the payment date on which all previously accrued and unpaid dividends are to be paid, and the
total amount, if any, payable to UMBFS on such payment date, or
(ii) authorizes the declaration of dividends and distributions on a daily or other periodic
basis and further authorizes UMBFS to rely on a certificate of an Authorized Person setting forth
the information described in subsection (i) of this paragraph.
B. In connection with a reinvestment of a dividend or distribution of Shares of a Fund, UMBFS
shall as of each Fund Business Day, as specified in a certificate or resolution described in
paragraph A, issue Shares of the Fund based on the net asset value per Share of such Fund specified
in an advice received from or on behalf of the Fund on such Fund Business Day.
C. Upon the mail date specified in such certificate or resolution, as the case may be, the
Trust shall, in the case of a cash dividend or distribution, cause the Custodian to deposit in an
account in the name of UMBFS on behalf of a Fund, an amount of cash sufficient for UMBFS to make
the payment, as of the mail date specified in such certificate or resolution, as the case may be,
to the Shareholders who were of record on the record date. UMBFS will, upon receipt of any such
cash, make payment of such cash dividends or distributions to the Shareholders as of the record
date. UMBFS shall not be liable for any improper payments made in accordance with a certificate or
resolution described in the preceding paragraph. If UMBFS shall not receive from the Custodian
sufficient cash to make payments of any cash dividend or distribution to all Shareholders of a Fund
as of the record date, UMBFS shall, upon notifying the Trust, withhold payment to such Shareholders
until sufficient cash is provided to UMBFS.
D. It is understood that UMBFS in its capacity as transfer agent and dividend disbursing agent
shall in no way be responsible for the determination of the rate or form of dividends or capital
gain distributions due to the Shareholders pursuant to the terms of this Agreement. It is further
understood that UMBFS shall file with the Internal Revenue Service and Shareholders such
appropriate federal tax forms concerning the payment of dividend and capital gain distributions 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 federal
law.
4.03 Records.
A. UMBFS shall keep those records specified in Schedule D hereto in the form and manner, and
for such period, as it may deem advisable but not inconsistent with the rules and regulations of
appropriate government authorities, in particular Rules 31a-2 and 31a-3 under the 1940 Act. UMBFS
shall only destroy records at the direction of the Trust, and any such destruction shall comply
with the provisions of Section 248.30(b) of Regulation S-P (17 CFR 248.1-248.30). UMBFS may
deliver to the Trust from time to time at UMBFS’ discretion, for safekeeping or disposition by the
Trust in accordance with law, such records, papers and documents accumulated in the execution of
its duties as transfer agent, as UMBFS may deem expedient, other than those which UMBFS is itself
required to maintain pursuant to applicable laws and regulations. The Trust shall assume all
responsibility for any failure thereafter to produce any record, paper, or other document so
returned, if and when required. To the extent required by Section 31 of the 1940 Act and the rules
and regulations thereunder, the records specified in Schedule D hereto maintained by UMBFS, which
have not been previously delivered to the
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Trust pursuant to the foregoing provisions of this paragraph, shall be considered to be the
property of the Trust, shall be made available upon request for inspection by the officers,
employees, and auditors of the Trust, and shall be delivered to the Trust promptly upon request and
in any event upon the date of termination of this Agreement, in the form and manner kept by UMBFS
on such date of termination or such earlier date as may be requested by the Trust. Notwithstanding
anything contained herein to the contrary, UMBFS shall be permitted to maintain copies of any such
records, papers and documents to the extent necessary to comply with the recordkeeping requirements
of federal and state securities laws, tax laws and other applicable laws.
B. UMBFS agrees to keep all records and other information relative to the Funds’ Shareholders
confidential, not to use such information other than for purposes of fulfilling its duties under
the Agreement and not to disclose such information except: (i) when requested to divulge such
information by duly-constituted authorities or court process, or (ii) when requested 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 (iii) when requested by the Trust,
a Fund, the Shareholder, the Shareholder’s agent or the dealer of record with respect to such
account, or (iv) to seek to prevent fraud and/or money laundering by providing certain shareholder
information to other financial institutions, or (v) to an affiliate, as defined by Section
248.3(a) of Regulation S-P; or (vi) pursuant to any other exception permitted by Sections 248.14
and 248.15 of Regulation S-P in the ordinary course of business to carry out the activities
covered by the exception under which UMBFS received the information. In case of any requests or
demands for inspection of the records of the Funds, UMBFS will endeavor to notify the Trust
promptly and to secure instructions from a representative of the Trust as to such inspection.
