Exhibit 99.10(A)
TRANSFER AGENCY AND REGISTRAR AGREEMENT
AGREEMENT, as of __________, 1996, between SIERRA PRIME INCOME FUND,
(the "Trust"), a Massachusetts business trust having its principal place of
business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, and Sierra Fund
Administration Corporation ("Sierra Administration," the "Transfer Agent") a
corporation organized under the laws of California.
WITNESSETH
That for and in consideration of the mutual covenants and promises
hereinafter set forth, the Trust and the Transfer Agent agree as follows:
1. Definitions. Whenever used in this Agreement, the following words
and phrases, unless the context otherwise requires, shall have the following
meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, Partnership Agreement, or similar
organizational document as the case may be, of the Trust as the same may be
amended from time to time.
(b) "Authorized Persons" shall be deemed to include any
person, whether or not such person is an officer or employee of the Trust, duly
authorized to give Oral Instructions or Written Instructions on behalf of the
Trust as indicated in a certificate furnished to the Transfer Agent pursuant to
Section 4(c) hereof as may be received by the Transfer Agent from time to time.
(c) "Board of Trustees" shall mean the Board of Trustees of
the Trust.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Trust may from time to time deposit, or
cause to be deposited or held under the name or account of such a custodian
pursuant to a Custodian Agreement.
(f) "Oral instructions" shall mean instructions, other than
Written Instructions, actually received by the Transfer Agent from a person
reasonably believed by the Transfer Agent to be an Authorized Person.
(g) "Prospectus" shall mean the most recently dated Trust
Prospectus and Statement of Additional Information, including any supplements
thereto if any, which has become effective under the Securities Act of 1933 and
the 1940 Act.
(h) "Shares" refers collectively to such shares of capital
stock beneficial interest or limited partnership interests, as the case may be,
of the Trust as may be issued from time to time and, if the Trust is a
closed-end or a series fund, as such terms are used in the 1940 Act any other
classes or series of stock shares of beneficial interest or limited partnership
interests that may be issued from time to time.
(i) "Shareholder" shall mean a holder of shares of capital
stock beneficial interest or any other class or series, and also refers to
partners of limited partnerships.
(j)"Trust" refers to Sierra Prime Income Fund, and such other
separate and distinct portfolios as may be established and designated by the
Trust and as agreed upon by the Trust and the Transfer Agent.
(k) "Written Instructions" shall mean a written communication
signed by a person reasonably believed by the Transfer Agent to be an Authorized
Person and actually received by the Transfer Agent. Written instructions shall
include manually executed originals and authorized electronic transmissions,
including telefacsimile of a manually executed original or other process.
(1) "1940 Act" shall mean the Investment Company Act of 1940
and the Rules and Regulations promulgated thereunder, as amended from time to
time.
2. Appointment of the Transfer Agent. The Trust hereby appoints and
constitutes the Transfer Agent as transfer agent registrar and dividend
disbursing agent for Shares of the Trust and as shareholder servicing agent for
the Trust. The Transfer Agent accepts such appointments or appoints a service
agent and agrees to perform the duties hereinafter set forth.
3. Compensation.
(a) The Trust will compensate or cause the Transfer Agent to
be compensated for the performance of its obligations hereunder in accordance
with the fees set forth in the written schedule of fees annexed hereto as
Schedule A and incorporated herein. The Transfer Agent will transmit an invoice
to the Trust as soon as practicable after the end of each calendar month which
will be detailed in accordance with Schedule A, and the Trust will pay to the
Transfer Agent the amount of such invoice as soon as reasonable after the
Trust's receipt of the invoice.
In addition, the Trust agrees to pay, and will be billed
separately for, out-of-pocket expenses incurred by the Transfer Agent and its
service agent in the performance of the duties hereunder. Out-of-pocket expenses
shall include, but shall not be limited to, the items specified in the written
schedule of out-of-pocket charges annexed hereto as Schedule B and incorporated
herein. Schedule B may be modified by the Transfer Agent upon not less than 30
days' prior written notice to the Trust.
Unspecified out-of-pocket expenses shall be limited to those
out-of-pocket expenses reasonably incurred by the Transfer Agent and its service
agent in the performance of the obligations hereunder. Reimbursement by the
Trust for expenses incurred by the Transfer Agent and its service agent in any
month shall be made as soon as practicable after receipt of an itemized xxxx
from the Transfer Agent.
