TRANSFER AGENCY AND SERVICE AGREEMENT
between
SEI FINANCIAL MANAGEMENT CORPORATION
and
ARK FUNDS
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 1st day of November, 1995, by and between ARK
FUNDS, a Massachusetts business trust, having its principal office and place
of business at 000 X. Xxxxxxxxxx Xxxx, Xxxxx, XX 19087(the "Fund"), and SEI
Financial Management Corporation, a Delaware corporation having its principal
office and place of business at 000 X. Xxxxxxxxxx Xxxx, Xxxxx, XX 19087("SFM").
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Fund currently offers shares in ten (10) series listed on
Schedule A hereto (each such series, together with all other series
subsequently established by the Fund and made subject to this Agreement in
accordance with Article 10, are herein referred to individually as a
Portfolio, and collectively as the Portfolios);
WHEREAS, the Fund on behalf of the Portfolios desires to appoint SFM as
its transfer agent, dividend disbursing agent, and agent in connection with
certain other activities, and SFM desires to accept such appointment;
WHEREAS, SFM's compensation for services provided by it pursuant to this
Agreement shall be incorporated into the fee payable to SFM under an
Administration Agreement dated November 1, 1995 between the Fund and SFM.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article l Terms of Appointment; Duties of SFM
1.01 Subject to the terms and conditions set forth in this Agreement,
the Fund, on behalf of the Portfolios, hereby employs and appoints SFM to
act as, and SFM agrees to act, as its transfer agent for the authorized and
issued shares of beneficial interest of the Fund representing interests in
each of the respective Portfolios ("Shares"), dividend disbursing agent, and
agent in connection with any accumulation, open-account or similar plans
provided to the shareholders of each of the respective Portfolios of the Fund
("Shareholders") and set out in the currently effective prospectus and
statement of additional information ("prospectus") of the Fund relating to
the applicable Portfolio, including without limitation any periodic
investment plan or periodic withdrawal program.
1.02 SFM agrees that it will perform the following services:
(a) In accordance with any procedures which may be established from
time to time by agreement between the Fund on behalf of each of the
Portfolios, as applicable, and SFM, SFM shall:
(i) Receive for acceptance orders for the purchase of Shares and
promptly deliver payment and appropriate documentation thereof to
the custodian of the Fund authorized pursuant to the Declaration of
Trust of the Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(iv) With respect to the transactions in items (i), (ii) and (iii)
above, SFM may execute transactions directly with broker-dealers
authorized by the Fund (or the Distributor) who shall for such
purpose be deemed to be acting on behalf of the Fund;
(v) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemption, pay over or cause
to be paid over in the appropriate manner such monies as instructed
by the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(viii) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(ix) Record the issuance of Shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) a record of the total number of Shares which
are authorized, based upon data provided to it by the Fund, and
issued and outstanding. SFM shall also provide the Fund on a
regular basis with the total number of Shares which are authorized
and issued and outstanding and shall have no obligation, when
recording the issuance of Shares, to monitor the issuance of such
Shares or to take cognizance of any laws relating to the issue or
sale of such Shares, which functions shall be the sole responsibility
of the Fund; and
(x) SFM shall provide additional services on behalf of the Fund (e.g.,
escheatment services) which may be agreed upon in writing between
the Fund and SFM.
(b) In addition to and neither in lieu nor in contravention of the
services set forth in the above paragraph (a), SFM shall: (i) perform the
customary services of a transfer agent, dividend disbursing agent, and, as
relevant, agent in connection with accumulation, open-account or similar
plans (including without limitation any periodic investment plan or periodic
withdrawal program), including but not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
mailing Shareholder reports and prospectuses to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts, preparing,
mailing and filing U.S. Treasury Department Forms 1099 and other appropriate
forms required with respect to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing confirmation forms
and statements of account to Shareholders for all purchases and redemptions
of Shares and other confirmable transactions in Shareholder accounts,
preparing and mailing activity statements for Shareholders, and providing
Shareholder account information and (ii) provide a system which will enable
the Fund to monitor the total number of Shares sold in each State.
(c) The Fund shall (i) identify to SFM in writing those transactions and
assets to be treated as exempt from blue sky reporting for each State and
(ii) verify the establishment of transactions for each State on the system
prior to the effective date of this Agreement. The responsibility of SFM for
the Fund's blue sky State registration status is solely limited to monitoring
the daily activity for each State, the initial establishment of transactions
subject to blue sky compliance by the Fund and the reporting of such
transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these services in
Article 1 may be established from time to time by written agreement between
the Fund and SFM, whereby SFM may perform only a portion of these services
and the Fund or other agent may perform these services on each Portfolio's
behalf.
