TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 3rd day of November,
2000, by and between Everest Funds, a trust organized under the laws of the
State of Delaware (the "Trust") and Firstar Mutual Fund Services, LLC, a limited
liability company organized under the laws of the State of Wisconsin ("FMFS").
WHEREAS, the Trust is an open-end investment management company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to create separate series, each with
its own separate investment portfolio;
WHEREAS, FMFS is in the business of providing, among other things,
transfer agent and dividend disbursing agent services to investment companies;
and
WHEREAS, the Trust desires to retain FMFS to provide transfer agent
services to each of the portfolios of the Trust, and each additional series of
the Trust listed on Exhibit A attached as may be amended from time to time
(individually a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Trust and FMFS agree as follows:
1. APPOINTMENT OF TRANSFER AGENT
The Trust hereby appoints FMFS as Transfer Agent of the Trust on the
terms and conditions set forth in this Agreement, and FMFS hereby accepts such
appointment and agrees to perform the services and duties set forth in this
Agreement in consideration of the compensation provided for herein.
2. DUTIES AND RESPONSIBILITIES OF FMFS
FMFS shall perform all of the customary services of a transfer agent
and 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), including but not
limited to:
A. Receive orders for the purchase of the Trust's shares ("Shares");
B. Process purchase orders with prompt delivery, where
appropriate, of payment and supporting documentation to the
Trust's custodian, and issue the appropriate number of
uncertificated Shares with such uncertificated Shares being
held in the appropriate shareholder account on a timely basis
in accordance with applicable securities laws;
C. Arrange for issuance of Shares obtained through transfers of
funds from the Trust's shareholders' ("Shareholders") accounts at
financial institutions and arrange for the exchange of Shares for
shares of other eligible investment companies, when permitted by
the Fund's prospectus;
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Trust's
custodian on a timely basis in accordance with applicable
securities laws;
E. Pay monies upon receipt from the Trust's custodian, where
relevant, in accordance with the instructions of redeeming
Shareholders;
F. Process transfers of Shares in accordance with the Shareholder's
instructions;
G. Process exchanges between Funds and/or classes of Shares of Funds;
H. Prepare and transmit payments for dividends and distributions
declared by the Trust with respect to the Fund, after deducting
any amount required to be withheld by any applicable laws, rules
and regulations and in accordance with Shareholder instructions;
I. Make changes to Shareholder records, including, but not limited
to, address changes in plans (i.e., systematic withdrawal,
automatic investment, dividend reinvestment, etc.);
J. Record the issuance of Shares of the Fund and maintain, pursuant
to Rule 17Ad-10(e) promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), a record of the
total number of Shares of the Fund which are authorized, issued
and outstanding;
K. Prepare Shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail Shareholder reports and prospectuses to current Shareholders;
M. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to
dividends and distributions for all Shareholders;
N. Provide Shareholder account information upon request and
prepare and mail confirmations and statements of account to
Shareholders for all purchases, redemption's and other confirmable
transactions as agreed upon with the Trust;
O. Mail requests for Shareholders' certifications under penalties of
perjury and pay on a timely basis to the appropriate Federal
authorities any taxes to be withheld on dividends and
distributions paid by the Trust, all as required by applicable
Federal tax laws and regulations;
P. Provide a Blue Sky System, which will enable the Trust to
monitor the total number of Shares of the Fund, sold in each
state. In addition, the Trust or its agent, including FMFS,
shall identify to FMFS in writing those transactions and
assets to be treated as exempt from the Blue Sky reporting for
each state. The responsibility of FMFS for the Trust's Blue
Sky state registration status is solely limited to the initial
compliance by the Trust and the reporting of such transactions
to the Trust or its agent;
Q. Answer correspondence from Shareholders, securities brokers and
others relating to FMFS's duties hereunder and such other
correspondence as may from time to time be mutually agreed upon
between FMFS and the Trust;
R. Reimburse the Fund(s) each month for all material losses resulting
from "as of" processing errors for which FMFS is responsible in
accordance with the "as of" processing guidelines set forth in
the attached Exhibit B; and
S. Provide such other services that may be required of a transfer
agent under the rules promulgated under the 1940 Act, as
amended, the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
3. COMPENSATION
FMFS shall be compensated for providing the services set forth in this
Agreement in accordance with the Fee Schedule attached hereto as Exhibit A and
as mutually agreed upon and amended from time to time. The Trust agrees to pay
all fees and reimbursable expenses within ten (10) business days following the
receipt of the billing notice.
4. REPRESENTATIONS OF FMFS
FMFS represents and warrants to the Trust that:
A. It is a limited liability company duly organized, existing and in
good standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act;
C. It is duly qualified to carry on its business in the State of
Wisconsin;
D. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize
it to enter and perform this Agreement;
F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement on a timely basis; and
G. It will comply with all applicable requirements of the
Securities Act and the Exchange Act, the 1940 Act, and any
other laws, rules, and regulations of governmental authorities
having jurisdiction.
