TRANSFER AGENT AGREEMENT
THIS AGREEMENT is made and entered into on this ____ day of
____________, 1997, by and between Berkeley Capital Management Funds, a
Delaware business trust (the "Trust") on behalf of Berkeley Capital
Management Money Market Fund (hereinafter referred to as the "Fund"), and
Firstar Trust Company, a corporation organized under the laws of the State of
Wisconsin (hereinafter referred to as the "Agent").
WHEREAS, the Trust is an open-ended management investment company which
is registered under the Investment Company Act of 1940; and
WHEREAS, the Agent is a trust company and, among other things, is in the
business of administering transfer and dividend disbursing agent functions
for the benefit of its customers;
NOW, THEREFORE, the Trust, on behalf of the Fund, and the Agent do
mutually promise and agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF THE AGENT
Subject to the terms and conditions set forth in this Agreement, the
Trust, on behalf of the Fund, hereby employs and appoints the Agent to act as
transfer agent and dividend disbursing agent.
The Agent 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 and issue the appropriate number of
certificated or uncertificated shares with such uncertificated shares
being held in the appropriate shareholder account;
C. Process redemption requests received in good order;
D. Pay monies in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the shareowner's
instructions;
F. Process exchanges between funds within the same family of funds;
G. Issue and/or cancel certificates as instructed; replace lost, stolen
or destroyed certificates upon receipt of satisfactory
indemnification or surety bond;
H. Prepare and transmit payments for dividends and distributions
declared by the Fund;
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
Securities Exchange Act of 1934 Rule 17Ad-10(e), 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 timely 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, redemptions and other confirmable transactions as agreed
upon with the Trust on behalf of the Fund; and
O. Provide a Blue Sky System which will enable the Trust on behalf of
the Fund to monitor the total number and dollar amounts of shares sold
in each state. In addition, the Trust on behalf of the Fund shall
identify to the Agent in writing those transactions and assets to be
treated as exempt from the Blue Sky reporting to the Fund for each
state. The responsibility of the Agent for the Fund's Blue Sky state
registration status is solely limited to the initial compliance by
the Trust and the reporting of such transactions to the Trust.
2. COMPENSATION
The Trust, on behalf of the Fund, agrees to pay the Agent for
performance of the duties listed in this Agreement; the fees and reasonable
out-of-pocket expenses include, but are not limited to the following:
printing, postage, forms, stationery, record retention, mailing, insertion,
programming, labels, shareholder lists, and proxy expenses.
These fees and reimbursable expenses may be changed from time to time
subject to mutual written agreement between the Trust and the Agent.
The Trust, on behalf of the Fund, agrees to pay all fees and reimbursable
expenses within ten (10) business days following its receipt of the billing
notice.
3. REPRESENTATIONS OF AGENT
The Agent represents, warrants, and covenants to the Trust and the Fund
that as of the date hereof and throughout the term of this agreement:
A. It is a trust company duly organized, existing and in good standing
under the laws of Wisconsin;
B. It is a registered transfer agent under the Securities Exchange Act
of 1934 as amended;
C. It is duly qualified to carry on its business in the state of
Wisconsin;
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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 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 all applicable
laws and regulations including, but not limited to the Securities
Act of 1933 and the Securities Exchange Act of 1934, as amended, the
Investment Company Act of 1940, as amended, and any laws, rules, and
regulations of governmental authorities having jurisdiction.
4. REPRESENTATIONS OF THE TRUST
The Trust represents and warrants to the Agent that:
A. The Trust is an open-ended diversified investment company under the
Investment Company Act of 1940;
B. The Trust is a business trust organized, existing, and in good
standing under the laws of Delaware;
C. The Trust 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 Trust will comply with all applicable requirements of the
Securities and Exchange Acts of 1933 and 1934, as amended, the
Investment Company Act of 1940, as amended, and any laws, rules and
regulations of governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act of 1933 is
currently effective and will remain effective.
5. COVENANTS OF TRUST AND AGENT
The Trust shall furnish the Agent a certified copy of the resolution of
the Board of Trustees of the Trust authorizing the appointment of the Agent
and the execution of this Agreement. The Trust shall provide to the Agent a
copy of the Declaration of Trust, and all amendments.
