TRANSFER AGENCY AGREEMENT
EX
– 99(h)(2)
THIS TRANSFER AGENCY AGREEMENT
is made as of this 28th day of June, 2006, by and between Cheswold Lane Funds, a
Delaware statutory trust (the “Trust”), and UMB Fund Services, Inc., a Wisconsin
corporation, its successors and assigns (“UMBFS”).
RECITALS:
WHEREAS, the Trust is
registered under the 1940 Act as an open-end management investment company;
and
WHEREAS, the Trust desires to
retain UMBFS to render certain transfer agency and dividend disbursement
services, and UMBFS is willing to render such services, all in accordance with
the terms of this Agreement.
AGREEMENTS:
NOW, THEREFORE, in
consideration of the mutual promises and agreements contained herein and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto, intending to be legally bound, do hereby agree as
follows:
ARTICLE
I
DEFINITIONS
In addition to any terms defined in the
body of this Agreement, the following capitalized terms shall have the meanings
set forth hereinafter whenever they appear in this Agreement:
1.01 1940
Act shall mean the Investment Company Act of 1940, as amended from time
to time.
1.02 AML
Laws shall mean the rules promulgated under Sections 326 and 352 of the
USA PATRIOT Act.
1.03 Authorized
Person shall mean any individual who is authorized to provide UMBFS with
Instructions and requests on behalf of the Trust, whose name shall be certified
to UMBFS from time to time pursuant to Section 8.01 of this
Agreement.
1.04 Board of
Trustees shall mean the Board of Trustees of the Trust.
1.05 Custodian
shall mean the financial institution appointed as custodian under the terms and
conditions of the custody agreement between the financial institution and the
Trust, or its successor.
1.06 Declaration
of Trust shall mean the
Declaration of Trust or other similar operational document of the Trust, as the
case may be, as the same may be amended from time to time.
1.07 Exchange
Act shall mean the Securities Exchange Act of 1934, as amended from time
to time.
1.08 Fund
shall mean each separate series of Shares offered by the Trust representing
interests in a separate portfolio of securities and other assets for which the
Trust has appointed UMBFS as transfer agent and dividend disbursing agent under
this Agreement.
1.09 Fund
Business Day shall mean each day on which the New York Stock Exchange,
Inc. is open for trading.
1.10 Instructions
shall mean an oral communication from an Authorized Person or a written
communication signed by an Authorized Person and actually received by
UMBFS. Instructions shall include manually executed originals,
telefacsimile transmissions of manually executed originals or electronic
communications.
1.11 Prospectus
shall mean the current Prospectus and Statement of Additional Information with
respect to a Fund (including any applicable supplement) actually received by
UMBFS from the Trust with respect to which the Trust has indicated a
registration statement has become effective under the Securities Act and the
1940 Act.
1.12 Securities
Act shall mean the Securities Act of 1933, as amended from time to
time.
1.13 Shares
shall mean such shares of beneficial interest, or class thereof, of each
respective Fund of the Trust as may be issued from time to time.
1.14 Shareholder
shall mean a record owner of Shares of each respective Fund of the
Trust.
ARTICLE
II
APPOINTMENT
OF TRANSFER AGENT
2.01 Appointment. The Trust hereby
appoints UMBFS as transfer agent and dividend disbursing agent of all the Shares
of the Trust during the term of this Agreement with respect to each Fund listed
on Schedule A hereto, and any additional Fund the Trust and UMBFS may agree to
include on any amended Schedule A. UMBFS hereby accepts such
appointment as transfer agent and dividend disbursing agent and agrees to
perform the duties thereof as hereinafter set forth.
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2.02
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Duties.
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A. UMBFS shall
perform the transfer agent and dividend disbursement services described on
Schedule B hereto and such additional services as may be agreed to by the
parties from time to time and set forth in an amendment to Schedule B
(collectively, the “Services”). UMBFS shall have no duties or
responsibilities other than those specifically set forth in this Agreement, and
no covenant or obligation to carry out any other duties or responsibilities
shall be implied in this Agreement against UMBFS.
B. UMBFS may,
in its discretion, appoint other parties to carry out some or all of its
responsibilities under this Agreement.
2.03 Deliveries.
A. In connection with UMBFS’
appointment as transfer agent and dividend disbursing agent, the Trust shall
deliver or cause the following documents to be delivered to UMBFS:
(1) A
copy of the Declaration of Trust and By-laws of the Trust and all amendments
thereto, certified by the Secretary of the Trust;
(2) A
certificate signed by the President and Secretary of the Trust specifying the
number of authorized Shares and the number of such authorized Shares issued and
currently outstanding, if any, the validity of the authorized and outstanding
Shares, whether such shares are fully paid and non-assessable, and the status of
the Shares under the Securities Act and any other applicable federal law or
regulation;
(3) A
certified copy of the resolutions of the Board of Trustees of the Trust
appointing UMBFS as transfer agent and dividend disbursing agent and authorizing
the execution of this Transfer Agency Agreement on behalf of the
Trust;
(4) Copies
of the Trust’s Registration Statement, as amended to date, and the most recently
filed Post-Effective Amendment thereto, filed by the Trust with the Securities
and Exchange Commission under the Securities Act and the 1940 Act, together with
any applications filed in connection therewith;and
(5) The
certificate required by Section 8.01 of this Agreement, signed by an officer of
the Trust and designating the names of the Trust’s initial Authorized
Persons.
B. The Trust agrees to
deliver or to cause to be delivered to UMBFS in Milwaukee, Wisconsin, at the
Trust’s expense, all of its Shareholder account records in a format acceptable
to UMBFS, as well as all other documents, records and information that UMBFS may
reasonably request in order for UMBFS to perform the Services
hereunder.
