EXHIBIT 6
TRANSFER AGENCY AND SERVICE AGREEMENT
between
ORBITEX GROUP OF FUNDS
and
AMERICAN DATA SERVICES, INC.
1C-Domestice Trust/Series
TABLE OF CONTENTS
Page
1. TERMS AND APPOINTMENT; DUTIES OF ADS......................................1
2. FEES AND EXPENSES.........................................................3
3. REPRESENTATIONS AND WARRANTIES OF ADS.....................................3
4. REPRESENATIONS AND WARRANTIES OF THE FUND.................................4
5. DATA ACCESS AND PROPRIETARY INFORMATION...................................4
6. INDEMNIFICATION...........................................................5
7. STANDARD OF CARE..........................................................6
8. COVENANTS OF THE FUND AND ADS.............................................6
9. TERMINATION OF AGREEMENT..................................................7
10. ADDITIONAL FUNDS..........................................................7
11. ASSIGNMENT................................................................7
12. AMENDMENT.................................................................8
13. MASSACHUSETTS LAW TO APPLY................................................8
14. FORCE MAJEURE.............................................................8
15. CONSEQUENTIAL DAMAGES.....................................................8
16. MERGER OF AGREEMENT.......................................................8
17. COUNTERPARTS..............................................................8
-i-
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the _______, 1999, by and between Orbitex
Group of Funds, a Delaware business trust, having its principal office and place
of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund"), and
AMERICAN DATA SERVICES, INC., a New York company having its principal office
and place of business at The Hauppauge Corporate Center, 000 Xxxxx Xxxxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("ADS").
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Fund intends to offer shares in Orbitex Focus 30 Fund (the
"Portfolio");
WHEREAS, the Fund on behalf of the Portfolio desires to appoint ADS as
its transfer agent, dividend disbursing agent, custodian of certain retirement
plans and agent in connection with certain other activities, and ADS desires to
accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. TERMS AND APPOINTMENT; DUTIES OF ADS
1.1 Subject to the terms and conditions set forth in this Agreement,
the Fund, on behalf of the Portfolio, hereby employs and appoints
ADS to act as, and ADS agrees to act as its transfer agent for the
Fund's authorized and issued shares of beneficial interest
("Shares") and dividend disbursing agent and agent in connection
with any accumulation, open-account or similar plans provided to
the shareholders of the Portfolio ("Shareholders") and set out in
the currently effective prospectus and statement of additional
information ("prospectus") of the Fund on behalf of the Portfolio,
including without limitation any periodic investment plan or
periodic withdrawal program.
1.2 ADS agrees that it will perform the following services:
(a) In accordance with procedures established from time to time
by agreement between the Fund, on behalf of the Portfolio,
and ADS, ADS shall:
(i) Receive for acceptance, orders for the purchase of
Shares, and promptly deliver payment and appropriate
documentation thereof to the Custodian of the Fund
(the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the
appropriate Shareholder account;
(iii) Receive for acceptance redemption requests and
redemption directions and deliver the appropriate
documentation thereof to the Custodian;
(iv) In respect to the transactions in items (i), (ii)
and (iii) above, ADS shall execute transactions
directly with broker-dealers authorized by the fund
who shall thereby be deemed to be acting on behalf
of the Fund;
(v) At the appropriate time as and when it receives
monies paid to it by the Custodian with respect to
any redemption, pay over or cause to be paid over in
the appropriate manner such monies as instructed by
the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions;
(vii) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the
Portfolio;
(viii) Issue replacement certificates for those
certificates alleged to have been lost, stolen or
destroyed upon receipt by ADS of indemnification
satisfactory to ADS and protecting ADS and the Fund,
and ADS at its option, may issue replacement
certificates in place of mutilated stock
certificates upon presentation thereof and without
such indemnity;
(ix) Maintain records of account for and advise the Fund
and its Shareholders as to the foregoing; and
(x) Record the issuance of shares of the Fund 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. ADS shall also
provide the Fund on a regular basis with the total
number of shares which are authorized and issued and
outstanding and 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 Fund.
