EXHIBIT (h.4)
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT is made as of this 11th day of June, 2003,
by and between The Xxxxxx & Rygel Investment Group, a Massachusetts business
trust (the "Trust"), and UMB Fund Services, Inc., a Wisconsin corporation, its
successors and assigns ("UMBFS").
R E C I T A L S:
WHEREAS, the Trust is registered under the 1940 Act as an open-end
management investment company; and
WHEREAS, the Trust currently contracts with National Financial Data
Services, Inc. ("NFDS") to render certain transfer agency and dividend
disbursement services; and
WHEREAS, the Trust desires to retain UMBFS to render certain transfer
agency and dividend disbursement services, and UMBFS is willing to render such
services, all in accordance with the terms of this Agreement.
A G R E E M E N T S:
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to any terms defined in the body of this Agreement, the
following capitalized terms shall have the meanings set forth hereinafter
whenever they appear in this Agreement:
1.01 1940 ACT shall mean the Investment Company Act of 1940, as amended
from time to time.
1.02 AUTHORIZED PERSON shall mean any individual who is authorized to
provide UMBFS with Instructions and requests on behalf of the Trust, whose name
shall be certified to UMBFS from time to time pursuant to Section 7.01 of this
Agreement.
1.03 BOARD OF TRUSTEES shall mean the Board of Trustees of the Trust.
1.04 CONVERSION DATE shall mean the close of business on or about
September 20, 2003, as determined by mutual agreement of the parties.
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1.05 CUSTODIAN shall mean the financial institution appointed as
custodian under the terms and conditions of the custody agreement between the
financial institution and the Trust, or its successor.
1.06 DECLARATION OF TRUST shall mean the Declaration of Trust or other
similar operational document of the Trust, as the case may be, as the same may
be amended from time to time.
1.07 EXCHANGE ACT shall mean the Securities Exchange Act of 1934, as
amended from time to time.
1.08 FUND shall mean each separate series of Shares offered by the Trust
representing interests in a separate portfolio of securities and other assets
for which the Trust has appointed UMBFS as transfer agent and dividend
disbursing agent under this Agreement.
1.09 FUND BUSINESS DAY shall mean each day on which the New York Stock
Exchange, Inc. is open for trading and on which the Custodian is open for
business.
1.10 INSTRUCTIONS shall mean a written communication signed by an
Authorized Person and actually received by UMBFS. Instructions shall include
manually executed originals, telefacsimile transmissions of manually executed
originals or electronic communications.
1.11 PROSPECTUS shall mean the current Prospectus and Statement of
Additional Information with respect to a Fund (including any applicable
supplement) actually received by UMBFS from the Trust with respect to which the
Trust has indicated a registration statement has become effective under the
Securities Act and the 1940 Act.
1.12 SECURITIES ACT shall mean the Securities Act of 1933, as amended
from time to time.
1.13 SHARES shall mean such shares of beneficial interest, or class
thereof, of each respective Fund of the Trust as may be issued from time to
time.
1.14 SHAREHOLDER shall mean a record owner of Shares of each respective
Fund of the Trust.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
2.01 APPOINTMENT. Effective the Conversion Date, the Trust hereby
appoints UMBFS as transfer agent and dividend disbursing agent of all the Shares
of the Trust during the term of this Agreement with respect to each Fund listed
on Schedule A hereto, and any additional Fund the Trust and UMBFS may agree to
include on any amended Schedule A. UMBFS hereby accepts such appointment as
transfer agent and dividend disbursing agent and agrees to perform the duties
thereof as hereinafter set forth.
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2.02 DUTIES.
A. UMBFS shall perform the transfer agent and dividend
disbursement services described on Schedule B hereto and such additional
services as may be agreed to by the parties from time to time and set forth in
an amendment to Schedule B (collectively, the "Services"). UMBFS shall have no
duties or responsibilities other than those specifically set forth in this
Agreement, and no covenant or obligation to carry out any other duties or
responsibilities shall be implied in this Agreement against UMBFS.
B. UMBFS may appoint other parties to carry out any print and
mail services under this Agreement and may, subject to the prior written
approval of the Trust which approval shall not be unreasonably withheld, appoint
other parties to carry out some or all of its other responsibilities under this
Agreement.
2.03 DELIVERIES.
A. In connection with UMBFS's appointment as transfer agent and
dividend disbursing agent, the Trust shall deliver or cause the following
documents to be delivered to UMBFS:
(1) A copy of the Declaration of Trust and By-laws of the Trust
and all amendments thereto, certified by the Secretary of the Trust;
(2) A certificate signed by the President and Secretary of the
Trust specifying the number of authorized Shares and the number of such
authorized Shares issued and currently outstanding, if any, the validity of the
authorized and outstanding Shares, whether such shares are fully paid and
non-assessable, and the status of the Shares under the Securities Act and, to
the extent reasonably requested by UMBFS, any other applicable federal law or
regulation;
(3) A certified copy of the resolutions of the Board of Trustees
of the Trust appointing UMBFS as transfer agent and dividend disbursing agent
and authorizing the execution of this Transfer Agency Agreement on behalf of the
Trust;
(4) Copies of the Trust's Registration Statement, as amended to
date, and the most recently filed Post-Effective Amendment thereto, filed by the
Trust with the Securities and Exchange Commission under the Securities Act and
the 1940 Act, together with any applications filed in connection therewith; and
(5) The certificate required by Section 7.01 of this Agreement,
signed by an officer of the Trust and designating the names of the Trust's
initial Authorized Persons.