Records and information which have become known to the public through no wrongful act of UMBFS or
any of its employees, agents or representatives, and information which was already in the
possession of UMBFS prior to receipt thereof, shall not be subject to this paragraph.
ARTICLE V
REPRESENTATION AND WARRANTIES
5.01 Representations of Trust. The Trust represents and warrants to UMBFS that:
A. It is a statutory trust duly organized and existing under the laws of the State of
Delaware; it is empowered under applicable laws and by its Declaration of Trust and By-laws to
enter into and perform this Agreement; and all requisite trust proceedings have been taken to
authorize it to enter into and perform this Agreement.
B. Any officer of the Trust has the authority to appoint additional Authorized Persons, to
limit or revoke the authority of any previously designated Authorized Person, and to certify to
UMBFS the names of such Authorized Persons.
C. It is duly registered as an investment company under the 1940 Act.
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D. A registration statement under the Securities Act is currently effective and will
remain effective, and appropriate state securities laws filings have been made and will continue to
be made, with respect to Shares of the Trust being offered for sale.
E. All outstanding Shares are validly issued, fully paid and non-assessable and when Shares
are hereafter issued in accordance with the terms of the Trust’s Declaration of Trust and its
Prospectus with respect to each Fund, such Shares shall be validly issued, fully paid and
non-assessable.
F. All shareholder tax reporting has been completed timely and accurately, including the
distribution of Forms 5498s for the 2005 tax year.
G. The Funds, and all shareholder accounts, are in balance and all accounts reconciled and
current as of the date of this Agreement, and (1) there are no outstanding issues relating to
transfer agent activities and shareholder and Trust record keeping, including those related to
shareholder accounts and transaction activity, and (2) there are no existing or potential claims,
litigation or demands by shareholders or others relating to the Trust, or any of the Funds or their
officers or Trustees, except as disclosed in writing and dated as of the date of this Agreement to
UMBFS.
5.02 Representations of UMBFS. UMBFS represents and warrants to the Trust that:
A. It is a corporation duly organized and existing under the laws of the State of Wisconsin;
it is empowered under applicable law and by its Articles of Incorporation and By-laws to enter into
and perform this Agreement; and all requisite proceedings have been taken to authorize it to enter
into and perform this Agreement.
B. It is duly registered as a transfer agent under Section 17A of the 1934 Act to the extent
required.
C. It has received a copy of each Fund’s Prospectus which describes how sales and
redemptions of Shares shall be made.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 Information Updates. During the term of this Agreement the Trust shall have the
ongoing obligation to provide UMBFS with the following documents as soon as they become effective:
(i) certified copies of all amendments to its Declaration of Trust and By-laws made after the date
of this Agreement; and (ii) a copy of each Fund’s currently effective Prospectus. For purposes
of this Agreement, UMBFS shall not be deemed to have notice of any information contained in any
such Prospectus until a reasonable time after it is actually received by UMBFS.
6.02 Share Qualification. The Trust agrees to take or cause to be taken all requisite
steps to qualify the Shares for sale in all states in which the Shares shall at the time be offered
for sale and require qualification. If the Trust receives notice of any stop order or other
proceeding in any such state
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affecting such qualification or the sale of Shares, or of any stop order or other proceeding
under the federal securities laws affecting the sale of Shares, the Trust will give prompt notice
thereof to UMBFS.
6.03 Compliance with Laws. The Trust will comply with all applicable requirements of
the Securities Act, the Exchange Act, the 1940 Act, blue sky laws, and any other applicable laws,
rules and regulations.
