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EXHIBIT (9)(z)
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TRANSFER AGENCY AGREEMENT
This Agreement is made as of July 9, 1996, between The Sessions Group
(the "Trust"), an Ohio business trust having its principal place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS Fund Services, Inc.
("BISYS"), a Delaware corporation having its principal place of business at
0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform certain services for
those series of the Trust set forth in the Schedule A attached hereto, as such
Schedule may be amended from time to time (individually referred to herein as a
"Fund" and collectively as the "Funds"); and
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
Section 1. SERVICES. BISYS shall perform for the Trust the
transfer agent services set forth in Schedule B hereto.
BISYS also agrees to perform for the Trust such special
services incidental to the performance of the services enumerated herein as
agreed to by the parties from time to time. BISYS shall perform such
additional services as are provided on an amendment to Schedule B hereof, in
consideration of such fees as the parties hereto may agree.
BISYS may, in its discretion, appoint in writing other parties
qualified to perform transfer agency services reasonably acceptable to the
Trust (individually, a "Subtransfer Agent") to carry out some or all of its
responsibilities under this Agreement with respect to a Fund; provided,
however, that the Sub-transfer Agent shall be the agent of BISYS and not the
agent of the Trust or such Fund, and that BISYS shall be fully responsible for
the acts of such Sub-transfer Agent and shall not be relieved of any of its
responsibilities hereunder by the appointment of such Sub-transfer Agent.
Section 2. FEES. The Trust shall pay BISYS for the services to
be provided by BISYS under this Agreement in accordance with, and in the manner
set forth in, Schedule C hereto. Fees for any additional services to be
provided by BISYS pursuant to an amendment to Schedule B hereto shall be
subject to mutual agreement at the time such amendment to Schedule C is
proposed.
Section 3. REIMBURSEMENT OF EXPENSES. In addition to paying
BISYS the fees described in Section 2 hereof, the Trust agrees to reimburse
BISYS for BISYS' out-of-pocket expenses in providing services hereunder,
including without limitation the following:
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A. All freight and other delivery and bonding charges incurred by
BISYS in delivering materials to and from the Trust and in
delivering all materials to shareholders;
B. All direct telephone, telephone transmission and telecopy or
other electronic transmission expenses incurred by BISYS in
communication with the Trust, the Trust's investment adviser
or custodian, dealers, shareholders or others as required for
BISYS to perform the services to be provided hereunder;
C. Costs of postage, couriers, stock computer paper, statements,
labels, envelopes, checks, reports, letters, tax forms,
proxies, notices or other form of printed material which shall
be required by BISYS for the performance of the services to be
provided hereunder;
D. The cost of microfilm or microfiche of records or other
materials; and
E. Any expenses BISYS shall incur at the written direction of an
officer of the Trust thereunto duly authorized by the Trust's
Board of Trustees.
Section 4. EFFECTIVE DATE. This Agreement shall become
effective as of the date first written above (the "Effective Date").
Section 5. TERM. This Agreement shall continue in effect,
unless earlier terminated by either party hereto as provided hereunder, until
July 9, 1999. Thereafter, this Agreement shall be renewed automatically for
successive one-year terms unless written notice not to renew is given by the
non-renewing party to the other party at least 60 days prior to the expiration
of the then-current term; provided, however, that after such termination, for
so long as BISYS, with the written consent of the Trust, in fact continues to
perform any one or more of the services contemplated by this Agreement or any
Schedule or exhibit hereto, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Compensation due BISYS and unpaid by the Trust upon such
termination shall be immediately due and payable upon and notwithstanding such
termination. BISYS shall be entitled to collect from the Trust, in addition to
the fees and disbursements provided by Sections 2 and 3 hereof, the amount of
all of BISYS' reasonable cash disbursements for services in connection with
BISYS' activities in effecting such termination, including without limitation,
the delivery to the Trust and/or its distributor or investment advisers and/or
other parties, of the Trust's property, records, instruments and documents, or
any copies thereof. To the extent that BISYS may retain in its possession
copies of any Trust documents or records subsequent to such termination which
copies had not been requested by or on behalf of the Trust in connection
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with the termination process described above, BISYS, for a reasonable fee, will
provide the Trust with reasonable access to such copies. The performance of
BISYS under this Agreement shall be reviewed at least annually by the Trust's
Board of Trustees. Such review shall include the review of acts of negligence,
if any, by BISYS, and if such acts of negligence are determined to be material
by the Trustees, such acts shall be an event of "cause" as used below.
