TRANSFER AGENCY AGREEMENT
This Agreement made as of the 30th of August 1994 between ----------------------
Inc., a Maryland corporation ("Fund"), having its principal office and place of
business at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Supervised Service
Company Inc., ("SSC") a Delaware corporation having its principal office and
place of business at 000 Xxxxx XxXxxxx, Xxxxxxx XX 00000 (hereinafter referred
to as the "Transfer Agent").
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
1. "Approved Institution" shall mean an entity so named in a Certificate. From
time to time the Fund may amend a previously delivered Certificate by delivering
to the Transfer Agent a Certificate naming an additional entity or deleting any
entity named in a previously delivered Certificate.
2. The "Board of Directors" shall mean the Board of Directors of the Fund.
3. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this
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Agreement to be given to the Transfer Agent by the Fund which is signed by any
Officer, as hereinafter defined, and actually received by the Transfer Agent.
4. "Custodian" shall mean the financial institution appointed as custodian
under the terms and conditions of the Custody Agreement between the financial
institution and the Fund, or its successor(s).
5. "Fund Business Day"' shall be deemed to be each day on
which the New York Stock Exchange, Inc. is open for trading.
6. "Officer" shall be deemed to be the Fund's President, any
Vice President of the Fund, the Fund's Secretary, the Fund's Treasurer, the
Fund's Controller, any Assistant Controller of the Fund, any Assistant Treasurer
of the Fund and any Assistant Secretary of the Fund, and any other person duly
authorized by the Board of Directors of the Fund to execute any Certificate,
instruction, notice or other instrument on behalf of the Fund and named in the
Certificate annexed hereto as Appendix A, as such Certificate may be amended
from time to time, and any person reasonably believed by the Transfer Agent to
be such a person. 7. "Out-of-pocket Expenses" means amounts reasonably necessary
and actually incurred by Transfer Agent in the provision of Transfer Agent
services or pursuant to this Agreement for the following purposes: postage (and
first class mail insurance in connection with mailing share certificates),
envelopes, check forms, continuous forms, forms for reports and statements,
station and other similar items, telephone and telegraph
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charges incurred in answering inquiries from dealers or shareholders, microfilm
used to record transactions in shareholder accounts and computer tapes used for
permanent storage of records and cost of insertion of materials in mailing
envelopes by outside firms. Transfer Agent may, at its option, arrange to have
various service providers submit invoices directly to the Fund for payment of
out-of-pocket expenses reimbursable hereunder; and such other expenses paid or
incurred by Transfer Agent at the request of the Fund. Any charges associated
with special or exception processing shall also be considered Out-of-Pocket
Expenses. 8. "Prospectus" shall mean the most recent Fund prospectus
actually received by the Transfer Agent from the Fund with respect
to which the Fund has indicated a registration statement under the Federal
Securities Act of 1933 has becomes effective, including the Statement of
Additional Information, incorporated by reference therein. 9. "Shares" shall
mean all or any part of each class or series of the shares of common stock of
the Fund or Portfolio listed in the Certificate as to which the Transfer Agent
acts as transfer agent hereunder, as may be amended from time to time, which are
authorized and/or issued by the Fund. 10. "Transfer Agent" shall mean Supervised
Service Company, Inc., ("SSC"), as transfer agent and dividend disbursing agent
under the terms and conditions of this Agreement, its successors or assign(s).
ARTICLE II
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APPOINTMENT OF TRANSFER AGENT
1. The Fund hereby constitutes and appoints the Transfer Agent as transfer agent
of all the Shares of the Fund and as dividend disbursing agent during the period
of this Agreement. 2. The Transfer Agent hereby accepts appointment as transfer
agent and dividend disbursing agent and agrees to perform duties thereof as
hereinafter set forth. 3. In connection with such appointment, the Fund upon the
request of the Transfer Agent, shall deliver the following documents to the
Transfer Agent:
(i) A copy of the Articles of Incorporation of the Fund and all
amendments thereto certified by the Secretary of the Fund;
(ii) A copy of the By-Laws of the Fund certified by the Secretary of the
Fund;
(iii) A copy of a resolution of the Board of Directors of the Fund
certified by the Secretary of the Fund appointing the Transfer Agent and
authorizing the execution of this Transfer Agency Agreement;
(iv) A Certificate signed by the Secretary of the Fund
specifying: the number of authorized Shares, the number of
such authorized
Shares issued, the number of such authorized Shares issued and currently
outstanding; the names and specimen signatures of the Officers of the Fund; and
the name and address of the legal counsel for the Fund;
(v) Specimen Share certificate for each or series class
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of Shares in the f orm approved by the Board of Directors of the Fund (and in a
f ormat compatible with the Transf er Agent t a system) , together with a
Certificate signed by the Secretary of the Fund as to such approval;
(vi) Copies of the Fund's Registration Statement, as amended to date, and
the most recently filed Post-Effective Amendment thereto, filed by the Fund with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, and under the Investment Company Act of 1940, as amended, together with
any applications filed in connection therewith; and
(vii) opinion of counsel for the Fund with respect to the validity of the
authorized and outstanding Shares, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulation (i.e., if subject
to registration, that they have been registered and that the Registration
Statement has become ef f ective or, if exempt, the specific grounds therefor.)
