Exhibit 9(b)
THE HIGHLAND FAMILY OF FUNDS
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of the 14th day of March, 1997, by and between The
Highland Family of Funds, a business trust organized under the laws of the
Commonwealth of Massachusetts, with its principal office and place of business
at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 (the "Trust"), and Forum Financial
Corp., a Delaware corporation with its principal office and place of business at
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, the Trust is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets, and is authorized to divide those series into
separate classes;
WHEREAS, the Trust intends initially to offer shares in two series as
listed in Appendix A hereto (each such series, together with all other series
subsequently established by the Trust and made subject to this Agreement in
accordance with Section 13, being herein referred to as a "Fund", and
collectively as the "Funds") and the Trust may subsequently establish various
classes in each Fund (each such class being referred to herein as a "Class,"
and collectively as the "Classes"); and
WHEREAS, the Trust on behalf of the Funds desires to appoint Forum as
its transfer agent and dividend disbursing agent and Forum desires to accept
such appointment;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT
(a) Appointment. The Trust, on behalf of the Funds, hereby appoints
Forum to act as, and Forum agrees to act as, (i) transfer agent for the
authorized and issued shares of beneficial interest of the Trust representing
interests in each of the respective Funds and Classes thereof ("Shares"), (ii)
dividend disbursing agent and (iii) agent in connection with any accumulation,
open-account or similar plans provided to the registered owners of shares of
any of the Funds ("Shareholders") and set out in the currently effective
prospectuses and statements of additional information (collectively
"prospectus") of the applicable Fund, including, without limitation, any
periodic investment plan or periodic withdrawal program.
(b) Document Delivery. The Trust shall on behalf of each Fund promptly
furnish to Forum (i) a certified copy of the resolution of the Board of Trustees
of the Trust authorizing the appointment of Forum and the execution and delivery
of this Agreement and (ii) a copy of the Declaration of Trust and By-Laws
(collectively, as amended from time to time, "Organic Documents") of the Trust.
For as long as this Agreement is effective, the Trust shall on behalf of each
Fund furnish to Forum any and all amendments to its Organic Documents and
prospectuses.
SECTION 2. DUTIES OF FORUM
(a) Services. Forum agrees that in accordance with procedures
established from time to time by agreement between the Trust on behalf of each
of the Funds, as applicable, and Forum, Forum will perform the following
services:
(i) The services of a transfer agent, dividend disbursing agent and,
as relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment
plan or periodic withdrawal program) that are customary for open-end
management investment companies including: (A) maintaining all
Shareholder accounts, (B) preparing Shareholder meeting lists, (C)
mailing proxies to Shareholders, (D) mailing Shareholder reports and
prospectuses to current Shareholders, (E) withholding taxes on U.S.
resident and non-resident alien accounts, (F) preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms required by
federal authorities with respect to distributions for Shareholders, (G)
preparing and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, (H) preparing and
mailing activity statements for Shareholders, and (I) providing
Shareholder account information;
(ii) Receive for acceptance orders for the purchase of Shares and
promptly deliver payment and appropriate documentation therefor to the
custodian of the applicable Fund (the "Custodian") or, in the case of
Fund's operating in a master-feeder or fund of funds structure, to the
transfer agent or interestholder recordkeeper for the master
portfolios in which the Fund invests;
(iii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iv) Receive for acceptance redemption requests and deliver the
appropriate documentation therefor to the Custodian or, in the case of
fund's operating in a master-feeder or fund of funds structure, to the
transfer agent or interestholder recordkeeper for the master portfolios
in which the Fund invests;
(v) As and when it receives monies paid to it by the Custodian with
respect to any redemption, pay the redemption proceeds as required by
the prospectus pursuant to which the redeemed Shares were offered and
as instructed by the redeeming Shareholders;
(vi) Effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) Prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by the
Trust with respect to Shares;