(b) In addition to and neither in lieu nor in contravention of
the services set forth in the above paragraph (a), ADS
shall: (i) perform the customary 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), including but not limited
to: maintaining all Shareholder accounts, preparing
Shareholder meeting lists, mailing proxies, mailing
Shareholder reports and prospectuses to current
Shareholders, withholding taxes on U.S. resident and
nonresident alien accounts, preparing and filing U.S.
Treasury Department Forms 1099 and other appropriate forms
required with respect to dividends and distributions by
federal authorities for all Shareholders, preparing and
mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares
and other confirmable transactions in Shareholders
accounts, preparing and mailing activity statements for
Shareholders, and providing Shareholder account information
and (ii) provide a system which will enable the Fund to
monitor the total number of Shares sold in each State.
(c) In addition, the fund shall (i) identify to ADS in writing
those transactions and assets to be treated as exempt from
blue sky reporting for each State and (ii) verify the
establishment of transactions for each State on the system
prior to activation and thereafter monitor the daily
activity for each State. The responsibility of ADS for the
Fund's blue sky State registration status is solely limited
to the initial establishment of transactions subject to
blue sky compliance by the Fund and the reporting of such
transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these
services in Section 1 may be established from time to time
by agreement between the Fund on behalf of the Portfolio
and ADS per the attached service responsibility schedule.
ADS may at
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times perform only a portion of these services and the Fund
or its agent may perform these services on the Fund's
behalf.
(e) ADS shall provide additional services on behalf of the Fund
(i.e., escheatment services) which may be agreed upon in
writing between the Fund and ADS.
2. FEES AND EXPENSES
2.1 For the performance by ADS pursuant to this Agreement, the Fund
agrees on behalf of the Portfolio to pay ADS an annual maintenance
fee for each Shareholder account as set out in the initial fee
schedule attached hereto. Such fees and out-of-pocket expenses and
advances identified under Section 2.2 below may be changed from
time to time subject to mutual written agreement between the Fund
and ADS.
2.2 In addition to the fee paid under Section 2.1 above, the Fund
agrees on behalf of the Portfolio to reimburse ADS for
out-of-pocket expenses, including but not limited to confirmation
production, postage, forms, telephone, microfilm, microfiche,
tabulating proxies, records storage, or advances incurred by ADS
for the items set out in the fee schedule attached hereto. In
addition, any other expenses incurred by ADS at the request or
with the consent of the Fund, will be reimbursed by the Fund on
behalf of the Portfolio.
2.3 The Fund agrees on behalf of the Portfolio to pay all fees and
reimbursable expenses within five days following the receipt of
the respective billing notice. Postage for mailing of dividends,
proxies, Fund reports and other mailings to all shareholder
accounts shall be advanced to ADS by the Fund at least seven (7)
days prior to the mailing date of such materials.
3. REPRESENTATIONS AND WARRANTIES OF ADS
ADS represents and warrants to the Fund that:
3.1 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
3.2 It is duly qualified to carry on its business in the Commonwealth
of Massachusetts.
3.3 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.5 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
4. REPRESENATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to ADS that:
4.1 It is a business trust duly organized and existing and in good
standing under the laws of the State of Delaware.
4.2 It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
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4.3 All corporate proceedings required by said Declaration of Trust
and By-Laws have been taken to authorize it to enter into and
perform this Agreement.
4.4 It is an open-end management investment company registered under
the Investment Company Act of 1940, as amended.
4.5 A registration statement under the Securities Act of 1933, as
amended on behalf of the Portfolio is currently effective and will
remain effective, and appropriate state securities law filings
have been made and will continue to be made, with respect to all
Shares of the Fund being offered for sale.
