FUND SERVICES, INC.
TRANSFER AGENCY AND SERVICES AGREEMENT
(Chase Growth Fund)
AGREEMENT made as of August_________, 2002 (the "Agreement"), by and
between Advisors Series Trust (the "Trust"), a Delaware business trust operating
as an open-end investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), on behalf of one of its series, Chase Growth Fund (the
"Fund") and FUND SERVICES, INC. ("FSI"), a corporation organized under the laws
of the State of Virginia, provides as follows:
WHEREAS, the Trust is registered under the 1940 Act as an open-end
management investment company and may issue shares of beneficial interest (the
"Shares") in separate series and classes; and
WHEREAS, the Trust offers shares in various series, of which the Fund is
one series, such shares of the Fund being referred to herein as the Shares; and
WHEREAS, the Trust and Chase Investment Counsel, the investment adviser and
sponsor of the Fund, desire that FSI perform as the transfer agent and dividend
disbursing agent for the Fund, and FSI is willing to provide these services on
the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust (with the concurrence of Chase Investment
Counsel) and FSI hereby agree as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) The Trust, on behalf of the Fund, hereby appoints FSI to act as, and
FSI agrees to act as, (i) transfer agent for the authorized and issued Shares
representing interests in the Fund; (ii) dividend disbursing agent; and (iii)
agent in connection with any accumulation, open-account or similar plans
provided to the registered owners of Shares of any of the Funds ("Shareholders")
and set out in the currently in effect and as amended or supplemented
prospectuses and statements of additional information (collectively
"Prospectus") of the Fund, including, without limitation, any periodic
investment plan or periodic withdrawal program.
(b) In connection therewith, the Trust has delivered to FSI, to the extent
specifically requested by FSI, copies of (i) the Declaration of Trust,
Certificate of Trust and Bylaws (collectively, as amended from time to time,
"Organic Documents"); (ii) the Trust's Registration Statement and all amendments
thereto relating to the Fund as filed with the U.S. Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"); (iii) the
Trust's current Prospectus of the Fund; (iv) each current plan of distribution
or similar document adopted by the Trust on behalf of the Fund under Rule 12b-1
under the 1940 Act ("12b-1 Plan") and each current shareholder service plan or
similar document adopted by the Trust on behalf of the Fund ("Service Plan");
and (v) all applicable procedures adopted by the Trust with respect to the Fund,
and shall promptly furnish FSI with all amendments of or supplements to the
foregoing. The Trust shall deliver to FSI, as requested by FSI, a certified copy
of the resolution of the Board of Trustees of the Trust (the "Board") appointing
FSI and authorizing the execution and delivery of this Agreement.
SECTION 2. DUTIES OF FSI
(a) FSI agrees that in accordance with procedures established from time to
time by agreement between the Trust on behalf of the Fund, and FSI, FSI will
perform the following services:
(i) provide the services of a transfer agent, dividend disbursing agent
and, as relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment plan or
periodic withdrawal program) that are customary for open-end management
investment companies including: (A) maintaining all Shareholder accounts;
(B) preparing Shareholder meeting lists; (C) mailing proxies and related
materials to Shareholders; (D) mailing Shareholder reports and prospectuses
to current Shareholders; (E) withholding taxes on U.S. resident and
non-resident alien accounts; (F) preparing and filing U.S. Treasury
Department Forms 1099 and other appropriate forms required by federal
authorities with respect to distributions for Shareholders; (G) preparing
and mailing confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts; (H) preparing and mailing activity
statements for Shareholders; and (I) providing Shareholder account
information;
(ii) receive for acceptance orders for the purchase of Shares and promptly
deliver payment and appropriate documentation therefor to the custodian of
the Fund (the "Custodian") or, in the case of Fund's operating in a
master-feeder or fund of funds structure, to the transfer agent or
interestholder recordkeeper for the master portfolios in which the Fund
invests;
(iii) pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the appropriate
documentation therefor to the Custodian;
(v) as and when it receives monies paid to it by the Custodian with respect
to any redemption, pay the redemption proceeds as required by the
Prospectus pursuant to which the redeemed Shares were offered and as
instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate instructions
from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by the Trust
with respect to Shares;
(viii) issue share certificates and replacement share certificates for
those share certificates alleged to have been lost, stolen, or destroyed
upon receipt by FSI of indemnification satisfactory to FSI and protecting
FSI and the Trust and, at the option of FSI, issue replacement certificates
in place of mutilated share certificates upon presentation thereof without
requiring indemnification;
(ix) receive from Shareholders or debit Shareholder accounts for sales
commissions, including contingent deferred, deferred and other sales
charges, and service fees (i.e., wire redemption charges) and prepare and
transmit payments, as appropriate, to the underwriter for commissions and
service fees received;
(x) track shareholder accounts by financial intermediary source and
otherwise as reasonably requested by the Trust and provide periodic
reporting to the Trust or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements to
the Trust and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Trust and maintain pursuant to
Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as amended
("1934 Act") a record of the total number of Shares of the Fund, that are
authorized, based upon data provided to it by the Trust, and are issued and
outstanding and provide the Trust on a regular basis a report of the total
number of Shares that are authorized and the total number of Shares that
are issued and outstanding;
(xiii) provide a system which will enable the Trust to calculate the total
number of Shares of the Fund sold in each State;
(xiv) provide necessary information to the Trust to enable to Trust to
monitor and make appropriate filings with respect to the escheatment laws
of the various states and territories of the United States; and
(xv) oversee the activities of proxy solicitation firms, if requested by
the Trust.
