EXHIBIT 99(h)(2)
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TRANSFER AGENCY SERVICE AGREEMENT
between
SARATOGA ADVANTAGE TRUST
and
ORBITEX FUND SERVICES, INC.
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INDEX
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SECTION 1. APPOINTMENTAND DELIVERY OF DOCUMENTS...............................3
SECTION 2. DUTIES OF OFS.....................................................4
SECTION 3. RECORD KEEPING....................................................7
SECTION 4. ISSUANCE AND TRANSFER OF SHARES...................................9
SECTION 5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS.............9
SECTION 6. FEES AND EXPENSES................................................10
SECTION 7. REPRESENTATIONS AND WARRANTIES...................................11
SECTION 8. STANDARD OF CARE AND INDEMNIFICATION.............................12
SECTION 9. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY..................14
SECTION 10. CONFIDENTIALITY. ................................................15
SECTION 11. PROPRIETARY INFORMATION..........................................15
SECTION 12. EFFECTIVE DATE, TERM, AND TERMINATION............................15
SECTION 13. ADDITIONAL FUNDS AND CLASSES.....................................16
SECTION 14. ASSIGNMENT.......................................................16
SECTION 15. TAXES............................................................16
SECTION 16. MISCELLANEOUS....................................................17
Schedule A ...................................................................20
Schedule B ...................................................................21
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SARATOGA ADVANTAGE TRUST
TRANSFER AGENCY SERVICE AGREEMENT
AGREEMENT made as of the 23rd day of November, 2002, by and between the
SARATOGA ADVANTAGE TRUST, a New York business trust, having its principal office
and place of business at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, XX 00000
(the "Trust"), and ORBITEX FUND SERVICES, INC., a New York corporation having
its principal office and place of business at the Hauppauge Corporate Center,
000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 (`OFS").
WHEREAS, the Trust is an open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares ("Shares") in separate
series, with each such series representing interests in a separate portfolio of
securities and other assets, and is authorized to divide those series into
separate classes; and
WHEREAS, the Trust offers shares in the series as listed in Schedule A
hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 12, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of the classes of each Fund as listed in
Schedule B hereto (each such class together with all other classes subsequently
established by the Trust in a Fund being herein referred to as a "Class," and
collectively as the "Classes");
WHEREAS, the Trust desires to appoint OFS as its transfer agent and
dividend disbursing agent for each Fund and Class thereof and OFS desires to
accept such appointment on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and OFS hereby agree as follows:
SECTION 1. APPOINTMENTAND DELIVERY OF DOCUMENTS
(a) Appointment. The Trust, on behalf of each Fund listed in Schedule A and
on behalf of certain funds which are anticipated to be merged into the
Trust as identified in Schedule B hereof, if and when such merger
occurs, hereby appoints OFS to act as, and OFS agrees to act as (i)
transfer agent for the authorized and issued shares of common stock of
the Trust representing interests in each of the respective Funds and
Classes thereof ("Shares"), (ii) dividend disbursing agent and (iii)
agent in connection with any accumulation, open-account or similar
plans provided to the registered owners of shares of any of the Funds
("Shareholders") as set out in the currently effective prospectuses and
statements of additional information of the applicable Fund, including,
without limitation, any periodic investment plan or periodic withdrawal
program.
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(b) Document Delivery. In connection therewith, upon OFS' request, the
Trust has delivered or will deliver to OFS copies of:
(i) the Trust's Declaration of Trust, Trust Instrument and By-laws
(collectively, as amended from time to time, "Organic
Documents"),
(ii) the Trust's Registration Statement and all amendments thereto
filed with the U.S. Securities and Exchange Commission ("SEC")
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the Investment Company Act of 1940, as
amended (the "1940 Act")(the "Registration Statement"),
(iii) the current Prospectus and Statement of Additional Information
of each Fund (collectively, as currently in effect and as
amended or supplemented, the "Prospectus"),
(iv) each current plan of distribution or similar document adopted
by the Trust under Rule 12b-1 under the 1940 Act ("Plan") and
each current shareholder service plan or similar document
adopted by the Trust ("Service Plan"),
(v) the advisory agreement with respect to each investment
Portfolio of the Funds,
(vi) the distribution/underwriting agreement with respect to each
Class of Shares of the Funds, and
(vii) each Portfolio's administration agreement if OFS is not
providing the Portfolio with such services.