ARTICLE III
AUTHORIZATION AND ISSUANCe OF SHARES
1. The Fund shall deliver to the Transfer Agent the f ollowing documents on or
bef ore the ef f ective date of any increase or decrease in the total number of
Shares authorized to be issued: (a) A certified copy of the amendment to the
Articles of Incorporation giving effect to such increase or decrease; (b) In the
case of an increase, an opinion of counsel
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for the Fund with respect to the validity of the Shares of the Fund and the
status of such Shares under the Securities Act of 1933, as amended, and any
other applicable federal law or regulation (i.e., if subject to registration,
that they have been registered and that the Registration Statement has become
effective or, if exempt, the specific grounds therefor); and
(c) In the case of
an increase, if the appointment of the Transfer Agent was theretofore expressly
limited, a certified copy of a resolution of the Board of Directors of the Fund
increasing the authority of the Transfer Agent.
2. Prior to the issuance of any
additional Shares of the Fund pursuant to stock dividends or stock splits, etc.,
and prior to any reduction in the number of shares outstanding, the Fund shall
deliver the following documents to the Transfer Agent:
(a) A certified copy of
the resolution (s) adopted by the Board of Directors and/or the shareholders of
the Fund authorizing such issuance of additional Shares of the Fund or such
reduction, as the case may be, and
(b) An opinion of counsel for the Fund with
respect to the validity of the Shares of the Fund and the status of such Shares
under the Securities Act of 1933, as amended, and any other applicable federal
law or regulation (i.e., if subject to registration, that they have been
registered and that the Registration Statement has become effective, or, if
exempt, the specific grounds therefor).
ARTICLB IV
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RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other capital
adjustment requiring a change in the form of Share certificates, the Transfer
Agent will issue share certificates in the new form in exchange for, or upon
transfer of, outstanding Share certificates in the old form, upon receiving:
(a) A Certificate authorizing the issuance of the Share certificates
in the new form;
(b) A certified copy of any amendment to the Articles of Incorporation
with respect to the change;
(c) Specimen Share certificates for each class of Shares in the new form
approved by the Board of Directors of the Fund, with a Certificate signed by the
Secretary of the Fund as to such approval; and
(d) An opinion of counsel for the Fund with respect to the validity of the
Shares in the new form and the status of such Shares under the Securities Act of
1933, as amended, and any other applicable federal law or regulation (ie., if
subject to registration, that the Shares have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor.)
2. The Fund at its expense shall furnish the Transfer Agent with a
sufficient supply of blank Share certificates in the new f orm and from time to
time will replenish such supply upon the request of the Transfer Agent. Such
blank Share certificates shall be compatible with the Transfer Agent's system
and shall be
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properly signed by facsimile or otherwise by Officers of the Fund authorized by
law or by the By-Laws to sign share certificates and, if required shall bear the
corporate Seal or facsimile thereof. The Fund agrees to indemnify and exonerate,
save and hold the Transfer Agent harmless, from and against any and all claims
or demands that may be asserted against the Transfer Agent with respect to the
genuineness of any Share certificate supplied to the Transfer Agent by the Fund
pursuant to this section 2.
ARTICLE V
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. (a) The Transfer Agent acknowledges that it has received a copy of the Fund's
Prospectus, which Prospectus describes how sales and redemption of shares of the
Fund shall be made, and the Transfer Agent agrees to accept purchase orders and
redemption requests with respect to Fund shares on each Fund Business Day in
accordance with such Prospectus. The Fund agrees to provide the Transfer Agent
with sufficient advance notice to enable the Transfer Agent to effect any
changes in the procedures set forth in the Prospectus regarding such purchase
and redemption procedure; provided, however, that in no event will such advance
notice be less than 30 days.
(b) The Transfer Agent shall also accept with
respect to each Fund Business Day, at such times as are agreed upon from time to
time by the Transfer Agent and the Fund, a computer tape or electronic data
transmission consistent in all respects with the
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Transfer Agent's record format, as amended from time to time, which is
reasonably believed by the Transfer Agent to be furnished by or on behalf of any
Approved Institution. The Transfer Agent shall not be liable for any losses or
damages to the Fund or its shareholders in the event that a computer tape or
electronic data transmission from an Approved Institution is unable to be
processed for any reason beyond the control of the Transfer Agent, or if any of
the information on such tape or transmission is found to be incorrect.
