Exhibit h(v) under Form N-1A
Exhibit (10) under Item 601/Reg. S-K
HIBERNIA FUNDS
AGREEMENT
for
TRANSFER AGENCY SERVICES
AGREEMENT made as of July 1, 2004, by and between Hibernia Funds,
having its principal office and place of business at 0000 Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, XX 00000 (the "Investment Company"), on behalf of
the portfolios (individually referred to herein as a "Fund" and
collectively as "Funds") of the Investment Company, listed on Exhibit 1
as may be amended from time to time, and BOSTON FINANCIAL DATA
SERVICES, INC., a Massachusetts corporation, having its principal
office and place of business at 0 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000 on behalf of itself and its subsidiaries (the
"Company").
WHEREAS, the Investment Company is registered as an open-end
management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act"), with authorized and issued shares of
capital stock or beneficial interest ("Shares");
WHEREAS, the Investment Company desires to appoint the Company as
its transfer agent and dividend disbursing agent to provide it with
transfer agency services (as herein defined), and agent in connection
with certain other activities, and the Company desires to accept such
appointment;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
SECTION ONE: Transfer Agency Services.
Article 1. Terms of Appointment.
Subject to the terms and conditions set forth in this Agreement, the
Investment Company hereby appoints the Company to act as, and the
Company agrees to act as, transfer agent and dividend disbursing agent
for each Fund's Shares, and agent in connection with any accumulation,
open-account or similar plans provided to the shareholders of any Fund
("Shareholder(s)"), including without limitation any periodic investment
plan or periodic withdrawal program.
Article 2. Duties of the Company.
The Company shall perform the following services in accordance with
Proper Instructions as may be provided from time to time by the
Investment Company as to any Fund:
A. Purchases
(1) The Company shall receive orders and payment for the
purchase of shares and promptly deliver payment and
appropriate documentation therefore to the custodian of
the relevant Fund, (the "Custodian"). The Company shall
notify the Fund and the Custodian on a daily basis of the
total amount of orders and payments so delivered.
(2) Pursuant to purchase orders and in accordance with the
Fund's current prospectus and statement of additional
information ("Prospectus"), the Company shall compute and
issue the appropriate number of Shares of each Fund and/or
Class and hold such Shares in the appropriate Shareholder
accounts. As used herein, "Class" shall mean any class of
shares issued by any Fund.
(3) For certificated Funds and/or Classes, if a Shareholder or
its agent requests a certificate, the Company, as Transfer
Agent, shall countersign and mail by first class mail, a
certificate to the Shareholder at its address as set forth
on the transfer books of the Funds, and/or Classes,
subject to any Proper Instructions regarding the delivery
of certificates.
(4) In the event that any check or other order for the
purchase of Shares of the Fund and/or Class is returned
unpaid for any reason, the Company shall debit the Share
account of the Shareholder by the number of Shares that
had been credited to its account upon receipt of the check
or other order, promptly mail a debit advice to the
Shareholder, and notify the Investment Company of its
action. In the event that the amount paid for such Shares
exceeds proceeds of the redemption of such Shares plus the
amount of any dividends paid with respect to such Shares,
the Investment Company or its distributor will reimburse
the Company in the amount of such excess.
B. Distribution
(1) Upon notification by the Funds of the declaration of any
distribution to Shareholders, the Company shall act as
Dividend Disbursing Agent for the Funds in accordance with
the provisions of its governing document and the
then-current Prospectus of the Fund. The Company shall
prepare and mail or credit income, capital gain, or any
other payments to Shareholders. As the Dividend Disbursing
Agent, the Company shall, on or before the payment date of
any such distribution, notify the Custodian of the
estimated amount required to pay any portion of said
distribution which is payable in cash and request the
Custodian to make available sufficient funds for the cash
amount to be paid out. The Company shall reconcile the
amounts so requested and the amounts actually received
with the Custodian on a daily basis. If a Shareholder is
entitled to receive additional Shares by virtue of any
such distribution or dividend, appropriate credits shall
be made to the Shareholder's account, or for certificated
Funds and/or Classes, delivered where requested; and
(2) The Company shall maintain records of account for each
Fund and Class and advise the Investment Company, each
Fund and Class and its Shareholders as to the foregoing.
