TRANSFER AGENCY SERVICE AGREEMENT
between
THE ADVISORS SERIES TRUST
and
ORBITEX FUND SERVICES INC.
INDEX
1. APPOINTMENT; DELIVERY OF DOCUMENTS......................................3
2. DUTIES OF OFS...........................................................4
3. RECORDKEEPING...........................................................6
4. ISSUANCE AND TRANSFER OF SHARES.........................................7
5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS...................7
6. FEES AND EXPENSES.......................................................8
7. REPRESENTATIONS AND WARRANTIES..........................................8
8. STANDARD OF CARE AND INDEMNIFICATION....................................9
9. CONFIDENTIALITY........................................................11
10. PROPRIETARY INFORMATION................................................11
11. EFFECTIVENESS, DURATION, AND TERMINATION...............................12
12. ADDITIONAL FUNDS AND CLASSES...........................................12
13. ASSIGNMENT.............................................................13
14. TAXES..................................................................13
15. MISCELLANEOUS..........................................................13
SCHEDULE A ...................................................................15
A. TRANSFER AGENT FEES:...............................................15
B. ACTIVITY CHARGES...................................................16
C. SPECIAL REPORTS CHARGES:...........................................16
D. SERVICE DEPOSIT....................................................16
SCHEDULE B....................................................................17
ADVISORS SERIES TRUST
TRANSFER AGENCY SERVICE AGREEMENT
AGREEMENT made effective on _____ __, ____, by and between Advisors Series
Trust, a Delaware business trust, having its principal office and place of
business at 0000 X. Xxxxxxxxx Xxx, Xxxxx 000, Xxxxxxxx, XX 00000 (the "Trust"),
and Orbitex Fund Services, Inc., a New York corporation having its principal
office and place of business at the Hauppauge Corporate Center, 000 Xxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("OFS").
WHEREAS, the Trust is an open-end management investment company registered
with the United States Securities and Exchange Commission under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares ("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; and
WHEREAS, the Trust offers shares in the series as listed in Schedule B
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 offers shares of the classes of each Fund as listed in
Schedule B hereto (each such class together with all other classes subsequently
established by the Trust in a Fund being herein referred to as a "Class," and
collectively as the "Classes"); and
WHEREAS, the Trust desires to appoint OFS as its transfer agent and
dividend disbursing agent for each Fund and Class thereof and OFS desires to
accept such appointment on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and OFS hereby agree as follows:
1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) Appointment. The Trust, on behalf of the Funds, hereby appoints OFS to
act as, and OFS agrees to act as, (i) transfer agent for the
authorized and issued shares of common stock 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 of the applicable Fund,
including, without limitation, any periodic investment plan or
periodic withdrawal program.
(b) Document Delivery. In connection therewith, upon OFS' request, the
Trust has delivered to OFS copies of:
(i) the Trust's Declaration of Trust, Trust Instrument and By-laws
(collectively, as amended from time to time, "Organic
Documents"),
(ii) the Trust's Registration Statement and all amendments thereto
filed with the U.S. Securities and Exchange Commission ("SEC")
pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the Investment Company Act of 1940, as
amended (the "1940 Act")(the "Registration Statement"),
(iii)the current Prospectus and Statement of Additional Information
of each Fund (collectively, as currently in effect and as amended
or supplemented, the "Prospectus"),
(iv) each current plan of distribution or similar document adopted by
the Trust under Rule 12b-1 under the 1940 Act ("Plan") and each
current shareholder service plan or similar document adopted by
the Trust ("Service Plan"), and
(c) Amendments. The Trust shall promptly furnish OFS with all amendments
of or supplements to the foregoing and shall deliver to OFS a
certified copy of the resolution of the Board of Directors of the
Trust (the "Board") appointing OFS and authorizing the execution and
delivery of this Agreement.