6.04 Additional Duties. The Trust agrees that it shall advise UMBFS at least 30 days
prior to effecting any change in the Prospectus which would increase or alter the duties and
obligations of UMBFS hereunder, and shall proceed with such change only if it shall have received
the written consent of UMBFS thereto.
6.05 Transfer Agent System. UMBFS shall retain all right, title and interest in and any
and all computer programs, screen formats, report formats, procedures, data bases, interactive
design techniques, derivative works, inventions, discoveries, patentable or copyrightable matters,
concepts, expertise, trade secrets, trademarks and other related legal rights provided, developed
or utilized by UMBFS in connection with the Services provided by UMBFS to the Trust hereunder.
6.06 Disaster Recovery and Business Continuity Plan and Computer System. UMBFS shall
maintain a disaster recovery and business continuity plan and adequate and reliable computer and
other equipment necessary and appropriate to carry out its obligations under this Agreement. Upon
the Fund’s reasonable request, UMBFS shall provide supplemental information concerning the aspects
of its disaster recovery and business continuity plan that are relevant to the services hereunder.
ARTICLE VII
AML DELEGATION
7.01 Background. In order to assist its transfer agent clients with their anti-money
laundering responsibilities under the AML Laws, UMBFS offers various tools designed to promote the
detection and reporting of potential money laundering activity by monitoring certain aspects of
shareholder activity, assist in the verification of persons opening accounts with the Trust and
determine whether such persons appear on any list of known or suspected terrorists or terrorist
organizations (“Monitoring Activities”). In connection with the Monitoring Activities, UMBFS may
encounter shareholder activity that would require it to file a Suspicious Activity Report (“SAR”)
with the Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”). The Trust
has, after review, selected various procedures and tools offered by UMBFS to comply with its
anti-money laundering and customer identification program obligations under the AML Laws (the “AML
Procedures”), and desires to implement the AML Procedures as part of its overall anti-money
laundering program and, subject to the terms of the AML Laws, delegate to UMBFS the day-to-day
operation of the AML Procedures on behalf of the Trust.
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7.02 Delegation.
A. The Trust acknowledges that it has had an opportunity to review, consider and comment upon
and select the AML Procedures and the Trust has determined that they, as part of the Trust’s
overall anti-money laundering program, are reasonably designed to prevent the Trust from being used
for money laundering or the financing of terrorist activities and to achieve compliance with the
applicable provisions of the AML Laws. Based on this determination, the Trust hereby instructs
and directs UMBFS to implement the AML Procedures on its behalf, as such may be amended or revised
from time to time. The customer identification verification component of the AML Procedures
applies only to shareholders who are residents of the United States.
B. The Trust hereby delegates to UMBFS the authority to report suspicious transactions
encountered during the course of UMBFS’ Monitoring Activities (“Suspicious Activity”) on and after
November 1, 2006 to FinCEN. For purposes of this Article VII, the term Suspicious Activity shall
mean and include any transaction which requires reporting under 31 CFR §103.15(a)(2).
7.03 SAR Filing Procedures.
A. When UMBFS observes any Suspicious Activity, UMBFS shall prepare a draft of a SAR on Form
SAR-SF, and shall send a copy to the Trust’s AML officer for review. UMBFS shall complete each SAR
in accordance with the procedures set forth in 31 CFR §103.15(a)(3), with the intent to satisfy
the reporting obligation of both UMBFS and the Trust. Accordingly, the SAR shall include the name
of both UMBFS and the Trust, and shall include the words, “joint filing” in the narrative section.
B. The Trust’s AML officer shall review the SAR and provide comments, if any, to UMBFS within
a time frame sufficient to permit UMBFS to file the SAR in accordance with the deadline set forth
in 31 CFR §103.15(b)(3). Upon receipt of final approval, UMBFS shall file the SAR in accordance
with the procedures set forth in 31 CFR §103.15(b).
C. UMBFS shall provide to the Trust a copy of each SAR filed, together with supporting
documentation. In addition, UMBFS shall maintain a copy of the same for a period of five (5) years
from the date of the SAR filing.
D. Nothing in this Article VII shall prevent either party from making a determination that
such party has an obligation under the Act to file a SAR relating to any Suspicious Activity, and
from making such filing independent of the other party hereto.
