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TRANSFER AGENT AND DIVIDEND DISBURSING AGENT SERVICE AGREEMENT
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THIS AGREEMENT made on November 1, 1997 by and between XXXXXX MUTUAL
FUNDS, a Kentucky Business Trust acting for and on behalf of each series of the
Trust (hereinafter known as the "Trust") and XXXXXX & COMPANY, INC., Lexington,
Kentucky a corporation organized under the laws of the State of Kentucky
(hereinafter called "Xxxxxx").
WHEREAS, the Trust desires to appoint Xxxxxx as Transfer Agent and
Dividend Disbursing Agent, and Xxxxxx desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
SECTION 1. TERMS OF APPOINTMENT
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1.01 Subject to the conditions set forth in this Agreement, The Trust
hereby employs and appoints Xxxxxx as Transfer Agent and Dividend Disbursing
Agent effective November 1, 1997.
1.02 Xxxxxx hereby accepts such employment and appointment and agrees
that on and after the effective date of its appointment it will act as The
Trust's Transfer Agent and Dividend Disbursing Agent. Xxxxxx agrees that it will
also act as agent in connection with any periodic investment plan, periodic
withdrawal program or other accumulation, open-account or similar plans for the
Trust's shareholders.
1.03 Xxxxxx agrees to provide the necessary facilities, equipment and
personnel to perform its duties and obligations hereunder in accordance with
industry practice.
1.04 Xxxxxx agrees that it will perform all the usual and ordinary
services as Transfer Agent and Dividend Disbursing Agent and as agent for the
various shareholder accounts including but not limited to: registering, issuing,
transferring and canceling stock certificates, maintaining all shareholder
accounts, preparing annual shareholder meeting lists, withholding taxes as
required by law, disbursing income dividends and capital gains distributions,
preparing and filing U.S. Treasury Department Form 1099 for all shareholders,
preparing and mailing confirmation forms to shareholders for all purchases and
liquidations of the Trust shares, causing
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liquidation of shares and causing disbursements to be made to withdrawal plan
holders, and (if and to the extent not performed by the Trust) mailing proxies,
receiving and tabulating proxies and mailing shareholder reports and
prospectuses.
SECTION 2. RECEIPT OF FUNDS; SHARE PURCHASE ORDERS
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2.01 Upon receipt at the office designated by Agent of any check or
other order for the payment of money drawn or endorsed to it as transfer agent
for the Trust or as plan agent for any shareholder of the Trust, Agent shall
stamp the check or other order with the date of receipt, shall forthwith process
the same for collection, and, no later than the opening of business on the
second business day following receipt of such check or such other order, shall
credit federal funds to the Trust in the face amount of the check or other order
and shall deposit the amount due the Trust in the bank account maintained for
the Trust by its custodian bank (the "Custodian"). Upon receipt of funds through
the Federal Reserve Wire System or conversion into federal funds of funds
transmitted by any other bank wire transfer system, Agent shall notify the Trust
of such deposits and shall, on a daily basis, notify the Trust of the total
amount so deposited.
2.02 Upon receipt of a check or other order in payment for shares of
the Trust purchased by an investor, accompanied, in the case of a new account,
by a completed account application, Agent shall process such order in accordance
with the procedures set forth in the Trust's current prospectus and credit the
investor's share account with the number of shares so purchased, and shall
promptly mail the investor a notice of such notice to the Trust. All such
actions are subject to any instructions which the Trust may give Agent with
respect to acceptance of orders for shares so received by Agent.
2.03 Within 30 calendar days after receipt of any check in the amount
of $200,000 or over, Agent will call the paying bank to confirm that the check
has been paid. Trust will be notified immediately if Agent receives information
that payment for any check in the amount of $200,000 or over has been refused.
Further, if Agent is unable to confirm the status of any check in the amount of
$200,000 or over within 30 calendar days of receipt of such check, Trust will be
so notified. Proceeds of a redemption of shares purchased by such check or
certificate
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representing shares purchased by such check will not be mailed until payment of
the check has been confirmed.