(c) Amendments. The Trust shall promptly furnish OFS with all amendments of or
supplements to the foregoing and shall deliver to OFS a certified copy of
the resolution of the Board of Trustees of the Trust (the "Board")
appointing OFS and authorizing the execution and delivery of this
Agreement.
SECTION 2. DUTIES OF OFS
(a) Transfer Agency Services. In accordance with procedures established from
time to time by agreement between the Trust on behalf of each of the Funds,
as applicable, and OFS, OFS will perform the following services:
(i) provide the 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) that are customary for open-end
management investment companies including:
(A) maintaining all Shareholder accounts;
(B) preparing Shareholder meeting lists;
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(C) mailing proxies, receiving and tabulating proxies;
(D) mailing Shareholder reports and prospectuses to current
Shareholders;
(E) withholding taxes on U.S. resident and non-resident alien
accounts;
(F) preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required by federal authorities with
respect to distributions for Shareholders;
(G) 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; and
(H) providing account information in response to inquiries from
Shareholders.
(ii) receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefore to
the Custodian of the Trust authorized by the Board of Trustees of
the Trust (the "Custodian"); or, in the case of a Fund operating in
a master-feeder or fund of funds structure, to the transfer agent or
interest-holder record keeper for the master portfolios in which the
Fund invests;
(iii) pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the
appropriate documentation therefore to the Custodian or, in the case
of Fund operating in a master-feeder or fund of funds structure, to
the transfer agent or interest-holder record keeper for the master
portfolios in which the Fund invests;
(v) as and when it receives monies paid to it by the Custodian with
respect to any redemption, pay the redemption proceeds as required
by the Prospectus pursuant to which the redeemed Shares were offered
and as instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate instructions
from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by the
Trust with respect to Shares;
(viii)receive from Shareholders or debit Shareholder accounts for sales
commissions, including contingent deferred, deferred and other sales
charges, and service fees (i.e., wire redemption charges) and
prepare and transmit payments to underwriters, selected dealers and
others for commissions and service fees received;
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(ix) track shareholder accounts by financial intermediary source and
otherwise as requested by the Trust and provide periodic reporting
to the Trust or its administrator or other agent; 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 of the Fund which
are authorized, based upon data provided to it by the Fund, issued
and outstanding; and
(x) provide a system which will enable the Trust to calculate the total
number of Shares of each Fund and Class thereof sold in each State.
(b) Other Services. OFS shall provide the following additional services on
behalf of the Trust and such other services agreed to in writing by the
Trust and OFS:
(i) monitor and make appropriate filings with respect to the escheatment
laws of the various states and territories of the United States.
(c) Blue Sky Matters. The Trust or its administrator or other agent:
(i) shall identify to OFS in writing those transactions and assets to be
treated as exempt from reporting for each state and territory of the
United States and for each foreign jurisdiction (collectively
"States"); and
(ii) shall monitor the sales activity with respect to Shareholders
domiciled or residing in each State.
(d) Lost Shareholders. OFS shall perform such services as are required in order
to comply with Rules 17a-24 and 17Ad-17 of the 1934 Act (the "Lost
Shareholder Rules"), including, but not limited to, those set forth below.
OFS may, in its sole discretion, use the services of a third party to
perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply with the
Lost Shareholder Rules; and
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
(e) Safekeeping. OFS shall establish and maintain facilities and procedures
reasonably acceptable to the Trust for the safekeeping, control,
preparation and use of share certificates, check forms, and facsimile
signature imprinting devices. OFS shall also establish and maintain
facilities and procedures reasonably acceptable to the Trust for
safekeeping of all records maintained by OFS pursuant to this Agreement.