(b) Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule A, a revised fee schedule executed and
dated by the parties hereto.
4. Documents. In connection with the appointment of the Transfer Agent,
the Trust shall deliver or cause to be delivered to the Transfer Agent or its
service agent the following documents on or before the date this Agreement goes
into effect, but in any case within a reasonable period of time for the Transfer
Agent and its service agent to prepare to perform its duties hereunder:
(a) All account application forms and other documents relating
to Shareholder accounts or to any plan, program or service offered by the
Trust.
(b) A signature card bearing the signatures of any officer of
the Trust or other Authorized Person who will sign Written Instructions or is
authorized to give Oral Instructions.
(c) A certified copy of the Articles of Incorporation.
(d) A certified copy of the By-laws of the Trust, as amended.
(e) A copy of the resolution of the Board of Trustees
authorizing the execution and delivery of this Agreemant.
(f) A certified list of Shareholders of the Trust with the
name, address and taxpayer identification number of each Shareholder, and the
number of Shares of the Trust held by each, certificate numbers and
denominations (if any certificates have been issued), lists of any accounts
against which stop transfer orders have been placed, together with the reasons
therefore, and the number of Shares redeemed by the Trust.
(g) An opinion of counsel for the Trust with respect to the
validity of the Shares and the status of such Shares under the Securities Act of
1933, as amended.
5. Further Documentation. The Trust will also furnish the Transfer
Agent and its service agent with copies of the following documents promptly
after the same shall become available:
(a) each resolution of the Board of Trustees authorizing the
issuance of Shares;
(b) any registration statements filed on behalf of the Trust
and all pre-effective and post-effective amendments thereto filed with the
Commission;
(c) a certified copy of each amendment to the Articles of
Incorporation or the Bylaws of the Trust;
(d) certified copies of each resolution of the Board of
Trustees or other authorization designating Authorized Persons; and
(e) such other certificates, documents, or opinions as the
Transfer Agent may be reasonably requested in connection with the performance of
its duties hereunder.
6. Representations of the Trust. The Trust represents to the Transfer
Agent that all outstanding Shares are validly issued, fully paid and
non-assessable. When Shares are hereafter issued in accordance with the terms of
the Trust's Articles of Incorporation and its Prospectus, such Shares shall be
validly issued, fully paid and non-assessable.
7. Distributions Payable in Shares. In the event that the Board of
Trustees of the Trust shall declare a distribution payable in Shares, the Trust
shall deliver or cause to be delivered to the Transfer Agent or its service
agent written notice of such declaration signed on behalf of the Trust by an
officer thereof, upon which the Transfer Agent or its service agent shall be
entitled to rely for all purposes, certifying (i) the identity of the Shares
involved, (ii) the number of Shares involved, and (iii) that all appropriate
action has been taken.
8. Duties of the Transfer Agent. The Transfer Agent or its designee
shall be responsible for administering and/or perfoming those functions
typically performed by a transfer agent; for acting as service agent in
connection with dividend and distribution functions; and for performing
shareholder account and administrative agent functions in connection with the
issuance, transfer, and redemption or repurchase (including coordination with
the Custodian) of Shares in accordance with the terms of the Prospectus and
applicable law. The operating standards and procedures to be followed shall be
determined from time to time by agreement between the Trust and the Transfer
Agent and shall initially be as described in Schedule C attached hereto. In
addition, the Trust shall deliver to the Transfer Agent all notices issued by
the Trust with respect to the Shares in accordance with and pursuant to the
Articles of Incorporation or By-laws of the Trust or as required by law and
shall perform such other specific duties as are set forth in the Articles of
Incorporation including the giving of notice of any special or annual meeting of
shareholders and any other notices required thereby.
9. Record Keeping and Other Information. The Transfer Agent shall
create and maintain all records required of it pursuant to its duties hereunder
and as set forth in Schedule C in accordance with all applicable laws, rules and
regulations, including records required by Section 31(a) of the 1940 Act. All
records shall be available during regular business hours for inspection and use
by the Trust. Where applicable, such records shall be maintained by the Transfer
Agent and its designee for the periods and in the places required by Rule 31a-2
under the 1940 Act.