2. On each Fund Business Day the Transfer Agent shall, as of the time at which
the Fund computes the net asset value of the Fund, issue to and redeem from the
accounts specified in a purchase order, redemption request, or computer tape or
electronic data transmission, which in accordance with the Prospectus is
effective on such Fund Business Day, the appropriate number of full and
fractional Shares based on the net asset value per Share of such Fund specified
in an advice received on such Fund Business Day from the Fund. Notwithstanding
the foregoing, if a redemption specified in a computer tape or electronic data
transmission is for a dollar value of Shares in excess of the dollar value of
uncertificated Shares in the specified account, the Transfer Agent shall not
effect such redemption in whole or in part and shall within twentyfour hours
orally advise the Approved Institution which supplied such tape of the
discrepancy.
3. In connection with a reinvestment of a dividend or distribution
of Shares of the Fund, the Transfer Agent shall as of
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each Fund Business Day, as specified in a Certificate or resolution described in
paragraph 1 of succeeding Article VI, issue Shares of the Fund based on the net
asset value per Share of such Fund specified in an advice received from the Fund
on such Fund Business Day.
4. On each Fund Business Day the Transfer Agent shall
supply the Fund with a statement specifying with respect to the immediately
preceding Fund Business Day: the total number of Shares of the Fund (including
fractional Shares) issued and outstanding at the opening of business on such
day; the total number of Shares of the Fund sold on such day, pursuant to
preceding paragraph 2 of this Article; the total number of Shares of the Fund
redeemed from Shareholders by the Transfer Agent on such day; the total number
of Shares of the Fund, if any, sold on such day pursuant to preceding paragraph
3 of this Article, and the total number of Shares of the Fund issued and
outstanding.
5. In connection with each purchase and each redemption of Shares,
the Transfer Agent shall send such statements as are prescribed by the Federal
Securities laws applicable to transfer agents or as described in the Prospectus.
If the Prospectus indicates that certificates for Shares are available and if
specifically requested in writing by any shareholder, or if otherwise required
hereunder, the Transfer Agent will countersign, issue and mail to such
shareholder at the address set forth in the records of the Transfer Agent a
Share certificate for any full Share requested.
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6. As of each Fund Business Day the Transfer Agent shall
furnish the Fund with an advice setting forth the number and dollar
amount of Shares to be redeemed on such Fund Business Day in
accordance with paragraph 2 of this Article.
7. Upon receipt of a proper redemption request and moneys
paid to it by the Custodian in connection with a redemption of
Shares, the Transfer Agent shall cancel the redeemed Shares and
after making appropriate deduction f or any withholding of taxes required of it
by applicable law (a) in the case of a redemption of Shares pursuant to a
redemption described in preceding paragraph i(a) of this Article, make payment
in accordance with the Fund's redemption and payment procedures described in the
Prospectus, and (b) in the case of a redemption of Shares pursuant to a computer
tape or electronic data transmission described in preceding paragraph l(b) of
this Article, make payment by directing a federal funds wire order to the
account previously designated by the Approved Institution specified in said
computer tape or electronic data transmission.
8. The Transfer Agent shall not
be required to issue any Shares after it has received from an officer of the
Fund or from an appropriate federal or state authority written notification that
the sale of Shares has been suspended or discontinued, and the Transfer Agent
shall be entitled to rely upon such written notification.
9. Upon the issuance of any Shares in accordance with this Agreement the
Transfer Agent shall not be responsible for the
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payment of any original issue or other taxes required to be paid by the Fund in
connection with such issuance of any Shares.
10. The Transfer Agent shall accept
a computer tape or electronic data transmission consistent with the Transfer
Agent's record format, as amended from time to time, which is reasonably
believed by the Transfer Agent to be furnished by or on behalf of any Approved
Institution and is represented to be instructions with respect to the transfer
of Shares from one account of such Approved Institution to another such account,
and shall effect the transfers specified in said computer tape or electronic
data transmission. The Transfer Agent shall not be liable for any losses to the
Fund or its shareholders in the event that a computer tape or electronic data
transmission from an Approved Institution is unable to be processed for any
reason beyond the control of the Transfer Agent, or if any of the information on
such tape or transmission is found to be incorrect.
ll.(a) Except as otherwise provided in sub-paragraph (b) of
this paragraph and in paragraph 13 of this Article, Shares will be
transferred or redeemed upon presentation to the Transfer Agent of Share
certificates or instructions properly endorsed for transfer or redemption,
accompanied by such documents as the Transfer Agent deems necessary to evidence
the authority of the person making such transfer or redemption, and bearing
satisfactory evidence of the payment of stock transfer taxes. In the case of
small estates where no administration is contemplated, the Transfer Agent may,
when furnished with an appropriate surety bond, and without further
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approval of the Fund, transfer or redeem Shares registered in the name of a
decedent where the current market value of the Shares being transferred does not
exceed such amount as may from time to time be prescribed by various states. The
Transfer Agent reserves the right to refuse to transfer or redeem Shares until
it is satisfied that the endorsement on the stock certificate or instructions is
valid and genuine, and for that purpose it will require unless otherwise
instructed by an authorized officer of the Fund, a guarantee of signature by an
"Eligible Guarantor Institution" as that term is defined by SEC Rule 17Ad-15
under the Securities Exchange Act of 1934. The Transfer Agent 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
the Transfer Agent, in its judgement, deems improper or unauthorized, or until
it is satisfied that there is no basis to any claims adverse to such transfer or
redemption. The Transfer Agent may, in effecting transfers and redemptions of
Shares, rely upon those provisions of the Uniform Act for the simplification of
Fiduciary Security Transfers or the Uniform Commercial Code, as the same may be
amended from time to time, applicable to the transfer of securities, and the
Fund shall indemnify the Transfer Agent for any act done or omitted by it in
good faith in reliance upon such laws. In no event will the Fund indemnify the
Transfer Agent for any act done by it as a result of willful misfeasance, bad
faith,
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negligence or reckless disregard of its duties.