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(f) DDA Accounts. OFS may in its sole discretion, establish DDA accounts in
order to better facilitate control over the subscription and redemption
process. The sole responsibility for the placement of such assets shall be
that of OFS.
(g) Cooperation with Accountants. OFS shall cooperate with each Fund's
independent public accountants and shall take reasonable action to make all
necessary information available to the accountants for the performance of
the accountants' duties.
(h) Lost, Stolen or Mutilated Certificates. OFS shall place a stop notice
against any certificate reported to be lost or stolen and comply with all
applicable federal regulatory requirements for reporting such loss or
alleged misappropriation. OFS shall issue share certificates and
replacement share certificates for those share certificates alleged to have
been lost, stolen, or destroyed upon receipt by OFS of indemnification
satisfactory to OFS and protecting OFS and the Trust and, at the option of
OFS, issue replacement certificates in place of mutilated share
certificates upon presentation thereof without requiring indemnification.
(i) Withdrawal of Shares and Cancellation of Certificates. Upon receipt of
written instructions from the Trust, OFS shall cancel outstanding
certificates surrendered by the Trust to reduce the total amount of
outstanding shares by the number of shares surrendered by the Trust.
(j) Responsibility for Compliance with Law.
(i) In General. Except with respect to OFS' duties as set forth in this
Section 2 and except as otherwise specifically provided herein, the
Trust assumes all responsibility for ensuring that the Trust complies
with all applicable requirements of the Securities Act, the 1940 Act
and any laws, rules and regulations of governmental authorities with
jurisdiction over the Trust. All references to any law in this
Agreement shall be deemed to include reference to the applicable rules
and regulations promulgated under authority of the law and all
official interpretations of such law or rules or regulations.
(ii) Issuance of Shares. The responsibility of OFS for the Trust's state
registration status is solely limited to the reporting of transactions
to the Trust, and OFS 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 Trust or its
administrator or other agent.
SECTION 3. RECORD KEEPING
(a) Record keeping. OFS shall keep records relating to the services to be
performed under this Agreement, in the form and manner as it may deem
advisable and as required by applicable law. To the extent required by
Section 31 of the 1940 Act, and the rules thereunder, OFS agrees that all
such records prepared or maintained by OFS relating to the services to be
performed by OFS under this Agreement are the property of the Trust and
will be
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preserved, maintained and made available in accordance with Section 31 of
the 1940 Act and the rules thereunder, and will be surrendered promptly to
the Trust on and in accordance with the Trust's request at. the expense of
the Trust, provided that all fees and expenses charged by OFS in the
performance of its duties hereunder including all reasonable deconversion
fees have been fully paid to the satisfaction of OFS. The Trust and the
Trust's authorized representatives shall have access to OFS' records
relating to the services to be performed under this Agreement at all times
during OFS' normal business hours. Upon the reasonable request of the
Trust, copies of any such records shall be provided promptly by OFS to the
Trust or its authorized representatives. OFS shall maintain the following
shareholder account information:
(i) name, address and United States Tax Identification or Social Security
number;
(ii) number and Class of Shares held and number and Class of Shares for
which certificates, if any, have been issued, including certificate
numbers and denominations;
(iii) historical information regarding the account of each Shareholder,
including dividends and distributions paid and the date and price for
all transactions on a Shareholder's account;
(iv) any stop or restraining order placed against a Shareholder's account;
(v) any correspondence relating to the current maintenance of a
Shareholder's account;
(vi) information with respect to withholdings; and
(vii) any information required in order for OFS to perform any calculations
by this Agreement
(b) Confidentiality of Records. OFS and the Trust 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.
(c) Inspection of Records by Others. In case of any requests or demands for the
inspection of the Shareholder records of the Fund, OFS will endeavor to
notify the Fund and to secure instructions from an authorized officer of
the Fund as to such inspection. OFS 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, and shall promptly notify the Fund of any request
to inspect or copy the shareholder records of the Fund or the receipt of
any other request to inspect, copy or produce the records of the Fund.