(viii) Issue share certificates and replacement share certificates for
those share certificates alleged to have been lost, stolen, or
destroyed upon receipt by Forum of indemnification satisfactory to
Forum and protective Forum and the Trust and, at the option of Forum,
issue replacement certificates in place of mutilated share certificates
upon presentation thereof without requiring indemnification;
(ix) Receive from Shareholders or debit Shareholder accounts for
sales commissions, including contingent deferred, deferred and other
sales charges, and service fees (i.e., wire redemption charges) and
prepare and transmit payments to underwriters, selected dealers and
others for commissions and service fees received;
(x) Prepare and transmit payments to underwriters, selected dealers
and others for trail commissions, Rule 12b-1 fees, shareholder service
fees and other payments based on the amount of assets in Shareholder
accounts;
(xi) Maintain records of account for and provide reports
and statements to the Trust and Shareholders as to the foregoing;
(xii) Record the issuance of Shares of the Trust and maintain pursuant
to Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as
amended ("1934 Act") a record of the total number of Shares of the
Trust, each Fund and each Class thereof, that are authorized, based
upon data provided to it by the Trust, and are issued and outstanding
and provide the Trust on a regular basis a report of the total number
of Shares that are authorized and the total number of Shares which are
issued and outstanding;
(xiii) Record the total number of Shares of each Fund and Class
thereof sold in each State.
(b) Other Services. Forum shall make available the following
additional services on behalf of the Trust and such other services at terms
agreed to in writing by the Trust and Forum:
(i) Monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the
United States;
(ii) Act as a "Fund/SERV" and "Networking" processing agent
for the Trust or various Funds as requested by the Trust;
(iii) Receive and tabulate proxy votes;
(iv) Provide a methodology wherein a Shareholder or financial
intermediary has direct access to the information contained in the
Shareholder records of that Shareholder or the Shareholders serviced
by that financial intermediary; and
(v) Provide a methodology wherein a Shareholder or financial
intermediary has the ability to enter purchase, redemption and other
transactions with respect to that Shareholder's Shareholder account or
the Shareholder accounts of Shareholders serviced by that financial
intermediary.
(c) Blue Sky Matters. The Trust or its administrator or other agent (i)
shall identify to Forum in writing those transactions and assets to be treated
as exempt from reporting for each state and territory of the United States and
for each foreign jurisdiction (collectively "States") and (ii) shall record the
sales activity with respect to Shareholders domiciled or resident in each State.
The responsibility of Forum for the Trust's State registration status is solely
limited to the reporting of transactions to the Trust and the distributor of
the Trust's shares.
(d) Safekeeping. Forum shall establish and maintain facilities and
procedures reasonably acceptable to the Trust for the safekeeping, control,
preparation and use of share certificates, check forms, and facsimile signature
imprinting devices. Forum shall establish and maintain facilities and procedures
reasonable acceptable to the Trust for safekeeping of all records maintained by
Forum pursuant to this Agreement.
(e) Cooperation With Accountants. Forum shall cooperate with
each Fund's independent public accountants and shall take reasonable
action to make all necessary information available to the accountants for
the performance of the accountants' duties.
SECTION 3. RECORDKEEPING
(a) Predecessor Records. Prior to the commencement of Forum's
responsibilities under this Agreement, if applicable, the Trust shall deliver or
cause to be delivered over to Forum (i) an accurate list of Shareholders of the
Trust, showing each Shareholder's address of record, number of Shares owned and
whether such Shares are represented by outstanding share certificates and (ii)
all Shareholder record, files, and other materials necessary or appropriate for
proper performance of the functions assumed by Forum under this Agreement
(collectively referred to as the "Materials'). The Trust shall on behalf of each
applicable Fund or Class indemnify and hold Forum harmless from and against any
and all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any error, omission, inaccuracy or
other deficiency of the Materials, or out of the failure of the Trust to provide
any portion of the Materials or to provide any information in the Trust's
possession or control reasonably needed by Forum to perform the services
described in this Agreement.
