Exhibit (h)(2)
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of this __ day of ____, 200__, by
and between Xxxxxxx Capital Mutual Funds, a Delaware business trust (the
"Trust"), and UMB Fund Services, Inc., a Wisconsin corporation, its successors
and assigns ("UMBFS").
RECITALS:
WHEREAS, the Trust is registered under the 1940 Act as an open-end
management investment company; and
WHEREAS, the Trust desires to retain UMBFS to render certain transfer
agency and dividend disbursement services, and UMBFS is willing to render such
services, all in accordance with the terms of this Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to any terms defined in the body of this Agreement, the
following capitalized terms shall have the meanings set forth hereinafter
whenever they appear in this Agreement:
1.01 1940 ACT shall mean the Investment Company Act of 1940, as amended
from time to time.
1.02 AML LAWS shall mean the rules promulgated under the Bank Secrecy Act
and Sections 312, 326 and 352 of the USA PATRIOT Act.
1.03 AUTHORIZED PERSON shall mean any individual who is authorized to
provide UMBFS with Instructions and requests on behalf of the Trust, whose name
shall be certified to UMBFS from time to time pursuant to Section 8.01 of this
Agreement.
1.04 BOARD OF TRUSTEES shall mean the Board of Trustees of the Trust.
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1.05 CUSTODIAN shall mean the financial institution appointed as custodian
under the terms and conditions of the custody agreement between the financial
institution and the Trust, or its successor.
1.06 DECLARATION OF TRUST shall mean the Declaration of Trust or other
similar operational document of the Trust, as the case may be, as the same may
be amended from time to time.
1.07 EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as
amended from time to time.
1.08 FUND shall mean each separate series of Shares offered by the Trust
representing interests in a separate portfolio of securities and other assets
for which the Trust has appointed UMBFS as transfer agent and dividend
disbursing agent under this Agreement.
1.09 FUND BUSINESS DAY shall mean each day on which the New York Stock
Exchange, Inc. is open for trading.
1.10 INSTRUCTIONS shall mean an oral communication from an Authorized
Person or a written communication signed by an Authorized Person and actually
received by UMBFS. Instructions shall include manually executed originals,
telefacsimile transmissions of manually executed originals or electronic
communications.
1.11 PROSPECTUS shall mean the current Prospectus and Statement of
Additional Information with respect to a Fund (including any applicable
supplement) actually received by UMBFS from the Trust with respect to which the
Trust has indicated a registration statement has become effective under the
Securities Act and the 1940 Act.
1.12 SECURITIES ACT shall mean the Securities Act of 1933, as amended from
time to time.
1.13 SHARES shall mean such shares of beneficial interest, or class
thereof, of each respective Fund of the Trust as may be issued from time to
time.
1.14 SHAREHOLDER shall mean a record owner of Shares of each respective
Fund of the Trust.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 APPOINTMENT. The Trust hereby appoints UMBFS as transfer agent and
dividend disbursing agent of all the Shares of the Trust during the term of this
Agreement with respect to each Fund listed on Schedule A hereto, and any
additional Fund the Trust and UMBFS may
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agree to include on any amended Schedule A. UMBFS hereby accepts such
appointment as transfer agent and dividend disbursing agent and agrees to
perform the duties thereof as hereinafter set forth.
2.02 DUTIES.
A. UMBFS shall perform the transfer agent and dividend disbursement
services described on Schedule B hereto and such additional services as may be
agreed to by the parties from time to time and set forth in an amendment to
Schedule B (collectively, the "Services"). UMBFS shall have no duties or
responsibilities other than those specifically set forth in this Agreement, and
no covenant or obligation to carry out any other duties or responsibilities
shall be implied in this Agreement against UMBFS.
B. UMBFS may, in its discretion, appoint other parties to carry out
some or all of its responsibilities under this Agreement.
2.03 DELIVERIES.
A. In connection with UMBFS' appointment as transfer agent and
dividend disbursing agent, the Trust shall deliver or cause the following
documents to be delivered to UMBFS:
(1) A copy of the Declaration of Trust and By-laws of the Trust
and all amendments thereto, certified by the Secretary of the Trust;
(2) A certificate signed by the President and Secretary of the
Trust specifying the number of authorized Shares and the number of such
authorized Shares issued and currently outstanding, if any, the validity of the
authorized and outstanding Shares, whether such shares are fully paid and
non-assessable, and the status of the Shares under the Securities Act and any
other applicable federal law or regulation;
(3) A certified copy of the resolutions of the Board of Trustees
of the Trust appointing UMBFS as transfer agent and dividend disbursing agent
and authorizing the execution of this Transfer Agency Agreement on behalf of the
Trust;
(4) Copies of the Trust's Registration Statement, as amended to
date, and the most recently filed Post-Effective Amendment thereto, filed by the
Trust with the Securities and Exchange Commission under the Securities Act and
the 1940 Act, together with any applications filed in connection therewith; and
(5) The certificate required by Section 8.01 of this Agreement,
signed by an officer of the Trust and designating the names of the Trust's
initial Authorized Persons.
(6) [A CERTIFICATE AS OF __________ CERTIFYING THAT ALL ACCOUNTS
HAVE BEEN RECONCILED THROUGH THAT DATE AS REQUIRED BY SECTION 5.01(G)(1)]
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B. The Trust agrees to deliver or to cause to be delivered to UMBFS in
Milwaukee, Wisconsin, at the Trust's expense, all of its Shareholder account
records in a format acceptable to UMBFS, as well as all other documents, records
and information that UMBFS may reasonably request in order for UMBFS to perform
the Services hereunder.
