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Exhibit (g)(12)
TRANSFER AGENCY AGREEMENT
This Transfer Agency Agreement is made as of the 25th of October, 1997
between Pacific Horizon Funds, Inc., a Maryland corporation (herein called the
"Company"), having its principal office and place of business at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 and PFPC Inc., a Delaware corporation having
its principal office and place of business at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 (herein called the "Transfer Agent").
WITNESSETH:
That for and in consideration of the mutual promises herein set forth,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall
have the following meanings:
1. "Approved Institution" shall mean an entity so named in a
Certificate. From time to time the Company may amend a previously delivered
Certificate by delivering to the Transfer Agent a Certificate naming an
additional entity or deleting any entity named in a previously delivered
Certificate.
2. "Board of Directors" shall mean the Board of Directors of the
Company.
3. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
the Transfer Agent by the Company which is signed by any Authorized Person, as
hereinafter defined, and actually received by the Transfer Agent.
4. "Class" shall mean a subclass of shares within a particular Fund.
5. "Custodian" shall mean the financial institution appointed as
custodian under the terms and conditions of the Custody Agreement between the
financial institution and the Company, or its successor(s).
6. "Company Accountant" shall mean the entity appointed as accountant
under the terms and conditions of the Accounting Services Agreement between the
entity and the Company, or its successor(s).
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7. "Company Business Day" shall be deemed to be each day the Company is
open for trading.
8. "Manager" shall mean Bank of America, NT&SA, acting under the terms
and conditions of the Management Agreement and includes any successor and
assigns.
9. "Authorized Person" shall be deemed to be the Company's Chairman of
the Board, the Company's President, any Vice President of the Company, any
Assistant Vice President of the Company, the Company's Secretary, the Company's
Treasurer, the Company's Controller, any Assistant Controller of the Company,
any Assistant Treasurer of the Company, any Assistant Secretary of the Company,
and any other person duly authorized by the Board of Directors of the Company to
execute any Certificate, instruction, notice or other instrument on behalf of
the Company and named in the Certificate annexed hereto as Appendix A, as such
Certificate may be amended from time to time, and any person reasonably believed
by the Transfer Agent to be such a person.
10. "Prospectus" shall mean with respect to a Class of Shares, the last
Company prospectus actually received by the Transfer Agent from the Company with
respect to such Class of Shares and with respect to which the Company has
indicated a Registration Statement under the Securities Act of 1933, as amended,
has become effective, including the Statements of Additional Information,
incorporated by reference therein.
11. "Funds" shall mean the various portfolios of the Company as
described from time to time in the current and effective Prospectuses.
12. "Shares" shall mean all or any part of each Class of shares of
common stock of the Company listed in the Certificate, attached hereto as
Appendix B, as may be amended from time to time, which are from time to time
authorized and/or issued by the Company.
13. "Transfer Agent" shall mean PFPC Inc., as transfer agent and
dividend disbursing agent under the terms and conditions of this Agreement, its
successor(s) or assign(s).
14. "Out-of-Pocket Expenses" means amounts reasonably necessary and
actually paid to third parties by the Transfer Agent in the provision of the
Transfer Agent services or pursuant to this Agreement. Such amounts will not
include charges of legal counsel, but will otherwise include amounts paid for
the following purposes: (i) postage and all freight and other delivery and
bonding charges incurred by the Transfer Agent in delivering materials to and
from the Company and in delivering all materials to shareholders; (ii) all
direct telephone, telephone transmission, telecopy, or other electronic
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transmission expenses incurred by the Transfer Agent in communication with the
Company's dealers, shareholders or others, as required for the Transfer Agent to
perform the services to be provided hereunder; (iii) all charges related to the
settlement of shareholder transactions, including but not limited to NSCC/FUND
SERV charges, bank wire charges, and checking account charges; (iv) charges
associated with satisfying Internal Revenue Service tax reporting requirements;
(v) expenses associated with Securities and Exchange Commission examinations of
Company books and records; (vi) paper stocks and printing costs for statements,
checks, envelopes, tax and other forms; and (vii) such other expenses paid or
incurred by Transfer Agent on behalf of the Company at the request of the
Manager.
ARTICLE II
APPOINTMENT OF TRANSFER AGENT
1. The Company hereby appoints the Transfer Agent as transfer agent and
as dividend disbursing agent of all the Shares of the Company (except SRF Shares
of the Company's Intermediate Bond Fund- Class M-Special Series 7, Blue Chip
Fund- Class N Special Series 7, and Asset Allocation Fund- Class O Special
Series 7 (collectively, "SRF Shares") during the period of this Agreement.
Effective November 21, 1997 or such other time as agreed to between the Company
and the Transfer Agent, the Company appoints the Transfer Agent as transfer
agent and as dividend disbursing agent of the SRF Shares of the Company during
the period of this Agreement.
2. (a) The Transfer Agent hereby accepts appointment as transfer
agent and dividend disbursing agent and agrees to perform the duties thereof as
herein set forth, including those duties set forth in Schedule I(a) hereto.
(b) The services and specific capabilities to be provided
under this Agreement by the Transfer Agent shall include those specifically
listed in this Agreement.
3. Upon the request of the Transfer Agent, the Company shall deliver
the following documents to the Transfer Agent:
(a) A copy of the Articles of Incorporation of the Company and
all amendments thereto certified by the Secretary of the Company;
(b) A copy of the By-Laws of the Company certified by the
Secretary of the Company;
(c) A copy of a resolution of the Board of Directors of the
Company certified by the Secretary of the Company appointing the Transfer Agent
and authorizing the
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execution of this Transfer Agency Agreement;
(d) A Certificate signed by the Secretary or any Assistant
Secretary of the Company specifying with respect to each Class or Fund, the
number of authorized Shares, the number of such authorized Shares issued, and
the number of such authorized Shares issued and currently outstanding; the names
and specimen signatures of the Authorized Persons of the Company; and the name
and address of the legal counsel for the Company;
(e) Copies of the Company's Registration Statement, as amended
to date, and the most recently filed Post-Effective Amendment thereto, filed by
the Company with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, and under the Investment Company Act of 1940, as amended,
together with any applications filed in connection therewith; and
(f) Opinion of counsel for the Company with respect to the
validity of the authorized and outstanding Shares, whether such Shares are fully
paid and non-assessable and the status of such Shares under the Securities Act
of 1933, as amended, and any other applicable federal law or regulation (i.e.,
if subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor).
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Company shall deliver to the Transfer Agent the following
documents on or before the effective date of any increase or decrease in the
total number of Shares authorized to be issued:
(a) A certified copy of the amendment to the Articles of
Incorporation giving effect to such increase or decrease;
(b) a representation from the Company that such increase or
decrease has been properly authorized;
(c) In the case of an increase, if the appointment of the
Transfer Agent is expressly limited to the previously authorized number of
Shares, a certified copy of a resolution of the Board of Directors of the
Company increasing the authority of the Transfer Agent.