5. REPRESENTATIONS OF THE TRUST
The Trust represents and warrants to FMFS that:
A. The Trust is an open-end investment company registered under the
1940 Act;
B. The Trust is organized, existing, and in good standing under the
laws of Delaware;
C. The Trust is empowered under applicable laws and by its
Declaration of Trust and Bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Declaration of Trust
have been taken to authorize it to enter into and perform this
Agreement;
E. The Trust will comply with all applicable requirements of the
Securities Act, the Exchange Act, the 1940 Act, and any laws,
rules and regulations of governmental authorities having
jurisdiction; and
F. A registration statement under the Securities Act and the 1940
Act will become effective and will remain effective, and
appropriate state securities law filings have been made and
will continue to be made, with respect to all Shares of the
Trust being offered for sale.
6. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
FMFS shall exercise reasonable care in the performance of its duties
under this Agreement. FMFS shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Trust in connection with matters
to which this Agreement relates, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies beyond FMFS's
control, except a loss arising out of or relating to the FMFS's refusal or
failure to comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the performance of its duties
under this Agreement. Notwithstanding any other provision of this Agreement, if
FMFS has exercised reasonable care in the performance of its duties under this
Agreement, the Trust shall indemnify and hold harmless FMFS from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which FMFS may sustain or incur or which may be asserted
against FMFS by any person arising out of any action taken or omitted to be
taken by it in performing the services hereunder, except for any and all claims,
demands, losses expenses, and liabilities arising out of or relating to FMFS's
refusal or failure to comply with the terms of this Agreement or from bad faith,
negligence or from willful misconduct on its part in performance of its duties
under this Agreement, (i) in accordance with the foregoing standards, or (ii) in
reliance upon any written or oral instruction provided to FMFS by any duly
authorized officer of the Trust, such duly authorized officer to be included in
a list of authorized officers furnished to FMFS and as amended from time to time
in writing by resolution of the Board of Trustees of the Trust.
FMFS shall indemnify and hold the Trust harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether with or
without basis in fact or law) of any and every nature (including reasonable
attorneys' fees) which the Trust may sustain or incur or which may be asserted
against the Trust by any person arising out of any action taken or omitted to be
taken by FMFS as a result of FMFS's refusal or failure to comply with the terms
of this Agreement, its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, FMFS shall take all reasonable steps to
minimize service interruptions for any period that such interruption continues.
FMFS will make every reasonable effort to restore any lost or damaged data and
correct any errors resulting from such a breakdown at the expense of FMFS. FMFS
agrees that it shall, at all times, have reasonable contingency plans with
appropriate parties, making reasonable provision for emergency use of electrical
data processing equipment. Representatives of the Trust shall be entitled to
inspect FMFS's premises and operating capabilities at any time during regular
business hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess and
correct administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all reasonable care to
notify the indemnitor promptly concerning any situation which presents or
appears likely to present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee against any claim,
which may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or other expenses for which it
shall seek indemnification under this section unless the claim against the
indemnitee shall be adverse to the claim of the indemnitor. The indemnitee shall
in no case confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor's prior written consent.
7. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Trust,
all records and other information relative to the Trust and prior, present, or
potential Shareholders (and clients of said Shareholders) and not to use such
records and information for any purpose other than the performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where FMFS may be exposed to civil or criminal
contempt proceedings for failure to comply after being requested to divulge such
information by duly constituted authorities, or when so requested by the Trust.
8. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof and, unless
sooner terminated as provided herein, shall continue automatically in effect for
successive annual periods. The Agreement may be terminated by either party upon
giving ninety (90) days prior written notice to the other party or such shorter
period as is mutually agreed upon by the parties. However, this Agreement may be
amended by mutual written consent of the parties.
9. RECORDS
FMFS shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem advisable
and is agreeable to the Trust but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the 1940 Act, and the rules thereunder. FMFS agrees that all such records
prepared or maintained by FMFS relating to the services to be performed by FMFS
hereunder are the property of the Trust and will be preserved, maintained, and
made available with such section and rules of the 1940 Act and will be promptly
surrendered to the Trust on and in accordance with its request.
10. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Wisconsin.
However, nothing herein shall be construed in a manner inconsistent with the
1940 Act or any rule or regulation promulgated by the Securities and Exchange
Commission thereunder.
11. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor to any
of FMFS's duties or responsibilities hereunder is designated by the Trust by
written notice to FMFS, FMFS will promptly, upon such termination and at the
expense of the Trust, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by FMFS under this
Agreement in a form reasonably acceptable to the Trust (if such form differs
from the form in which FMFS has maintained, the Trust shall pay any direct
expenses associated with transferring the data to such form), and will cooperate
in the transfer of such duties and responsibilities, including provision for
assistance from FMFS's personnel in the establishment of books, records, and
other data by such successor.
12. NOTICES
Notices of any kind to be given by either party to the other party
shall be in writing and shall be duly given if mailed or delivered as follows:
NOTICE TO THE TRUST SHALL BE SENT TO: NOTICE TO FMFS SHALL BE SENT TO:
------------------------------------- --------------------------------
Everest Funds Firstar Mutual Fund Services, LLC
0000 X. 00xx Xxxxxx, 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000 Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxx
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer or one or more counterparts as of the day and year
first written above.
EVEREST FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By: ______________________________ By: _____________________________
Print: ___________________________ Print: __________________________
Title: ___________________________ Title:___________________________