B. The Trust agrees to deliver or to cause to be delivered to
UMBFS in Milwaukee, Wisconsin, at the Trust's expense, all of its Shareholder
account records in a format acceptable to UMBFS, as well as all other documents,
records and information that UMBFS may reasonably request in order for UMBFS to
perform the Services hereunder.
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ARTICLE III
COMPENSATION & EXPENSES
3.01 COMPENSATION. As compensation for the performance of the Services,
the Trust agrees to pay UMBFS the fees set forth on Schedule C attached hereto.
Fees shall be adjusted in accordance with Schedule C or as otherwise agreed to
by the parties from time to time. The parties may amend Schedule C to include
fees for any additional services requested by the Trust, enhancements to current
Services, or to add Funds for which UMBFS has been retained.
3.02 EXPENSES. The Trust also agrees to promptly reimburse UMBFS for all
out-of-pocket expenses or disbursements incurred by UMBFS in connection with the
performance of Services under this Agreement. Out-of-pocket expense shall
include, but not be limited to, those items specified on Schedule C hereto. If
requested by UMBFS, out-of-pocket expenses are payable in advance. Payment of
postage expenses, if prepayment is requested, is due at least seven days prior
to the anticipated mail date. In the event UMBFS requests advance payment, UMBFS
shall not be obligated to incur such expenses or perform the related Service(s)
until payment is received.
3.03 PAYMENT PROCEDURES.
A. The Trust agrees to pay all amounts due hereunder within
thirty (30) days of the date reflected on the statement for such Services (the
"Due Date"). Except as provided in Schedule C, UMBFS shall xxxx Service fees
monthly, and out-of-pocket expenses as incurred (unless prepayment is requested
by UMBFS). UMBFS may, at its option, arrange to have various service providers
submit invoices directly to the Trust for payment of reimbursable out-of-pocket
expenses.
B. The Trust is aware that its failure to remit to UMBFS all
amounts due on or before the Due Date will cause UMBFS to incur costs not
contemplated by this Agreement, including, but not limited to carrying,
processing and accounting charges. Accordingly, in the event that UMBFS does not
receive any amounts due hereunder by the due date, the Trust agrees to pay a
late charge on the overdue amount equal to one and one-half percent (1.5%) per
month or the maximum amount permitted by law, whichever is less. In addition,
the Trust shall pay UMBFS's reasonable attorney's fees and court costs if any
amounts due UMBFS are collected by or through an attorney. The parties hereby
agree that such late charge represents a fair and reasonable computation of the
costs incurred by reason of the Trust's late payment. Acceptance of such late
charge shall in no event constitute a waiver by UMBFS of the Trust's default or
prevent UMBFS from exercising any other rights and remedies available to it.
C. In the event that any charges are disputed, the Trust shall,
on or before the Due Date, pay all undisputed amounts due hereunder and notify
UMBFS in writing of any disputed charges for out-of-pocket expenses which it is
disputing in good faith. Payment for such disputed charges shall be due on or
before the close of the fifth (5th) business day after the day on which UMBFS
provides to the Fund documentation which an objective observer would agree
reasonably supports the disputed charges (the "Revised Due Date"). Late charges
shall not begin to accrue as to charges disputed in good faith until the first
day after the Revised Due Date.
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3.04 ALLOCATION OF RISK. The Trust acknowledges that the fees charged by
UMBFS under this Agreement reflect the allocation of risk between the parties,
including the exclusion of remedies and limitations on liability in Article
VIII. Modifying the allocation of risk from what is stated herein would affect
the fees that UMBFS charges. Accordingly, in consideration of those fees, the
Trust agrees to the stated allocation of risk.
ARTICLE IV
PROCESSING AND PROCEDURES
4.01 ISSUANCE, REDEMPTION AND TRANSFER OF SHARES
A. UMBFS agrees to accept purchase orders and redemption requests
with respect to the Shares of each Fund via postal mail, telephone or personal
delivery on each Fund Business Day in accordance with such Fund's Prospectus;
provided, however, that UMBFS shall only accept purchase orders from states in
which the Shares are qualified for sale, as indicated from time to time by or on
behalf of the Trust. UMBFS shall, as of the time at which the net asset value of
each Fund is computed on each Fund Business Day, issue to and redeem from the
accounts specified in a purchase order or redemption request in proper form and
accepted by the Fund the appropriate number of full and fractional Shares based
on the net asset value per Share of the respective Fund specified in an advice
received on such Fund Business Day from or on behalf of the Fund. UMBFS shall
not be responsible for the payment of any original issue or other taxes required
to be paid by the Trust in connection with the issuance of any Shares in
accordance with this Agreement. UMBFS shall not be required to issue any Shares
after it has received from an Authorized Person or from an appropriate federal
or state authority written notification that the sale of such Shares has been
suspended or discontinued, and UMBFS shall be entitled to rely upon such written
notification. Payment for Shares shall be in the form of a check, wire transfer,
Automated Clearing House transfer or such other methods to which the parties
shall mutually agree.
B. Upon receipt of a redemption request and monies paid to it by
the Custodian in connection with a redemption of Shares, UMBFS shall cancel the
redeemed Shares and after making appropriate deduction for any withholding of
taxes required of it by applicable federal law, make payment in accordance with
the Fund's redemption and payment procedures described in the Prospectus.