(b) FSI shall receive and tabulate proxy votes, coordinate the tabulation
of proxy and shareholder meeting votes and perform such other additional
services as may be specified from time to time by the Trust, all pursuant to
mutually acceptable compensation and implementation agreements.
(c) The Trust or its administrator or other agent (i) shall identify to FSI
in writing those transactions and assets to be treated as exempt from reporting
for each state and territory of the United States and for each foreign
jurisdiction (collectively "States"); and (ii) shall monitor the sales activity
with respect to Shareholders domiciled or resident in each State. The
responsibility of FSI for the Trust's State registration status is solely
limited to the reporting of transactions to the Trust, and FSI 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 Trust or
its administrator or other agent.
(d) FSI shall establish and maintain facilities and procedures reasonably
acceptable to the Trust for the safekeeping, control, preparation and use of
share certificates, check forms, and facsimile signature imprinting devices. FSI
shall establish and maintain facilities and procedures reasonably acceptable to
the Trust for safekeeping of all records maintained by FSI pursuant to this
Agreement.
(e) FSI shall cooperate with each Fund's independent public accountants and
shall take reasonable action to make all necessary information available to the
accountants for the performance of the accountants' duties.
(f) Except with respect to FSI's duties as set forth in this Section 2 and
except as otherwise specifically provided herein, the Trust assumes all
responsibility for ensuring that the Trust complies with all applicable
requirements of the Securities Act, the 1940 Act and any laws, rules and
regulations of governmental authorities with jurisdiction over the Trust. All
references to any law in this Agreement shall be deemed to include reference to
the applicable rules and regulations promulgated under authority of the law and
all official interpretations of such law or rules or regulations.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of FSI's responsibilities under this
Agreement, if applicable, the Trust shall deliver or cause to be delivered over
to FSI (i) an accurate list of Shareholders of the Fund, showing each
Shareholder's address of record, number of Shares owned and whether such Shares
are represented by outstanding share certificates; and (ii) all Shareholder
records, files, and other materials necessary or appropriate for proper
performance of the functions assumed by FSI under this Agreement (collectively
referred to as the "Materials"). The Trust shall on behalf of the Fund indemnify
and hold FSI harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to any error, omission, inaccuracy or other deficiency of the
Materials, or out of the failure of the Trust to provide any portion of the
Materials or to provide any information in the Trust's possession or control
reasonably needed by FSI to perform the services described in this Agreement.
(b) FSI shall keep records relating to the services to be performed under
this Agreement, in the form and manner as it may deem advisable and as required
by applicable law. To the extent required by Section 31 of the 1940 Act, and the
rules thereunder, FSI agrees that all such records prepared or maintained by FSI
relating to the services to be performed by FSI under this Agreement are the
property of the Trust and will be preserved, maintained and made available in
accordance with Section 31 of the 1940 Act and the rules thereunder, and will be
surrendered promptly to the Trust on and in accordance with the Trust's request.
The Trust and the Trust's authorized representatives shall have access to FSI's
records relating to the services to be performed under this Agreement at all
times during FSI's normal business hours. Upon the reasonable request of the
Trust, copies of any such records shall be provided promptly by FSI to the Trust
or the Trust's authorized representatives.
(c) FSI 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.