2. DUTIES OF OFS
(a) Transfer Agency Services. In accordance with procedures established
from time to time by agreement between the Trust on behalf of each of
the Funds, as applicable, and OFS, OFS will perform the following
services:
(i) provide 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 Shareholder reports and prospectuses to current
Shareholders;
(d) withholding taxes on U.S. resident and non-resident alien
accounts;
(e) preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required by federal authorities with
respect to distributions for Shareholders;
(f) 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; and,
(g) providing account information in response to inquiries from
Shareholders.
(ii) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefore
to the Custodian of the Fund authorized by the Board of Directors
of the Fund (the "Custodian"); or, in the case of a Fund's
operating in a master-feeder or fund of funds structure, to the
transfer agent or interest-holder record keeper 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 therefore 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 interest-holder record keeper
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 OFS of indemnification satisfactory to
OFS and protecting OFS and the Trust and, at the option of OFS,
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) record the issuance of shares of the Fund and maintain pursuant
to SEC Rule 17Ad-10(e) a record of the total number of shares of
the Fund which are authorized, based upon data provided to it by
the Fund, and issued and outstanding.
(xi) provide a system, which will enable the Trust to calculate the
total number of Shares of each Fund and Class thereof sold in
each State.
(b) Other Services. OFS shall provide the following additional services on
behalf of the Trust and such other services agreed to in writing by
the Trust and OFS:
(i) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the
United States; and
(c) Blue Sky Matters. The Trust or its administrator or other agent
(i) shall identify to OFS 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 monitor the sales activity with respect to Shareholders
domiciled or resident in each State.
(d) Safekeeping. OFS 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. OFS shall establish and
maintain facilities and procedures reasonably acceptable to the Trust
for safekeeping of all records maintained by OFS pursuant to this
Agreement.
(e) Cooperation with Accountants. OFS 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.
(f) Responsibility for Compliance with Law
(i) In General. Except with respect to OFS' duties as set forth in
this Section 2 and except as otherwise specifically provided
herein, the Trust assumes all responsibility for ensuring that
the Trust complies with all applicable requirements of the
Securities Act, the 1940 Act and any laws, rules and regulations
of governmental authorities with jurisdiction over the Trust. All
references to any law in this Agreement shall be deemed to
include reference to the applicable rules and regulations
promulgated under authority of the law and all official
interpretations of such law or rules or regulations.
(ii) Issuance of Shares. The responsibility of OFS for the Trust's
state registration status is solely limited to the reporting of
transactions to the Trust, and OFS shall have no obligation, when
recording the issuance of Shares, 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 Trust or its administrator or other agent.
3. RECORDKEEPING
(a) Record keeping. OFS 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 there under, OFS agrees that
all such records prepared or maintained by OFS relating to the
services to be performed by OFS 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 there under,
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 OFS' records relating to the
services to be performed under this Agreement at all times during OFS'
normal business hours. Upon the reasonable request of the Trust,
copies of any such records shall be provided promptly by OFS to the
Trust or its authorized representatives.
(b) Confidentiality of Records. OFS 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.
Orbitex will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified
from time to time (the "Act"). Notwithstanding the foregoing, Orbitex
will not share any nonpublic personal information concerning any of
the Trust's shareholders with any third party unless specifically
directed by the Trust or allowed under one of the exceptions noted
under the Act.
(c) Inspection of Records by Others. In case of any requests or demands
for the inspection of the Shareholder records of the Fund, OFS will
endeavor to notify the Fund and to secure instructions from an
authorized officer of the Fund as to such inspection. OFS reserves the
right, however, to exhibit the Shareholder records to any person
whenever it is advised by its counsel that it may be held liable for
the failure to exhibit the Shareholder records to such person, and
shall promptly notify the Fund of any unusual request to inspect or
copy the shareholder records of the Fund or the receipt of any other
unusual request to inspect, copy or produce the records of the Fund.
4. ISSUANCE AND TRANSFER OF SHARES
(a) Issuance of Shares. OFS 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
SEC, as required by Section 24 of the 1940 Act or the rules there
under. If such opinion is contingent upon a filing under Section
24 of the 1940 Act, the Trust shall indemnify OFS for any
liability arising from the failure of the Trust to comply with
that section or the rules there under.