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The Agent shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable and consistent
with all applicable laws and regulations. To the extent required by Section
31 of the Investment Company Act of 1940, as amended, and the rules
thereunder, the Agent agrees that all such records prepared or maintained by
the Agent relating to the services to be performed by the Agent hereunder are
the property of the Trust and will be preserved, maintained and made
available in accordance with such section and rules and will be surrendered
to the Trust on and in accordance with its request.
6. INDEMNIFICATION; REMEDIES UPON BREACH
The Agent shall exercise reasonable care in the performance of its
duties under this Agreement and shall comply with all applicable laws and
regulations. The Agent shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust or 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 the Agent's control, except a loss resulting from the Agent'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, the Trust shall indemnify and hold harmless the Agent 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 Agent may sustain or incur
or which may be asserted against the Agent by any person arising out of any
action taken or omitted to be taken by it in performing the services
hereunder, and against any and all losses resulting from the Agent's reliance
upon any written or oral instruction provided to the Agent by any duly
authorized officer of the Trust, such duly authorized officer to be included
in a list of authorized officers furnished to the Agent and as amended from
time to time in writing by resolution of the Board of Trustees of the Trust;
provided that this indemnification provision shall not apply to any claim,
demand, loss, expense, or liability that is a result of Agent's willful
misfeasance, bad faith, or negligence in the performance of its duties
hereunder, or Agent's disregard of its obligations and duties under this
Agreement.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, the Agent shall take all reasonable steps
to minimize service interruptions for any period that such interruption
continues beyond the Agent's control. The Agent 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 the Agent. The Agent 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 Trust shall be entitled to inspect the Agent's
premises and operating capabilities at any time during regular business hours
of the Agent, upon reasonable notice to the Agent.
Regardless of the above, the Agent reserves the right to reprocess and
correct administrative errors at its own expense provided that the Agent
notifies the Trust of all such errors, other than de minimus errors, and the
Trust approves in writing in advance FTC's proposed reprocessing and
correction of such errors.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case a party to this Agreement
(the "Indemnifying Party") may be asked to indemnify or hold the other party
(the "Indemnified Party") harmless, the Indemnifying Party shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the Indemnified Party will use all
reasonable care to notify the Indemnifying Party promptly
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concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the Indemnifying
Party. The Indemnifying Party shall have the option to defend the Indemnified
Party against any claim which may be the subject of this indemnification. In
the event that the Indemnifying Party so elects, it will so notify the
Indemnified Party and thereupon the Indemnifying Party shall take over
complete defense of the claim, and the Indemnifying Party shall in such
situation initiate no further legal or other expenses for which it shall seek
indemnification under this section. The Indemnified Party shall in no case
confess any claim or make any compromise in any case in which the
Indemnifying Party will be asked to indemnify the Indemnified Party except
with the Indemnifying Party's prior written consent.
The Agent shall indemnify and hold the Trust and 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 may be asserted against the
Trust or the Fund by any person arising out of any action taken or omitted to
be taken by the Agent as a result of the Agent's refusal or failure to comply
with the terms of this Agreement, its bad faith, negligence, willful
misconduct, or violation of applicable law.
7. CONFIDENTIALITY
The Agent agrees on behalf of itself and its employees to treat
confidentiality all records and other information relative to the Trust, the
Fund, and the Fund's shareholders and shall not be disclosed to any other
party, except after prior notification to and approval in writing by the
Trust on behalf of the Fund, which approval shall not be unreasonably
withheld and may not be withheld where the Agent may be exposed to civil or
criminal contempt proceedings for failure to comply after being requested to
divulge such information by duly constituted authorities.
ADDITIONAL SERIES. The Trust is authorized to issue separate classes of
shares of beneficial interest representing interests in separate investment
portfolios. The parties intend that each portfolio established by the trust,
now or in the future, be covered by the terms and conditions of this
agreement.