ARTICLE III
COMPENSATION & EXPENSES
3.01 COMPENSATION. As compensation for the performance of the Services, the
Trust agrees to pay UMBFS the fees set forth on Schedule C attached hereto. Fees
shall be adjusted in accordance with Schedule C or as otherwise agreed to by the
parties from time to time. The parties may amend Schedule C to include fees for
any additional services requested by the Trust, enhancements to current
Services, or to add Funds for which UMBFS has been retained. The Trust agrees to
pay UMBFS' then current rate for any Services added to, or any enhancements to
existing Services set forth on, Schedule C after the execution of this
Agreement.
3.02 EXPENSES. The Trust also agrees to promptly reimburse UMBFS for all
out-of-pocket expenses or disbursements incurred by UMBFS in connection with the
performance of Services under this Agreement. Out-of-pocket expense shall
include, but not be limited to, those items specified on Schedule C hereto. If
requested by UMBFS, out-of-pocket expenses are payable in advance. Payment of
postage expenses, if prepayment is requested, is due at least seven days prior
to the anticipated mail date. In the event UMBFS requests advance payment, UMBFS
shall not be obligated to incur such expenses or perform the related Service(s)
until payment is received.
3.03 PAYMENT PROCEDURES.
A. The Trust agrees to pay all amounts due hereunder within thirty
(30) days of the date reflected on the statement for such Services (the "Due
Date"). Except as provided in Schedule C, UMBFS shall xxxx Service fees monthly,
and out-of-pocket expenses as incurred (unless prepayment is requested by
UMBFS). UMBFS may, at its option, arrange to have various service providers
submit invoices directly to the Trust for payment of reimbursable out-of-pocket
expenses.
B. The Trust is aware that its failure to remit to UMBFS all amounts
due on or before the Due Date will cause UMBFS to incur costs not contemplated
by this Agreement, including, but not limited to carrying, processing and
accounting charges. Accordingly, in the event that UMBFS does not receive any
amounts due hereunder by the due date, the Trust agrees to pay a late charge on
the overdue amount equal to one and one-half percent (1.5%) per month or the
maximum amount permitted by law, whichever is less. In addition, the Trust shall
pay UMBFS' reasonable attorney's fees and court costs if any amounts due UMBFS
are collected by or through an attorney. The parties hereby agree that such late
charge represents a fair and reasonable computation of the costs incurred by
reason of the Trust's late payment. Acceptance
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of such late charge shall in no event constitute a waiver by UMBFS of the
Trust's default or prevent UMBFS from exercising any other rights and remedies
available to it.
C. In the event that any charges are disputed, the Trust shall, on or
before the Due Date, pay all undisputed amounts due hereunder and notify UMBFS
in writing of any disputed charges for out-of-pocket expenses which it is
disputing in good faith. Payment for such disputed charges shall be due on or
before the close of the fifth (5th) business day after the day on which UMBFS
provides to the Fund documentation which an objective observer would agree
reasonably supports the disputed charges (the "Revised Due Date"). Late charges
shall not begin to accrue as to charges disputed in good faith until the first
day after the Revised Due Date.
3.04 ALLOCATION OF RISK. The Trust acknowledges that the fees charged by
UMBFS under this Agreement reflect the allocation of risk between the parties,
including the exclusion of remedies and limitations on liability in Article IX.
Modifying the allocation of risk from what is stated herein would affect the
fees that UMBFS charges. Accordingly, in consideration of those fees, the Trust
agrees to the stated allocation of risk.
ARTICLE IV
PROCESSING AND PROCEDURES
4.01 ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
A. UMBFS agrees to accept purchase orders and redemption requests with
respect to the Shares of each Fund via postal mail, telephone or personal
delivery on each Fund Business Day in accordance with such Fund's Prospectus;
provided, however, that UMBFS shall only accept purchase orders from states in
which the Shares are qualified for sale, as indicated from time to time by the
Trust. UMBFS shall, as of the time at which the net asset value of each Fund is
computed on each Fund Business Day, issue to and redeem from the accounts
specified in a purchase order or redemption request in proper form and accepted
by the Fund the appropriate number of full and fractional Shares based on the
net asset value per Share of the respective Fund specified in an advice received
on such Fund Business Day from or on behalf of the Fund. UMBFS shall not be
responsible for the payment of any original issue or other taxes required to be
paid by the Trust in connection with the issuance of any Shares in accordance
with this Agreement. UMBFS shall not be required to issue any Shares after it
has received from an Authorized Person or from an appropriate federal or state
authority written notification that the sale of Shares has been suspended or
discontinued, and UMBFS shall be entitled to rely upon such written
notification. Payment for Shares shall be in the form of a check, wire transfer,
Automated Clearing House transfer or such other methods to which the parties
shall mutually agree.
B. Upon receipt of a redemption request and monies paid to it by the
Custodian in connection with a redemption of Shares, UMBFS shall cancel the
redeemed Shares and after making appropriate deduction for any withholding of
taxes required of it by applicable federal law, make payment in accordance with
the Fund's redemption and payment procedures described in the Prospectus.