Upon reasonable notice by the Trust, the Transfer Agent and its
designee shall make available during regular business hours such of its
facilities and premises employed in connection with the performance of its
duties under this Agreement for reasonable visitation by the Trust, or any
person retained by the Trust as may be necessary for the Trust to evaluate the
quality of the services performed by the Transfer Agent pursuant hereto.
10. Other Duties. In addition to the duties set forth in Schedule C,
the Transfer Agent shall perform such other duties and functions, and shall be
paid such amounts therefore, as may from time to time be agreed upon in writing
between the Trust and the Transfer Agent. The compensation for such other duties
and functions shall be reflected in a written amendment to Schedule A or B and
the duties and functions shall be reflected in an amendment to Schedule C, both
dated and signed by authorized persons of the parties hereto.
11. Reliance by Transfer Agent: Instructions
(a) The Transfer Agent will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Trust pursuant to Section 4(b).
(b) At any time, the Transfer Agent may apply to any
Authorized Person of the Trust for Written Instructions and may seek advice from
legal counsel for the Trust, or its own legal counsel, with respect to any
matter arising in connection with this Agreement, and it shall not be liable for
any action taken or not taken or suffered by it in good faith in accordance with
such Written Instructions or in accordance with the opinion of counsel for the
Trust or for the Transfer Agent. Written Instructions requested by the Transfer
Agent will be provided by the Trust within a reasonable period of time. In
addition, the Transfer Agent, its officers, agents or employees, shall accept
Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Trust only if said representative is an
Authorized Person. The Trust agrees that Oral Instructions shall be followed
within one business day by confirming Written Instructions, and that the Trust's
failure to so shall not impair in any respect the Transfer Agent's right to rely
on Oral Instructions. The Transfer Agent shall have no duty or obligation to
inquire into, nor shall the Transfer Agent be responsible for, the legality of
any act done by it upon the request or direction of a person reasonably believed
by the Transfer Agent to be an Authorized Person.
(c) Notwithstanding any of the foregoing provisions of this
Agreement, the Transfer Agent shall be under no duty or obligation to inquire
into, and shall not be liable for: (i) the legality of the issuance or sale of
any Shares or the sufficiency of the amount to be received therefor; (ii) the
legality of the redemption of any Shares, or the propriety of the amount to be
paid therefor; (iii) the legality of the declaration of any dividend by the
Board of Trustees, or the legality of the issuance of any Shares in payment of
any dividend; or (iv) the legality of any recapitalization or readjustment of
the Shares.
12. Acts of God, etc. The Transfer Agent will not be liable or
responsible for delays or errors by acts of God or by reason of circumstances
beyond its control including acts of civil or military authority, national
emergencies, labor difficulties, mechanical breakdown, insurrection, war, riots,
or failure or unavailability of transportation, communication or power supply,
fire, flood or other catastrophe.
13. Duly of Care and Indemnification. The Trust will indemnify the
Transfer Agent against and hold it harmless from any and all losses, claims,
damages, liabilities or expenses of any sort or kind (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit or
other proceeding (a "Claim") unless such Claim has been judicially determined to
have resulted from a negligent failure to act or omission to act or bad faith of
the Transfer Agent in the performance of its duties hereunder. In addition, the
Trust will indemnify the Transfer Agent against and hold it harmless from any
claim, damages, liabilities, or expenses (including reasonable counsel fees)
that is a result of- (i) any action taken in accordance with Written or Oral
Instructions, or any other instructions reasonably believed by the Transfer
Agent to be genuine and to be signed, countersigned or executed, or orally
communicated by an Authorized Person; (ii) any action taken in accordance with
written or oral advice reasonably believed by the Transfer Agent to have been
given by counsel for the Trust or its own counsel; or (iii) any action taken as
a result of any error or omission in any record (including but not limited to
magnetic tapes, computer printouts, hard copies and microfilm copies) delivered,
or caused to be delivered by the Trust to the Transfer Agent in connection with
this Agreement.