7.04 Amendment to Procedures. It is contemplated that the AML Procedures will be
amended from time to time by the parties as directed by the Trust based on its experience in the
operation of the AML Procedures and/or as additional regulations are adopted and/or regulatory
guidance is provided relating to the Trust’s anti-money laundering responsibilities.
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7.04 Reporting. UMBFS agrees to provide to the Trust (i) prompt notification
of any transaction or combination of transactions that UMBFS believes, based on the AML Procedures,
evidence money laundering activity in connection with the Trust or any shareholder of the Trust,
(ii) any reports received by UMBFS from any government agency or applicable industry
self-regulatory organization pertaining to UMBFS’ anti-money laundering monitoring on behalf of the
Trust as provided in this Article VII, (iii) any action taken in response to anti-money laundering
violations as described in (i) or (ii) and (iv) a quarterly reports of its monitoring and
verification activities on behalf of the Trust. UMBFS shall provide such other reports on the
verification activities conducted at the direction of the Trust as may be agreed to from time to
time by UMBFS and the Trust’s anti-money laundering compliance officer.
7.05 Inspection. The Trust hereby directs, and UMBFS acknowledges, that UMBFS shall (1)
permit federal regulators access to such information and records maintained by UMBFS and relating
to UMBFS’ implementation of the AML Procedures on behalf of the Trust, as they may request, and (2)
permit such federal regulators to inspect UMBFS’ implementation of the AML Procedures on behalf of
the Trust.
ARTICLE VIII
TRUST INSTRUCTIONS
8.01 Authorized Persons. Upon the execution of this Agreement, the Trust shall
provide UMBFS with a certificate containing the names of the initial Authorized Persons in a form
acceptable to UMBFS. Any officer of the Trust shall be considered an Authorized Person (unless
such authority is limited in a writing from the Trust and received by UMBFS) and has the authority
to appoint additional Authorized Persons, to limit or revoke the authority of any previously
designated Authorized Person, and to certify to UMBFS the names of the Authorized Persons from
time to time. The Trust shall provide UMBFS with an updated certificate evidencing the
appointment, removal or change of authority of any Authorized Person, it being understood UMBFS
shall not be held to have notice of any change in the authority of any Authorized Person until
receipt of written notice thereof from the Trust.
8.02 Acceptance of Instructions. UMBFS, its officers, agents or employees shall
accept Instructions given to them by any person representing or acting on behalf of the Trust only
if such representative is an Authorized Person. The Trust agrees that when oral Instructions are
given, it shall, upon the request of UMBFS, confirm such Instructions in writing.
8.03 Request for Instructions. At any time, UMBFS may request Instructions from the
Trust with respect to any matter arising in connection with this Agreement. If such Instructions
are not received within a reasonable time, then UMBFS may seek advice from legal counsel for the
Trust at the expense of the Trust, or its own legal counsel at its own expense, and it shall not be
liable for any action taken or not taken by it in good faith in accordance with such Instructions
or in accordance with advice of counsel.
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ARTICLE IX
LIMITATION OF LIABILITY; INDEMNIFICATION
9.01 Limitation of Liability. Notwithstanding anything contained in this Agreement to
the contrary, UMBFS shall not be liable for any error of judgment or mistake of law or for any loss
suffered by the Trust or the Funds in connection with the matters to which this Agreement relates,
except for a loss resulting from UMBFS’ willful misfeasance, bad faith or negligence in the
performance of its duties or from reckless disregard by it of its obligations and duties under this
Agreement. Furthermore, UMBFS shall not be liable for (1) any action taken or omitted to be taken
in accordance with or in reliance upon written or oral instructions, advice, data, documents or
information (without investigation or verification) received by UMBFS from an officer or
representative of the Trust or from a representative of any of the parties referenced in Section
11.09, or (2) any action taken or omission by a Fund, the Trust, investment adviser(s) or any past
or current service provider.