5. DATA ACCESS AND PROPRIETARY INFORMATION
5.1 The Fund acknowledges that the data bases, compute programs,
screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Fund by ADS as part of the
Fund's ability to access certain Fund-related data ("Customer
Data") maintained by ADS on data bases under the control and
ownership of ADS or other third party ("Data Access Services")
constitute copyrighted, trade secret, or other proprietary
information (collectively, "Proprietary Information") of
substantial value to ADS or other third party. In no event shall
Proprietary Information be deemed Customer Data. The Fund 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 hereunder. Without limiting the foregoing, the Fund
agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations as may be
designated in writing by ADS and solely in accordance with
ADS's applicable user documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
portion of the Proprietary Information, and if such access
is inadvertently obtained, to inform in a timely manner of
such fact and dispose of such information in accordance
with ADS's instructions;
(d) to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other computer
facility or other location, except with the prior written
consent of ADS;
(e) that the fund shall have access only to those authorized
transactions agreed upon by the parties;
(f) to honor all reasonable written requests made by ADS to
protect at ADS's expense the rights of ADS in Proprietary
Information at common law, under federal copyright law and
under other federal or state law.
Each party shall take reasonable efforts to advise its employees
of their obligations pursuant to this Section 5. The obligations
of this Section shall survive any earlier termination of this
Agreement.
5.2 If the Fund notifies ADS that any of the Data Access Services do
not operate in material compliance with the most recently issued
user documentation for such services, ADS shall endeavor in a
timely manner to correct such failure. Organization from which ADS
may obtain certain data included in the Data Access Services are
solely responsible for the contents of such data and the Fund
agrees to make no claim against ADS arising out
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of the contents of such third-party data, including, but not
limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL
COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION
THEREWITH ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. ADS
EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED
HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.3 If the transactions available to the Fund include 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.
6. INDEMNIFICATION
6.1 ADS shall not be responsible for, and the Fund shall on behalf of
the Portfolio 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:
(a) 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 negligence or
willful misconduct.
(b) The Fund's lack of good faith, negligence or willful
misconduct which arise out of the breach of any
representation or warranty of the Fund hereunder.
(c) The reliance on or use by ADS or its agents or
subcontractors of information, records, documents or
services which (i) are received by ADS or its agents or
subcontractors, and (ii) have been prepared, maintained or
performed by the Fund or any other person or firm on behalf
of the Fund including but not limited to any previous
transfer agent or registrar.
(d) The reliance on, or the carrying out by ADS or its agents
or subcontractors of any instructions or requests of the
Fund on behalf of the Portfolio.
(e) 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.
(f) The negotiation and processing by ADS of checks not made
payable to the order of ADS, the Fund, the Fund's
management company, transfer agent or distributor or the
retirement account custodian or trustee for a plan account
investing in Shares, which checks are tendered to ADS for
the purchase of Shares (i.e., checks made payable to
prospective or existing Shareholders, such checks are
commonly known as "third party checks").
6.2 At any time ADS may apply to any officer of the Fund for
instructions, and may consult with legal counsel 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
Fund on behalf of the Portfolio for any
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action taken or omitted by it in reliance upon such instructions
or upon the opinion of such counsel. ADS, its agents and
subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Fund,
reasonably believed to be genuine and to have been signed by the
proper person or persons, or upon 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 Fund, 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. ADS, its agents
and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of
the Fund, and the proper countersignature of any former transfer
agent or former registrar, or of a cotransfer agent or
coregistrar.
6.3 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which the
Fund may be required to indemnify ADS, ADS shall promptly notify
the Fund of such assertion, and shall keep the Fund advised with
respect to all developments concerning such claim. The Fund shall
have the option to participate with ADS in the defense of such
claim or to defend against said claim in its own name or in the
name of ADS. ADS shall in no case confess any claim or make any
compromise in any case in which the Fund may be required to
indemnify ADS except with the Fund's prior written consent.
7. STANDARD OF CARE
ADS shall at all times act in good faith and agrees to use its
best efforts within reasonable limits to insure the accuracy of
all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to
errors unless said errors are caused by its negligence, bad faith,
or willful misconduct or that of its employees.