C. Redemptions and Transfers
(1) The Company shall receive redemption requests and
redemption directions and, if such redemption requests
comply with the procedures as may be described in the Fund
Prospectus or set forth in Proper Instructions, deliver
the appropriate instructions therefor to the Custodian.
The Company shall notify the Funds on a daily basis of the
total amount of redemption requests processed and monies
paid to the Company by the Custodian for redemptions.
(2) At the appropriate time upon receiving redemption proceeds
from the Custodian with respect to any redemption, the
Company shall pay or cause to be paid the redemption
proceeds in the manner instructed by the redeeming
Shareholders, pursuant to procedures described in the
then-current Prospectus of the Fund.
(3) If any certificate returned for redemption or other
request for redemption does not comply with the procedures
for redemption approved by the Fund, the Company shall
promptly notify the Shareholder of such fact, together
with the reason therefor, and shall effect such redemption
at the price applicable to the date and time of receipt of
documents complying with said procedures.
(4) The Company shall effect transfers of Shares by the
registered owners thereof.
(5) The Company shall identify and process abandoned accounts
and uncashed checks for state escheat requirements on an
annual basis and report such actions to the Fund.
D. Recordkeeping
(1) The Company shall record the issuance of Shares of each
Fund, and/or Class, and maintain pursuant to applicable
rules of the Securities and Exchange Commission ("SEC") a
record of the total number of Shares of the Fund and/or
Class which are authorized, based upon data provided to it
by the Fund, and issued and outstanding. The Company shall
also provide the Fund on a regular basis or upon
reasonable request with the total number of Shares which
are authorized and issued and outstanding, but shall have
no obligation when recording the issuance of Shares,
except as otherwise set forth herein, to monitor the
issuance of such Shares or to take cognizance of any laws
relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Funds.
(2) The Company shall establish and maintain records pursuant
to applicable rules of the SEC relating to the services to
be performed hereunder in the form and manner as agreed to
by the Investment Company or the Fund to include a record
for each Shareholder's account of the following:
(a) Name, address and tax identification number (and
whether such number has been certified);
(b) Number of Shares held;
(c) Historical information regarding the account,
including dividends paid and date and price for all
transactions;
(d) Any stop or restraining order placed against the
account;
(e) Information with respect to withholding in the case
of a foreign account or an account for which
withholding is required by the Internal Revenue Code;
(f) Any dividend reinvestment order, plan application,
dividend address and correspondence relating to the
current maintenance of the account;
(g) Certificate numbers and denominations for any
Shareholder holding certificates (if share
certificates are issued); and
(h) Any information required in order for the Company to
perform the calculations contemplated or required by
this Agreement.
(3) The Company shall preserve any such records required to be
maintained pursuant to the rules of the SEC for the
periods prescribed in said rules as specifically noted
below. Such record retention shall be at the expense of
the Company, and such records may be inspected by the Fund
at reasonable times. The Company may, at its option at any
time, and shall forthwith upon the Fund's demand, turn
over to the Fund and cease to retain in the Company's
files, records and documents created and maintained by the
Company pursuant to this Agreement, which are no longer
needed by the Company in performance of its services or
for its protection. If not so turned over to the Fund,
such records and documents will be retained by the Company
for six years from the year of creation, during the first
two of which such documents will be in readily accessible
form. At the end of the six year period, such records and
documents will either be turned over to the Fund or
destroyed in accordance with Proper Instructions.
E. Confirmations/Reports
(1) The Company shall furnish to the Fund periodically the
following information:
(a) A copy of the transaction register;
(b) Dividend and reinvestment blotters;
(c) The total number of Shares issued and outstanding in
each state for "blue sky" purposes as determined
according to Proper Instructions delivered from time
to time by the Fund to the Company;
(d) Shareholder lists and statistical information;
(e) Payments to third parties relating to distribution
agreements, allocations of sales loads, redemption
fees, or other transaction- or sales-related
payments; and
(f) Such other information as may be agreed upon from
time to time.
