INVESTA MANAGEMENT CO., INC.
FORM OF TRANSFER AGENCY AGREEMENT
AGREEMENT made this ______ day of _________, 1999, by and between
Investa Management Co., Inc., a Maryland corporation, having its principal
office and place of business at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Corporation"), and American Data Services, Inc., a New York corporation having
its principal office and place of business at the Hauppauge Corporate Center,
000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("ADS").
WHEREAS, the Corporation is an open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Corporation is authorized to issue shares ("Shares") in
separate series, with each such series representing interests in a separate
portfolio of securities and other assets, and is authorized to divide those
series into separate classes; and
WHEREAS, the Corporation offers shares in the series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Corporation and made subject to this Agreement in accordance
with Section 13, being herein referred to as a "Fund," and collectively as the
"Funds"); and
WHEREAS, the Corporation desires to appoint ADS as its transfer agent
and dividend disbursing agent for each Fund thereof and ADS desires to accept
such appointment 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 Corporation and ADS hereby agree as follows:
1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) APPOINTMENT. The Corporation, on behalf of the Funds, hereby appoints ADS to
act as, and ADS agrees to act as, (i) transfer agent for the authorized and
issued shares of beneficial interest stock of the Corporation representing
interests in each of the respective Funds and Classes thereof ("Shares"), (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 effective
prospectuses and statements of additional information of the applicable Fund,
including, without limitation, any periodic investment plan or periodic
withdrawal program.
(A) DOCUMENT DELIVERY. The Corporation has delivered to ADS copies of:
(i) the Corporation's Corporation Instrument and Bylaws (collectively,
as amended from time to time, "Organic Documents"),
(ii) the Corporation's Registration Statement and all amendments
thereto filed with the U.S. Securities and Exchange Commission ("SEC") pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), or the
Investment Company Act of 1940, as amended (the "1940 Act")(the "Registration
Statement"),
(iii) the current Prospectus and Statement of Additional Information of
each Fund (collectively, as currently in effect and as amended or supplemented,
the "Prospectus"),
(iv) each current plan of distribution or similar document adopted by
the Corporation under Rule 12b-1 under the 1940 Act ("Plan") and each current
shareholder service plan or similar document adopted by the Corporation
("Service Plan"), and
(v) The Corporation shall promptly furnish ADS with all amendments of
or supplements to the foregoing and shall deliver to ADS a certified copy of the
resolution of the Board of Directors of the Corporation (the "Board") appointing
ADS and authorizing the execution and delivery of this Agreement.
2. DUTIES OF ADS
(a) TRANSFER AGENCY SERVICES. In accordance with procedures established from
time to time by agreement between the Corporation on behalf of each of the
Funds, as applicable, and ADS, ADS 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 Shareholder reports and prospectuses to current
Shareholders;
(D) withholding taxes on U.S. resident and non-resident alien
accounts;
(E) preparing and filing U.S. Treasury Department Forms 1099
and other appropriate forms required by federal authorities with respect to
distributions for Shareholders;
(F) 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; and,
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(G) providing account information in response to inquiries
from Shareholders.
(ii) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefore to the
Custodian of the Funds authorized by the Board of Directors of the Corporation
(the "Custodian"); or, in the case of a Fund's operating in a master-feeder or
fund of funds structure, to the transfer agent or interest-holder 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 or, in the case of a Fund
operating in a master-feeder or fund of funds structure, to the transfer agent
or interest-holder recordkeeper for the master portfolios in which the Fund
invests;
(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 Corporation
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 ADS of indemnification satisfactory to ADS and protecting ADS and the
Corporation and, at the option of ADS, 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 to underwriters, selected dealers and others for commissions and
service fees received;
(x) track shareholder accounts by financial intermediary source and
otherwise as requested by the Corporation and provide periodic reporting to the
Corporation or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements
to the Corporation and Shareholders as to the foregoing;
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(xii) Record the issuance of shares of the Funds 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.
(xiii) provide a system which will enable the Corporation to calculate
the total number of Shares of each Fund and Class thereof sold in each State.
(b) OTHER SERVICES. ADS shall provide the following additional services on
behalf of the Corporation and such other services agreed to in writing by the
Corporation and ADS:
(i) monitor and make appropriate filings with respect to the
escheatment laws of the various states and territories of the United States; and
(c) BLUE SKY MATTERS. The Corporation or its administrator or other agent
(i) shall identify to ADS 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.