9.02 Indemnification by Trust. The Trust agrees to indemnify and hold harmless UMBFS,
its employees, agents, officers, directors, affiliates and nominees (“Indemnified Parties”) 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 which may be asserted against or incurred by any Indemnified Party or for
which any Indemnified Party may be held liable (a “Claim”) arising out of or in any way relating to
any of the following:
(a) any action or omission of UMBFS except to the extent a Claim resulted from UMBFS’ willful
misfeasance, bad faith or negligence in the performance of its duties or from reckless disregard by
it of its obligations and duties hereunder;
(b) UMBFS’ reliance on, implementation of, or use, without investigation or verification, of
information, data, records and documents received by UMBFS from the Trust, or from a representative
of any of the parties referenced in Section 11.09, or any third party acting on behalf of the
Trust;
(c) the reliance on, or the implementation of, any Instructions or any other advice,
instructions, requests or directions of the Trust or from a representative of any of the parties
referenced in Section 11.09, or any third party acting on behalf of the Trust;
(d) UMBFS’ acting upon telephone or electronic instructions relating to the purchase, exchange
or redemption of Shares received by UMBFS in accordance with procedures established by UMBFS and
the Trust;
(e) any action taken by or omission of the Trust, investment adviser or sub-adviser(s) or any
past or current service provider;
(f) the acceptance, processing and/or negotiation of a fraudulent payment for the purchase of
Shares unless the result of UMBFS’ or its affiliates’ willful misfeasance, bad faith or negligence
in the performance of its duties or from reckless disregard by it of its obligations and duties
under this
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Agreement. In the absence of a finding to the contrary, the acceptance, processing and/or
negotiation of a fraudulent payment for the purchase of Shares shall be presumed not to have been
the result of UMBFS’ or its affiliates’ willful misfeasance, bad faith or negligence.
(g) the offer or sale of Shares in violation of any requirement under the securities laws or
regulations of any state that such Shares be qualified for sale in such state or in violation of
any stop order or determination or ruling by any state with respect to the offer or sale of such
Shares in such state; or
(h) the Trust’s refusal or failure to comply with the terms of the Agreement, or any Claim
that arises out of the Trust’s negligence or misconduct or breach of any representation or
warranty of the Trust made herein.
9.03 Indemnification by UMBFS. UMBFS agrees to indemnify and hold harmless the Trust, its
employees, officers and trustees from and against any and all Claims arising out of or in any way
relating to UMBFS’ willful misfeasance, bad faith or negligence in the performance of its duties or
from reckless disregard by it of its obligations and duties under this Agreement.
9.04 Indemnification Procedures. A party which is entitled to indemnification
hereunder (the “Indemnitee”) will notify the other party hereto (the “Indemnitor”) promptly after
identifying any situation which it believes presents or appears likely to present a Claim for which
the Indemnitor may be required to indemnify or hold the Indemnitee harmless hereunder. In such
event, the Indemnitor shall have the option to defend the Indemnitee against any Claim, and, in the
event that the Indemnitor so elects, such defense shall be conducted by counsel chosen by the
Indemnitor and approved by the Indemnitee in its reasonable discretion. The Indemnitee shall not
confess any Claim or make any compromise in any case in which the Indemnitor will be asked to
provide indemnification, except with the Indemnitor’s prior written consent. The obligations of the
parties under the Sections 9.02, 9.03 and 9.04 survive the termination of this Agreement.
9.05 Force Majeure. UMBFS assumes no responsibility hereunder, and shall not be
liable, for any damage, loss of data or documents, errors, delay or any other loss whatsoever
caused by events beyond its reasonable control. UMBFS will, however, take all reasonable steps to
minimize service interruptions for any period that such interruption continues beyond UMBFS’
control.
9.06 Consequential Damages. In no event and under no circumstances shall either party
hereto, its respective affiliates or any of its or their respective officers, directors, trustees,
agents or employees be liable to anyone, including, without limitation, the other party hereto,
under any theory of tort, contract, strict liability or other legal or equitable theory for lost
profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to
act under any provision of this Agreement regardless of whether such damages were foreseeable and
even if advised of the possibility thereof.
