EXECUTION COPY
ISI FUNDS
AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT made as of 1st day of May, 2004, by and between each of ISI
Strategy Fund, Inc., Managed Municipal Fund, Inc., North American Government
Bond Fund, Inc. and Total Return US Treasury Fund, Inc. (each a "Company"),
corporations organized under the laws of the State of Maryland, with their
principal office and place of business at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000 (the "Company"), and Forum Shareholder Services, LLC, a Delaware
limited liability company with its principal office and place of business at Xxx
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000 ("Forum").
WHEREAS, each Company and Forum entered into a certain Administration
Agreement on May 24, 2002 (the "Agreement");
WHEREAS, each Company is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and may issue its shares of beneficial interest (the "Shares"), in separate
series and classes; and
WHEREAS, each Company offers shares in various series as listed in Appendix
A hereto (each such series, together with all other series subsequently
established by each Company and made subject to this Agreement in accordance
with Section 12, being herein referred to as a "Fund," and collectively as the
"Funds") and each Company may offer shares of various classes of each Fund as
listed in Appendix A hereto (each such class together with all other classes
subsequently established by each Company in a Fund being herein referred to as a
"Class," and collectively as the "Classes");
WHEREAS, each Company desires that Forum perform as the transfer agent and
dividend disbursing agent for each Fund and Forum is willing to provide these
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, each Company and Forum hereby agree to amend and
restate as follows:
SECTION 1. APPOINTMENT; DELIVERY OF DOCUMENTS
(a) Each Company, on behalf of the Funds, hereby appoints Forum to act as,
and Forum agrees to act as, (i) transfer agent for the authorized and issued
shares of beneficial interest of each Company representing interests in each of
the respective Funds and Classes thereof ("Shares"), (ii) dividend disbursing
agent and (iii) agent in connection with any accumulation, open-account or
similar plans provided to the registered owners of shares of any of
the Funds ("Shareholders") and set out in the currently effective prospectuses
and statements of additional information (collectively "prospectus") of the
applicable Fund, including, without limitation, any periodic investment plan or
periodic withdrawal program.
(b) In connection therewith, each Company has delivered to Forum copies of:
(i) its Articles of Incorporation and Bylaws (collectively, as amended from time
to time, "Organic Documents"); (ii) its Registration Statement and all
amendments thereto filed with the U.S. Securities and Exchange Commission
("SEC") pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), or the 1940 Act (the "Registration Statement"); (iii) the current
Prospectus and Statement of Additional Information of each of its Funds
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus"); (iv) each current plan of distribution or similar document
adopted by it under Rule 12b-1 under the 1940 Act ("Plan") and each current
shareholder service plan or similar document adopted by it ("Service Plan"); and
(v) all applicable procedures adopted by it with respect to the Funds, and shall
promptly furnish Forum with all amendments of or supplements to the foregoing.
Each Company shall deliver to Forum a certified copy of the resolution of its
Board of Directors (the "Board") appointing Forum and authorizing the execution
and delivery of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum agrees that in accordance with procedures established from time
to time by agreement between each Company on behalf of each of the Funds and its
Company, as applicable, and Forum, Forum will perform the following services:
(i) provide the services of a transfer agent, dividend disbursing agent
and, as relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment plan or
periodic withdrawal program) that are customary for open-end management
investment companies including: (A) maintaining all Shareholder accounts,
(B) preparing Shareholder meeting lists, (C) mailing proxies and related
materials to Shareholders, (D) mailing Shareholder reports and prospectuses
to current Shareholders, (E) withholding taxes on U.S. resident and
non-resident alien accounts, (F) preparing and filing U.S. Treasury
Department Forms 1099 and other appropriate forms required by federal
authorities with respect to distributions for Shareholders, (G) preparing
and mailing confirmation forms and statements of account to Shareholders
for all purchases and redemptions of Shares and other confirmable
transactions in Shareholder accounts, (H) preparing and mailing activity
statements for Shareholders, and (I) providing Shareholder account
information;
(ii) receive for acceptance orders for the purchase of Shares and promptly
deliver payment and appropriate documentation therefor to the custodian of
the applicable Fund (the "Custodian") or, in the case of Fund's operating
in a master-feeder or fund of funds structure, to the transfer agent or
interestholder recordkeeper for the master portfolios in which the Fund
invests;
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(iii) pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(iv) receive for acceptance redemption requests and deliver the appropriate
documentation therefor to the Custodian or, in the case of Fund's operating
in a master-feeder structure, to the transfer agent or interestholder