(d) SAFEKEEPING. ADS shall establish and maintain facilities and procedures
reasonably acceptable to the Corporation for the safekeeping, control,
preparation and use of share certificates, check forms, and facsimile signature
imprinting devices. ADS shall establish and maintain facilities and procedures
reasonably acceptable to the Corporation for safekeeping of all records
maintained by ADS pursuant to this Agreement.
(e) COOPERATION WITH ACCOUNTANTS. ADS 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) RESPONSIBILITY FOR COMPLIANCE WITH LAW.
(i) IN GENERAL. Except with respect to ADS's duties as set
forth in this Section 2 and except as otherwise specifically provided
herein, the Corporation assumes all responsibility for ensuring that
the Corporation 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 Corporation. 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.
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(ii) ISSUANCE OF SHARES. The responsibility of ADS for the
Corporation's state registration status is solely limited to the
reporting of transactions to the Corporation, and ADS 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 Corporation or its administrator or other agent.
4. RECORDKEEPING
(a) PREDECESSOR RECORDS. Prior to the commencement of ADS's responsibilities
under this Agreement, if applicable, the Corporation shall deliver or cause to
be delivered over to ADS:
(i) an accurate list of Shareholders of the Corporation, 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 ADS under this
Agreement (collectively referred to as the "Materials"). The Corporation shall
on behalf of each applicable Fund or Class 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 any error, omission,
inaccuracy or other deficiency of the Materials, or out of the failure of the
Corporation to provide any portion of the Materials or to provide any
information in the Corporation's possession or control reasonably needed by ADS
to perform the services described in this Agreement.
(b) RECORDKEEPING. ADS 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, ADS agrees that all such records prepared or
maintained by ADS relating to the services to be performed by ADS under this
Agreement are the property of the Corporation 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 Corporation on and in
accordance with the Corporation's request. The Corporation and the Corporation's
authorized representatives shall have access to ADS's records relating to the
services to be performed under this Agreement at all times during ADS's normal
business hours. Upon the reasonable request of the Corporation, copies of any
such records shall be provided promptly by ADS to the Corporation or its
authorized representatives.
(c) CONFIDENTIALITY OF RECORDS. ADS and the Corporation 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
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of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
(d) INSPECTION OF RECORDS BY OTHERS. 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.
5. ISSUANCE AND TRANSFER OF SHARES
(a) ISSUANCE OF SHARES. ADS shall make original issues of Shares of each Fund
and Class thereof in accordance with the Corporation'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 Corporation's counsel as to the legality and
validity of the issuance, which opinion may provide that it is contingent upon
the filing by the Corporation of an appropriate notice with the SEC, as required
by Section 24 of the 1940 Act or the rules thereunder. If such opinion is
contingent upon a filing under Section 24 of the 1940 Act, the Corporation shall
indemnify ADS for any liability arising from the failure of the Corporation to
comply with that section or the rules thereunder.
(b) TRANSFER OF SHARES. Transfers of Shares of each Fund and Class thereof shall
be registered on the Shareholder records maintained by ADS. In registering
transfers of Shares, ADS may rely upon the Uniform Commercial Code as in effect
in the State of New York or any other statutes that, in the opinion of ADS's
counsel, protect ADS and the Corporation 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, ADS will be responsible for delivery to the
transferor and transferee of such documentation as is required by the Uniform
Commercial Code.
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6. SHARE CERTIFICATES
(a) SURCHARGE FOR ISSUANCE OF SHARE CERTIFICATIONS. If the Corporation issues
share certificates, the Corporation shall pay the surcharge for issuance of
certificates set forth in Schedule A, item (f).
(b) PROCEDUREs FOR ISSUANCE OF CERTIFICATES. In the event the Corporation elects
to issue share certificates, the following provisions shall apply:
(i) CERTIFICATES. The Corporation shall furnish to ADS a
supply of blank share certificates of each Fund and Class thereof and,
from time to time, will renew such supply upon ADS's request. Blank
share certificates shall be signed manually or by facsimile signatures
of officers of the Corporation authorized to sign by the Organic
Documents of the Corporation and, if required by the Organic Documents,
shall bear the Corporation's seal or a facsimile thereof. Unless
otherwise directed by the Corporation, ADS may issue or register Share
certificates reflecting the manual or facsimile signature of an officer
who has died, resigned or been removed by the Corporation.