Further, this Agreement is terminable with respect to a particular Fund only
upon mutual agreement of the parties hereto; upon 180 days' written notice by
the Trust after the initial term hereof but only in connection with the
reorganization of the Funds into another registered management investment
company; or for "cause" (as defined below) by the party alleging "cause," on
not less than 60 days' notice by the Trust's Board of Trustees or by BISYS.
For purposes of this Agreement, "cause" shall mean (a) willful
misfeasance, bad faith, gross negligence, acts of negligence by BISYS
determined by the Trustees to be material, or reckless disregard on the part of
the party to be terminated with respect to its obligations and duties set forth
herein; (b) a final, unappealable judicial, regulatory or administrative ruling
or order in which the party to be terminated has been found guilty of criminal
or unethical behavior in the conduct of its business; (c) financial
difficulties on the part of the party to be terminated which are evidenced by
the authorization or commencement of, or involvement by way of pleading,
answer, consent, or acquiescence in, a voluntary or involuntary case under
Title 11 of the United States Code, as from time to time is in effect, or any
applicable law, other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or alteration
of the rights of creditors; or (d) any circumstance which substantially impairs
the performance of the obligations and duties as contemplated herein of the
party to be terminated.
Section 6. UNCONTROLLABLE EVENTS. BISYS assumes no
responsibility hereunder, and shall not be liable, for any damage, loss of
data, delay or any other loss whatsoever caused by events beyond its reasonable
control.
Section 7. LEGAL ADVICE. BISYS shall notify the Trust at any
time BISYS believes that it is in need of the advice of counsel (other than
counsel in the regular employ of BISYS or any affiliated companies) with regard
to BISYS' responsibilities and duties pursuant to this Agreement; and after so
notifying the Trust, BISYS, at its discretion, shall be entitled to seek,
receive and act upon advice of legal counsel of its choosing, such advice to be
at the expense of the Trust or Funds unless relating to a matter involving
BISYS' willful misfeasance, bad faith, negligence or reckless disregard with
respect to BISYS' responsibilities and duties hereunder and BISYS shall in no
event be liable to the Trust
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or any Fund or any shareholder or beneficial owner of the Trust for any action
reasonably taken pursuant to such advice.
Section 8. INSTRUCTIONS. Whenever BISYS is requested or
authorized to take action hereunder pursuant to instructions from a shareholder
or a properly authorized agent of a shareholder ("shareholder's agent"),
concerning an account in a Fund, BISYS shall be entitled to rely upon any
certificate, letter or other instrument or communication, whether in writing,
by electronic or telephone transmission, believed by BISYS to be genuine and to
have been properly made, signed or authorized by an officer or other authorized
agent of the Trust or by the shareholder or shareholder's agent, as the case
may be, and shall be entitled to receive as conclusive proof of any fact or
matter required to be ascertained by it hereunder a certificate signed by an
officer of the Trust or any other person authorized by the Trust's Board of
Trustees or by the shareholder or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statements of Additional
Information of the Trust relating to the Funds to the extent that such services
are described therein unless BISYS receives written instructions to the
contrary in a timely manner from the Trust.