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ARTICLE
III
COMPENSATION
& EXPENSES
3.01 Compensation. As compensation for the
performance of the Services, the Trust agrees to pay UMBFS the fees set forth on
Schedule C attached hereto. Fees shall be adjusted in accordance with Schedule C
or as otherwise agreed to by the parties from time to time. The parties may
amend Schedule C to include fees for any additional services requested by the
Trust, enhancements to current Services, or to add Funds for which UMBFS has
been retained. The Trust agrees to pay UMBFS’ then current rate for
any Services added to, or any enhancements to existing Services set forth on,
Schedule C after the execution of this Agreement.
3.02 Expenses. The Trust also
agrees to promptly reimburse UMBFS for all out-of-pocket expenses or
disbursements incurred by UMBFS in connection with the performance of Services
under this Agreement. Out-of-pocket expense shall include, but not be
limited to, those items specified on Schedule C hereto. If requested
by UMBFS, out-of-pocket expenses are payable in advance. Payment of
postage expenses, if prepayment is requested, is due at least seven days prior
to the anticipated mail date. In the event UMBFS requests advance
payment, UMBFS shall not be obligated to incur such expenses or perform the
related Service(s) until payment is received.
3.03 Payment
Procedures.
A. The Trust agrees to pay all amounts
due hereunder within thirty (30) days of the date reflected on the statement for
such Services (the “Due Date”). Except as provided in Schedule C,
UMBFS shall xxxx Service fees monthly, and out-of-pocket expenses as incurred
(unless prepayment is requested by UMBFS). UMBFS may, at its option,
arrange to have various service providers submit invoices directly to the Trust
for payment of reimbursable out-of-pocket expenses.
B. The Trust is aware that its failure
to remit to UMBFS all amounts due on or before the Due Date will cause UMBFS to
incur costs not contemplated by this Agreement, including, but not limited to
carrying, processing and accounting charges. Accordingly, in the
event that UMBFS does not receive any amounts due hereunder by the due date, the
Trust agrees to pay a late charge on the overdue amount equal to one and
one-half percent (1.5%) per month or the maximum amount permitted by law,
whichever is less. In addition, the Trust shall pay UMBFS’ reasonable
attorney’s fees and court costs if any amounts due UMBFS are collected by or
through an attorney. The parties hereby agree that such late charge
represents a fair and reasonable computation of the costs incurred by reason of
the Trust’s late payment. Acceptance of such late charge shall in no
event constitute a waiver by UMBFS of the Trust’s default or prevent UMBFS from
exercising any other rights and remedies available to it.
C. In the event that any charges are
disputed, the Trust shall, on or before the Due Date, pay all undisputed amounts
due hereunder and notify UMBFS in writing of any disputed charges for
out-of-pocket expenses which it is disputing in good faith. Payment
for such disputed charges shall be due on or before the close of the fifth (5th)
business day after the day on which UMBFS provides to the Fund documentation
which an objective observer would agree reasonably supports the disputed charges
(the “Revised Due Date”). Late charges shall not begin to accrue as
to charges disputed in good faith until the first day after the Revised Due
Date.
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3.04 Allocation
of Risk. The Trust
acknowledges that the fees charged by UMBFS under this Agreement reflect the
allocation of risk between the parties, including the exclusion of remedies and
limitations on liability in Article IX. Modifying the allocation of
risk from what is stated herein would affect the fees that UMBFS
charges. Accordingly, in consideration of those fees, the Trust
agrees to the stated allocation of risk.
ARTICLE
IV
PROCESSING
AND PROCEDURES
4.01 Issuance,
Redemption and Transfer of Shares
A. UMBFS agrees to accept purchase
orders and redemption requests with respect to the Shares of each Fund via
postal mail, telephone or personal delivery on each Fund Business Day in
accordance with such Fund’s Prospectus; provided, however, that UMBFS shall only
accept purchase orders from states in which the Shares are qualified for sale,
as indicated from time to time by the Trust. UMBFS shall, as of the
time at which the net asset value of each Fund is computed on each Fund Business
Day, issue to and redeem from the accounts specified in a purchase order or
redemption request in proper form and accepted by the Fund the appropriate
number of full and fractional Shares based on the net asset value per Share of
the respective Fund specified in an advice received on such Fund Business Day
from or on behalf of the Fund. UMBFS shall not be responsible for the
payment of any original issue or other taxes required to be paid by the Trust in
connection with the issuance of any Shares in accordance with this
Agreement. UMBFS shall not be required to issue any Shares after it
has received from an Authorized Person or from an appropriate federal or state
authority written notification that the sale of Shares has been suspended or
discontinued, and UMBFS shall be entitled to rely upon such written
notification. Payment for Shares shall be in the form of a check,
wire transfer, Automated Clearing House transfer or such other methods to which
the parties shall mutually agree.
B. Upon receipt of a
redemption request and monies paid to it by the Custodian in connection with a
redemption of Shares, UMBFS shall cancel the redeemed Shares and after making
appropriate deduction for any withholding of taxes required of it by applicable
federal law, make payment in accordance with the Fund’s redemption and payment
procedures described in the Prospectus.