9.07 Additional Limitations and Exclusions. Notwithstanding any other provision of
this Agreement, UMBFS shall have no duty or obligation under this Agreement to inquire into, and
shall not be liable for:
14
(a) The legality of the issue or sale of any Shares, the sufficiency of the amount to be
received therefor, or the authority of the Trust, as the case may be, to request such sale or
issuance;
(b) The legality of a transfer of Shares or of a purchase or redemption of any Shares, the
propriety of the amount to be paid therefor, or the authority of the Trust, as the case may be, to
request such transfer or redemption;
(c) 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 dividend; or
(d) The legality of any recapitalization or readjustment of Shares.
ARTICLE X
TERM AND TERMINATION
10.01 Term. This Agreement shall become effective with respect to each Fund listed
on Schedule A hereof as of the date hereof and, with respect to each Fund not in existence on that
date, on the date an amendment to Schedule A to this Agreement relating to that Fund is executed.
This Agreement shall continue in effect with respect to each Fund until terminated as provided
herein.
10.02 Termination. Either party may terminate this Agreement at any time by giving the
other party a written notice not less than sixty (60) days prior to the date the termination is to
be effective. In the event such notice is given by the Trust pursuant to Section 10.02, it shall be
accompanied by a notice of designation of a successor transfer agent or transfer agents. In the
event such notice is given by UMBFS, the Trust shall on or before the termination date, deliver to
UMBFS a notice of designation of a successor transfer agent or transfer agents. In the absence of
such designation by the Trust, the Trust shall be deemed to be its own transfer agent as of the
termination date and UMBFS shall thereby be relieved of all duties and responsibilities pursuant to
this Agreement. Fees and out-of-pocket expenses incurred by UMBFS, but unpaid by the Trust upon
such termination, shall be immediately due and payable upon and notwithstanding such termination.
10.03 Effect of Termination. Notwithstanding anything herein to the contrary,
upon the termination of the Agreement as provided herein or the liquidation of a Fund or the Trust,
UMBFS shall deliver the records of the Trust to the Trust or its successor transfer agent in a form
that is consistent with UMBFS’ applicable license agreements at the expense of the Trust, and
thereafter the Trust or its designee shall be solely responsible for preserving the records for the
periods required by all applicable laws, rules and regulations. The Trust shall be responsible to
UMBFS for all costs and expenses associated with the preparation and delivery of such media and all
reasonable trailing expenses incurred by UMBFS, including, but not limited to: (a) out-of-pocket
expenses; (b) any custom programming requested by the Trust in connection with the preparation of
such media and agreed upon by UMBFS; (c) transportation of forms and other materials used in
connection with the processing of Trust transactions by UMBFS; and (d) transportation of records
and files in the possession of UMBFS. In addition, UMBFS shall be entitled to such compensation
as the parties may mutually agree for any services other than the preparation and delivery of such
media requested by the Trust and agreed to by UMBFS in
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connection with the termination of this Agreement or the liquidation or merger of the Trust.
UMBFS shall not reduce the level of service provided to the Trust prior to termination following
notice of termination by the Trust.
ARTICLE XI
MISCELLANEOUS
11.01 Notices. Any notice required or permitted to be given by either party to the
other under this Agreement shall be in writing and shall be deemed to have been given when sent by
either an overnight delivery service or by registered or certified mail, postage prepaid, return
receipt requested, to the addresses listed below, or to such other location as either party may
from time to time designate in writing:
If to UMBFS: | UMB Fund Services, Inc. | |||
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X | ||||
Xxxxxxxxx, Xxxxxxxxx 00000 | ||||
Attention: General Counsel | ||||
If to the Trust: | Xxxxxxxx Capital Management Trust | |||
000 Xxxxx Xxxxxx | ||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||
Attention: President |
11.02 Amendments/Assignments.
A. Except as provided to the contrary herein, this Agreement may not be amended or modified in
any manner except by a written agreement executed by both parties with the formality of this
Agreement.
B. This Agreement shall extend to and shall be binding upon the parties hereto, and their
respective successors and assigns. This Agreement shall not be assignable by either party without
the written consent of the other party, except that UMBFS may assign this Agreement to an affiliate
with ninety (90) days’ advance written notice to the Trust and except as provided in Section 2.02.
