TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of September,
2002, by and between Optimum Q(TM) Funds, a Delaware business trust (the
"Trust") and U.S. Bancorp Fund Services, LLC, a Wisconsin limited liability
company ("USBFS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, USBFS is, among other things, in the business of administering
transfer and dividend disbursing agent functions for the benefit of its
customers; and
WHEREAS, the Trust desires to retain USBFS to provide transfer and dividend
disbursing agent services to each series of the Trust listed on Exhibit A hereto
(as amended from time to time) (each a "Fund", collectively the "Funds").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, 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:
1. Appointment of USBFS as Transfer Agent
The Trust hereby appoints USBFS as transfer agent of the Trust on the
terms and conditions set forth in this Agreement, and USBFS hereby
accepts such appointment and agrees to perform the services and duties
set forth in this Agreement.
2. Services and Duties of USBFS
USBFS shall perform all of the customary services of a transfer agent
and dividend disbursing agent for the Funds, 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 Trust'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 Fund shareholders' accounts at financial institutions
and arrange for the exchange of shares for shares of other
eligible investment companies, when permitted by the Fund's
current prospectus ("Prospectus").
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Trust's
custodian.
E. Pay monies upon receipt from the Trust'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
both within the same family of funds and with a First American
Money Market Fund, if applicable.
H. Prepare and transmit payments for dividends and distributions
declared by the Trust with respect to 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 (e.g., systematic withdrawal,
automatic investment, dividend reinvestment).
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, redemptions and other confirmable transactions
as agreed upon with the Trust.
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 Trust, all as required by applicable
federal tax laws and regulations.
P. Provide a Blue Sky system that will enable the Trust to monitor
the total number of shares of the Fund sold in each state. In
addition, the Trust or its agent, including USBFS, shall identify
to USBFS in writing those transactions and assets to be treated
as exempt from the Blue Sky reporting for each state. The
responsibility of USBFS for the Trust'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
or its agent.
Q. Answer correspondence from shareholders, securities brokers and
others relating to USBFS's duties hereunder and such other
correspondence as may from time to time be mutually agreed upon
between USBFS and the Trust.
R. Reimburse the Fund each month for all material losses resulting
from "as of" processing errors for which USBFS is responsible in
accordance with the "as of" processing guidelines set forth on
Exhibit C hereto.
3. Compensation
USBFS shall be compensated for providing the services set forth in
this Agreement in accordance with the fee schedule set forth on
Exhibit B hereto (as amended from time to time). The Trust shall pay
all fees and reimbursable expenses within thirty (30) calendar days
following receipt of the billing notice, except for any fee or expense
subject to a good faith dispute. The Trust shall notify USBFS in
writing within thirty (30) calendar days following receipt of each
invoice if the Trust is disputing any amounts in good faith. The Trust
shall settle such disputed amounts within ten (10) calendar days of
the day on which the parties agree to the amount to be paid. With the
exception of any fee or expense the Trust is disputing in good faith
as set forth above, unpaid invoices shall accrue a finance charge of
one and one-half percent (1 1/2%) per month, after the due date.
Notwithstanding anything to the contrary, amounts owed by the Trust to
USBFS shall only be paid out of assets and property of the particular
Fund involved.
4. Indemnification; Limitation of Liability
A. USBFS shall exercise reasonable care in the performance of its
duties under this Agreement. USBFS shall not be liable for any
error of judgment or mistake of law or for any loss suffered by
the Trust in connection with matters to which this Agreement
relates, including losses resulting from mechanical breakdowns or
the failure of communication or power supplies beyond USBFS's
control, except a loss arising out of or relating to USBFS'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 USBFS
has exercised reasonable care in the performance of its duties
under this Agreement, the Trust shall indemnify and hold harmless
USBFS from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) which USBFS may sustain or incur or
which may be asserted against USBFS 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 arising out of or relating to
USBFS'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
USBFS by any duly authorized officer of the Trust, such duly
authorized officer to be included in a list of authorized
officers furnished to USBFS and as amended from time to time in
writing by resolution of the Board of Trustees of the Trust (the
"Board of Trustees" or "Trustees").
USBFS shall indemnify and hold the Trust harmless from and
against any and all claims, demands, losses, expenses, and
liabilities of any and every nature (including reasonable
attorneys' fees) that the Trust may sustain or incur or that may
be asserted against the Trust by any person arising out of any
action taken or omitted to be taken by USBFS as a result of
USBFS'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, USBFS shall
take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond USBFS's
control. USBFS 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 USBFS. USBFS 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 USBFS's premises and operating capabilities
at any time during regular business hours of USBFS, upon
reasonable notice to USBFS.
Notwithstanding the above, USBFS reserves the right to reprocess
and correct administrative errors at its own expense.
B. 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
that 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 that 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.
5. Proprietary and Confidential Information
USBFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of
the Trust all records and other information relative to the Trust 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 Trust, which approval shall not be unreasonably withheld and
may not be withheld where USBFS 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 Trust.