(d) In case of any requests or demands for the inspection of the
Shareholder records of the Trust, FSI will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. FSI shall abide by the Trust's instructions for granting or denying
the inspection; provided, however, that FSI may grant the inspection regardless
of the Trust's instructions if FSI is advised by counsel to FSI that failure to
do so will result in liability to FSI.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) FSI shall make original issues of Shares of each Fund and Class thereof
in accordance with the Trust's then current Prospectus only upon receipt of (i)
instructions requesting the issuance; (ii) a certified copy of a resolution of
the Board authorizing the issuance; (iii) necessary funds for the payment of any
original issue tax applicable to such Shares; and (iv) an opinion of the Trust's
counsel as to the legality and validity of the issuance, which opinion may
provide that it is contingent upon the filing by the Fund of an appropriate
notice with the SEC, as required by Section 24 of the 1940 Act or the rules
thereunder. If the opinion described in (iv) above is contingent upon a filing
under Section 24 of the 1940 Act, the Trust shall indemnify FSI for any
liability arising from the failure of the Trust to comply with that section or
the rules thereunder.
(b) Transfers of Shares of each Fund and Class thereof shall be registered
on the Shareholder records maintained by FSI. In registering transfers of
Shares, FSI may rely upon the Uniform Commercial Code as in effect in the State
of Virginia or any other statutes that, in the opinion of FSI's counsel, protect
FSI and the Trust from liability arising from (i) not requiring complete
documentation; (ii) registering a transfer without an adverse claim inquiry;
(iii) delaying registration for purposes of such inquiry; or (iv) refusing
registration whenever an adverse claim requires such refusal. As transfer agent,
FSI will be responsible for delivery to the transferor and transferee of such
documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) The Trust shall furnish to FSI a supply of blank share certificates of
the Fund and, from time to time, will renew such supply upon FSI's request.
Blank share certificates shall be signed manually or by facsimile signatures of
officers of the Trust authorized to sign the Organic Documents of the Trust and,
if required by the Organic Documents, shall bear the Trust's seal or a facsimile
thereof. Unless otherwise directed by the Trust, FSI may issue or register Share
certificates reflecting the manual or facsimile signature of an officer who has
died, resigned or been removed by the Trust.
(b) New Share certificates shall be issued by FSI upon surrender of
outstanding Share certificates in the form deemed by FSI to be properly endorsed
for transfer and satisfactory evidence of compliance with all applicable laws
relating to the payment or collection of taxes. FSI shall forward Share
certificates in "non-negotiable" form by first-class or registered mail, or by
whatever means FSI deems equally reliable and expeditious. FSI shall not mail
Share certificates in "negotiable" form unless requested in writing by the Trust
and fully indemnified by the Trust to FSI's satisfaction.
(c) In the event that the Trust informs FSI that the Fund does not issue
Share certificates, FSI shall not issue any such Share certificates and the
provisions of this Agreement relating to Share certificates shall not be
applicable with respect to the Fund.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of a Fund's (or
Class') Prospectus after FSI or its agent receives either:
(i) (A) an instruction directing investment in a Fund (or Class); (B) a
check (other than a third party check) or a wire or other electronic
payment in the amount designated in the instruction; and (C), in the case
of an initial purchase, a completed account application; or
(ii) the information required for purchases pursuant to a selected dealer
agreement, processing organization agreement, or a similar contract with a
financial intermediary.
(b) Shares issued in a Fund after receipt of a completed purchase order
shall be eligible to receive distributions of the Fund at the time specified in
the Prospectus pursuant to which the Shares are offered.
(c) Shareholder payments shall be considered federal funds no later than on
the day indicated below unless other times are noted in the Prospectus of the
applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System, on
the next Trust business day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as FSI is credited with federal funds
with respect to that check.
SECTION 7. COMPENSATION AND EXPENSES
(a) For the services provided by FSI pursuant to this Agreement, the Trust,
on behalf of the Fund and with the concurrence of Chase Investment Counsel,
agrees to pay FSI the fees set forth in Appendix A hereto. Fees will begin to
accrue for the Fund on the latter of the date of this Agreement or the date of
commencement of operations of the Fund. If fees begin to accrue in the middle of
a month or if this Agreement terminates before the end of any month, all fees
for the period from that date to the end of that month or from the beginning of
that month to the date of termination, as the case may be, shall be prorated
according to the proportion that the period bears to the full month in which the
effectiveness or termination occurs. Upon the termination of this Agreement with
respect to the Fund, the Fund shall pay to FSI such compensation as shall be
payable prior to the effective date of termination. The Trust acknowledges that
FSI may from time to time earn money on amounts in the deposit accounts
maintained by FSI to service the Fund(s) (and other clients serviced by FSI).