Section 9. STANDARD OF CARE; RELIANCE ON RECORDS AND
INSTRUCTIONS; INDEMNIFICATION. BISYS shall use its best efforts to ensure the
accuracy of all services performed under this Agreement, but shall not be
liable to the Trust for any action taken or omitted by BISYS in the absence of
bad faith, willful misfeasance, negligence or from reckless disregard by it of
its obligations and duties. The Trust agrees to indemnify and hold harmless
BISYS, its employees, agents, directors, officers and nominees from and against
any and all claims, demands, actions and suits, whether groundless or
otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character arising out of or in any way relating to BISYS' actions taken or
nonactions with respect to the performance of services under this Agreement or
based, if applicable, upon reasonable reliance on information, records,
instructions or requests given or made to BISYS by the Trust, the investment
adviser and on any records provided by any fund accountant or custodian
thereof; provided that this indemnification shall not apply to actions or
omissions of BISYS in cases of its own bad faith, willful misfeasance,
negligence or from reckless disregard by it of its obligations and duties; and
further provided that prior to confessing any claim against it which may be the
subject of this indemnification, BISYS shall give the Trust written notice of
and reasonable opportunity to defend against said claim in its own name or in
the name of BISYS.
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Section 10. RECORD RETENTION AND CONFIDENTIALITY. BISYS shall
keep and maintain on behalf of the Trust all books and records which the Trust
or BISYS is, or may be, required to keep and maintain pursuant to any
applicable statutes, rules and regulations, including without limitation Rules
31a-1 and 31a-2 under the Investment Company Act of 1940, as amended (the "1940
Act"), relating to the maintenance of books and records in connection with the
services to be provided hereunder. BISYS further agrees that all such books
and records shall be the property of the Trust and to make such books and
records available for inspection by the Trust or by the Securities and Exchange
Commission (the "Commission") at reasonable times and otherwise to keep
confidential all books and records and other information relative to the Trust
and its shareholders; except when requested to divulge such information by
duly-constituted authorities or court process, or 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 when
requested by the Trust, the shareholder, or shareholder's agent, or the dealer
of record as to such account.
Section 11. REPORTS. BISYS will furnish to the Trust and to its
properly authorized auditors, investment advisers, examiners, distributors,
dealers, underwriters, salesmen, insurance companies and others designated by
the Trust in writing, such reports at such times as are prescribed in Schedule
D attached hereto, or as subsequently agreed upon by the parties pursuant to an
amendment to Schedule D. The Trust agrees to examine each such report or copy
promptly and will report or cause to be reported any errors or discrepancies
therein no later than three business days from the receipt thereof. In the
event that errors or discrepancies, except such errors and discrepancies as may
not reasonably be expected to be discovered by the recipient within ten days
after conducting a diligent examination, are not so reported within the
aforesaid period of time, a report will for all purposes be accepted by and
binding upon the Trust and any other recipient, and, except as provided in
Section 9 hereof, BISYS shall have no liability for errors or discrepancies
therein and shall have no further responsibility with respect to such report
except to perform reasonable corrections of such errors and discrepancies
within a reasonable time after requested to do so by the Trust.
Section 12. RIGHTS OF OWNERSHIP. All computer programs and
procedures developed to perform services required to be provided by BISYS under
this Agreement are the property of BISYS. All records and other data except
such computer programs and procedures are the exclusive property of the Trust
and all such other records and data will be furnished to the Trust in
appropriate form as soon as practicable after termination of this Agreement for
any reason.
Section 13. RETURN OF RECORDS. BISYS may at its option at any
time, and shall promptly upon the Trust's demand, turn over to the Trust
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and cease to retain BISYS' files, records and documents created and maintained
by BISYS pursuant to this Agreement; provided, however, that to the extent
needed by BISYS in the performance of its services or for its legal protection,
BISYS may retain copies of such files, records and documents at BISYS' own
expense. If not so turned over to the Trust, such documents and records will
be retained by BISYS for six years from the year of creation. At the end of
such six-year period, such records and documents will be turned over to the
Trust unless the Trust authorizes in writing the destruction of such records
and documents.
