TRANSFER AGENT SERVICING AGREEMENT
This
Agreement between Kinetics
Mutual Funds, Inc., a Maryland corporation,(the "Fund"), and
Kinetics Portfolios Trust, a Delaware business
trust, (the "Portfolio") and U.S. Bancorp Fund Services, LLC, a
Wisconsin limited liability company, ("USBFS") is amended and
restated this 1st day of January, 2002.
WHEREAS,
the Fund and the Portfolio
are investment companies registered under the Investment Company Act of 1940;
and
WHEREAS,
the Agent is a limited
liability company and, among other things, is in the business of administering
transfer and dividend disbursing agent functions for the benefit of its
customers;
NOW,
THEREFORE, the Fund and the
Portfolio and the Agent do mutually promise and agree as follows:
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1.
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Terms
of
Appointment; Duties of the
Agent
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Subject
to the terms and conditions
set forth in this Agreement, the Fund and
the Portfolio hereby appoints
and employees the Agent to act as transfer agent and dividend
disbursing agent.
The
Agent shall perform all of the
customary services of a transfer agent
and 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:
A. Receive
orders for the purchase of shares;
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B.
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Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such uncertificated
shares being held in the appropriate shareholder
account;
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C. Process
redemption requests received in good order;
D. Pay
monies in accordance with the instructions of redeeming
shareholders;
E. Process
transfers of shares in accordance with the shareowner's
instructions;
F. Process
exchanges between funds within the same family of funds;
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G.
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Issue
and/or cancel certificates as instructed; replace lost, stolen or
destroyed certificates upon receipt of satisfactory indemnification
or
surety bond;
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H.
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Prepare
and transmit payments for dividends and distributions declared by
the Fund
and the Portfolio;
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I.
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Make
changes to shareholder records, including, but not limited to, address
changes in plans (i.e., systematic withdrawal, automatic investment,
dividend reinvestment, etc.);
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1
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J.
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Record
the issuance of shares of the Fund and the Portfolio and maintain,
pursuant to Securities Exchange Act of 1934 Rule 17ad-10(e), a record
of
the total number of shares of the Fund and the Portfolio which are
authorized, issued and outstanding;
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K. Prepare
shareholder meeting lists and, if applicable, mail, receive and tabulate
proxies;
L. Mail
shareholder reports and prospectuses to current shareholders;
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M.
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Prepare
and file U.S. Treasury Department forms 1099 and other
appropriate information returns required with respect to dividends
and
distributions for all shareholders;
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N.
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Provide shareholder account
information upon request and prepare and
mail confirmations and statements of account to
shareholders for all purchases, redemptions and
other confirmable transactions as agreed upon with
the Fund and the Portfolio; and
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O.
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Provide
a Blue Sky System which will enable the Fund and the Portfolio to
monitor
the total number of shares sold in each state. In addition, the Fund
and
the Portfolio shall identify to the Agent in writing those transactions
and assets to be treated as exempt from the Blue Sky reporting to
the Fund
and the Portfolio for each state.
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P. Support
NSCC-Fund/SERV functionality including all networking levels (1-4).
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Q.
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Reimburse
the Fund and the Portfolio each month for all material losses resulting
from "as of" processing errors for which the Agent is responsible
in
accordance with the "as of" processing guidelines set forth in the
attached Exhibit B.
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2.
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Compensation
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The
Fund and the Portfolio agrees to
pay the Agent for performance of the duties listed in this Agreement; the fees
and out-of-pocket expenses include, but are not limited to the
following: printing, postage, forms, stationery, record retention,
mailing, insertion, programming, labels, shareholder lists and proxy
expenses.
These
fees and reimbursable expenses
may be changed from time to time subject to mutual written agreement between
the
Fund and the Portfolio and the Agent.
The
Fund and the Portfolio agrees to
pay all fees and reimbursable expenses within ten (10) business days following
the mailing of the billing notice.
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3.
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Representations
of
Agent
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The
Agent represents and warrants to
the Fund and the Portfolio that:
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A.