(b) Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, the Transfer Agent
shall be fully protected by the Fund in not requiring any instruments,
documents, assurances, endorsements or guarantees, including, without
limitation, any signature guarantees, in connection with a redemption, or
transfer, of Shares whenever the Transfer Agent reasonably believes that
requiring the same would be inconsistent with the transfer and redemption
procedures as described in the Prospectus.
12. Notwithstanding any provision
contained in this agreement to the contrary, the Transfer Agent shall not be
required or expected to require, as a condition to any transfer of any Shares
pursuant to paragraph 13 of this Article or any redemption of any Shares
pursuant to a computer tape or electronic data transmission described in this
Agreement, any documents, including, without limitation, any documents of the
kind described in sub-paragraph (a) of paragraph 13 of this Article, 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.
13. (a)As used in this Agreement, the terms "computer tape
or electronic data transmission" and "computer tape believed by the
Transfer Agent to be furnished by an Approved Institution", shall include any
tapes generated by the Transfer Agent to reflect information believed by the
Transfer Agent to have been input by an
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Approved Institution, via a remote terminal or other similar link, into a data
processing, storage, or collection system, or similar system (the "System"),
located on the Transfer Agent's premises. For purposes of paragraph 1 of this
Article, such a computer tape or electronic data transmission shall be deemed to
have been furnished at such times as are agreed upon from time to time by the
Transfer Agent and Fund only if the information reflected thereon was input to
the System at such times as are agreed upon in writing from time to time by the
Transfer Agent and the Fund.
(b) Nothing contained in this Agreement shall constitute any agreement or
representation by the Transfer Agent to permit, or to agree to permit, any
Approved Institution to input information into a System.
(c) The Transfer Agent reserves the right to approve, in advance, any Approved
Institution, such approval not to be unreasonably withheld. The Transfer Agent
also reserves the right to terminate any and all automated data communications,
at its discretion, upon a reasonable attempt to notify the Fund when in the
reasonable opinion of the Transfer Agent continuation of such communications
would jeopardize the accuracy and/or integrity of the Fund's records on the
System.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. The Fund shall furnish to the Transfer Agent a copy of a resolution of its
Board of Directors, certified by the Secretary or any Assistant Secretary,
either (i) setting forth the date of the
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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 the Transfer Agent on such payment date, or (ii) authorizing the
declaration of dividends and distributions on a daily or other periodic basis
and authorizing the Transfer Agent to rely on a Certificate setting forth the
information described in subsection (i) of this paragraph.
2. Upon the mail date
specified in such Certificate or resolution, as the case may be, the Fund shall,
in the case of a cash dividend or distribution, cause the Custodian to deposit
in an account in the name of the Transfer Agent on behalf of the Fund an amount
of cash, if any, sufficient for the Transfer Agent 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. The Transfer Agent
will, upon receipt of any such cash, make payment of such cash dividends or
distributions to the shareholders of record as of the record date by: (i)
mailing a check, payable to the registered shareholder, to the address of record
or dividend mailing address, or (ii) wiring such amounts to the accounts
previously designated by an Approved Institution, as the case may be. The
Transfer Agent shall not be liable for any improper payments made in good faith
and without
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negligence, in accordance with a Certificate or resolution described in the
preceding paragraph. If the Transfer Agent shall not receive from the Custodian
sufficient cash to make payments of any cash dividend or distribution to all
shareholders of the Fund as of the record date, the Transfer Agent shall, upon
notifying the Fund, withhold payment to all shareholders of record as of the
record date until sufficient cash is provided to the Transfer Agent.
3. It is
understood that the Transfer 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. It is expressly agreed and understood that the Transfer
Agent is not liable for any loss as a result of processing a distribution based
on information provided in the Certificate that is incorrect. The Fund agrees to
pay the Transfer Agent for any and all costs, both direct and out-of-pocket
expenses, incurred in such corrective work as necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such
appropriate information returns concerning the payment of dividend
and capital gain distributions with the proper federal, state and local
authorities as are required by law to be filed by the Fund 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 law.