C. Except as otherwise provided in this paragraph, UMBFS will
transfer or redeem Shares upon presentation to UMBFS of instructions endorsed
for exchange, transfer or redemption in accordance with the Funds' Prospectus,
accompanied by such documents as UMBFS deems necessary to evidence the authority
of the person making such transfer or redemption. UMBFS reserves the right to
refuse to transfer or redeem Shares until it is satisfied that the endorsement
or instructions are valid and genuine. For that purpose, it will require, unless
otherwise instructed by an Authorized Person or except as otherwise provided in
this paragraph, a guarantee of signature by an "Eligible Guarantor Institution"
as that term is defined by SEC Rule 17Ad-15. UMBFS also reserves the right to
refuse to transfer or redeem Shares until it is satisfied that the requested
transfer or redemption is legally authorized, and it shall incur no liability
for the refusal, in good faith, to make transfers or redemptions which UMBFS, in
its judgment, deems improper or unauthorized, or until it is satisfied that
there is no reasonable basis to any claims adverse to such transfer or
redemption. UMBFS may, in effecting transfers and redemptions
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of Shares, rely upon those provisions of the Uniform Act for the Simplification
of Fiduciary Security Transfers (or such other statutes which protect it and the
Trust in not requiring complete fiduciary documentation) and shall not be
responsible for any act done or omitted by it in good faith in reliance upon
such laws. Notwithstanding the foregoing or any other provision contained in
this Agreement to the contrary, UMBFS shall be fully protected by each Fund in
not requiring any instruments, documents, assurances, endorsements or
guarantees, including, without limitation, any signature guarantees, in
connection with a redemption, exchange or transfer of Shares whenever UMBFS
reasonably believes that requiring the same would be inconsistent with the
transfer and redemption procedures described in the Prospectus or with
Instructions from the Trust.
D. Notwithstanding any provision contained in this Agreement to
the contrary, UMBFS shall not be required or expected to require, as a condition
to any transfer or redemption of any Shares pursuant to a computer tape or
electronic data transmission, any documents to evidence the authority of the
person requesting the transfer or redemption and/or the payment of any stock
transfer taxes, and shall be fully protected in acting in accordance with the
applicable provisions of this Article.
E. In connection with each purchase and each redemption of
Shares, UMBFS shall send such statements as are prescribed by the Federal
securities laws applicable to transfer agents or as described in the Prospectus.
It is understood that certificates for Shares have not been and will not be
offered by the Trust or available to investors. Further, UMBFS shall provide the
Trust with such reports concerning the number of shares sold on a state-by-state
basis as may be necessary to permit the Trust to comply with applicable state
"blue sky" laws and regulations.
F. UMBFS and the Trust shall establish procedures for effecting
purchase, redemption or transfer transactions accepted from investors by
telephone or other methods consistent with the terms of the Prospectus, and such
additional procedures, rules and regulations governing the purchase, redemption
or transfer of Shares, as UMBFS and the Trust agree may be advisable and
consistent with the Prospectus and industry practice. Subject to the provisions
of Article VIII hereof, UMBFS shall not be liable, and shall be held harmless by
the Trust, for its actions or omissions which are consistent with the foregoing
procedures.
G. The Trust agrees to provide UMBFS with prior notice of any
increase or decrease in the total number of Shares authorized to be issued, or
the issuance of any additional Shares of a Fund pursuant to stock dividends,
stock splits, recapitalizations, capital adjustments or similar transactions,
and to deliver to UMBFS such documents, certificates, reports and legal opinions
as UMBFS may reasonably request.
4.02 DIVIDENDS AND DISTRIBUTIONS.
A. The Trust shall give or cause to be given to UMBFS a
certificate of an Authorized Officer that sets forth the date of the declaration
of a dividend or distribution, the date of accrual or payment, as the case may
be, thereof, the record date as of which Shareholders entitled to payment or
accrual, as the case may be, shall be determined, the amount per Share of such
dividend or distribution, the payment date on which all previously accrued and
unpaid dividends are to be paid, and the total amount, if any, payable to UMBFS
on such payment date.
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B. In connection with a reinvestment of a dividend or
distribution of Shares of a Fund, UMBFS shall as of each Fund Business Day, as
specified in a certificate described in paragraph A, issue Shares of the Fund
based on the net asset value per Share of such Fund specified in an advice
received from or on behalf of the Fund on such Fund Business Day.
C. Upon the mail date specified in such certificate, the Trust
shall, in the case of a cash dividend or distribution, cause the Custodian to
deposit in an account in the name of UMBFS on behalf of a Fund, an amount of
cash sufficient for UMBFS to make the payment, as of the mail date specified in
such certificate, to the Shareholders who were of record on the record date.
UMBFS will, upon receipt of any such cash, make payment of such cash dividends
or distributions to the Shareholders as of the record date. UMBFS shall not be
liable for any improper payments made in accordance with a certificate described
in the preceding paragraph. If UMBFS shall not receive from the Custodian
sufficient cash to make payments of any cash dividend or distribution to all
Shareholders of a Fund as of the record date, UMBFS shall, upon notifying the
Trust, withhold payment to such Shareholders until sufficient cash is provided
to UMBFS.