(b) Transfer of Shares. Transfers of Shares of each Fund and Class thereof
shall be registered on the Shareholder records maintained by OFS. In
registering transfers of Shares, OFS may rely upon the Uniform
Commercial Code as in effect in the State of New York or any other
statutes that, in the opinion of OFS' counsel, protect OFS 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, OFS will be responsible for delivery
to the transferor and transferee of such documentation as is
required by the Uniform Commercial Code.
5. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Purchase Orders. Shares shall be issued in accordance with the terms
of a Fund's or Class' prospectus after OFS 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 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 OFS is credited with
Federal Funds with respect to that check.
6. FEES AND EXPENSES
(a) Fees. For the services provided by OFS pursuant to this Agreement, the
Trust, on behalf of each Fund, agrees to pay OFS the fees set forth in
Schedule A. 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 addition to the fees paid under subsection (a), the Trust
agrees to reimburse OFS for reasonable out-of-pocket expenses or
advances incurred by OFS for the items set out in the Schedule A
attached hereto. In addition, the Trust will reimburse any other
expenses incurred by OFS at the request or with the consent of the
Trust.
(c) Due Date. All fees and expenses are due and payable within five (5)
days of receipt. Interest, at a rate of eighteen (18) percent per
year, can be charged if invoices remain outstanding greater than ten
(20) days.
(d) Fee Changes. The fees, out-of pocket expenses and advances identified
in the foregoing subsections (a) and (b) above may be changed from
time to time subject to mutual written agreement between the Trust and
OFS.
7. REPRESENTATIONS AND WARRANTIES
(a) Representations of OFS. OFS 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 New York;
(ii) it is duly qualified to carry on its business in the State of New
York;
(iii)it is empowered under applicable laws and by its Article of
Incorporation and Bylaws to enter into this Agreement and perform
its duties under this Agreement;
(iv) it has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this
Agreement; and,
(v) it is registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934 and shall continue to be
registered throughout the remainder of this Agreement.
(b) Representations of the Trust. The Fund represents and warrants to OFS
that
(i) it is a Trust duly organized and existing and in good standing
under the laws of the Trust;
(ii) it is empowered under applicable laws and by its Organic
Documents to enter into and perform this Agreement;
(iii)all proceedings required by said Organic Documents have been
taken to authorize it to enter into and perform this Agreement;
(iv) it is an open-end management investment company registered under
the Investment Company Act of 1940; and,
(v) a registration statement under the Securities Act of 1933 is
currently effective and will remain effective, and appropriate
state securities law filings as required, have been or will be
made and will continue to be made, with respect to all Shares of
the Fund being offered for sale.
8. STANDARD OF CARE AND INDEMNIFICATION
(a) Standard of Care. OFS shall be under no duty to take any action except
as specifically set forth herein or as may be specifically agreed to
by OFS in writing. OFS shall use its best judgment and efforts in
rendering the services described in this Agreement. OFS shall not be
liable to the Trust or any of the Corporation's shareholders or any
action or inaction of OFS relating to any event whatsoever in the
absence of bad faith, willful misfeasance or negligence in the
performance of OFS's duties or obligations under this Agreement or by
reason of OFS' reckless disregard of its duties and obligations under
this Agreement.
(b) Indemnification of OFS. OFS shall not be responsible for, and the
Trust shall on behalf of each applicable Fund or Class thereof
indemnify and hold OFS 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 OFS or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct;
the Trust's lack of good faith or the Trust's negligence or
willful misconduct;
(ii) the reliance on or use by OFS or its agents or subcontractors of
information, records or documents which (i) are received by OFS
or its agents or subcontractors and furnished to it by or on
behalf of the Fund, and (ii) have been prepared or maintained 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;
(iii)the reasonable reliance on, or the carrying out by OFS or its
agents or subcontractors of, any instructions or requests of the
Trust on behalf of the applicable Fund;
(iv) the Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack good faith,
negligence or willful misconduct or which arise out of the breach
of any representation or warranty of the Fund hereunder and,
(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.