11.03 Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Wisconsin, without regard to its conflict of law provisions.
11.04 Severability. If any part, term or provision of this Agreement is determined by
the courts or any regulatory authority having jurisdiction over the issue to be illegal, in
conflict with any law or otherwise invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of the parties shall be construed and
enforced as if the Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
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11.05 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original; but such counterparts shall, together, constitute
only one instrument.
11.06 Non-Exclusivity; Other Agreements. The services of UMBFS hereunder are not
deemed exclusive and UMBFS shall be free to render similar and other services to others. Except as
specifically provided herein, this Agreement does not in any way affect any other agreements
entered into among the parties hereto and any actions taken or omitted by any party hereunder shall
not affect any rights or obligations of any other party hereunder.
11.07 Captions. The captions in the Agreement are included for convenience of reference
only, and in no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
11.08 Trust Limitations. This Agreement is executed by the Trust with respect to each
of the Funds and the obligations hereunder are not binding upon any of the trustees, officers or
shareholders of the Trust individually but are binding only upon the Fund to which such obligations
pertain and the assets and property of such Fund. All obligations of the Trust under this Agreement
shall apply only on a Fund-by-Fund basis, and the assets of one Fund shall not be liable for the
obligations of another Fund. The Trust’s Certificate of Trust is on file with the State of
Delaware.
11.09 Reliance on Information and Instructions. The Trustees of the Trust shall cause
the officers, trustees, investment adviser(s) and sub-advisers, legal counsel, independent
accountants, custodian and other service providers and agents, past or present, for the Funds to
cooperate with UMBFS and to provide UMBFS with such information, documents and advice as necessary
and/or appropriate or as requested by UMBFS, in order to enable UMBFS to perform its duties
hereunder. In connection with its duties hereunder, UMBFS shall (without investigation or
verification) be entitled, and is hereby instructed to, rely upon any and all instructions, advice,
information or documents provided to UMBFS by an officer or representative of the Funds or by any
of the aforementioned persons. UMBFS shall be entitled to rely on any document that it reasonably
believes to be genuine and to have been signed or presented by the proper party. Fees charged by
such persons shall be an expense of the Trust. UMBFS shall not be held to have notice of any change
of authority of any officer, agent, representative or employee of the Trust, investment adviser(s)
or service provider until receipt of written notice thereof from the Trust. As used in this
Agreement, the term “investment adviser” includes all sub-advisers or persons performing similar
services.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the day and year first above written.
UMB FUND SERVICES, INC. | XXXXXXXX CAPITAL MANAGEMENT TRUST | |||||||
By:
|
By: | /s/ Dail St. Claire | ||||||
(Signature) | (Signature) | |||||||
Dail St. Claire | ||||||||
(Name) | (Name) | |||||||
President | ||||||||
(Title) | (Title) | |||||||
1/25/07 | ||||||||
(Date Signed) | (Date signed) |
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Schedule A
to the
Transfer Agency Agreement
by and between
Xxxxxxxx Capital Management Trust
and
UMB Fund Services, Inc.
to the
Transfer Agency Agreement
by and between
Xxxxxxxx Capital Management Trust
and
UMB Fund Services, Inc.
NAMES OF FUNDS
Xxxxxxxx Capital Liquid Assets Fund
• | Institutional Shares | ||
• | Service Shares |
19
Schedule B
to the
Transfer Agency Agreement
by and between
Xxxxxxxx Capital Management Trust
and
UMB Fund Services, Inc.
to the
Transfer Agency Agreement
by and between
Xxxxxxxx Capital Management Trust
and
UMB Fund Services, Inc.