2. Prior to the issuance of any additional Shares of the Company
pursuant to actions such as stock dividends or stock splits, and prior to any
reduction in the number of Shares outstanding, the Company shall deliver the
following documents to
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the Transfer Agent:
(a) A certified copy of the resolution(s) adopted by the Board
of Directors and/or the shareholders of the Company authorizing such issuance of
additional Shares of the Company or such reduction, as the case may be; and
(b) a representation from the Company that such action has
been properly authorized;
3. The Company is authorized to issue (a) 10,000,000,000 shares
representing interests in the Treasury Money Market Fund- Pacific Horizon
shares; (b) 10,000,000,000 shares representing interests in the Treasury Money
Market Fund- Horizon Service shares; (c) 10,000,000,000 shares representing
interests in the Treasury Money Market Fund- Horizon shares; (d) 10,000,000,000
shares representing interests in the Treasury Money Market Fund- S shares; (e)
10,000,000,000 shares representing interests in the Treasury Money Market Fund-
X shares; (f) 10,000,000,000 shares representing interests in the Treasury Money
Market Fund- Y shares; (g) 20,000,000,000 shares representing interests in the
Prime Money Market Fund- Pacific Horizon shares; (h) 20,000,000,000 shares
representing interests in the Prime Money Market Fund- Horizon Service shares;
(i) 20,000,000,000 shares representing interests in the Prime Money Market Fund-
Horizon shares; (j) 20,000,000,000 shares representing interests in the Prime
Money Market Fund- S shares; (k) 20,000,000,000 shares representing interests in
the Prime Money Market Fund- X shares; (l) 20,000,000,000 shares representing
interests in the Prime Money Market Fund- Y shares; (m) 100,000,000 shares
representing interests in the Aggressive Growth Fund- A shares; (n) 100,000,000
shares representing interests in the Aggressive Growth Fund- M shares; (o)
100,000,000 shares representing interests in the Aggressive Growth Funds- K
shares; (p) 100,000,000 shares representing interests in the U.S. Government
Securities Fund- A shares; (q) 100,000,000 shares representing interests in the
U.S. Government Securities Fund- M shares; (r) 100,000,000 shares representing
interests in the U.S. Government Securities Fund- K shares; (s) 100,000,000
shares representing interests in the Capital Income Fund- A shares; (t)
100,000,000 shares representing interests in the Capital Income Fund- M shares;
(u) 100,000,000 shares representing interests in the Capital Income Fund- K
shares; (v) 100,000,000 shares representing interests in the California
Tax-Exempt Bond Fund- A shares; (w) 100,000,000 shares representing interests in
the California Tax-Exempt Bond Fund- M shares; (x) 100,000,000 shares
representing interests in the California Tax-Exempt Bond Fund- K shares; (y)
10,000,000,000 shares representing interests in the Tax-Exempt Money Fund-
Pacific Horizon shares; (z) 10,000,000,000 shares representing interests in the
Tax-Exempt Money Fund- Horizon Service shares; (aa) 10,000,000,000 shares
representing interests in the Tax-Exempt Money Fund- Horizon shares; (bb)
10,000,000,000 shares
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representing interests in the Tax-Exempt Money Fund- S shares; (cc)
10,000,000,000 shares representing interests in the California Tax-Exempt Money
Market Fund- Pacific Horizon shares; (dd) 10,000,000,000 shares representing
interests in the California Tax-Exempt Money Market Fund- Horizon Service
shares; (ee) 10,000,000,000 shares representing interests in the California
Tax-Exempt Money Market Fund- Horizon shares; (ff) 10,000,000,000 shares
representing interests in the California Tax-Exempt Money Market Fund- S Shares;
(gg) 10,000,000,000 shares representing interests in the California Tax-Exempt
Money Market Fund- X Shares; (hh) 10,000,000,000 shares representing interests
in the Treasury Only Money Market Fund- Pacific Horizon shares; (ii)
10,000,000,000 shares representing interests in the Treasury Only Money Market
Fund- Horizon Services Shares; (jj) 10,000,000,000 shares representing interests
in the Treasury Only Money Market Fund-Horizon shares; (kk) 10,000,000,000
shares representing interests in the Government Money Market Fund- Pacific
Horizon shares; (ll) 10,000,000,000 shares representing interests in the
Government Money Market Fund- Horizon Services Shares; (mm) 10,000,000,000
shares representing interests in the Government Money Market Fund- Horizon
shares; (nn) 100,000,000 shares representing interests in the Intermediate Bond
Fund- A shares; (oo) 100,000,000 shares representing interests in the
Intermediate Bond Fund- M shares; (pp) 100,000,000 shares representing interests
in the Intermediate Bond Fund- K shares; (qq) 100,000,000 shares representing
interests in the Intermediate Bond Fund- SRF shares; (rr) 100,000,000 shares
representing interests in the Blue Chip Fund- A shares; (ss) 100,000,000 shares
representing interests in the Blue Chip Fund- M shares; (tt) 100,000,000 shares
representing interests in the Blue Chip Fund- K shares; (uu) 100,000,000 shares
representing interests in the Blue Chip Fund - SRF shares; (vv) 100,000,000
shares representing interests in the Asset Allocation Fund- A shares; (ww)
100,000,000 shares representing interests in the Asset Allocation Fund- M
shares; (xx) 100,000,000 shares representing interests in the Asset Allocation
Fund- K shares; (yy) 100,000,000 shares representing interests in the Asset
Allocation Fund- SRF shares; (zz) 100,000,000 shares representing interests in
the National Municipal Bond Fund- A shares; (aaa) 100,000,000 shares
representing interests in the National Municipal Bond Fund- M shares; (bbb)
100,000,000 shares representing interests in the National Municipal Bond Fund- K
shares; (ccc) 100,000,000 shares representing interests in the Utilities Fund- A
shares; (ddd) 100,000,000 shares representing interests in the Utilities Fund- M
Shares; (eee) 100,000,000 shares representing interests in the Utilities Fund- K
shares; (fff) 100,000,000 shares representing interests in the Growth and Income
Fund- A shares; (ggg) 100,000,000 shares representing interests in the Growth
and Income Fund- M shares; (hhh) 100,000,000 shares representing interests in
the Growth and Income Fund- K shares; (iii) 100,000,000 shares representing
interests in the International Equity Fund- A shares; (jjj) 100,000,000 shares
representing interests in the International
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Equity Fund- M shares; (kkk) 100,000,000 shares representing interests in the
International Equity Fund- K shares; (lll) 100,000,000 shares representing
interests in the Short-Term Government Fund- A shares; (mmm) 100,000,000 shares
representing interests in the Short-Term Government Fund- M shares; (nnn)
100,000,000 shares representing interests in the Short-Term Government Fund-K
shares; (ooo) 100,000,000 shares representing interests in the International
Bond Fund- A shares; (ppp) 100,000,000 shares representing interests in the
International Bond Fund- M shares; (qqq) 100,000,000 shares representing
interests in the International Bond Fund- K shares; (rrr) 100,000,000 shares
representing interests in the Corporate Bond Fund- A shares; (sss) 100,000,000
shares representing interests in the Corporate Bond Fund- M shares; and (ttt)
100,000,000 shares representing interests in the Corporate Fond- K Shares; each
with par value of $.001 per share. The Transfer Agent shall record issues of all
shares and shall notify the Company in case any proposed issue of shares by the
Company shall result in an over-issue as defined by Section 8-104(2) of Article
8 of the Maryland Commercial Law Article. In case any issue of shares would
result in such an over-issue, the Transfer Agent shall refuse to issue said
shares and shall not countersign and issue certificates (if any) for such
shares.
ARTICLE IV
ISSUANCE,
REDEMPTION AND TRANSFER OF SHARES
1. The Transfer Agent acknowledges that it has received a copy of the
Company's Prospectuses with respect to its currently authorized Funds and
Classes of Shares, which Prospectuses describe how sales and redemption of
Shares of the Company shall be made, and the Transfer Agent agrees to accept
purchase orders and redemption requests with respect to Company Shares on each
Company Business Day in accordance with such Prospectuses. The Company agrees to
notify the Transfer Agent as soon as possible under the circumstances of any
changes in the procedures set forth in the Prospectus regarding such purchase
and redemption procedures.
2. On each Company Business Day, a duly authorized officer or employee
of the Transfer Agent shall furnish the following information by telephone call
to an Authorized Person of the Company or by such other form to such other
person as shall be agreed upon from time to time by the Company and the Transfer
Agent:
(a) The total dollar amount to be applied to the purchase of
Shares of each Class or Fund on such day, computed by aggregating the amount so
specified in such of the purchase orders described in paragraph 1 of this
Article IV with respect to which payment has been, or will be, credited by the
Custodian
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to the Company's custody account with the Custodian on such day. The Transfer
Agent shall also accept with respect to each Company Business Day, at such times
as are agreed upon from time to time by the Transfer Agent and the Company, a
computer tape consistent in all respects with the Transfer Agent's tape layout
package, as amended from time to time, upon prior written notice to the Company
or its Distributor, which is believed by the Transfer Agent to be furnished by
or on behalf of any Approved Institution. The Transfer Agent shall not be liable
for any loss or damage to the Company or its shareholders in the event that a
computer tape or electronic data transmission from an Approved Institution is
unable to be processed for any reason beyond the control of the Transfer Agent,
or if any of the information on such tape or transmission is found to be
incorrect.
(b) The total dollar amount of Shares of each Class or Fund to
be redeemed on such day, computed by aggregating the amount so specified in (i)
such of the redemption requests described in paragraph 1 of this Article IV with
respect to which the amount payable as redemption proceeds has been, or will be,
charged by the Custodian on such day, and (ii) all computer tapes described in
paragraph 2(a) of this Article IV with respect to which the amount payable as
redemption proceeds has been, or will be, charged by the Custodian on such day.
3. On each Company Business Day, the Transfer Agent shall, as of the
time at which the Company computes the net asset value of each Class or Fund of
the Company, issue to and redeem from the shareholder accounts specified in a
purchase order, redemption request or computer tape, which in accordance with
the Prospectuses is effective on such Company Business Day, the appropriate
number of full and fractional Shares based on the net asset value per Share of
such Class or Fund specified in an advice received on such Company Business Day
from the Company or the Company Accountant. Notwithstanding the foregoing, if a
redemption specified in a computer tape is for a dollar value of Shares in
excess of the dollar value of uncertificated Shares in the specified account,
the Transfer Agent shall not effect such redemption in whole or in part and
shall within twenty-four (24) hours orally advise the Approved Institution which
supplied such tape of the discrepancy.