(2) The Company shall prepare in the appropriate form, file
with the Internal Revenue Service and appropriate state
agencies, and, if required, mail to Shareholders, such
notices for reporting dividends and distributions paid as
are required to be so filed and mailed and shall withhold
such sums as are required to be withheld under applicable
federal and state income tax laws, rules and regulations.
(3) In addition to and not in lieu of the services set forth
above, the Company shall:
(a) Perform all of the customary 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), including but not limited to: maintaining
all Shareholder accounts, mailing Shareholder
reports and Prospectuses to current Shareholders,
withholding taxes on accounts subject to back-up or
other withholding (including non-resident alien
accounts), preparing and filing reports on U.S.
Treasury Department Form 1099 and other appropriate
forms required with respect to dividends and
distributions by federal authorities for all
Shareholders, preparing and mailing confirmation
forms and statements of account to Shareholders for
all purchases and redemptions of Shares and other
conformable transactions in Shareholder accounts,
preparing and mailing activity statements for
Shareholders, and providing Shareholder account
information; and
(b) provide a system which will enable the Fund to
monitor the total number of Shares of each Fund
(and/or Class) sold in each state ("blue sky
reporting"). The Fund shall by Proper Instructions
(i) identify to the Company those transactions and
assets to be treated as exempt from the blue sky
reporting for each state and (ii) verify the
classification of transactions for each state on the
system prior to activation and thereafter monitor
the daily activity for each state. The
responsibility of the Company for each Fund's
(and/or Class's) state blue sky registration status
is limited solely to the recording of the initial
classification of transactions or accounts with
regard to blue sky compliance and the reporting of
such transactions and accounts to the Fund as
provided above.
F. Other Duties
(1) The Company shall answer correspondence from Shareholders
relating to their Share accounts and such other
correspondence as may from time to time be addressed to
the Company;
(2) The Company shall prepare Shareholder meeting lists, mail
proxy cards and other material supplied to it by the Fund
in connection with Shareholder meetings of each Fund;
receive, examine and tabulate returned proxies, and
certify the vote of the Shareholders; and
(3) The Company shall establish and maintain facilities and
procedures for safekeeping of stock certificates (if
issued), 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.
The foregoing, along with any additional services that the Company
shall agree in writing to perform for the Investment Company under this
Section Three, shall hereafter be referred to as "Transfer Agency
Services."
Article 3. Duties of the Investment Company.
A. Compliance
The Investment Company or Fund assume full responsibility for
the preparation, contents and distribution of their own and/or
their classes' Prospectus and for complying with all applicable
requirements of the Securities Act of 1933, as amended (the
"1933 Act"), the 1940 Act and any laws, rules and regulations of
government authorities having jurisdiction.
B. Share Certificates
If Share certificates are issued, the Investment Company shall
supply the Company with a sufficient supply of blank Share
certificates and from time to time shall renew such supply upon
request of the Company. Such blank Share certificates shall be
properly signed, manually or by facsimile, if authorized by the
Investment Company and shall bear the seal of the Investment
Company or facsimile thereof; and notwithstanding the death,
resignation or removal of any officer of the Investment Company
authorized to sign certificates, the Company may continue to
countersign certificates which bear the manual or facsimile
signature of such officer until otherwise directed by the
Investment Company.
C. Distributions
The Fund shall promptly inform the Company of the declaration of
any dividend or distribution on account of any Fund's shares.
SECTION TWO: General Provisions.
Article 4. Proper Instructions.
As used throughout this Agreement, a "Proper Instruction" means a
writing signed or initialed by one or more person or persons as the
Investment Company's Board of Trustees ("Board") shall have from time
to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved. Oral instructions will be
deemed to be Proper Instructions if (a) the Company reasonably believes
them to have been given by a person previously authorized in Proper
Instructions to give such instructions with respect to the transaction
involved, and (b) the Investment Company, or the Fund, and the Company
promptly cause such oral instructions to be confirmed in writing.
Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the
Investment Company, or the Fund, and the Company are satisfied that
such procedures afford adequate safeguards for the Fund's assets.