C. Except as otherwise
provided in this paragraph, UMBFS will transfer or redeem Shares upon
presentation to UMBFS of instructions endorsed for exchange, transfer or
redemption, accompanied by such documents as UMBFS deems necessary to evidence
the authority of the person making such transfer or redemption. UMBFS
reserves the right to refuse to transfer or redeem Shares until it is satisfied
that the endorsement or instructions are valid and genuine. For that
purpose, it will require, unless otherwise instructed by an Authorized Person or
except as otherwise provided in this paragraph, a guarantee of signature by an
“Eligible Guarantor Institution” as that term is defined by SEC Rule
17Ad-15. UMBFS also reserves the right to refuse to transfer or
redeem Shares until it is satisfied that the requested transfer or redemption is
legally authorized, and it shall incur no liability for the refusal, in good
faith, to make transfers or redemptions which UMBFS, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no reasonable
basis to any claims adverse to such transfer or redemption. UMBFS
may, in effecting transfers and redemptions of Shares, rely upon those
provisions of the Uniform Act for the Simplification of Fiduciary Security
Transfers (or such other statutes which protect it and the Trust in not
requiring complete fiduciary documentation) and shall not be responsible for any
act done or omitted by it in good faith in reliance upon such
laws. Notwithstanding the foregoing or any other provision contained
in this Agreement to the contrary, UMBFS shall be fully protected by each Fund
in not requiring any instruments, documents, assurances, endorsements or
guarantees, including, without limitation, any Medallion signature guarantees,
in connection with a redemption, exchange or transfer of Shares whenever UMBFS
reasonably believes that requiring the same would be inconsistent with the
transfer and redemption procedures described in the Prospectus.
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D. Notwithstanding any
provision contained in this Agreement to the contrary, UMBFS shall not be
required or expected to require, as a condition to any transfer or redemption of
any Shares pursuant to a computer tape or electronic data transmission, any
documents to evidence the authority of the person requesting the transfer or
redemption and/or the payment of any stock transfer taxes, and shall be fully
protected in acting in accordance with the applicable provisions of this
Article.
E. In connection with each
purchase and each redemption of Shares, UMBFS shall send such statements as are
prescribed by the Federal securities laws applicable to transfer agents or as
described in the Prospectus. It is understood that certificates for
Shares have not been and will not be offered by the Trust or available to
investors.
F. UMBFS and the Trust shall
establish procedures for effecting purchase, redemption or transfer transactions
accepted from investors by telephone or other methods consistent with the terms
of the Prospectus. UMBFS may establish such additional procedures,
rules and regulations governing the purchase, redemption or transfer of Shares,
as it may deem advisable and consistent with the Prospectus and industry
practice. UMBFS shall not be liable, and shall be held harmless by
the Trust, for its actions or omissions which are consistent with the foregoing
procedures.
G. The Trust agrees to
provide UMBFS with prior notice of any increase or decrease in the total number
of Shares authorized to be issued, or the issuance of any additional Shares of a
Fund pursuant to stock dividends, stock splits, recapitalizations, capital
adjustments or similar transactions, and to deliver to UMBFS such documents,
certificates, reports and legal opinions as UMBFS may reasonably
request.
4.02 Dividends and
Distributions.
A. The Trust shall give or
cause to be given to UMBFS a copy of a resolution of its Board of Trustees, that
either:
(i) sets forth the date of
the declaration of a dividend or distribution, the date of accrual or payment,
as the case may be, thereof, the record date as of which Shareholders entitled
to payment or accrual, as the case may be, shall be determined, the amount per
Share of such dividend or distribution, the payment date on which all previously
accrued and unpaid dividends are to be paid, and the total amount, if any,
payable to UMBFS on such payment date, or
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(ii) authorizes the
declaration of dividends and distributions on a daily or other periodic basis
and further authorizes UMBFS to rely on a certificate of an Authorized Person
setting forth the information described in subsection (i) of this
paragraph.
B. In connection with a
reinvestment of a dividend or distribution of Shares of a Fund, UMBFS shall as
of each Fund Business Day, as specified in a certificate or resolution described
in paragraph A, issue Shares of the Fund based on the net asset value per Share
of such Fund specified in an advice received from or on behalf of the Fund on
such Fund Business Day.
C. Upon the mail date
specified in such certificate or resolution, as the case may be, the Trust
shall, in the case of a cash dividend or distribution, cause the Custodian to
deposit in an account in the name of UMBFS on behalf of a Fund, an amount of
cash sufficient for UMBFS to make the payment, as of the mail date specified in
such certificate or resolution, as the case may be, to the Shareholders who were
of record on the record date. UMBFS will, upon receipt of any such
cash, make payment of such cash dividends or distributions to the Shareholders
as of the record date. UMBFS shall not be liable for any improper
payments made in accordance with a certificate or resolution described in the
preceding paragraph. If UMBFS shall not receive from the Custodian
sufficient cash to make payments of any cash dividend or distribution to all
Shareholders of a Fund as of the record date, UMBFS shall, upon notifying the
Trust, withhold payment to such Shareholders until sufficient cash is provided
to UMBFS.
D. It is understood that
UMBFS in its capacity as transfer agent and dividend disbursing agent shall in
no way be responsible for the determination of the rate or form of dividends or
capital gain distributions due to the Shareholders pursuant to the terms of this
Agreement. It is further understood that UMBFS shall file with the
Internal Revenue Service and Shareholders such appropriate federal tax forms
concerning the payment of dividend and capital gain distributions but shall in
no way be responsible for the collection or withholding of taxes due on such
dividends or distributions due to shareholders, except and only to the extent,
required by applicable federal law.