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C. Except as otherwise provided in this paragraph, UMBFS will transfer
or redeem Shares upon presentation to UMBFS of instructions endorsed for
exchange, transfer or redemption, accompanied by such documents as UMBFS deems
necessary to evidence the authority of the person making such transfer or
redemption. UMBFS reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement or instructions are valid and
genuine. For that purpose, it will require, unless otherwise instructed by an
Authorized Person or except as otherwise provided in this paragraph, a guarantee
of signature by an "Eligible Guarantor Institution" as that term is defined by
SEC Rule 17Ad-15. UMBFS also reserves the right to refuse to transfer or redeem
Shares until it is satisfied that the requested transfer or redemption is
legally authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or redemptions which UMBFS, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no reasonable
basis to any claims adverse to such transfer or redemption. UMBFS may, in
effecting transfers and redemptions of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers (or such
other statutes which protect it and the Trust in not requiring complete
fiduciary documentation) and shall not be responsible for any act done or
omitted by it in good faith in reliance upon such laws. Notwithstanding the
foregoing or any other provision contained in this Agreement to the contrary,
UMBFS shall be fully protected by each Fund in not requiring any instruments,
documents, assurances, endorsements or guarantees, including, without
limitation, any Medallion signature guarantees, in connection with a redemption,
exchange or transfer of Shares whenever UMBFS reasonably believes that requiring
the same would be inconsistent with the transfer and redemption procedures
described in the Prospectus.
D. Notwithstanding any provision contained in this Agreement to the
contrary, UMBFS shall not be required or expected to require, as a condition to
any transfer or redemption of any Shares pursuant to a computer tape or
electronic data transmission, any documents to evidence the authority of the
person requesting the transfer or redemption and/or the payment of any stock
transfer taxes, and shall be fully protected in acting in accordance with the
applicable provisions of this Article.
E. In connection with each purchase and each redemption of Shares,
UMBFS shall send such statements as are prescribed by the Federal securities
laws applicable to transfer agents or as described in the Prospectus. It is
understood that certificates for Shares have not been and will not be offered by
the Trust or available to investors.
F. UMBFS and the Trust shall establish procedures for effecting
purchase, redemption or transfer transactions accepted from investors by
telephone or other methods consistent with the terms of the Prospectus. UMBFS
may establish such additional procedures, rules and regulations governing the
purchase, redemption or transfer of Shares, as it may deem advisable and
consistent with the Prospectus and industry practice. UMBFS shall not be liable,
and shall be held harmless by the Trust, for its actions or omissions which are
consistent with the foregoing procedures.
G. The Trust agrees to provide UMBFS with prior notice of any increase
or decrease in the total number of Shares authorized to be issued, or the
issuance of any additional
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Shares of a Fund pursuant to stock dividends, stock splits, recapitalizations,
capital adjustments or similar transactions, and to deliver to UMBFS such
documents, certificates, reports and legal opinions as UMBFS may reasonably
request.
4.02 DIVIDENDS AND DISTRIBUTIONS.
A. The Trust shall give or cause to be given to UMBFS a copy of a
resolution of its Board of Trustees, that either:
(i) sets forth the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, thereof, the
record date as of which Shareholders entitled to payment or accrual, as the case
may be, shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to UMBFS on such
payment date, or
(ii) authorizes the declaration of dividends and distributions on a
daily or other periodic basis and further authorizes UMBFS to rely on a
certificate of an Authorized Person setting forth the information described in
subsection (i) of this paragraph.
B. In connection with a reinvestment of a dividend or distribution of
Shares of a Fund, UMBFS shall as of each Fund Business Day, as specified in a
certificate or resolution described in paragraph A, issue Shares of the Fund
based on the net asset value per Share of such Fund specified in an advice
received from or on behalf of the Fund on such Fund Business Day.
C. Upon the mail date specified in such certificate or resolution, as
the case may be, the Trust shall, in the case of a cash dividend or
distribution, cause the Custodian to deposit in an account in the name of UMBFS
on behalf of a Fund, an amount of cash sufficient for UMBFS to make the payment,
as of the mail date specified in such certificate or resolution, as the case may
be, to the Shareholders who were of record on the record date. UMBFS will, upon
receipt of any such cash, make payment of such cash dividends or distributions
to the Shareholders as of the record date. UMBFS shall not be liable for any
improper payments made in accordance with a certificate or resolution described
in the preceding paragraph. If UMBFS shall not receive from the Custodian
sufficient cash to make payments of any cash dividend or distribution to all
Shareholders of a Fund as of the record date, UMBFS shall, upon notifying the
Trust, withhold payment to such Shareholders until sufficient cash is provided
to UMBFS.
D. It is understood that UMBFS in its capacity as transfer agent and
dividend disbursing agent shall in no way be responsible for the determination
of the rate or form of dividends or capital gain distributions due to the
Shareholders pursuant to the terms of this Agreement. It is further understood
that UMBFS shall file with the Internal Revenue Service and Shareholders such
appropriate federal tax forms concerning the payment of dividend and capital
gain distributions but shall in no way be responsible for the collection or
withholding of taxes due on such dividends or distributions due to shareholders,
except and only to the extent, required by applicable federal law.