recordkeeper for the master fund in which the Fund invests;
(v) as and when it receives monies paid to it by the Custodian with respect
to any redemption, pay the redemption proceeds as required by the
prospectus pursuant to which the redeemed Shares were offered and as
instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate instructions
from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the appropriate
Shareholder accounts) payments for all distributions declared by the
Company with respect to Shares;
(viii) issue share certificates and replacement share certificates for
those share certificates alleged to have been lost, stolen, or destroyed
upon receipt by Forum of indemnification satisfactory to Forum and
protecting Forum and the Company and, at the option of Forum, issue
replacement certificates in place of mutilated share certificates upon
presentation thereof without requiring indemnification;
(ix) receive from Shareholders or debit Shareholder accounts for sales
commissions, including contingent deferred, deferred and other sales
charges, and service fees (i.e., wire redemption charges) and prepare and
transmit payments to underwriters, selected dealers and others for
commissions and service fees received;
(x) track shareholder accounts by financial intermediary source and
otherwise as reasonably requested by the Company and provide periodic
reporting to each Company or its administrator or other agent;
(xi) maintain records of account for and provide reports and statements
to the Company and Shareholders as to the foregoing;
(xii) record the issuance of Shares of the Company and maintain pursuant to
Rule 17Ad-10(e) under the Securities Exchange Act of 1934, as amended
("1934 Act") a record of the total number of Shares of the Company, each
Fund and each Class thereof, that are authorized, based upon data provided
to it by the Company, and are issued and outstanding and provide the
Company on a regular basis a report of the total number of Shares that are
authorized and the total number of Shares that are issued and outstanding;
(xiii) provide a system that will enable the Company to calculate the total
number of Shares of each Fund and Class thereof sold in each State;
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(xiv) monitor and make appropriate filings with respect to the escheatment
laws of the various states and territories of the United States; and
(xv) oversee the activities of proxy solicitation firms.
(b) Forum shall receive and tabulate proxy votes, coordinate the tabulation
of proxy and shareholder meeting votes and perform such other additional
services as may be specified from time to time by each Company, all pursuant to
mutually acceptable compensation and implementation agreements.
(c) Each Company or its administrator or other agent (i) shall identify to
Forum in writing those transactions and assets to be treated as exempt from
reporting for each state and territory of the United States and for each foreign
jurisdiction (collectively "States") and (ii) shall monitor the sales activity
with respect to Shareholders domiciled or resident in each State. The
responsibility of Forum for each Company's State registration status is solely
limited to the reporting of transactions to each Company, and Forum 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 each Company or
its administrator or other agent.
(d) Forum shall establish and maintain facilities and procedures reasonably
acceptable to each Company for the safekeeping, control, preparation and use of
share certificates, check forms, and facsimile signature imprinting devices.
Forum shall establish and maintain facilities and procedures reasonably
acceptable to each Company for safekeeping of all records maintained by Forum
pursuant to this Agreement.
(e) Forum shall cooperate with each Fund's independent public accountants
and shall take reasonable action to make all necessary information available to
the accountants for the performance of the accountants' duties.
(f) Except with respect to Forum's duties as set forth in this Section 2
and except as otherwise specifically provided herein, each Company assumes all
responsibility for ensuring that it complies with all applicable requirements of
the Securities Act, the 1940 Act and any laws, rules and regulations of
governmental authorities with jurisdiction over the Company. All references to
any law in this Agreement shall be deemed to include reference to the applicable
rules and regulations promulgated under authority of the law and all official
interpretations of such law or rules or regulations.
SECTION 3. RECORDKEEPING
(a) Prior to the commencement of Forum's responsibilities under this
Agreement, if applicable, each Company shall deliver or cause to be delivered
over to Forum (i) an accurate list of its Shareholders, showing each
Shareholder's address of record, number of Shares owned and whether such Shares
are represented by outstanding share certificates and (ii) all Shareholder
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records, files, and other materials necessary or appropriate for proper
performance of the functions assumed by Forum under this Agreement (collectively
referred to as the "Materials"). Each Company shall on behalf of each applicable
Fund or Class indemnify and hold Forum harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to any error, omission, inaccuracy or other
deficiency of the Materials, or out of the failure of the Company to provide any
portion of the Materials or to provide any information in each Company's
possession or control reasonably needed by Forum to perform the services
described in this Agreement.
