Exhibit 9(c)
TRANSFER AGENCY AND SERVICE AGREEMENT
between
MONTEREY MUTUAL FUND
and
AMERICAN DATA SERVICES, INC.
INDEX
1. TERMS OF APPOINTMENT; DUTIES OF ADS . . . . . . . . . . . . . . . . 3
2. FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. REPRESENTATIONS AND WARRANTIES OF ADS . . . . . . . . . . . . . . . 4
4. REPRESENTATIONS AND WARRANTIES OF THE FUND . . . . . . . . . . . . 5
5. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. COVENANTS OF THE FUND AND ADS . . . . . . . . . . . . . . . . . . . 6
7. TERMINATION OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . 7
8. ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. NEW YORK LAWS TO APPLY . . . . . . . . . . . . . . . . . . . . . . 8
11. MERGER OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 8
12. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
FEE SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) ACCOUNT SERVICE FEE: . . . . . . . . . . . . . . . . . . . . . . . 9
(b) XXX PLAN FEES: . . . . . . . . . . . . . . . . . . . . . . . . . . 10
FEE INCREASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(c) EXPENSES: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(d) SPECIAL REPORTS: . . . . . . . . . . . . . . . . . . . . . . . . . 11
(e) CONVERSION CHARGE: . . . . . . . . . . . . . . . . . . . . . . . . 11
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made the 1st. day of April, 1997 by and between The
MONTEREY MUTUAL FUND, a Massachusetts business trust (the "Fund") and
AMERICAN DATA SERVICES, INC. a New York corporation ("ADS").
WHEREAS, the Fund desires to appoint ADS as its transfer agent,
dividend disbursing agent and agent in connection with certain other
activities, and ADS desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF ADS
1.01 Subject to the terms and conditions set forth in this agreement,
the Fund hereby employs and appoints ADS to act as, and ADS agrees to act
as its transfer agent for the Fund's authorized and issued shares of its
common stock, ("Shares"), dividend disbursing agent and agent in
connection with any accumulation, open-account or similar plans provided
to the shareholders of the fund ("Shareholders") set out in the currently
effective prospectus and statement of additional information
("prospectus") of the Fund.
1.02 ADS agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and ADS, ADS shall:
(i) Receive for acceptance, orders for the purchase of Shares,
and promptly deliver payment and appropriate documentation therefore to
the Custodian of the Fund authorized by the Board of Trustees of the Fund
(the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number
of Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation therefore to the
Custodian;
(iv) 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;
(v) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and
distributions declared by the Fund;
(vii) Maintain records of account for and advise the Fund and
its Shareholders as to the foregoing; and
(viii) Record the issuance of shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number of shares of
the Fund which are authorized, based upon data provided to it by the Fund,
and issued and outstanding. ADS shall also provide the Fund on a regular
basis with the total number of shares which are authorized and issued and
outstanding and shall have no obligation, when recording the issuance of
shares, to monitor the issuance of such shares or to take cognizance of
any laws relating to the issue or sale of such shares, which functions
shall be the sole responsibility of the Fund.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a), ADS shall:
(i) Perform all of the customary services of a transfer agent,
dividend disbursing agent, including but not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing
proxies, receiving and tabulating proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding taxes on U.S. resident
and non-resident alien accounts, preparing and filing U.S. Treasury
Department Forms 1099 and other appropriate forms required with respect to
dividends and distributions by federal authorities for all Shareholders,
preparing and mailing confirmation forms and statements of account to
Shareholders for all purchases redemptions of Shares and other confirmable
transactions in Shareholder accounts, preparing and mailing activity
statements for Shareholders, and providing Shareholder account information
and (ii) provide a system and reports which will enable the Fund to
monitor the total number of Shares sold in each State.
(c) In addition, the Fund shall (i) identify to ADS in writing those
transactions and shares to be treated as exempt from blue sky reporting
for each State and (ii) verify the establishment of such transactions for
each state on the system prior to activation and thereafter monitor the
daily activity for each State as provided by ADS. The responsibility of
ADS for the Fund's blue sky State registration status is solely limited to
the initial establishment of transactions subject to blue sky compliance
by the Fund and the reporting of such transactions to the Fund as provided
above.
Procedures applicable to certain of these services may be established
from time to time by agreement between the Fund and ADS.
2. FEES AND EXPENSES
2.01 For performance by ADS pursuant to this Agreement, the Fund
agrees to pay ADS an annual maintenance fee for each Shareholder account
and transaction fees for each portfolio or class of shares serviced under
this Agreement (See Schedule A) as set out in the fee schedule attached
hereto. Such fees and out-of pocket expenses and advances identified
under Section 2.02 below may be changed from time to time subject to
mutual written agreement between the Fund and ADS.