4.03 RECORDS.
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A. UMBFS shall keep those records specified in Schedule D hereto in
the form and manner, and for such period, as it may deem advisable but not
inconsistent with the rules and regulations of appropriate government
authorities, in particular Rules 31a-2 and 31a-3 under the 1940 Act. UMBFS shall
only destroy records at the direction of the Trust, and any such destruction
shall comply with the provisions of Section 248.30(b) of Regulation S-P (17 CFR
248.1-248.30). UMBFS may deliver to the Trust from time to time at UMBFS'
discretion, for safekeeping or disposition by the Trust in accordance with law,
such records, papers and documents accumulated in the execution of its duties as
transfer agent, as UMBFS may deem expedient, other than those which UMBFS is
itself required to maintain pursuant to applicable laws and regulations. The
Trust shall assume all responsibility for any failure thereafter to produce any
record, paper, or other document so returned, if and when required. To the
extent required by Section 31 of the 1940 Act and the rules and regulations
thereunder, the records specified in Schedule D hereto maintained by UMBFS,
which have not been previously delivered to the Trust pursuant to the foregoing
provisions of this paragraph, shall be considered to be the property of the
Trust, shall be made available upon request for inspection by the officers,
employees, and auditors of the Trust, and shall be delivered to the Trust
promptly upon request and in any event upon the date of termination of this
Agreement, in the form and manner kept by UMBFS on such date of termination or
such earlier date as may be requested by the Trust. Notwithstanding anything
contained herein to the contrary, UMBFS shall be permitted to maintain copies of
any such records, papers and documents to the extent necessary to comply with
the recordkeeping requirements of federal and state securities laws, tax laws
and other applicable laws.
B. UMBFS agrees to keep all records and other information relative to
the Funds' Shareholders confidential, not to use such information other than for
purposes of fulfilling its duties under the Agreement and not to disclose such
information except: (i) when requested to divulge such information by
duly-constituted authorities or court process, or (ii) when requested by a
Shareholder or Shareholder's agent with respect to information concerning an
account as to which such Shareholder has either a legal or beneficial interest,
or (iii) when requested by the Trust, a Fund, the Shareholder, the Shareholder's
agent or the dealer of record with respect to such account, or (iv) to seek to
prevent fraud and/or money laundering by providing certain shareholder
information to other financial institutions, or (v) to an affiliate, as defined
by Section 248.3(a) of Regulation S-P; or (vi) pursuant to any other exception
permitted by Sections 248.14 and 248.15 of Regulation S-P in the ordinary course
of business to carry out the activities covered by the exception under which
UMBFS received the information. In case of any requests or demands for
inspection of the records of the Funds, UMBFS will endeavor to notify the Trust
promptly and to secure instructions from a representative of the Trust as to
such inspection. Records and information which have become known to the public
through no wrongful act of UMBFS or any of its employees, agents or
representatives, and information which was already in the possession of UMBFS
prior to receipt thereof, shall not be subject to this paragraph.
ARTICLE V
REPRESENTATION AND WARRANTIES
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5.01 REPRESENTATIONS OF TRUST. The Trust represents and warrants to UMBFS
that:
A. It is a business trust duly organized and existing under the laws
of the State of Massachusetts; it is empowered under applicable laws and by its
Declaration of Trust and By-laws to enter into and perform this Agreement; and
all requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
B. Any officer of the Trust has the authority to appoint additional
Authorized Persons, to limit or revoke the authority of any previously
designated Authorized Person, and to certify to UMBFS the names of such
Authorized Persons.
C. It is duly registered as an investment company under the 1940 Act.
D. A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate state securities laws
filings have been made and will continue to be made, with respect to Shares of
the Trust being offered for sale.
E. All outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with the terms
of the Trust's Declaration of Trust and its Prospectus with respect to each
Fund, such Shares shall be validly issued, fully paid and non-assessable.
F. All shareholder tax reporting has been completed timely and
accurately, including the distribution of Forms 5498s for the 200_ tax year.
G. The Funds, and all shareholder accounts, are in balance and all
accounts reconciled and current as of the date of this Agreement, and (1) there
are no outstanding issues relating to transfer agent activities and shareholder
and Trust record keeping, including those related to shareholder accounts and
transaction activity, and (2) there are no existing or potential claims,
litigation or demands by shareholders or others relating to the Trust, or any of
the Funds or their officers or Trustees, except as disclosed in writing and
dated as of the date of this Agreement to UMBFS.
5.02 REPRESENTATIONS OF UMBFS. UMBFS represents and warrants to the Trust
that:
A. It is a corporation duly organized and existing under the laws of
the State of Wisconsin; it is empowered under applicable law and by its Articles
of Incorporation and By-laws to enter into and perform this Agreement; and all
requisite proceedings have been taken to authorize it to enter into and perform
this Agreement.
B. It is duly registered as a transfer agent under Section 17A of the
1934 Act to the extent required.
C. It has received a copy of each Fund's Prospectus which describes
how sales and redemptions of Shares shall be made.
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ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 INFORMATION UPDATES. During the term of this Agreement the Trust shall
have the ongoing obligation to provide UMBFS with the following documents as
soon as they become effective: (i) certified copies of all amendments to its
Declaration of Trust and By-laws made after the date of this Agreement; and (ii)
a copy of each Fund's currently effective Prospectus. For purposes of this
Agreement, UMBFS shall not be deemed to have notice of any information contained
in any such Prospectus until a reasonable time after it is actually received by
UMBFS.
6.02 SHARE QUALIFICATION. The Trust agrees to take or cause to be taken all
requisite steps to qualify the Shares for sale in all states in which the Shares
shall at the time be offered for sale and require qualification. If the Trust
receives notice of any stop order or other proceeding in any such state
affecting such qualification or the sale of Shares, or of any stop order or
other proceeding under the federal securities laws affecting the sale of Shares,
the Trust will give prompt notice thereof to UMBFS.
6.03 COMPLIANCE WITH LAWS. The Trust will comply with all applicable
requirements of the Securities Act, the Exchange Act, the 1940 Act, blue sky
laws, and any other applicable laws, rules and regulations.
6.04 ADDITIONAL DUTIES. The Trust agrees that it shall advise UMBFS at
least 30 days prior to effecting any change in the Prospectus which would
increase or alter the duties and obligations of UMBFS hereunder, and shall
proceed with such change only if it shall have received the written consent of
UMBFS thereto.
