EXHIBIT H.1
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of this 31st day of December,
2003, by and between Columbus Funds, Inc., a Maryland corporation (the
"Corporation"), and UMB Fund Services, Inc., a Wisconsin corporation, its
successors and assigns ("UMBFS").
R E C I T A L S:
WHEREAS, the Corporation is registered under the 1940 Act as an open-end
management investment company; and
WHEREAS, the Corporation 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.
A G R E E M E N T S:
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 Sections 326 and 352
of the USA PATRIOT Act.
1.03 ARTICLES OF INCORPORATION shall mean the Articles of Incorporation or
similar operational document of the Corporation, as the same may be amended from
time to time.
1.04 AUTHORIZED PERSON shall mean any individual who is authorized to
provide UMBFS with Instructions and requests on behalf of the Corporation, whose
name shall be certified to UMBFS from time to time pursuant to Section 8.01 of
this Agreement.
1.05 BOARD OF DIRECTORS shall mean the Board of Directors of the
Corporation.
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1.06 CUSTODIAN shall mean the financial institution appointed as custodian
under the terms and conditions of the custody agreement between the financial
institution and the Corporation, or its successor.
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
Corporation representing interests in a separate portfolio of securities and
other assets for which the Corporation 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 Corporation with respect to
which the Corporation 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 Corporation as may be issued from time
to time.
1.14 SHAREHOLDER shall mean a record owner of Shares of each respective
Fund of the Corporation.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 APPOINTMENT. The Corporation hereby appoints UMBFS as transfer agent
and dividend disbursing agent of all the Shares of the Corporation during the
term of this Agreement with respect to each Fund listed on Schedule A hereto,
and any additional Fund the Corporation and UMBFS may 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.
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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 in writing other parties to
carry out some or all of its responsibilities under this Agreement, which
parties, if they are to provide transfer agency services, shall be qualified to
perform transfer agency services and shall be reasonably acceptable to the
Corporation (individually, a "Sub-Transfer Agent"); provided, however, that
unless the Corporation shall enter into a written agreement with such
Sub-Transfer Agent, the Sub-Transfer Agent shall be the agent of UMBFS and not
the agent of the Corporation and, in such event UMBFS shall be fully responsible
for the acts or omissions of such Sub-Transfer Agent and shall not be relieved
of any of its responsibilities hereunder by appointment of such Sub-Transfer
Agent.
2.03 DELIVERIES.
A. In connection with UMBFS' appointment as transfer agent and
dividend disbursing agent, the Corporation shall deliver or cause the following
documents to be delivered to UMBFS:
(1) A copy of the Articles of Incorporation and By-laws of the
Corporation and all amendments thereto, certified by the Secretary of the
Corporation;
(2) A certificate signed by an officer of the Corporation 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 Directors of
the Corporation appointing UMBFS as transfer agent and dividend disbursing agent
and authorizing the execution of this Transfer Agency Agreement on behalf of the
Corporation;
(4) Copies of the Corporation's Registration Statement, as amended
to date, and the most recently filed Post-Effective Amendment thereto, filed by
the Corporation 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 Corporation and designating the names of the
Corporation's initial Authorized Persons.
B. The Corporation agrees to deliver or to cause to be delivered to
UMBFS in Milwaukee, Wisconsin, at the Corporation'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.
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ARTICLE III
COMPENSATION & EXPENSES
3.01 COMPENSATION. As compensation for the performance of the Services,
the Corporation 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 Corporation,
enhancements to current Services, or to add Funds for which UMBFS has been
retained. The Corporation agrees to pay UMBFS for any Services added to, or any
enhancements to existing Services set forth on, Schedule C after the execution
of this Agreement at the rate negotiated by the parties.
3.02 EXPENSES. The Corporation 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 Corporation 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 Corporation for payment of reimbursable
out-of-pocket expenses. Such fees as are attributable to each Fund shall be the
several (and not joint or joint and several) obligation of each such Fund.
B. The Corporation 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 Corporation agrees to pay
a late charge on the overdue amount equal to one percent (1.0%) per month or the
maximum amount permitted by law, whichever is less. In addition, the Corporation
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 Corporation's late payment. Acceptance of such late
charge shall in no event constitute a waiver by UMBFS of the Corporation's
default or prevent UMBFS from exercising any other rights and remedies available
to it.