Section 14. BANK ACCOUNTS. The Trust and the Funds shall
establish and maintain such bank accounts with such bank or banks as are
selected by the Trust, as are necessary in order that BISYS may perform the
services required to be performed hereunder. To the extent that the
performance of such services shall require BISYS directly to disburse amounts
for payment of dividends, redemption proceeds or other purposes, the Trust and
Funds shall provide such bank or banks with all instructions and authorizations
necessary for BISYS to effect such disbursements.
Section 15. REPRESENTATIONS OF THE TRUST. The Trust certifies to
BISYS that: (a) as of the close of business on the Effective Date, each Fund
which is in existence as of the Effective Date has authorized unlimited shares,
and (b) by virtue of its Declaration of Trust, shares of each Fund which are
redeemed by the Trust may be sold by the Trust from its treasury, and (c) this
Agreement has been duly authorized by the Trust and, when executed and
delivered by the Trust, will constitute a legal, valid and binding obligation
of the Trust, enforceable against the Trust in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors and secured
parties.
Section 16. REPRESENTATIONS OF BISYS. BISYS represents and
warrants that: (a) BISYS has been in, and shall continue to be in, substantial
compliance with all provisions of law, including Section 17A(c) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), required in
connection with the performance of its duties under this Agreement; and (b) the
various procedures and systems which BISYS has implemented with regard to
safekeeping from loss or damage attributable to fire, theft, or any other cause
of the blank checks, records, and other data of the Trust and BISYS' records,
data, equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as are required for the secure performance of its obligations
hereunder.
Section 17. INSURANCE. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be cancelled or reduced. Such notification shall include
the date of change and the reasons therefor. BISYS shall notify the Trust of
any material claims against it with
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respect to services performed under this Agreement, whether or not they may be
covered by insurance, and shall notify the Trust from time to time as may be
appropriate of the total outstanding claims made by BISYS under its insurance
coverage.
Section 18. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS.
The Trust has furnished to BISYS the following:
(a) Copies of the Declaration of Trust of the Trust and of any
amendments thereto, certified by the proper official of the
state in which such Declaration has been filed.
(b) Copies of the following documents:
1. The Trust's By-Laws and any amendments thereto;
2. Certified copies of resolutions of the Board of
Trustees covering the following matters:
a. Approval of this Agreement and authorization
of a specified officer of the Trust to
execute and deliver this Agreement and
authorization of specified officers of the
Trust to instruct BISYS hereunder; and
b. Authorization of BISYS to act as Transfer
Agent for the Trust on behalf of the Funds.
(c) A list of all officers of the Trust, together with specimen
signatures of those officers, who are authorized to instruct
BISYS in all matters.
(d) Two copies of the following (if such documents are employed by
the Trust):
1. Prospectuses and Statements of Additional
Information;
2. Distribution Agreement; and
3. All other forms commonly used by the Trust or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(e) A certificate as to shares of beneficial interest of the Trust
authorized, issued, and outstanding as of the Effective Date
of BISYS' appointment as Transfer Agent (or as of the date on
which BISYS' services are commenced, whichever is the later
date) and as to receipt of full consideration by the Trust for
all shares outstanding, such statement to be certified by the
Treasurer of the Trust.
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Section 19. INFORMATION FURNISHED BY BISYS. BISYS has furnished
to the Trust the following:
(a) BISYS' Articles of Incorporation.
(b) BISYS' Bylaws and any amendments thereto.
(c) Certified copies of actions of BISYS covering the following
matters:
1. Approval of this Agreement, and authorization of a
specified officer of BISYS to execute and deliver
this Agreement;
2. Authorization of BISYS to act as Transfer Agent for
the Trust.
(d) A copy of the most recent independent accountants' report
relating to internal accounting control systems as filed with
the Commission pursuant to Rule 17Ad-13 of the Exchange Act.