The Trust shall not be required to indemnify any OFS Indemnitee if, prior
to confessing any Claim against the OFS Indemnitee, OFS or the OFS Indemnitee
does not give the Trust written notice of and reasonable opportunity to defend
against the claim in its own name or in the name of the OFS Indemnitee.
(c) Indemnification of the Trust. OFS shall indemnify and hold the Trust
and each Fund or Class thereof harmless from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising out of or attributed to any action or
failure or omission to act by OFS as a result of OFS's lack of good
faith, negligence or willful misconduct with respect to the services
performed under or in connection with this Agreement.
(d) Reliance. At any time OFS may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust or to
OFS with respect to any matter arising in connection with the services
to be performed by OFS under this Agreement, and OFS 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 advice
of such counsel. OFS, 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,
reasonably believed by OFS to be genuine and to have been signed
by the proper person or persons;
(ii) any instruction, information, data, records or documents provided
OFS or its agents or subcontractors by machine readable input,
telex, CRT data 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 OFS in person or by
telephone, vocal telegram or other electronic means, reasonably
believed by OFS to be genuine and to have been given by the
proper person or persons. OFS shall not be held to have notice of
any change of authority of any person, until receipt of written
notice thereof from the Trust. OFS, 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.
(e) Reliance on Electronic Instructions. If the Trust has the ability to
originate electronic instructions to OFS 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 OFS 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 OFS
from time to time.
(f) Use of Fund/Serv and Networking. The Trust has authorized or in the
future may authorize OFS to act as a "Mutual Fund Services Member" for
the Trust or various Funds and Classes. Fund/SERV and Networking are
services sponsored by the National Securities Clearing Trust ("NSCC")
and as used herein have the meanings as set forth in the then current
edition of NSCC RULES AND PROCEDURES published by NSCC or such other
similar publication as may exist from time to time. The Trust shall
indemnify and hold OFS harmless from and against any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses
and liability arising directly or indirectly out of or attributed to
any action or failure or omission to act by NSCC.
(g) 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.
9. CONFIDENTIALITY
OFS 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 this Agreement, shall remain
confidential, and shall not be voluntarily disclosed to any other person, except
that OFS may:
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC; and
(b) release such other information as approved in writing by the Trust
which approval shall not be unreasonably withheld and may not be
withheld where OFS may be exposed to civil or criminal contempt
proceedings for failure to release the information, when requested to
divulge such information by duly constituted authorities or when so
requested by the Trust or the Adviser.
10. PROPRIETARY INFORMATION
(a) Proprietary Information of OFS. The Trust acknowledges that the
databases, computer programs, screen formats, report formats,
interactive design techniques, and documentation manuals maintained by
OFS on databases under the control and ownership of OFS or a third
party constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial
value to OFS or the third party. The Trust agrees to treat all
Proprietary Information as proprietary to OFS 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. OFS acknowledges that the
Shareholder list and all information related to Shareholders furnished
to OFS by the Trust or by a Shareholder in connection with this
Agreement (collectively, "Customer Data") constitute proprietary
information of substantial value to the Trust. In no event shall
Proprietary Information be deemed Customer Data. OFS agrees to treat
all Customer Data as proprietary to the Trust and further agrees that
it shall not divulge any Customer Data to any person or organization
except as may be provided under this Agreement or as maybe directed by
the Trust.
11. EFFECTIVENESS, DURATION, AND TERMINATION
(a) Effective Date. This Agreement shall become effective on the date
first above written and shall continue in effect for successive twelve
month periods; provided that such continuance is specifically approved
at least annually by the members of the board of the Trust.
(b) Term. This Agreement shall remain in effect for a period of two (2)
years from the date of its effectiveness.
(c) Termination for Cause. This Agreement can only be terminated for just
cause.