Proper Instructions may only be amended in writing.
Article 5. Assignment.
Except as provided below, neither this Agreement nor any of the
rights or obligations under this Agreement may be assigned by either
party without the written consent of the other party.
A. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and
assigns.
B. The Company may without further consent on the part of the
Investment Company subcontract for the performance of Transfer
Agency Services with any provider of services duly registered as
a transfer agent under Section 17A(c)(1) as Company shall select.
C. Except as provided in D below, the Company shall be as fully
responsible to the Investment Company for the acts and omissions
of any subcontractor as it is for its own acts and omissions.
The compensation of such person or persons shall be paid by the
Company and no obligation shall be incurred on behalf of the
Investment Company, the Funds, or the Classes in such respect.
D. The Company shall upon instruction from the Investment Company
subcontract for the performance of services under this Agreement
with an Agent selected by the Investment Company, other than as
described in B. above; provided, however, that the Company shall
in no way be responsible to the Investment Company for the acts
and omissions of the Agent.
E. Either party may assign all of or a substantial portion of its
business to a successor, or to a party controlling, controlled
by, or under common control with such party.
Nothing in this Article 5 shall prevent the Company from
delegating its responsibilities to another entity to the extent
provided herein.
Article 6. Documents.
A. In connection with the appointment of the Company under this
Agreement, the Investment Company shall file with the Company
the following documents:
(1) A copy of the Charter and By-Laws of the Investment
Company and all amendments thereto;
(2) A copy of the resolution of the Board of the Investment
Company authorizing this Agreement;
(3) Specimens of all forms of outstanding Share certificates
of the Investment Company or the Funds in the forms
approved by the Board of the Investment Company with a
certificate of the Secretary of the Investment Company as
to such approval;
(4) All account application forms and other documents relating
to Shareholders accounts; and
(5) A copy of the current Prospectus for each Fund.
B. The Fund will also furnish from time to time the following
documents:
(1) Each resolution of the Board of the Investment Company
authorizing the original issuance of each Fund's, and/or
Class's Shares;
(2) Each Registration Statement filed with the SEC and
amendments thereof and orders relating thereto in effect
with respect to the sale of Shares of any Fund, and/or
Class;
(3) A certified copy of each amendment to the governing
document and the By-Laws of the Investment Company;
(4) Certified copies of each vote of the Board authorizing
officers to give Proper Instructions to the Custodian and
agents for fund accountant, custody services procurement,
and shareholder recordkeeping or transfer agency services;
(5) If issued, specimens of all new Share certificates
representing Shares of any Fund, accompanied by Board
resolutions approving such forms;
(6) Such other certificates, documents or opinions which the
Company may, in its discretion, deem necessary or
appropriate in the proper performance of its duties; and
(7) Revisions to the Prospectus of each Fund.
Article 7. Representations and Warranties.
A. Representations and Warranties of the Company
The Company represents and warrants to the Fund that:
(1) it is a corporation duly organized and existing and in
good standing under the laws of the Commonwealth of
Massachusetts;
(2) it is duly qualified to carry on its business in each
jurisdiction where the nature of its business requires
such qualification, and in the Commonwealth of
Massachusetts;
(3) it is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform
this Agreement;
(4) all requisite corporate proceedings have been taken to
authorize it to enter into and perform its obligations
under this Agreement;
(5) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties
and obligations under this Agreement; and
(6) it is in compliance with federal securities law
requirements and in good standing as a registered transfer
agent.
B. Representations and Warranties of the Investment Company
The Investment Company represents and warrants to the Company
that:
(1) It is an investment company duly organized and existing
and in good standing under the laws of its state of
organization;
(2) It is empowered under applicable laws and by its Charter
and By-Laws to enter into and perform its obligations
under this Agreement;
(3) All corporate proceedings required by said Charter and
By-Laws have been taken to authorize it to enter into and
perform its obligations under this Agreement;
(4) The Investment Company is an open-end investment company
registered under the 1940 Act; and
(5) A registration statement under the 1933 Act will be
effective, and appropriate state securities law filings
have been made and will continue to be made, with respect
to all Shares of each Fund being offered for sale.
