Exhibit 9(ii) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of November 5, 1996 by and between FundManager
Trust, (the `Company''), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the `Bank'').
WITNESSETH:
WHEREAS, the Company desires to appoint the Bank as its transfer
agent, dividend disbursing agent and agent in connection with certain other
activities, and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided
in Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the
`1934 Act'');
WHEREAS, the Company is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets:
WHEREAS, the Company offers shares in five series, the FundManager
Aggressive Growth Fund, the FundManager Growth Fund, the FundManager Growth
& Income Fund, the FundManager Bond Fund and the FundManager Managed Total
Return Fund (such series, together with all other series subsequently
established by the Company and made subject to this Agreement in accordance
with Article 17, being herein referred to as the `Fund'');
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Company and the Bank agree as follows:
ARTICLE 1. Terms of Appointment: Duties of the Bank
1.01 Subject to the terms and conditions set forth in this Agreement,
the Company on behalf of the Funds, hereby employs and appoints the Bank to
act as, and the Bank agrees to act as, transfer agent for each of the Fund'
authorized and issued shares of beneficial interest (`Shares''), dividend
disbursing agent and agent in connection with any accumulation, open-
account or similar plans provided to the shareholders of the Company
(``hareholder'') and set out in the currently effective prospectus and
statement of additional information, as each may be amended from time to
time, (the ``rospectus'') of the Company, including without limitation any
periodic investment plan or periodic withdrawal program.
1.02 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to time by
agreement between the Company and the Bank, the Bank shall:
(i) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefor to the
custodian of the Company appointed by the Board of Trustees of the Company
(the ``ustodian'');
(ii) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(iii) Receive for acceptance, redemption requests and redemption
directions and deliver the appropriate documentation therefor to the
Custodian;
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(iv) At the appropriate time as and when it receives monies paid to it
by the Custodian with respect to any redemptions, pay over or cause to be
paid over in the appropriate manner such monies as instructed by the
redeeming Shareholders;
(v) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(vi) Prepare and transmit payments for dividends and distributions
declared by the Company on behalf of a Fund; and
(vii) Create and maintain all necessary records including those
specified in Article 10 hereof, in accordance with all applicable laws,
rules and regulations, including but not limited to records required by
Section 31(a) of the Investment Company Act of 1940, as amended (the `1940
Act'', and those records pertaining to the various functions performed by
it hereunder. All records shall be available for inspection and use by the
Company. Where applicable, such records shall be maintained by the Bank
for the periods and in the places required by Rule 31 a-2 under the 1940
Act.
(viii) Make available during regular business hours all records and
other data created and maintained pursuant to this Agreement for reasonable
audit and inspection by the Company, or any person retained by the Company.
Upon reasonable notice by the Company, the Bank shall make available during
regular business hours its facilities and premises employed in connection
with its performance of this Agreement for reasonable visitation by the
Company, or any person retained by the Company.
(ix) Record the issuance of Shares of the Company and maintain,
pursuant to Rule 17Ad-IO(e) under the 1934 Act, a record of the total
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number of Shares of the Company which are authorized, based upon data
provided to it by the Company, and issued and outstanding. The Bank shall
also provide the Company on a regular basis with the total number of Shares
which are authorized and issued and outstanding and shall have no
obligation, when recording the issuance of Shares, to monitor the issuance
of such Shares or to take cognizance of any laws relating to the issue or
sale of such Shares, which functions shall be the sole responsibility of
the Company.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a) or in any Schedule hereto, the Bank shall (I) perform
all of the customary services of a transfer agent, dividend disbursing
agent and, as relevant, agent in connection with accumulation, open-account
or similar plans (including without limitation any periodic investment plan
or periodic withdrawal program); including but not limited to; maintaining
all Shareholder accounts, preparing Shareholder meeting lists, mailing
proxies, receiving and tabulating proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding taxes on all accounts,
including nonresident alien accounts, preparing and filing U.S. Treasury
Department Forms 1099 and other appropriate forms required with respect to
dividends and distributions by federal authorities for all Shareholders,
preparing and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
comfirmable transactions in Shareholder accounts, responding to Shareholder
telephone calls and Shareholder correspondence, preparing and mailing
activity statements for Shareholders, and providing Shareholder account
information; and (ii) provide a system which will enable the Company to
monitor the total number of shares sold in each State. The Company shall
(i) identify to the Bank in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State and (ii) verify
the establishment of transactions for each State on the system prior to
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activation and thereafter monitor the daily activity for each State. The
responsibility of the Bank for a Fund's blue sky state registration status
is solely limited to the initial establishment of transactions subject to
blue sky compliance by such Fund and the reporting of such transactions to
the Fund as provided above.