(b) Recordkeeping. Forum shall keep records relating to the services
to be performed under this Agreement, in the form and manner as it may deem
advisable and as required by applicable law. To the extent required by Section
31 of the 1940 Act, and the rules thereunder, Forum agrees that all such records
prepared or maintained by Forum relating to the services to be performed by
Forum under this Agreement are the property of the Trust and will be preserved,
maintained and made available in accordance with Section 31 of the 1940 Act and
the rules thereunder, and will be surrendered promptly to the Trust on and in
accordance with the Trust's request. The Trust and the Trust's authorized
representatives shall have access to Forum's records relating to the services
to be performed under this Agreement at all times during Forum's normal business
hours. Upon the reasonable request of the Trust, copies of any such records
shall be provided promptly by Forum to the Trust or the Trust's authorized
representatives.
(c) Confidentiality of Records. Forum and the Trust agree that all
books, records, information, and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by law.
(d) Inspection of Records by Others. In case of any requests or demands
for the inspection of the Shareholder records of the Trust, Forum will endeavor
to notify the Trust and to secure instructions from an authorized officer of the
Trust as to such inspection. Forum shall abide by the Trust's instructions for
granting or denying the inspection; provided, however, that Forum may grant the
inspection without instructions if Forum is advised by counsel to Forum that
failure to do so will result in liability to Forum.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Issuance of Shares. Forum shall make original issues of Shares of
each Fund and Class thereof in accordance with the Trust's then current
prospectus only upon receipt of (i) instructions requesting the issuance, (ii)
a certified copy of a resolution of the Board authorizing the issuance, (iii)
necessary funds for the payment of any original issue tax applicable to such
Shares, and (iv) an opinion of the Trust's counsel as to the legality and
validity of the issuance, which opinion may provide that it is contingent upon
the filing by the Trust of an appropriate notice with the Securities and
Exchange Commission, as required by Section 24 of the Act or the rules
thereunder. If the opinion described in (iv) above is contingent upon a filing
under Section 24 of the Act, the Trust shall indemnify Forum for any liability
arising from the failure of the Trust to comply with that section or the rules
thereunder.
(b) Transfer of Shares. Transfers of Shares of each Fund and Class
thereof shall be registered on the Shareholder records maintained by Forum. In
registering transfer of Shares, Forum may rely upon the Uniform Commercial Code
as in effect in the State of [Delaware] or any other statutes that, in the
opinion of Forum's counsel, protect Forum and the Trust from liability arising
from (i) not requiring complete documentation, (ii) registering a transfer
without an adverse claim inquiry, (iii) delaying registration for purposes of
such inquiry or (iv) refusing registration whenever an adverse claim requires
such refusal. As Transfer Agent, Forum will be responsible for delivery to the
transferor and transferee of such documentation as is required by the Uniform
Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) Certificates. The Trust shall furnish to Forum a supply of blank
share certificates of each Fund and Class thereof and, from time to time, will
renew such supply upon Forum's request. Blank share certificates shall be signed
manually or by facsimile signatures of officers of the Trust authorized to sign
by the Organic Documents of the Trust and, if required by the Organic Documents,
shall bear the Trust's seal or a facsimile thereof. Unless otherwise directed by
the Trust, Forum may issue or register Share certificates reflecting the manual
or facsimile signature of an officer who has died, resigned or been removed by
the Trust. The Trust shall file promptly with Forum approval, adoption or
ratification of such action as may be required by law or Forum.
(b) Endorsement; Transportation. New Share certificates shall be issued
by Forum upon surrender of outstanding Share certificates in the form deemed by
Forum to be properly endorsed for transfer and satisfactory evidence of
compliance with all applicable laws relating to the payment or collection of
taxes. Forum shall forward Share certificates in "non-negotiable" form by
first-class or registered mail, or by whatever means Forum deems equally
reliable and expeditious. Forum shall not mail Share certificates in
"negotiable" form unless requested in writing by the Trust and fully
indemnified by the Trust to Forum's satisfaction.