4.03 Records.
A. UMBFS shall keep those
records specified in Schedule D hereto in the form and manner, and for such
period, as it may deem advisable but not inconsistent with the rules and
regulations of appropriate government authorities, in particular Rules 31a-2 and
31a-3 under the 1940 Act. UMBFS shall only destroy records at the
direction of the Trust, and any such destruction shall comply with the
provisions of Section 248.30(b) of Regulation S-P (17 CFR
248.1-248.30). UMBFS may deliver to the Trust from time to time at
UMBFS’ discretion, for safekeeping or disposition by the Trust in accordance
with law, such records, papers and documents accumulated in the execution of its
duties as transfer agent, as UMBFS may deem expedient, other than those which
UMBFS is itself required to maintain pursuant to applicable laws and
regulations. The Trust shall assume all responsibility for any
failure thereafter to produce any record, paper, or other document so returned,
if and when required. To the extent required by Section 31 of the
1940 Act and the rules and regulations thereunder, the records specified in
Schedule D hereto maintained by UMBFS, which have not been previously delivered
to the Trust pursuant to the foregoing provisions of this paragraph, shall be
considered to be the property of the Trust, shall be made available upon request
for inspection by the officers, employees, and auditors of the Trust, and shall
be delivered to the Trust promptly upon request and in any event upon the date
of termination of this Agreement, in the form and manner kept by UMBFS on such
date of termination or such earlier date as may be requested by the
Trust. Notwithstanding anything contained herein to the contrary,
UMBFS shall be permitted to maintain copies of any such records, papers and
documents to the extent necessary to comply with the recordkeeping requirements
of federal and state securities laws, tax laws and other applicable
laws.
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B. UMBFS agrees to keep all
records and other information relative to the Funds’ Shareholders confidential,
not to use such information other than for purposes of fulfilling its duties
under the Agreement and not to disclose such information except: (i) when
requested to divulge such information by duly-constituted authorities or court
process, or (ii) when requested by a Shareholder or Shareholder’s agent with
respect to information concerning an account as to which such Shareholder has
either a legal or beneficial interest, or (iii) when requested by the Trust, a
Fund, the Shareholder, the Shareholder’s agent or the dealer of record with
respect to such account, or (iv) to seek to prevent fraud and/or money
laundering by providing certain shareholder information to other financial
institutions, or (v) to an affiliate, as defined by Section 248.3(a) of
Regulation S-P; or (vi) pursuant to any other exception permitted by Sections
248.14 and 248.15 of Regulation S-P in the ordinary course of business to carry
out the activities covered by the exception under which UMBFS received the
information. In case of any requests or demands for inspection of the
records of the Funds, UMBFS will endeavor to notify the Trust promptly and to
secure instructions from a representative of the Trust as to such inspection.
Records and information which have become known to the public through no
wrongful act of UMBFS or any of its employees, agents or representatives, and
information which was already in the possession of UMBFS prior to receipt
thereof, shall not be subject to this paragraph.
ARTICLE
V
REPRESENTATION
AND WARRANTIES
5.01 Representations
of Trust. The Trust
represents and warrants to UMBFS that:
A. It is a business trust
duly organized and existing under the laws of the State of Massachusetts; it is
empowered under applicable laws and by its Declaration of Trust and By-laws to
enter into and perform this Agreement; and all requisite corporate proceedings
have been taken to authorize it to enter into and perform this
Agreement.
B. Any officer of the Trust
has the authority to appoint additional Authorized Persons, to limit or revoke
the authority of any previously designated Authorized Person, and to certify to
UMBFS the names of such Authorized Persons.
C. It is duly registered as
an investment company under the 1940 Act.
D. A registration statement
under the Securities Act is currently effective and will remain effective, and
appropriate state securities laws filings have been made and will continue to be
made, with respect to Shares of the Trust being offered for sale.
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E. All outstanding Shares
are validly issued, fully paid and non-assessable and when Shares are hereafter
issued in accordance with the terms of the Trust’s Declaration of Trust and its
Prospectus with respect to each Fund, such Shares shall be validly issued, fully
paid and non-assessable.
5.02 Representations
of UMBFS. UMBFS represents
and warrants to the Trust that:
A. It is a corporation duly
organized and existing under the laws of the State of Wisconsin; it is empowered
under applicable law and by its Articles of Incorporation and By-laws to enter
into and perform this Agreement; and all requisite proceedings have been taken
to authorize it to enter into and perform this Agreement.
B. It is duly registered as
a transfer agent under Section 17A of the 1934 Act to the extent
required.
C. It has received a copy
of each Fund’s Prospectus which describes how sales and redemptions of Shares
shall be made.
ARTICLE
VI
ADDITIONAL
COVENANTS AND AGREEMENTS
6.01 Information
Updates. During the term of this Agreement the Trust shall
have the ongoing obligation to provide UMBFS with the following documents as
soon as they become effective: (i) certified copies of all amendments to its
Declaration of Trust and By-laws made after the date of this Agreement; and (ii)
a copy of each Fund’s currently effective Prospectus. For purposes of
this Agreement, UMBFS shall not be deemed to have notice of any information
contained in any such Prospectus until a reasonable time after it is actually
received by UMBFS.
6.02 Share
Qualification. The Trust agrees to take or cause to be taken
all requisite steps to qualify the Shares for sale in all states in which the
Shares shall at the time be offered for sale and require
qualification. If the Trust receives notice of any stop order or
other proceeding in any such state affecting such qualification or the sale of
Shares, or of any stop order or other proceeding under the federal securities
laws affecting the sale of Shares, the Trust will give prompt notice thereof to
UMBFS.
6.03 Compliance
with Laws. The Trust will comply with all applicable
requirements of the Securities Act, the Exchange Act, the 1940 Act, blue sky
laws, and any other applicable laws, rules and regulations.