6.05 TRANSFER AGENT SYSTEM. UMBFS shall retain all right, title and
interest in and any and all computer programs, screen formats, report formats,
procedures, data bases, interactive design techniques, derivative works,
inventions, discoveries, patentable or copyrightable matters, concepts,
expertise, trade secrets, trademarks and other related legal rights provided,
developed or utilized by UMBFS in connection with the Services provided by UMBFS
to the Trust hereunder.
6.06 DISASTER RECOVERY AND BUSINESS CONTINUITY PLAN AND COMPUTER SYSTEM.
UMBFS shall maintain a disaster recovery and business continuity plan and
adequate and reliable computer and other equipment necessary and appropriate to
carry out its obligations under this Agreement. Upon the Fund's reasonable
request, UMBFS shall provide supplemental information concerning the aspects of
its disaster recovery and business continuity plan that are relevant to the
services hereunder.
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ARTICLE VII
AML DELEGATION
7.01 BACKGROUND. In order to assist its transfer agent clients with their
anti-money laundering responsibilities under the AML Laws, UMBFS offers various
tools designed to promote the detection and reporting of potential money
laundering activity by monitoring certain aspects of shareholder activity,
assist in the verification of persons opening accounts with the Trust and
determine whether such persons appear on any list of known or suspected
terrorists or terrorist organizations ("Monitoring Activities"). In connection
with the Monitoring Activities, UMBFS may encounter shareholder activity that
would require it to file a Suspicious Activity Report ("SAR") with the
Department of the Treasury's Financial Crimes Enforcement Network ("FinCEN").
The Trust has, after review, selected various procedures and tools offered by
UMBFS to comply with its anti-money laundering and customer identification
program obligations under the AML Laws (the "AML Procedures"), and desires to
implement the AML Procedures as part of its overall anti-money laundering
program and, subject to the terms of the AML Laws, delegate to UMBFS the
day-to-day operation of the AML Procedures on behalf of the Trust.
7.02 DELEGATION.
A. The Trust acknowledges that it has had an opportunity to review,
consider and comment upon and select the AML Procedures and the Trust has
determined that they, as part of the Trust's overall anti-money laundering
program, are reasonably designed to prevent the Trust from being used for money
laundering or the financing of terrorist activities and to achieve compliance
with the applicable provisions of the AML Laws. Based on this determination, the
Trust hereby instructs and directs UMBFS to implement the AML Procedures on its
behalf, as such may be amended or revised from time to time. The customer
identification verification component of the AML Procedures applies only to
shareholders who are residents of the United States.
B. The Trust hereby delegates to UMBFS the authority to report
suspicious transactions encountered during the course of UMBFS' Monitoring
Activities ("Suspicious Activity") on and after November 1, 2006 to FinCEN. For
purposes of this Article VII, the term Suspicious Activity shall mean and
include any transaction which requires reporting under 31 CFR Section
103.15(a)(2).
7.03 SAR FILING PROCEDURES.
A. When UMBFS observes any Suspicious Activity, UMBFS shall prepare a
draft of a SAR on Form SAR-SF, and shall send a copy to the Trust's AML officer
for review. UMBFS shall complete each SAR in accordance with the procedures set
forth in 31 CFR Section 103.15(a)(3), with the intent to satisfy the reporting
obligation of both UMBFS and the Trust. Accordingly, the SAR shall include the
name of both UMBFS and the Trust, and shall include the words, "joint filing" in
the narrative section.
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B. The Trust's AML officer shall review the SAR and provide comments,
if any, to UMBFS within a time frame sufficient to permit UMBFS to file the SAR
in accordance with the deadline set forth in 31 CFR Section 103.15(b)(3). Upon
receipt of final approval, UMBFS shall file the SAR in accordance with the
procedures set forth in 31 CFR Section 103.15(b).
C. UMBFS shall provide to the Trust a copy of each SAR filed, together
with supporting documentation. In addition, UMBFS shall maintain a copy of the
same for a period of five (5) years from the date of the SAR filing.
D. Nothing in this Article VII shall prevent either party from making
a determination that such party has an obligation under the Act to file a SAR
relating to any Suspicious Activity, and from making such filing independent of
the other party hereto.
7.04 AMENDMENT TO PROCEDURES. It is contemplated that the AML Procedures
will be amended from time to time by the parties as directed by the Trust based
on its experience in the operation of the AML Procedures and/or as additional
regulations are adopted and/or regulatory guidance is provided relating to the
Trust's anti-money laundering responsibilities.
7.04 REPORTING. UMBFS agrees to provide to the Trust (i) prompt
notification of any transaction or combination of transactions that UMBFS
believes, based on the AML Procedures, evidence money laundering activity in
connection with the Trust or any shareholder of the Trust, (ii) any reports
received by UMBFS from any government agency or applicable industry
self-regulatory organization pertaining to UMBFS' anti-money laundering
monitoring on behalf of the Trust as provided in this Article VII, (iii) any
action taken in response to anti-money laundering violations as described in (i)
or (ii) and (iv) a quarterly reports of its monitoring and verification
activities on behalf of the Trust. UMBFS shall provide such other reports on the
verification activities conducted at the direction of the Trust as may be agreed
to from time to time by UMBFS and the Trust's anti-money laundering compliance
officer.
