TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this 5th day of October,
1998, by and between The Xxxxx Funds, a Delaware business trust (the "Trust")
and Firstar Mutual Fund Services, LLC, a limited liability company organized
under the laws of the State of Wisconsin (the "Agent").
WHEREAS, the Trust is an open-end management investment company
which is registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); 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 Trust and the Agent do mutually promise and
agree as follows:
1. Terms of Appointment; Duties of the Agent
Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employ and appoint 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, with prompt
delivery, where appropriate, of payment and supporting
documentation to the Trust's custodian;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such
uncertificated shares being held in the appropriate
shareholder account;
C. Process redemption requests received in good order and,
where relevant, deliver appropriate documentation to the
Trust's custodian;
D. Pay monies upon receipt from the Trust's custodian, where
relevant in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the
shareowner's instructions;
F. Process exchanges between series of the Trust and other
funds managed by Xxxxx Capital Management, Inc., the Trust's
investment adviser;
G. Issue and cancel certificates as instructed; replace lost,
stolen or destroyed certificates upon receipt of
satisfactory indemnification or surety bond;
H. Prepare and transmit payments for dividends and
distributions declared by the Trust;
I. Make changes to shareholder records, including, but not
limited to, address changes in plans (i.e., systematic
withdrawal, automatic investment, dividend reinvestment,
etc.);
J. Record the issuance of shares of the Trust and maintain,
pursuant to Rule 17Ad-10(e) under Securities Exchange Act of
1934, as amended (the "Exchange Act"), a record of the total
number of shares of the Trust which are authorized, issued
and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to current
shareholders;
M. Prepare and file U.S. Treasury Department Form 1099 and
other appropriate information required with respect to
dividends and distributions for all shareholders;
N. 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 Trust; and
O. Provide a Blue Sky System which will enable the Trust to
monitor the total number of shares sold in each state. In
addition, the Trust shall identify to the Agent in writing
those transactions and assets to be treated as exempt from
the Blue Sky reporting to the Trust for each state. The
responsibility of the Agent for the Trust's Blue Sky state
registration status is solely limited to the initial
compliance by the Trust and the reporting of such
transactions to the Trust.
2. Compensation
The Trust agrees to pay the Agent for performance of the duties
listed in this Agreement in accordance with the attached Schedule A; 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. If the Trust elects
to terminate this Agreement prior to the first anniversary of this Agreement,
the Trust agrees to reimburse Agent for the difference between the standard fee
schedule and the discounted fee schedule agreed to between the parties.
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The Trust agrees to pay all fees and reimbursable expenses within
ten (10) business days following receipt of the billing notice.
3. Representations of Agent
The Agent represents and warrants to the Trust that:
A. It is a limited liability company duly organized, existing
and in good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
C. It is duly qualified to carry on its business in the state
of Wisconsin;
D. It is empowered under applicable laws and by its charter
and bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to
authorize it to enter and perform this Agreement; and
F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties
and obligations under this Agreement.
G. It will comply with all applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), the
Exchange Act, the 1940 Act, and any laws, rules, and
regulations of governmental authorities having jurisdiction.
4. Representations of the Trust
The Trust represent and warrant to the Agent that:
A. The Trust is an open-end diversified investment company under
the 1940 Act;
B. The Trust is a business trust organized, existing, and in good
standing under the laws of the State of Delaware;
C. The Trust is empowered under applicable laws and by its Trust
Instrument and bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Trust Instrument
have been taken to authorize it to enter into and perform this
Agreement;
E. The Trust will comply with all applicable requirements of the
Securities Act, the Exchange Act, the 1940 Act, and any laws,
rules and regulations of governmental authorities having
jurisdiction; and
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F. A registration statement under the Securities Act 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 Trust being offered
for sale.
5. Covenants of the Trust and Agent
The Trust shall furnish the Agent a certified copy of the resolution
of the Board of Trustees of the Trust (the "Board") authorizing the appointment
of the Agent and the execution of this Agreement. The Trust shall provide to the
Agent a copy of the Trust Instrument, bylaws of the Trust, 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 1940 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
Trust and will be preserved, maintained and made available in accordance with
such section and rules and will be surrendered to the Trust on and in accordance
with its request.
6. Indemnification; Remedies Upon Breach
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 Trust 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 Trust
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 Trust, 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.
Further, the Trust 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 Trust or the principal underwriter
(unless contributed to by the Agent's breach of this Agreement or other
Agreements between the Trust 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,
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countersigned, or executed by any person or persons authorized to sign,
countersign, or execute the same.
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 Trust
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 Trust may be asked
to indemnify or hold the Agent harmless, the Trust 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
Trust promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Trust.
The Trust shall have the option to defend the Agent against any claim which may
be the subject of this indemnification. In the event that the Trust so elects,
it will so notify the Agent and thereupon the Trust 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 Trust will be asked to indemnify the Agent except with the
Trust's prior written consent.
The Agent shall indemnify and hold the Trust 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 Trust 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.
7. Confidentiality
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the Trust and its
shareholders and shall not be disclosed to any other party, except after prior
notification to and approval in writing by the Trust, which approval shall not
be unreasonably withheld and may not be withheld where the Agent may be exposed
to civil or criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities.
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8. Additional Series
The Trust is authorized to issue separate classes of shares of
beneficial interest representing interests in separate investment portfolios.
The parties intend that each portfolio established by the Trust, now or in the
future, be covered by the terms and conditions of this agreement.
9. Records
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 Trust but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the 1940 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 Trust and will be preserved,
maintained, and made available with such section and rules of the 1940 Act and
will be promptly surrendered to the Trust on and in accordance with its request.
10. Wisconsin Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state of Wisconsin.
11. Amendment, Assignment, Termination and Notice
A. This Agreement may be amended by the mutual written consent of
the parties.
B. This Agreement may be terminated upon ninety (90) days'
written notice given by one party to the other.
C. This Agreement and any right or obligation hereunder may not
be assigned by either party without the signed, written
consent of the other party.
D. 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 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000. If to the Trust, such notice should be sent
to 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000.
E. In the event that the Trust gives to the Agent its written
intention to terminate and appoints 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.
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F. Should the Trust exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be paid by the Trust.
12. Year 2000 Compliance
The Agent represents that it has examined and tested its internal
systems which have been developed to support the services outlined herein, and
as of the date of this Agreement, has no knowledge of any situation or
circumstance that will inhibit the systems' ability to perform the expected
functions, or inhibit the Agent's ability to provide the expected services as a
result of any business interruptions or other business problems relating to
dates or days before, during, and after the year 2000. In connection with the
foregoing, the Agent represents that it has made reasonable inquiry of its
business partners and other entities with whom it conducts business and has
carefully considered the responses of those third-parties.
The Xxxxx Funds Firstar Mutual Fund Services, LLC
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxx X. Xxxxxxx
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Print: Xxxxxx X. Xxxxxxxx Print: Xxx X. Xxxxxxx
Title: CFO Title: Senior Vice President
Date: October 5, 1998 Date: October 5, 1998
Attest: /s/ Xxxxx Xxxx Attest: /s/ Xxxxxxx X. Xxxxxx
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