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C. In the event that any charges are disputed, the Corporation
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 RESPONSIBILITIES. The Corporation acknowledges that the
fees charged by UMBFS under this Agreement reflect the allocation of
responsibilities between the parties, including the exclusion of remedies and
limitations on liability in Article IX. Modifying the allocation of
responsibilities from what is stated herein would affect the fees that UMBFS
charges. Accordingly, in consideration of those fees, the Corporation agrees to
the stated allocation of responsibilities.
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
Corporation. 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 Corporation 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.
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
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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 Corporation 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,
Except as otherwise set forth in Article IX, UMBFS shall be fully protected by
each Fund in not requiring any instruments, documents, assurances, endorsements
or guarantees, including, without limitation, any 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 prepare and 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 Corporation or available to investors.
F. UMBFS and the Corporation 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 Corporation, for its actions or omissions
which are consistent with the foregoing procedures.
G. The Corporation 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 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.
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4.02 DIVIDENDS AND DISTRIBUTIONS.
A. The Corporation shall give or cause to be given to UMBFS a copy
of a resolution of its Board of Directors, 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 Instructions
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 Corporation 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 based on and in accordance with the contents of 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 Corporation, 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.
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 may
deliver to the Corporation from time to time at UMBFS' discretion, for
safekeeping or disposition by the Corporation 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
Corporation shall assume all responsibility for any failure thereafter to
produce any record, paper, or other document so returned, if and when required.
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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 Corporation pursuant to
the foregoing provisions of this paragraph, shall be considered to be the
property of the Corporation, shall be made available upon request for inspection
by the officers, employees, and auditors of the Corporation, and shall be
delivered to the Corporation 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
Corporation. 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 Corporation, a Fund, the Shareholder, the
Shareholder's agent or the dealer of record with respect to such account, or
(iv) to an affiliate, as defined by Section 248.3(a) of Regulation S-P (17 CFR
248.1-248.30); or (v) 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 use its best efforts to notify the Corporation promptly
and to secure instructions from a representative of the Corporation 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
5.01 REPRESENTATIONS OF CORPORATION. The Corporation represents and
warrants to UMBFS that:
A. It is a corporation duly organized and existing under the laws of
the State of Maryland; it is empowered under applicable laws and by its Articles
of Incorporation 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.
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B. Each officer of the Corporation 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 with respect to Shares of the Corporation
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 Corporation's Articles of Incorporation and its Prospectus with respect
to each Fund, such Shares shall be validly issued, fully paid and
non-assessable.
5.02 REPRESENTATIONS OF UMBFS. UMBFS represents and warrants to the
Corporation 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.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 INFORMATION UPDATES. During the term of this Agreement the
Corporation shall have the ongoing obligation to provide UMBFS with the
following documents as soon as they become effective: (i) copies of all
amendments to its Articles of Incorporation and By-laws made after the date of
this Agreement; and (ii) a copy of each Fund's currently effective Prospectus.
If requested by UMBFS, each copy of the Articles of Incorporation and By-laws,
as well as any amendments thereto, shall be certified by the Secretary of the
Corporation. 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 Corporation 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 Corporation 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 Corporation will give prompt notice thereof to UMBFS.
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6.03 COMPLIANCE WITH LAWS. The Corporation 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 Corporation 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, which consent shall not be unreasonably withheld.
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 Corporation hereunder.
6.06 BACK-UP FACILITY. During the term of this Agreement, UMBFS shall
maintain a back-up facility in case of damage or other event which results in
inability of UMBFS to provide transfer agency services at the primary facility
(the "Back-up Facility"). As soon as practicable after damage to the primary
facility or other event which results in an inability to provide the transfer
agency services, UMBFS shall transfer the Corporation's transfer agency and
dividend records to the Back-up Facility. After the primary facility has
recovered, UMBFS shall again utilize it to provide the transfer agency services
to the Corporation. UMBFS shall use reasonable efforts to provide the services
described in this Agreement from the Back-up Facility.
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 Corporation and
determine whether such persons appear on any list of known or suspected
terrorists or terrorist organizations. The Corporation 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 Corporation.
7.02 DELEGATION. The Corporation acknowledges that it has had an
opportunity to review, consider and comment upon and select the AML Procedures
and the Corporation has determined that they, as part of the Corporation's
overall anti-money laundering program, are reasonably designed to prevent the
Corporation 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 Corporation hereby instructs and directs
UMBFS to implement the AML Procedures on its behalf, as such may be amended or
revised from time to time, and UMBFS agrees to implement the Procedures on
behalf of the Corporation.