(b) Forum shall keep records relating to the services to be performed under
this Agreement, in the form and manner as it may deem advisable and as required
by applicable law. To the extent required by Section 31 of the 1940 Act, and the
rules thereunder, Forum agrees that all such records prepared or maintained by
Forum relating to the services to be performed by Forum under this Agreement are
the property of the applicable Company and will be preserved, maintained and
made available in accordance with Section 31 of the 1940 Act and the rules
thereunder, and will be surrendered promptly to the applicable Company on and in
accordance with the Company's request. The applicable Company and its authorized
representatives shall have access to Forum's records relating to the services to
be performed under this Agreement at all times during Forum's normal business
hours. Upon the reasonable request of a Company, copies of any such records
shall be provided promptly by Forum to the Company or the Company's authorized
representatives.
(c) Forum and each Company 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.
(d) In case of any requests or demands for the inspection of the
Shareholder records of a Company, Forum will endeavor to notify the Company and
to secure instructions from an authorized officer of the Company as to such
inspection. Forum shall abide by the Company's instructions for granting or
denying the inspection; PROVIDED, HOWEVER, that Forum may grant the inspection
without instructions if Forum is advised by counsel to Forum that failure to do
so will result in liability to Forum.
SECTION 4. ISSUANCE AND TRANSFER OF SHARES
(a) Forum shall make original issues of Shares of each Fund and Class
thereof in accordance with the applicable Company's then-current prospectus only
upon receipt of (i) instructions requesting the issuance, (ii) a certified copy
of a resolution of the Board authorizing the issuance, (iii) necessary funds for
the payment of any original issue tax applicable to such Shares, and (iv) an
opinion of the Company's counsel as to the legality and validity of the
issuance, which opinion may provide that it is contingent upon the filing by the
Company of an appropriate notice with the SEC, as required by Section 24 of the
1940 Act or the rules thereunder. If the opinion described in (iv) above is
contingent upon a filing under Section 24 of
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the 1940 Act, the Company shall indemnify Forum for any liability arising from
its failure to comply with that section or the rules thereunder.
(b) Transfers of Shares of each Fund and Class thereof shall be registered
on the Shareholder records maintained by Forum. In registering transfers of
Shares, Forum may rely upon the Uniform Commercial Code as in effect in the
State of Delaware or any other statutes that, in the opinion of Forum's counsel,
protect Forum and the Company from liability arising from (i) not requiring
complete documentation, (ii) registering a transfer without an adverse claim
inquiry, (iii) delaying registration for purposes of such inquiry or (iv)
refusing registration whenever an adverse claim requires such refusal. As
transfer agent, Forum will be responsible for delivery to the transferor and
transferee of such documentation as is required by the Uniform Commercial Code.
SECTION 5. SHARE CERTIFICATES
(a) Each Company shall furnish to Forum a supply of blank share
certificates of each Fund and Class thereof and, from time to time, will renew
such supply upon Forum's request. Blank share certificates shall be signed
manually or by facsimile signatures of officers of the applicable Company
authorized to sign by the Organic Documents of the Company and, if required by
the Organic Documents, shall bear the Company's seal or a facsimile thereof.
Unless otherwise directed by a Company, Forum may issue or register Share
certificates reflecting the manual or facsimile signature of an officer who has
died, resigned or been removed by the Company.
(b) New Share certificates shall be issued by Forum upon surrender of
outstanding Share certificates in the form deemed by Forum to be properly
endorsed for transfer and satisfactory evidence of compliance with all
applicable laws relating to the payment or collection of taxes. Forum shall
forward Share certificates in "non-negotiable" form by first-class or registered
mail, or by whatever means Forum deems equally reliable and expeditious. Forum
shall not mail Share certificates in "negotiable" form unless requested in
writing by the applicable Company and fully indemnified by the Company to
Forum's satisfaction.
(c) In the event that a Company informs Forum that any Fund or Class
thereof does not issue share certificates, Forum shall not issue any such share
certificates and the provisions of this Agreement relating to share certificates
shall not be applicable with respect to those Funds or Classes thereof.