2.04 The Trust expects that situations may develop whereby it would be
beneficial to determine if a person who has placed an order for shares has
sufficient funds in his checking account to cover the payment for the shares
purchased. Upon receipt of a request from the Trust, Agent will call the bank in
question and request that it confirm that sufficient funds to cover the purchase
are currently credited to the account in question. The results of any such calls
will be reported to the Trust.
2.05 Agent will maintain written documentation of each telephone call
which is made under the procedures outlined above.
2.06 None of the above procedures shall preclude Agent from inquiring
as to the status of any check received by it in payment for Trust shares as
Agent may deem appropriate or necessary to protect both the Trust and the Agent.
SECTION 3. RETURNED CHECKS
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In the event that any check or other order for the payment of money is
returned unpaid for any reason, Agent shall:
3.01 Give prompt notification to the Trust of the non-payment of said
check;
3.02 Take such other steps, including re-depositing said check for
collection or redelivering said check to the investor, as Agent may in its
discretion, deem appropriate, or as the Trust may instruct.
3.03 If the check or other order remains unpaid after such additional
steps have been taken, and in the absence of other instructions from Trust,
Agent shall take such steps as may be necessary to enable Trust to redeem any
shares purchased on the basis of such returned check or order. Upon redemption,
Agent shall credit the proceeds of such redemption plus any dividends declared
with respect to such shares up to the amount paid for the shares to the Trust's
account. Agent shall forward such returned check or order to the person who
originally submitted same. In the event that the amount paid for such shares
exceeds the proceeds of the
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redemption of such shares plus the amount of any dividends declared with respect
to such shares, Agent shall receive reimbursement of such excess from Trust.
SECTION 4. REDEMPTIONS
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Agent shall receive and shall stamp with the date of receipt, all
certificates delivered to it for redemption or repurchase as well as all
requests for redemptions or repurchase of shares and shall process said
certificate and redemption and repurchase requests as follows:
4.01 Upon receipt of a request for redemption, Agent will determine if
any of the shares to be redeemed have been purchased within the previous thirty
(30) calendar days. If it is determined that any portion of the shares to be
redeemed have been purchased within the previous thirty (30) calendar days,
Agent will promptly obtain the necessary information relative to the check used
to purchase the shares, and will call the paying bank requesting confirmation
that the check in question has been paid.
4.02 If such certificates, redemption request or repurchase request
comply with the standards for redemption or repurchase as approved by the Trust
and if it is determined that none of the shares to be redeemed have been
purchased within the previous thirty (30) calendar days or if Agent has not
received information that the check in question has been returned to Agent as
unpaid by the close of Agent's business on the date of receipt of the redemption
request, Agent shall notify Trust of the total number of shares presented and
covered by such requests received by Agent on said date. On or prior to the
seventh calendar day succeeding any such receipt of certificates or request for
redemption or repurchase, Agent shall from cash available in the bank account
maintained by the Custodian, pay the applicable redemption or repurchase price,
as the case may be, to the investor as set forth in the Articles of
Incorporation and the then current prospectus of the Trust.
4.03 If by the end of the seventh (7) calendar day after receipt of a
redemption request Agent has been unable to determine the status of any check in
question, Agent will calculate the amount due to the shareholder for shares
which were purchased and credited to the shareholder's account over thirty (30)
days prior to receipt of the redemption request and will send a check
representing the proceeds of the redemption of these shares to the shareholder,
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together with a letter of explanation. Funds representing redemption of shares
purchased within the prior thirty (30) days will be held until the paying bank
can confirm payment of the check used for purchase of shares.
4.04 If any certificate or request for redemption or repurchase does
not comply with the standards for redemption approved by the Trust, Agent shall
promptly notify the investor of such fact, together with the reason therefor,
and shall effect such redemption or repurchase at the price applicable to the
date and time of receipt of documents complying with said standards, or in the
case of a repurchase, at such other time as the Trust shall so direct.