(ii) ENDORSEMENT; TRANSPORTATION. New Share certificates shall
be issued by ADS upon surrender of outstanding Share certificates in
the form deemed by ADS to be properly endorsed for transfer and
satisfactory evidence of compliance with all applicable laws relating
to the payment or collection of taxes. ADS shall forward Share
certificates in "non-negotiable" form by first-class or registered
mail, or by whatever means ADS deems equally reliable and expeditious.
ADS shall not mail Share certificates in "negotiable" form unless
requested in writing by the Corporation and fully indemnified by the
Corporation to ADS's satisfaction.
7. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) PURCHASE ORDERS. Shares shall be issued in accordance with the terms of a
Fund's or Class' prospectus after ADS 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.
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(b) DISTRIBUTION ELIGIBILITY. 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) DETERMINATION OF FEDERAL FUNDS. 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 second Fund 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 ADS is credited with Federal Funds with
respect to that check.
8. FEES AND EXPENSES
(a) For the services provided by ADS pursuant to this Agreement, the
Corporation, on behalf of each Fund, agrees to pay ADS the fees set forth in
Schedule A. Fees will begin to accrue for each Fund on the latter of the date of
this Agreement or the date of commencement of operations of the Fund.
(b) In addition to the fees paid under subsection (a), the Corporation agrees to
reimburse ADS for out-of-pocket expenses or advances incurred by ADS for the
items set out in the Schedule A attached hereto. In addition, the Corporation
will reimburse any other expenses incurred by ADS at the request or with the
consent of the Corporation.
(c) The fees, out-of pocket expenses and advances identified in the foregoing
subsections (a) and (b) above may be changed from time to time subject to mutual
written agreement between the Corporation and ADS.
(d) The Corporation agrees to pay all fees and reimbursable expenses within ten
days following the receipt of the respective billing notice.
9. REPRESENTATIONS AND WARRANTIES
(a) REPRESENTATIONS OF ADS. ADS represents and warrants to the Corporation that:
(i) it is a corporation duly organized and existing and in good
standing under the laws of the State of New York;
(ii) it is duly qualified to carry on its business in the State of New
York;
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(iii) it is empowered under applicable laws and by its Article of
Incorporation and Bylaws to enter into this Agreement and perform its duties
under this Agreement;
(iv) it has access to the necessary facilities, equipment, and
personnel to perform its duties and obligations under this Agreement; and,
(iv) it is registered as a transfer agent under Section 17A of the
Securities Exchange Act of 1934 and shall continue to be registered throughout
the remainder of this Agreement.
(b) REPRESENTATIONS OF THE CORPORATION. The Fund represents and warrants to ADS
that
(i) it is a business Corporation duly organized and existing and in
good standing under the laws of Massachusetts;
(ii) it is empowered under applicable laws and by its Organic Documents
to enter into and perform this Agreement;
(iii) all proceedings required by said Organic Documents have been
taken to authorize it to enter into and perform this Agreement;
(iv) it is an open-end management investment company registered under
the Investment Company Act of 1940; and,
(v) 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.
10. INDEMNIFICATION
(a) INDEMNIFICATION OF ADS. ADS shall not be responsible for, and the
Corporation shall on behalf of each applicable Fund or Class thereof indemnify
and hold ADS 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 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; the Corporation's lack
of good faith or the Corporation's gross negligence or willful misconduct;
(ii) the reliance on or use by ADS or its agents or subcontractors of
information, records or 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 or maintained by the Corporation or any other person or firm on
behalf of the Corporation, including but not limited to any previous transfer
agent or registrar;
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(iii) the reasonable reliance on, or the carrying out by ADS or its
agents or subcontractors of, any instructions or requests of the Corporation on
behalf of the applicable Fund;
(iv) 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 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.
(b) INDEMNIFICATION OF THE CORPORATION. ADS shall indemnify and hold the
Corporation and each Fund or Class thereof harmless from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of or attributed to any action or failure or omission to
act by ADS as a result of ADS's lack of good faith, gross negligence or willful
misconduct with respect to the services performed under or in connection with
this Agreement.