D. It is understood that UMBFS in its capacity as transfer agent
and dividend disbursing agent shall in no way be responsible for the
determination of the rate or form of dividends or capital gain distributions due
to the Shareholders pursuant to the terms of this Agreement. It is further
understood that UMBFS shall file with the Internal Revenue Service and
Shareholders appropriate federal tax forms concerning the payment of dividend
and capital gain distributions but shall in no way be responsible for the
collection or withholding of taxes due on such dividends or distributions due to
shareholders, except and only to the extent, required by applicable federal law.
4.03 RECORDS.
A. UMBFS shall keep those records specified in Schedule D hereto
in the form and manner, and for such period, as it may deem advisable but not
inconsistent with the rules and regulations of appropriate government
authorities, including without limitation in particular Rules 31a-2 and 31a-3
under the 1940 Act. UMBFS may deliver to the Trust from time to time at UMBFS's
discretion, for safekeeping or disposition by the Trust in accordance with law,
such records, papers and documents accumulated in the execution of its duties as
transfer agent, as UMBFS may deem expedient, other than those which UMBFS is
itself required to maintain pursuant to applicable laws and regulations. The
Trust shall assume all responsibility for any failure thereafter to produce any
record, paper, or other document so returned, if and when required. To the
extent required by Section 31 of the 1940 Act and the rules and regulations
thereunder, the records specified in Schedule D hereto maintained by UMBFS,
which have not been previously delivered to the Trust pursuant to the foregoing
provisions of this paragraph, shall be considered to be the property of the
Trust, shall be made available upon request for inspection by the officers,
employees, and auditors of the Trust, and shall be delivered to the Trust
promptly upon request and in any event upon the date of termination of this
Agreement, in the form and manner kept by UMBFS on such date of termination or
such earlier date as may be requested by the Trust. Notwithstanding anything
contained herein to the contrary, UMBFS shall be permitted to maintain copies of
any such records, papers and documents to the extent necessary to comply with
the record keeping requirements of federal and state securities laws, tax laws
and other applicable laws.
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B. UMBFS agrees to keep all records and other information relative to
the Funds' Shareholders confidential, not to use such information other than for
purposes of fulfilling its duties under the Agreement and not to disclose such
information except: (i) when requested to divulge such information by
duly-constituted authorities or court process, or (ii) when requested by the
Trust, a Fund, a Shareholder, the Shareholder's agent or dealer of record with
respect to information concerning an account as to which such Shareholder has
either a legal or beneficial interest, or (iii) to an affiliate, as defined by
Section 248.3(a) of Regulation S-P (17 CFR 248.1-248.30); or (iv) pursuant to
any other exception permitted by Sections 248.14 and 248.15 of Regulation S-P in
the ordinary course of business to carry out the activities covered by the
exception under which UMBFS received the information. In case of any requests or
demands for inspection of the records of the Funds, UMBFS will endeavor to
notify the Trust promptly and to secure instructions from a representative of
the Trust as to such inspection. Records and information which have become known
to the public through no wrongful act of UMBFS or any of its employees, agents
or representatives, and information which was already in the possession of UMBFS
prior to receipt thereof, shall not be subject to this paragraph.
ARTICLE V
REPRESENTATION AND WARRANTIES
5.01 REPRESENTATIONS OF TRUST. The Trust represents and warrants to
UMBFS that:
A. It is a business trust duly organized and existing under the
laws of the Commonwealth of Massachusetts; it is empowered under applicable laws
and by its Declaration of Trust and By-laws to enter into and perform this
Agreement; and all requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
B. The President of the Trust or any person then designated as an
Authorized Person has the authority to appoint additional Authorized Persons, to
limit or revoke the authority of any previously designated Authorized Person,
and to certify to UMBFS the names of such Authorized Persons.
C. It is duly registered as an investment company under the 1940
Act.
D. A registration statement under the Securities Act is currently
effective and will remain effective, and appropriate state securities laws
filings have been made and will continue to be made, with respect to Shares of
the Trust being offered for sale.
E. All outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with the terms
of the Trust's Declaration of Trust and its Prospectus with respect to each
Fund, such Shares shall be validly issued, fully paid and non-assessable.
F. All shareholder tax reporting for periods prior to the
Conversion Date hereof has been completed timely and accurately, including the
distribution of Forms 5498s for the 2002 tax year.
G. As of a date fourteen (14) days prior to the scheduled
Conversion Date and to its knowledge after due inquiry, the Funds, and all
shareholder accounts, are in balance and all accounts reconciled and current,
and (1) there are no outstanding issues relating to transfer agent activities
and
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shareholder and Trust record keeping, including those related to shareholder
accounts and transaction activity, and (2) there are no existing or potential
claims, litigation or demands by shareholders or others relating to the Trust,
or any of the Funds or their officers or Trustees, except as disclosed in
writing to UMBFS as of that date. The Trust will provide a certificate with
respect to this representation fourteen (14) days prior to the scheduled
Conversion Date.
5.02 REPRESENTATIONS OF UMBFS. UMBFS represents and warrants to the
Trust that:
A. It is a corporation duly organized and existing under the laws
of the State of Wisconsin; it is empowered under applicable law and by its
Articles of Incorporation and By-laws to enter into and perform this Agreement;
and all requisite proceedings have been taken to authorize it to enter into and
perform this Agreement.
B. It is duly registered as a transfer agent under Section 17A of
the 1934 Act to the extent required.
C. It has received a copy of each Fund's Prospectus which
describes how sales and redemptions of Shares shall be made.
D. Subject to the provisions of Section 8.06, it has and will
continue to have access to the necessary facilities, equipment and personnel to
perform its obligations under this Agreement.