4. In connection with a reinvestment of a dividend or distribution on
Shares of any Class or Fund of the Company, the Transfer Agent shall, as of each
Company Business Day, as specified in a Certificate or resolution described in
paragraph 1 of Article V, issue Shares of a Class or Fund to the appropriate
shareholder account, based on the net asset value per Share of such Class or
Fund specified in an advice received from the Company or its Company Accountant
on such Company Business Day.
5. On each Company Business Day, the Transfer Agent shall supply the
Company Accountant with a statement specifying
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with respect to the immediately preceding Company Business Day (or the same day
if a money market portfolio): the total number of Shares of each Class or Fund
(including fractional Shares) issued and outstanding at the opening of business
on such day; the total number of Shares of each Class or Fund sold on such day,
pursuant to paragraph 3 of this Article IV; the total number of Shares of each
Class or Fund redeemed by the Transfer Agent on such day; the total number of
Shares of each Class or Fund, if any, sold on such day pursuant to paragraph 4
of this Article IV; and the total number of Shares of each Class or Fund issued
and outstanding.
6. In connection with each purchase and each redemption of Shares, and
each reinvestment of a dividend or distribution of Shares, the Transfer Agent
shall send to the affected shareholder such statements as are prescribed by the
federal securities laws applicable to transfer agents and as are described in
the applicable Prospectuses. If the Prospectuses indicate that certificates for
Shares are available and if specifically requested in writing by any
shareholder, or if otherwise required hereunder, the Transfer Agent shall
countersign, issue and mail by first-class mail to such shareholder at the
address set forth in the records of the Transfer Agent, a Share certificate for
any full Shares requested.
7. With respect to each Company Business Day, the Transfer Agent shall
furnish the Custodian on such Company Business Day or the next Company Business
Day (in accordance with the prospectus) with a written statement (which may be
by facsimile transfer) setting forth the number and dollar amount of each Class
or Fund of Shares to be redeemed on such Company Business Day in accordance with
paragraph 3 of this Article IV.
8. Upon receipt of a proper redemption request and moneys paid to it by
the Custodian in connection with a redemption of Shares (the Transfer Agent may
make payment for redeemed shares prior to receipt of moneys from the Custodian),
the Transfer Agent shall cancel any Shares certificates relating to such
redeemed Shares or make an equivalent designation on the appropriate records
with respect to any uncertificated Shares relating to such redeemed Shares and,
after making appropriate deduction for any withholding of taxes required of it
by applicable law, (a) in the case of a redemption of Shares pursuant to a
redemption described in paragraph 1 of this Article IV, make payment in
accordance with the Company's redemption and payment procedures described in the
Prospectuses, and (b) in the case of a redemption of Shares pursuant to a
computer tape described in paragraph 2(b) of this Article IV, make payment by
directing a federal funds wire order to the account previously designated by the
Approved Institution specified in the computer tape.
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9. The Transfer Agent shall not be required to issue any Shares after
it has received from an Authorized Person of the Company or from an appropriate
federal or state authority written notification that the sale of Shares has been
suspended or discontinued, and the Transfer Agent shall be entitled to rely upon
such written notification.
10. Upon the issuance of any Shares in accordance with this Agreement,
the Transfer Agent shall not be responsible for the payment of any original
issue or other taxes required to be paid by the Company in connection with such
issuance of any Shares.
11. The Transfer Agent shall accept a computer tape consistent with the
Transfer Agent's tape layout package, as amended from time to time upon prior
notice to the Company or the Distributor, which is reasonably believed by the
Transfer Agent to be furnished by or on behalf of an Approved Institution and is
represented to be instructions with respect to the transfer of Shares from one
account of such Approved Institution to another such account, and shall effect
the transfers specified in said computer tape. The Transfer Agent shall not be
liable for any losses to the Company or its shareholders in the event that a
computer tape or electronic data transmission from an Approved Institution is
unable to be processed for any reason beyond the control of the Transfer Agent,
or if any of the information on such tape or transmission is found to be
incorrect.
12. (a) Except as otherwise provided in sub-paragraph (b) of this
paragraph and in paragraph 14 of this Article IV, Shares shall be transferred or
redeemed upon presentation to the Transfer Agent of Share certificates or
instructions properly endorsed for transfer or redemption, accompanied by such
documents as the Transfer Agent deems necessary to evidence the authority of the
person making such transfer or redemption, and bearing satisfactory evidence of
the payment of any transfer taxes. In the case of small estates where no
administration is contemplated, the Transfer Agent may, when furnished with an
appropriate surety bond and other appropriate information requested by the
Transfer Agent, and without further approval of the Company, transfer or redeem
Shares registered in the name of a decedent where the current market value of
the Shares being transferred does not exceed such amount as may from time to
time be prescribed by various states. The Transfer Agent reserves the right to
refuse to transfer or redeem Shares until it is satisfied that the endorsement
on the share certificate or instructions is valid and genuine, and for that
purpose it will require, unless otherwise instructed by an authorized officer of
the Company (which instruction shall not prohibit the Transfer Agent from
requesting a signature guarantee from a participant in a Medallion Program
approved by the Security Transfer Association), a guarantee of signature,
acceptable to the Transfer Agent and in compliance with applicable law. The
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Transfer Agent 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 the Transfer Agent, in its judgment, deems
improper or unauthorized, or until it is satisfied that there is no basis to any
claims adverse to such transfer or redemption. The Transfer Agent may, in
effecting transfers and redemptions of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers or the
Uniform Commercial Code, as the same may be amended from time to time and as is
applicable to the transfer in question, and the Company shall indemnify the
Transfer Agent for any act performed or omitted by it in good faith in reliance
upon such laws.
(b) Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, the Transfer Agent shall be fully
protected by the Company in the event the Transfer Agent does not require any
instruments, documents, assurances, endorsements or guarantees, including,
without limitation, any signature guarantees, in connection with a redemption or
transfer of Shares whenever the Transfer Agent reasonably believes that
requiring the same would be inconsistent with the transfer and redemption
procedures as described in the applicable Prospectus.
13. Notwithstanding any provision contained in this Agreement to the
contrary, the Transfer Agent shall not be required or expected to require, as a
condition to any transfer of any Shares pursuant to paragraph 12 of this Article
IV or any redemption of any Shares pursuant to a computer tape described in this
Agreement, any documents, including, without limitation, any documents of the
kind described in sub-paragraph (a) of paragraph 12 of this Article IV, to
evidence the authority of the person requesting the transfer or redemption
and/or the payment of any share transfer taxes, and shall be fully protected in
acting in accordance with the applicable provisions of this Article IV.
14. (a) As used in this Agreement, the terms "computer tape" and
"computer tape believed by the Transfer Agent to be furnished by an Approved
Institution" shall include any tape or electronic transmission generated by the
Transfer Agent to reflect information believed by the Transfer Agent to have
been input by an Approved Institution, via a remote terminal or other similar
link, into a data processing, storage, or collection system, or similar system
(the "System"), located on the Transfer Agent's premises or utilized by the
Transfer Agent. For purposes of paragraph 2 of this Article IV, such computer
tape shall be deemed to have been furnished at such times as are agreed upon
from time to time by the Transfer Agent and Company only if the information
reflected thereon was input into the System at such times as are agreed upon
from time to time by the Transfer Agent and the Company.
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(b) Nothing contained in this Agreement shall constitute any
agreement or representation by the Transfer Agent to permit, or to agree to
permit, any Approved Institution to input information into a System.
(c) The Transfer Agent reserves the right to approve in
advance any Approved Institution, such approval not to be unreasonably withheld.
The Transfer Agent also reserves the right to terminate any and all automated
data communications, at its discretion, upon a reasonable attempt to notify the
Company when in the opinion of the Transfer Agent continuation of such
communications would jeopardize the accuracy and/or integrity of the Company's
records on the System.
15. Any interest or other earnings on bank cash balances or otherwise
in connection with purchases or redemptions of Shares, dividends payable with
respect to Shares or on any other "float" with respect to the Company shall be
for the benefit and account of the Company."
ARTICLE V
DIVIDENDS AND DISTRIBUTIONS
1. The Company shall furnish to the Transfer Agent a copy of a
resolution of its Board of Directors, certified by the Secretary or any
Assistant Secretary, either (i) setting forth with respect to a Class or Fund of
Shares 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 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 the Transfer Agent on such payment date, or (ii) authorizing the
declaration of dividends and distributions on a daily or other periodic basis
and authorizing the Transfer Agent to rely on a Certificate setting forth the
information described in subsection (i) of this paragraph.