Upon receipt of written notice of intent to terminate, the breaching
party shall have 60 days to remedy the breach. If said breach is not
remedied to the reasonable satisfaction of the non-breaching party,
the non-breaching party may thereafter terminate this Agreement upon
30 day's written notice. Compensation due OFS and unpaid by the Trust
upon such termination shall be immediately due and payable upon, and
notwithstanding, such termination. If after such termination for so
long as OFS, with the written consent of the Trust, in fact continues
to perform any one or more of the services contemplated by this
Agreement, the provisions of this Agreement, including without
limitation, the provisions dealing with indemnification, shall
continue in full force and effect. The termination restrictions of
this paragraph shall not be applicable to any Fund(s) that is/are
liquidated or to any Fund(s) that is/are merged into another Fund(s)
that is/are covered by the terms of this paragraph.
(d) Reimbursement of OFS' Expenses. If this Agreement is terminated with
respect to a Fund or Funds, OFS shall be entitled to collect from the
Fund or Funds, in addition to the compensation described under
Sections 6 and 11(d) hereof, the amount of all of OFS' reasonable
labor charges and cash disbursements for services in connection with
OFS' activities in effecting such termination, including without
limitation, the labor costs and expenses associated with the
de-conversion of the Trusts records of each Fund from its computer
systems, and the delivery to the Trust and/or its designees of the
Trust's property, records, instruments and documents, or any copies
thereof. Subsequent to such termination, for a reasonable fee, OFS
will provide the Trust with reasonable access to all Trust documents
or records, if any, remaining in its possession.
(e) Survival of Certain Obligations. The obligations of Sections 6, 9, 10
and 11 shall survive any termination of this Agreement.
(f) Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond
its control, or other causes reasonably beyond its control, such party
shall not be liable for damages to the other for any damages resulting
from such failure to perform or otherwise from such causes.
12. ADDITIONAL FUNDS AND CLASSES
If the Trust establishes one or more series of Shares or one or more
classes of Shares after the effectiveness of this Agreement, such series of
Shares or classes of Shares, as the case may be, shall become Funds and Classes
under this Agreement; provided, however, that either OFS or the Trust may elect
in writing not to make such series or classes subject to this Agreement.
13. 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
with the written consent of the other party. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective permitted
successors and assigns. OFS may, without further consent on the part of the
Trust, subcontract for the performance hereof with any entity, including
affiliated persons of OFS; provided however, that OFS shall have previously
identified the subcontractor to the Trust and the Trust shall not have objected
to the delegation and that OFS shall be as fully responsible to the Trust for
the acts and omissions of any subcontractor as OFS is for its own acts and
omissions.
14. TAXES
OFS 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 OFS for compensation received by it under this Agreement.
15. MISCELLANEOUS
(a) 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.
(b) Choice of Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State
of New York.
(c) 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.
(d) Counterparts. The parties may execute this Agreement on any number of
counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) 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.
(f) 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.
(g) Notices. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent
by telex or facsimile, and shall be given to the following addresses
(or such other addresses as to which notice is given):
To the Fund: To OFS:
Xxxx X. Xxxxxxx Xxxxx X. Xxxxxx
President President
Advisors Series Trust Orbitex Fund Services, Inc.
0000 X. Xxxxxxxxx Xxx, Xxxxx 000 000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
(h) Business Days. Nothing contained in this Agreement is intended to or
shall require OFS, 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.
(i) 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.
(j) Consequential Damages. Neither party to this Agreement shall be liable
to the other party for consequential damages under any provision of
this Agreement or for any act or failure to act hereunder.
(k) Nonliability of Affiliates. No affiliated person (as that term is
defined in the 1940 Act), employee, agent, director, officer or
manager of OFS shall be liable at law or in equity for OFS'
obligations under this Agreement.
(l) Representation of Signatories. Each of the undersigned expressly
warrants and represents that they have full power and authority to
sign this Agreement on behalf of the party indicated and that their
signature will bind the party indicated to the terms hereof.
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 persons,
as of the day and year first above written.
ADVISORS SERIES TRUST ORBITEX FUND SERVICES, INC.
By:_____________________________________ By:______________________________
Xxxxxxxx X. Head, Assistant Treasurer Xxxxx X. Xxxxxx, President