(c) Non-Issuance of Certificates. In the event that the Trust informs
Forum that any Fund or Class thereof does not issue share certificates, Forum
shall not issue any such share certificates and the provisions of this Agreement
relating to share certificates shall not be applicable with respect to those
Funds or Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Purchase Orders. Shares shall be issued to investors in a Fund at
the net asset value per share next determined after Forum receives a completed
purchase order. A purchase order shall be complete at the time specified in the
prospectus pursuant to which the Shares are offered and when Forum or its agent
receives either:
(i) (A) an instruction directing investment in a Fund or Class, (B) a
check (other than a third party check) or a wire or other electronic
payment in the amount designated in the instruction and (C), in the
case of an initial purchase, a completed account application; or
(ii) the information required for purchases pursuant to a selected
dealer agreement, processing organization agreement, or a similar
contract with a financial intermediary.
(b) Distribution Eligibility. Shares issued in a Fund after
receipt of a completed purchase order shall be eligible to receive
distributions of the Fund at the time specified in the prospectus pursuant to
which the Shares are offered.
(c) Determination of Federal Funds. Shareholder payments shall be
considered Federal Funds no later than on the day indicated below unless such
other times are noted in the prospectus of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System,
on the second Fund Business Day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as Forum is credited with Federal
Funds with respect to that check.
SECTION 7. FEES AND EXPENSES
(a) Fees. For the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to pay Forum the fees set
forth in Appendix B hereto. Such fees shall be accrued by the Trust daily and
shall be payable monthly in arrears on the first day of each calendar month for
services performed under this Agreement during the prior calendar month. Upon
the termination of this Agreement, the Trust shall pay to the Administrator
such compensation as shall be payable prior to the effective date of such
termination. Fees will begin to accrue for each Fund on the latter of the date
of this Agreement or the date of commencement of operations of the Fund.
(b) Expenses. In connection with the services provided by Forum
pursuant to this Agreement, the Trust, on behalf of each fund agrees to
reimburse Forum for the expenses set forth in Appendix B hereto. In addition,
the Trust, on behalf of the applicable Fund, shall reimburse Forum for all
expenses and employee time attributable to any review of the Trust's accounts
and records by the Trust's independent public accountants or any regulatory body
outside of routine and normal periodic reviews. Should the Trust exercise its
right to terminate this Agreement, all out-of-pocket expenses associated with
the copying and movement of records and material to the successor transfer agent
shall be borne by the Trust on behalf of the applicable Funds and Forum may, in
its discretion, charge for any other reasonable expenses associated with such
termination.
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of Forum. Forum represents and
warrants to the Trust that:
(i) It is a corporation duly organized and existing and in
good standing under the laws of the State of Delaware.
(ii) It is duly qualified to carry on its business in the State of
Maine.
(iii) It is empowered under applicable laws and by its Article of
Incorporation and By-Laws to enter into this Agreement and perform its
duties under this Agreement.
(iv) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement.
(v) It has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this Agreement.
(vi) It is registered as a transfer agent under Xxxxxxx 00X xx xxx
0000 Xxx.
(x) Representations and Warranties of the Trust. The Trust represents
and warrants to Forum that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
(ii) It is empowered under applicable laws and by its Organic
Documents to enter into this Agreement and perform its duties under
this Agreement.
(iii) All requisite proceedings have been taken to authorize it to
enter into this Agreement and perform its duties under this Agreement.
(iv) It is an open-end management investment company registered under
the Investment Company Act of 1940, as amended ("1940 Act").
(v) A registration statement under the Securities Act of 1933, as
amended, will be effective and will remain effective, and appropriate
State securities law filings will be made and will continue to be made,
with respect to all Shares of the Funds and Classes of the Trust being
offered for sale.
SECTION 9. PROPRIETARY INFORMATION.