Article 2 Expenses
2.01 The Fund agrees on behalf of each of the Portfolios to reimburse
SFM for out-of-pocket expenses or advances incurred by SFM which include but
are not limited to: confirmation statements, postage, forms, audio response,
telephone, records retention, transcripts, microfiche, and expenses incurred
at the specific direction of the Fund.
Article 3 Representations and Warranties of SFM
SFM represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Delaware.
3.02 It is duly qualified to carry on its business in the states where it
is conducting business.
3.03 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
3.06 It is registered as a transfer agent pursuant to Section 17A of the
Securities Exchange Act of 1934.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to SFM that:
4.01 It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
4.02 It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
4.03 All proceedings required by said Declaration of Trust and By-Laws
have been taken to authorize it to enter into and perform this Agreement.
4.04 It is an open-end and management investment company registered
under the Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of 1933, as
amended, relating to the Shares of each of the Portfolios is currently
effective.
Article 5 Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by SFM as part of the Fund's
ability to access certain Fund-related data ("Customer Data") maintained by
SFM on data bases under the control and ownership of SFM or other third party
("Data Access Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of
substantial value to SFM or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Fund agrees to treat all
Proprietary Information as proprietary to SFM and further agrees that it shall
not divulge any Proprietary Information to any person or organization except
as may be provided hereunder. Without limiting the foregoing, the Fund
agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations as may be designated
in writing by SFM and solely in accordance with SFM's applicable
user documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any portion of
the Proprietary Information, and if such access is inadvertently
obtained, to inform SFM in a timely manner of such fact and
dispose of such information in accordance with SFM's instructions;
(d) to refrain from causing or allowing data acquired hereunder from
being retransmitted to any unauthorized computer facility or other
location, except with the prior written consent of SFM;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties; and
(f) to honor all reasonable written requests made by SFM to protect
at SFM's expense the rights of SFM in Proprietary Information at
common law, under federal copyright law and under other federal
or state law.
Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Article 5. The obligations of this
Article shall survive any earlier termination of this Agreement.
5.02 If the Fund notifies SFM that any of the Data Access Services do
not operate in material compliance with the most recently issued user
documentation for such services, SFM shall endeavor in a timely manner to
correct such failure. Organizations from which SFM may obtain certain data
included in the Data Access Services are solely responsible for the contents
of such data and the Fund agrees to make no claim against SFM arising out of
the contents of such third-party data, including, but not limited to, the
accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. SFM EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE
EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.03 If the transactions available to the Fund include the ability to
originate electronic instructions to SFM in order to (i) effect the transfer
or movement of cash or Shares or (ii) transmit Shareholder information or
other information (such transactions constituting a "COEFI"), then in such
event SFM shall be entitled to rely on the validity and authenticity of such
instruction without undertaking any further inquiry as long as such instruction
is undertaken in conformity with security procedures established by SFM from
time to time.
Article 6 Indemnification
6.01 SFM shall not be responsible for, and the Fund shall indemnify
and hold SFM harmless from and against, any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions of SFM or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in
good faith and without negligence or willful misconduct.
(b) The Fund's lack of good faith, negligence or willful misconduct or
which arise out of the breach of any representation or warranty of the Fund
hereunder.
(c) The reliance on or use by SFM or its agents or subcontractors of
information, records, documents or services which (i) are received by SFM or
its agents or subcontractors, and (ii) have been prepared, maintained or
performed by the Fund or any other person or firm on behalf of the Fund
including but not limited to any previous transfer agent or registrar, provided
that such actions are taken in good faith and without negligence or willful
misconduct.
(d) The reliance on, or the carrying out by SFM or its agents or
subcontractors of any instructions or requests of the Fund on behalf of the
applicable Portfolio, provided that such actions are taken in good faith and
without negligence or willful misconduct.
(e) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities laws or regulations
of any state that such Shares be registered in such state or in violation of
any stop order or other determination or ruling by any federal agency or any
state with respect to the offer or sale of such Shares in such state, provided
that such actions are taken in good faith and without negligence or willful
misconduct.
6.02 At any time SFM may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by SFM under this
Agreement, and SFM and its agents or subcontractors shall not be liable and
shall be indemnified by the Fund on behalf of the applicable Portfolio for any
action taken or omitted by it in reliance upon such instructions or upon the
written opinion of such counsel. SFM, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document furnished by
or on behalf of the Fund, reasonably believed to be genuine and to have been
signed by the proper person or persons, or upon any instruction, information,
data, records or documents provided SFM or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means
authorized by the Fund, and shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the Fund.