SECTION 6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) Shares shall be issued in accordance with the terms of a Fund's or
Class' prospectus after Forum or its agent receives either:
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(i) (A) an instruction directing investment in a Fund or Class, (B) a check
(other than a third party check) or a wire or other electronic payment in
the amount designated in the instruction and (C), in the case of an initial
purchase, a completed account application; or
(ii) the information required for purchases pursuant to a selected dealer
agreement, processing organization agreement, or a similar contract with a
financial intermediary.
(b) Shares issued in a Fund after receipt of a completed purchase order
shall be eligible to receive distributions of the Fund at the time
specified in the Prospectus pursuant to which the Shares are offered.
(c) Shareholder payments shall be considered Federal Funds no later than on
the day indicated below unless other times are noted in the prospectus of
the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the wire;
(ii) for a check drawn on a member bank of the Federal Reserve System, on
the next Fund business day following receipt of the check; and
(iii) for a check drawn on an institution that is not a member of the
Federal Reserve System, at such time as Forum is credited with Federal
Funds with respect to that check.
SECTION 7. COMPENSATION AND EXPENSES
(a) For the services provided by Forum pursuant to this Agreement, each
Company, on behalf of each Fund, agrees to pay Forum the fees set forth in as
from time to time set forth in a separate written agreement between Forum and
the Companies (the "FEE SCHEDULE"). Fees will begin to accrue for each Fund on
the latter of the date of this Agreement or the date of commencement of
operations of the Fund. If fees begin to accrue in the middle of a month or if
this Agreement terminates before the end of any month, all fees for the period
from that date to the end of that month or from the beginning of that month to
the date of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the effectiveness or
termination occurs. Upon the termination of this Agreement with respect to a
Fund, the applicable Company shall pay to Forum such compensation as shall be
payable prior to the effective date of termination. Each Company acknowledges
that Forum may from time to time earn money on amounts in the deposit accounts
maintained by Forum to service the Funds (and other clients serviced by Forum).
(b) In connection with the services provided by Forum pursuant to this
Agreement, each Company, on behalf of each of its Funds, agrees to reimburse
Forum for the expenses incurred by Forum but payable by the Company set forth
the Fee Schedule. In addition, the applicable Company, on behalf of the
applicable Fund, shall reimburse Forum for all reasonably incurred expenses and
employee time (at 150% of salary) attributable to any review of the Company's
accounts and records by the Company's independent accountants or any regulatory
body outside of routine and normal periodic reviews. Should a Company exercise
its right to
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terminate this Agreement, the Company, on behalf of the applicable Fund, shall
reimburse Forum for all reasonable incurred out-of-pocket expenses and employee
time (at 150% of salary) associated with the copying and movement of records and
material to any successor person and providing assistance to any successor
person in the establishment of the accounts and records necessary to carry out
the successor's responsibilities; PROVIDED HOWEVER, that the Company shall not
be required to reimburse Forum for its employees' time as set forth above in the
event this Agreement is terminated (i) because Forum has breached its standard
of care set forth in Section 10(a) in connection with one of its material
obligations under this Agreement or (ii) after May 25, 2005.
(c) All fees and reimbursements shall be payable monthly in arrears on the
first day of each calendar month for services performed during the prior
calendar month. The applicable Company, on behalf of the applicable Fund, agrees
to pay all of its fees and reimbursable expenses within five (5) business days
following receipt of the respective billing notice.
SECTION 8. REPRESENTATIONS AND WARRANTIES
(a) Forum represents and warrants to each Company that:
(i) It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Delaware;
(ii) It is duly qualified to carry on its business in the State of Maine;
(iii) It is empowered under applicable laws and by its Operating Agreement
to enter into this Agreement and perform its duties under this Agreement;
(iv) All requisite corporate proceedings have been taken to authorize it to
enter into this Agreement and perform its duties under this Agreement;
(v) It has access to the necessary facilities, equipment, and personnel to
perform its duties and obligations under this Agreement;
(vi) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of Forum, enforceable against Forum in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties; and
(vii) It is registered as a transfer agent under Xxxxxxx 00X xx xxx 0000
Xxx.