7.05 INSPECTION. The Trust hereby directs, and UMBFS acknowledges, that
UMBFS shall (1) permit federal regulators access to such information and records
maintained by UMBFS and relating to UMBFS' implementation of the AML Procedures
on behalf of the Trust, as they may request, and (2) permit such federal
regulators to inspect UMBFS' implementation of the AML Procedures on behalf of
the Trust.
ARTICLE VIII
TRUST INSTRUCTIONS
8.01 AUTHORIZED PERSONS. Upon the execution of this Agreement, the Trust
shall provide UMBFS with a certificate containing the names of the initial
Authorized Persons in a form acceptable to UMBFS. Any officer of the Trust shall
be considered an Authorized Person (unless such authority is limited in a
writing from the Trust and received by UMBFS) and has the authority to appoint
additional Authorized Persons, to limit or revoke the authority of any
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previously designated Authorized Person, and to certify to UMBFS the names of
the Authorized Persons from time to time. The Trust shall provide UMBFS with an
updated certificate evidencing the appointment, removal or change of authority
of any Authorized Person, it being understood UMBFS shall not be held to have
notice of any change in the authority of any Authorized Person until receipt of
written notice thereof from the Trust.
8.02 ACCEPTANCE OF INSTRUCTIONS. UMBFS, its officers, agents or employees
shall accept Instructions given to them by any person representing or acting on
behalf of the Trust only if such representative is an Authorized Person. The
Trust agrees that when oral Instructions are given, it shall, upon the request
of UMBFS, confirm such Instructions in writing.
8.03 REQUEST FOR INSTRUCTIONS. At any time, UMBFS may request Instructions
from the Trust with respect to any matter arising in connection with this
Agreement. If such Instructions are not received within a reasonable time, then
UMBFS may seek advice from legal counsel for the Trust at the expense of the
Trust, or its own legal counsel at its own expense, and it shall not be liable
for any action taken or not taken by it in good faith in accordance with such
Instructions or in accordance with advice of counsel.
ARTICLE IX
LIMITATION OF LIABILITY; INDEMNIFICATION
9.01 LIMITATION OF LIABILITY. Notwithstanding anything contained in this
Agreement to the contrary, UMBFS shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Trust or the Funds in
connection with the matters to which this Agreement relates, except for a loss
resulting from UMBFS' willful misfeasance, bad faith or gross negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Furthermore, UMBFS shall not be liable for (1)
any action taken or omitted to be taken in accordance with or in reliance upon
written or oral instructions, advice, data, documents or information (without
investigation or verification) received by UMBFS from an officer or
representative of the Trust or from a representative of any of the parties
referenced in Section 11.09, or (2) any action taken or omission by a Fund, the
Trust, investment adviser(s) or any past or current service provider.
9.02 INDEMNIFICATION. The Trust agrees to indemnify and hold harmless
UMBFS, its employees, agents, officers, directors, affiliates and nominees
("Indemnified Parties") from and against any and all claims, demands, actions
and suits, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character which may be asserted against or incurred by any Indemnified Party or
for which any Indemnified Party may be held liable (a "Claim") arising out of or
in any way relating to any of the following:
(a) any action or omission of UMBFS except to the extent a Claim
resulted from UMBFS' willful misfeasance, bad faith, gross negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties hereunder;
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(b) UMBFS' reliance on, implementation of, or use, without
investigation or verification, of information, data, records and documents
received by UMBFS from the Trust, or from a representative of any of the parties
referenced in Section 11.09, or any third party acting on behalf of the Trust;
(c) the reliance on, or the implementation of, any Instructions or any
other advice, instructions, requests or directions of the Trust or from a
representative of any of the parties referenced in Section 11.09, or any third
party acting on behalf of the Trust;
(d) UMBFS' acting upon telephone or electronic instructions relating
to the purchase, exchange or redemption of Shares received by UMBFS in
accordance with procedures established by UMBFS and the Trust;
(e) any action taken by or omission of the Trust, investment adviser
or sub-adviser(s) or any past or current service provider;
(f) the acceptance, processing and/or negotiation of a fraudulent
payment for the purchase of Shares unless the result of UMBFS' or its
affiliates' willful misfeasance, bad faith or gross negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. In the absence of a finding to the contrary,
the acceptance, processing and/or negotiation of a fraudulent payment for the
purchase of Shares shall be presumed not to have been the result of UMBFS' or
its affiliates' willful misfeasance, bad faith or gross negligence.
(g) the offer or sale of Shares in violation of any requirement under
the securities laws or regulations of any state that such Shares be qualified
for sale in such state or in violation of any stop order or determination or
ruling by any state with respect to the offer or sale of such Shares in such
state; or
(h) the Trust's refusal or failure to comply with the terms of the
Agreement, or any Claim that arises out of the Trust's negligence or misconduct
or breach of any representation or warranty of the Trust made herein.
9.03 INDEMNIFICATION PROCEDURES. UMBFS will notify the Trust promptly after
identifying any situation which it believes presents or appears likely to
present a Claim for which the Trust may be required to indemnify or hold UMBFS
harmless hereunder. In such event, the Trust shall have the option to defend
UMBFS against any Claim, and, in the event that the Trust so elects, such
defense shall be conducted by counsel chosen by the Trust and approved by UMBFS
in its reasonable discretion. UMBFS shall 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 under the Sections 9.02 and 9.03 shall survive the termination of
this Agreement.
9.04 FORCE MAJEURE. UMBFS assumes no responsibility hereunder, and shall
not be liable, for any damage, loss of data or documents, errors, delay or any
other loss whatsoever
59
caused by events beyond its reasonable control. UMBFS will, however, take all
reasonable steps to minimize service interruptions for any period that such
interruption continues beyond UMBFS' control.