ARTICLE VI
ADDITIONAL COVENANTS AND AGREEMENTS
6.01 INFORMATION UPDATES. During the term of this Agreement, the Trust
shall have the ongoing obligation to provide UMBFS with the following documents
as soon as they become effective: (i) certified copies of all amendments to its
Declaration of Trust and By-laws made after the date of this Agreement; and (ii)
a copy of each Fund's currently effective Prospectus. For purposes of this
Agreement, UMBFS shall not be deemed to have notice of any information contained
in any such Prospectus until a reasonable time after it is actually received by
UMBFS.
6.02 SHARE QUALIFICATION. The Trust agrees to take or cause to be taken
all requisite steps to qualify the Shares for sale in all states in which the
Shares shall at the time be offered for sale and require qualification. If the
Trust receives notice of any stop order or other proceeding in any such state
affecting such qualification or the sale of Shares, or of any stop order or
other proceeding under the federal securities laws affecting the sale of Shares,
the Trust will give prompt notice thereof to UMBFS.
6.03 COMPLIANCE WITH LAWS. The Trust will comply with all applicable
requirements of the Securities Act, the Exchange Act, the 1940 Act, blue sky
laws, and any other applicable laws, rules and regulations.
6.04 ADDITIONAL DUTIES. The Trust agrees that it shall advise UMBFS at
least 30 days prior to effecting any change in the Prospectus which would
increase or alter the duties and obligations of
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UMBFS hereunder, and shall proceed with such change only if it shall have
received the written consent of UMBFS thereto.
6.05 TRANSFER AGENT SYSTEM. UMBFS shall retain all right, title and
interest in and any and all computer programs, screen formats, report formats,
procedures, data bases, interactive design techniques, derivative works,
inventions, discoveries, patentable or copyrightable matters, concepts,
expertise, trade secrets, trademarks and other related legal rights provided,
developed or (unless provided or developed by the Trust) utilized by UMBFS in
connection with the Services provided by UMBFS to the Trust hereunder.
ARTICLE VII
TRUST INSTRUCTIONS
7.01 AUTHORIZED PERSONS. Upon the execution of this Agreement, the Trust
shall provide UMBFS with a certificate containing the names of the initial
Authorized Persons in a form acceptable to UMBFS. The President of the Trust or
any person then designated as an Authorized Person has the authority to appoint
additional Authorized Persons, to limit or revoke the authority of any
previously designated Authorized Person, and to certify to UMBFS the names of
the Authorized Persons from time to time. The Trust shall provide UMBFS with an
updated certificate evidencing the appointment, removal or change of authority
of any Authorized Person, it being understood UMBFS shall not be held to have
notice of any change in the authority of any Authorized Person until receipt of
written notice thereof from the Trust.
7.02 ACCEPTANCE OF INSTRUCTIONS. UMBFS, its officers, agents or employees
shall accept Instructions given to them by any person representing or acting on
behalf of the Trust only if such representative is an Authorized Person.
7.03 REQUEST FOR INSTRUCTIONS. At any time, UMBFS may request Instructions
from the Trust with respect to any matter arising in connection with this
Agreement. If such Instructions are not received within a reasonable time, then
UMBFS may seek advice from legal counsel for the Trust at the expense of the
Trust, or its own legal counsel at its own expense, and it shall not be liable
for any action taken or not taken by it in good faith in accordance with such
Instructions or in accordance with advice of counsel.
ARTICLE VIII
STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
8.01 STANDARD OF CARE. At all times, UMBFS shall be held to the standard
of care of a reasonable transfer agent in the mutual fund industry, and shall be
liable for any errors caused by the willful misfeasance, bad faith, reckless
disregard or negligence (including the negligent failure or refusal to comply
with the terms of this Agreement by UMBFS) in the performance of its duties
hereunder of UMBFS or its employees, agents or others acting on its behalf.
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8.02 LIMITATION OF LIABILITY. Notwithstanding anything contained in this
Agreement to the contrary, UMBFS shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Trust or the Funds in
connection with the matters to which this Agreement relates, except for a loss
resulting from UMBFS's willful misfeasance, bad faith, reckless disregard or
negligence (including the negligent failure or refusal to comply with the terms
of this Agreement) in the performance of its obligations and duties under this
Agreement. Furthermore, UMBFS shall not be liable for (1) any action taken or
omitted to be taken in accordance with or in reliance upon Instructions received
by UMBFS from an Authorized Officer, or (2) any action taken or omitted to be
taken in accordance with or in reliance upon any data, documents or records
received by UMBFS from the Trust's investment adviser(s), Fund accountant or
Custodian, or (3) any action taken or omission by a Fund, the Trust, the Trust's
investment adviser(s) or any other past or current service provider.