(x) Each Company represents and warrants to Forum that:
(i) It is a corporation duly organized and existing and in good standing
under the laws of Maryland;
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(ii) It is empowered under applicable laws and by its Organic Documents to
enter into this Agreement and perform its duties under this Agreement;
(iii) All requisite corporate proceedings have been taken to authorize it
to enter into this Agreement and perform its duties under this Agreement;
(iv) It is an open-end management investment company registered under the
1940 Act;
(v) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties; and
(vi) A registration statement under the Securities Act 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 Funds and Classes of the Company being offered for sale.
SECTION 9. PROPRIETARY INFORMATION
(a) Each Company acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals maintained by Forum on databases under the control and ownership of
Forum or a third party constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of substantial
value to Forum or the third party. Each Company agrees to treat all Proprietary
Information as proprietary to Forum and further agrees that it shall not divulge
any Proprietary Information to any person or organization except as may be
provided under this Agreement.
(b) Forum acknowledges that the Shareholder list and all information
related to Shareholders furnished to Forum by the applicable Company or by a
Shareholder in connection with this Agreement (collectively, "Customer Data")
constitute proprietary information of substantial value to the Company. In no
event shall Proprietary Information be deemed Customer Data. Forum agrees to
treat all Customer Data as proprietary to the Company and further agrees that it
shall not divulge any Customer Data to any person or organization except as may
be provided under this Agreement or as may be directed by the Company.
SECTION 10. INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as specifically
set forth herein or as may be specifically agreed to by Forum in writing. Forum
shall use its best judgment and efforts in rendering the services described in
this Agreement. Forum shall not be liable to a Company or any of its
shareholders for any action or inaction of Forum relating to any event
whatsoever in the absence of bad faith, willful misfeasance or gross negligence
in the
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performance of Forum's duties or obligations under this Agreement or by reason
of Forum's reckless disregard of its duties and obligations under this
Agreement.
(b) Forum shall not be responsible for, and each Company shall on behalf of
each applicable Fund or Class thereof indemnify and hold Forum, its employees,
directors, officers and managers and any person who controls Forum within the
meaning of section 15 of the Securities Act or section 20 of the 1934 Act
("Forum Indemnitees") harmless from and against, any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liability
arising out of or attributable to:
(i) all actions of Forum or its agents or subcontractors required to be
taken pursuant to this Agreement with respect to the Company, provided that
such actions (or omissions to act) are taken in good faith and without
gross negligence or reckless disregard by Forum of its duties and
obligations under this Agreement;
(ii) the Company's lack of good faith or the Company's gross negligence or
willful misconduct;
(iii) the reliance on or use by Forum or its agents or subcontractors of
information, records, documents or services which have been prepared,
maintained or performed by the Company or any other person or firm on
behalf of the Company, including but not limited to any previous transfer
agent or registrar;
(iv) the reasonable reliance on, or the carrying out by Forum or its agents
or subcontractors of, any instructions or requests of the Company on behalf
of the applicable Fund; and
(v) the offer or sale of Shares in violation of any requirement under the
Federal securities laws or regulations or the securities laws or
regulations of any State that such Shares be registered in such State or in
violation of any stop order or other determination or ruling by any federal
agency or any State with respect to the offer or sale of such Shares in
such State.
(c) Forum shall indemnify and hold each Company and each Fund or Class
thereof harmless from and against any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributed to any action or failure or omission to act by Forum as a result of
Forum's bad faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement.
(d) At any time Forum may apply to any officer of the applicable Company
for instructions, and may consult with legal counsel to the Company or to Forum
with respect to any matter arising in connection with the services to be
performed by Forum under this Agreement, and, notwithstanding anything herein to
the contrary, Forum and any Forum Indemnitee shall not be liable and shall be
indemnified by the Company on behalf of the applicable Fund for any action taken
or omitted by it in reasonable reliance upon such instructions or upon the
advice of
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such counsel. Forum, its agents and subcontractors shall be protected and
indemnified in acting upon (i) any paper or document furnished by or on behalf
of a Company, reasonably believed by Forum to be genuine and to have been signed
by the proper person or persons, (ii) any instruction, information, data,
records or documents provided to Forum or its agents or subcontractors by (A)
electronic message, machine readable input, telex, CRT data entry or (B) other
similar means authorized by a Company, and (iii) any authorization, instruction,
approval, item or set of data, or information of any kind transmitted to Forum
in person or by telephone, vocal telegram, electronic message or other
electronic means, reasonably believed by Forum to be genuine and to have been
given by the proper person or persons. Forum shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from a Company. Forum, its agents and subcontractors shall also be protected and
indemnified in recognizing share certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officers of the applicable
Company, and the proper countersignature of any former transfer agent or former
registrar or of a co-transfer agent or co-registrar of the Company.