(a) Proprietary Information of Forum. The Trust acknowledges that
the databases, computer programs, screen formats, report formats, interactive
design techniques, and documentation manuals furnished to the Trust by Forum as
part of the Trust's ability to access certain Trust-related data
("Customer Data") maintained by Forum on databases under the control and
ownership of Forum or other third party ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to Forum or other third party.
In no event shall Proprietary Information be deemed Customer Data. The Trust
agrees to treat all Proprietary Information as proprietary to Forum and further
agrees that it shall not divulge any Proprietary Information to any person or
organization except as may be provided under this Agreement.
(b) Proprietary Information of the Trust. Forum acknowledges that the
Shareholder list and all information related to Shareholders furnished to Forum
by the Trust or by a Shareholder maintained by Forum in connection with this
Agreement constitute proprietary information (collectively, "Proprietary
Information") of substantial value to the Trust. Forum agrees to treat all
Proprietary Information as proprietary to the Trust and further agrees that it
shall not divulge any Proprietary Information to any person or organization
except as may be provided under this Agreement.
SECTION 10. INSTRUCTIONS. The Trust shall file with Forum (i) a
certified copy of the operative resolutions of the Board authorizing the
execution of written instructions or the transmittal of oral instructions and
authorizing the issuance of Shares of each Fund and Class thereof, (ii) samples
of signatures of those persons authorized by the Trust to deliver written and
oral instructions to Forum and (iii) a written description of the authority of
each person so authorized.
SECTION 11. INDEMNIFICATION
(a) Indemnification of Forum. Forum shall not be responsible for, and
the Trust shall on behalf of each applicable Fund or Class thereof indemnify
and hold Forum harmless from and against, any and all losses, damages, costs,
charges, reasonable counsel fees, payments, expenses and liability arising out
of or attributable to:
(i) All actions of Forum or its agents or subcontractors required to
be taken pursuant to this Agreement, provided that such actions are
taken in good faith and without gross negligence or willful misconduct.
(ii) The Trust's lack of good faith, gross negligence or willful
misconduct which arise out of the breach of any provision of this
Agreement.
(iii) The reliance on or use by Forum or its agents or subcontractors
of information, records, documents or services which have been
prepared, maintained or performed by the Trust or any other person or
firm on behalf of the Trust, including but not limited to any previous
transfer agent or registrar.
(iv) The reasonable reliance on, or the carrying out by Forum or its
agents or subcontractors of, any instructions or requests of the Trust
on behalf of the applicable Fund.
(v) The offer or sale of Shares in violation of any requirement under
the Federal securities laws or regulations or the securities laws or
regulations of any State that such Shares be registered in such State
or in violation of any stop order or other determination or ruling by
any federal agency or any State with respect to the offer or sale of
such Shares in such State.
(b) Indemnification of Trust. Forum shall indemnify and hold the Trust
and each Fund or class thereof harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributed to any action or failure or omission to act by Forum as a
result of Forum's lack of good faith, gross negligence or willful misconduct
with respect to the services performed under or in connection with this
Agreement.
(c) Reliance. At any time Forum may apply to any officer of the Trust
for instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by Forum under this
Agreement, and Forum and its agents or subcontractors shall not be liable and
shall be indemnified by the Trust on behalf of the applicable Fund for any
action taken or omitted by it in reasonable reliance upon such instructions or
upon the opinion of such counsel. Forum, its agents and subcontractors shall be
protected and indemnified in acting upon (i) any paper or document furnished by
or on behalf of the Trust, reasonable believed by Forum to be genuine and to
have been signed by the proper person or persons, (ii) any instruction,
information, data, records or documents provided Forum or its agents or
subcontractors by machine readable input, telex, CRT at entry or other similar
means authorized by the Trust, and (iii) any authorization, instruction,
approval, item or set of data, or information of any kind transmitted to Forum
in person or by telephone, vocal telegram or other electronic means, reasonably
believed by Forum to be genuine and to have been given by the proper person or
persons. Forum shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Trust. Forum, its
agents and subcontractors shall also be protected and indemnified in recognizing
share certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Trust, and the proper
countersignature of any former transfer agent or former registrar or of a
co-transfer agent or co-registrar of the Trust.