6.04 Additional
Duties. The Trust agrees that it shall advise UMBFS at least
30 days prior to effecting any change in the Prospectus which would increase or
alter the duties and obligations of UMBFS hereunder, and shall proceed with such
change only if it shall have received the written consent of UMBFS
thereto.
6.05 Transfer
Agent System. UMBFS shall
retain all right, title and interest in and any and all computer programs,
screen formats, report formats, procedures, data bases, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, trade secrets, trademarks and other
related legal rights provided, developed or utilized by UMBFS in connection with
the Services provided by UMBFS to the Trust hereunder.
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6.06 Disaster
Recovery and Business Continuity Plan and Computer
System. UMBFS shall maintain a disaster recovery and business
continuity plan and adequate and reliable computer and other equipment necessary
and appropriate to carry out its obligations under this
Agreement. Upon the Fund’s reasonable request, UMBFS shall provide
supplemental information concerning the aspects of its disaster recovery and
business continuity plan that are relevant to the services
hereunder.
ARTICLE
VII
AML
DELEGATION
7.01 Background. In
order to assist its transfer agent clients with their anti-money laundering
responsibilities under the AML Laws, UMBFS offers various tools designed to
promote the detection and reporting of potential money laundering activity by
monitoring certain aspects of shareholder activity, assist in the verification
of persons opening accounts with the Trust and determine whether such persons
appear on any list of known or suspected terrorists or terrorist organizations.
The Trust has, after review, selected various procedures and tools offered by
UMBFS to comply with its anti-money laundering and customer identification
program obligations under the AML Laws (the “AML Procedures”), and desires to
implement the AML Procedures as part of its overall anti-money laundering
program and, subject to the terms of the AML Laws, delegate to UMBFS the
day-to-day operation of the AML Procedures on behalf of the Trust.
7.02 Delegation. The
Trust acknowledges that it has had an opportunity to review, consider and
comment upon and select the AML Procedures and the Trust has determined that
they, as part of the Trust’s overall anti-money laundering program, are
reasonably designed to prevent the Trust from being used for money laundering or
the financing of terrorist activities and to achieve compliance with the
applicable provisions of the AML Laws. Based on this determination,
the Trust hereby instructs and directs UMBFS to implement the AML Procedures on
its behalf, as such may be amended or revised from time to time. The
customer identification verification component of the AML Procedures applies
only to shareholders who are residents of the United States.
7.03 Amendment
to Procedures. It is contemplated that the AML Procedures will
be amended from time to time by the parties as directed by the Trust based on
its experience in the operation of the AML Procedures and/or as additional
regulations are adopted and/or regulatory guidance is provided relating to the
Trust’s anti-money laundering responsibilities.
7.04 Reporting. UMBFS
agrees to provide to the Trust (i) prompt notification of any
transaction or combination of transactions that UMBFS believes, based on the AML
Procedures, evidence money laundering activity in connection with the Trust or
any shareholder of the Trust, (ii) any reports received by UMBFS from any
government agency or applicable industry self-regulatory organization pertaining
to UMBFS’ anti-money laundering monitoring on behalf of the Trust as provided in
this Article VII, (iii) any action taken in response to anti-money laundering
violations as described in (i) or (ii) and (iv) a quarterly reports of its
monitoring and verification activities on behalf of the Trust. UMBFS
shall provide such other reports on the verification activities conducted at the
direction of the Trust as may be agreed to from time to time by UMBFS and the
Trust’s anti-money laundering compliance officer.
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7.05 Inspection. The Trust hereby
directs, and UMBFS acknowledges, that UMBFS shall (1) permit federal regulators
access to such information and records maintained by UMBFS and relating to
UMBFS’ implementation of the AML Procedures on behalf of the Trust, as they may
request, and (2) permit such federal regulators to inspect UMBFS’ implementation
of the AML Procedures on behalf of the Trust.
ARTICLE
VIII
TRUST
INSTRUCTIONS
8.01 Authorized
Persons. Upon the execution of this Agreement, the Trust shall
provide UMBFS with a certificate containing the names of the initial Authorized
Persons in a form acceptable to UMBFS. Any officer of the Trust shall
be considered an Authorized Person (unless such authority is limited in a
writing from the Trust and received by UMBFS) and has the authority to appoint
additional Authorized Persons, to limit or revoke the authority of any
previously designated Authorized Person, and to certify to UMBFS the names of
the Authorized Persons from time to time. The Trust shall provide
UMBFS with an updated certificate evidencing the appointment, removal or change
of authority of any Authorized Person, it being understood UMBFS shall not be
held to have notice of any change in the authority of any Authorized Person
until receipt of written notice thereof from the Trust.
8.02 Acceptance
of Instructions. UMBFS, its officers, agents or employees
shall accept Instructions given to them by any person representing or acting on
behalf of the Trust only if such representative is an Authorized
Person. The Trust agrees that when oral Instructions are given, it
shall, upon the request of UMBFS, confirm such Instructions in
writing.
8.03 Request
for Instructions. At any time,
UMBFS may request Instructions from the Trust with respect to any matter arising
in connection with this Agreement. If such Instructions are not received within
a reasonable time, then UMBFS may seek advice from legal counsel for the Trust
at the expense of the Trust, or its own legal counsel at its own expense, and it
shall not be liable for any action taken or not taken by it in good faith in
accordance with such Instructions or in accordance with advice of
counsel.