9.05 CONSEQUENTIAL DAMAGES. In no event and under no circumstances shall
UMBFS, its affiliates or any of its or their officers, directors, agents or
employees be liable to anyone, including, without limitation, [the Trust], under
any theory of tort, contract, strict liability or other legal or equitable
theory for lost profits, exemplary, punitive, special, indirect or consequential
damages for any act or failure to act under any provision of this Agreement
regardless of whether such damages were foreseeable and even if advised of the
possibility thereof.
9.06 ADDITIONAL LIMITATIONS AND EXCLUSIONS. Notwithstanding any other
provision of this Agreement, UMBFS shall have no duty or obligation under this
Agreement to inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the sufficiency
of the amount to be received therefor, or the authority of the Trust, as the
case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares or of a purchase or
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Trust, as the case may be, to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the Trust, or
the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of Shares.
ARTICLE X
TERM AND TERMINATION
10.01 TERM. This Agreement shall become effective with respect to each Fund
listed on Schedule A hereof as of the date hereof and, with respect to each Fund
not in existence on that date, on the date an amendment to Schedule A to this
Agreement relating to that Fund is executed. This Agreement shall continue in
effect with respect to each Fund until terminated as provided herein.
10.02 TERMINATION.
(a) Either party may terminate this Agreement at any time by giving
the other party a written notice not less than sixty (60) days prior to the date
the termination is to be effective. In the event such notice is given by the
Trust pursuant to Section 10.02, it shall be accompanied by a copy of a
resolution of the Board of Trustees of the Trust certified by the Secretary or
any Assistant Secretary, electing to terminate this Agreement and designating
the successor transfer agent or transfer agents. In the event such notice is
given by UMBFS, the
60
Trust shall on or before the termination date, deliver to UMBFS a copy of a
resolution of its Board of Trustees certified by the Secretary or any Assistant
Secretary designating a successor transfer agent or transfer agents. In the
absence of such designation by the Trust, the Trust shall be deemed to be its
own transfer agent as of the termination date and UMBFS shall thereby be
relieved of all duties and responsibilities pursuant to this Agreement. Fees and
out-of-pocket expenses incurred by UMBFS, but unpaid by the Trust upon such
termination, shall be immediately due and payable upon and notwithstanding such
termination.
(b) Notwithstanding any other provision of this Agreement, in the
event of an agreement to enter into a transaction that would result in a Change
of Control, as hereinafter defined, of the Trust's investment adviser or
sponsor, the Trust's ability to terminate this Agreement pursuant to this
Article X shall be suspended from the time of such agreement until eighteen
months after the Change of Control. For purposes of this Agreement, a "Change of
Control" of the investment adviser or sponsor means a change in ownership or
control of more than fifty percent (50%) of the common stock or shares of
beneficial interest of such investment adviser or sponsor or its parent company.
10.03 EFFECT OF TERMINATION. Notwithstanding anything herein to the
contrary, upon the termination of the Agreement as provided herein or the
liquidation of a Fund or the Trust, UMBFS shall deliver the records of the Trust
to the Trust or its successor transfer agent in a form that is consistent with
UMBFS' applicable license agreements at the expense of the Trust, and thereafter
the Trust or its designee shall be solely responsible for preserving the records
for the periods required by all applicable laws, rules and regulations. The
Trust shall be responsible to UMBFS for all costs and expenses associated with
the preparation and delivery of such media and all reasonable trailing expenses
incurred by UMBFS, including, but not limited to: (a) out-of-pocket expenses;
(b) any custom programming requested by the Trust in connection with the
preparation of such media and agreed upon by UMBFS; (c) transportation of forms
and other materials used in connection with the processing of Trust transactions
by UMBFS; and (d) transportation of records and files in the possession of
UMBFS. In addition, UMBFS shall be entitled to such compensation as the parties
may mutually agree for any services other than the preparation and delivery of
such media requested by the Trust and agreed to by UMBFS in connection with the
termination of this Agreement or the liquidation or merger of the Trust. UMBFS
shall not reduce the level of service provided to the Trust prior to termination
following notice of termination by the Trust.
ARTICLE XI
MISCELLANEOUS
11.01 NOTICES. Any notice required or permitted to be given by either party
to the other under this Agreement shall be in writing and shall be deemed to
have been given when sent by either an overnight delivery service or by
registered or certified mail, postage prepaid, return receipt requested, to the
addresses listed below, or to such other location as either party may from time
to time designate in writing:
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If to UMBFS: UMB Fund Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
If to the Trust: _________________________
_________________________
_________________________
Attention: _________________
11.02 AMENDMENTS/ASSIGNMENTS.
A. Except as provided to the contrary herein, this Agreement may not
be amended or modified in any manner except by a written agreement executed by
both parties with the formality of this Agreement.
B. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the other
party, except that UMBFS may assign this Agreement to an affiliate with advance
written notice to the Trust and except as provided in Section 2.02.
11.03 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Wisconsin, without regard to
its conflict of law provisions.
11.04 SEVERABILITY. If any part, term or provision of this Agreement is
determined by the courts or any regulatory authority having jurisdiction over
the issue 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.
11.05 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.
11.06 NON-EXCLUSIVITY; OTHER AGREEMENTS. The services of UMBFS hereunder
are not deemed exclusive and UMBFS shall be free to render similar and other
services to others. Except as specifically provided herein, this Agreement does
not in any way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by any party hereunder shall not affect any
rights or obligations of any other party hereunder.