(c) Additionally, the Bank shall utilize a system to identify all
share transactions which involve purchase and redemption orders that are
processed at a time other than the time of the computation of net asset
value per share next computed after receipt of such orders, and shall
compute the net effect upon the Fund of such transactions so identified on
a daily and cumulative basis.
ARTICLE 2. Sale of Company Shares
2.01 Whenever the Company shall sell or cause to be sold any Shares of
a Fund, the Company shall deliver or cause to be delivered to the Bank a
document duly specifying: (i) the name of the Fund whose Shares were sold;
(ii) the number of Shares sold, trade date, and price; (iii) the amount of
money to be delivered to the Custodian for the sale of such Shares and
specifically allocated to such Fund; and (iv) in the case of a new account,
a new account application or sufficient information to establish an
account.
2.02 The Bank will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Funds and drawn
or endorsed to the Bank as agent for, or identified as being for the
account of one of the Funds, promptly deposit such check or other payment
to the appropriate account postings necessary to reflect the investment.
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The Bank will notify the Company, or its designee, and the Custodian of all
purchases and related account adjustments.
2.03 Under procedures as established by mutual agreement between the
Company and the Bank, the Bank shall issue to the purchaser or his
authorized agent such Shares, computed to the nearest three decimal points,
as he is entitled to receive, based on the appropriate net asset value of
the Fund Shares, determined in accordance with the prospectus and
applicable Federal law or regulation. In issuing Shares to a purchaser or
his authorized agent, the Bank shall be entitled to rely upon the latest
directions, if any, previously received by the Bank from the purchaser or
his authorized agent concerning the delivery of such Shares.
2.04 The Bank shall not be required to issue any Shares of the Company
where it has received a written instruction from the Company or written
notification from any appropriate Federal or State authority that the sale
of the Shares of the Fund in question has been suspended or discontinued,
and the Bank shall be entitled to rely upon such written instructions or
written notification.
2.05 Upon the issuance of any Shares of any Fund in accordance with
foregoing provisions of this Section, the Bank shall not be responsible for
the payment of any original issue or other taxes, if any, required to be
paid by the Company in connection with such issuance.
2.06 The Bank may establish such additional rules and regulations
governing the transfer or registration of Shares as it may deem advisable
and consistent with such rules and regulations generally adopted by
transfer agents, or with the written consent of the Company, any other
rules and regulations.
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ARTICLE 3. Returned Checks
3.01 In the event that any check or other order for the transfer of
money is returned unpaid for any reason, the Bank will take such steps as
the Bank may, in its discretion, deem appropriate to protect the Company
from financial loss or as the Company or its designee may instruct.
Provided that the standard procedures, as agreed upon from time to time,
between the Company and the Bank, regarding purchases and redemptions of
Shares, are adhered to by the Bank, the Bank shall not be liable for any
loss suffered by a Fund as a result of returned or unpaid purchase or
redemption transactions. Legal or other expenses incurred to collect
amounts owed to a Fund as a consequence of returned or unpaid purchase or
redemption transactions shall be an expense of that Fund.
ARTICLE 4. Redemptions
4.01 Shares of any Fund may be redeemed in accordance with the
procedures set forth in the Prospectus of the Company and the Bank will
duly process all redemption requests.