2.02 In addition to the fee paid under Section 2.01 above, the Fund
agrees to reimburse ADS for out-of-pocket expenses or advances incurred by
ADS for the items set out in the fee schedule attached hereto. In
addition, any other expenses incurred by ADS at the request or with the
consent of the Fund, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable expenses within
five days following the receipt of the respective billing notice. Postage
for mailing of dividends, proxies, Fund reports and other mailings to all
shareholder accounts shall be advanced to ADS by the Fund at least seven
(7) days prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF ADS
ADS represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in good
standing under the laws of The State of New York.
3.02 It is duly qualified to carry on its business in The State of
New York.
3.03 It is empowered under applicable laws and by its charter and by-
laws 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.
3.06 ADS is duly registered as a transfer agent under the Securities
Act of 1934 and shall continue to be registered throughout the remainder
of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to ADS that;
4.01 It is a business trust duly organized and existing and in good
standing under the laws of Massachusetts.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of
Incorporation and By-Laws have been taken to authorize it to enter into
and perform this Agreement.
4.04 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is
currently or will become effective and will remain effective, and
appropriate state securities law filings as required, have been or will be
made and will continue to be made, with respect to all Shares of the Fund
being offered for sale.
5. INDEMNIFICATION
5.01 ADS shall not be responsible for, and the Fund shall indemnify
and hold ADS 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 ADS or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in
good faith and without gross negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack good faith, gross
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund hereunder.
(c) The reliance on or use by ADS or its agents or subcontractors of
information, records and documents which (i) are received by ADS or its
agents or subcontractors and furnished to it by or on behalf of the Fund,
and (ii) have been prepared and/or maintained by the Fund or any other
person or firm on behalf of the Fund.
(d) The reliance on, or the carrying out by ADS or its agents or
subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in such state or
in violation of any stop order or other determination or ruling by any
federal agency or any state with respect to the offer or sale of such
Shares in such state.
5.02 ADS shall indemnify and hold the Fund 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 ADS as a result of ADS' lack of good faith,
gross negligence or willful misconduct.
5.03 At any time ADS may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by ADS
under this Agreement, and ADS and its agents or subcontractors shall not
be liable and shall be indemnified by the Fund for any action taken or
omitted by it in reliance upon such instructions or upon the opinion of
such counsel. ADS, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf
of the Fund, 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 ADS or its agents or subcontractors by
machine readable input, telex, CRT data entry or other similar means
authorized by the Fund, and shall not be held to have notice of any change
of authority of any person, until receipt of written notice thereof from
the Fund. ADS, 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 signatures of the officers
of the Fund, 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 5 shall apply, upon the assertion of a claim for which either
party may be required to indemnify the other, the party of 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 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.
6. COVENANTS OF THE FUND AND ADS
6.01 The Fund Shall promptly furnish to ADS a certified copy of the
resolution of the Board of Directors of the Fund authorizing the
appointment of ADS and the execution and delivery of this Agreement.
6.02 ADS hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund 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 ADS shall 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 Investment Company Act of 1940, as amended,
and the Rules thereunder, ADS agrees that all such records prepared or
maintained by ADS relating to the services to be performed by ADS
hereunder are the property of the Fund and will be preserved, maintained
and made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
6.04 ADS and the Fund 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.
6.05 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, ADS will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. ADS 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, and shall promptly notify the Fund of any unusual request to
inspect or copy the shareholder records of the Fund or the receipt of any
other unusual request to inspect, copy or produce the records of the Fund.
7. TERMINATION OF AGREEMENT
7.01 This Agreement shall become effective as of the date hereof and
shall remain in force for a period of three (3) years, provided however,
that both parties to this Agreement have the option to terminate the
Agreement, without penalty, upon ninety (90) days prior written notice.
7.02 Should the Fund exercise its right to terminate, all out-of-
pocket expenses associated with the movement of records and material will
be borne by the Fund. Additionally, ADS reserves the right to charge for
any other reasonable expenses associated with such termination.
8. ASSIGNMENT
8.01 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.
9. AMENDMENT
9.01 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 Fund.
10. NEW YORK LAWS TO APPLY
10.01 The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of New York as at the
time in effect and the applicable provisions of the 1940 Act. To the
extent that the applicable law of the State of New York, or any of the
provisions herein, conflict with the applicable provisions of the 1940
Act, the latter shall control.
11. MERGER OF AGREEMENT
11.01 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.
12. NOTICES
All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when received or when sent by telex or
facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
To the Fund: To the Administrator:
Xx. Xxxxx XxXxxxx Xxxxxxx Xxxxx
President President
Monterey Mutual Fund American Data Services, Inc..