(b) In connection with the services provided by FSI pursuant to this
Agreement, the Trust, on behalf of the Fund and with the concurrence of Chase
Investment counsel , agrees to reimburse FSI for the expenses set forth in
Appendix A hereto. In addition, the Trust, on behalf of the Fund, shall
reimburse FSI for all reasonable incurred expenses and employee time (at 150% of
salary) attributable to any review of the Fund's accounts and records by the
Trust's independent accountants or any regulatory body outside of routine and
normal periodic reviews. Should the Trust exercise its right to terminate this
Agreement, the Trust, on behalf of the applicable Fund, shall reimburse FSI at
rates set forth in Appendix A for all reasonable incurred out-of-pocket expenses
and employee time associated with the copying and movement of records and
material to any successor person and providing assistance to any successor
person in the establishment of the accounts and records necessary to carry out
the successor's responsibilities.
(c) All fees and reimbursements are payable in arrears on a monthly basis
and the Trust, on behalf of the Fund and with the concurrence of Chase
Investment Counsel, agrees to pay all fees and reimbursable expenses within five
(5) business days following receipt of the respective billing notice.
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) FSI represents and warrants to the Trust that:
(i) It is a corporation duly organized and existing and in good
standing under the laws of the State of Virginia;
(ii) It is duly qualified to carry on its business in the State of
Virginia;
(iii) It is empowered under applicable laws and by its By-Laws to
enter into this Agreement and perform its duties under this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(v) It has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of FSI, enforceable against FSI in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties;
and
(vii) It is registered as a transfer agent under Xxxxxxx 00X xx xxx
0000 Xxx.
(x) The Trust represents and warrants to FSI that:
(i) It is a business trust duly organized and existing and in good
standing under the laws of the state of Delaware;
(ii) It is empowered under applicable laws and by its By-Laws to enter
into this Agreement and perform its duties under this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize
it to enter into this Agreement and perform its duties under this
Agreement;
(iv) It is an open-end management investment company registered under
the 1940 Act;
(v) This Agreement, when executed and delivered, will constitute a
legal, valid and binding obligation of the Trust, enforceable against
the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties; and
(vi) A registration statement under the Securities 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 Fund being offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) The Trust acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals maintained by FSI on databases under the control and ownership of FSI or
a third party constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of substantial value to
FSI or the third party. The Trust agrees to treat all Proprietary Information as
proprietary to FSI and further agrees that it shall not divulge any Proprietary
Information to any person or organization except as may be provided under this
Agreement.
(b) FSI acknowledges that the Shareholder list and all information related
to Shareholders furnished to FSI by the Trust or by a Shareholder in connection
with this Agreement (collectively, "Customer Data") constitute proprietary
information of substantial value to the Trust. In no event shall Proprietary
Information be deemed Customer Data. FSI agrees to treat all Customer Data as
proprietary to the Trust and further agrees that it shall not divulge any
Customer Data to any person or organization except as may be provided under this
Agreement or as may be directed by the Trust.
Further, FSI 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, FSI 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.
SECTION 10. INDEMNIFICATION
(a) FSI shall not be responsible for, and the Trust shall on behalf of the
Fund indemnify and hold FSI harmless from and against, any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of or attributable to:
(i) all actions of FSI 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;
(ii) the Trust's lack of good faith or the Trust's negligence or
willful misconduct;
(iii) the reliance on or use by FSI or its agents or subcontractors of
information, records, documents or services which have been prepared,
maintained or performed by the Trust or any other person or firm on
behalf of the Trust, including but not limited to any previous
transfer agent or registrar;
(iv) the reasonable reliance on, or the carrying out by FSI or its
agents or subcontractors of, any instructions or requests of the Trust
on behalf of the applicable Fund; and
(v) 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, provided that FSI has not been given
adequate notice of any limitation or restriction on such offer or
sale.