ARTICLE 5. Transfers and Exchanges
5.01 The Bank is authorized to review and process transfers of Shares
of each Fund, exchanges between Funds on the records of the Funds
maintained by the Bank, and exchanges between the Company and any other
entity as may be permitted by the Prospectus of the Company. The Bank
will, upon an order to transfer shares by or on behalf of the registered
holder thereof in proper form, credit the same to the transferee on its
books. If Shares are to be exchanged for Shares of another Fund, the Bank
will process such exchange in the same manner as a redemption and sale of
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Shares, except that it may in its discretion waive requirements for
information and documentation.
ARTICLE 6. Right to Seek Assurances
6.01 The Bank 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 Bank, in its
judgment, deems improper or unauthorized, or until it is satisfied that
there is no basis for any claims adverse to such transfer or redemption.
The Bank may, in effecting transfers, rely upon the 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,
which in the opinion of legal counsel for the Company or of its own legal
counsel protect it in not requiring certain documents in connection with
the transfer or redemption of Shares of any Fund, and the Company shall
indemnify the Bank for any act done or omitted by it in reliance upon such
laws or opinions of counsel of the Company or of its own counsel.
ARTICLE 7. Distributions
7.01 The Company will promptly notify the Bank of the declaration of
any dividend or distribution. The Company shall furnish to the Bank a
resolution of the Board of Trustees of the Company certified by the
Secretary (a `Certificate''): (i) authorizing the declaration of dividends
on a specified periodic basis and authorizing the bank to rely on oral
instructions or a Certificate specifying the date of the declaration of
such dividend or distribution, the date of payment thereof, the record date
as of which Shareholders entitled to payment shall be determined and the
amount payable per share to Shareholders of record as of the date and the
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total amount payable to the Bank on the payment date; or (ii) setting forth
the date of the declaration of any dividend or distribution by a Fund, the
date of payment thereof, the record date as of which Shareholders entitled
to payment shall be determined, and the amount payable per share to the
Shareholders of record as of that date and the total amount payable to the
Bank on the payment date.
7.02 The Bank, on behalf of the Company, shall instruct the Custodian
to place in a dividend disbursing account funds equal to the cash amount of
any dividend or distribution to be paid out. The Bank will calculate the
dividend or distribution according to the certificate, prepare and mail
checks to (at the address as it appears on the records of the Bank), or
(where appropriate) credit such dividend or distribution to the account of,
Fund Shareholders, and maintain and safeguard all underlying records.
7.03 The Bank will replace lost checks at its discretion and in
conformity with regular business practices.
7.04 The Bank will maintain all records necessary to reflect the
crediting of dividends which are reinvested in Shares of the Company,
including without limitation daily dividends.
7.05 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Trustees of the Company.
7.06 If the Bank shall not receive from the Custodian sufficient cash
to make payment to all Shareholders of the Company as of the record date,
the Bank shall, upon notifying the Company, withhold payment to all
Shareholders of record as of the record date until such sufficient cash is
provided to the Bank.
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ARTICLE 8. Other Duties
8.01 In addition to the duties expressly provided for herein, the Bank
shall perform such other duties and functions and shall be paid such
amounts therefor as may from time to time be agreed to in writing.
ARTICLE 9. Taxes
9.01 It is understood that the Bank shall file such appropriate
information returns concerning the payment of dividends and capital gain
distributions and tax withholding with the proper Federal, State and local
authorities as are required by law to be filed by the Company and shall
withhold such sums as are required to be withheld by applicable law.
ARTICLE 10. Books and Records
10.01 The Bank shall maintain confidential records showing for each
Shareholder's account the following: (i) names, addresses and tax
identification numbers; (ii) numbers of Shares held; (iii) historical
information (as available from prior transfer agents) regarding the account
of each Shareholder, including dividends paid and date and price of all
transactions on a Shareholder's account; (iv) any stop or restraining order
placed against a Shareholder's account; (v) information with respect to
withholdings; (vi) any capital gain or dividend reinvestment order, plan
application, dividend address and correspondence relating to the current
maintenance of a Shareholder's account; (vii) any information required in
order for the Bank to perform the calculations contemplated or required by
this Agreement; and (ix) such other information and data as may be required
by applicable law.