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7.03 AMENDMENT TO PROCEDURES. It is contemplated that the AML Procedures
will be amended from time to time by the parties as directed by the Corporation
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 Corporation's anti-money laundering responsibilities.
7.04 REPORTING. UMBFS agrees to provide to the Corporation (i) prompt
written notification of any transaction or combination of transactions that
UMBFS believes, based on the AML Procedures, evidence money laundering activity
in connection with the Corporation or any shareholder of the Corporation, (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 Corporation as provided in this Article VII, (iii)
any action taken in response to anti-money laundering violations as described in
(i) or (ii), (iv) an annual report of its monitoring and verification activities
on behalf of the Corporation, and (v) such other reports as reasonably requested
by the Corporation relating to the AML Procedures, subject to the programming
fees set forth on Schedule C. UMBFS shall provide such other reports on the
verification activities conducted at the direction of the Corporation as may be
agreed to from time to time by UMBFS and the Corporation's anti-money laundering
compliance officer.
7.05 INSPECTION. The Corporation 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 Corporation, as they may request, and (2) permit
such federal regulators to inspect UMBFS' implementation of the AML Procedures
on behalf of the Corporation; provided, however, that UMBFS shall promptly
notify the Corporation of such inspections.
ARTICLE VIII
FUND INSTRUCTIONS
8.01 AUTHORIZED PERSONS. Upon the execution of this Agreement, the
Corporation shall provide UMBFS with a certificate containing the names of the
initial Authorized Persons in a form acceptable to UMBFS. Any officer of the
Corporation shall be considered an Authorized Person (unless such authority is
limited in a writing from the Corporation and received by UMBFS) and 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 the Authorized Persons from time to time. The Corporation
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 Corporation.
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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 Corporation only if such representative is an Authorized Person.
The Corporation 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 Corporation 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 Corporation at the expense of
the Corporation, 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 Corporation 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 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 received by
UMBFS from an officer or representative of the Corporation, the Funds'
investment adviser, legal counsel, independent accountants, administrator or
custodian without investigation or verification, or in reasonable reliance upon
the same from a representative of any of the other parties referenced in Section
11.08, or (2) any action taken or omission by a Fund, the Corporation,
investment adviser(s) or any current service provider.
9.02 INDEMNIFICATION BY CORPORATION. The Corporation 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, negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties hereunder;
12
(b) UMBFS' reliance on, implementation of, or use of information,
data, records and documents received by UMBFS from the Corporation, the Funds'
investment adviser, legal counsel, independent accountants, administrator or
custodian without investigation or verification, or reasonable reliance upon the
same from a representative of any of the other parties referenced in Section
11.08;
(c) the reliance on, or the implementation of, any Instructions or
any other advice, instructions, requests or directions of the Corporation or
from a representative of any of the parties referenced in Section 11.08, or any
third party acting on behalf of the Corporation;
(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 Corporation;
(e) any action taken by or omission of the Corporation, investment
adviser or sub-adviser(s) or any 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 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 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 Corporation's refusal or failure to comply with the terms of
the Agreement, or any Claim that arises out of the Corporation's negligence or
misconduct or breach of any representation or warranty of the Corporation made
herein.
9.03 INDEMNIFICATION BY UMBFS. UMBFS agrees to indemnify and hold harmless
the Corporation from and against any and all Claims arising out of or in any way
relating to UMBFS' willful misfeasance, bad faith or negligence in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement.
9.04 INDEMNIFICATION PROCEDURES. The party seeking indemnification under
this Article IX (the "Indemnified Party") shall not settle any claim, demand,
expense or liability to which it may seek indemnity (each, and "Indemnifiable
Claim") without the express written consent of the party from which
indemnification is sought (the "Indemnifying Party"). The Indemnified Party will
notify the Indemnifying Party promptly after receipt of notification of an
Indemnifiable Claim, provided that the failure to furnish such notification
shall not impair the Indemnified Party's right to seek indemnification unless
the Indemnifying Party is unable to adequately defend the Indemnifiable Claim as
13
a result of such failure. The Indemnifying Party shall have the right to defend
any Indemnifiable Claim at its own expense, provided that such defense shall be
conducted by counsel chosen by the Indemnifying Party and approved by
Indemnified Party in its reasonable discretion. The Indemnified Party may join
in such defense at its own expense, but to the extent that it shall so desire
the Indemnifying Party shall direct such defense. If the Indemnifying Party
shall fail or refuse to defend an Indemnifiable Claim, the Indemnified Party may
provide its own defense at the cost and expense of the Indemnifying Party. The
obligations of the parties under the Sections 9.02, 9.03 and 9.04 shall survive
the termination of this Agreement.