(b) FSI shall indemnify and hold harmless the Trust and the Fund from and
against any and all losses, damages, costs, charges, reasonable counsel fees,
payments, expenses and liability arising out of or attributable to any action or
failure or omission to act by FSI as a result of FSI's lack of good faith,
negligence or willful misconduct with respect to the services performed under or
in connection with this Agreement; provided, however, that FSI shall indemnify
and hold the Trust and the Fund harmless from and against any and all losses,
damages, costs, charges, reasonable counsel fees, payments, expenses and
liability with regard to "as of" adjustments arising out of or attributed to any
processing of Shareholder purchase and redemption requests at an incorrect net
asset value ("NAV") as a result of FSI's lack of good faith, negligence or
willful misconduct as follows:
(i) FSI shall reimburse the Fund for any net losses to the Fund during
each NAV error period resulting from an NAV difference that is at
least $0.01 per Fund share. FSI shall reimburse the Fund and each
Shareholder for any losses experienced by the Fund or any Shareholder,
as applicable, during each NAV error period resulting from an NAV
difference that is at least $0.01 per Fund share and that, as a
percentage of recalculated NAV of such Fund is at least 1/2 of 1%;
provided, however, that FSI shall not be responsible for reimbursing
the Fund with respect to any Shareholder that experiences an aggregate
loss during any NAV error period of less than $10.
(ii) For purposes of this Agreement, (1) the NAV difference shall mean
the difference between the NAV at which a Shareholder purchase or
redemption should have been effected ("Recalculated NAV") and the NAV
at which the purchase or redemption is effected; (2) NAV error period
shall mean any Trust business day or series of two or more consecutive
Trust business days during which an NAV difference of $0.01 per Fund
share or more exists; (3) NAV differences and any FSI liability
therefrom are to be calculated each time a Fund's (or Class') NAV is
calculated; (4) in calculating any amount for which FSI would
otherwise be liable under this Agreement for a particular NAV error,
Fund losses and gains shall be netted; and (5) in calculating any
amount for which FSI would otherwise be liable under this Agreement
for a particular NAV error that continues for a period covering more
than one NAV determination. Fund losses and gains for the period shall
be netted.
(c) At any time FSI may apply to any officer of the Trust for instructions,
and may consult with legal counsel to the Trust or to FSI with respect to any
matter arising in connection with the services to be performed by FSI under this
Agreement, and FSI and its agents or subcontractors shall not be liable and
shall be indemnified by the Trust on behalf of the Fund for any action taken or
omitted by it in reasonable reliance upon such instructions or upon the advice
of such counsel. FSI, its agents and subcontractors shall be protected and
indemnified in acting upon (i) any paper or document furnished by or on behalf
of the Trust, reasonably believed by FSI to be genuine and to have been signed
by the proper person or persons; (ii) any instruction, information, data,
records or documents provided FSI or its agents or subcontractors by machine
readable input, telex, CRT data entry or other similar means reasonably believed
by FSI to be authorized by the Trust; and (iii) any authorization, instruction,
approval, item or set of data, or information of any kind transmitted to FSI in
person or by telephone, vocal telegram or other electronic means, reasonably
believed by FSI to be genuine and to have been given by the proper person or
persons. FSI shall not be held to have notice of any change of authority of any
person, until receipt of written notice thereof from the Trust. FSI, its agents
and subcontractors shall also be protected and indemnified in recognizing share
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Trust, and the proper
countersignature of any former transfer agent or former registrar or of a
co-transfer agent or co-registrar of the Trust.
(d) If the Trust has the ability to originate electronic instructions to
FSI in order to (i) effect the transfer or movement of cash or Shares or (ii)
transmit Shareholder information or other information, then in such event FSI
shall be entitled to rely on the validity and authenticity of such instruction
without undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established by FSI from time
to time.
(e) The Trust has authorized, or in the future may authorize, FSI to act as
a "Mutual Fund Services Member" for the Trust or the Fund. Fund/SERV and
Networking are services sponsored by the National Securities Clearing
Corporation ("NSCC") and as used herein have the meanings as set forth in the
then current edition of NSCC Rules and Procedures published by NSCC or such
other similar publication as may exist from time to time. The Trust shall
indemnify and hold FSI harmless from and against any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liability
arising directly or indirectly out of or attributed to any action or failure or
omission to act by NSCC.
(f) In order that the indemnification provisions contained in this Section
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 in writing 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 or to defend
against said claim in its own name or in the name of the other party. 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.
SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to the Fund on the
date first written above, provided that its effectiveness shall be approved or
ratified within 90 days of such date by a vote of the majority of the Trustees
of the Trust. Upon effectiveness of this Agreement, it shall supersede all
previous agreements between the parties hereto covering the subject matter
hereof insofar as such Agreement may have been deemed to relate to the Fund.
(b) This Agreement shall continue in effect with respect to the Fund until
terminated;
(c) This Agreement may be terminated with respect to the Fund at any time,
without the payment of any penalty (i) by the Board on sixty (60) days' written
notice to FSI or (ii) by FSI on sixty (60) days' written notice to the Trust.