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SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Issuance of Shares. OFS shall make original issues of Shares of each Fund
and Class thereof in accordance with the Trust's then current prospectus
only upon receipt of:
(i) instructions requesting the issuance,
(ii) a certified copy of a resolution of the Board authorizing the
issuance,
(iii) necessary funds for the payment of any original issue tax applicable
to such Shares, and
(iv) an opinion of the Trust's counsel as to the legality and validity of
the issuance, which opinion may provide that it is contingent upon the
filing by the Trust of an appropriate notice with the SEC, as required
by Section 24 of the 1940 Act or the rules thereunder. If such opinion
is contingent upon a filing under Section 24 of the 1940 Act, the
Trust shall indemnify OFS for any liability arising from the failure
of the Trust to comply with that section or the rules thereunder.
(b) Transfer of Shares. Transfers of Shares of each Fund and Class thereof
shall be registered on the Shareholder records maintained by OFS. In
registering transfers of Shares, OFS may rely upon the Uniform Commercial
Code as in effect in the State of Nebraska or any other statutes that, in
the opinion of OFS' counsel, protect OFS and the Trust from liability
arising from:
(i) not requiring complete documentation;
(ii) registering a transfer without an adverse claim inquiry;
(iii) delaying registration for purposes of such inquiry; or
(iv) refusing registration whenever an adverse claim requires such refusal.
As Transfer Agent, OFS will be responsible for delivery to the
transferor and transferee of such documentation as is required by the
Uniform Commercial Code.
SECTION 5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Purchase Orders. Shares shall be issued in accordance with the terms of a
Fund's or Class' prospectus after OFS or its agent receives either:
(i) (A) an instruction directing investment in a Fund or Class, (B) a
check (other than a third party check) or a wire or other electronic
payment in the amount designated in the instruction and (C), in the
case of an initial purchase, a completed account application; or
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(ii) the information required for purchases pursuant to a selected dealer
agreement, processing organization agreement, or a similar contract
with a financial intermediary.
(b) Distribution Eligibility. Shares issued in a Fund after receipt of a
completed purchase order shall be eligible to receive distributions of the
Fund at the time specified in the prospectus pursuant to which the Shares
are offered.
(c) Determination of Federal Funds. Shareholder payments shall be considered
Federal Funds no later than on the day indicated below unless other times
are noted in the prospectus of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System, on
the second Fund Business Day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as OFS is credited with Federal
Funds with respect to that check.
SECTION 6. FEES AND EXPENSES
(a) Fees. For the services provided by OFS pursuant to this Agreement, the
Trust, on behalf of each of the seven (7) portfolios listed on Schedule A
attached hereto, agrees to pay OFS, on a monthly basis, the transfer agent
fees, activity charges and, special report charges as set forth below and
on behalf of certain funds which are anticipated to be merged into the
Trust at the fees set forth and as identified in Schedule B attached
hereto, if and when such merger occurs. Fees will begin to accrue for each
Fund on the latter of the date of this Agreement or the date of
commencement of operations of the Fund. Charges per open account shall be
$11.00 for the first 30,000 accounts, $5.00 for the next 35,000 accounts,
$4.00 for the next 35,000 accounts, and $2.00 for all other accounts. The
charge for each closed account shall be $1.50 and the charge for each new
account shall be $5.00. Activity fees for use of OFS' 24-hour automated
voice response activity shall be: 1) $750.00 per complex for initial set-up
(one-time), 2) $50.00 per Fund monthly charge, and 3) $2.50 per each
customer service call. Transaction processing charges shall be: $1.00 per
manual transaction and $5.00 per new account opening (manual), $0.40 per
account for new account opening (electronic), $0.00 for incoming XXX
transfer from a prior custodian, and $25.00 for XXX transfer to successor
custodian. OFS shall charge an internet access fee of $0.05 per hit for
each shareholder/adviser/broker hit. For each share certificate issued by
OFS, a $15.00 charge will be assessed to the Fund for which the share
certificate was issued. All special reports and/or analyses requested by
the Trust, shall be subject to an additional charge, agreed upon in
advance, based upon the following rates: OFS senior staff - $150.00/hr.,
OFS junior staff - $75.00/hr. and computer time- $45.00/hr.