(d) Reliance on Electronic Instructions. If the Trust has the ability
to originate electronic instructions to Forum in order to (i) effect the
transfer or movement of cash or Shares or (ii) transmit Shareholder information
or other information, then in such event Forum shall be entitled to rely on the
validity and authenticity of such instruction without undertaking any further
inquiry as long as such instruction is undertaken in conformity with security
procedures established by Forum from time to time.
(e) Use of Fund/SERV and Networking. The Trust may authorize Forum to
act as a "Fund/SERV" and "Networking" processing agent for the Trust or various
Funds. Fund/SERV and Networking are services sponsored by National Securities
Clearing Corporation ("NSCC") and as used herein have the meanings as set forth
in the then current edition of the Rules and Procedures published by NSCC or
such other similar publication as may currently exist. The Trust shall indemnify
and hold Forum harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributed to any action or failure or omission to act by NSCC.
(f) Notification of Claims. In order that the indemnification
provisions contained in this Section shall apply, upon the assertion of a claim
for which either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim
or to defend against said claim in its own name or in the name of the other
party. The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
SECTION 12. EFFECTIVENESS, DURATION AND TERMINATION
(a) Effectiveness. This Agreement shall become effective as of the
date first above written and shall relate to every additional Fund and Class
that becomes subject to this Agreement as of the earlier of (i) the date on
which the Trust's Registration Statement relating to the shares of such Fund or
Class becomes effective or (ii) such Fund or Class commences operations.
(b) Duration. This Agreement shall remain in effect indefinitely.
(c) Termination. This Agreement may be terminated with respect to any
Fund without the payment of any penalty by either party upon one hundred twenty
(120) days written notice to the other. Any termination shall be effective as
of the date specified in the notice. Upon notice of termination of this
Agreement by either party, Forum shall promptly transfer to the successor
transfer agent the original or copies of all books and records maintained on
computer systems, copies of such records in machine-readable form, and shall
cooperate with, and provide reasonable assistance to, the successor transfer
agent in the establishment of the books and records necessary to carry out the
successor transfer agent's responsibilities.
(d) Survival. The obligations of Sections 7 (as to such amounts
accrued prior to such termination), 9 and 11 shall survive any termination of
this Agreement.
SECTION 13. ADDITIONAL FUNDS AND CLASSES. In the event that the Trust
establishes one or more series of Shares or one or more classes of Shares after
the effectiveness of this Agreement, each such series of Shares and classes of
Shares, as the case may be, shall become Funds and Classes under this Agreement
unless the Trust notifies Forum that the Trust elects not to have Forum, or
Forum notifies the trust that Forum elects not to, provide the services
described in this Agreement to any such series or class.
SECTION 14. ASSIGNMENT. Except as otherwise provided in this Agreement,
neither this Agreement nor any rights or obligations under this Agreement may be
assigned by either party without the written consent of the other party. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective successors and assigns. Forum may, without further consent on
the part of the Trust, subcontract for the performance hereof with any entity,
including affiliates of Forum; provided however, that Forum shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor as
Forum is for its own acts and omissions.
SECTION 15. FORCE MAJEURE. Forum shall not be responsible or liable
for any failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
reasonable control including, without limitation, acts of civil or military
authority, national emergencies, labor difficulties, fire, mechanical
breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or
failure of the mails or any transportation medium, communication system or
power supply.
SECTION 16. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS,
OFFICERS, EMPLOYEES AND AGENTS. A copy of the Declaration of Trust of the Trust
is on file with the Secretary of the State of Massachusetts. The parties agree
that neither the Shareholders, Trustees, officers, employees, nor any agent of
the Trust shall be liable under this Agreement and that the parties to this
Agreement other than the Trust shall look solely to the Trust property for the
performance of this Agreement or payment of any claim under this Agreement.
