EXHIBIT 24(b)(9)
FORM OF TRANSFER AGENCY AGREEMENT
TRANSFER AGENCY
AND SERVICE AGREEMENT
AGREEMENT made as of the day of , 1997 by
and between ORCHARD SERIES FUND, a Delaware business trust, having
its principal office and place of business at 0000 Xxxx Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Trust"), and FINANCIAL
ADMINISTRATIVE SERVICES CORPORATION, a Colorado corporation, having
its principal office and place of business at 0000 Xxxx Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, (the "Agent").
WHEREAS, the Trust desires to appoint the Agent as its
transfer agent, dividend disbursing agent and shareholder servicing
agent in connection with certain other activities, and the Agent
desires to accept such appointment;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article I TERMS OF APPOINTMENT; DUTIES OF THE AGENT
1.01. Subject to the terms and conditions set forth in
this Agreement, the Trust hereby employs and appoints the Agent to
act as, and the Agent agrees to act as, the transfer agent,
registrar and dividend disbursing agent for the Trust and all
series thereof set out in the currently effective prospectus and
statement of additional information ("Prospectus") of the Trust,
including without limitation any periodic investment plan or
periodic withdrawal program.
1.02. In accordance with procedures established from time
to time by agreement between the Trust and the Agent, the Agent
shall:
a. Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation therefor to the Custodian of the Trust (the
"Custodian");
b. Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate
Shareholder account;
c. Receive for acceptance redemption requests and
redemption directions and deliver the appropriate
documentation therefor to the Custodian;
d. At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to any
redemption, pay over or cause to be paid over in the
appropriate manner such monies as instructed by the redeeming
Shareholders;
e. Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
f. Prepare and transmit payments for dividends and
distributions declared by the Trust;
g. Calculate any sales charges payable by a Shareholder
on purchases and/or redemptions of Shares of the Trust as such
charges may be reflected in the Prospectus;
h. Maintain records of account for and advise the Trust
and its Shareholders as to the foregoing; and
i. Record the issuance of Shares of the Trust and
maintain a record of the total number of Shares of the Trust
which are based upon data provided to it by the Trust, issued
and outstanding. When recording the issuance of Shares, the
Agent shall have no obligation to take cognizance of any Blue
Sky laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Trust and
otherwise comply with Rules 17Ad 1-13 under the Securities
Exchange Act of 1934 (the "1934 Act").
1.03. In addition to and not in lieu of the services set
forth in Section 1.02, the Agent shall: (i) perform all of the
customary services of a transfer agent, dividend disbursing agent
and registrar, including but not limited to, maintaining all
Shareholder accounts, preparing Shareholder meeting lists,
withholding taxes on non-resident alien accounts, and (ii) provide
a system which will enable the Trust to monitor the total number of
Shares sold in each State or other jurisdiction.
1.04. The Trust shall (i) identify to the Agent in writing
those transactions and assets to be treated as exempt from Blue Sky
reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The
responsibility of the Agent for the Trust's registration status
under the Blue Sky or securities laws of any State or other
jurisdiction is solely limited to the initial establishment of
transactions subject to Blue Sky compliance by the Trust and the
reporting of such transactions to the Trust as provided above and
as agreed from time to time by the Trust and the Agent.
1.05. The Agent may also provide such additional services
and functions not specifically described herein as may be mutually
agreed between the Agent and the Trust and set forth in Schedule A
hereto. Procedures applicable to certain of these services may be
established from time to time by agreement between the Trust and
the Agent.
Article II FEES AND EXPENSES
2.01. For performance by the Agent pursuant to this
Agreement, the Trust shall to pay the Agent those fees and expenses
as agreed to by the parties from time to time.
Article III REPRESENTATIONS AND WARRANTIES OF THE AGENT
The Agent represents and warrants to the Trust that:
3.01. It is a corporation duly organized and existing and
in good standing under the laws of Colorado and it is duly
qualified to carry on its business in Colorado.
3.02. It is and will remain registered with the U.S.
Securities and Exchange Commission ("SEC") as a transfer agent
pursuant to the requirements of Section 17A of the 0000 Xxx.
3.03. It is empowered under applicable laws and by its
Articles of Incorporation and Bylaws to enter into and perform this
Agreement.
3.04. All requisite corporate proceedings have been taken
to authorize it to enter into and perform this Agreement.
3.05. It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties
and obligations under this Agreement.
Article IV REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to the Agent that:
4.01. It is a Delaware business trust duly organized and
existing and in good standing under the laws of Delaware.
4.02. It is empowered under applicable laws and by its
Declaration of Trust and Bylaws to enter into and perform this
Agreement.
4.03. All corporate proceedings required by said
Declaration of Trust and Bylaws have been taken to authorize it to
enter into and perform this Agreement.