ARTICLE VII
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CONCERNING THE FUND
1. The Fund represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing
under the laws of the State of Maryland.
(b) It is empowered under applicable laws and by its Articles of Incorporation
and By-Laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
(d) It is an investment company registered under the Investment
Company Act of 1940, as amended.
(e) A registration statement under the
Securities Act of 1933, as amended, with respect to the Shares is effective. The
Fund shall notify the Transfer Agent if such registration statement or any state
securities registrations have been terminated or a stop order has been entered
with respect to the Shares.
2. Each copy of the Articles of Incorporation of the
Fund and copies of all amendments thereto shall be certified by the Secretary of
State (or other appropriate official) of the state of organization, and if such
Articles of Incorporation and/or amendments are required by law also to be filed
with a county or other officer or official body, a certificate of such filing
shall be filed with a certified copy submitted to the Transfer Agent. Each copy
of the By-Laws and copies of all amendments thereto, and copies of resolutions
of the Board of Directors of the Fund, shall be certified by the Secretary of
the Fund.
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3. The Fund shall promptly deliver to the Transfer Agent written notice of any
change in the Officers authorized to sign Share Certificates, notifications or
requests, together with a specimen signature of each new Officer. In the event
any Officer who shall have signed manually or whose facsimile signature shall
have been affixed to blank Share certificates shall die, resign or be removed
prior to issuance of such Share certificates, the Transfer Agent may issue such
Share certificates of the Fund notwithstanding such death, resignation or
removal, and the Fund shall promptly deliver to the Transfer Agent such
approval, adoption or ratification as may be required by law.
4. It shall be the
sole responsibility of the Fund to deliver to the Transfer Agent the Fund's
currently effective Prospectus and, for purposes of this Agreement, the Transfer
Agent shall not be deemed to have notice of any information contained in such
Prospectus until a reasonable time, not to exceed ten (10) business days, after
it is actually received by the Transfer Agent.
ARTICLE VIII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Fund
that:
(a) It is a corporation duly organized and existing under the laws of the
State of Delaware.
(b) It is empowered under applicable law and by its Charter and By-laws
to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken
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to authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934, as amended.
2. The Transfer Agent shall not be
liable and shall be indemnified in acting upon any computer tape or electronic
data transmission, writing or document reasonably believed by it to be genuine
and to have been signed or made by an officer of the Fund or person designated
by the Fund and shall not be held to have any notice of any change of authority
of any person until receipt of written notice thereof f rom the Fund or such
person. It shall also be protected in processing Share certificates which bear
the proper countersignature of the Transfer Agent and which it reasonably
believes to bear the proper manual or facsimile signature of the Officers of the
Fund.
3. The Transfer Agent upon reasonable notice to the Fund may establish
such additional procedures, rules and regulations governing the transfer or
registration of Share certificates as it may deem advisable and consistent with
such rules and regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as are specified in Schedule II
hereto in the form and manner, and f or such period, as it may deem advisable
and is agreeable to the Fund but not inconsistent with the rules and regulations
of appropriate government authorities, in particular Rules 3la-2 and 3la-3 under
the Investment Company Act of 1940, as amended. The Transfer Agent acknowledges
that such records are the property of the Fund. The
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Transfer Agent may deliver to the Fund from time to time at its discretion, for
safekeeping or disposition by the Fund in accordance with law, such records,
papers, documents accumulated in the execution of its duties as such Transfer
Agent, as the Transfer Agent may deem expedient, other than those which the
Transfer Agent is itself required to maintain pursuant to applicable laws and
regulations. The Fund shall assume all responsibility for any failure thereafter
to produce any record, paper, cancelled Share certificate, or other document so
returned, if and when required. The records specified in Schedule II hereto
maintained by the Transfer Agent pursuant to this paragraph 4, which have not
been previously delivered to the Fund pursuant to the foregoing provisions of
this paragraph 4, shall be considered to be the property of the Fund, shall be
made available upon request for inspection by the officers, employees, auditors
of the Fund, or such staff of applicable regulatory agencies as the Fund may
designate, and records shall be delivered to the Fund upon request and in any
event upon the date of termination of this Agreement, as specified in Article IX
of this Agreement, in the form and manner kept by the Transfer Agent on such
date of termination or such earlier date as may be requested by the Fund.
5. The Transfer Agent shall not be liable for any loss or damage, including
counsel fees, resulting from its actions or omissions to act or otherwise,
except for any loss or damage arising out of its bad faith, negligence,
willful misfeasance, gross negligence or reckless disregard of its duties under
this
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agreement.