Article 8. Standard of Care and Indemnification.
A. Standard of Care
The Company shall be held to a standard of reasonable care in
carrying out the provisions of this Agreement, provided however,
that the Company shall be held to any higher standard of care
that would be imposed upon the Company, by an applicable law or
regulation even though such stated standard of care was not part
of this Agreement. The Company shall be entitled to rely on and
may act upon advice of counsel (who may be counsel for the
Investment Company) on all matters, and shall be without
liability for any action reasonably taken or omitted pursuant to
such advice, provided that such action is not in violation of
applicable federal or state laws or regulations, and is in good
faith and without negligence. Any person, even though also an
officer, director, trustee, partner, employee or agent of the
Company, who may be or become an officer, director, trustee,
partner, employee or agent of the Investment Company, shall be
deemed, when rendering services to the Investment Company or
acting on any business of the Investment Company (other than
services or business in connection with the duties of the
Company hereunder) to be rendering such services to or acting
solely for the Investment Company and not as an officer,
director, trustee, partner, employee or agent or one under the
control or direction of the Company even though paid by the
Company.
B. Indemnification by Investment Company
The Company shall not be responsible for and the Investment
Company or Fund shall indemnify and hold the Company, including
its officers, directors, shareholders and their agents,
employees and affiliates, harmless against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(1) The Investment Company's refusal or failure to comply with
the terms of this Agreement, or which arise out of the
Investment Company's lack of good faith, gross negligence
or willful misconduct or which arise out of the breach of
any representation or warranty of the Investment Company
hereunder.
(2) The acts or omissions of any Custodian, Adviser,
Sub-adviser or other party contracted by or approved by
the Investment Company or Fund,
(3) The reliance on or use by the Company or its agents or
subcontractors of information, records and documents in
proper form which
(a) are received by the Company or its agents or
subcontractors and furnished to it by or on behalf
of the Investment Company or Fund, its Shareholders
or investors regarding the purchase, redemption or
transfer of Shares and Shareholder account
information;
(b) are received by the Company from independent pricing
services or sources for use in valuing the assets of
the Investment Company or Fund; or
(c) are received by the Company or its agents or
subcontractors from Advisers, Sub-advisers or other
third parties contracted by or approved by the
Investment Company or Fund for use in the
performance of services under this Agreement; or
(d) have been prepared and/or maintained by the
Investment Company or Fund or its affiliates or any
other person or firm on behalf of the Investment
Company.
(4) The reliance on, or the carrying out by the Company or its
agents or subcontractors of Proper Instructions of the
Investment Company or the Fund.
(5) 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.
Provided, however, that the Company shall not be protected
by this Article 8.B. from liability for any act or
omission resulting from the Company's willful misfeasance,
bad faith, negligence or reckless disregard of its duties
or failure to meet the standard of care set forth in 8.A.
above.
C. Indemnification by the Company
The Company shall indemnify and hold the Investment Company and
each Fund 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 Services as a result of Services' lack of
good faith, negligence, willful misconduct, or failure to meet
the standard of care set forth in Article 8.A above.
D. Reliance
At any time the Company may apply to any officer of the
Investment Company or Fund for instructions, and may consult
with legal counsel with respect to any matter arising in
connection with the services to be performed by the Company
under this Agreement, and the Company and its agents or
subcontractors shall not be liable and shall be indemnified by
the Investment Company or the appropriate Fund for any action
reasonably taken or omitted by it in reliance upon such
instructions or upon the opinion of such counsel provided such
action is not in violation of applicable federal or state laws
or regulations. The Company, its agents and subcontractors shall
be protected and indemnified in recognizing stock certificates
which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Investment Company
or the Fund, and the proper countersignature of any former
transfer agent or registrar, or of a co-transfer agent or
co-registrar.
E. Notification
In order that the indemnification provisions contained in this
Article 8 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. 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.
Article 9. Term and Termination of Agreement.
This Agreement shall be effective from the date first written above
and shall continue through December 31, 2004 ("Initial Term").