Any termination shall be effective as of the date specified in the notice or
upon such later date as may be mutually agreed. Upon notice of termination of
this Agreement by either party, FSI shall promptly transfer to the successor
transfer agent the original or copies of all books and records maintained by FSI
under this Agreement including, in the case of records maintained on computer
systems, copies of such records in machine-readable form, and shall cooperate
with, and provide reasonable assistance to, the successor transfer agent in the
establishment of the books and records necessary to carry out the successor
transfer agent's responsibilities.
(d) The obligations of Sections 3, 7, 8, 9, 10, 14, 15, and 17 shall
survive any termination of this Agreement.
SECTION 12. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more classes of Shares with
respect to the Fund after the effectiveness of this Agreement, FSI or the Trust
may elect either to make or not to make any such classes subject to this
Agreement as specified in an amendment to this Agreement.
SECTION 13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement nor
any rights or obligations under this Agreement may be assigned by either party
without the written consent of the other party. This Agreement shall inure to
the benefit of and be binding upon the parties and their respective permitted
successors and assigns. FSI may, without further consent on the part of the
Trust, subcontract for the performance hereof with any entity, including
affiliated persons of FSI; provided however, that FSI shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor as FSI
is for its own acts and omissions.
SECTION 14. FORCE MAJEURE
FSI shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, terrorist activity, war, riots or
failure of the mails or any transportation medium, communication system or power
supply; provided that the party seeking relief in an event of Force Majeure
shall promptly notify the other party and shall take reasonable steps to
mitigate damages.
SECTION 15. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The trustees of the Trust and the Shareholders of each Fund (or class)
shall not be liable for any obligations of the Trust or of the Fund(s) (or
class) under this Agreement, and FSI agrees that, in asserting any rights or
claims under this Agreement, it shall look only to the assets and property of
the Fund to which FSI's rights or claims relate in settlement of such rights or
claims, and not to the trustees of the Trust or the Shareholders of the Fund or
other series of the Trust and their shareholders.
SECTION 16. TAXES
FSI shall not be liable for any taxes, assessments or governmental charges
that may be levied or assessed on any basis whatsoever in connection with the
Trust or any Shareholder or any purchase of Shares, excluding taxes assessed
against FSI for compensation received by it under this Agreement.
SECTION 17. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement.
(b) Except to add new Funds and Classes in accordance with Section 12, no
provisions of this Agreement may be amended or modified in any manner except by
a written agreement properly authorized and executed by both parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Virginia.
(d) 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.
(e) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held 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. This Agreement shall be construed as if drafted jointly by both FSI and
the Trust and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests. instructions and communications received by the
parties at their respective principal addresses, or at such other address as a
party may have designated in writing, shall be deemed to have been properly
given.
(i) Nothing contained in this Agreement is intended to or shall require
FSI, in any capacity hereunder, to perform any functions or duties on any day
other than a business day on which the New York Stock Exchange is open for
business. Functions or duties normally scheduled to be performed on any day
which is not a business day on which the New York Stock Exchange is open shall
be performed on, and as of, the next business day, unless otherwise required by
law.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each series, fund (or class) of the
Trust are separate and distinct from the assets and liabilities of each other
series, fund (or class) and that no series, fund (or class) shall be liable or
shall be charged for any debt, obligation or liability of the Fund, whether
arising under this Agreement or otherwise.
(k) No affiliated person (as that term is defined in the 1940 Act),
employee, agent, director, officer or manager of FSI shall be liable at law or
in equity for FSI's obligations under this Agreement.
(l) Each of the undersigned expressly warrants and represents that they
have full power and authority to sign this Agreement on behalf of the party
indicated and that their signature will bind the party indicated to the terms
hereof and each party hereto warrants and represents that this Agreement, when
executed and delivered, will constitute a legal, valid and binding obligation of
the party, enforceable against the party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured patties.
(m) The terms and "affiliated person," "assignment" and "vote of a majority
of the outstanding voting securities" shall have the meanings ascribed thereto
in the 1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
persons, as of the day and year first above written.
ADVISERS SERIES TRUST
By:______________________
Xxxx X. Xxxxxxx
President and Trustee
FUND SERVICES, INC.
By:___________________________
Xxxxxxx X. Xxxxxxxxxx, Xx.
President
Concurred in by CHASE GROWTH FUND
By:___________________________
Xxxxxxx X. Xxxxx, Xx.
President