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ARTICLE
IX
LIMITATION
OF LIABILITY; INDEMNIFICATION
9.01 Limitation
of Liability. Notwithstanding
anything contained in this Agreement to the contrary, UMBFS shall not be liable
for any error of judgment or mistake of law or for any loss suffered by the
Trust or the Funds in connection with the matters to which this Agreement
relates, except for a loss resulting from UMBFS’ willful misfeasance, bad faith
or negligence in the performance of its duties or from reckless disregard by it
of its obligations and duties under this Agreement. Furthermore,
UMBFS shall not be liable for (1) any action taken or omitted to be taken in
accordance with or in reliance upon written or oral instructions, advice, data,
documents or information (without investigation or verification) received by
UMBFS from an officer or representative of the Trust or from a representative of
any of the parties referenced in Section 11.09, or (2) any action taken or
omission by a Fund, the Trust, investment adviser(s) or any past or current
service provider.
9.02
Indemnification. The Trust agrees to
indemnify and hold harmless UMBFS, its employees, agents, officers, directors,
affiliates and nominees (“Indemnified Parties”) from and against any and all
claims, demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character which may be asserted against or incurred by any
Indemnified Party or for which any Indemnified Party may be held liable (a
“Claim”) arising out of or in any way relating to any of the
following:
(a) any action or omission
of UMBFS except to the extent a Claim resulted from UMBFS’ willful misfeasance,
bad faith, negligence in the performance of its duties or from reckless
disregard by it of its obligations and duties hereunder;
(b) UMBFS’ reliance on,
implementation of, or use, without investigation or verification, of
information, data, records and documents received by UMBFS from the Trust, or
from a representative of any of the parties referenced in Section 11.09, or any
third party acting on behalf of the Trust;
(c) the reliance on, or the
implementation of, any Instructions or any other advice, instructions, requests
or directions of the Trust or from a representative of any of the parties
referenced in Section 11.09, or any third party acting on behalf of the
Trust;
(d) UMBFS’ acting upon
telephone or electronic instructions relating to the purchase, exchange or
redemption of Shares received by UMBFS in accordance with procedures established
by UMBFS and the Trust;
(e) any
action taken by or omission of the Trust, investment adviser or sub-adviser(s)
or any past or current service provider;
(f)
the acceptance, processing and/or negotiation of a fraudulent payment for the
purchase of Shares unless the result of UMBFS’ or its affiliates’ willful
misfeasance, bad faith or negligence in the performance of its duties or from
reckless disregard by it of its obligations and duties under this
Agreement. In the absence of a finding to the contrary, the
acceptance, processing and/or negotiation of a fraudulent payment for the
purchase of Shares shall be presumed not to have been the result of UMBFS’ or
its affiliates’ willful misfeasance, bad faith or negligence.
12
(g) the offer or sale of
Shares in violation of any requirement under the securities laws or regulations
of any state that such Shares be qualified for sale in such state or in
violation of any stop order or determination or ruling by any state with respect
to the offer or sale of such Shares in such state; or
(h) the
Trust’s refusal or failure to comply with the terms of the Agreement, or any
Claim that arises out of the Trust’s negligence or misconduct or breach of any
representation or warranty of the Trust made herein.
9.03 Indemnification
Procedures. UMBFS will notify
the Trust promptly after identifying any situation which it believes presents or
appears likely to present a Claim for which the Trust may be required to
indemnify or hold UMBFS harmless hereunder. In such event, the Trust
shall have the option to defend UMBFS against any Claim, and, in the event that
the Trust so elects, such defense shall be conducted by counsel chosen by the
Trust and approved by UMBFS in its reasonable discretion. UMBFS shall
not confess any Claim or make any compromise in any case in which the Trust will
be asked to provide indemnification, except with the Trust’s prior written
consent. The obligations of the parties under the Sections 9.02 and
9.03 shall survive the termination of this Agreement.
9.04 Force
Majeure. UMBFS assumes no responsibility hereunder, and shall
not be liable, for any damage, loss of data or documents, errors, delay or any
other loss whatsoever caused by events beyond its reasonable
control. UMBFS will, however, take all reasonable steps to minimize
service interruptions for any period that such interruption continues beyond
UMBFS’ control.
9.05 Consequential
Damages. In no event and under no circumstances shall UMBFS,
its affiliates or any of its or their officers, directors, agents or employees
be liable to anyone, including, without limitation, [the Trust], under any
theory of tort, contract, strict liability or other legal or equitable theory
for lost profits, exemplary, punitive, special, indirect or consequential
damages for any act or failure to act under any provision of this Agreement
regardless of whether such damages were foreseeable and even if advised of the
possibility thereof.
9.06 Additional
Limitations and Exclusions. Notwithstanding any other
provision of this Agreement, UMBFS shall have no duty or obligation under this
Agreement to inquire into, and shall not be liable for:
(a) The legality of the
issue or sale of any Shares, the sufficiency of the amount to be received
therefor, or the authority of the Trust, as the case may be, to request such
sale or issuance;
(b) The legality of a
transfer of Shares or of a purchase or redemption of any Shares, the propriety
of the amount to be paid therefor, or the authority of the Trust, as the case
may be, to request such transfer or redemption;
13
(c) The legality of the
declaration of any dividend by the Trust, or the legality of the issue of any
Shares in payment of any stock dividend; or
(d) The legality of any
recapitalization or readjustment of Shares.
ARTICLE
X
TERM
AND TERMINATION
10.01 Term. This
Agreement shall become effective with respect to each Fund listed on Schedule A
hereof as of the date hereof and, with respect to each Fund not in existence on
that date, on the date an amendment to Schedule A to this Agreement relating to
that Fund is executed. This Agreement shall continue in effect with
respect to each Fund until terminated as provided herein.
