AGENCY AGREEMENT
This AGREEMENT is made as of the 15th day of December, 1994,
between FIRST OF MICHIGAN CORPORATION, a Delaware corporation ("FoM"),
having its principal office and place of business at 000 Xxxxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxx, Xxxxxxxx, and CRANBROOK FUNDS, a Massachusetts business
trust (the "Fund"), having its office at 000 Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxxx.
The Fund is registered with the Securities and Exchange Commission
(the "Commission") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and intends to
initially offer two series of its shares to be known as "Cranbrook Money
Market Fund" and "Cranbrook Treasury Fund" (the "Series"). FoM is
registered with the Commission as a transfer agent pursuant to Section 17A
of the Securities Exchange Act of 1934, as amended.
The parties hereto pursuant to the terms hereof enter into the
following Agreement:
ARTICLE I
Appointment As Agent
The Fund hereby appoints FoM to serve as transfer agent and
dividend disbursing agent for the Series and FoM agrees to provide such
services as provided herein. As transfer agent, FoM agrees to furnish to
each shareholder a statement which shows all activity in the shareholder's
account, including purchases, redemptions, and reinvestment of dividends,
since the last such statement, such statements to be mailed at such
intervals as may be reguested by the Fund: and on behalf of the Fund, to
forward any inguiries or correspondence from or with shareholders to such
persons as the Fund may designate from time to time. Further, FoM regularly
will furnish the Fund with current shareholder lists and information
necessary to keep the shares in balance with the Fund's records. FoM shall
provide such computer services as may be required to maintain a record of
the status of each shareholder account, including dividends accrued to such
account on a daily basis, and shall provide terminal facilities for
processing of shareholder purchase and redemption requests as well as
maintenance of customer data. The mailing of all financial statements,
statements, notices and prospectuses to shareholders is to be performed by
FoM, subject to reimbursement for out of pocket expenses, as provided in
Article II.
ARTICLE II
Fees for Services of the Agent
As compensation for all services rendered and to be rendered by FoM
pursuant to this Agreement, the Fund shall pay to FoM a monthly fee equal to
$0.7178 multiplied by the number of shareholder accounts on the date as of
which each monthly mailing of shareholder statements is to be made (plus
$0.7178 for each duplicate statement mailed); or if no such monthly mailing
is to be made, as of the last day of each calendar month. The Fund will
reimburse FoM for any direct out-of-pocket expenses for forms and mailing
costs used in performing its functions, except that customary out-of-pocket
expenses (including postage) incurred in connection with the periodic
mailing of shareholder account statements on a basis no more frequently than
once per month shall be borne by FoM and not reimbursed by the Fund.
ARTICLE III
Measure of Conduct of Agent
FoM shall use its best judgment and knowledge in rendering the
services to be rendered by it hereunder, but shall incur no liability for
services rendered, nor for instructions or recommendations given or acts or
failure to act hereunder, except for willful misfeasance, bad faith and
gross negligence in the performance of such services, or reckless disregard
of its obligations.
ARTICLE IV
Amendment and Termination of Agreement
This Agreement shall commence on the date first above written and
shall continue until terminated as hereafter provided, and may be modified
or amended from time to time by mutual agreement between the parties hereto.
This Agreement may be terminated at any time by ninety (90) days' written
notice given by one party to the other.
ARTICLE V
Specific Provisions Concerning
FoM Acting as Transfer Agent
Section 1. Recording of Shares. FoM, as Transfer Agent, is
authorized, empowered and directed to record units of beneficial interest of
the Fund ("shares") in relation to which FoM has been appointed, namely:
shares of original issue of each Series when authorized by resolution of the
shareholders and/or Trustees of the Fund, in such names and for such number
of shares as shall have been directed by the Fund.
The recording of ownership of shares of the Fund may be integrated
with FoM's accounting and record keeping systems in any manner deemed
appropriate by FoM, provided that any such system shall be capable of
accurate and timely recording of ownership of Fund shares; and provided
further that notwithstanding such integration, each listing of ownership of
Fund shares so recorded pursuant to any integrated system shall constitute a
register of ownership of Fund shares.
Upon receipt of a purchase order for the purchase of shares and
sufficient information to enable FoM to establish a shareholder account, and
after confirmation of receipt or crediting of Federal funds for the order
from NBD Bank, N.A., as the Fund's Custodian (the "Custodian"), FoM shall
issue and credit the account of the shareholder with shares in the manner
described in the Fund's then current Prospectus describing such shares.