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It
is a Limited Liability Company duly organized, existing and in good
standing under the laws of
Wisconsin;
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B. It
is a registered transfer agent under the Securities Exchange Act of 1934 as
amended.
C. It
is duly qualified to carry on
its business in the state of
Wisconsin;
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D.
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It
is empowered under applicable laws and by its LLC Agreement to enter
into
and perform this Agreement;
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E.
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All
requisite corporate proceedings have been taken to authorize it to
enter
and perform this Agreement; and
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F.
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It
has and will continue to have access to
the necessary facilities, equipment and
personnel to perform its duties
and obligations under this
Agreement.
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G.
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It
will comply with all applicable requirements of the Securities
Act of 1933 and
the Securities Exchange Act of
1934, as amended, the
Investment Company Act of 1940, as amended, and any
laws, rules, and regulations of governmental authorities having
jurisdiction.
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4.
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Representations
of
the Fund and the Portfolio
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The
Fund
and the Portfolio represents and warrants to the Agent that:
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A.
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The
Fund and the Portfolio is an open-ended investment company under
the
Investment Company Act of 1940;
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B.
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The
Fund and the Portfolio is a corporation organized, existing, and
in good
standing under the laws of
Maryland;
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C.
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The
Fund and the Portfolio is empowered under applicable
laws and by
its Corporate Charter and bylaws
to enter into and perform this
Agreement;
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D.
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All
necessary proceedings required by the Corporate Charter have been
taken to
authorize it/them to enter into and perform this
Agreement;
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E.
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The Fund and the Portfolio will comply with all applicable
requirements of the Securities Act of 1933 and the Securities Exchange
Act
of
1934, as amended, the Investment Company Act
of 1940, as
amended, and any laws, rules and regulations of governmental
authorities having jurisdiction;
and
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F.
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A
registration statement under the Securities Act of 1933 is currently
effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be
made, with respect to all shares of the Fund and the Portfolio
being offered for sale.
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3
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5.
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Covenants
of Fund
and the Portfolio and
Agent
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The
Fund and the Portfolio shall
furnish the Agent a certified copy of the resolution of the Board of Directors
of the Fund and the Portfolio authorizing the appointment of the Agent and
the
execution of this Agreement. The Fund and the Portfolio shall provide
to the Agent a copy of the Corporate Charter, bylaws of the Corporation and
all
amendments.
The
Agent 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, the Agent agrees that
all such records prepared or
maintained by the Agent relating to
the services to be performed by the Agent hereunder are
the property of the Fund and the Portfolio and will be preserved, maintained
and
made available in accordance with such section and rules and will
be surrendered to the Fund and
the Portfolio on and
in accordance with its request.
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6.
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Indemnification;
Remedies Upon Breach
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The
Agent shall exercise reasonable
care in the performance of its duties under this Agreement. The Agent shall
not
be liable for any error of judgment or mistake of law or for
any loss suffered by
the Fund and the Portfolio in
connection with matters to which
this Agreement relates, including losses
resulting from mechanical breakdowns or the failure
of communication or power supplies beyond the
Agent's control, except a loss resulting from the Agent's
refusal or failure to comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the
performance of its duties under this Agreement. Notwithstanding any other
provision of this Agreement, the Fund and
the Portfolio shall indemnify and
hold harmless the Agent from and against any and all claims,
demands, losses, expenses, and liabilities (whether with
or without basis in fact
or law) of any
and every nature (including reasonable
attorneys' fees) which the Agent may sustain or incur or which may be
asserted against the Agent by any
person arising out of any action taken or
omitted to be taken by it in performing the services hereunder (i) in accordance
with the foregoing standards, or (ii)
in reliance upon any written or oral
instruction provided to the Agent by any duly authorized officer of the Fund
and
the Portfolio, such duly authorized officer to
be included in a list of
authorized officers furnished to the Agent and as amended
from time to time in writing by resolution of the Board of the Fund and the
Portfolio.