(e) If a Company has the ability to originate electronic instructions to
Forum 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 Forum
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 reasonable security procedures established by
Forum from time to time.
(f) Each Company has authorized or in the future may authorize Forum to act
as a "Mutual Fund Services Member" for each Company or various Funds. Fund/SERV
and Networking are services sponsored by the National Securities Clearing
Corporation ("NSCC") and as used herein have the meanings as set forth in the
then current edition of NSCC RULES AND PROCEDURES published by NSCC or such
other similar publication as may exist from time to time. Each Company shall
indemnify and hold Forum harmless from and against any and all losses, damages,
costs, charges, reasonable counsel fees, payments, expenses and liability
arising directly or indirectly out of or attributed to any action or failure or
omission to act by NSCC.
(g) In order that the indemnification provisions contained in this Section
shall apply, upon the assertion of a claim for which a party may be required to
indemnify another party, the party seeking indemnification shall promptly notify
the other party of such assertion, and shall keep the other party advised with
respect to all developments concerning such claim. The party who may be required
to indemnify shall have the option to participate with the party seeking
indemnification in the defense of such claim or to defend against said claim in
its own name or in the name of the other party. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
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SECTION 11. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective with respect to each Fund or
Class on the earlier of the date on which the applicable Company's Registration
Statement relating to the Shares of the Fund or Class becomes effective or the
date of the commencement of operations of the Fund or Class. Upon effectiveness
of this Agreement, it shall supersede all previous agreements between the
parties hereto covering the subject matter hereof insofar as such Agreement may
have been deemed to relate to the Funds.
(b) This Agreement may be terminated with respect to a Fund at any time,
without the payment of any penalty (i) by the applicable Board on 60 days'
written notice to Forum or (ii) by Forum on 120 days' written notice to the
applicable Company. Any termination shall be effective as of the date specified
in the notice.
(c) This Agreement may be terminated with respect to a Fund at any time
where the other party has materially breached any of its obligations hereunder
including, with respect to Forum, the failure by Forum to act consistently with
the standard of care set forth in Section 10(a). Termination pursuant to this
subsection shall not be effective in less than thirty (30) days after written
notice thereof from the non-breaching party, which termination notice shall
describe the breach; provided, however, that no such termination shall be
effective if, with respect to any breach that is capable of being cured, within
such thirty (30) day period the breaching party has cured such breach to the
reasonable satisfaction of the non-breaching party.
(d) Upon notice of termination of this Agreement by any party, Forum shall
promptly transfer to the party's successor transfer agent the original or copies
of all books and records maintained by Forum under this Agreement including, in
the case of records maintained on computer systems, copies of such records in
machine-readable form, and shall cooperate with, and provide reasonable
assistance to, the successor transfer agent in the establishment of the books
and records necessary to carry out the successor transfer agent's
responsibilities.
(e) The obligations of Sections 3, 7, 8, 9, 10, 14, 15, and 17 shall
survive any termination of this Agreement.
SECTION 12. ADDITIONAL FUNDS AND CLASSES
In the event that a Company establishes one or more series of Shares or one
or more classes of Shares after the effectiveness of this Agreement, such series
of Shares or classes of Shares, as the case may be, shall become Funds and
Classes under this Agreement. Forum or the applicable Company may elect not to
make any such series or classes subject to this Agreement.
SECTION 13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement nor
any rights or obligations under this Agreement may be assigned by any party
without the written consent of the applicable Company and Forum. This Agreement
shall inure to the benefit of and be binding
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upon the parties and their respective permitted successors and assigns. Forum
may, without further consent on the part of any Company, (i) assign this
agreement to any affiliate of Forum or (ii) subcontract for the performance
hereof with any entity, including an affiliate of Forum; PROVIDED HOWEVER, that
Forum shall be as fully responsible to the applicable Company for the acts and
omissions of any subcontractor as Forum is for its own acts and omissions.