8. COVENANTS OF THE FUND AND ADS
8.1 The Fund shall on behalf of the Portfolio promptly furnish to ADS
the following:
(a) A certified copy of the resolution of the Board of Trustees
of the Fund authorizing the appointment of ADS and the
execution and delivery of this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Fund
and all amendments thereto.
8.2 ADS hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of
stock certificates, check forms and facsimile signatures
imprinting devices, if any; and for the preparation or use, and
for keeping account of, such certificates, forms and devices.
8.3 ADS shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, ADS agrees that all
such records prepared or maintained by ADS relating to the
services to be performed by ADS hereunder are the property of the
Fund and will be preserved, maintained and made available in
accordance with such Section and Rules, and will be surrendered
promptly to the Fund on and in accordance with its request.
6
8.4 ADS and the Fund agree that all books, records, information and
data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying
out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be
required by law.
8.5 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.
9. TERMINATION OF AGREEMENT
9.1 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
9.2 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 on behalf of the Portfolio. Additionally, ADS
reserves the right to charge for any other reasonable expenses
associated with such termination and/or a charge equivalent to the
average of three (3) months' fees.
10. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of
Shares in addition to Orbitex Focus 30 Fund with respect to which
it desires to have ADS render services as transfer agent under the
terms hereof, it shall so notify ADS in writing, and if ADS agrees
in writing to provide such services, such series of Shares shall
become a Portfolio hereunder.
11. ASSIGNMENT
11.1 Except as provided in Section 11.3 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
11.2 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
11.3 ADS may, without further consent on the part of the Fund,
subcontract for the performance hereof with (i) Boston Financial
Data Services, Inc., a Massachusetts corporation ("BFDS") which is
duly registered as a transfer agent pursuant to Section 17A(c)(2)
of the Securities Exchange Age of 1934, as amended ("Section
17A(c)(2)"), (ii) a BFDS subsidiary duly registered as a transfer
agent pursuant to Section 17A(c)(2) or (iii) a BFDS affiliate;
provided, however, that ADS shall be as fully responsible to the
Fund for the acts and omissions of any subcontractors as it is for
its own acts and omissions.
12. AMENDMENT
This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a
resolution of the Board of Trustees of the Fund.
13. MASSACHUSETTS LAW TO APPLY
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This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the
Commonwealth of Massachusetts.
14. 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.
15. 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 consequential damages arising out of any act or failure to
act hereunder.
16. MERGER OF 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.
17. COUNTERPARTS
This Agreement may be executed by the parties hereto on any number
of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
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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
officers, as of the day and year first above written.
ORBITEX GROUP OF FUNDS
By:
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ATTEST:
-------------------------------
AMERICAN DATA SERVICES, INC.
By: /s/
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ATTEST:
/s/
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AMERICAN DATA SERVICES, INC.
FUND SERVICE RESPONSIBILITIES*
Service Performed Responsibility
Bank Fund
1. Receives orders for the purchase of Shares.
2. Issue Shares and hold Shares in Shareholders
accounts.
3. Receive redemption requests.
4. Effect transactions 1-3 above directly with
broker-dealers.
5. Pay over monies to redeeming Shareholders.
6. Effect transfers of Shares.
7. Prepare and transmit dividends and distributions.
8. Issue Replacement Certificates.
9. Reporting of abandoned property.
10. Maintain records of account.
11. Maintain and keep current and accurate control book
for each issue of securities.
12. Mail proxies.
13. Mail Shareholder reports.
14. Mail prospectuses to current Shareholders.
15. Withhold taxes on U.S. resident and nonresident alien
accounts.
16. Prepare and file U.S. Treasury Department forms.
17. Prepare and mail account and confirmation statements
for Shareholders.
18. Provide Shareholder account information.
19. Blue sky reporting.
* Such services are more fully described in Section 1.2 (a),
(b) and (c) of the Agreement.
ORBITEX GROUP OF FUNDS
By:
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ATTEST:
-------------------------------------
AMERICAN DATA SERVICES, INC.
By:
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ATTEST:
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