6 (a) The Fund shall indemnify and exonerate, save and hold harmless the
Transfer Agent from and against any and all claims (whether with or without
basis in fact or law), demands, expenses (including reasonable attorney's fees)
and liabilities of any and every nature which the Transfer Agent may sustain or
incur or which may be asserted against the Transfer Agent by any person by
reason of or as a result of any action taken or omitted to be taken by any prior
transf er agent of the Fund or as a result of any action taken or omitted to be
taken by the Transfer Agent in good faith and without negligence or willful
misconduct or in reliance upon (i) any provision of this Agreement; (ii) the
Prospectus; (iii) any instruction or order including, without limitation, any
computer tape or electronic data transmission reasonably believed by the
Transfer Agent to have been received from an Approved Institution; (iv) any
instrument, order or Share certificate reasonably believed by it to be genuine
and to be signed, countersigned or executed by any duly authorized officer of
the Fund; (v) any Certificate or other instructions of an Officer; or (vi) any
opinion of legal counsel for the Fund or the Transfer Agent. The Fund shall
indemnify and exonerate, save and hold the Transfer Agent harmless from and
against any and all claims (whether with or without basis in fact or law),
demands, expenses (including reasonable attorney's fees) and liabilities of any
and every nature which the Transfer Agent may sustain or incur or which may be
asserted against the Transfer Agent by any person by reason
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of or as a result of any action taken or omitted to be taken by the Transfer
Agent in good faith and without negligence in connection with its appointment or
in reliance upon any law, act, regulation or any interpretation of the same even
though such law, act or regulation may thereafter have been altered, changed,
amended or repealed.
(b) The Transfer Agent shall not settle any claim, demand, expense or
liability to which it may seek indemnity pursuant to paragraph 6(a) above (each,
an "Indemnifiable Claim") without the express written consent of an Officer of
the Fund. The Transfer Agent shall notify the Fund within 15 days of receipt of
notification of an Indemnifiable Claim, provided that the failure by the
Transfer Agent to furnish such notification shall not impair its right to seek
indemnification from the Fund unless the Fund is unable to adequately defend the
Indemnifiable Claim as a result of such failure, or if as a result of the
Transfer Agent's failure to provide the Fund with timely notice of the
institution of litigation a judgment by default is entered. The Fund shall have
the right to defend any Indemnifiable Claim at its own expense, provided that
such defense shall be conducted by counsel selected by the Fund. The Transfer
Agent may join in such defense at its own expense, but to the extent that it
shall so desire the Fund shall direct such defense. The Fund shall not settle
any Indemnifiable Claim without the express written consent of the Transfer
Agent if the Transfer Agent determines that such settlement would have an
adverse effect on the Transfer Agent
23
beyond the scope of this Agreement. In the event the Transfer Agent does not
provide its written consent, each of the Fund and the Transfer Agent shall be
responsible for their own defense at their own cost and expense, and such claim
shall not be deemed an Indemnifiable Claim hereunder. If the Fund shall fail or
refuse to defend an Indemnifiable Claim, the Transfer Agent may provide its own
defense at the cost and expense of the Fund. Anything in this Agreement to the
contrary notwithstanding, the Fund shall not indemnify the Transfer Agent
against any liability or expense arising out of the Transfer Agent's willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
The Transfer Agent shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by the Transfer Agent as a result of the Transfer Agent's
lack of good faith, negligence or willful misconduct.
7. The Transfer Agent
shall not be liable to the Fund with respect to any redemption draft on which
the signature of the drawer is forged and which the Fund's Custodian or Cash
Management Bank has advised the Transfer Agent to honor the redemption. Provided
that the Transfer Agent inspects redemption drafts with reasonable care to
verify the drawer's signature against signatures on file, the Transfer Agent
shall not be liable for any material alteration or absence or forgery of any
endorsement.
24
8. There shall be excluded from the consideration of whether the Transfer Agent
has been negligent or has breached this Agreement, any period of time, and only
such period of time, during which the Transfer Agent's performance is materially
affected, by reason of circumstances beyond its control and not reasonably
foreseeable in that the Transfer Agent could not reasonable have made back-up or
alternative arrangements (collectively, "Causes"), including, without limitation
(except as provided below), mechanical breakdowns of equipment (including any
alternative power supply and operating systems software), flood or catastrophe,
acts of God, failures of transportation, communication or power supply, strikes,
lockouts, work stoppages or other similar circumstances.
9. At any time the
Transfer Agent may apply to an officer of the Fund for written instructions with
respect to any matter arising in connection with the Transfer Agent's duties and
obligations under this Agreement, and the Transfer Agent shall not be liable for
any action taken or permitted by it in good faith in accordance with such
written instructions. Such application by the Transfer Agent for written
instructions from an Officer of the Fund may set forth in writing any action
proposed to be taken or omitted by the Transfer Agent with respect to its duties
or obligations under this Agreement and the date on and/or after which such
action shall be taken. The Transfer Agent shall not be liable for any action
taken or omitted in accordance with a proposal included in any such application
on or after the date specified therein unless, prior to taking or omitting any
such action, the Transfer Agent has
25
received written instructions in response to such application specifying the
action to be taken or omitted. The Transfer Agent may consult counsel of the
Fund, or if acceptable to the Fund, its own counsel, at the expense of the Fund
and shall be fully protected with respect to anything done or omitted by it in
good faith in accordance with the advice or opinion of counsel to the Fund or
its own counsel.