4.04. It is an investment company registered with the SEC
under the Investment Company Act of 1940, as amended (the "1940
Act").
4.05. A registration statement under the Securities Act of
1933 (the "1933 Act") is currently 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 Trust being offered for sale.
Article V DUTY OF CARE AND INDEMNIFICATION
5.01. The Agent shall not be responsible for, and the
Trust shall indemnify and hold the Agent harmless from and against,
any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to:
a. All actions of the Agent or its agents or
subcontractors required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and without
negligence or willful misconduct.
b. The Trust's refusal or failure to comply with the
terms of this Agreement, or which arise out of the Trust's lack of
good faith, negligence or willful misconduct or which arise out of
the breach of any representation or warranty of the Trust
hereunder.
c. The reliance on or use by the Agent or its agents or
subcontractors of information, records and documents which (i) are
received by the Agent or its agents or subcontractors and furnished
to it by or on behalf of the Trust, and (ii) have been prepared
and/or maintained by the Trust or any other person or firm on
behalf of the Trust.
d. The reliance on, or the carrying out by the Agent or
its agents or subcontractors of, any instructions or requests of
the Trust.
e. The offer or sale of Shares in violation of any
requirement under the federal securities laws or regulations or the
securities or Blue Sky laws of any State or other jurisdiction that
such Shares be registered in such State or other jurisdiction or in
violation of any stop order or other determination or ruling by any
federal agency or any State or other jurisdiction with respect to
the offer or sale of such Shares in such State or other
jurisdiction.
5.02. The Agent shall indemnify and hold the Trust
harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out
of or attributable to any action or failure or omission to act by
the Agent as a result of the Agent' lack of good faith, negligence
or willful misconduct.
5.03. At any time the Agent may apply to any officer of
the Trust for instructions, and may consult with legal counsel,
with respect to any matter arising in connection with the services
to be performed by the Agent under this Agreement, and the Agent
and its agents or subcontractors shall not be liable and shall be
indemnified by the Trust for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such
counsel. The Agent, its agents and subcontractors shall be
protected and indemnified in acting upon any paper or document
furnished by or on behalf of the Trust, reasonably believed to be
genuine and to have been signed by the proper person or persons, or
upon any instruction, information, data, records or documents
provided to the Agent or its agents or subcontractors by machine
readable input, telex, CRT data entry or other similar means
authorized by the Trust, and shall not be held to have notice of
any change of authority of any person, until receipt of written
notice thereof from the Trust. The Agent, its agents and
subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to
bear the proper manual or facsimile signature of the officers of
the Trust, and the proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
5.04. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of
God, strikes, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond
its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or
otherwise from such causes.
5.05. Neither party to this Agreement shall be liable to
the other party for consequential damages under any provision of
this Agreement or for any act or failure to act hereunder.
5.06. In order that the indemnification provisions
contained in this Article V shall apply, upon the assertion of a
claim for which either party may be required to indemnify the
other, the party seeking indemnification shall promptly notify the
other party of such assertion, and shall keep the other party
advised with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense
of such claim. The party seeking indemnification shall in no case
confess any claim or make any compromise in any case in which the
other party may be required to indemnify it except with the other
party's prior written consent.
Article VI DOCUMENTS AND COVENANTS OF THE TRUST
AND THE AGENT
6.01. The Trust shall promptly furnish to the Agent the
following:
a. The current registration statements and any
amendments and supplements thereto filed with the SEC pursuant to
the requirements of the 1933 Act and the 1940 Act;
b. All account application forms or other documents
relating to Shareholder accounts and/or relating to any plan
program or service offered or to be offered by the Trust; and
c. Such other certificates, documents or opinions as the
Agent deems to be appropriate or necessary for the proper
performance of its duties.
6.02. The Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Trust for
safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such certificates, forms and
devices.
6.03. The Agent shall prepare and keep records relating to
the services to be performed hereunder, in the form and manner as
it may deem advisable. To the extent required by Section 31 of the
1940 Act, and the Rules and Regulations 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 31 of the 1940 Act,
and the Rules and Regulations thereunder, and will be surrendered
promptly to the Trust on and in accordance with its request.
6.04. The Agent and the Trust agree that all books,
records, information and data pertaining to the business of the
other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain
confidential and shall not be voluntarily disclosed to any other
person except as may be required by law or with the prior consent
of the Agent and the Trust.
6.05. In case of any requests or demands for the
inspection of the Shareholder records of the Trust, the Agent will
endeavor to notify the Trust and to secure instructions from an
authorized officer of the Trust as to such inspection. The Agent
reserves the right, however, to exhibit the Shareholder records to
any person whenever it is advised by its counsel that it may be
held liable for the failure to exhibit the Shareholder records to
such person.
Article VII TERMINATION OF AGREEMENT
7.01. This Agreement may be terminated by either party
upon one hundred twenty (120) days written notice to the other.
