TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this fourteenth day of April,
2000, by and between Gintel Fund a Massachusetts business trust organized under
the laws of the Commonwealth of Massachusetts (hereinafter referred to as the
"Fund") and Firstar Mutual Fund Services, LLC, a limited liability company
organized under the laws of the State of Wisconsin (hereinafter referred to as
"FMFS").
WHEREAS, the Fund is a registered investment company under the Investment
Company Act of 1940;
WHEREAS, FMFS is in the business of providing, among other things, transfer
agent and dividend disbursing agent services to investment companies; and
WHEREAS, the Fund desires to retain FMFS to provide transfer agent
services.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and FMFS agree as follows:
1. Appointment of Transfer Agent
The Fund hereby appoints FMFS as Transfer Agent on the terms and conditions
set forth in this Agreement, and FMFS hereby accepts such appointment and agrees
to perform the services and duties set forth in this Agreement in consideration
of the compensation provided for herein.
2. Duties and Responsibilities of FMFS
FMFS shall perform all of the customary services of a transfer agent and
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:
A. Receive orders for the purchase of shares;
B. Process purchase orders with prompt delivery, where appropriate, of payment
and supporting documentation to the Fund's custodian, and issue the
appropriate number of uncertificated shares with such uncertificated shares
being held in the appropriate shareholder account;
C. Arrange for issuance of Shares obtained through transfers of funds from
Shareholders' accounts at financial institutions and arrange for the
exchange of Shares for shares of other eligible investment companies, when
permitted by Prospectus.
D. Process redemption requests received in good order and, where relevant,
deliver appropriate documentation to the Fund's custodian;
E. Pay monies upon receipt from the Fund's custodian, where relevant, in
accordance with the instructions of redeeming shareholders;
F. Process transfers of shares in accordance with the shareholder's
instructions;
G. Process exchanges between funds and/or classes of shares of funds.
H. Prepare and transmit payments for dividends and distributions declared by
the Fund, after deducting any amount required to be withheld by any
applicable laws, rules and regulations and in accordance with shareholder
instructions;
I. Make changes to shareholder records, including, but not limited to, address
changes in plans (i.e., systematic withdrawal, automatic investment,
dividend reinvestment, etc.);
J. Record the issuance of shares of the Fund and maintain, pursuant to Rule
17ad-10(e) promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), a record of the total number of shares of the
Fund which are authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail, receive and
tabulate proxies;
L. Mail shareholder reports and prospectuses to current shareholders;
M. Prepare and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions
for all shareholders;
N. Provide shareholder account information upon request and prepare and mail
confirmations and statements of account to shareholders for all purchases,
redemption's and other confirmable transactions as agreed upon with the
Company;
O. Mail requests for shareholders' certifications under penalties of perjury
and pay on a timely basis to the appropriate Federal authorities any taxes
to be withheld on dividends and distributions paid by the Fund, all as
required by applicable Federal tax laws and regulations;
P. Provide a Blue Sky System, which will enable the Fund to monitor the total
number of shares sold in each state. In addition, the Fund or its agent,
including FMFS, shall identify to FMFS in writing those transactions and
assets to be treated as exempt from the Blue Sky reporting for each state.
The responsibility of FMFS for the Company's Blue Sky state registration
status is solely limited to the initial compliance by the Company and the
reporting of such transactions to the Company or its agent;
Q. Answer correspondence from shareholders, securities brokers and others
relating to FMFS's duties hereunder and such other correspondence as may
from time to time be mutually agreed upon between FMFS and the Fund.
Reimburse the Fund each month for all material losses resulting from "as
of" processing errors for which FMFS is responsible in accordance with the "as
of" processing guidelines set forth in the attached Exhibit B.
3. Compensation
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the Fee Schedule attached hereto as Exhibit A and
as mutually agreed upon and amended from time to time. The Fund agrees to pay
all fees and reimbursable expenses within ten (10) business days following the
receipt of the billing notice.
4. Representations of FMFS
FMFS represents and warrants to the Fund that:
A. It is a corporation duly organized, existing and in good standing
under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
C. It is duly qualified to carry on its business in the State of
Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement;
F. 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
G. It will comply with all applicable requirements of the Securities Act
of 1933, as amended, and the Exchange Act, the 1940 Act, and any laws,
rules, and regulations of governmental authorities having
jurisdiction.
5. Representations of the Fund
The Fund represents and warrants to FMFS that:
A. The business trust is an open-end investment company under the 1940
Act;
B. The business trust is organized, existing, and in good standing under
the laws of the Commonwealth of Massachusetts;
C. The Fund is empowered under applicable laws and by its Declaration of
Trust and Bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Declaration of Trust have
been taken to authorize it to enter into and perform this Agreement;
E. The Fund will comply with all applicable requirements of the
Securities Act, the Exchange Act, the 1940 Act, and any laws, rules
and regulations of governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act is effective and
will remain effective, and appropriate state securities law filings
have been made and will continue to be made, with respect to all
shares of the Fund being offered for sale.
6. Performance of Service; Limitation of Liability
FMFS shall exercise reasonable care in the performance of its duties under
this Agreement. FMFS shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Fund in connection with matters to which
this Agreement relates, including losses resulting from mechanical breakdowns or
the failure of communication or power supplies beyond FMFS's control, except a
loss arising out of or relating to the FMFS's refusal or failure to comply with
the terms of this Agreement or from bad faith, negligence, or willful misconduct
on its part in the performance of its duties under this Agreement.