8.03 INDEMNIFICATION BY THE TRUST. The Trust agrees to indemnify and hold
harmless UMBFS, its employees, agents, officers, directors, affiliates and
nominees ("UMBFS Indemnified Parties") from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character which may be asserted against or incurred by any
UMBFS Indemnified Party or for which any UMBFS Indemnified Party may be held
liable (a "UMBFS Claim") arising out of or in any way relating to any of the
following:
(a) any action or omission of UMBFS, except to the extent a UMBFS
Claim resulted from UMBFS's willful misfeasance, bad faith, reckless disregard
or negligence (including its negligent failure or refusal to comply with the
terms of this Agreement) in the performance of its obligations and duties
hereunder;
(b) UMBFS's reliance on, implementation of, or use, without
investigation or verification, of any Instruction received by UMBFS from an
Authorized Officer;
(c) UMBFS's reliance on, implementation of, or use of any data,
documents or records received by UMBFS from the Trust's investment adviser(s),
Fund accountant or Custodian;
(d) UMBFS's acting upon telephone or electronic instructions
relating to the purchase, exchange or redemption of Shares received by UMBFS in
accordance with procedures established by UMBFS and the Trust;
(e) any action taken by or omission of the Trust, the Trust's
investment adviser or any other past or current service provider;
(f) the acceptance, processing and/or negotiation of a fraudulent
payment for the purchase of Shares, unless the result of UMBFS's or its
affiliates' willful misfeasance, bad faith, reckless disregard or negligence in
the performance of its obligations and duties under this Agreement.
(g) subject to the provisions of Section 4.01.A., the offer or
sale of Shares in violation of any requirement under the securities laws or
regulations of any state that such Shares be qualified for sale in such state or
in violation of any stop order or determination or ruling by any state with
respect to the offer or sale of such Shares in such state; or
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(h) the Trust's refusal or failure to comply with the terms of
the Agreement, or any UMBFS Claim that arises out of the Trust's negligence or
misconduct or breach of any representation or warranty of the Trust made herein.
8.04 INDEMNIFICATION BY UMBFS. UMBFS agrees to indemnify and hold
harmless the Trust, its employees, agents, officers, trustees, affiliates and
nominees ("Trust Indemnified Parties") from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character which may be asserted against or incurred by any
Trust Indemnified Party or for which any Trust Indemnified Party may be held
liable (a "Trust Claim") arising out of or in any way relating to any action or
omission of UMBFS resulting from UMBFS's willful misfeasance, bad faith,
reckless disregard or negligence (including its negligent failure or refusal to
comply with the terms of this Agreement) in the performance of its obligations
and duties hereunder, or its breach of any representation or warranty of UMBFS
made herein.
8.05 INDEMNIFICATION PROCEDURES.
(a) UMBFS will notify the Trust promptly after identifying any
situation which it believes presents or appears likely to present a UMBFS Claim
for which the Trust may be required to indemnify or hold UMBFS harmless
hereunder. In such event, the Trust shall have the option to defend UMBFS
against any UMBFS Claim, and, in the event that the Trust so elects, such
defense shall be conducted by counsel chosen by the Trust and approved by UMBFS
in its reasonable discretion. UMBFS shall not confess any UMBFS Claim or make
any compromise in any case in which the Trust will be asked to provide
indemnification, except with the Trust's prior written consent.
(b) The Trust will notify UMBFS promptly after identifying any
situation which it believes presents or appears likely to present a Trust Claim
for which UMBFS may be required to indemnify or hold the Trust harmless
hereunder. In such event, UMBFS shall have the option to defend the Trust
against any Trust Claim, and, in the event that UMBFS so elects, such defense
shall be conducted by counsel chosen by UMBFS and approved by the Trust in its
reasonable discretion. The Trust shall not confess any Trust Claim or make any
compromise in any case in which UMBFS will be asked to provide indemnification,
except with UMBFS's prior written consent.
(c) The obligations of the parties under Sections 8.01, 8.02,
8.03, 8.04 and 8.05 shall survive the termination of this Agreement.
8.06 FORCE MAJEURE. UMBFS assumes no responsibility hereunder, and shall
not be liable, for any damage, loss of data or documents, errors, delay or any
other loss whatsoever caused by events beyond its reasonable control. UMBFS
will, however, take all reasonable steps, including the establishment and
maintenance of back-up facilities that will be made available on an equitable
basis to the Trust, to minimize service interruptions for any period that such
interruption continues beyond UMBFS's control.
8.07 CONSEQUENTIAL DAMAGES. In no event and under no circumstances shall
either party, its affiliates or any of its or their officers, directors or
trustees, agents or employees be liable to the other party, its affiliates or
any of its or their officers, directors or trustees, agents or employees, under
any
00
xxxxxx xx xxxx, xxxxxxxx, xxxxxx liability or other legal or equitable theory
for lost profits, exemplary, punitive, special, indirect or consequential
damages for any act or failure to act under any provision of this Agreement
regardless of whether such damages were foreseeable and even if advised of the
possibility thereof.
8.08 ADDITIONAL LIMITATIONS AND EXCLUSIONS. Notwithstanding any other
provision of this Agreement, UMBFS shall have no duty or obligation under this
Agreement to inquire into, and shall not be liable for:
(a) The legality of the issue or sale of any Shares, the
sufficiency of the amount to be received therefor, or the authority of the
Trust, as the case may be, to request such sale or issuance;
(b) The legality of a transfer of Shares or of a purchase or
redemption of any Shares, the propriety of the amount to be paid therefor, or
the authority of the Trust, as the case may be, to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the Trust,
or the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of
Shares.
ARTICLE IX
TERM AND TERMINATION
9.01 TERM. This Agreement shall become effective with respect to each
Fund listed on Schedule A hereof as of the Conversion Date and, with respect to
each Fund not in existence on that date, on the date an amendment to Schedule A
to this Agreement relating to that Fund is executed. This Agreement shall
continue in effect with respect to each Fund until terminated as provided
herein.