7.02. Should the Trust exercise its right to terminate,
all out-of-pocket expenses associated with the movement of records
and other materials will be borne by the Trust. Additionally, the
Agent reserves the right to charge for any other reasonable fees
and expenses associated with such termination.
Article VIII ASSIGNMENT
8.01. Except as provided in Section 8.03 below, neither
this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other
party.
8.02. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors
and assigns.
8.03. The Agent may, with prior written consent by the
Trust, subcontract, in whole or in part, for the performance of its
obligations and duties hereunder with any person or entity
including but not limited to a registered broker-dealer which is a
subsidiary or affiliate of Agent duly registered as a broker-dealer
and/or a transfer agent pursuant to the 1934 Act; provided,
however, that the Agent shall be as fully responsible to the Trust
for the acts and omissions of any agent or subcontractor as it is
for its own acts and omissions.
Article IX AFFILIATIONS
9.01. The Agent may now or hereafter, without the consent
of or notice to the Trust, function as transfer agent and/or
shareholder servicing agent for any other investment company
registered with the SEC under the 1940 Act.
9.02. It is understood and agreed that the directors,
officers, employees, agents and Shareholders of the Trust, and the
directors, officers, employees, agents and shareholders of the
Trust's investment adviser and/or distributor, are or may be
interested in the Agent as directors, officers, employees, agents,
shareholders or otherwise, and that the directors, officers,
employees, agents or shareholders of the Agent may be interested in
the Trust as directors, officers, employees, agents, Shareholders
or otherwise, or in the investment adviser and/or distributor as
officers, directors, employees, agents, shareholders or otherwise.
Article X AMENDMENT
10.01. This Agreement may be amended or modified by a
written agreement executed by both parties and authorized or
approved by a resolution of the Board of Directors of the Trust.
Article XI APPLICABLE LAW
11.01. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the
State of Colorado.
Article XII MISCELLANEOUS
12.01. In the event that any check or other order for
payment of money on the account of any Shareholder or new investor
is returned unpaid for any reason, the Agent will (a) give prompt
notification to the Trust's distributor ("Distributor") of such
non-payment; and (b) take such other action, including imposition
of a reasonable processing or handling fee, as the Agent may, in
its sole discretion, deem appropriate or as the Trust and the
Distributor may instruct the Agent.
12.02. Any notice or other instrument authorized or
required by this Agreement to be given in writing to the Trust or
to the Agent shall be sufficiently given if addressed to that party
and received by it at its office set forth below or at such other
place as it may from time to time designate in writing.
To the Trust:
Orchard Series Fund
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
To the Agent:
Financial Administrative Services Corporation
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
12.03. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their names and on their behalf under
their seals by and through their duly authorized officers, as of
the day and year first above written.
ORCHARD SERIES FUND
By:
Name:
Title:
ATTEST:
Name:
Title:
FINANCIAL ADMINISTRATIVE
SERVICES CORPORATION
By:
Name:
Title:
ATTEST:
Name:
Title:
SCHEDULE A
The services to be performed by the Transfer Agent or its agent
shall be as follows:
A. Daily Records
Maintain daily the following information with respect to each
Shareholder account received:
Name and Address (Zip Code)
Class of Shares
Taxpayer Identification Number
Beneficial Owner Code; i.e., male, female, joint tenant,
etc.
Dividend Code (reinvestment)
Number of Shares Held
B. Other Daily Activity
Answer written inquiries relating to Shareholder accounts (matters
relating to portfolio management, distribution of shares and other
management policy questions will be referred to the Trust).
Process dividends and disbursements into established Shareholder
accounts in accordance with written instruction by Shareholder.
Upon receipt of proper instructions and all required documentation,
process requests for repurchase of Shares.
Identify redemption requests made with respect to accounts in which
shares have been purchased within an agreed-upon period of time for
determining whether good funds have been collected with respect to
such purchase and process as agreed by the Transfer Agent in
accordance with written instructions of the Trust.
Examine and process all transfers of shares, ensuring that all
transfer requirements and legal documents have been supplied.
Issue and mail replacement checks.
Open new accounts and maintain records or exchanges between
accounts.
C. Dividend Activity
Calculate and process share dividends and distributions as
instructed by the Trust.
Compute, prepare and mail all necessary reports to Shareholders or
various authorities as requested by the Trust.
D. Meetings of Shareholders
Cause to be mailed proxy and related material for all meetings of
Shareholders. Tabulate returned proxies.
Prepare and submit to the Trust an Affidavit of Mailing.
At the time of the meeting, furnish a certified list of
Shareholders, hard copy, microfilm or microfiche, and, if requested
by the Fund, Inspection of Election.
E. Periodic Activities
Cause to be mailed reports, prospectuses, and any other enclosures
requested by the Trust.