Further, USBFS 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,
USBFS 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.
6. Anti-Money Laundering Program
The Trust acknowledges that it has had an opportunity to review,
consider and comment upon the procedures provided by USBFS describing
various tools designed to promote the detection and reporting of
potential money laundering activity by monitoring certain aspects of
shareholder activity (the "Monitoring Procedures") as well as written
procedures for verifying a customer's identity (the "Customer
Identification Procedures"), together referred to as the "Procedures,"
and the Trust has determined that the Procedures, as part of the
Trust's overall anti-money laundering program, are reasonably designed
to prevent the Fund from being used for money laundering or the
financing of terrorist activities and to achieve compliance with the
applicable provision of the Bank Secrecy Act and the implementing
regulations thereunder.
Based on this determination, the Trust hereby instructs and directs
USBFS to implement the Procedures on the Trust's behalf, as such may
be amended or revised from time to time.
It is contemplated that these Procedures will be amended from time to
time by the parties as additional regulations are adopted and/or
regulatory guidance is provided relating to the Trust's anti-money
laundering responsibilities.
USBFS agrees to provide to the Trust:
(a) Prompt written notification of any transaction or combination of
transactions that USBFS believes, based on the Procedures,
evidence money laundering activity in connection with the Trust
or any shareholder of the Fund;
(b) Prompt written notification of any customer(s) that USBFS
reasonably believes, based upon the Procedures, to be engaged in
money laundering activity, provided that the Trust agrees not to
communicate this information to the customer;
(c) Any reports received by USBFS from any government agency or
applicable industry self-regulatory organization pertaining to
USBFS's anti-money laundering monitoring on behalf of the Trust;
(d) Prompt written notification of any action taken in response to
anti-money laundering violations as described in (a), (b) or (c);
and
(e) An annual report of its monitoring and customer identification
activities on behalf of the Trust. USBFS shall provide such other
reports on the monitoring and customer identification activities
conducted at the direction of the Trust as may be agreed to from
time to time by USBFS and the Trust.
The Trust hereby directs, and USBFS acknowledges, that USBFS shall (i)
permit federal regulators access to such information and records
maintained by USBFS and relating to USBFS's implementation of the
Procedures on behalf of the Trust, as they may request, and (ii)
permit such federal regulators to inspect USBFS's implementation of
the Procedures on behalf of the Trust.
7. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written
above and will continue in effect for a period of three years, but may
be terminated without penalty by the Trust within the first year upon
90 days notice in the event of a determination by the Trust's Board of
Trustees to liquidate or reorganize the Trust. Subsequent to the
initial three-year term, this 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. However, this Agreement may be amended by mutual written
consent of the parties.
8. Records
USBFS 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 1940 Act and the rules thereunder. USBFS
agrees that all such records prepared or maintained by USBFS relating
to the services to be performed by USBFS hereunder are the property of
the Trust and will be preserved, maintained, and made available in
accordance with such applicable sections and rules of the 1940 Act and
will be promptly surrendered to the Trust on and in accordance with
its request. Further, federal examiners shall have access to
information and records relating to anti-money laundering activities
performed by USBFS hereunder and USBFS consents to any inspection
authorized by law or regulation in connection thereof.
9. Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin, without regard to conflicts of law principles. To
the extent that the applicable laws of the State of Wisconsin, or any
of the provisions herein, conflict with the applicable provisions of
the 1940 Act, the latter shall control, and nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or
order of the Securities and Exchange Commission thereunder.
10. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of USBFS's duties or responsibilities hereunder is designated by the
Trust by written notice to USBFS, USBFS will promptly, upon such
termination and at the expense of the Trust, transfer to such
successor all relevant books, records, correspondence, and other data
established or maintained by USBFS under this Agreement in a form
reasonably acceptable to the Trust (if such form differs from the form
in which USBFS has maintained, the Trust 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 USBFS's personnel in the
establishment of books, records, and other data by such successor.
11. Data Necessary to Perform Services
The Trust or its agent, which may be USBFS, shall furnish to USBFS the
data necessary to perform the services described herein at such times
and in such form as mutually agreed upon. If USBFS is also acting in
another capacity for the Trust, nothing herein shall be deemed to
relieve USBFS of any of its obligations in such capacity.
12. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party.
13. Notices
Any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given on
the date delivered personally or by courier service, or three (3) days
after sent by registered or certified mail, postage prepaid, return
receipt requested, or on the date sent and confirmed received by
facsimile transmission to the other party's address set forth below:
Notice to USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
Mr. Xxxx Xxxxxxx
Optimum Q(TM) Funds
MDT Advisers
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
OPTIMUM Q(TM)FUNDS U.S. BANCORP FUND SERVICES, LLC
By: /s/ X. Xxxxxx Xxxxxx By: /s/ Xxx Xxxxxxx
----------------------- -------------------------
X. Xxxxxx Xxxxxx Xxx Xxxxxxx
Title: President Title: President