Section 20. AMENDMENTS TO DOCUMENTS. The Trust shall furnish
BISYS written copies of any amendments to, or changes in, any of the items
referred to in Section 18 hereof forthwith upon such amendments or changes
becoming effective. In addition, the Trust agrees that no amendments will be
made to the Prospectuses or Statement of Additional Information of the Trust
which might have the effect of changing the procedures employed by BISYS in
providing the services agreed to hereunder or which amendment might affect the
duties of BISYS hereunder unless the Trust first obtains BISYS' approval of
such amendments or changes.
Section 21. RELIANCE ON AMENDMENTS. BISYS may rely on any
amendments to or changes in any of the documents and other items to be provided
by the Trust pursuant to Sections 18 and 20 of this Agreement and the Trust
hereby indemnifies and holds harmless BISYS from and against any and all
claims, demands, actions, suits, judgments, liabilities, losses, damages,
costs, charges, counsel fees and other expenses of every nature and character
which may result from actions or omissions on the part of BISYS in reasonable
reliance upon such amendments and/or changes. Although BISYS is authorized to
rely on the above-mentioned amendments to and changes in the documents and
other items to be provided pursuant to Sections 18 and 20 hereof, BISYS shall
be under no duty to comply with or take any action as a result of any of such
amendments or changes unless the Trust first obtains BISYS' written consent to
and approval of such amendments or changes.
Section 22. COMPLIANCE WITH LAW. Except for the obligations of
BISYS set forth in Section 10 hereof, the Trust assumes full responsibility for
the preparation, contents and distribution of each prospectus of the Trust as
to compliance with all applicable requirements of the Securities Act of 1933,
as amended (the "1933 Act"), the 1940 Act and any other laws, rules and
regulations of
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governmental authorities having jurisdiction. BISYS shall have no obligation
to take cognizance of any laws relating to the sale of the Trust's shares. The
Trust represents and warrants that no shares of the Trust will be offered to
the public until the Trust's registration statement under the 1933 Act and the
1940 Act has been declared or becomes effective.
Section 23. NOTICES. Any notice provided hereunder shall be
sufficiently given when sent by registered or certified mail to the party
required to be served with such notice, at the following address: 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000, or at such other address as such party may from
time to time specify in writing to the other party pursuant to this Section.
Section 24. HEADINGS. Paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
Section 25. ASSIGNMENT. This Agreement and the rights and duties
hereunder shall not be assignable by either of the parties hereto except by the
specific written consent of the other party. This Section 25 shall not limit
or in any way affect BISYS' right to appoint a Sub-transfer Agent pursuant to
Section 1 hereof.
Section 26. GOVERNING LAW. This Agreement shall be governed by
and provisions shall be construed in accordance with the laws of the State of
Ohio.
Section 27. LIMITATION OF LIABILITY OF THE TRUSTEES AND
SHAREHOLDERS. The Sessions Group is a business trust organized under Chapter
1746, Ohio Revised Code and under a Declaration of Trust, to which reference is
hereby made and a copy of which is on file at the Office of the Secretary of
State of Ohio as required by law, and to any and all amendments thereto so
filed or hereafter filed. The obligations of "The Sessions Group" entered into
in the name or on behalf thereof by any of the Trustees, officers, employees or
agents are made not individually, but in such capacities, and are not binding
upon any of the Trustees, officers, employees, agents or shareholders of the
Trust personally, but bind only the assets of the Trust, as set forth in
Section 1746.13(A), Ohio Revised Code, and all persons dealing with any of the
Funds of the Trust must look solely to the assets of the Trust belonging to
such Fund for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed all as of the day and year first above written.
BISYS FUND SERVICES, INC. THE SESSIONS GROUP
By /s/ J. Xxxxx Xxxxx By /s/ Xxxxxx X. Xxxxx
-------------------------- --------------------------
(name) (title) Xxxxxx X. Xxxxx, President
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Dated: January __, 1997
SCHEDULE A
TO THE
TRANSFER AGENCY AGREEMENT
BETWEEN
THE SESSIONS GROUP
AND
BISYS FUND SERVICES, INC.