Thereafter, this Agreement shall be automatically renewed each year for
an additional term of one year ("Additional Term") provided that either
party may terminate this Agreement by written notice delivered at least
one year prior to the expiration of the Initial or any Additional
Term. The termination date for all original or after-added Funds which
are, or become, a party to this Agreement shall be coterminous. Funds
that merge or dissolve during the Term, shall cease to be a party on
the effective date of such merger or dissolution.
In the event that the Investment Company designates a successor to
any of the Company's obligations hereunder, the Company shall, at the
expense and direction of the Investment Company, transfer to such
successor all relevant books, records and other data established or
maintained by the Investment Company under the foregoing provisions.
Additionally, the Company reserves the right to charge for any other
reasonable expenses associated with such termination. The provisions of
Article 8 shall survive the termination of this Agreement.
Article 10. Amendment.
This Agreement may be amended or modified by a written agreement
executed by both parties.
Article 11. Interpretive and Additional Provisions.
In connection with the operation of this Agreement, the Company and
the Investment Company may from time to time agree on such provisions
interpretive of or in addition to the provisions of this Agreement as
may in their joint opinion be consistent with the general tenor of this
Agreement. Any such interpretive or additional provisions shall be in a
writing signed by both parties and shall be annexed hereto, provided
that no such interpretive or additional provisions shall contravene any
applicable federal or state regulations or any provision of the
Charter. No interpretive or additional provisions made as provided in
the preceding sentence shall be deemed to be an amendment of this
Agreement.
Article 12. Governing Law.
This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth
of Pennsylvania, provided however, that nothing herein shall be
construed in a manner inconsistent with the Investment Company Act of
1940 or any rule or regulation promulgated by the Securities and
Exchange Commission thereunder.
Article 13. Notices.
Except as otherwise specifically provided herein, Notices and other
writings delivered or mailed postage prepaid to the Investment Company
at 0000 Xxxxxxxxx Xxxxx Xxxxxxxxxx, Xxxxxxxxxxxx, 00000 or to the
Company at 0 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, or to
such other address as the Investment Company or the Company may
hereafter specify, shall be deemed to have been properly delivered or
given hereunder to the respective address.
Article 14. Counterparts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original.
Article 15. Merger of Agreement.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
Article 16. Successor Agent.
If a successor agent for the Company shall be appointed by the
Investment Company, the Company shall upon termination of this
Agreement deliver to such successor agent at the office of the Company
all properties of the Investment Company held by it hereunder. If no
such successor agent shall be appointed, the Company shall at its
office upon receipt of Proper Instructions deliver such properties in
accordance with such instructions.
In the event that no written order designating a successor agent or
Proper Instructions shall have been delivered to the Company on or
before the date when such termination shall become effective, then the
Company shall have the right to deliver to a bank or trust company,
which is a "bank" as defined in the 1940 Act, of its own selection,
having an aggregate capital, surplus, and undivided profits, as shown
by its last published report, of not less than $2,000,000, all
properties held by the Company under this Agreement. Thereafter, such
bank or trust company shall be the successor of the Company under this
Agreement.
Article 17. Force Majeure.
The Company shall have no liability for cessation of services
hereunder or any damages resulting therefrom to the Fund as a result of
work stoppage, power or other mechanical failure, natural disaster,
governmental action, communication disruption or other impossibility of
performance.
Article 18. Severability.
In the event any provision of this Agreement is held illegal, void
or unenforceable, the balance shall remain in effect.
Article 19. Limitations of Liability of Trustees and Shareholders of
the Investment Company.
The execution and delivery of this Agreement have been authorized by
the Trustees of the Investment Company and signed by an authorized
officer of the Investment Company, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually
or to impose any liability on any of them personally, and the
obligations of this Agreement are not binding upon any of the Trustees
or Shareholders of the Investment Company, but bind only the property
of the Fund, or Class, as provided in the Declaration of Trust.
Article 20. Compensation.