SECTION 17. TAXES. Forum shall not be liable for any taxes, assessments
or governmental charges that may be levied or assessed on any basis whatsoever
in connection with the Trust or any Shareholder or any purchase of Shares,
excluding taxes assessed against Forum for compensation received by it under
this Agreement.
SECTION 18. MISCELLANEOUS
(a) No Consequential Damages. Neither party to this Agreement
shall be liable to the other party for consequential damages under any
provision of this Agreement.
(b) Amendments. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by both parties hereto.
(c) Choice of Law. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of the
Commonwealth of Massachusetts.
(d) Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
(e) Counterparts. This Agreement may be executed by the
parties hereto on any number of counterparts, and all of the counterparts
taken together shall be deemed to constitute one and the same
instrument.
(f) Severability. If any part, term or provision of this Agreement
is held to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be affected,
and the rights and obligations of the parties shall be construed and enforced
as if the Agreement did not contain the particular part, term or provision held
to be illegal or invalid.
(g) Headings. Section and paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
(h) Notices. Notices, requests, instructions and communications
received by the parties at their respective principal addresses, or at such
other address as a party may have designated in writing, shall be deemed to
have been properly given.
(i) Business Days. Nothing contained in this Agreement is intended to
or shall require Forum, in any capacity hereunder, to perform any functions or
duties on any day other than a Fund Business Day. Functions or duties normally
scheduled to be performed on any day which is not a Fund Business Day shall be
performed on, and as of, the next Fund Business Day, unless otherwise required
by law.
(j) Distinction of Funds. Notwithstanding any other provision of
this Agreement, the parties agree that the assets and liabilities of each Fund
of the Trust are separate and distinct from the assets and liabilities of each
other Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this Agreement
or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
THE HIGHLAND FAMILY OF FUNDS
By: Xxxxxx Xxxx III
_______________________________
Xxxxxx Xxxx III, President
ATTEST:
Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
and Secretary
FORUM FINANCIAL CORP.
By: Xxxx X. Xxxxxx
_______________________________
Xxxx X. Xxxxxx, President
ATTEST:
Xxxxxxx Xxxx
--------------------------------
Xxxxxxx Xxxx, Managing Director
TRANSFER AGENCY AND SERVICE AGREEMENT
APPENDIX A
FUNDS OF THE TRUST
AS OF MARCH 14, 1997
Highland Growth Fund
Highland Aggressive Growth Fund
TRANSFER AGENCY AND SERVICE AGREEMENT
APPENDIX B
FEES AND EXPENSES
BASE FEE:
Fee per Fund: $24,000/year plus $6,000/year for each Class over one.
The rates set forth shall remain fixed through December 31, 1997. On
January 1, 1998, and on each successive January 1, the rates may be
adjusted by Forum, at the discretion of Forum, to reflect changes in
the Consumer Price Index for the preceding calendar year, as published
by the U.S. Department of Labor, Bureau of Labor Statistics.
SHAREHOLDER ACCOUNT FEES:
$25.00 per year for each retail shareholder account and $120 per year
for each institutional account. Shareholder account fees are based
upon the number of Shareholder accounts as of the last Fund Business
Day of the prior month.
OUT-OF-POCKET AND RELATED EXPENSES:
In addition to the fees listed above, the Trust, on behalf of the
applicable Fund, shall reimburse Forum for all out-of-pocket and
ancillary expenses in providing the services described in this
Agreement, including but not limited to the cost of (or appropriate
share of the cost of ): (i) statement, confirmation, envelope and
stationary stock, (ii) share certificates, (iii) printing of checks
and drafts, (iv) postage, (v) telecommunications, (vi) banking services
(DDA account, wire and ACH, check and draft clearing and lock box fees
and charges, (vii) NSCC Fund/SERV and Networking fees, (viii) outside
proxy solicitors and tabulators and (ix) microfilm and microfiche. In
addition, any other expenses incurred by Forum at the request or with
the consent of the Trust, will be reimbursed by the Trust on behalf of
the applicable Fund.
