Exhibit 5 - TRANSFER AGENCY AGREEMENT
TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of January, 1999, by
and between Texas Capital Value Funds, Inc., a Maryland corporation (hereinafter
referred to as the "Company") and Firstar Mutual Fund Services, LLC, a
corporation organized under the laws of the State of Wisconsin (hereinafter
referred to as the "FMFS").
WHEREAS, the Company is an open-end management investment company which is
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Company is authorized to create separate series, each with its own
separate investment portfolio;
WHEREAS, FMFS is a trust company and, among other things, is in the business of
administering transfer and dividend disbursing agent functions for the benefit
of its customers; and
WHEREAS, the Company desires to retain FMFS to provide transfer and dividend
disbursing agent services to the Value & Growth Portfolio (the "Fund") and each
additional series of the Company listed on Exhibit A attached hereto, as may be
amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Company and FMFS agree as follows:
1. Appointment of Transfer Agent
The Company hereby appoints FMFS as Transfer Agent of the Company on the terms
and conditions set forth in this Agreement, and FMFS hereby accepts such
appointment and agrees to perform the services and duties set forth in this
Agreement in consideration of the compensation provided for herein
2. Duties and Responsibilities of FMFS
FMFS shall perform all of the customary services of a transfer agent and
dividend disbursing agent, and as relevant, agent in connection with
accumulation, open account or similar plans (including without limitation any
periodic investment plan or periodic withdrawal program), including but not
limited to:
A. Receive orders for the purchase of shares;
B. Process purchase orders with prompt delivery, where appropriate, of
payment and supporting documentation to the Company's custodian, and issue the
appropriate number of uncertificated shares with such uncertificated shares
being held in the appropriate shareholder account;
C. Process redemption requests received in good order and, where relevant,
deliver appropriate documentation to the Company's custodian;
D. Pay monies upon receipt from the Company's custodian, where relevant, in
accordance with the instructions of redeeming shareholders;
E. Process transfers of shares in accordance with the shareholder's
instructions;
F. Process exchanges between funds and/or classes of shares of funds
both within the same family of funds and with the Portico Money Market Fund, if
applicable;
G. Prepare and transmit payments for dividends and distributions declared by
the Company with respect to the Fund;
H. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic investment,
dividend reinvestment, etc.);
I. Record the issuance of shares of the Fund and maintain, pursuant to Rule
17ad-10(e) promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), a record of the total number of shares of the Fund which
are authorized, issued and outstanding;
J. Prepare shareholder meeting lists and, if applicable, mail, receive and
tabulate proxies;
K. Mail shareholder reports and prospectuses to current shareholders;
L. Prepare and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions for all
shareholders;
M. Provide shareholder account information upon request and prepare and mail
confirmations and statements of account to shareholders for all purchases,
redemptions and other confirmable transactions as agreed upon with the Company;
N. Provide a Blue Sky System which will enable the Company to monitor the
total number of shares of the Fund sold in each state. In addition, the Company
or its agent, including FMFS, shall identify to FMFS in writing those
transactions and assets to be treated as exempt from the Blue Sky reporting for
each state. The responsibility of FMFS for the Company's Blue Sky state
registration status is solely limited to the initial compliance by the Company
and the reporting of such transactions to the Company or its agent;
3. Compensation
The Company agrees to pay FMFS for the performance of the duties listed in this
agreement as set forth on Exhibit A attached hereto; the fees and out-of-pocket
expenses include, but are not limited to the following: printing, postage,
forms, stationery, record retention (if requested by the Company), mailing,
insertion, programming (if requested by the Company), labels, shareholder lists
and proxy expenses.
These fees and reimbursable expenses may be changed from time to time subject to
mutual written agreement between the Company and FMFS.
The Company agrees to pay all fees and reimbursable expenses within ten (10)
business days following the receipt of the billing notice.
4. Representations of FMFS
FMFS represents and warrants to the Company that:
A. It is a trust company duly organized, existing and in good standing under
the laws of Wisconsin;
B. It is a registered transfer agent under the Exchange Act.
C. It is duly qualified to carry on its business in the State of Wisconsin;
D. It is empowered under applicable laws and by its charter and bylaws to
enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to authorize it to
enter and perform this Agreement;
F. It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement; and
G. It will comply with all applicable requirements of the Securities Act of
1933, as amended, and the Exchange Act, the 1940 Act, and any laws, rules, and
regulations of governmental authorities having jurisdiction.