A. The Funds will compensate the Company for the Services described
herein in accordance with the fees agreed upon from time to time
between the parties hereto. Such fees do not include
out-of-pocket disbursements of the Company for which the Funds
shall reimburse the Company. Out-of-pocket disbursements shall
include, but shall not be limited to, the items agreed upon
between the parties from time to time.
B. The Investment Company on behalf of the applicable Fund and/or
the Class, and not the Company, shall bear the cost of:
custodial expenses; membership dues in the Investment Company
Institute or any similar organization; transfer agency expenses;
investment advisory expenses; costs of printing and mailing
stock certificates (if issued), prospectuses, reports and
notices; administrative expenses; interest on borrowed money;
brokerage commissions; taxes and fees payable to federal, state
and other governmental agencies; fees of Trustees or Directors
of the Investment Company; independent auditors expenses; legal
and audit department expenses billed to the Company for work
performed related to the Investment Company, the Funds, or the
Classes; law firm expenses; organizational expenses; or other
expenses not specified in this Article 20 which may be properly
payable by the Funds and/or Classes.
C. The compensation and out-of-pocket expenses attributable to the
Fund shall be accrued by the Fund and shall be paid to the
Company no less frequently than monthly, and shall be paid daily
upon request of the Company. The Company will maintain detailed
information about the compensation and out-of-pocket expenses by
Fund and Class.
D. Any schedule of compensation agreed to hereunder, as may be
adjusted from time to time, shall be dated and signed by a duly
authorized officer of the Investment Company and/or the Funds
and a duly authorized officer of the Company.
Article 21. Privacy.
A. The Fund and the Company hereby acknowledge that the Fund may
disclose shareholder nonpublic personal information ("NPI") to
the Company as agent of the Fund and solely in furtherance of
fulfilling the Company's contractual obligations under the
Agreement in the ordinary course of business to support the Fund
and its shareholders.
B. The Company hereby agrees to be bound to use and redisclose such
NPI only for the limited purpose of fulfilling its duties and
obligations under the Agreement, for law enforcement and
miscellaneous purposes as permitted in 17 CFR xx.xx. 248.15, or in
connection with joint marketing arrangements that the Funds may
establish with the Company in accordance with the limited
exception set forth in 17 CFR ss. 248.13.
C. The Company further represents and warrants that, in accordance
with 17 CFR ss. 248.30, it has implemented, and will continue to
carry out for the term of the Agreement, policies and procedures
reasonably designed to:
(1) insure the security and confidentiality of records
and NPI of Fund customers,
(2) protect against any anticipated threats or hazards to
the security or integrity of Fund customer records and
NPI, and
(3) protect against unauthorized access to or use of such
Fund customer records or NPI that could result in
substantial harm or inconvenience to any Fund customer.
D. The Company may redisclose Section 248.13 NPI only to: (a) the
Funds and affiliated persons of the Funds ("Fund Affiliates");
(b) affiliated persons of the Company ("Company Affiliates")
(which in turn may disclose or use the information only to the
extent permitted under the original receipt); (c) a third party
not affiliated with the Company ("Nonaffiliated Third Party")
under the service and processing (ss.248.14) or miscellaneous
(ss.248.15) exceptions, but only in the ordinary course of
business to carry out the activity covered by the exception
under which the Company received the information in the first
instance; and (d) a Nonaffiliated Third Party under the Company
and joint marketing exception (ss.248.13), provided the Company
enters into a written contract with the Nonaffiliated Third
Party that prohibits the Nonaffiliated Third Party from
disclosing or using the information other than to carry out the
purposes for which the Funds disclosed the information in the
first instance.
E. The Company may redisclose Section 248.14 NPI and Section 248.15
NPI to: (a) the Funds and Fund Affiliates; (b) Company
Affiliates (which in turn may disclose the information to the
same extent permitted under the original receipt); and (c) a
Nonaffiliated Third Party to whom the Funds might lawfully have
disclosed NPI directly.
F. The Company is obligated to maintain beyond the termination date
of the Agreement the confidentiality of any NPI it receives from
the Fund in connection with the Agreement or any joint marketing
arrangement, and hereby agrees that this Article 21 shall
survive such termination.