0000 Xxxxx Xxxxxx, Xxxxx 000 00 Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000 Xxxxxxxxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
MONTEREY MUTUAL FUND AMERICAN DATA SERVICES, INC.
By: ____________________________ By:
Xxxxx XxXxxxx, President Xxxxxxx Xxxxx, President
FEE SCHEDULE
For the services rendered by ADS in its capacity as transfer agent,
the Fund shall pay ADS, within ten (10) days after receipt of an invoice
from ADS at the beginning of each month, a fee per portfolio, calculated
as a combination of account maintenance charges and transaction charges
as follows:
(a) ACCOUNT SERVICE FEE:
The Greater of:
Minimum maintenance charge per portfolio (No prorating partial months);
Non Fund/SERV ...... $ 639.06/month
Fund/SERV........... $1,250.00/month
OR,
Based upon the total of all open/closed accounts in the portfolio upon the
following annual rates
(billed monthly): **
Open accounts ................... $15.00 per account
Closed accounts ................. $ 2.00 per account***
** All accounts closed during a calendar year will be considered as open
accounts for billing purposes until the end of that calendar year.
*** Closed accounts will remain in the shareholder files until all 1099's
and 5498's have been sent to shareholders and reported (via mag media) to
the IRS.
PLUS
TRANSACTION FEES:
Trade Entry (purchase/liquidation) and maintenance
transactions ............................................ $ 1.35 each
New account set-up......................................... $ 2.50 each
Customer service calls..................................... $ 1.00 each
Correspondence/information requests........................ $ 1.25 each
Check preparation.......................................... $ .50 each
Liquidations paid by wire transfer ......................... $ 3.00 each
Omnibus accounts ................................ $ 1.25 per transaction*
ACH charge ................................................ $ .30 each
SWP ........................................................ $ 1.25 each*
* Not included as a Trade Entry.
OPTIONAL SERVICES
24 HOUR AUTOMATED VOICE RESPONSE:
Initial set-up charge per portfolio - $500.00
Monthly maintenance charge per portfolio - $50.00
All calls processed through automated voice response will be billed as a
customer service call listed above.
(b) XXX PLAN FEES:
The following fees will be charged directly to the shareholder account:
Annual maintenance fee ................................ $15.00 /account *
Incoming transfer from prior custodian ................ $12.00
Distribution to a participant ......................... $15.00
Refund of excess contribution ......................... $15.00
Transfer to successor custodian ....................... $15.00
Automatic periodic distributions ............... $15.00/year per account
* Includes Star Bank N.A. $8.00 Custody Fee.
FEE INCREASES
On each annual anniversary date of this Agreement, the fees enumerated
above will be increased by the change in the Consumer Price Index for the
New York/Northern New Jersey (CPI) for the twelve month period ending with
the month preceding such annual anniversary date.
(c) EXPENSES:
The Fund shall reimburse ADS for any out-of-pocket expenses,
exclusive of salaries, advanced by ADS in connection with but not limited
to the printing of confirmation forms and statements, proxy expenses,
travel requested by the Fund, telephone, facsimile transmissions,
stationery and supplies (related to Fund records), record storage, postage
(plus a $0.15 service charge for all mailings), pro-rata portion of annual
17AD-13 audit letter, telex and courier charges incurred in connection
with the performance of its duties hereunder. ADS shall provide the Fund
with a monthly invoice of such expenses and the Fund shall reimburse ADS
within fifteen (15) days after receipt thereof.
(d) SPECIAL REPORTS:
All reports and/or analyses requested by the Fund that are not
included in the fee schedule, shall be subject to an additional charge,
agreed upon in advance, based upon the following rates:
Labor:
Senior staff - $150.00/hr.
Junior staff - $ 75.00/hr.
Computer time - $45.00/hr.
(e) CONVERSION CHARGE:
NOTE: FOR EXISTING FUNDS ONLY (new funds please ignore):
There will be a charge to convert the Fund's shareholder accounting
records on to the ADS stock transfer system (ADSHARE). In addition, ADS
will be reimbursed for all out-of-pocket expenses, enumerated in paragraph
(b) above and data media conversion costs, incurred during the conversion
process.
The conversion charge will be estimated and agreed upon in advance by
the Fund and ADS. The charge will be based upon the quantity of records to
be converted and the condition of the previous service agents records.
SCHEDULE A
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
Monterey PIA Short - Term Government Securities Fund
Monterey Camborne Government Income Fund
Monterey OCM Gold Fund
Monterey PIA Equity Fund
Monterey Xxxxxx New World Biotechnology Fund
Monterey Xxxxxx New World Technology Fund
Monterey Xxxxxx New World Technology Convertibles Fund
Monterey PIA Global Bond Fund