9.05 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 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.
9.06 CONSEQUENTIAL DAMAGES. In no event and under no circumstances shall
either party, its affiliates or any of its or their officers, directors, agents
or employees be liable to anyone, including, without limitation, the other
party, 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.
9.07 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 Corporation, 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 (but the foregoing shall not limit UMBFS' obligations
pursuant to Article IV, Section 4.01(C) of this Agreement), the propriety of the
amount to be paid therefor, or the authority of the Corporation, as the case may
be, to request such transfer or redemption;
(c) The legality of the declaration of any dividend by the
Corporation, 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.
14
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
Corporation pursuant to Section 10.02, it shall be accompanied by a copy of a
resolution of the Board of Directors of the Corporation 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 Corporation shall on or before the termination
date, deliver to UMBFS a copy of a resolution of its Board of Directors
certified by the Secretary or any Assistant Secretary designating a successor
transfer agent or transfer agents. In the absence of such designation by the
Corporation, the Corporation 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 Corporation upon such termination, shall be
immediately due and payable upon and notwithstanding such termination.
10.03 EFFECT OF TERMINATION. Upon the termination of the Agreement as
provided herein, UMBFS, upon the written request of the Corporation, shall
deliver the records of the Corporation to the Corporation or its successor
transfer agent in the form maintained by UMBFS (to the extent permitted by
applicable license agreements) at the expense of the Corporation. The
Corporation 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) reasonable
out-of-pocket expenses; (b) any custom programming requested by the Corporation
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 Fund 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 Corporation and agreed
to by UMBFS in connection with the termination of this Agreement or the
liquidation or merger of the Corporation. UMBFS shall not reduce the level of
service provided to the Corporation prior to termination following notice of
termination by the Corporation and, subject to the foregoing paragraph, shall
assist the Corporation in the transition of the functions to a successor
transfer agent.
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:
15
IF TO UMBFS: UMB Fund Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Executive Vice President
IF TO THE CORPORATION: Columbus Funds, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. XxXxxxxx
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 Corporation 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.
11.08 RELIANCE ON INFORMATION AND INSTRUCTIONS. The Directors of the
Corporation shall cause the officers, investment adviser, 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 be entitled to rely upon any
and all instructions, advice, information or documents provided to UMBFS by an
officer or representative of the Funds, the Funds' investment adviser, legal
16
counsel, independent accountants, administrator or custodian without
investigation or verification, and to reasonably rely upon the same provided by
any other 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 Corporation. UMBFS shall not be held to have notice of any change of
authority of any officer, agent, representative or employee of the Corporation,
investment adviser or service provider until receipt of written notice thereof
from the Corporation.
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. COLUMBUS FUNDS, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxx
---------------------------------- ----------------------------------
(Signature) (Signature)
Xxxxx Xxxxxxx Xxxxxxx X. Xxx
---------------------------------- ----------------------------------
(Name) (Name)
EVP President
---------------------------------- ----------------------------------
(Title) (Title)
---------------------------------- ----------------------------------
(Date Signed) (Date Signed)
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SCHEDULE A
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
COLUMBUS FUNDS, INC.
AND
UMB FUND SERVICES, INC.
NAMES OF FUNDS
Columbus Low Duration Fund
Columbus Intermediate Fund
Columbus Core Fund
Columbus Core Plus Fund
Columbus High Yield Fund
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SCHEDULE B
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
COLUMBUS FUNDS, INC.
AND
UMB FUND SERVICES, INC.
SERVICE SCHEDULE
o Set up and maintain shareholder accounts and records, including IRAs and
other retirement accounts
o Store account documents electronically
o 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
o 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
o Process dividend payments by check, wire or ACH, or reinvest dividends
o Issue daily transaction confirmations and monthly or quarterly statements
o Mail prospectus, annual and semiannual reports, and other shareholder
communications to existing shareholders
o Implement the Corporation's AML Procedures as contemplated by Article VII
o File IRS Forms 1099, 5498, 1042, 1042-S and 945 with shareholders and/or
the IRS
o Handle load and multi-class processing, including rights of accumulation
and purchases by letters of intent
o Provide standards to structure forms and applications for efficient
processing
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.