2. Upon the payment date specified in such Certificate or resolution,
the Company shall, in the case of a cash dividend or distribution, cause the
Custodian to pay to the Transfer Agent an amount of cash, if any, sufficient for
the Transfer Agent to make the payment, if any, as of the payment date,
specified in such Certificate or resolution, to the shareholders who were of
record on the record date who are entitled to receive the cash dividend or
distribution. The Transfer Agent shall, upon receipt of any such cash, make
payment of such cash dividends or distributions to the shareholders of record as
of the record date by: (i) mailing a check, payable to the registered
shareholder, to the address of record or dividend
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mailing address, or transmitting payment through the Automated Clearing House
System, (ii) wiring such amounts, or transmitting such amounts through the
Automated Clearing House System, to the accounts previously designated by an
Approved Institution, or (iii) other appropriate means as provided in the
applicable Fund's prospectus. The Transfer Agent shall not be liable for any
improper payments made in good faith and without negligence, in accordance with
a Certificate or resolution described in the preceding paragraph. If the
Transfer Agent shall not receive from the Custodian sufficient cash to make
payment of any cash dividend or distribution to all shareholders of a Class or
Fund of Shares of the Company as of the record date who are entitled to receive
the cash dividend or distribution, the Transfer Agent shall, upon notifying the
Company, withhold payment to all shareholders of record as of the record date
until sufficient cash is provided to the Transfer Agent.
3. It is understood that the Transfer 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. It is expressly agreed and
understood that the Transfer Agent is not liable for any loss as a result of
processing a distribution based on information provided in the Certificate or by
a Company Accountant that is incorrect. The Company agrees to pay the Transfer
Agent for any and all costs, both direct and Out-of-Pocket Expenses, incurred in
such corrective work as necessary to remedy such error.
4. It is understood that the Transfer Agent shall file such appropriate
information returns concerning the payment of dividend and capital gain
distributions with the proper federal, state and local authorities as are
required by law to be filed by the Company 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 law. To the extent such collection or withholding of taxes is
required of the Transfer Agent, it shall pay on a timely basis to the
appropriate authority any amounts required to be remitted to the authority.
ARTICLE VI
CONCERNING THE COMPANY
1. The Company represents to the Transfer Agent that:
(a) It is a corporation duly organized and existing under the
laws of the State of Maryland.
(b) It is empowered under applicable laws and by its Articles
of Incorporation and By-Laws to enter into and perform this Agreement.
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(c) All requisite corporate proceedings have been held to
authorize it to enter into and perform this Agreement.
(d) It is an investment company registered under the
Investment Company Act of 1940 (the "1940 Act"), as amended.
(e) A registration statement under the Securities Act of 1933,
as amended, with respect to the Shares is effective. The Company shall notify
the Transfer Agent if such registration statement or any state securities
registrations have been terminated or a stop order has been entered with respect
to the Shares.
2. Each copy of the Articles of Incorporation of the Company and any
amendment thereto provided by the Company to the Transfer Agent shall be
certified by the Secretary of State (or other appropriate official) of the state
of organization, and if such Articles of Incorporation and/or amendments are
required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Transfer Agent. Each copy of the Articles of Incorporation and
By-Laws and copies of all amendments thereto, and copies of resolutions of the
Board of Directors of the Company, shall be certified by the Secretary or
Assistant Secretary of the Company.
3. It shall be the sole responsibility of the Company to deliver to the
Transfer Agent the Company's currently effective Prospectuses and, for purposes
of this Agreement, the Transfer Agent shall not be deemed to have notice of any
information contained in such Prospectuses until they are actually received by
the Transfer Agent.
ARTICLE VII
CONCERNING THE TRANSFER AGENT
1. The Transfer Agent represents and warrants to the Company that:
(a) It is a corporation duly organized and existing under the
laws of the State of Delaware.
(b) It is empowered under applicable law and by its Charter
and By-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been held to
authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent under Section
17A of the Securities Exchange Act of 1934, as amended. The Transfer Agent shall
promptly give written notice to the Company and the Manager in the event that
its registration
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is revoked or a proceeding is commenced that could result in such revocation.
2. The Transfer Agent shall not be liable and shall be indemnified in
acting upon any computer tape, writing or document reasonably believed by it to
be genuine and to have been signed or made by the proper person or persons and
shall not be held to have any notice of any change of authority of any person
until receipt of written notice thereof from the Company or such person. It
shall also be protected in processing Share certificates which bear the proper
countersignature of the Transfer Agent and which it reasonably believes to bear
the proper manual or facsimile signature of the Authorized Persons of the
Company.
3. The Transfer Agent upon notice to and consent of the Company, which
consent will not be unreasonably withheld, may establish such additional
procedures, rules and regulations governing the transfer or registration of
Share certificates as it may deem advisable and consistent with such rules and
regulations generally adopted by mutual fund transfer agents.
4. The Transfer Agent shall keep such records as are specified in
Schedules I and II hereto in the form and manner and for such period as it may
deem advisable and is agreeable to the Company but not inconsistent with the
rules and regulations of appropriate government authorities, in particular Rules
31a-2 and 31a-3 under the 1940 Act, as amended. The Transfer Agent may deliver
to the Company from time to time at its discretion, for safekeeping or
disposition by the Company in accordance with law, such records, papers, Share
certificates which have been cancelled in transfer, exchange or redemption, or
other documents accumulated in the execution of its duties as such Transfer
Agent, as the Transfer Agent may deem expedient, other than those which the
Transfer Agent is required to maintain pursuant to applicable laws and
regulations. The Company shall assume all responsibility for any failure
thereafter to produce any record, paper, cancelled Share certificate, or other
document so returned, if and when required. The records maintained by the
Transfer Agent pursuant to this paragraph 4, which have not been previously
delivered to the Company pursuant to the foregoing provisions of this paragraph
4, shall be considered to be the property of the Company, shall be made
available upon request for inspection by the officers, employees, and auditors
of the Company or other persons authorized by the Company and shall be delivered
to the Company upon request and in any event upon the date of termination of
this Agreement, as specified in Article VIII of this Agreement, in the form and
manner kept by the Transfer Agent on such date of termination or such earlier
date as may be requested by the Company. Upon reasonable request by the Company,
the Transfer Agent shall provide in hard copy or on microfilm, whichever the
Transfer Agent shall elect, any records included in any such delivery which are
maintained by the
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Transfer Agent on a computer disk or are similarly maintained.
5. (a) The Transfer Agent shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its bad faith,
negligence, willful misfeasance or reckless disregard of its duties under this
Agreement.
(b) Notwithstanding anything to the contrary, neither the Transfer
Agent nor its affiliates shall be liable for any consequential, special or
indirect losses or damages, whether or not the likelihood of such losses or
damages was known by the Transfer Agent or its affiliates.
6. In performing its services hereunder, the Transfer Agent shall seek
to attain the Performance Objectives set forth in Schedule III hereto. The
Transfer Agent's failure to meet any Transfer Agent performance objective shall
not in and of itself constitute willful misconduct or negligence under this
Agreement.
7. (a) The Company shall indemnify and hold harmless the Transfer
Agent, its officers, directors and employees from and against all claims
(whether with or without basis in fact or law), demands, expenses (including
attorneys' fees) and liabilities of any and every nature which the Transfer
Agent may sustain or incur or which may be asserted against the Transfer Agent
by any person as a result of any action taken or omitted to be taken by the
Transfer Agent in good faith and without negligence or willful misconduct or in
reliance upon (i) any provision of this Agreement; (ii) the Prospectuses; (iii)
any instruction or order including, without limitation, any computer tape
reasonably believed by the Transfer Agent to have been received from an Approved
Institution; (iv) any instrument or order reasonably believed by it to be
genuine and to be signed, countersigned or executed by any duly authorized
Authorized Person of the Company; (v) any Certificate or other instruction of an
Authorized Person; or (vi) any opinion of legal counsel for the Company or the
Transfer Agent. The Company shall indemnify and hold harmless the Transfer Agent
from and against all claims (whether with or without basis in fact or law),
demands, expenses (including attorneys' fees) and liabilities of any nature
which the Transfer Agent may sustain or incur or which may be asserted against
the Transfer Agent by any person by reason of or as a result of any action taken
or omitted to be taken by the Transfer Agent in good faith in connection with
its appointment or in reasonable reliance upon any law, act, regulation or any
interpretation of the same even though such law, act or regulation may have been
altered, changed, amended or repealed thereafter.
(b) The Transfer Agent shall indemnify and hold harmless the
Company, its officers, directors and employees from
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and against all claims (whether with or without basis in fact or law), demands,
expenses (including attorneys' fees) and liabilities of any and every nature
which the Company may sustain or incur or which may be asserted against the
Company by any person as a result of any action taken or omitted to be taken by
the Transfer Agent which constitutes bad faith, negligence, reckless disregard
or willful misfeasance or arising out of a failure of the Transfer Agent to
comply with this Agreement or a breach by the Transfer Agent of any
representation or warranty contained in this Agreement or the attached Exhibits
or Schedules.