9.02 TERMINATION. Either party may terminate this Agreement at any time
by giving the other party a written notice not less than ninety (90) days prior
to the date the termination is to be effective. In the event such notice is
given by the Trust pursuant to Section 9.02, it shall be accompanied by a copy
of a resolution of the Board of Trustees of the Trust certified by the Secretary
or any Assistant Secretary, electing to terminate this Agreement and designating
the successor transfer agent or transfer agents. In the event such notice is
given by UMBFS, the Trust shall on or before the termination date, deliver to
UMBFS a copy of a resolution of its Board of Trustees certified by the Secretary
or any Assistant Secretary designating a successor transfer agent or transfer
agents. In the absence of such designation by the Trust, the Trust shall be
deemed to be its own transfer agent as of the termination date and UMBFS shall
thereby be relieved of all duties and responsibilities pursuant to this
Agreement. Fees and out-of-pocket expenses incurred by UMBFS, but unpaid by the
Trust upon such termination, shall be immediately due and payable upon and
notwithstanding such termination.
9.03 EFFECT OF TERMINATION. Upon the termination of the Agreement as
provided herein, UMBFS, upon the written request of the Trust, shall deliver the
records of the Trust to the Trust or its successor transfer agent in the form
maintained by UMBFS (to the extent permitted by applicable license agreements)
at the expense of the Trust. The Trust shall be responsible to UMBFS for all
costs and
13
expenses associated with the preparation and delivery of such media and all
reasonable trailing expenses incurred by UMBFS, including, but not limited to:
(a) out-of-pocket expenses; (b) any custom programming requested by the Trust in
connection with the preparation of such media and agreed upon by UMBFS; (c)
transportation of forms and other materials used in connection with the
processing of Trust transactions by UMBFS; and (d) transportation of records and
files in the possession of UMBFS. In addition, UMBFS shall be entitled to such
compensation as the parties may mutually agree for any services other than the
preparation and delivery of such media requested by the Trust and agreed to by
UMBFS in connection with the termination of this Agreement or the liquidation or
merger of the Trust. UMBFS shall not reduce the level of service provided to the
Trust prior to termination following notice of termination by the Trust.
ARTICLE X
MISCELLANEOUS
10.01 CONVERSION FROM NFDS TO UMBFS. To effectuate the conversion of the
transfer agency and dividend disbursement services from NFDS to UMBFS, the Trust
and UMBFS shall jointly develop a conversion plan and work with NFDS to
implement that conversion plan in sufficient time to complete the conversion by
the Conversion Date.
10.02 NOTICES. Any notice required or permitted to be given by either
party to the other under this Agreement shall be in writing and shall be deemed
to have been given when sent by either an overnight delivery service or by
registered or certified mail, postage prepaid, return receipt requested, to the
addresses listed below, or to such other location as either party may from time
to time designate in writing:
If to UMBFS: UMB Fund Services, Inc.
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Executive Vice President
If to the Trust: The Xxxxxx & Rygel Investment Group
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
10.03 AMENDMENTS/ASSIGNMENTS.
A. Except as provided to the contrary herein, this Agreement may
not be amended or modified in any manner except by a written agreement executed
by both parties with the formality of this Agreement.
B. This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns. This Agreement
shall not be assignable by either party without the written consent of the other
party, except that UMBFS may assign this Agreement to an affiliate with advance
written notice to the Trust and except as provided in Section 2.02.
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10.04 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Wisconsin, without regard
to its conflict of law provisions.
10.05 SEVERABILITY. If any part, term or provision of this Agreement is
determined by the courts or any regulatory authority having jurisdiction over
the issue 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.
10.06 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
10.07 NON-EXCLUSIVITY; OTHER AGREEMENTS. The services of UMBFS hereunder
are not deemed exclusive and UMBFS shall be free to render similar and other
services to others. Except as specifically provided herein, this Agreement does
not in any way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by any party hereunder shall not affect any
rights or obligations of any other party hereunder.
10.08 CAPTIONS. The captions in the Agreement are included for
convenience of reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
10.09 TRUST LIMITATIONS. This Agreement is executed by the Trust with
respect to each of the Funds and the obligations hereunder are not binding upon
any of the trustees, officers or shareholders of the Trust individually but are
binding only upon the Fund to which such obligations pertain and the assets and
property of such Fund. All obligations of the Trust under this Agreement shall
apply only on a Fund-by-Fund basis, and the assets of one Fund shall not be
liable for the obligations of another Fund. The Fund's Declaration of Trust is
on file with the Commonwealth of Massachusetts.
10.10 INFORMATION AND INSTRUCTIONS. The Trustees of the Trust shall
cause the officers, trustees, investment adviser(s) and sub-advisers, legal
counsel, independent accountants, custodian and other service providers and
agents, past or present, for the Funds to cooperate with UMBFS and to provide
UMBFS with such information, documents and advice as reasonably necessary and/or
appropriate or as requested by UMBFS, in order to enable UMBFS to perform its
duties hereunder. In connection with its duties hereunder, UMBFS shall be
entitled to rely upon any and all data, documents or records provided to UMBFS
by the investment adviser(s), Fund accountant or Custodian. Fees charged by such
persons shall be an expense of the Trust. UMBFS shall not be held to have notice
of any change of authority of any officer, agent, representative or employee of
the Trust, investment adviser(s)
15
or service provider until receipt of written notice thereof from the Trust. As
used in this Agreement, the term "investment adviser" includes all sub-advisers
or persons performing similar services.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
UMB FUND SERVICES, INC. THE XXXXXX & RYGEL INVESTMENT GROUP
By: By:
------------------------------- --------------------------------------
(Signature) (Signature)
------------------------------- --------------------------------------
(Name) (Name)
------------------------------- --------------------------------------
(Title) (Title)
------------------------------- --------------------------------------
(Date Signed) (Date Signed)
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SCHEDULE A
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
THE XXXXXX & RYGEL INVESTMENT GROUP
AND
UMB FUND SERVICES, INC.