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(b) Expenses. In addition to the fees paid under subsection (a), the Trust
agrees to reimburse OFS for out-of-pocket expenses or advances incurred by
OFS including, but not limited to the following: telephone and toll-free
lines, printing fund documents, bank fees, NSCC charges, postage, pre and
post sale fulfillment, proxy services, tax reporting, XXX bank custody fees
(XXX fees will not be charged to shareholder accounts), record storage,
fund stationary and supplies, postage and courier charges, and all other
out-of-pocket expenses incurred on behalf of the Trust. In addition, the
Trust will reimburse any other expenses incurred by OFS at the request or
with the consent of the Trust.
(c) Fee Changes. The fees, out-of pocket expenses and advances identified in
the subsections (a) and (b) above and in Section 12 (d) hereof may be
changed from time to time subject to mutual written agreement between the
Trust and OFS.
(d) Due Date. All fees under subsection (a) above and Section 12(d) hereof are
due and payable within ten (10) days of receipt of the invoice. All
expenses under subsection (b) above are due and payable within fifteen (15)
days of receipt of the invoice.
SECTION 7. REPRESENTATIONS AND WARRANTIES
(a) Representations of OFS. OFS represents and warrants to the Trust that:
(i) it is a corporation duly organized and existing and in good standing
under the laws of the State of New York;
(ii) it is duly qualified to carry on its business; it is empowered under
applicable laws and by its Articles of Incorporation and Bylaws to
enter into this Agreement and perform its duties under this Agreement;
(iii)it has access to the necessary facilities, equipment, and personnel
to perform its duties and obligations under this Agreement; and
(iv) it is registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934 and shall continue to be registered
throughout the remainder of this Agreement.
(b) Representations of the Trust. The Trust represents and warrants to OFS
that:
(i) it is a Trust duly organized and existing and in good standing under
the laws of the State of New York;
(ii) it is empowered under applicable laws and by its Organic Documents to
enter into and perform this Agreement;
(iii)all proceedings required by said Organic Documents have been taken to
authorize it to enter into and perform this Agreement;
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(iv) it is an open-end management investment company registered under the
Investment Company Act of 1940; and
(v) a registration statement under the Securities Act of 1933 is currently
effective and will remain effective, and appropriate state securities
law filings as required, have been or will be made and will continue
to be made, with respect to all Shares of the Fund being offered for
sale.
SECTION 8. STANDARD OF CARE AND INDEMNIFICATION
(a) Standard of Care of OFS. OFS shall be under no duty to take any action
except as specifically set forth herein or as may be specifically agreed to
by OFS in writing. OFS shall use its best judgment and efforts in rendering
the services described in this Agreement. OFS shall not be liable to the
Trust or any of the Corporation's shareholders for any action or inaction
of OFS relating to any event whatsoever in the absence of bad faith,
willful misfeasance or negligence in the performance of OFS' duties or
obligations under this Agreement or by reason of OFS' reckless disregard of
its duties and obligations under this Agreement.
(b) Indemnification of OFS. OFS shall not be responsible for, and the Trust
shall on behalf of each applicable Fund or Class thereof indemnify and hold
OFS harmless from and against, any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributable to:
(i) all actions of OFS 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;
(ii) the Trust's lack of good faith or the Trust's negligence or willful
misconduct;
(iii)the reliance on or use by OFS or its agents or subcontractors of
information, records or documents which (A) are received by OFS or its
agents or subcontractors and furnished to it by or on behalf of the
Trust, and (B) have been prepared or maintained by the Trust or any
other person or firm on behalf of the Trust, other than American Data
Services, Inc.;
(iv) the reasonable reliance on, or the carrying out by OFS or its agents
or subcontractors of, any instructions or requests of the Trust on
behalf of the applicable Fund;
(v) theTrust's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trust's lack good faith,
negligence or willful misconduct or which arise out of the breach of
any representation or warranty of the Trust hereunder; and
(vi) 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
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determination or ruling by any federal agency or any State with
respect to the offer or sale of such Shares in such State.