(c) Neither party ("Indemnified Party") shall settle nor make
any compromise of any claim, demand, expense or liability to which it may seek
indemnity pursuant to paragraph 7(a) or (b) of this Article VII (each, an
"Indemnifiable Claim") without the express written consent of the other party
("Indemnifying Party"). The Indemnified Party shall notify the Indemnifying
Party within 15 days or a reasonable time (whichever is longer) of receipt of
notification of an Indemnifiable Claim, provided that the failure by the
Indemnified Party to furnish such notification shall not impair its right to
seek indemnification from the Indemnifying Party unless the Indemnifying Party's
ability to adequately defend the Indemnifiable Claim is impaired as a result of
such failure, and further provided, that if as a result of the Indemnified Party
failure to provide the Indemnifying Party with timely notice of the initiation
of litigation, a judgment by default is entered, prior to seeking
indemnification from the Indemnifying Party, the Indemnified Party, at its own
cost and expense, shall oppose such judgment. The Indemnifying Party shall have
the right to defend any Indemnifiable Claim at its own expense, provided that
such defense shall be conducted by counsel selected by the Indemnifying Party
and reasonably acceptable to the Indemnified Party. The Indemnified Party may
join in such defense at its own expense, but to the extent that it shall so
desire, the Indemnifying Party shall direct such defense. The Indemnifying Party
shall not settle any Indemnifiable Claim without the express written consent of
the Indemnified Party if the Indemnified Party determines that such settlement
would have an adverse effect on the Indemnified Party beyond the scope of this
Agreement. In such event, each of the Indemnifying Party and the Indemnified
Party shall be responsible for their own defense at their own cost and expense,
and such claim shall not be deemed an Indemnifiable Claim hereunder. If the
Indemnifying Party fails or refuses to defend an Indemnifiable Claim, the
Indemnified Party may provide its own defense at the cost and expense of the
Indemnifying Party.
(d) Notwithstanding any provision in this Agreement to the
contrary, the Indemnifying Party shall not indemnify the Indemnified Party
against any liability or expense arising out of the Indemnified Party's
negligence, willful
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misfeasance, bad faith, gross negligence or reckless disregard of its duties and
obligations under this Agreement. The Indemnified Party shall indemnify and hold
harmless the Indemnifying Party from and against any and all claims (whether
with or without basis in fact or law), losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of or attributable to any
action or failure or omission to act by the Indemnified Party as a result of the
Indemnified Party's bad faith, negligence, willful misfeasance, gross negligence
or reckless disregard of its duties under this Agreement.
(e) Notwithstanding any provision in this Agreement to the
contrary, the Transfer Agent may not avoid liability under this Agreement for
any loss or damage by reason of its reliance on (i) a Certificate signed by an
Authorized Person that is associated with or employed by the Transfer Agent or
any of its affiliates (an "Affiliated Authorized Person"); (ii) any other
instruction of an Affiliated Authorized Person or (iii) information provided by
a Company Accountant that is associated with or employed by the Transfer Agent
or any of its affiliates (an "Affiliated Company Accountant"), if such loss or
damage was the result of an Affiliated Authorized Person's or an Affiliated
Company Accountant's negligence, willful misfeasance, bad faith, or reckless
disregard of its duties and obligations under this Agreement.
8. Excluded from the consideration of whether the Transfer Agent has
been negligent or has breached this Agreement shall be any period of time, and
only such period of time, during which the Transfer Agent's performance is
materially affected by reason of circumstances beyond its control (collectively,
"Causes"), including without limitation mechanical breakdowns of equipment
(including any alternative power supply and operating systems software), flood
or catastrophe, acts of God, failures of transportation, communication or power
supply, strikes, lockouts, work stoppages or other similar circumstances.
9. The obligations of the parties hereto under paragraphs 2, 5, 6, 7
and 8 of Article VII shall survive termination of this Agreement.
10. At any time, the Transfer Agent may apply to an Authorized Person
of the Company that is not associated with or employed by the Transfer Agent or
any of its affiliates, for written instructions with respect to any matter
arising in connection with the Transfer Agent's duties and obligations under
this Agreement, and the Transfer Agent shall not be liable for any action taken
or omitted by it in good faith in accordance with such written instructions.
Such application by the Transfer Agent for written instructions from an
Authorized Person of the Company may set forth in writing any action proposed to
be taken or omitted by the Transfer Agent with respect to its duties or
obligations under this Agreement and the date on and/or after
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which such action shall be taken. The Transfer Agent shall not be liable for any
action taken or omitted in accordance with a proposal included in any such
application on or after the date specified therein unless, prior to taking or
omitting any such action, the Transfer Agent has received written instructions
in response to such application specifying the action to be taken or omitted.
The Transfer Agent may consult with counsel of the Company, or upon notice to
and consent of the Company and Manager, its own counsel, at the expense of the
Company and shall be fully protected with respect to anything done or omitted by
it in good faith in accordance with the advice or opinion of counsel to the
Company or its own counsel.
11. The Transfer Agent shall issue and mail subscription warrants for
Shares of capital stock, Shares representing stock dividends, exchanges or
splits, or act as conversion agent upon receiving written instructions from an
Authorized Person and such other documents as the Transfer Agent may deem
necessary.
12. The Transfer Agent shall supply shareholder lists to the Company
upon receiving a request therefor from an Authorized Person of the Company.
13. (a) The Transfer Agent shall treat confidentially and as
proprietary information of the Company records and other information relative to
the Company and to persons who are at any time shareholders of the Company, and
shall not use such records and information for any purpose other than the
performance of its responsibilities and duties hereunder. In case of any request
or demand for the inspection of the shareholder records of the Company, the
Transfer Agent shall to the extent permitted by applicable law endeavor to
notify the Company promptly and to secure instructions from an Authorized Person
as to such inspection. The Transfer Agent reserves the right, however, to
exhibit the shareholder records to any person whenever it may be exposed to
civil or criminal contempt proceedings for failure to comply or when requested
to divulge information and records to duly constituted authorities; provided,
however, that in connection with any such disclosure the Transfer Agent shall,
to the extent permitted by applicable law, promptly notify the Company and the
Manager that such disclosure has been made or is to be made.
(b) The Company shall treat confidentially and as proprietary
information relative to the Transfer Agent and shall not use such information
for any purposes other than the performance of its responsibilities and duties
hereunder.
(c) The obligations of confidentiality in Paragraphs 13(a) and
(b) shall survive termination or cancellation of this Agreement and shall not
apply to any information which a party has in its possession when disclosed to
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it by the other party, information which a party develops, information which is
or becomes known to the public other than by breach of this Agreement, or
information rightfully received by either party from a third-party without the
obligation of confidentiality.
14. At the request of an Authorized Person of the Company, the Transfer
Agent shall address and mail such appropriate notices to shareholders as the
Company may direct.
15. Notwithstanding any of the foregoing provisions of this Agreement,
the Transfer Agent shall be under no duty or obligation 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
Approved Institution or of the Company to request such sale or issuance;
(b) The legality of a transfer of Shares, or of a redemption
of any Shares, the propriety of the amount to be paid therefor, or the authority
of the Approved Institution or of the Company to request such transfer or
redemption;
(c) The legality of the declaration of any dividend by the
Company, or the legality of the issue of any Shares in payment of any share
dividend; or
(d) The legality of any recapitalization or readjustment of
Shares.
16. The Transfer Agent shall be entitled to receive and the Company
hereby agrees to pay to the Transfer Agent for its performance hereunder,
including its performance of the duties and functions set forth in Schedule I
hereto, (i) its reasonable Out-of-Pocket Expenses (including legal expenses and
attorneys' fees) incurred in connection with its performance hereunder and (ii)
such compensation as may be agreed upon in writing from time to time by the
Transfer Agent and the Company.
17. The Transfer Agent shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Transfer Agent.
18. Purchase and Price of Services.
(a) The Company shall compensate the Transfer Agent for, and
the Transfer Agent will provide, beginning on the execution date of this
Agreement and continuing until the termination of this Agreement as provided
herein, the Services set forth herein in Schedule I(a).
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(b) The current unit prices for the Services shall be as set
forth in a separate fee letter (the "Fee Schedule"). At least 90 days prior to
the end of each calendar year, the Transfer Agent may negotiate with the Company
to adjust the Fee Schedule for the following calendar year upon the approval of
the Board of Directors of the Company. Notwithstanding the above, at any time
the Transfer Agent shall be entitled to increased fees or one-time charges due
to changes in legal or regulatory requirements; provided that such increased
fees or one-time charges shall be subject to the approval of the Board of
Directors of the Company, which approval shall not be unreasonably withheld.
19. Billing and Payment.
(a) The Transfer Agent shall xxxx the Company as follows: (i)
monthly in arrears for Accounts maintained and in arrears for any Out-of-Pocket
Expenses incurred by the Transfer Agent; provided, however, that with respect to
Out-of-Pocket Expenses, the Transfer Agent shall provide the Company monthly
with an amount to be advanced to the Transfer Agent for estimated postage
expenses for the following month. Documentation to support reconciliation of
actual postal charges shall be provided to the Company monthly. The Transfer
Agent may from time to time request the Company to make additional advances when
appropriate.