11.07 CAPTIONS. The captions in the Agreement are included for convenience
of reference only, and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
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11.08 TRUST LIMITATIONS. This Agreement is executed by the Trust with
respect to each of the Funds and the obligations hereunder are not binding upon
any of the trustees, officers or shareholders of the Trust individually but are
binding only upon the Fund to which such obligations pertain and the assets and
property of such Fund. All obligations of the Trust under this Agreement shall
apply only on a Fund-by-Fund basis, and the assets of one Fund shall not be
liable for the obligations of another Fund. The Fund's Declaration of Trust is
on file with the State of _______________.
11.09 RELIANCE ON INFORMATION AND INSTRUCTIONS. The Trustees of the Trust
shall cause the officers, trustees, investment adviser(s) and sub-advisers,
legal counsel, independent accountants, custodian and other service providers
and agents, past or present, for the Funds to cooperate with UMBFS and to
provide UMBFS with such information, documents and advice as necessary and/or
appropriate or as requested by UMBFS, in order to enable UMBFS to perform its
duties hereunder. In connection with its duties hereunder, UMBFS shall (without
investigation or verification) be entitled, and is hereby instructed to, rely
upon any and all instructions, advice, information or documents provided to
UMBFS by an officer or representative of the Funds or by any of the
aforementioned persons. UMBFS shall be entitled to rely on any document that it
reasonably believes to be genuine and to have been signed or presented by the
proper party. Fees charged by such persons shall be an expense of the Trust.
UMBFS shall not be held to have notice of any change of authority of any
officer, agent, representative or employee of the Trust, investment adviser(s)
or service provider until receipt of written notice thereof from the Trust. As
used in this Agreement, the term "investment adviser" includes all sub-advisers
or persons performing similar services.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
UMB FUND SERVICES, INC.
----------------------------------------
By: By:
--------------------------------- ------------------------------------
(Signature) (Signature)
--------------------------------- -------------------------------------
(Name) (Name)
--------------------------------- -------------------------------------
(Title) (Title)
--------------------------------- -------------------------------------
(Date Signed) (Date Signed)
64
SCHEDULE A
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
XXXXXXX CAPITAL MUTUAL FUNDS
AND
UMB FUND SERVICES, INC.
NAMES OF FUNDS
Xxxxxxx Capital Mid Cap Fund
65
SCHEDULE B
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
XXXXXXX CAPITAL MUTUAL FUNDS
AND
UMB FUND SERVICES, INC.
SERVICE SCHEDULE
- Set up and maintain shareholder accounts and records, including IRAs and
other retirement accounts
- Make personal follow-up calls to prospects who return incomplete
applications
- Store account documents electronically
- Receive and respond to investor account inquiries by telephone or mail, or
by e-mail if the response does not require the reference to specific
shareholder account information
- Process purchase and redemption orders, transfers, and exchanges, including
automatic purchases and redemptions via postal mail, telephone and personal
delivery, provided payment for shares is in the form of a check, wire
transfer or requested Automated Clearing House transfer, or such other
means as the parties shall mutually agree
- Process dividend payments by check, wire or ACH, or reinvest dividends
- Issue daily transaction confirmations and monthly or quarterly statements
- Issue comprehensive clerical confirmation statements for maintenance
transactions
- Provide cost basis statements
- Mail prospectus, annual and semiannual reports, and other shareholder
communications to existing shareholders
- Implement the Trust's AML Procedures as contemplated by Article VII
- File IRS Forms 1099, 5498, 1042, 1042-S and 945 with shareholders and/or
the IRS
- Handle load and multi-class processing, including rights of accumulation
and purchases by letters of intent
66
- Calculate 12b-1 plan fees
- Provide standards to structure forms and applications for efficient
processing
- Follow up on IRAs, soliciting beneficiary and other information and sending
required minimum distribution reminder letters
- Provide basic report access (one person)
- Conduct periodic Postal clean-up
The foregoing services do not include correcting, verifying or addressing any
prior actions or inactions by any Fund or by any prior service provider. To the
extent UMBFS agrees to take such actions, those actions taken shall be deemed
part of this service schedule.
OPTIONAL SERVICES
The Funds may contract with UMBFS to provide one or more of the following
optional services. Additional fees apply.
- UMBFS' Internet services, including Adviser Services, RIA/Broker Services,
Shareholder Services, NAV Services, Vision, Adviser Central and email
services.
- UMBISG VRU services (per fund group)
- Shareholder "welcome" packages with initial confirmation
- Access to UMBFS' Tax and Retirement Group to answer questions and
coordinate retirement plan options
- Money market funds for short-term investment or exchanges
- Dedicated service representatives
- Weekend and holiday shareholder services
- Customized reorder form tracking
- Give dealers access through NSCC's Fund/SERV and Networking
- Customized forms and applications
- Training of adviser staff on regulatory developments
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SCHEDULE C
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
XXXXXXX CAPITAL MUTUAL FUNDS
AND
UMB FUND SERVICES, INC.
FEES
To be provided.
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SCHEDULE D
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
XXXXXXX CAPITAL MUTUAL FUNDS
AND
UMB FUND SERVICES, INC.
RECORDS MAINTAINED BY UMBFS
Account applications
Canceled certificates plus stock powers and supporting documents
Checks including check registers, reconciliation records, any adjustment records
and tax withholding documentation
Indemnity bonds for replacement of lost or missing stock certificates and checks
Liquidation, redemption, withdrawal and transfer requests including stock
powers, signature guarantees and any supporting documentation
Shareholder correspondence
Shareholder transaction records
Share transaction history of the Funds
69