10.02 Termination.
(a) Either party may
terminate this Agreement at any time by giving the other party a written notice
not less than sixty (60) days prior
to the date the termination is to be effective. In the event such
notice is given by the Trust pursuant to Section 10.02, it shall be accompanied
by a copy of a resolution of the Board of Trustees of the Trust certified by the
Secretary or any Assistant Secretary, electing to terminate this Agreement and
designating the successor transfer agent or transfer agents. In the
event such notice is given by UMBFS, the Trust shall on or before the
termination date, deliver to UMBFS a copy of a resolution of its Board of
Trustees certified by the Secretary or any Assistant Secretary designating a
successor transfer agent or transfer agents. In the absence of such
designation by the Trust, the Trust shall be deemed to be its own transfer agent
as of the termination date and UMBFS shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement. Fees and out-of-pocket
expenses incurred by UMBFS, but unpaid by the Trust upon such termination, shall
be immediately due and payable upon and notwithstanding such
termination.
(b) Notwithstanding
any other provision of this Agreement, in the event of an agreement to enter
into a transaction that would result in a Change of Control, as hereinafter
defined, of the Trust’s investment adviser or sponsor, the Trust’s ability to
terminate this Agreement pursuant to this Article X shall be suspended from the
time of such agreement until eighteen months after the Change of
Control. For purposes of this Agreement, a “Change of Control” of the
investment adviser or sponsor means a change in ownership or control of more
than fifty percent (50%) of the common stock or shares of beneficial interest of
such investment adviser or sponsor or its parent company.
10.03 Effect of
Termination. Notwithstanding anything herein to the contrary,
upon the termination of the Agreement as provided herein or the liquidation of a
Fund or the Trust, UMBFS shall deliver the records of the Trust to the Trust or
its successor transfer agent in a form that is consistent with UMBFS’ applicable
license agreements at the expense of the Trust, and thereafter the Trust or its
designee shall be solely responsible for preserving the records for the periods
required by all applicable laws, rules and regulations. The Trust
shall be responsible to UMBFS for all costs and expenses associated with the
preparation and delivery of such media and all reasonable trailing expenses
incurred by UMBFS, including, but not limited to: (a) out-of-pocket
expenses; (b) any custom programming requested by the Trust in connection with
the preparation of such media and agreed upon by UMBFS; (c) transportation of
forms and other materials used in connection with the processing of Trust
transactions by UMBFS; and (d) transportation of records and files in the
possession of UMBFS. In addition, UMBFS shall be entitled to such
compensation as the parties may mutually agree for any services other than the
preparation and delivery of such media requested by the Trust and agreed to by
UMBFS in connection with the termination of this Agreement or the liquidation or
merger of the Trust. UMBFS shall not reduce the level of service
provided to the Trust prior to termination following notice of termination by
the Trust.
14
ARTICLE
XI
MISCELLANEOUS
11.01 Notices. Any notice
required or permitted to be given by either party to the other under this
Agreement shall be in writing and shall be deemed to have been given when sent
by either an overnight delivery service or by registered or certified mail,
postage prepaid, return receipt requested, to the addresses listed below, or to
such other location as either party may from time to time designate in
writing:
|
If to UMBFS:
|
UMB
Fund Services, Inc.
|
|
000
Xxxx Xxxxxxxx Xxxxxx, Xxxxx X
|
|
|
Xxxxxxxxx,
Xxxxxxxxx 00000
|
|
|
Attention: General
Counsel
|
|
|
If to the Trust:
|
|
|
Xxx
Xxxxx Xxxxxx, Xxxxx 000
|
|
|
000
Xxxxx Xxxxxx
|
|
|
Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
|
|
|
Attention: Xxxx
Xxxxxxx,
President
|
11.02 Amendments/Assignments.
A. Except as provided to the
contrary herein, this Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the formality of
this Agreement.
B. This Agreement shall
extend to and shall be binding upon the parties hereto, and their respective
successors and assigns. This Agreement shall not be assignable by
either party without the written consent of the other party, except that UMBFS
may assign this Agreement to an affiliate with advance written notice to the
Trust and except as provided in Section 2.02.
11.03 Governing
Law. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of Wisconsin, without regard to its conflict of law
provisions.
11.04 Severability. If any part, term
or provision of this Agreement is determined by the courts or any regulatory
authority having jurisdiction over the issue 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.
15
11.05 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original; but such counterparts shall, together, constitute only
one instrument.
11.06 Non-Exclusivity;
Other Agreements. The services of
UMBFS hereunder are not deemed exclusive and UMBFS shall be free to render
similar and other services to others. Except as specifically provided
herein, this Agreement does not in any way affect any other agreements entered
into among the parties hereto and any actions taken or omitted by any party
hereunder shall not affect any rights or obligations of any other party
hereunder.
11.07 Captions. The captions in
the Agreement are included for convenience of reference only, and in no way
define or limit any of the provisions hereof or otherwise affect their
construction or effect.
11.08 Trust
Limitations. This Agreement is
executed by the Trust with respect to each of the Funds and the obligations
hereunder are not binding upon any of the trustees, officers or shareholders of
the Trust individually but are binding only upon the Fund to which such
obligations pertain and the assets and property of such Fund. All
obligations of the Trust under this Agreement shall apply only on a Fund-by-Fund
basis, and the assets of one Fund shall not be liable for the obligations of
another Fund. The Fund’s Declaration of Trust is on file with the
State of Delaware.