6.03 In order that the indemnification provisions contained in this
Article 6 shall apply, upon the assertion of a claim for which the Fund may
be required to indemnify SFM, SFM shall promptly notify the Fund of such
assertion, and shall keep the Fund advised with respect to all developments
concerning such claim. The Fund shall have the option to participate with SFM
in the defense of such claim or to defend against said claim in its own name
or in the name of SFM. SFM shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to indemnify SFM
except with the Fund's prior written consent.
Article 7 Standard of Care
7.01 SFM shall at all times act in good faith and agrees to use its best
efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not
be liable for loss or damage due to errors unless said errors are caused by
its negligence, bad faith, or willful misconduct or that of its employees.
Article 8 Covenants of the Fund and SFM
8.01 The Fund shall promptly furnish to SFM the following:
(a) A certified copy of the resolution of the Board of Trustees of
the Fund authorizing the appointment of SFM and the execution and delivery of
this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Fund and
amendments thereto.
8.02 SFM hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of check forms
and facsimile signature imprinting devices, if any; and for the preparation
or use, and for keeping account of, such forms and devices.
8.03 SFM shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the Investment Company Act of 1940, as amended, and
the Rules thereunder, SFM agrees that all such records prepared or maintained
by SFM relating to the services to be performed by SFM hereunder are the
property of the Fund and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered promptly to
the Fund on and in accordance with its request.
8.04 SFM and the Fund agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any
other person, except as may be required by law.
8.05 In case of any requests or demands for the inspection of the
Shareholder records of any Portfolio of the Fund, SFM will endeavor to notify
the Fund and to secure instructions from an authorized officer of the Fund as
to such inspection. SFM reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that
it may be held liable for the failure to exhibit the Shareholder records to
such person unless (in cases involving potential exposure only to civil
liability) the Fund has agreed to indemnify SFM against such liability.
Article 9 Termination of Agreement
9.01 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
9.02 Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne
by the Fund on behalf of the applicable Portfolio(s). Additionally, SFM
reserves the right to charge for any other reasonable expenses associated
with such termination up to a maximum of $20,000.
Article 10 Additional Funds
10.01 In the event that the Fund establishes one or more additional
series of Shares with respect to which it desires to have SFM render services
as transfer agent under the terms hereof, it shall notify SFM in writing, and
if SFM agrees in writing to provided such services, such series of Shares
shall become a Portfolio hereunder.
Article 11 Assignment
11.01 Except as provided in Section 11.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party
without the written consent of the other party.
11.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
11.03 SFM may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered
as a transfer agent pursuant to Section 17A(c)(1) of the Securities Exchange
Act of 1934, as amended ("Section 17A(c)(1)"), (ii) a BFDS subsidiary duly
registered as a transfer agent pursuant to Section 17A(c)(1) or (iii) a BFDS
affiliate; provided, however, that SFM shall be as fully responsible to the
Fund for the acts and omissions of any subcontractor as it is for its own
acts and omissions.
Article 12 Amendment
12.01 This Agreement may be amended or modified by a written agreement
executed by both parties.
Article 13 Massachusetts Law to Apply
13.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts without regard to the conflict of laws, provisions thereof.
Article 14 Force Majeure
14.01 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable to the other
for any damages resulting from such failure to perform or otherwise from such
causes.
Article 15 Consequential Damages
15.01 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for
any consequential damages arising out of any act or failure to act hereunder.
Article 16 Merger of Agreement
16.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the
subject matter hereof whether oral or written.
Article 17 Counterparts
17.01 This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
ARK FUNDS
BY: /s/
Xxxxxxx Xxxxx
Vice President
ATTEST:
/s/
Xxxxx Xxxxxxxx
SEI FINANCIAL MANAGEMENT CORPORATION
BY: /s/
Xxxxxxx X. Xxxxxxx
Vice President
ATTEST:
/s/
Xxxxxxxx Xxxxxx
SCHEDULE A
TO THE TRANSFER AGENCY
AND SERVICE AGREEMENT
DATED
November 1, 1995
U.S. Treasury Money Market
U.S. Government Money Market
Money Market
Tax-Free Money Market
Income
Growth and Income
Capital Growth
International Equity
Special Equity
Maryland Tax-Free