(c) RELIANCE. At any time ADS may apply to any officer of the Corporation for
instructions, and may consult with legal counsel to the Corporation or to ADS
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 Corporation on behalf of the
applicable Fund for any action taken or omitted by it in reasonable reliance
upon such instructions or upon the advice of such counsel. ADS, its agents and
subcontractors shall be protected and indemnified in acting upon
(i) any paper or document furnished by or on behalf of the Corporation,
reasonably believed by ADS to be genuine and to have been signed by the proper
person or persons;
(ii) 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 Corporation; and,
(iii) any authorization, instruction, approval, item or set of data, or
information of any kind transmitted to ADS in person or by telephone, vocal
telegram or other electronic means, reasonably believed by ADS to be genuine and
to have been given by the proper person or persons. ADS shall not be held to
have notice of any change of authority of any person, until receipt of written
notice thereof from the Corporation. ADS, its agents and subcontractors shall
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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 Corporation, and the proper countersignature of any former
transfer agent or former registrar or of a co-transfer agent or co-registrar of
the Corporation.
(d) RELIANCE ON ELECTRONIC INSTRUCTIONS. If the Corporation has the ability to
originate electronic instructions to ADS 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 ADS 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 ADS from time to time.
(e) USE OF FUND/SERV AND NETWORKING. The Corporation has authorized or in the
future may authorize ADS to act as a "Mutual Fund Services Member" for the
Corporation or various Funds and Classes. 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 Corporation shall indemnify and hold ADS 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) NOTIFICATION OF CLAIMS. 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 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.
11. PROPRIETARY INFORMATION
(a) PROPRIETARY INFORMATION OF ADS. The Corporation acknowledges that the
databases, computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals maintained by ADS on databases under the
control and ownership of ADS or a third party constitute copyrighted, trade
secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to ADS or the third party. The Corporation
agrees to treat all Proprietary Information as proprietary to ADS and further
agrees that it shall not divulge any Proprietary Information to any person or
organization except as may be provided under this Agreement.
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(B) PROPRIETARY INFORMATION OF THE CORPORATION. ADS acknowledges that the
Shareholder list and all information related to Shareholders furnished to ADS by
the Corporation or by a Shareholder in connection with this Agreement
(collectively, "Customer Data") constitute proprietary information of
substantial value to the Corporation. In no event shall Proprietary Information
be deemed Customer Data. ADS agrees to treat all Customer Data as proprietary to
the Corporation 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 maybe directed by the Corporation.
12. EFFECTIVENESS, DURATION, AND TERMINATION
(a) EFFECTIVE DATE. This Agreement shall become effective on the date
first above written.
(b) TERM. This Agreement shall remain in effect for a period of three
(3) years from the date of its effectiveness and shall continue in effect for
successive twelve-month periods; provided that such continuance is specifically
approved at least annually by the Board and by a majority of the Directors who
are not parties to this Agreement or interested persons of any such party.
(c) TERMINATION FOR CAUSE. In the event of a material breach of this
Agreement by either party, the non-breaching part shall notify the breaching
party in writing of such breach and upon receipt of such notice, the breaching
party shall by 45 days to remedy the breach. If said breach is not remedied to
the reasonable satisfaction of the non-breaching party, the non-breaching party
may thereafter terminate this Agreement immediately. Compensation due ADS and
unpaid by the Corporation upon such termination shall be immediately due and
payable upon, and notwithstanding, such termination. If after such termination
for so long as ADS, with the written consent of the Corporation, in fact
continues to perform any one or more of the services contemplated by this
Agreement, the provisions of this Agreement, including without limitation, the
provisions dealing with indemnification, shall continue in full force and
effect.
(d) PAYMENT UPON TERMINATION. If at any time during the initial or any
subsequent term of this Agreement, ADS is replaced as transfer agent or dividend
disbursing agent for any reason other than for a material breach of this
Agreement which ADS does not cure within a reasonable time, or a Fund is merged
into or sells all (or substantially all) of its assets to another fund or family
of funds for which ADS does not serve as transfer agent or dividend disbursing
agent, then the Fund shall, immediately upon demand by ADS, make a one time cash
payment equal to the net present value of the revenues ADS would have earned
during the remainder of the initial or subsequent term of the Agreement, as the
case may be, at the fee rate in effect at the time of such event (including any
applicable minimum). For purposes of this paragraph, the figure used to
calculate the fee due ADS hereunder shall be the highest monthly fees paid by
the Fund at any time during the 12 months immediately preceding the termination
of ADS (or the merger or sale of assets) of the Fund.