NAME OF FUNDS
XXXXXX LIMITED MATURITY FUND
PAYDEN SHORT BOND FUND
XXXXXX U.S. GOVERNMENT FUND
XXXXXX GNMA FUND
XXXXXX CORE BOND FUND
PAYDEN OPPORTUNITY BOND FUND
XXXXXX HIGH INCOME FUND
BUNKER HILL MONEY MARKET FUND
PAYDEN SHORT DURATION TAX EXEMPT FUND
PAYDEN TAX EXEMPT BOND FUND
PAYDEN CALIFORNIA MUNICIPAL INCOME FUND
PAYDEN GROWTH & INCOME FUND
PAYDEN MARKET RETURN FUND
PAYDEN U.S. GROWTH LEADERS FUND
PAYDEN SMALL CAP LEADERS FUND
XXXXXX GLOBAL FIXED INCOME FUND
PAYDEN GLOBAL SHORT BOND FUND
XXXXXX EMERGING MARKETS BOND FUND
17
SCHEDULE B
TO THE
TRANSFER AGENCY AGREEMENT
BY AND BETWEEN
THE XXXXXX & RYGEL INVESTMENT GROUP
AND
UMB FUND SERVICES, INC.
SERVICE SCHEDULE
- Set up and maintain shareholder accounts and records, including IRAs and
other retirement accounts
- Store account documents electronically
- Receive and respond to investor account inquiries by telephone or mail, or by
e-mail if the response does not require the reference to specific shareholder
account information
- Process purchase and redemption orders, transfers, and exchanges, including
automatic purchases and redemptions via postal mail, telephone and personal
delivery, provided payment for shares is in the form of a check, wire
transfer or requested Automated Clearing House transfer, or such other means
as the parties shall mutually agree
- Process dividend payments by check, wire or ACH, or reinvest dividends
- Issue daily transaction confirmations and monthly or quarterly statements
- Mail prospectus, annual and semiannual reports, and other shareholder
communications to existing shareholders
- File IRS Forms 1099, 5498, 1042, 1042-S and 945 with shareholders and/or the
IRS
- Handle load and multi-class processing, including rights of accumulation and
purchases by letters of intent
- Calculate 12b-1 plan fees
- Provide standards to structure forms and applications for efficient
processing
- UMBISG 4.prompt services (per fund group)
- Tier I and II -- Basic Service
- Personal follow-up calls to prospects who return incomplete applications
- Comprehensive clerical confirmation statements for maintenance transactions
18
- UMBISG 0.xxx(R) services, UMBFS's array of Internet services, including
Adviser Services, RIA/Broker Services, Shareholder Services, NAV Services and
email services.
- Average cost calculations and cost basis statements
- Access to UMBFS's Tax and Retirement Group to answer questions and coordinate
retirement plan options
- Follow up on IRAs, soliciting beneficiary and other information and sending
required minimum distribution reminder letters
- Give dealers access through NSCC's Fund/SERV and Networking
The foregoing services do not include correcting, verifying or addressing at any
time any actions or inactions by any Fund or by any service provider prior to
the Conversion Date. To the extent UMBFS agrees to take such actions, those
actions taken shall be deemed part of this service schedule.
OPTIONAL SERVICES
The Funds may contract with UMBFS to provide one or more of the following
optional services. Additional fees apply.
- Shareholder "welcome" packages with initial confirmation
- Money market funds for short-term investment or exchanges
- Weekend and holiday shareholder services
- Postal Clean Up
- Dedicated service representatives
- Customized reorder form tracking
- Customized forms and applications
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SCHEDULE C
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
THE XXXXXX & RYGEL INVESTMENT GROUP
AND
UMB FUND SERVICES, INC.
20
OUT-OF-POCKET EXPENSES
Out-of-pocket expenses include, but are not limited to, statement paper, check
stock, envelopes, tax forms, retirement plan documents, the creation and
delivery of custom statements or statement files, postage and direct delivery
charges, telephone and long distance charges, P.O. box rental, toll-free number
and bank account service fees.
PROGRAMMING FEES
Additional fees of $150 per hour or as quoted may apply for programming to meet
specialized servicing requirements, to create custom reports, the set-up and
creation of custom statements or to develop client internet products as desired.
Fees for services not contemplated by this schedule will be negotiated on a
case-by-case basis.
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SCHEDULE D
TO THE
TRANSFER AGENT AGREEMENT
BY AND BETWEEN
THE XXXXXX & RYGEL INVESTMENT GROUP
AND
UMB FUND SERVICES, INC.
RECORDS MAINTAINED BY UMBFS
Account applications
Canceled certificates plus stock powers and supporting documents
Checks including check registers, reconciliation records, any adjustment records
and tax withholding documentation
Indemnity bonds for replacement of lost or missing stock certificates and checks
Liquidation, redemption, withdrawal and transfer requests including stock
powers, signature guarantees and any supporting documentation
Shareholder correspondence
Shareholder holding and transaction records
Share transaction history of the Funds
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