Article 22. Anti-Money Laundering and Customer Identification Program.
A. The Funds represent and warrant to the other that they have
established, and covenant that during the term of the Agreement
they will maintain, a written anti-money laundering and customer
identification program ("Program") in compliance with the series
of rules and regulations arising out of the USA PATRIOT Act
(together with such rules and regulations, the "Applicable Law")
adopted by the Securities and Exchange Commission and the United
States Treasury Department ("Treasury Department"), specifically
requiring certain financial institutions including the Funds, to
establish a Program.
B. The Funds hereby delegate to the Company, the responsibility to
perform or contract for the performance of, for and on behalf of
the Funds, all required activities under the Funds' Program.
C. The Company hereby accepts such delegation and represents and
warrants that: (a) it has implemented, and will continue to (i)
monitor the operation of, (ii) assess the effectiveness of, and
(iii) modify, as appropriate or as required by Applicable Law,
procedures necessary to effectuate the Program; (b) it will
annually certify, in a manner acceptable to the Funds under
Applicable Law, that it has implemented the Program and that it
will perform or cause to be performed the customer identification
and other activities required by Applicable Law and the Program;
and (c) it will provide such other information and reports to the
Funds' designated Compliance Officer, as may from time to time be
requested, and will provide such Compliance Officer with notice
of any contact by any regulatory authority with respect to the
operation of the Program.
D. The Company does hereby covenant that: (a) it will provide to
any federal examiners of the Funds such information and records
relating to Program as may be requested; and (b) it will allow
such examiners to inspect the Company for purposes of examining
the Program and its operation to the full extent required by
Applicable Law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf under their seals by and
through their duly authorized officers, as of the day and year first
above written.
HIBERNIA FUNDS
(listed on Exhibit 1)
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
BOSTON FINANCIAL DATA SERVICES,
INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Operating Officer
EXHIBIT 1
to the Agreement for
Transfer Agency Services
The Agreement for Transfer Agency Services dated July 1, 2004
between Hibernia Funds and Boston Financial Data Services, Inc. shall
apply to the following Portfolios:
Hibernia Capital Appreciation Fund
Class A Shares
Class B Shares
Hibernia Cash Reserve Fund
Class A Shares
Class B Shares
Hibernia Louisiana Municipal Income Fund
Class A Shares
Class B Shares
Hibernia Mid-Cap Fund
Class A Shares
Class B Shares
Hibernia Total Return Bond Fund
Hibernia U.S. Government Income Fund
Hibernia U.S. Treasury Money Market Fund
I. Transfer Agency Services Fee
For Transfer Agency Services provided pursuant to this Agreement, the
Investment Company agrees to pay and the Company hereby agrees to
accept as full compensation for its services rendered hereunder a fee
as follows:
Account Fee (Annual account charge)
(includes system access and funds control and reconcilement)
- Daily dividend fund $16.65
- Monthly dividend fund $ 8.75
- Quarterly dividend fund $ 8.75
- Contingent Deferred Sales Charge (Additionally)
(monthly and quarterly funds only) $ 5.00
- Closed Accounts (per account per month) $00.10
Minimum charges: The monthly maintenance charge for each class will be
the actual account fee or $2,000, whichever is greater.
II. Transfer Agency Services Out-of-Pocket Expenses
Out-of-pocket expenses include but are not limited to postage
(including overnight courier service), statement stock, envelopes,
telecommunication charges (including Fax), travel, duplicating, forms,
supplies, microfiche, computer access charges, client specific
enhancements, disaster recovery, closed account fees, processing fees
(including check encoding), and expenses incurred at the specific
direction of the Fund. Postage for mass mailings is due seven days in
advance of the mailing date.
III. Payment
All fees are annualized and will be prorated on a monthly basis for billing
purposes. Payment is due thirty days after the date of the invoice.
IN WITNESS WHEREOF, the parties hereto have caused this Exhibit 1 to
be executed in their names and on their behalf under their seals by and
through their duly authorized officers, as of July 1, 2004.
HIBERNIA FUNDS
(listed on Exhibit 1)
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Operating Officer