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10.02 Any records required to be maintained by Rule 31a-1 under the
1940 Act will be preserved for the periods prescribed in Rule 31a-2 under
the 1940 Act. Such records may be inspected by the Company at reasonable
times. The Bank, may, at its option at any time, and shall forthwith upon
the Company's demand, turn over to the Company and cease to retain in the
Bank's files, records and documents created and maintained by the Bank in
performance of its service or for its protection. At the end of the six-
year retention period, such periods and documents will either be turned
over to the Company, or destroyed in accordance with the Company's
authorization.
10.03 Procedures applicable to the services to be performed hereunder
may be established from time to time by agreement between the Fund and the
Bank. The Bank shall have the right to utilize any shareholder accounting
and recordkeeping system which, in its opinion, qualifies to perform any
services to be performed hereunder and is acceptable to the Company
provided that such acceptance shall not be unreasonably withheld. The Bank
shall keep records relating to the services performed hereunder, in the
form and manner as it may deem advisable.
ARTICLE 11. Fees and Expenses
11.01 For performance by the Bank pursuant to this Agreement, the Fund
agree to pay the Bank an annual maintenance fee for each Shareholder
account as set out in the initial fee schedule attached hereto. Such fees
and out-of-pocket expenses and advances identified under Section 11.02
below may be changed from time to time subject to mutual written agreement
between the Fund and the Bank.
11.02 In addition to the fee paid under Section 11.01 above, the Fund
agree to reimburse the Bank for out-of-pocket expenses or advances incurred
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by the Bank for the items set out in the fee schedule attached hereto. In
addition, any other expenses incurred by the Bank at the request or with
the consent of the Fund including, without limitation, any equipment or
supplies specifically ordered by the Company or required to be purchased by
the Company, will be reimbursed by the Fund.
11.03 The Fund agree to pay all fees and reimbursable expenses within
thirty days following the mailing of the respective billing notice.
Postage for mailing of dividends, proxies, Fund reports and other mailings
to all shareholder accounts shall be advanced to the Bank by the Fund at
least seven (7) days prior to the mailing date of such material.
ARTICLE 12. Representations and Warranties of the Bank
The Bank represents and warrants to the Company that:
12.01 It is a trust company duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts.
12.02 It is empowered under applicable laws and by its by-laws to
enter into and perform this Agreement.
12.03 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
12.04 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
ARTICLE 13. Representations and Warranties of the Company
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The Company represents and warrants to the Bank that:
13.01 It is a business trust duly organized and existing and in good
standing under the laws of The Commonwealth of Massachusetts as set forth
in the preamble hereto.
13.02 It is empowered under applicable laws and by its Agreement and
Declaration of Trust dated August 1, 1994 (the `Declaration'') and by-laws
to enter into and perform this Agreement.
13.03 All proceedings required by said Declaration and by-laws have
been taken to authorize it to enter into and perform this Agreement.
13.04 It is an open-end investment company registered under the ▇▇▇▇
▇▇▇.
13.05 A registration statement on Form N-1A (including a prospectus
and statement of additional information) under the Securities Act of 1933
and the 1940 Act is currently effective and will remain effective, and
appropriate state securities law filings have been made and will continue
to be made, with respect to all Shares of the Company being offered for
sale.
13.06 When Shares are hereafter issued in accordance with the terms of
the Prospectus, such Shares shall be validly issued, fully paid and
nonassessable by the Fund.
ARTICLE 14. Indemnification
14.01 Except as set forth in subparagraph (f) hereof, the Bank shall
not be responsible for, and the Company shall indemnify and hold the Bank
13
harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or
attributable to:
(a) All actions taken or omitted to be taken by the Bank or its agent
or subcontractors in good faith in reliance on or use by the Bank or its
agents or subcontractors of information, records and documents which (i)
are received by the Bank or its agents or subcontractors and furnished to
it by or on behalf of the Fund, and (ii) have been prepared and/or
maintained by the Fund or any other person or firm on behalf of the Fund.