The Trust shall not be required to indemnify any OFS Indemnitee if, prior
to confessing any Claim against the OFS Indemnitee, OFS or the OFS Indemnitee
does not give the Trust written notice of and reasonable opportunity to defend
against the claim in its own name or in the name of the OFS Indemnitee.
(c) Indemnification of the Trust. OFS shall indemnify and hold the Trust and
each Fund or Class thereof harmless from and against any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of or attributed to any action or failure or omission
to act by OFS as a result of OFS' lack of good faith, negligence or willful
misconduct with respect to the services performed under or in connection
with this Agreement except that in no event shall OFS be liable to the
Trust and each Fund or class therof for any amount in excess of the fees
paid to it during the most recent 12 month period prior to any assertion of
liability against OFS. OFS shall not be liable to the Funds for any error
of judgment or mistake of law or for any loss arising out of any act or
omission by OFS in the performance of its duties hereunder except as
hereinafter set forth. Nothing herein contained shall be construed to
protect OFS against any liability to the Funds or their security holders to
which OFS shall otherwise be subject by reason of willful misfeasance, bad
faith, negligence in the performance of its duties on behalf of the Funds,
or reckless disregard of OFS' obligations and duties under this Agreement
or the willful violation of any applicable law.
(d) Reliance. At any time OFS may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust or to OFS
with respect to any matter arising in connection with the services to be
performed by OFS under this Agreement, and OFS and its agents or
subcontractors shall not be liable and shall be indemnified by the Trust on
behalf of the applicable Fund for any action taken or omitted by it in
reasonable reliance upon such instructions or upon the advice of such
counsel. OFS, its agents and subcontractors shall be protected and
indemnified in acting upon:
(i) any paper or document furnished by or on behalf of the Trust,
reasonably believed by OFS to be genuine and to have been signed by
the proper person or persons;
(ii) any instruction, information, data, records or documents provided OFS
or its agents or subcontractors by machine readable input, telex, CRT
data entry or other similar means authorized by the Trust; and
(iii) any authorization, instruction, approval, item or set of data, or
information of any kind transmitted to OFS in person or by telephone,
vocal telegram or other electronic means, reasonably believed by OFS
to be genuine and to have been given by the proper person or persons.
OFS shall not be held to have notice of any change of authority of any
person, until receipt of written notice thereof from the Trust. OFS,
its agents and subcontractors shall also be protected and indemnified
in recognizing share certificates which are reasonably believed to
bear the proper
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manual or facsimile signatures of the officers of the Trust, and the
proper countersignature of any former transfer agent or former
registrar or of a co-transfer agent or co-registrar of the Trust.
(e) Reliance on Electronic Instructions. If the Trust has the ability to
originate electronic instructions to OFS in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event OFS 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 OFS from time to
time.
(f) Use of Fund/Serv and Networking. The Trust has authorized or in the future
may authorize OFS to act as a "Mutual Fund Services Member" for the Trust
or various Funds and Classes. Fund/SERV and Networking are services
sponsored by the National Securities Clearing Trust ("NSCC") and as used
herein have the meanings as set forth in the then current edition of NSCC
RULES AND PROCEDURES published by NSCC or such other similar publication as
may exist from time to time. The Trust shall indemnify and hold OFS
harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising directly
or indirectly out of or attributed to any action or failure or omission to
act by NSCC.