SECTION 5. INFORMATION TO BE FURNISHED TO SHAREHOLDERS
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5.01 Agent shall answer that correspondence from shareholders relating
to their accounts and such other correspondence as may from time to time be
mutually agreed upon.
5.02 Agent shall mail such proxy cards and other material supplied to
it by Trust in connection with shareholder meetings of Trust and shall receive,
examine and tabulate returned proxies and certify the vote of the Trust.
SECTION 6. FEES AND EXPENSES
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6.01 For the services to be rendered by Xxxxxx pursuant to paragraph
1.04, the Trust agrees to pay Xxxxxx such fees as set out in the appendix
attached hereto and made a part hereof.
6.02 The Trust agrees to promptly reimburse Xxxxxx for all reasonable
out-of-pocket expenses or advances incurred by Xxxxxx in connection with the
performance of services under the Agreement including, but not limited to,
expenditures for reasonable counsel fees, postage, envelopes, checks, continuous
forms, reports and statements, telephone, telegraph, stationery, supplies, costs
of outside mailing firms, record storage costs and media for storage of records
(e.g., microfilm, computer tapes) so long as supplies purchased are expected to
last for a reasonable period of time. In addition, any other expenses incurred
by Xxxxxx at the request or with the consent of the Trust will be promptly
reimbursed by the Trust.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF XXXXXX
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Xxxxxx represents and warrants to the Trust that:
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7.01 It is a Trust duly organized and existing in good standing under
the laws of the State of Kentucky.
7.02 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform the services contemplated in this Agreement;
7.03 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement; and
7.04 It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and obligations under
the Agreement.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF THE TRUST
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The Trust represents and warrants to Xxxxxx that:
8.01 It is a Trust duly organized and existing and in good standing
under the laws of the State of Kentucky;
8.02 It is an open-end diversified management investment company
registered under the Investment Company Act of 1940;
8.03 A registration statement under the Securities Act of 1933 is
currently effective with respect to all shares of the Trust being offered for
sale;
8.04 The Trust is empowered under the applicable laws and regulations
and by it charter 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.
SECTION 9. INDEMNIFICATION
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9.01 Xxxxxx shall not be responsible for and the Trust shall indemnify
and hold Xxxxxx harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions of Xxxxxx required to be taken by Xxxxxx
pursuant to this Agreement provided that Xxxxxx has acted in good faith
and with due diligence.
(b) The reliance on, or use by Xxxxxx of, information
furnished or records and documents received by Xxxxxx which have been
prepared and/or maintained by the Trust, or any other person or firm on
behalf of the Trust.
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(c) Defaults by dealers with respect to payment for share
orders previously entered.
(d) The reliance on, or carrying out of, any instructions or
requests of the Trust.
(e) The offer of sale of the Trust's shares in violation of
any requirement under the securities laws or regulations of any state
that such shares be registered in such state of in violation of any
stop order or other determination or ruling by any state with respect
to the offer or sale of such shares in such state (unless such
violation results from Xxxxxx'x failure to comply with written
instructions of the Trust or of any other officer of the Trust that no
offers or sales be made in or to residents of such state).
9.02 It is understood that if any case the Trust may be asked to
indemnify or save Agent harmless, the Trust shall be fully and promptly advised
of all pertinent facts concerning the situation in question, and it is further
understood that Agent will use all reasonable care to identify and notify the
Trust promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Trust.
The Trust shall have the option to defend Agent against any claim which may be
subject of this indemnification, and in the event that the Trust so elects it
will so notify Agent, and thereupon the Trust shall take over complete defense
of the claim, and Agent shall in such situation initiate no further legal or
other expenses for which it shall seek indemnification. Agent shall in no case
confess any claim or make any comprise in any case in which the Trust will be
asked to indemnify Agent except with the Trust's prior written consent. In the
event of any advance of cash for any purpose made by Agent resulting from orders
or instructions of the Trust, or in the event that Agent shall incur any claims,
liabilities or related expenses in connection with the performance of this
agreement, except such as may arise from its own negligent action, negligent
failure to act or willful misconduct, any property at any time held for the
account of the Trust shall be security therefor.