SERVICE SCHEDULE
• | Set up and maintain shareholder accounts and records, including IRAs and other retirement accounts | |
• | Make personal follow-up calls to prospects who return incomplete applications | |
• | Store account documents electronically | |
• | Receive and respond to investor account inquiries by telephone or mail, or by e-mail if the response does not require the reference to specific shareholder account information | |
• | Process purchase and redemption orders, transfers, and exchanges, including automatic purchases and redemptions via postal mail, telephone and personal delivery, provided payment for shares is in the form of a check, wire transfer or requested Automated Clearing House transfer, or such other means as the parties shall mutually agree | |
• | Process dividend payments by check, wire or ACH, or reinvest dividends | |
• | Issue daily transaction confirmations and monthly or quarterly statements | |
• | Issue comprehensive clerical confirmation statements for maintenance transactions | |
• | Provide cost basis statements | |
• | Mail prospectus, annual and semiannual reports, and other shareholder communications to existing shareholders | |
• | Implement the Trust’s AML Procedures as contemplated by Article VII | |
• | File IRS Forms 1099, 5498, 1042,1042-S and 945 with shareholders and/or the IRS | |
• | Handle load and multi-class processing, including rights of accumulation and purchases by letters of intent | |
• | Calculate 12b-l plan fees | |
• | Provide standards to structure forms and applications for efficient processing |
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• | Follow up on IRAs, soliciting beneficiary and other information and sending required minimum distribution reminder letters | |
• | Provide basic report access (one person) | |
• | Conduct periodic Postal clean-up |
The foregoing services do not include correcting, verifying or addressing any prior actions or
inactions by any Fund or by any prior service provider. To the extent UMBFS agrees to take such
actions, those actions taken shall be deemed part of this service schedule.
Optional Services
The Funds may contract with UMBFS to provide one or more of the following optional services.
Additional fees apply.
• | UMBFS’ Internet services, including Adviser Services, RIA/Broker Services, Shareholder Services, NAV Services, Vision, Adviser Central and email services. | |
• | UMBISG VRU services (per fund group) | |
• | Shareholder “welcome” packages with initial confirmation | |
• | Access to UMBFS’ Tax and Retirement Group to answer questions and coordinate retirement plan options | |
• | Money market funds for short-term investment or exchanges | |
• | Dedicated service representatives | |
• | Weekend and holiday shareholder services | |
• | Customized reorder form tracking | |
• | Give dealers access through NSCC’s Fund/SERV and Networking | |
• | Customized forms and applications | |
• | Training of adviser staff on regulatory developments |
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Schedule C
to the
Transfer Agent Agreement
by and between
Xxxxxxxx Capital Management Trust
and
UMB Fund Services, Inc.
to the
Transfer Agent Agreement
by and between
Xxxxxxxx Capital Management Trust
and
UMB Fund Services, Inc.
FEES
Base Fee |
||||
• Annual base fee per fund |
$ | 25,000 | ||
• Share classes in addition to the first (per month per class) |
$ | 750 | ||
Account Fees |
||||
• Open account fee: |
||||
• Quarterly/annual dividend funds |
$ | 10.00 | ||
• Monthly dividend funds |
$ | 10.50 | ||
• Money market funds |
$ | 11.00 | ||
• Additional for funds with redemption fees |
$ | .25 | ||
• Additional for funds with 12b-1 fees |
$ | .25 | ||
• Closed account fee (per year) |
$ | 3.50 | ||
• One-time set-up (manual, per account) |
$ | 3.00 | ||
• One-time set-up (automated NSCC, per account) |
$ | 1.00 | ||
• Transaction fee (e.g., financial, maintenance) |
$ | 1.50 | ||
• Automated transactions* |
$ | .25 |
* | includes NSCC activity processing, AIP/SWP/auto exchanges, dividends, any required IRS withholding |
USA Patriot Act & Escheatment Fees |
||||
• Per fund (per year) |
$ | 2,000 | ||
• Research (per item) |
$ | 2.50 | ||
• Additional account set-up (per non-individual account)* |
$ | 1.00 | ||
• Suspicious Activity Report filing (per occurrence) |
$ | 25.00 | ||
• Escheatment filing (per state) |
$ | 50.00 |
* | e.g., business account, trust account, partnership account, etc. |
Retirement Accounts (XXX/Xxxx/Others) |
||||
• Annual maintenance fee per account (may be charged to shareholders) |
$ | 15.00 | ||
• XXX transfer fee (per occurrence) |
$ | 7.50 |
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