(b) The Company shall pay the Transfer Agent in immediately
available funds at Wilmington, Delaware within thirty (30) days of the date of
the xxxx, provided the xxxx is received in proper order and on a timely basis.
ARTICLE VIII
TERMINATION
1. Either of the parties hereto may terminate this Agreement by giving
to the other party notice in writing specifying the date of such termination,
which shall be not less than 90 days after the date of receipt of such notice.
Notwithstanding the foregoing, the Company may at any time terminate this
Agreement in accordance with the provisions of Schedule III hereto.
2. If either party fails to observe, keep or perform any material term
or condition of this Agreement, or if a voluntary or involuntary petition is
commenced by or against either party under Title 11 of the United States Code or
a party becomes insolvent, or should any substantial part of either party's
property be subject to any levy, seizure, assignment, application or sale for or
by any creditor or government agency, the other party may terminate this
Agreement in whole or in part. The party seeking to terminate this Agreement
shall give the
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other party written notice of any of the foregoing claimed to be a basis for
termination, and the Agreement shall terminate 30 days after the receipt of the
notice if the party receiving the notice has then failed to correct or remedy
the situation. The party charged with alleged material breach may initiate the
procedures in Article IX Paragraph 5 and, in that case, termination shall not be
effective during the pendency of such procedures. In the event such notice is
given by the Company, it shall be accompanied by a copy of a resolution of the
Board of Directors of the Company, certified by the Secretary or any Assistant
Secretary, electing to terminate this Agreement.
3. In the event such notice is given by the Transfer Agent, the Company
shall, on or before the termination date, deliver to the Transfer Agent a copy
of a resolution of its Board of Directors certified by the Secretary or an
Assistant Secretary designating a successor transfer agent or transfer agents.
In the absence of such designation by the Company, the Company shall, upon the
date specified in the notice of termination of this Agreement and delivery of
the records maintained hereunder, be deemed to be its own transfer agent and the
Transfer Agent shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement.
4. In the event this Agreement is terminated as provided herein, upon
the written request of the Company, the Transfer Agent shall deliver the records
of the Company on electromagnetic media to the Company or its successor transfer
agent. The Company shall be responsible to the Transfer Agent for the reasonable
costs and expenses associated with the preparation and delivery of such media,
including copies of computer ready formats, to the extent such costs were
approved by the Company prior to such costs being incurred. Upon termination as
described in this Article VIII, for so long as the Transfer Agent continues to
perform any one or more of the services contemplated by this Agreement or any
Schedule hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Fees and out-of-pocket expenses incurred by the Transfer Agent but
unpaid by the Company upon such termination shall be immediately due and payable
upon and notwithstanding such termination. Subsequent to such termination, for a
reasonable fee the Transfer Agent shall provide the Company with reasonable
access to any Company documents or records remaining in its possession and
previously provided to the Company.
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ARTICLE IX
MISCELLANEOUS
1. Representatives of the Company's independent outside auditors
("Auditors") shall have the right from time to time to perform on-site audits at
the facility of the Transfer Agent which do not result in an unreasonable
disruption of the business of the Transfer Agent. Such audits shall be conducted
in accordance with an audit program, the scope and frequency of which shall be
agreed upon from time to time in good faith by the parties. The Auditors may
obtain a reasonable number of copies of records and accounts directly related to
the services to be supplied hereunder by the Transfer Agent. Except as provided
in clause (c) below, nothing in this paragraph shall be deemed to permit the
Auditors to have access to any records or information concerning (a) any other
customer of the Transfer Agent, (b) the manner or method used by the Transfer
Agent in establishing the fees it charges any customer, including the Company or
(c) the Transfer Agent's internal operating procedures, provided that the
Transfer Agent shall permit officers or employees of the Auditors to have access
to such internal operating procedures to the extent necessary for the proper
completion of such audit, and the expression of their unqualified opinion in the
Company's semi-annual report on Form N-SAR and the performance of any other
services required by applicable law, provided such Auditors have agreed to keep
such internal operating procedures confidential and treat such information as
proprietary information of the Transfer Agent.
2. During the term of this Agreement, at no additional cost to the
Company, the Transfer Agent shall provide a facility capable of safeguarding the
transfer agency and dividend disbursing records of the Company in case of damage
to the primary facility providing those services (the "Back-Up Facility").
Transfer of the transfer agency and dividend records of the Company to the
Back-Up Facility shall be at the Transfer Agent's expense, shall commence
immediately after damage to the primary facility results in an inability to
provide the transfer agency and dividend disbursing services, and shall be
completed within 72 hours of commencement. After the primary facility has
recovered, the Transfer Agent shall again utilize it to provide the transfer
agency and dividend disbursing services to the Company at no additional cost to
the Company. The Transfer Agent shall use reasonable efforts to provide the
services described in this Agreement from the Back-Up Facility.
3. The Transfer Agent represents that it has and is currently
registered as a transfer agent with the Securities and Exchange Commission
("SEC") and has complied with the SEC's regulations for registered transfer
agents. The Transfer Agent agrees that it will continue to be registered with
the SEC as a transfer agent for the duration of this Agreement. Should the
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Transfer Agent fail to be registered with the SEC as a transfer agent at any
time during this Agreement, the Company may, upon written notice to the Transfer
Agent, immediately terminate this Agreement.
4. The following procedures will be adhered to in all disputes arising
under this Agreement which the parties cannot resolve informally. The aggrieved
party shall notify the other party in writing of the nature of the dispute with
as much detail as possible about the deficient performance of the other party.
Representatives of the parties shall meet (in person or by telephone) within
seven days of the date of the written notification to reach an agreement about
the nature of the deficiency and the corrective action to be taken by the
respective parties. The representatives of the parties shall produce a report
about the nature of the dispute in detail to their respective management. If the
representatives of the parties are unable to agree on corrective action, the
managers to whom the representatives of the parties report or their successors
("Management") shall meet or otherwise act to facilitate an agreement within 14
days of the date of the written notification. If Management cannot resolve the
dispute, or agree upon a written plan of corrective action to do so, within
seven days after their initial meeting or other action, or if the agreed upon
completion dates in the written plan of corrective action are exceeded, either
party may request arbitration as provided for in this Agreement. Except as
otherwise specifically provided, neither party shall terminate this Agreement
for breach or initiate arbitration or other dispute resolution procedures unless
and until this dispute resolution procedure has been employed or waived in
writing by both parties.
5. (a) Any controversy or claim between or among the parties, arising
out of or relating to this Agreement or any agreements or instruments relating
hereto or delivered in connection herewith shall at the request of any party be
determined by arbitration. The arbitration shall be conducted in accordance with
the United States Arbitration Act (Title 9, U.S. Code), notwithstanding any
choice of law provision in this Agreement, and under the auspices and rules of
the American Arbitration Association then in effect. The parties submit to
personal jurisdiction in San Francisco, California. Each party may serve a
single request for production of documents. If disputes arise concerning these
requests, the arbitrator(s) shall have sole and complete discretion to determine
the disputes. The arbitrator(s) shall give effect to statutes of limitation in
determining any claim, and any controversy concerning whether an issue is
arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shall
deliver a written opinion setting forth findings of fact and the rationale for
the decision. The arbitrator(s) shall reconsider the decision once upon the
motion and at the expense of a party.
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(b) The confidentiality provisions of Article VII Paragraph 13
of this Agreement shall apply to the arbitration proceeding, all evidence taken
and the opinion. Judgment upon the decision rendered by the arbitrator(s) may be
entered in any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy shall
not constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief.
(c) No provision of this paragraph 5 of Article IX shall limit
the right of a party to this Agreement to obtain provisional or ancillary
remedies from a court of competent jurisdiction before, after, or during the
pendency of any arbitration. The exercise of a remedy does not waive the right
of either party to resort to arbitration.
(d) If a legal action or arbitration is commenced in
connection with the enforcement of this Agreement or any instrument or agreement
required under this Agreement, the prevailing party shall be entitled to
attorneys' fees actually incurred (including allocated costs for in-house legal
services), costs and necessary disbursements incurred in connection with such
action or proceeding, as determined by the court or arbitrator(s).
6. The Company agrees that prior to effecting any change in any
Prospectus which would increase or alter the duties and obligations of the
Transfer Agent hereunder, it shall advise the Transfer Agent of such proposed
change prior to the intended date of the same.
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7. (a) Notices of any kind to be given to the Manager hereunder shall
be in writing and shall be duly given if mailed or delivered to the Manager at
the following address:
Bank of America NT&SA With a copy to:
Mutual Funds Administration Xxxxxx X. Xxxxx, Esq.