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OPTIONAL SERVICES
The Funds may contract with UMBFS to provide one or more of the following
optional services. Additional fees apply.
o Personal follow-up calls to prospects who return incomplete applications
o Comprehensive clerical confirmation statements for maintenance
transactions
o UMBISG 0.XXX(R) SERVICES, UMBFS' array of Internet services, including
Adviser Services, RIA/Broker Services, Shareholder Services, NAV Services
and email services.
o UMBISG 4.prompt services (per fund group)
o Tier I and II - Basic Service
o Average cost calculations and cost basis statements
o Shareholder "welcome" packages with initial confirmation
o Access to UMBFS' Tax and Retirement Group to answer questions and
coordinate retirement plan options
o Follow up on IRAs, soliciting beneficiary and other information and
sending required minimum distribution reminder letters
o Money market funds for short-term investment or exchanges
o Dedicated service representatives
o Weekend and holiday shareholder services
o Customized reorder form tracking
o Give dealers access through NSCC's Fund/SERV and Networking
o Customized forms and applications
o Postal Clean Up
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SCHEDULE C
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
COLUMBUS FUNDS, INC.
AND
UMB FUND SERVICES, INC.
FEES
BASE FEE
o Per fund (per month) $3,000
o Share classes in additional to the first (per month, per class) $750
ACCOUNT FEES
o Open account fee (per year)* $8.50
o Closed account fee (per year) $3.50
o One-time set-up (per account) $3.00
o Transaction fee (e.g., financial, maintenance) $1.50
o Omnibus Account maintenance (per year) $150
*includes NSCC activity, AIP/SWP/auto exchanges, any required
IRS withholding
USA PATRIOT ACT FEES
o Research (per item) $2.50
o Additional account set-up (per non-individual account)* $1.00
o Suspicious Activity Report filing (per occurrence) $25.00
o Maintenance Fee (per fund, per year) $2,000
*e.g., corporate account, trust account, partnership
account, etc.
RETIREMENT ACCOUNTS (XXX/XXXX/OTHERS)
o Annual maintenance per account (may be charged to shareholders) $12.50
DOCUMENT SERVICES
o Standard applications and forms in electronic format no charge
o Customized forms as quoted
o Pre-printed, machine ready statement inserts (per item) $.02
o Standard statement/confirm/tax form/check (per item)
- First page $.20
- Additional pages (per page) $.07
21
MONEY MARKET EXCHANGE VEHICLES
o Exception check writing (per set definition, per occurrence) $2.00
SHAREHOLDER SERVICES
o Telephone calls (per call) $2.50
o Shareholder letters/e-mails $2.50
o Research/lost shareholder (per occurrence) $2.50
VRU SERVICES(1)
o Annual VRU maintenance fee $1,800
o VRU charge (per call) $ .40
INTERNET SERVICES
o BROKER BROWSER(2)
- Inquiry no charge
- New account set-up, one-time fee per account $1.60
- Transactions* (per occurrence) $ .40
- Account maintenance (per occurrence) $ .50
*additional purchases, exchanges and redemptions
o SHAREHOLDER BROWSER(3)
- Inquiry (per occurrence) $ .15
- New account set-up, one-time fee per account $1.60
- Transactions* (per occurrence) $ .40
- Account maintenance (per occurrence) $ .50
*additional purchases, exchanges and redemptions
o WEB-BASED DOCUMENT MAILINGS*(4)
- One time set-up fee $1,500
- Per shareholder, per mailing $ .10
*statements, prospectuses, financial reports, etc.
----------
(1) If VRU Services are selected, a one-time VRU set-up fee of $3,000 will be
applied.
(2) If Broker Browser is selected, a one-time set-up fee of $1,000 will be
applied.
(3) If Shareholder Browser is selected, a one-time set-up fee of $5,000 will
be applied.
(4) If Web-based Document Mailings are selected, a one-time set-up fee of
$1,500 will be applied.
22
PROGRAMMING FEES
Additional fees at $150 per hour, or as quoted by project, may apply for special
programming to meet your servicing requirements or to create custom reports.
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include but are not limited to: copying charges,
facsimile charges, inventory and record storage and reprocessing, statement
paper, check stock, envelopes, tax forms, postage and direct delivery charges,
tape/disk storage, telephone and long distance charges, retirement plan
documents, NSCC participant billing, P.O. box rental, toll-free number, search
charges for customer identity checks, bank account service fees and any other
bank charges.
Fees for services not contemplated by this schedule will be negotiated on a
case-by-case basis.
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