Upon receipt of a redemption order, FoM shall redeem the number of shares
indicated thereon from the redeeming shareholders account and receive from
the Custodian and disburse to the redeeming shareholder the redemption
proceeds therefor, or arrange for direct payment of redemption proceeds to
such shareholder by the Custodian, in accordance with such procedures and
controls as are mutually agreed upon from time to time by and among the
Fund, FoM, and the Custodian.
Section 2. Refusal or Delay of Transfers; Guaranties; Proof Of
Ownership: Particular Action or Instructions. FoM as Transfer Agent may
refuse or delay to record an issuance or redemption of shares unless and
until it shall have been satisfied in its sole discretion that the requested
issuance or redemption is authorized, in which case it may require such
evidence and/or guaranty as shall be satisfactory to it until it shall have
been satisfied in its discretion as to the power, authority and capacity of
any person whose act may be relied upon to effect the issuance or redemption
requested.
FoM shall incur no liability for the refusal in good faith to
record an issuance or redemption which it, in its judgment, deems improper
or unauthorized.
FoM as Transfer Agent is authorized to take or suffer any action in
accordance with instructions in writing signed by an officer of the Fund in
recording shares, notwithstanding any irregularity or lack of power,
authority or capacity of some party to the transaction, and without any
further inquiry concerning or examination into any facts, acts or
instruments. FoM as Transfer Agent, upon receipt of instructions in writing
from an officer of the Fund, will address and mail to the shareholders such
notices, proxy material, financial statements, and other printed matter as
the Fund may desire to send.
FoM as Transfer Agent shall make available to the Fund, and to such
persons responsible for administration of Fund affairs as the Fund may
designate, computerized access to the current list of the registered holders
of shares as shown by the Transfer Agent's records.
In case of any demand upon FoM for inspection of the records of
ownership of shares of the Fund, FoM shall endeavor to notify the Fund and
to secure instructions from an officer of the Fund to permit or to refuse to
permit such inspection. In the absence of instructions to the contrary, FoM
will be authorized to exhibit such records to any duly accredited
representative of any Federal or State governmental authority upon request
of such representative, or pursuant to order of a court. FoM reserves the
right, however, to exhibit such records to any person in case it is advised
by its legal counsel that it may be held liable for the failure to exhibit
such records to such person.
ARTICLE VI
Specific Provisions Concerning FoM
Acting as Dividend Disbursing Agent
FoM will act as Dividend Disbursing Agent for the Fund. As
Dividend Disbursing Agent it will, as agent for each shareholder, reinvest
all dividends and distributions for the shareholder in additional full and
fractional shares of the applicable series, or, if a proper election has
been filed by the shareholder, shall distribute such distributions and
dividends, on the date upon which the dividend or distribution is to be
paid, and of the record date as of which the list is to be taken of persons
entitled to receive such dividend or distribution. The Fund shall cause to
be deposited with FoM prior to 12:00 Noon of the day on which the dividend
or distribution is to be paid the amount of money necessary for the payment
of such dividend or distribution, without which deposit FoM will not be
under any obligation to distribute such dividend or distribution.
Dividend checks shall be of a form and size compatible for use on
the mechanical equipment of FoM. A sufficient supply of such checks must be
in the possession of FoM on the record date. Any portion of monies
deposited with FoM for the payment of a dividend or distribution, which
shall remain unclaimed by the person or persons entitled thereto at the end
of three years from the payment date of such dividend or distribution, shall
be returned to the Fund, to be held by the Fund for the same purpose as if
held by FoM, and thereafter any person entitled to payment out of said fund
shall look only to the Fund for payment thereof, although such person say
have in his possession the dividend check drawn by FoM as Transfer Agent and
Dividend Disbursing Agent for the amount payable. If a shareholder shall
report to FoM that any such check so mailed has been lost, stolen or
destroyed and that he has not received the proceeds thereof and if the check
has not been paid, then, upon execution of an indemnity agreement in form
satisfactory to FoM and the Fund, FoM may stop payment upon such check and
may issue and deliver to such shareholder a new check for like amount. Such
indemnity agreement may be in the form of an endorsement upon the new check.
FoM may defer the issue of the new check for a period of 30 days or more.
FoM shall prepare and file with the Internal Revenue Service and other
appropriate taxing authorities, and address and mail to shareholders or
their authorized representatives such returns and information relating to
dividends and distributions paid by the Fund as are required to be so
prepared, filed and mailed by applicable laws, rules and regulations, or
such substitute form of notice as may from time to time be permitted or
required by the Internal Revenue Service or other appropriate taxing
authorities. On behalf of the Fund, FoM shall pay on a timely basis to the
appropriate Federal authorities any taxes required by applicable Federal tax
laws to be withheld by the Fund on dividends and distributions paid by the
Fund.