9.03 Xxxxxx shall indemnify and hold the Trust harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of
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Xxxxxx'x failure to comply with the terms of this Agreement or which arise out
of Xxxxxx'x negligence or misconduct.
9.04 At any time Xxxxxx may apply to any officer of the Trust for
instructions, and may consult with legal counsel for the Trust at the expense of
the Trust, with respect to any matter arising in connection with the services to
be performed by Xxxxxx under this Agreement and Xxxxxx shall be indemnified by
the Trust for any action taken or omitted by it in good faith in reliance upon
such instructions or upon the opinion of counsel for the Trust. Xxxxxx shall be
protected and indemnified in acting upon any paper or document believed by it to
be genuine and to have been signed by the proper person or persons and shall not
be held to have notice of any change of authority of any person, until receipt
of written notice thereof from the Trust. Xxxxxx shall also be protected and
indemnified in recognizing stock certificates which Xxxxxx reasonably believes
to bear the proper manual or facsimile signatures of the officer or the Trust,
and the proper counter-signature of any former transfer agent or registrar, or
of a co-transfer agent or co-registrar.
SECTION 10. COVENANTS OF XXXXXX AND THE TRUST
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10.01 The Trust shall promptly furnish to Xxxxxx the following:
(a) A certified copy of the resolution of the Board of
Directors of the Trust authorizing the appointment of Xxxxxx and the
execution and delivery of this Agreement.
(b) Certified copy of the Articles of Incorporation and
By-Laws of the Trust and all amendments thereto.
(c) Specimens of all forms of outstanding stock certificates
in the form approved by the Trust's Board of Directors with a
certificate of the Secretary of the Trust as to such approval.
10.02 Xxxxxx hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping or stock
certificates, check forms, and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of such certificates,
forms and devices.
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10.03 To the extent required by SECTION 31 of the Investment Company
Act of 1940 and Rules thereunder, Xxxxxx agrees that all records maintained by
Xxxxxx relating to the services to be performed by Xxxxxx under this Agreement
are the property of the Trust and will be preserved and will be surrendered
promptly to the Trust on request.
10.04 Xxxxxx 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 and the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any other
person.
SECTION 11. TERMINATION AND AGREEMENT
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11.01 This Agreement may be terminated by either party by ninety (90)
days written notice to the other.
SECTION 12. ASSIGNMENT
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12.01 Neither this Agreement nor any rights or obligations hereunder
may be assigned by Xxxxxx without the written consent of the Trust.
12.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their corporate seals by and
through their duly authorized officers, as of the day and the year first above
written.
XXXXXX MUTUAL FUNDS
By:
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Title:
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ATTEST:
By:
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Title:
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XXXXXX & COMPANY, INC.
By:
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Title:
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ATTEST:
By:
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Title:
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AGREEMENT AS TO FEES FOR TRANSFER AGENT/DIVIDEND DISBURSING AGENT
SHAREHOLDER SERVICES OF XXXXXX & COMPANY, INC.
Xxxxxx & Company, Inc., in accordance with the Agreement dated November
1, 1997 by and between Xxxxxx & Company, Inc. and Xxxxxx Mutual Funds, shall be
compensated monthly at a rate of 1/12 of .15% on the first $20,000,000 and 1/12
of .12% of all net assets over $20,000,000 per the monthly average net asset
value as is declared and determined by each individual series at the close of
each month.
Additionally, the Trust shall reimburse Xxxxxx & Company, Inc., for
out-of-pocket expenses incurred on behalf of the Trust. Theses expenses include,
but are not necessarily limited to, postage, insurance, telephone charges, and
cost of forms. Xxxxxx & Company, Inc., will xxxx the Trust monthly for the
service fee and expenses.