8. RECORDS
The Agent 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 Trust but not inconsistent with the rules
and regulations of appropriate government authorities, in particular, Section
31 of The Investment Company Act of 1940 as amended (the "Investment Company
Act"), and the rules thereunder. The Agent agrees that all such records
prepared or maintained by The Agent relating to the services to be performed
by the Agent hereunder are the property of the Trust and will be preserved,
maintained, and made available with such section and rules of the Investment
Company Act and will be promptly surrendered to the Trust on and in
accordance with its request.
9. CALIFORNIA LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the state of California. The Agent
hereby consents to the exclusive jurisdiction, venue, and forum of any state
or federal court in San Francisco, California with respect to any action,
whether commenced by the Trust or any other party, which, in whole or in
part, in any way arises under or relates to this Agreement. The Agent hereby
authorizes and accepts service of process sufficient for personal
jurisdiction in any action against it as contemplated by this paragraph by
registered or certified mail,
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return receipt requested, postage prepaid, to its address for the giving of
notices as set forth in this Agreement, or in the manner set forth in Section
10 of this Agreement for the giving of notice.
10. AMENDMENT, ASSIGNMENT, TERMINATION AND NOTICE
A. This Agreement may be amended by the mutual written consent of the
parties.
B. This Agreement may be terminated upon ninety (90) day's written
notice given by one party to the other.
C. This Agreement and any right or obligation hereunder may not be
assigned by either party without the signed, written consent of the
other party.
D. 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 to
the Agent at ______________________ or to the Trust or the Fund at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or sent by facsimile transmission to the Agent at ____________________
or to the Trust or the Fund at (▇▇▇) ▇▇▇-▇▇▇▇.
E. In the event that the Trust gives to the Agent its written intention
to terminate and appoint a successor transfer agent, the Agent agrees
to cooperate in the transfer of its duties and responsibilities to
the successor, including any and all relevant books, records and
other data established or maintained by the Agent under this
Agreement.
F. Should the Trust exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will
be paid by the Trust.
11. ATTORNEYS' FEES.
If any part to this Agreement seeks to enforce its rights under this
Agreement or to construe any provision of this Agreement by legal proceedings
or otherwise, the non-prevailing party in such proceedings shall pay all
reasonable costs and expenses incurred by the prevailing party (who shall be
the party who obtains substantially the relief sought by such party, whether
by settlement, compromise, or judgement), including without limitation court
costs and all reasonable attorneys' fees.
12. NOTICE OF DECLARATION OF TRUST.
FTC agrees that the Trust's obligations under this Agreement shall be
limited to the Fund and its assets, and that FTC shall not seek satisfaction
of any such obligation from the shareholders of the Trust nor from any
Trustee, officer, employee, or agent of the Trust.
Berkeley Capital Management Funds Firstar Trust Company
By: By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Principal
Executive Officer
Attest: Attest:
-------------------------- ----------------------------
Assistant Secretary
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EXHIBIT A
BERKELEY CAPITAL MANAGEMENT MONEY MARKET FUND
TRANSFER AGENT AND SHAREHOLDER SERVICING
MONEY MARKET FUND FEE SCHEDULE
$20.00 per shareholder account per year
Minimum annual fee $15,000
Plus out-of-pocket expenses, including but not limited to:
Telephone - toll free lines
Postage
Programming
Stationery/envelopes
Mailing
Insurance
Proxies
Retention of records
Microfilm/fiche of records (beyond Firstar copies)
Special reports
ACH fees
All other out-of-pocket expenses
Fund Group Initialization/Programming
Fees are billed monthly
Qualified Plan Fees (Billed to Investors)
Annual maintenance fee per $12.50/acct
account (Cap at $25.00 per SSN)
Transfer to successor trustee $15.00/trans.
Distribution to participant $15.00/trans.
(Exclusive of SWP)
Refund of excess contribution $15.00/trans.
Additional Shareholder Fees (Billed to Investors)
Any outgoing wire transfer $10.00/wire
Return check fee $20.00/item
Stop payment $20.00/stop
(Liquidation, dividend, draft check)
Research fee $ 5.00/item
(For requested items of the second calendar
year [or previous] to the request)(Cap at $25.00)