SECTION 14. FORCE MAJEURE
Forum shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails or
any transportation medium, communication system or power supply.
SECTION 15. LIMITATION OF SHAREHOLDER AND DIRECTOR LIABILITY
No Company shall be liable for the obligations of any other Company under
this Agreement. The Directors of each Company and the shareholders of each Fund
shall not be liable for any obligations of any Company or of the Funds under
this Agreement, and Forum agrees that, in asserting any rights or claims under
this Agreement, it shall look only to the assets and property of the Company or
the Fund to which Forum's rights or claims relate in settlement of such rights
or claims, and not to the Directors of each Company or the shareholders of the
Funds.
SECTION 16. TAXES
Forum shall not be liable for any taxes, assessments or governmental
charges that may be levied or assessed on any basis whatsoever in connection
with any Company or any Shareholder or any purchase of Shares, excluding taxes
assessed against Forum for compensation received by it under this Agreement.
SECTION 17. MISCELLANEOUS
(a) Notwithstanding any other provisions hereof to the contrary, no party
to this Agreement shall be liable to the other party for consequential damages
under any provision of this Agreement.
(b) Except for Appendix A to add new Funds and Classes in accordance with
Section 12, no provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by the
applicable Company and Forum.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
13
(d) 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.
(e) This Agreement may be executed by all parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be illegal,
in conflict with any law or otherwise invalid, the remaining portion or portions
shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid. This Agreement shall be construed as if drafted jointly by Forum and
each Company and no presumptions shall arise favoring any party by virtue of
authorship of any provision of this Agreement.
(g) Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal addresses, or at such other address as a
party may have designated in writing, shall be deemed to have been properly
given.
(i) Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity hereunder, to perform any functions or duties on any day
other than a Fund business day. Functions or duties normally scheduled to be
performed on any day which is not a Fund business day shall be performed on, and
as of, the next Fund business day, unless otherwise required by law.
(j) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of a Company are separate and
distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(k) No affiliated person (as that term is defined in the 1940 Act),
employee, agent, director, officer or manager of Forum shall be liable at law or
in equity for Forum's obligations under this Agreement.
(l) Each of the undersigned expressly warrants and represents that he/she
has full power and authority to sign this Agreement on behalf of the party
indicated and that his/her signature will bind the party indicated to the terms
hereof and each party hereto warrants and represents that this Agreement, when
executed and delivered, will constitute a legal, valid and binding obligation of
the party, enforceable against the party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
14
(m) The terms "affiliated person" and "vote of a majority of the
outstanding voting securities" shall have the meanings ascribed thereto in the
1940 Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
persons, as of the day and year first above written.
ISI STRATEGY FUND, INC.
By:
-----------------------------------------
R. Xxxx Xxxxxxx
President
MANAGED MUNICIPAL FUND, INC.
By:
-----------------------------------------
R. Xxxx Xxxxxxx
President
NORTH AMERICAN GOVERNMENT BOND FUND, INC.
By:
-----------------------------------------
R. Xxxx Xxxxxxx
President
TOTAL RETURN US TREASURY FUND, INC.
By:
-----------------------------------------
R. Xxxx Xxxxxxx
President
FORUM SHAREHOLDER SERVICES, LLC
By:
-----------------------------------------
Xxxx X. Xxxxxxxx
Director
15
ISI FUNDS
TRANSFER AGENCY AND SERVICES AGREEMENT
APPENDIX A
FUNDS AND CLASSES OF THE COMPANIES
(AS AMENDED EFFECTIVE MAY 16, 2003)
--------------------------------------------- -------------------------------------- --------------------------------------
COMPANY FUNDS CLASSES
--------------------------------------------- -------------------------------------- --------------------------------------
ISI Strategy Fund, Inc. ISI Strategy Fund Single class
--------------------------------------------- -------------------------------------- --------------------------------------
Managed Municipal Fund, Inc. Managed Municipal Fund Single class
--------------------------------------------- -------------------------------------- --------------------------------------
North American Government Bond Fund, Inc. North American Government Bond Fund Class A Shares
Class C Shares
--------------------------------------------- -------------------------------------- --------------------------------------
Total Return US Treasury Fund, Inc. Total Return US Treasury Fund Single class
--------------------------------------------- -------------------------------------- --------------------------------------
A-1