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(e) REIMBURSEMENT OF ADS'S EXPENSES. If this Agreement is terminated
with respect to a Fund or Funds, ADS shall be entitled to collect from the Fund
or Funds, in addition to the compensation described under Sections 4 and 11(d)
hereof, the amount of all of ADS's reasonable cash disbursements for services in
connection with ADS's activities in effecting such termination, including
without limitation, the delivery to the Corporation and/or its designees of the
Corporation's property, records, instruments and documents, or any copies
thereof. Subsequent to such termination, for a reasonable fee, ADS will provide
the Corporation with reasonable access to all Corporation documents or records,
if any, remaining in its possession. 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 costs and expenses associated with such
termination.
(e) SURVIVAL OF CERTAIN OBLIGATIONS. The obligations of Sections 8, 10
and 11 shall survive any termination of this Agreement
(f) FORCE MAJEURE. 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.
13. ADDITIONAL FUNDS AND CLASSES.
If the Corporation establishes one or more series of Shares or one or more
classes of Shares after the effectiveness of this Agreement, such series of
Shares or classes of Shares, as the case may be, shall become Funds and Classes
under this Agreement; PROVIDED, however, that either ADS or the Corporation may
elect not to make and such series or classes subject to this Agreement.
14. 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. ADS may, without further consent on the part of the
Corporation, subcontract for the performance hereof with any entity, including
affiliated persons of ADS; provided however, that ADS shall be as fully
responsible to the Corporation for the acts and omissions of any subcontractor
as ADS is for its own acts and omissions.
15. TAXES
ADS 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
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Corporation or any Shareholder or any purchase of Shares, excluding taxes
assessed against ADS for compensation received by it under this Agreement.
16. MISCELLANEOUS
(a) AMENDMENTS. 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.
(b) CHOICE OF LAW. This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of New York.
(c) ENTIRE AGREEMENT. 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.
(d) COUNTERPARTS. The parties may execute this Agreement on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) SEVERABILITY. 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.
(f) HEADINGS. Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(g) 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 ADS:
[Name] Xxxxxxx Xxxxx
[Title] President
[Name of Corporation] American Data Services, Inc.
[Street] 000 Xxxxx Xxxxxxx, Xxxxx 000
[Xxxx, Xxxxx, Zip] Xxxxxxxxx, XX 00000
(H) BUSINESS DAYS. Nothing contained in this Agreement is intended to or shall
require ADS, in any capacity hereunder, to perform any functions or duties on
any day other than a Fund Business Day. Functions or duties normally scheduled
to be performed on any day which is not a Fund Business Day shall be performed
on, and as of, the next Fund Business Day, unless otherwise required by law.
14
(I) DISTINCTION OF FUNDS. Notwithstanding any other provision of this Agreement,
the parties agree that the assets and liabilities of each Fund of the
Corporation are separate and distinct from the assets and liabilities of each
other Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this Agreement
or otherwise.
(j) CONSEQUENTIAL DAMAGES. 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.
(k) NONLIABILITY OF AFFILIATES. No affiliated person (as that term is defined in
the 1940 Act), employee, agent, director, officer or manager of ADS shall be
liable at law or in equity for ADS's obligations under this Agreement.
(l) REPRESENTATION OF SIGNATORIES. 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
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.
INVESTA MANAGEMENT CO., INC. AMERICAN DATA SERVICES, INC.
By: ______________________________________ By: __________________________
Xxxxx X. Xxxxxxx, President Xxxxxxx Xxxxx, President
15
INVESTA MANAGEMENT CO., INC.