In any case in which the Trust may be asked to indemnify or hold
the Transfer Agent harmless, the Trust shall be advised of all pertinent facts
concerning the situation in question. The Transfer Agent will notify the Trust
promptly after identifying any situation which it believes presents or appears
likely to present a claim for indemnification against the Trust although the
failure to do so shall not prevent recovery by the Transfer Agent. Trust shall
have the option to defend the Transfer Agent against any Claim which may be the
subject of this indemnification, and, in the event that the Trust so elects,
such defense shall be conducted by counsel chosen by the Trust and satisfactory
to the Transfer Agent, and thereupon the Trust shall take over complete defense
of the Claim and the Transfer Agent shall sustain no further legal or other
expenses in respect of such claim. The Transfer Agent will not confess any Claim
or make any compromise in any case in which the Trust will be asked to provide
indemnification, except with the Trust's prior written consent. The obligations
of the parties hereto under this Section shall survive the termination of this
Agreement.
14. Consequential Damages. In no event and under no circumstances shall
either party under this Agreement be liable to the other party for consequential
or indirect loss of profits, reputation or business or any other special damages
under any provision of this Agreement or for any act or failure to act
hereunder.
15. Term and Termination.
(a) This Agreement shall be effective on the date first
written above and shall continue for one year, and thereafter shall
automatically continue for successive annual periods ending on the anniversary
of the date first written above, provided that it may be terminated by either
party upon written notice given at least 90 days prior to such anniversary date.
(b) In the event a termination notice is given by the Trust,
it shall be accompanied by a resolution of the Board of Trustees, certified by
the Secretary of the Trust, designating a successor transfer agent. Upon such
termination and at the expense of the Trust, the Transfer Agent will deliver to
such successor a certified list of shareholders of the Trust (with names and
addresses), and all other relevant books, records, correspondence and other
Trust records or data in the possession of the Transfer Agent, and the Transfer
Agent will cooperate with the Trust and any successor transfer agent or agents
in the substitution process.
16. Confidentiality. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed to any other person without the consent of the other party,
except as may be required by applicable law or at the request of the Commission
or other governmental agency. The parties further agree that a breach of this
provision would irreparably damage the other party and accordingly agree that
each of them is entitled, without bond or other security, to an injunction or
injunctions to prevent breaches of this provision.
17. Amendment. This Agreement may only be amended or modified by a
written instrument executed by both parties.
18. Subcontracting. The Trust agrees that the Transfer Agent may, in
its discretion, subcontract for certain of the services described under this
Agreement or the Schedules hereto; provided that the appointment of any such
Transfer Agent shall not relieve the Transfer Agent of its responsibilities
hereunder.
19. Miscellaneous.
(a) Notices. Any notice or other instrument authorized or
required by this Agreement to be given in writing to the Trust or the Transfer
Agent, shall be sufficiently given if addressed to that party and received by it
at its office set forth below or at such other place as it may from time to time
designate in writing.
To the Trust:
Sierra Prime Income Fund
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: F. Xxxxx Xxxxxx, President
with a copy to: Xxxxxxx X. Xxxxx, Esq.
Xxxxxx, Xxxxx & Bockius
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Xxxxxxxx X. Xxxxxxx, Esq.
O'Melveney & Xxxxx
1999 Avenue of the Stars, Xxxxx 000
Xxx Xxxxxxx, XX 00000
To the Transfer Agent:
Sierra Fund Administration Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
(b) Successors. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns,
provided, however, that this Agreement shall not be assigned to any person other
than a person controlling, controlled by or under common control with the
assignor without the written consent of the other party, which consent shall not
be unreasonably withheld.
(c) Governing Law. This Agreement shall be governed
exclusively by the laws of the State of California.
(d) 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.
(e) Captions. The captions of this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(f) Independent Contractors. The parties agree that they are
independent contractors and not partners or co-venturers.
(g) Entire Agreement: Severability. This Agreement and the
Schedules attached hereto constitute the entire agreement of the parties hereto
relating to the matters covered hereby and supersede any previous agreements. If
any provision is held to be illegal, unenforceable or invalid for any reason,
the remaining provisions shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized officers, as of the day and year first
above written.
SIERRA PRIME INCOME FUND
By____________________________
F. Xxxxx Xxxxxx
Title_________________________
Chairman
SIERRA FUND ADMINISTRATION CORP.
By____________________________
Name
Title_________________________