ARTICLE VII
General
FoM shall be protected in acting upon any paper or document
believed by it to be genuine and to have been signed by the proper person or
persons and shall not be held to have notice of any change of authority of
any person, until receipt of written notice thereof from the Fund.
FoM represents that it has and is currently registered as a
transfer agent with the Commission and has complied with the regulations of
the appropriate federal agency for registered transfer agents. FoM agrees
that it will continue to be registered as a transfer agent with the
appropriate federal agency for the duration of this Agreement. Should FoM
fail to be registered with the appropriate federal agency as a transfer
agent at any time during this Agreement, the Fund may, on written notice to
FoM, immediately terminate this Agreement.
The Fund assumes full responsibility and will indemnify FoM and
save it harmless from and against any and all actions or suits, whether
groundless or otherwise, and from and against any and all losses, damages,
costs, chargos, counsel fees, payments, expenses and liabilities arising out
of the agency relationship, where FoM has acted in good faith and with due
diLigence and without negligence. FoM shall not be under any obligation to
prosecute any action or suit in respect of the agency relationship which, in
its sole judgment, may involve it in expense or liability. In any action or
suit the Fund shall, as often as requested, furnish FoM with satisfactory
indemnity against any expense or liability growing out of such action or
suit by or against FoM in its agency capacity.
Unless othervise expressly limited by the resolution of appointment
or by subsequent Fund action, the appointment of FoM as Transfer Agent and
Dividend Disbursing Agent will be construed to cover the full amount of each
Series of authorized shares of the Fund as the same shall from time to time
be constituted.
FoM shall not register or record any shares of the Fund in excess
of the number of shares of the same class or series which the Fund has
theretofore authorized FoM so to register and record.
FoM shall maintain records for each Series showing for each
shareholder's account such historical information and shareholder data as
may be requested by the Fund.
FoM shall furnish the Fund state by state registration reports,
such periodic and special reports as the Fund may reasonably request, and
such other information, including shareholder lists and statistical
information concerning accounts, as may be agreed upon from time to time
between the Fund and FoM.
Any such records required to be maintained by Rule 31a-1 under the
1940 Act shall be preserved for the periods prescribed in Rule 31a-2.
Records may be inspected by the Fund at reasonable times. Records and
documents shall be retained six years from the year of creation, during the
first two of which such documents will be in readily accessible form. At
the end of the six year period, such records and documents will either be
turned over to the Fund or destroyed i,n accordance with the Funds
authorization.
In the event of equipment failures beyond FoM's control, FoM shall,
at no additional expense to the Fund, take reasonable steps to minimize
service interruptions but shall have no liability with respect thereto. FoM
shall enter into and shall maintain in effect with appropriate parties one
or more agreements making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
At any time FoM may apply to any officer of the Fund for
instructions, and may consult with legal counsel for the Fund or its own
legal counsel, at the expense of the Fund, in respect of any matter arising
in connection with the agency, and it shall not be liable for any action
taken or not taken or suffered by it in good faith in accordance with such
instructions or with the opinion of counsel. However, nothing in this
paragraph shall be construed as imposing upon FoM any obligation (i) to seek
such directions or advice, or (ii) to act in accordance with such directions
or advice when received, unless, under the terms of another provision of
this Agreement, the same is a condition to FoM's properly taking or omitting
to take such action. The Fund will hold FoM harmless against the claim or
demand of any person as a result of action taken or not taken upon
instructions from the Fund.
The Declaration of Trust establishing the Fund, dated November 30,
1994, a copy of which, together with all amendments thereto (the
"Declaration"), is on file in the office of the Secretary of the
Commonwealth of Massachusetts, provides that the name "Cranbrook Funds"
refers to the Trustees under the Declaration, collectively as Trustees, but
not as individuals or personally; and no Trustee, shareholder, officer,
employee or agent of Cranbrook Funds shall be held to any personal
liability, nor shall resort be had to their private property for the
satisfaction of any obligation or claim or otherwise in connection with the
affairs of said Cranbrook Funds, but the Fund Estate only shall be liable.
This Agreement shall be governed by the laws of the State of
Michigan, without reference to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed on behalf of each of them by their duly authorized officers
the date and year first above written.
FIRST OF MICHIGAN CORPORATION
By: /S/ XXXXXXX X. XXXXXXX
Its: VICE PRESIDENT
CRANBROOK FUNDS
By: /S/ XXXXXX X. XXXXX
Its: PRESIDENT