11.09 Reliance
on Information and Instructions. The Trustees of the Trust
shall cause the officers, trustees, investment adviser(s) and sub-advisers,
legal counsel, independent accountants, custodian and other service providers
and agents, past or present, for the Funds to cooperate with UMBFS and to
provide UMBFS with such information, documents and advice as necessary and/or
appropriate or as requested by UMBFS, in order to enable UMBFS to perform its
duties hereunder. In connection with its duties hereunder, UMBFS
shall (without investigation or verification) be entitled, and is hereby
instructed to, rely upon any and all instructions, advice, information or
documents provided to UMBFS by an officer or representative of the Funds or by
any of the aforementioned persons. UMBFS shall be entitled to rely on any
document that it reasonably believes to be genuine and to have been signed or
presented by the proper party. Fees charged by such persons shall be
an expense of the Trust. UMBFS shall not be held to have notice of any change of
authority of any officer, agent, representative or employee of the Trust,
investment adviser(s) or service provider until receipt of written notice
thereof from the Trust. As used in this Agreement, the term
“investment adviser” includes all sub-advisers or persons performing similar
services.
16
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the day and year
first above written.
|
UMB
FUND SERVICES, INC.
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||
|
By:
/s/ Xxxxxxxxx Xxx
Xxxxxxx
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By:
/s/ Xxxx Xxxxxxx
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|
|
(Signature)
|
(Signature)
|
|
|
Xxxxxxxxx Xxx Xxxxxxx
|
Xxxx Xxxxxxx
|
|
|
(Name)
|
(Name)
|
|
|
Sr. VP & General
Counsel
|
President
|
|
|
(Title)
|
(Title)
|
|
|
7/20/06
|
6/15/06
|
|
|
(Date
Signed)
|
(Date
Signed)
|
17
Schedule
A
to
the
by
and between
and
UMB
Fund Services, Inc.
NAMES OF
FUNDS
Cheswold
Lane International High Dividend Fund
18
Schedule
B
to
the
by
and between
and
UMB
Fund Services, Inc.
SERVICE
SCHEDULE
|
¨
|
Set up and maintain shareholder
accounts and records, including IRAs and other retirement
accounts
|
|
¨
|
Make personal follow-up calls to
prospects who return incomplete
applications
|
|
¨
|
Store account documents
electronically
|
|
¨
|
Receive and respond to investor
account inquiries by telephone or mail, or by e-mail if the response does
not require the reference to specific shareholder account
information
|
|
¨
|
Process purchase and redemption
orders, transfers, and exchanges, including automatic purchases and
redemptions via postal mail, telephone and personal delivery, provided
payment for shares is in the form of a check, wire transfer or requested
Automated Clearing House transfer, or such other means as the parties
shall mutually agree
|
|
¨
|
Process dividend payments by
check, wire or ACH, or reinvest
dividends
|
|
¨
|
Issue daily transaction
confirmations and monthly or quarterly
statements
|
|
¨
|
Issue comprehensive clerical
confirmation statements for maintenance
transactions
|
|
¨
|
Provide cost basis
statements
|
|
¨
|
Mail prospectus, annual and
semiannual reports, and other shareholder communications to existing
shareholders
|
|
¨
|
Implement the Trust’s AML
Procedures as contemplated by Article
VII
|
|
¨
|
File IRS Forms 1099, 5498, 1042,
1042-S and 945 with shareholders and/or the
IRS
|
|
¨
|
Handle load and multi-class
processing, including rights of accumulation and purchases by letters of
intent
|
|
¨
|
Calculate 12b-1 plan
fees
|
|
¨
|
Provide standards to structure
forms and applications for efficient
processing
|
19
|
¨
|
Follow up on IRAs, soliciting
beneficiary and other information and sending required minimum
distribution reminder
letters
|
|
¨
|
Provide basic report access (one
person)
|
|
¨
|
Conduct periodic Postal
clean-up
|
The
foregoing services do not include correcting, verifying or addressing any prior
actions or inactions by any Fund or by any prior service provider. To
the extent UMBFS agrees to take such actions, those actions taken shall be
deemed part of this service schedule.
Optional
Services
The Funds may contract with UMBFS to
provide one or more of the following optional services. Additional
fees apply.
|
¨
|
UMBFS’ Internet services,
including Adviser Services, RIA/Broker Services, Shareholder Services, NAV
Services, Vision, Adviser Central and email
services.
|
|
¨
|
UMBISG VRU services (per fund
group)
|
|
¨
|
Shareholder “welcome” packages
with initial confirmation
|
|
¨
|
Access to UMBFS’ Tax and
Retirement Group to answer questions and coordinate retirement plan
options
|
|
¨
|
Money
market funds for short-term investment or
exchanges
|
|
¨
|
Dedicated
service representatives
|
|
¨
|
Weekend
and holiday shareholder services
|
|
¨
|
Customized
reorder form tracking
|
|
¨
|
Give dealers access through NSCC’s
Fund/SERV and Networking
|
|
¨
|
Customized forms and
applications
|
|
¨
|
Training of adviser staff on
regulatory developments
|
20
Schedule
C
to
the
Transfer
Agent Agreement
by
and between
and
UMB
Fund Services, Inc.
FEES
21
Schedule
D
to
the
Transfer
Agent Agreement
by
and between
and
UMB
Fund Services, Inc.
RECORDS
MAINTAINED BY UMBFS
Account
applications
Canceled
certificates plus stock powers and supporting documents
Checks
including check registers, reconciliation records, any adjustment records and
tax withholding documentation
Indemnity
bonds for replacement of lost or missing stock certificates and
checks
Liquidation,
redemption, withdrawal and transfer requests including stock powers, signature
guarantees and any supporting documentation
Shareholder
correspondence
Shareholder
transaction records
Share
transaction history of the Funds
22