Notwithstanding any other provision of this Agreement, if FMFS has exercised
reasonable care in the performance of its duties under this Agreement, the Fund
shall indemnify and hold harmless FMFS from and against any and all claims,
demands, losses, expenses, and liabilities (whether with or without basis in
fact or law) of any and every nature (including reasonable attorneys' fees)
which FMFS may sustain or incur or which may be asserted against FMFS by any
person arising out of any action taken or omitted to be taken by it in
performing the services hereunder, except for any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including reasonable
attorney's fees) arising out of or relating to FMFS's refusal or failure to
comply with the terms of this Agreement or from bad faith, negligence or from
willful misconduct on its part in performance of its duties under this
Agreement, (i) in accordance with the foregoing standards, or (ii) in reliance
upon any written or oral instruction provided to FMFS by any duly authorized
officer of the Fund, such duly authorized officer to be included in a list of
authorized officers furnished to FMFS and as amended from time to time in
writing by resolution of the Board of Trustees of the Fund.
The Fund will indemnify and hold FMFS harmless against any and all losses,
claims, damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any claim, demand, action, or suit as a result of the
negligence of the Fund or the principal underwriter (unless contributed to by
FMFS breach of this Agreement or other Agreements between the Fund and FMFS, or
FMFS's own negligence or bad faith); or as a result of FMFS acting upon
telephone instructions relating to the exchange or redemption of shares received
by FMFS and reasonably believed by FMFS under a standard of care customarily
used in the industry to have originated from the record owner of the subject
shares; or as a result of acting in reliance upon any genuine instrument or
stock certificate signed, countersigned, or executed by any person or persons
authorized to sign, countersign, or execute the same.
FMFS shall indemnify and hold the Fund harmless from and against any and
all claims, demands, losses, expenses, and liabilities (whether with or without
basis in fact or law) of any and every nature (including reasonable attorneys'
fees) which the Fund may sustain or incur or which may be asserted against the
Fund by any person arising out of any action taken or omitted to be taken by
FMFS as a result of FMFS's refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or power
supplies beyond its control, FMFS shall take all reasonable steps to minimize
service interruptions for any period that such interruption continues beyond
FMFS's control. FMFS will make every reasonable effort to restore any lost or
damaged data and correct any errors resulting from such a breakdown at the
expense of FMFS. FMFS agrees that it shall, at all times, have reasonable
contingency plans with appropriate parties, making reasonable provision for
emergency use of electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Fund shall be entitled to inspect
FMFS's premises and operating capabilities at any time during regular business
hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess and correct
administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all reasonable care to
notify the indemnitor promptly concerning any situation which presents or
appears likely to present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee against any claim,
which may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or other expenses for which it
shall seek indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the indemnitor
will be asked to indemnify the indemnitee except with the indemnitor's prior
written consent.
7. Proprietary and Confidential Information
FMFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Fund all records
and other information relative to the Fund and prior, present, or potential
shareholders (and clients of said shareholders) and not to use such records and
information for any purpose other than the performance of its responsibilities
and duties hereunder, except after prior notification to and approval in writing
by the Fund, which approval shall not be unreasonably withheld and may not be
withheld where FMFS may be exposed to civil or criminal contempt proceedings for
failure to comply after being requested to divulge such information by duly
constituted authorities, or when so requested by the Fund.
8. Term of Agreement
This Agreement shall become effective as of the date hereof and, unless
sooner terminated as provided herein, shall continue automatically in effect for
successive annual periods. The Agreement may be terminated by either party upon
giving ninety (90) days prior written notice to the other party or such shorter
period as is mutually agreed upon by the parties. This Agreement may be amended
by mutual written consent of the parties.
9. Records
FMFS shall keep records relating to the services to be performed hereunder,
in the form and manner, and for such period as it may deem advisable and is
agreeable to the Fund but not inconsistent with the rules and regulations of
appropriate government authorities, in particular, Section 31 of the 1940 Act
and the rules thereunder. FMFS agrees that all such records prepared or
maintained by FMFS relating to the services to be performed by FMFS hereunder
are the property of the Fund and will be preserved, maintained, and made
available with such section and rules of the 1940 Act and will be promptly
surrendered to the Fund on and in accordance with its request.
10. Governing Law
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of Wisconsin. However,
nothing herein shall be construed in a manner inconsistent with the 1940 Act or
any rule or regulation promulgated by the Securities and Exchange Commission
thereunder.
11. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
FMFS's duties or responsibilities hereunder is designated by the Fund by written
notice to FMFS, FMFS will promptly, upon such termination and at the expense of
the Fund, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by FMFS under this
Agreement in a form reasonably acceptable to the Fund (if such form differs from
the form in which FMFS has maintained, the Fund shall pay any expenses
associated with transferring the data to such form), and will cooperate in the
transfer of such duties and responsibilities, including provision for assistance
from FMFS's personnel in the establishment of books, records, and other data by
such successor.
12. Notices
Notices of any kind to be given by either party to the other party shall be
in writing and shall be duly given if mailed or delivered as follows: Notice to
FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Fund shall be sent to:
Gintel Fund
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxxx
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer or one or more counterparts as of the day
and year first written above.
Gintel Fund FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxxx
----------------------- ------------------
Print: Xxxxxx X. Xxxxxxxxx Print: Xxx X. Xxxxxxx
Title: President Title: President
Attest: /s/ Xxxxx X. Xxxxxx Attest: ______________________________
---------------
Date: April 19, 2000 Date: 4/24/00