Xxxx 00000 Xxxx xx Xxxxxxx XX&XX
000 X. Xxxxxxx Xxx. 000 Xxxxx Xxxxxx Xxxxxx
00xx Xxxxx 0xx Xxxxx
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
or at such other address or to such individual as shall be so specified by the
Manager.
(b) Notices of any kind to be given to the Transfer Agent
hereunder shall be in writing and shall be duly given if mailed or delivered to
the Transfer Agent at the following address:
PFPC Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
or at such other address or to such individual as shall be so specified by the
Transfer Agent.
(c) Notices of any kind to be given to the Company shall be in
writing and shall be duly given if mailed or delivered to the Company at the
following address:
Pacific Horizon Funds, Inc. With a copy to:
000 Xxxxxxxx Xxxxxxx Drinker Xxxxxx & Xxxxx LLP
Xxxxxxxxxx, XX 00000 0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
8. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties to this Agreement.
9. 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. This
Agreement will automatically terminate in the event of its assignment, as
described hereunder, or as such term is defined in the 1940 Act.
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10. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware (without reference to principles of
conflicts of law).
11. 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.
12. The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Company, and no rights shall be granted to any other
person by virtue of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the day
and year first above written.
PFPC INC. PACIFIC HORIZON FUNDS, INC.
By: /s/Xxxxxx X. Xxxxxxxxx By: /s/Xxxxxxxxx X. Pings
---------------------- ----------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxxxxx Xxxxxxxxx X. Pings
---------------------- ----------------------
(Name) (Name)
EUP President
---------------------- ----------------------
(Title) (Title)
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TRANSFER AGENCY AGREEMENT
APPENDIX A
I, Xxxxxxxxx X. Pings, President, and I, W. Xxxxx XxXxxxxx, III,
Secretary, of PACIFIC HORIZON FUNDS, INC., a Maryland corporation (the
"Company"), do hereby certify that:
The following individuals have been duly authorized by the Board of
Directors of the Company in conformity with the Company's Articles of
Incorporation and By-Laws to execute any Certificate, instruction, notice or
other instrument, including an amendment to Appendix B or Schedule I hereto, or
to give oral instructions on behalf of the Company, and the signatures set forth
opposite their respective names are their true and correct signatures.
NAME SIGNATURE
Xxxxxxxxx X. Pings /s/Xxxxxxxxx X. Pings
------------------------- -------------------------
Xxxxxxx X. Xxxxx /s/Xxxxxxx X. Xxxxx
------------------------- -------------------------
Xxx X. Xxxxxxxx /s/Xxx X. Xxxxxxxx
------------------------- -------------------------
W. Xxxxx XxXxxxxx, III /s/W. Xxxxx XxXxxxxx, III
------------------------- -------------------------
Xxxx X. Xxxxxxx /s/Xxxx X. Xxxxxxx
------------------------- -------------------------
J. Xxxxxx Xxxxx /s/J. Xxxxxx Xxxxx
------------------------- -------------------------
Xxxxxx X. Xxxxx /s/Xxxxxx X. Xxxxx
------------------------- -------------------------
PACIFIC HORIZON FUNDS, INC.
By: /s/Xxxxxxxxx X. Pings
-------------------------
Xxxxxxxxx X. Pings
President
Dated as of: By: /s/W. Xxxxx XxXxxxxx, III
October 25, 1997 -------------------------
W. Xxxxx XxXxxxxx, III
Secretary
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TRANSFER AGENCY AGREEMENT
APPENDIX B
I, Xxxxxxxxx X. Pings, President, and I, W. Xxxxx XxXxxxxx, III,
Secretary, of PACIFIC HORIZON FUNDS, INC., a Maryland corporation (the
"Company"), do hereby certify that:
The following is a list of the Classes and Funds of the Company issued
and/or authorized as of the date of this Transfer Agency Agreement:
CLASS FUND
Class A Treasury Fund-Pacific Horizon
Shares
Class A-Special Series 1 Treasury Fund-Horizon Service
Shares
Class A-Special Series 2 Treasury Fund-Horizon Shares
Class A-Special Series 3 Treasury Fund-S Shares
Class A-Special Series 4 Treasury Fund-X Shares
Class A-Special Series 5 Treasury Fund-Y Shares
Class B Prime Fund-Pacific Horizon Shares
Class B-Special Series 1 Prime Fund-Horizon Service Shares
Class B-Special Series 2 Prime Fund-Horizon Shares
Class B-Special Series 3 Prime Fund-S Shares
Class B-Special Series 4 Prime Fund-X Shares
Class B-Special Series 5 Prime Fund-Y Shares
Class D Aggressive Growth Fund-A Shares
Class D-Special Series 3 Aggressive Growth Fund-M Shares
Class D-Special Series 5 Aggressive Growth Fund-K Shares
Class E U.S. Government Securities Fund-A
Shares
Class E-Special Series 3 U.S. Government Securities Fund-M
Shares
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Class E-Special Series 5 U.S. Government Securities Fund-K
Shares
Class F Capital Income Fund-A Shares
Class F-Special Series 3 Capital Income Fund- M Shares
Class F-Special Series 5 Capital Income Fund-K Shares
Class G California Tax-Exempt Bond Fund-A
Shares
Class G-Special Series 3 California Tax-Exempt Bond Fund-M
Shares
Class G-Special Series 5 California Tax-Exempt Bond Fund-K
Shares
Class I Tax-Exempt Money Fund-Pacific
Horizon Shares
Class I-Special Series 1 Tax-Exempt Money Fund-Horizon
Service Shares
Class I-Special Series 2 Tax-Exempt Money Fund-Horizon
Shares
Class I-Special Series 3 Tax-Exempt Money Fund-S Shares
Class J California Tax-Exempt Money Market
Fund-Pacific Horizon Shares
Class J-Special Series 1 California Tax-Exempt Money Market
Fund-Horizon Service Shares
Class J-Special Series 2 California Tax-Exempt Money Market
Fund-Horizon Shares
Class J-Special Series 3 California Tax-Exempt Money Market
Fund-S Shares
Class J-Special Series 4 California Tax-Exempt Money Market
Fund-X Shares
Class K Treasury Only Fund-Pacific Horizon
Shares
Class K-Special Series 1 Treasury Only Fund-Horizon Service
Shares
Class K-Special Series 2 Treasury Only Fund-Horizon Shares
Class L Government Fund-Pacific Horizon
Shares
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Class L-Special Series 1 Government Fund-Horizon Service
Shares
Class L-Special Series 2 Government Fund-Horizon Shares
Class M Intermediate Bond Fund-A Shares
Class M-Special Series 3 Intermediate Bond Fund-M Shares
Class M-Special Series 5 Intermediate Bond Fund-K Shares
Class M-Special Series 7 Intermediate Bond Fund-SRF Shares
Class N Blue Chip Fund-A Shares
Class N-Special Series 3 Blue Chip Fund-M Shares
Class N-Special Series 5 Blue Chip Fund-K Shares
Class N-Special Series 7 Blue Chip Fund-SRF Shares
Class O Asset Allocation Fund-A Shares
Class O-Special Series 3 Asset Allocation Fund-M Shares
Class O-Special Series 5 Asset Allocation Fund-K Shares
Class O-Special Series 7 Asset Allocation Fund-SRF Shares
Class Q National Municipal Bond Fund-A
Shares
Class Q-Special Series 3 National Municipal Bond Fund-M
Shares
Class Q-Special Series 5 National Municipal Bond Fund-K
Shares
Class R Utilities Fund-A Shares
Class R-Special Series 3 Utilities Fund-M Shares
Class R-Special Series 5 Utilities Fund-K Shares
Class S Growth and Income Fund-A Shares
Class S-Special Series 3 Growth and Income Fund-M Shares
Class S-Special Series 5 Growth and Income Fund-K Shares
Class T International Equity Fund-A Shares
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Class T-Special Series 3 International Equity Fund-M Shares
Class T-Special Series 5 International Equity Fund-K Shares
Class U Short-Term Government Fund-A Shares
Class U-Special Series 3 Short-Term Government Fund-M Shares
Class U-Special Series 5 Short-Term Government Fund-K Shares
Class V International Bond Fund-A Shares
Class V-Special Series 3 International Bond Fund-M Shares
Class V-Special Series 5 International Bond Fund-K Shares
Class W Corporate Bond Fund-A Shares
Class W-Special Series 3 Corporate Bond Fund-M Shares
Class W-Special Series 5 Corporate Bond Fund-K Shares
By:/s/Xxxxxxxxx X. Pings
-------------------------
Xxxxxxxxx X. Pings
President
Dated as of: By:/s/W. Xxxxx XxXxxxxx, III
October 25, 1997 -------------------------
W. Xxxxx XxXxxxxx, III
Secretary
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SCHEDULE I(a)
DESCRIPTION OF SERVICES
In consideration of the fees to be paid in such manner and at such
times as the Company and the Transfer Agent may agree, the Transfer Agent shall
provide the services set forth below:
Examine and process new accounts, subsequent payments, liquidations,
transfers, exchanges, telephone transactions, draft check redemptions, automatic
withdrawals, certificate deposits,NSCC trades, wire order trades, direct trades,
dividends, capital gains, daily trade confirmations, dividend statements, dealer
statements.