TRANSFER AGENCY AGREEMENT
SCHEDULE A
FEES AND ACCOUNT CHARGES
For the services rendered by ADS in its capacity as transfer agent, the
Fund shall pay ADS a fee, calculated as a combination of account maintenance
charges plus transaction charges as follows:
(a) ACCOUNT MAINTENANCE CHARGE:
The Greater of (No prorating for partial months) (1) a minimum maintenance
charge per Fund/Class $1,000.00/ month; or, (2) charges based upon the total of
all open/closed accounts (1) per Fund/class upon the following annual rates:
TYPE OF FUND CHARGE PER ACCOUNT
------------ ------------------
Dividend calculated and
paid annually, semi-annually, quarterly $ 9.00
Dividend calculated and paid monthly $ 12.00
Dividend accrued daily and paid monthly $ 16.00
Closed Accounts $ 2.00(2)
(1) All accounts closed during a month will be considered as open accounts for
billing purposes in the month the account is closed.
(2) Closed accounts remain on the shareholder files until all 1099's and 5498's
have been distributed to the shareholders and send via mag-media to the IRS.
PLUS,
(b) TRANSACTION FEES:
Trade Entry (purchase/liquidation) and maintenance transactions .....$ 1.50 each
New account set-up ..................................................$ 3.00 each
Customer service calls ..............................................$ 1.50 each
Correspondence/ information requests ................................$ 1.75 each
Check preparation ...................................................$ .50 each
Liquidations paid by wire transfer ..................................$ 3.00 each
ACH charge ..........................................................$ .45 each
SWP .................................................................$ 1.00 each
A-1
(c) 24 HOUR AUTOMATED VOICE RESPONSE:
Initial set-up (one-time) charge per Fund - $750.00
Monthly maintenance charge per Fund - $50.00
All calls processed through automated voice response will be billed as a
customer service call listed above.
(d) FUND/SERV
All Funds processed through Fund/SERV will be subject to an additional monthly
charge of $250.00
All transactions processed through Fund/SERV will be billed at the transaction
fee rates listed in (b) above.
(e) INTERNET ACCESS:
Each shareholder/adviser/broker hit billed at $0.25 per hit.
(f) Issuance of Share Certificates:
For each share certificate issued by ADS, a $xx.xx charge will be assessed to
the Fund for which the certificate was issued.
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 Northeast
region (CPI) for the twelve-month period ending with the month preceding such
annual anniversary date.
(f) 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 $8.00 Bank Custody Fee.
A-2
(g) 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 costs for
printing fund documents, (i.e. printing of confirmation forms, shareholder
statements, redemption/dividend checks, envelopes, financial statements, proxy
statement, fund prospectus, etc.) proxy solicitation and mailing expenses,
travel requested by the Fund, telephone toll charges, 800-line costs and fees,
facsimile and data transmission costs, stationery and supplies (related to Fund
records), record storage, postage (plus a $0.085 service charge for all
mailings), pro-rata portion of annual SAS-70 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.
(h) 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:
Senior staff..........$150.00/hr.
Junior staff .........$ 75.00/hr.
Computer time.........$ 45.00/hr.
(I) SERVICE DEPOSIT:
The Fund will remit to ADS upon execution of this Agreement a security
deposit of equal to one (1) month's shareholder service fee. The service deposit
computation will be based either on the total number of shareholder accounts
(open and closed) of each Fund to be serviced or the minimum fee, whichever is
greater, as of the execution date of this Agreement. The Fund will have the
option to have the security deposit applied to the last month's service fee, or
applied to any new contract between the Fund and ADS.
However, if the Fund elects or is forced to terminate this Agreement
for any reason what-so-ever other than a material breach by ADS (including, but
not limited to, the voluntary or involuntary termination of the Fund,
liquidation of the Fund's assets, the sale or merger of the Fund or it's assets
to any successor entity) prior to the termination date of this Agreement as
specified in Section 7 of this Agreement, the Fund will forfeit the Security
Deposit paid to ADS upon execution of this Agreement
(J) CONVERSION CHARGE: (EXISTING FUNDS ONLY)
There will be a charge to convert the Fund's shareholder accounting
records on to the ADS stock transfer system. 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 agent's records.
A-3
INVESTA MANAGEMENT CO., INC.
TRANSFER AGENCY AGREEMENT
SCHEDULE B
FUNDS TO BE SERVICED UNDER THIS AGREEMENT
1. INVESTMENTWIZARD FUND
2. SUPER INDEX FUND
B-1