Further, the
Fund and
the Portfolio will indemnify and
hold the Agent harmless against any and all
losses, claims, damages, liabilities or
expenses (including reasonable counsel fees
and expenses) resulting from any claim,
demand, action, or suit as
a result of the negligence of
the Fund and the Portfolio or the
principal underwriter (unless contributed to
by the Agent's breach of this Agreement or other agreements between
the Fund and the Portfolio and the Agent, or the Agent's
own negligence or bad faith); or as a result of the
Agent acting upon telephone instructions relating to
the exchange or redemption of shares received by the Agent
and reasonably believed by the Agent under a standard of
care customarily used in the industry to
have originated from the record owner of
the subject shares; or as a
result of acting in reliance upon any genuine
instrument or stock certificate signed, countersigned, or executed by any person
or persons authorized to sign, countersign, or execute the same. The
Fund and the Portfolio will
also indemnify and hold the Agent harmless against any and
all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees
and expenses) resulting from any claim,
demand, action, or suit that arises as a result of the
Agent, acting upon the
written or telephonic instructions of
the President of
the Fund and the Portfolio, on a
shareholder by
shareholder basis, facilitating the purchase,
redemption or exchange of shares of any series of the Fund and the
Portfolio to any
non-U.S. resident, (unless contributed to
by the Agent's breach of this
Agreement
or other agreements between the Fund and the Portfolio and the Agent, or the
Agent's own negligence or bad faith).
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In
the event of a mechanical
breakdown or failure of communication or power
supplies beyond its control, the
Agent shall take all reasonable steps to
minimize service interruptions for any period that such
interruption continues beyond
the Agent's control. The Agent will
make every reasonable effort to restore any
lost or damaged data and correct any
errors resulting from such a breakdown at the expense of
the Agent. The Agent agrees that it shall, at
all
times, have reasonable contingency plans
with appropriate parties, making
reasonable provision for emergency use of electrical data
processing equipment to the
extent appropriate equipment is
available. Representatives of the Fund and
the Portfolio shall
be entitled to inspect the Agent's premises and
operating capabilities at any time during regular business
hours of the Agent, upon reasonable notice to the Agent.
Regardless
of the above, the Agent
reserves the right to reprocess and correct administrative errors at its own
expense.
In
order that
the indemnification provisions contained in
this section shall apply, it is understood that if in any case the
Fund and the Portfolio may be asked to indemnify or hold the
Agent harmless, the Fund and the Portfolio
shall be fully and promptly advised of
all pertinent facts concerning the
situation in question, and it is further understood that the Agent
will use all reasonable care to notify the Fund and the
Portfolio promptly concerning any
situation which presents or appears likely to present the probability
of such a claim for indemnification against the Fund and the
Portfolio. The Fund and the Portfolio shall have the option to defend
the Agent against any claim which may be the subject of this
indemnification. In the event that the Fund and the Portfolio so
elects, it will so notify the Agent and thereupon the Fund and the Portfolio
shall take over complete defense of the claim, and the Agent shall in such
situation initiate no further legal or other expenses for which it shall seek
indemnification under this section. The Agent shall in no case confess any
claim
or make any compromise in any case in which the
Fund and the Portfolio will be asked to indemnify the
Agent except with the Fund and the Portfolio's prior
written consent.
The
Agent shall indemnify and hold
the Fund and the Portfolio harmless from and against any and
all claims, demands, losses, expenses, and liabilities
(whether with or without basis in
fact or law) of
any and every nature
(including reasonable attorneys' fees) which
may be asserted against the Fund and the Portfolio by any person arising out
of
any action taken or omitted to be taken by the Agent as a result of the
Agent's refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
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7.
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Proprietary
and
Confidential Information
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USBFS
agrees on behalf of itself and
its directors, officers, and employees to treat confidentially and as
proprietary information of the Fund all records and
other information relative to the Fund and
prior, present, or potential shareholders (and
clients of said shareholders) and not to use such records and
information for any purpose other than the performance if
its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Fund, which approval
shall not be unreasonably withheld and may not be
withheld where USBFS may be exposed to civil or
criminal contempt proceedings for failure to comply after
being requested to divulge such information by duly constituted
authorities, or when so requested by the Fund.