5. Representations of the Company
The Company represents and warrants to FMFS that:
A. The Company is an open-ended non diversified investment company under the
1940 Act;
B. The Company is a corporation organized, existing, and in good standing
under the laws of Maryland;
C. The Company is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Articles of Incorporation have
been taken to authorize it to enter into and perform this Agreement;
E. The Company will comply with all applicable requirements of the Securities
Act, the Exchange Act, the 1940 Act, and any laws, rules and regulations of
governmental authorities having jurisdiction; and
F. A registration statement under the Securities Act will be made 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
Company being offered for sale.
6. Covenants of the Company and FMFS
The Company shall furnish the Agent a certified copy of the resolution of the
Board of Directors of the Fund authorizing the appointment of FMFS and the
execution of this Agreement. The Company shall provide to the Agent a copy of
its Articles of Incorporation and Bylaws, and all amendments thereto.
FMFS shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable. To the extent
required by Section 31 of the 1940 Act, and the rules thereunder, FMFS agrees
that all such records prepared or maintained by FMFS relating to the services to
be performed by FMFS hereunder are the property of the Company and will be
preserved, maintained and made available in accordance with such section and
rules and will be surrendered to the Company on and in accordance with its
request.
7. Performance of Service; Limitation of Liability
FMFS shall exercise reasonable care in the performance of its duties under this
Agreement. FMFS shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Company in connection with matters to which this
Agreement relates, including losses resulting from mechanical breakdowns or the
failure of communication or power supplies beyond FTC_s control, except a loss
resulting from the Agent's refusal or failure to comply with the terms of this
Agreement or from bad faith, negligence, or willful misconduct on its part in
the performance of its duties under this Agreement. Notwithstanding any other
provision of this Agreement, the Company shall indemnify and hold harmless FMFS
from and against any and all claims, demands, losses, expenses, and liabilities
(whether with or without basis in fact or law) of any and every nature
(including reasonable attorneys' fees) which FMFS may sustain or incur or which
may be asserted against FMFS by any person arising out of any action taken or
omitted to be taken by it in performing the services hereunder (i) in accordance
with the foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to FMFS by any duly authorized officer of the Company, such
duly authorized officer to be included in a list of authorized officers
furnished to FMFS and as amended from time to time in writing by resolution of
the Board of Directors of the Company.
FMFS shall indemnify and hold the Company harmless from and against any and all
claims, demands, losses, expenses, and liabilities (whether with or without
basis in fact or law) of any and every nature (including reasonable attorneys'
fees) which the Company may sustain or incur or which may be asserted against
the Company by any person arising out of any action taken or omitted to be taken
by FMFS as a result of FTC_s refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of communication or power
supplies beyond its control, FMFS shall take all reasonable steps to minimize
service interruptions for any period that such interruption continues beyond
FTC_s control. FMFS will make every reasonable effort to restore any lost or
damaged data and correct any errors resulting from such a breakdown at the
expense of FMFS. FMFS agrees that it shall, at all times, have reasonable
contingency plans with appropriate parties, making reasonable provision for
emergency use of electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Company shall be entitled to
inspect FTC_s premises and operating capabilities at any time during regular
business hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS reserves the right to reprocess and correct
administrative errors at its own expense.
In order that the indemnification provisions contained in this section
shall apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the indemnitee will use all reasonable care to
notify the indemnitor promptly concerning any situation which presents or
appears likely to present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee against any claim
which may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or other expenses for which it
shall seek indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the indemnitor
will be asked to indemnify the indemnitee except with the indemnitor_s prior
written consent.
8. Proprietary and Confidential Information
FMFS agrees on behalf of itself and its directors, officers, and employees to
treat confidentially and as proprietary information of the Company all records
and other information relative to the Company and prior, present, or potential
shareholders (and clients of said shareholders) and not to use such records and
information for any purpose other than the performance of its responsibilities
and duties hereunder, except after prior notification to and approval in writing
by the Company, which approval shall not be unreasonably withheld and may not be
withheld where FMFS may be exposed to civil or criminal contempt proceedings for
failure to comply after being requested to divulge such information by duly
constituted authorities, or when so requested by the Company.