(g) Notification of Claims. In order that the indemnification provisions
contained in this Section shall apply, upon the assertion of a claim for
which either party may be required to indemnify the other, the party
seeking indemnification shall promptly notify the other party of such
assertion, and shall keep the other party advised with respect to all
developments concerning such claim. The party who may be required to
indemnify shall have the option to participate with the party seeking
indemnification in the defense of such claim or to defend against said
claim in its own name or in the name of the other party. The party seeking
indemnification shall in no case confess any claim or make any compromise
in any case in which the other party may be required to indemnify it except
with the other party's prior written consent.
SECTION 9. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not be
liable for any obligations of the Trust or of the Funds under this Agreement,
and OFS agrees that, in asserting any rights or claims under this Agreement, it
shall look only to the assets and property of the Fund (or Funds) to which OFS'
rights or claims relate in settlement of such rights or claims, and not to the
Trustees of the Trust or the shareholders of the Funds. The term "Saratoga
Advantage Trust" means and refers to the Trustees from time to time serving
under the Trust's Declaration of Trust as the same may subsequently thereto have
been or subsequently hereto be, amended. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
trustees, shareholders, nominees, officers, agents or employees of the Trust
personally, but bind only the trust property of the Trust, as provided in the
Declaration of Trust of the Trust. The execution and delivery of this Agreement
have been authorized by the trustees and
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shareholders of the Trust and signed by the officers of the Trust, acting as
such, and neither such authorization by such trustees and shareholders nor such
execution and delivery by such officers shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Trust as provided in its Declaration
of Trust. A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of State of New York.
SECTION 10. CONFIDENTIALITY
OFS and the Trust 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 this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any
other person, except that OFS may:
(a) prepare or assist in the preparation of periodic reports to Shareholders
and regulatory bodies such as the SEC; and
(b) release such other information as approved in writing by the Trust which
approval shall not be unreasonably withheld and may not be withheld where
OFS may be exposed to civil or criminal contempt proceedings for failure to
release the information, when requested to divulge such information by duly
constituted authorities or when so requested by the Trust or the Adviser.
SECTION 11. PROPRIETARY INFORMATION
(a) Proprietary Information of OFS. The Trust acknowledges that the databases,
computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals maintained by OFS on databases under
the control and ownership of OFS or a third party constitute copyrighted,
trade secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to OFS or the third party. The Trust
agrees to treat all Proprietary Information as proprietary to OFS and
further agrees that it shall not divulge any Proprietary Information to any
person or organization except as may be provided under this Agreement or
required by law.
(b) Proprietary Information of the Trust. OFS acknowledges that the Shareholder
list and all information related to Shareholders furnished to OFS by the
Trust or by a Shareholder in connection with this Agreement (collectively,
"Customer Data") constitute proprietary information of substantial value to
the Trust. In no event shall Proprietary Information be deemed Customer
Data. OFS agrees to treat all Customer Data as proprietary to the Trust and
further agrees that it shall not divulge any Customer Data to any person or
organization except as may be provided under this Agreement or as maybe
directed by the Trust or required by law.
SECTION 12. EFFECTIVE DATE, TERM, AND TERMINATION
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(a) Effective Date. This Agreement shall become effective on January 27, 2003.
(b) Term. This Agreement shall remain in effect for a period of three (3) years
from the date it becomes effective and shall continue in effect for
successive twelve-month periods unless terminated by either party pursuant
to Section 11(c) below.
(c) Termination: This Agreement can be terminated upon ninety (90) days prior
written notice by either party. Compensation due OFS and unpaid by the
Trust upon such termination shall be immediately due and payable upon, and
notwithstanding, such termination.
(d) Reimbursement of OFS' Expenses. 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, as well as a data
de-conversion fee of $10,000 per portfolio. Additionally, OFS reserves the
right to charge for any other reasonable expenses associated with such
termination.
(e) Survival of Certain Obligations. The obligations of Sections 6, 8, 9, 10
and 11 shall survive any termination of this Agreement.