(b) Any action taken or omitted to be taken by the Bank in connection
with its appointment in good faith in reliance upon any law, act,
regulation or interpretation of the same even though the same may
thereafter have been altered, changed, amended or repealed.
(c) The Fund' refusal or failure to comply with the terms of this
Agreement, or which arise out of the Funds' lack of good faith, negligence
or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund hereunder.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests, whether written or oral, of
the Fund.
(e) The offer or sale of Shares by the Company in violation of any
requirement under the federal securities laws or regulations of any State
that such Shares be registered in such State or in violation of any stop
order or other determination or ruling by any federal agency or any State
with respect to the offer or sale of such Shares in such state.
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(f) In addition to any other limitation provided herein, or by law,
indemnification under this Agreement shall not apply to actions or
omissions of the Bank or its trustees, officers, employees, agents or
subcontractors in cases of its own gross negligence, willful misconduct,
bad faith, reckless disregard of its duties or their own duties hereunder,
knowing violation of law or fraud.
14.02 The Bank shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributed to any action
or failure or omission to act by the Bank as a result of the Bank's lack of
good faith, negligence, willful misconduct, knowing violation of law or
fraud.
14.03 At any time the Bank may apply to any officer of the Company for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by the Bank under
this Agreement, and the Bank and its agents or subcontractors shall not be
liable and shall be indemnified by the Company for any action taken or
omitted by it in reliance upon such instructions or upon the opinion of
such counsel except for a knowing violation of law. The Bank, its agents
and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Fund, reasonably
believed to be genuine and to have been signed by the proper person or
persons, or subcontractors by machine readable input, telex, CRT data entry
or other similar means authorized by the Fund, and shall not be held to be
have notice of any change of authority of any person, until receipt of
written notice thereof from the Fund.
14.04 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes,
15
interruptions of electrical power or other utilities, equipment or
transmission failure or damage reasonably beyond its control, or other
causes reasonably beyond its control, such party shall not be liable to the
other for any damages resulting from such failure to perform or otherwise
from such causes.
14.05 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or
for any act or failure to act hereunder as contemplated by this Agreement.
14.06 In order that the indemnification provision contained in this
Article 14 shall apply, however, it is understood that if any case the Fund
may be asked to indemnify or save the Bank harmless, the Fund shall be
fully and promptly advised of all pertinent facts concerning the situation
in question, and it is further understood that the Bank will use all
reasonable care to identify and notify the Fund promptly concerning any
situation which presents or appears likely to present the probability of
such claim for indemnification. The Fund shall have the option to defend
the Bank against any claim which may be the subject of this
indemnification, and in the event that the Fund so elects it will so notify
the Bank and thereupon the Fund shall take over the complete defense of the
claim, and the Bank shall in such situations incur no further legal or
other expenses in connection with such claim, provided however, if the
defendants in any such action include both the Fund and the Bank, and the
Bank shall have reasonably concluded that there may be legal defenses
available to it which are different from or additional to those available
to the Fund, the Bank shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of
such action on behalf of the Bank with such cost to be borne by the party
hereto ultimately liable with respect to such claim. The Bank shall in no
case confess any claim or make any compromise in any case in which the Fund
16
will be asked to indemnify the Bank except with prior written consent of
the Fund, which consent shall not be unreasonably withheld. The Fund shall
not settle any claim without the Bank's prior written consent, provided
however that the Bank shall not unreasonably withhold its consent.
ARTICLE 15. Covenants of the Company and the Bank
15.01 The Company shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Trustees of the Company
authorizing the appointment of the Bank and the execution and delivery of
this Agreement.
(b) A copy of the Declaration and by-laws of the Company and all
amendments thereto.
(c) Copies of each vote of the Trustees designating authorized persons
to give instructions to the Bank, and a Certificate providing specimen
signatures for such authorized persons.
(d) Certificates as to any change in any officer or Trustee of the
Company.