DAILY ACTIVITY
Maintain the following shareholder information on computer recordkeeping systems
or in such other manner as the Transfer Agent shall determine:
Name and Address, including Zip Code;
Balance of uncertificated Shares;
Balance of certificated Shares;
Certificate number, number of Shares, issuance date of each certificate
outstanding and cancellation date for each certificate no longer outstanding, if
issued;
Balance of Shares having paid a commission;
Balance of dollars available for redemption;
Dividend code (daily accrual, monthly reinvest, monthly cash or quarterly cash);
Type of account code (regular account, Automatic Withdrawal Plan);
Dealer, Branch and Salesperson information;
Establishment date indicating the date an account was opened, carrying forward
pre-conversion data as available;
Original establishment date for accounts opened by exchange;
W-9 withholding status and periodic reporting;
State of residence code;
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Social Security or taxpayer identification number, and indication of
certification (SSN also usable as a reference for on-line account lookup);
Historical transactions on the account for the most recent 13 months, or other
period as mutually agreed to from time-to-time;
Indication as to whether phone transactions can be accepted for this account;
Beneficial owner code, i.e. male, female, joint tenant, etc.;
An alternate or "secondary" account number issued by a dealer (or bank, etc.) to
a customer for use in inquiry and transaction input by "remote accessors"
(Company client institutions with remote terminal access or transmission
capability).
FUNCTIONS
Answer all investor and dealer telephone and/or written inquiries, except those
concerning Company policy or requests for investment advice which will be
referred to the Company or those which the Company chooses to answer, and
provide a staff until 8:00 pm Eastern time on each business day in connection
therewith.
Deposit Company Share certificates into accounts upon receipt of instructions
from the investor or other authorized person, if issued.
Examine and process transfers of Shares ensuring that all transfer requirements
and legal documents have been supplied.
Process and confirm address changes.
Process standard account record changes as required, i.e. dividend codes, dealer
and salesperson codes, etc.
Microfilm source documents for transactions, such as account applications and
correspondence.
Use of master account application to establish individual participant accounts.
Perform backup withholding for those accounts which federal government
regulations indicate is necessary.
Perform withholdings on liquidations, if applicable, for employee benefit plans.
Prepare and mail shareholder reporting forms relative to processing performed,
including 5498s, 1042s, and 1099s.
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Solicit missing taxpayer identification numbers.
Provide remote access inquiry to Company records via Company supplied hardware.
REPORTS PROVIDED
Daily Journals
Reflecting all Shares and dollar activity for the previous day
Blue Sky Report
Supply information monthly for Company's preparation of Blue Sky Reporting
N-SAR Report
Supply monthly correspondence, redemption and liquidation information for use in
Company's N-SAR Report
12b-1 Report/ Supply monthly dealer
Average Asset Reporting reallowance, commission and other fee reporting
Additionally, the following will be provided at the Company's request to the
Company at no charge (any such service may be outsourced to third parties
provided it is at no additional charge to the Company):
1. Shareholder listings:
- by beneficial owner code
- by tax status code
- by state code
- by establishment date
- by dividend code
- by account plan type
- top ten shareholders.
2. Dealer Transaction Totals.
3. Monthly average daily balance reports.
Prepare and mail copies of summary statements to dealers and investment
advisers;
Generate and mail confirmation statements for all financial transactions. Send
copies of financial transaction confirmations to the dealer specified, as well
as investment advisor and possibly other indicated interested parties, if
requested;
Monthly management report as Company and Transfer Agent agree that will provide
summary information of Company activity and quality of services delivered.
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DIVIDEND ACTIVITY
Reinvest or pay in cash including reinvesting in other funds within the fund
group serviced by the Transfer Agent as described in each Company prospectus.
Distribute capital gains simultaneously with income dividend.
DEALER SERVICES
Prepare and mail confirmation statements to dealers daily.
Prepare and mail copies of statements to dealers, same frequency as investor
statements.
Allow on-line access to institutions designated by the Company from time to
time.
SHAREHOLDER MEETINGS
Proxy mailing.
Prepare certified list of Shareholders, hard copy or microfiche as requested by
the Company.
Address and mail proxies and related material. Tabulate returned proxies and
supply daily reports when sufficient proxies have been received (material must
be adaptable to mechanical equipment as reasonably specified by the Transfer
Agent)
PERIODIC ACTIVITIES
Mail transaction confirmation statements daily to investors.
Address and mail two (2) periodic financial reports (an annual report and
semi-annual report) to fully disclosed recordholders (material must be adaptable
to Transfer Agent's mechanical equipment as reasonably specified by the Transfer
Agent).
Mail periodic statement to investors.
Compute, prepare and furnish all necessary reports to Governmental authorities:
Forms 1096, 1099DIV, 1099B, 1042 and 1042S.
Enclose various marketing material as designated by the Company in statement
mailings, i.e. monthly and quarterly statements (material must be adaptable to
mechanical equipment as reasonably specified by the Transfer Agent).
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SCHEDULE II
RECORDS MAINTAINED BY TRANSFER AGENT
- Account applications
- Cancelled 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 checks
- Liquidation, redemption, withdrawal and transfer requests including
stock powers, signature guarantees and any supporting documentation
- Proxy records for shareholder meetings held within the previous twelve
(12) months (held with the Transfer Agent's Compliance Department)
- State and federal tax records
- Journals (or other records of original entry) containing itemized daily
record of all sales and redemptions
- Separate ledger accounts (or other records) showing number of shares
held by each shareholder of record (including details with respect to periodic
investment plans, dividend reinvestment plans, etc.)
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SCHEDULE III
TRANSFER AGENT PERFORMANCE OBJECTIVES
PACIFIC HORIZON FUNDS, INC.
The performance objectives set forth below represent what the Company believes
should be reasonably obtainable by the Transfer Agent, given the typical daily
variables associated with any transfer agent operation (i.e., transaction volume
fluctuations).
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"ACCEPTABLE" FOR ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT MONTH TEN
PERCENT (10%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE COMPANY FOR
THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
IF THE TRANSFER AGENT FAILS TO MEET THE PERFORMANCE LEVELS DESCRIBED BELOW AS
"MARGINAL" FOR ANY ONE OR MORE OF THE LISTED FUNCTIONS BASED ON A
TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR MONTH PERIOD, THE TRANSFER
AGENT SHALL CREDIT THE COMPANY ON THE COMPANY'S INVOICE FOR THE NEXT MONTH
TWENTY PERCENT (20%) OF THE SERVICE FEES THE TRANSFER AGENT INVOICED THE COMPANY
FOR THE MONTH PRIOR TO THE MONTH THE PERFORMANCE LEVELS WERE NOT MET.
This Agreement may be immediately terminated upon written notice by the Company
to the Transfer Agent in the event that the TRANSFER AGENT FAILS TO MEET THE
PERFORMANCE LEVELS DESCRIBED BELOW AS "UNACCEPTABLE" FOR ANY ONE OR MORE OF THE
LISTED FUNCTIONS BASED ON A TRANSACTION-VOLUME WEIGHTED AVERAGE OVER A CALENDAR
MONTH PERIOD and not cured by the Transfer Agent within a subsequent period of
30 days. Notice of such failure to meet performance objectives shall be provided
in writing by the Company to the Transfer Agent.
40
SCHEDULE III (cont.)
Performance Standards
======================================================================================================
Function Objective Acceptable Marginal Unacceptable
------------------------------------------------------------------------------------------------------
New Account Set Processed 97.5% 95.0% 92.5%
Up/Processing day of
receipt
------------------------------------------------------------------------------------------------------
Transaction Processed 97.5% 95.0% 92.5%
Processing day of
receipt
------------------------------------------------------------------------------------------------------
Maintenance Processed 85.0% 80.0% 75.0%
Processing within 2
business
days
------------------------------------------------------------------------------------------------------
Quality of Error rate 99.0% 98.0% 97.0%
Entry-New of:
Accounts
------------------------------------------------------------------------------------------------------
Quality of Error rate 99.0% 98.0% 97.0%
Entry-Financial of:
Transactions
------------------------------------------------------------------------------------------------------
Quality of Error rate 99.0% 97.0% 96.0%
Entry-Clerical of:
Transactions
------------------------------------------------------------------------------------------------------
Research Within 1 90.0% 80.0% 75.0%
Turnaround* business day
======================================================================================================
* For items that occurred after PFPC became Transfer Agent.