SECTION 13. ADDITIONAL FUNDS AND CLASSES
If the Trust establishes one or more series of Shares or one or more
Classes of Shares after the effectiveness of this Agreement, such series of
Shares or Classes of Shares, as the case may be, shall become Funds and Classes
under this Agreement; provided, however, that either OFS or the Trust may elect
not to make any such series or Classes subject to this Agreement.
SECTION 14. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement nor
any rights or obligations under this Agreement may be assigned by either party
with the written consent of the other party. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective permitted
successors and assigns. OFS may, without further consent on the part of the
Trust, at OFS' expense subcontract for the performance hereof with any entity,
including affiliated persons of OFS; provided however, that OFS shall have
previously identified the subcontractor to the Trust and the Trust shall not
have objected to the delegation and that OFS shall be as fully responsible to
the Trust for the acts and omissions of any subcontractor as OFS is for its own
acts and omissions. In no event shall such delegation by OFS result in
increasing OFS' compensation from the Trust.
SECTION 15. TAXES
Except as provided by Section 8 herein, OFS shall not be liable for any
taxes, assessments or governmental charges that may be levied or assessed on any
basis whatsoever in connection with the Trust or any Shareholder or any purchase
of Shares, excluding any taxes,
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assessments or charges resulting from OFS' lack of good faith, negligence or
willful misconduct and taxes assessed against OFS for compensation received by
it under this Agreement.
SECTION 16. MISCELLANEOUS
(a) Amendments. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed
by both parties hereto.
(b) Choice of Law. The laws of the State of New York shall govern this
Agreement without giving effect to principles of conflicts of laws. In
addition, New York shall serve as the jurisdiction, venue or situs for any
action, dispute, resolution, or proceeding.
(c) Arbitration. Any controversy or claim arising out of, or related to, this
Agreement, its termination or the breach thereof, shall be settled by
binding arbitration by three arbitrators (or by fewer arbitrator(s), if the
parties subsequently agree to fewer arbitrator(s)) in the City of New York,
in accordance with the rules then obtaining of the American Arbitration
Association, and the arbitrators' decision shall be binding and final, and
judgment upon the award rendered may be entered in any court having
jurisdiction thereof.
(d) Entire Agreement. 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.
(e) Counterparts. The parties may execute this Agreement on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) Severability. If any part, term or provision of this Agreement is held 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.
(f) Force Majeure. 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 for damages to the other party resulting from such failure to
perform or otherwise from such causes.
(g) Headings. Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this
Agreement.
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(h) Notices. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by
telex or facsimile, and shall be given to the following addresses (or such
other addresses as to which notice is given):
To the Trust: To OFS:
Saratoga Advantage Trust Orbitex Fund Services, Inc.
0000 Xxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxxxxxx, President Attn. Mr. Xxxxx Xxxxxx,
President
(i) Business Days. Nothing contained in this Agreement is intended to or shall
require OFS, in any capacity hereunder, to perform any functions or duties
on any day other than a Fund Business Day. Functions or duties normally
scheduled to be performed on any day which is not a Fund Business Day shall
be performed on, and as of, the next Fund Business Day, unless otherwise
required by law.
(j) Distinction of Funds. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each Fund
of the Trust are separate and distinct from the assets and liabilities of
each other Fund and that no Fund shall be liable or shall be charged for
any debt, obligation or liability of any other Fund, whether arising under
this Agreement or otherwise.
(k) Nonliability of Affiliates. No affiliated person (as that term is defined
in the 1940 Act), employee, agent, director, officer or manager of OFS
shall be liable at law or in equity for OFS' obligations under this
Agreement.
(l) Representation of Signatories. Each of the undersigned expressly warrants
and represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their signature will
bind the party indicated to the terms hereof.
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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
persons, as of the day and year first above written.
SARATOGA ADVANTAGE TRUST ORBITEX FUND SERVICES, INC.
By: _______________________________________ By: ____________________________
Xxxxx X. Xxxxxxxxxxx Xxxxx X. Xxxxxx
President President
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