10. The Transfer Agent may issue new Share certificates in
place of certificates represented to have been lost, stolen, or destroyed upon
receiving written instructions from the shareholder accompanied by proof of an
indemnity or surety bond issued by a recognized insurance institution specified
by the Fund or the Transfer Agent. If the Transfer Agent receives written
notification from the shareholder or broker dealer that the
certificate issued was never received, and such notification is
made within 30 days of the date of issuance, the Transfer Agent may reissue the
certif icate without requiring a surety bond. The Transfer Agent may also
reissue certificates which are represented as lost, stolen, or destroyed without
requiring a surety bond provided that the notification is in writing and
accompanied by an indemnification signed on behalf of a member firm of the New
York Stock Exchange and signed by an officer of said firm with the signature
guaranteed. Notwithstanding the foregoing, the Transfer Agent will reissue a
certificate upon written authorization from an officer of the Fund.
11. In case of any requests or demands for the inspection of
26
the shareholder records of the Fund, the Transfer Agent will endeavor to notify
the Fund promptly and to secure instructions from an Officer as to such
inspection. The Transfer Agent reserves the right, however, to exhibit the
shareholder records to any person whenever it receives an opinion from its
counsel that there is a reasonable likelihood that the Transfer Agent will be
held liable for the failure to exhibit the shareholder records to such person;
provided, however, that in connection with any such disclosure the Transfer
Agent shall promptly notify the Fund that such disclosure has been made or is to
be made.
12. At the request of an Officer of the Fund the Transfer Agent will
address and mail such appropriate notices to shareholders as the Fund may
direct.
13. Notwithstanding any of the foregoing provisions of this Agreement,
the Transfer Agent shall be under no duty or obligation 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 Approved Institution
or of the Fund, as the case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a redemption of any
Shares, the propriety of the amount to be paid therefor, or the authority of the
Approved Institution or of the Fund, as the case may be, to request such
transfer or redemption;
(c) The legality of the declaration of any dividend by
the Fund, or the legality of the issue of any Shares in payment of
27
any stock dividend; or
(d) The legality of any recapitalization or readjustment
of Shares.
14. The Transfer Agent shall be entitled to receive and the Fund hereby agrees
to pay to the Transfer Agent for its performance hereunder, including its
performance of the duties and functions set forth in Schedule I hereto, (i) its
reasonable out-of-pocket expenses (including reasonable legal expenses and
attorney's fees) incurred in connection with its performance hereunder and (ii)
such compensation as may be agreed upon in writing from time to time by the
Transfer Agent and the Fund.
15. The Transfer Agent shall have no duties or
responsibilities whatsoever except such duties and responsibilities as are
specifically set forth in this Agreement, and no covenant or obligation shall be
implied in this Agreement against the Transfer Agent.
16. Purchase and Prices of services.
(a) The Fund will compensate the Transfer Agent for, and Transfer Agent
will provide, beginning on the execution date of this Agreement and continuing
until the termination of this Agreement as provided hereinafter, the Services
set forth in Schedule I.
(b) The current unit prices for the Services are set forth in Schedule
III (the "Schedule III Fee Schedule"). once in each calendar year, after the
third anniversary of the date hereof, the Transfer Agent may elect to raise the
Schedule III Fees upon
28
ninety (90) days prior notice to the Fund. Notwithstanding the annual right to
raise the Schedule III Fees, the Transfer Agent may increase prices due to
changes in legal or regulatory requirements subject to the approval of the Fund,
which approval shall not be unreasonably withheld.
17. Billing and Payment.
(a) The Transfer Agent shall xxxx the Fund as follows: (i) monthly in
arrears for Accounts maintained and Out-of-Pocket Expenses; and (ii) monthly in
advance for estimated postage expenses to be incurred by the Transfer Agent for
the following month. Documentation to support reconciliation of actual postage
expense charges will be provided to the Fund monthly. The Transfer Agent may
from time to time request the Fund to make additional advances when appropriate.
(b) The Fund shall pay the Transfer Agent in immediately available funds
at United Missouri Bank in Kansas City, Missouri within thirty (30) days of the
date of the xxxx and receipt of supporting documents. Any amounts due under this
Agreement which are not paid within said thirty (30) day period shall bear
interest at the rate of one and one-half percent (1 1/2%) per month from such
date until paid in full.
ARTICLE IX
TERMINATION
Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90)
29
days after the date of receipt of such notice. In the event such notice is given
by the Fund, it shall be accompanied by a copy of a resolution of the Board of
Directors of the Fund, 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 the Transfer
Agent, the Fund shall on or before the termination date, deliver to the Transfer
Agent 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 Fund, the Fund shall
upon the date specified in the notice of termination of this Agreement and
delivery of the records maintained hereunder, be deemed to be its own transfer
agent and the Transfer Agent shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement.