JULY 9, 1996
Name of Fund Date
------------ ----
The KeyPremier Prime Money Market Fund July 9, 1996
and The KeyPremier Pennsylvania Municipal
Bond Fund
The KeyPremier Established Growth Fund October __, 1996
and The KeyPremier Intermediate Term
Income Fund
The KeyPremier Aggressive Growth Fund January __, 1997
THE SESSIONS GROUP
By
--------------------------------
Xxxxxx X. Xxxxx, President
BISYS FUND SERVICES, INC.
By
--------------------------------
J. Xxxxx Xxxxx, President
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SCHEDULE B
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
a. Process shareholder purchase and redemption orders.
b. Set up account information, including address, dividend
option, taxpayer identifications numbers and wire instructions.
c. Issue confirmations in compliance with Rule 10 under the
Exchange Act.
d. Issue periodic statements for shareholders.
e. Process transfers and exchanges.
f. Process dividend payments, including the purchase of new
shares through dividend reinvestment.
2. Shareholder Information Services
a. Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
b. Produce detailed history of transactions through duplicate or
special order statements upon request.
c. Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements, or marketing material to
current shareholders.
3. Compliance Reporting
a. Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers and the States in
which the Fund is registered.
b. Prepare and distribute appropriate Internal Revenue Service
forms for corresponding Fund and shareholder income and
capital gains.
c. Issue tax withholding reports to the Internal Revenue Service.
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4. Dealer/Load Processing (if applicable)
a. Provide reports for tracking rights of accumulation and
purchases made under a Letter of Intent.
b. Account for separation of shareholder investments from
transaction sale charges for purchases of Fund shares.
c. Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
d. Track sales and commission statistics by dealer and provide
for payment of commissions on direct shareholder purchases in
a load Fund.
5. Shareholder Account Maintenance
a. Maintain all shareholder records for each account in the
Trust.
b. Issue customer statements on scheduled cycle, providing
duplicate second and third party copies if required.
c. Record shareholder account information changes.
d. Maintain account documentation files for each shareholder.
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Date: July 9, 1996
SCHEDULE C
Fees
Transfer Agent:
Annual fees per fund:
Daily dividend fund base fee $ 25 per shareholder
Variable NAV fund fee $ 23 per shareholder
Annual Minimums per fund: $20,000
Multiple classes of shares:
Classes of shares which have different net asset values or pay different daily
dividends will be treated as separate classes, and the fee schedule above,
including the appropriate minimums, will be charged for each separate class.
Additional services:
Additional services such as XXX processing are subject to additional fees which
will be quoted upon request. Programming costs or data base management fees
for special reports or specialized processing will be quoted upon request.
Out of pocket charges:
Out-of-pocket costs, including postage, Tymnet charges, statement/confirm paper
and forms, and microfiche, will be added to the transfer agent fees.
THE SESSIONS GROUP
By /s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx, President
BISYS FUND SERVICES, INC.
By /s/ J. Xxxxx Xxxxx
-----------------------------
(name) (title)
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SCHEDULE D
REPORTS
I. Daily Shareholder Activity Journal
II. Daily Fund Activity Summary Report
A. Beginning Balance
B. Dealer Transactions
C. Shareholder Transactions
D. Reinvested Dividends
E. Exchanges
F. Adjustments
G. Ending Balance
III. Daily Wire and Check Registers
IV. Monthly Dealer Processing Reports
V. Monthly Dividend Reports
VI. Sales Data Reports for Blue Sky Registration
VII. Annual report by independent public accountants concerning BISYS'
shareholder system and internal accounting control systems to be filed
with the Securities and Exchange Commission pursuant to Rule 17Ad-13
of the Exchange Act.
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