Further,
USBFS will adhere to the
privacy policies adopted by the Fund pursuant to Title V of the
Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time (the
"Act"). Notwithstanding the foregoing, USBFS will not share nay
nonpublic personal information concerning any of the
Fund's shareholders with any third party unless specifically directed
by the Fund or allowed under on the exceptions noted under the Act.
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Further,
federal examiners shall have
access to information and records relating to anti-money laundering activities
performed by USBFS hereunder and USBFS consents to
any inspection authorized by law or regulation in
connection thereof.
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8.
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Additional
Series
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In
the event that the Fund and the
Portfolio establishes one or more series of shares with respect to which it
desires to have Agent render transfer agent services, under the terms
hereof, it shall so notify Agent in writing, and if Agent
agrees in writing to provide such services, such series will be subject to
the
terms and conditions of this Agreement.
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9.
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Records
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The
Agent shall
keep records relating to
the services to be performed
hereunder, in the form and manner, and for such period as it may deem
advisable and is agreeable to the Fund and
the Portfolio but
not inconsistent with the rules and regulations
of appropriate government authorities, in
particular, Section 31 of The Investment Company Act of
1940 as amended (the "Investment Company Act"), and the
rules thereunder. The Agent agrees that all such records prepared or
maintained by The Agent relating to the services to be performed by
the Agent hereunder are the property of the Fund and the
Portfolio and will be preserved, maintained, and
made available with such section and rules of the
Investment Company Act and will
be promptly surrendered to the Fund and the
Portfolio on and in accordance with its request.
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10.
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Governing
Law
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This
Agreement shall be construed in
accordance with the laws of the State of Wisconsin. However nothing herein
shall
be construed in a manner inconsistent with the Investment Company Act of 1940
or
any rule or regulation promulgated by the SEC thereunder.
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11.
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Term
and
Termination
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This
Agreement shall
become effective as of the day and year first written above and shall
continue in full force and effect automatically for
successive
annual periods, which automatic renewal shall
be ratified by the Board of Trustees and Board
of Directors by April 1st of
each calendar year, unless
otherwise terminated as provided herein. This
Agreement may be terminated by either party at any time upon giving 90 days
prior written notice to the other party or such shorter period as is mutually
agreed upon by the parties. This Agreement may be replaced or
modified by a subsequent agreement between the parties.
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In
the event that the Fund and the
Portfolio gives to the Agent its written intention to terminate and appoint
a
successor transfer agent, the Agent agrees
to cooperate in the transfer of its duties and responsibilities to
the successor, including any and
all relevant books, records and other data
established or maintained by the Agent under this Agreement. Should the Fund
and
the Portfolio exercise its right
to terminate, all out-of-pocket expenses
associated with the movement of records
and material will be paid by the Fund and the
Portfolio.
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12.
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Amendment,
Assignment and Notice
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A. This
Agreement may be amended by the mutual written consent of the
parties.
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B.
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This
Agreement and any right or obligation hereunder may not be assigned
by
either party without the signed, written consent of the other
party.
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C.
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Any
notice required to be given by the parties to each other under the
terms
of this Agreement shall be in writing, addressed and delivered, or
mailed
to the principal place of business of the other party. If to the
agent,
such notice should to be sent to:
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Firstar
Mutual Fund Services,
LLC
000
Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
If
to the Fund and the Portfolio, such
notice should be sent to:
Kinetics
Mutual Funds, Inc. / Kinetics
Portfolio Trust
0000
Xxxxxxxxxx Xxxxxx, Xxxxx
000
Xxxxx
Xxxxxx,
XX 00000
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13.
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Merger
of
Agreement
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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.
IN
WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by a duly authorized officer
or
one or more counterparts as of the day and year first written
above.
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Kinetics
Mutual Funds, Inc./Kinetics Portfolio Trust
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U.S.
Bancorp Fund Services, LLC
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By: /s/Xxxxxx
Xxxxxxxx
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By: /s/Xxxxxxx
XxXxx
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Print
Name: Xxxxxx Xxxxxxxx
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Print
Name: Xxxxxxx XxXxx
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Title:
Treasurer
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Title:
Senior Vice Presicent
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