9. Term of Agreement
This Agreement shall become effective as of the date hereof and, unless sooner
terminated as provided herein, shall continue for a period of two years, and
thereafter shall continue automatically in effect for successive annual periods.
This Agreement may be terminated by either party upon giving ninety (90) days
prior written notice to the other party or such shorter period as is mutually
agreed upon by the parties. However, this Agreement may be replaced or modified
by a subsequent agreement between the parties.
10. Notices
Notices of any kind to be given by either party to the other party shall be in
writing and shall be duly given if mailed or delivered as follows: Notice to
FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
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and notice to the Company shall be sent to:
Texas Capital Value Funds
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11. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of FTC's
duties or responsibilities hereunder is designated by the Company by written
notice to FMFS, FMFS will promptly, upon such termination and at the expense of
the Company, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by FMFS under this
Agreement in a form reasonably acceptable to the Company (if such form differs
from the form in which FMFS has maintained, the Company shall pay any expenses
associated with transferring the data to such form), and will cooperate in the
transfer of such duties and responsibilities, including provision for assistance
from FTC's personnel in the establishment of books, records, and other data by
such successor.
12. Governing Law
This Agreement shall be construed and the provisions thereof interpreted under
and in accordance with the laws of the State of Wisconsin. However, nothing
herein shall be construed in a manner inconsistent with the 1940 Act or any rule
or regulation promulgated by the Securities and Exchange Commission thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer or one or more counterparts as of the day
and year first written above.
TEXAS CAPITAL VALUE funds, Inc. FIRSTAR MUTUAL FUND SERVICES,
LLC
By:______________________________ By: ________________________________
Attest: __________________________
Attest:______________________________
Transfer Agent and Shareholder Servicing
Annual Fee Schedule
Exhibit A
Separate Series of Texas Capital Value Funds, Inc.
Name of Series Date Added
Value & Growth Portfolio January 1, 1999
Mid-Cap Focus Portfolio _
Annual Fee
$16.00 per shareholder account
Minimum annual fees of $25,500 first fund
Minimum annual fees of $10,000 for each additional fund or class
Plus Out-of-Pocket Expenses, including but not limited to:
Telephone - toll-free lines Proxies
Postage Retention of records (with prior approval)
Programming (with prior approval) Microfilm/fiche of records
Stationery/envelopes Special reports
Mailing ACH fees
Insurance NSCC charges
ACH Shareholder Services
$125.00 per month per fund group
$ .50 per account setup and/or change
$ .50 per ACH item
$3.50 per correction, reversal, return item
Qualified Plan Fees (Billed to Investors)
Annual maintenance fee per account $12.50 / acct. (Cap at $25.00 per SSN)
Transfer to successor trustee $15.00 / trans.
Distribution to participant $15.00 / trans. (Exclusive of SWP)
Refund of excess contribution $15.00 / trans.
Additional Shareholder Fees (Billed to Investors)
Any outgoing wire transfer $12.00 / wire
Telephone Exchange $ 5.00 / exchange transaction
Return check fee $20.00 / item
Stop payment $20.00 / stop
(Liquidation, dividend, draft check)
Research fee $ 5.00 / item
(For requested items of the second calendar year [or previous] to the
request)(Cap at $25.00)
File Transfer $160/month
$.01 /record
NSCC and DAZL
Out-of-Pocket Charges
NSCC Interfaces
Setup
Fund/SERV, Networking ACATS, Exchanges $5,000 setup (one time)
Commissions $5,000 setup (one time)
Processing
Fund/SERV $ 50 / month
Networking $ 250 / month
CPU Access $ 40 / month
Fund/SERV Transactions $ .35 / trade
Networking - per item $ .025/monthly dividend fund
Networking - per item $ .015/non-mo. dividend fund
First Data $ .10 / next-day Fund/SERV trade
First Data $ .15 / same-day Fund/SERV trade
NSCC Implementation
8 to 10 weeks lead time (target availability 12/1/98)
DAZL (Direct Access Zip Link - Electronic mail interface to financial advisor
network)
Setup $5,000 / fund group-Waived for FIRSTAR
Monthly Usage $1,000 / month
Transmission $ .015 / price record
$ .025 / other record
Enhancement $ 125 / hour
Fees and out-of-pocket expenses are billed to the fund monthly