In the event this Agreement is terminated as provided herein, the
Transfer Agent, upon the written request of the Fund, shall deliver the records
of the Fund on electromagnetic media to the Fund or its successor transfer
agent. The Fund shall be responsible to the Transfer Agent for the reasonable
costs and expenses associated with the preparation and delivery of such media.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees that prior to effecting any change in the Prospectus which
would increase or alter the duties and obligations
30
of the Transfer Agent hereunder, it shall advise the Transfer Agent of such
proposed change at least 30 days prior to the intended date of the same, and
shall proceed with such change only if it shall have received the written
consent of the Transfer Agent thereto, which consent shall not be unreasonably
withheld.
2. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its office at the address
first above written, or at such other place as the Fund may from time to time
designate in writing.
3. Any notice or other instrument in writing, authorized
or required by this Agreement to be given to the Transfer Agent shall be
sufficiently given if addressed to the Transfer Agent and mailed or delivered to
the Secretary at 000 Xxxxx XxXxxxx, Xxxxxxx, XX, with a copy to the President at
000 Xxxx Xxxxxx,, Xxxxxx City, NO, or at such other place as the Transfer Agent
may from time to time designate in writing.
4. 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.
5. 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 the Transfer Agent may assign
this Agreement to a corporate affiliate with advance written notice to and
consent by,the Fund, which consent shall not
31
be unreasonably withheld.
6. This Agreement shall be governed by and construed in accordance with the laws
of the State of Illinois.
7. 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.
8. The provisions
of this Agreement are intended to benefit only the Transfer Agent and the Fund,
and no rights shall be granted to any other person by virtue of this Agreement.
9. (a) The Transfer Agent will endeavor to assist in resolving shareholder
inquiries and errors relating to the period during which prior transfer agents
acted as such for the Fund. Any such inquiries or errors which cannot be
expediently resolved by the Transfer Agent will be referred to the Fund.
(b) The Transfer Agent shall only be responsible for the safekeeping and
maintenance of transfer agency records, cancelled certificates and
correspondence of the Fund created or produced prior to the time of conversion
which are under its control and acknowledged in a writing to the Fund to be in
its possession. Any expenses or liabilities incurred by the Transfer Agent as a
result of shareholder inquiries, regulatory compliance or audits related to such
records and not caused as a result of Transfer Agent's bad faith, willful
malfeasance or negligence shall be the responsibility of the Fund as provided in
Article VIII herein.
10. The Transfer Agent shall enter into and shall maintain in
effect with appropriate parties one or more agreements making
32
reasonable provision for periodic backup or computer files and data with respect
to the Fund and emergency use of electronic data processing equipment. In the
event of equipment failures the Transfer Agent shall at no additional expense to
the Fund, take all reasonable steps to minimize service interruptions, the
Transfer Agent shall have no liability with respect to the loss of data or
service interruptions caused by equipment failures, provided such loss or
interruption is not caused by the negligence of the Transfer Agent and provided
further that the Transfer Agent has complied with the provisions of this
Paragraph.
11. The Transfer Agent agrees on its own behalf and that of its
employees to make reasonable efforts to keep confidential all records of the
Fund and information relating to the Fund and its shareholders (past, present
and future), its investment advisor and its principal underwriter, unless the
release of such records or information is otherwise consented to, in writing, by
the Fund prior to its release. The Fund agrees that such consent shall not be
unreasonably withheld, and may not be withheld where Transfer Agent may be
exposed to civil or criminal contempt proceedings or when required to divulge
such information or records to duly constituted authorities.
12. The Transfer
Agent shall maintain insurance of the types and in the amounts deemed by it to
be appropriate. To the extent that policies of insurance may provide for
coverage of claims for liability or indemnity by the parties set forth in this
Agreement, the contracts of insurance shall take precedence, and no provision
33
of this Agreement shall be construed to relieve an insurer of any obligation to
pay claims to the Fund, the Transfer Agent or other insured party which would
otherwise be a covered claim in the absence of any provision of this Agreement.
13. The Transfer Agent represents and warrants that, to the best of its
knowledge, the various procedures and systems which the Transfer Agent has
implemented with regard to the safeguarding from loss or damage attributable to
fire, theft or any other cause (including provision for twenty-four hours a day
restricted access) of the Fund's blank checks, certificates, records and other
data and the Transfer Agent's 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 in its judgment are required for the
secure performance of its obligations hereunder. The Transfer Agent shall review
such systems and procedures on a periodic basis and the Fund shall have access
to review these systems and procedures.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer,
34
thereunto duly authorized and their respective corporate seals to be hereunto
affixed, as the day and year first above written.
Supervised Service Company, Inc. --------------------------------------
By: By:
(Signature) (Signature)
(Name) (Name)
(Title) (Title)
35