(e) All account application forms and other documents relating to
shareholder accounts or relating to any plan, program or service offered by
the Company.
(f) A list of all Shareholders of the Fund with the name, address and
tax identification number of each Shareholder, and the number of Shares of
the Fund held by each, certificate numbers and denominations (if any
certificates have been issued), lists of any account against which stops
17
have been placed, together with the reasons for said stops, and the number
of Shares redeemed by the Fund.
(g) An opinion of counsel for the Company with respect to the validity
of the Shares and the status of such Shares under the Securities Act of
1933 which may be copies of a previously issued opinion.
(h) Copies of the Fund registration statement on Form N-1A as amended
and declared effective by the Securities and Exchange Commission and all
post-effective amendments thereto.
(i) Such other certificates, documents or opinions as may mutually be
deemed necessary or appropriate for the Bank in the proper performance of
its duties.
15.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company for safekeeping of check
forms and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of such forms and devices.
15.03 The Bank 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,
the Bank agrees that all such records prepared or maintained by the Bank
relating to the services to be performed by the Bank hereunder are the
confidential 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.
15.04 The Bank and the Company agree that all books, records,
information and data pertaining to the business of the other party which
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are exchanged or received pursuant to the negotiation or the carrying out
of this Agreement shall remain confidential, and shall not be voluntarily
disclosed to any other person, except as may be required by law.
15.05 In case of any requests or demands for the inspection of the
Shareholder records of the Company, the Bank will endeavor to notify the
Company and to secure instructions from an authorized officer of the
Company as to such instruction. The Bank reserves the right, however, to
exhibit the Shareholder records to any person whenever it is advised by its
counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
ARTICLE 16. Term of Agreement
16.01 This Agreement shall become effective on the date hereof (the
`Effective Date'') and shall continue in effect for twelve months from the
Effective Date (the ``nitial Term'') and from year to year thereafter with
respect to each Fund, provided that subsequent to the Initial Term, this
Agreement may be terminated by either party at any time without payment of
any penalty upon ninety (90) days written notice to the other. In the
event such notice is given by the Company, it shall be accompanied by a
resolution of the Board of Trustees, certified by the Secretary, electing
to terminate this Agreement and designating a successor transfer agent.
16.02 Should the Company exercise its right to terminate, all out-of-
pocket expenses associated with the movement of records and material will
be borne by the Company. Additionally, the Bank reserves the right to
charge for any other reasonable expenses associated with such termination.
ARTICLE 17. Additional Funds
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17.01 In the event that the Company establishes one or more series of
Shares in addition to the initial series with respect to which it desires
to have the Bank render services as transfer agent under the terms hereof,
it shall so notify the Bank in writing, and if the Bank agrees in writing
to provide such services, such series of Shares shall become a Fund
hereunder.
ARTICLE 18. Assignment
18.01 Except as provided in Section 18.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
18.02 This Agreement shall inure to the benefit of and be binding upon
the parties and the irrespective permitted successors and assigns.
18.03 The Bank, may subcontract for the performance of any of the
services to be provided hereunder to third parties, including any affiliate
of the Bank, provided that the Bank shall remain liable hereunder for any
act or omissions of any subcontractor as if performed by the Bank. The
Bank will obtain the consent of the Company for the use of subcontractors
provided that the Company will not unreasonably withhold its consent.
ARTICLE 19. Amendment
19.01 This Agreement may be amended or modified by a written agreement
executed by both parties.
ARTICLE 20. Massachusetts Law to Apply
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20.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
ARTICLE 21. Merger of Agreement and Severability
21.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the
subject hereof whether oral or written.
21.02 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement
shall remain in full force and effect.
21.03 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.
ARTICLE 22. Notices
22.01 Any notice or other instrument in writing authorized or required
by this Agreement to be given to either party hereto will be sufficiently
given if addressed to such party and mailed or delivered to it at its
office at the address set forth below:
For the Fund: FundManager Trust
c/o Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
MD Hisrch Division
Freedom Capital Management
21
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
For the Bank: Investors Bank & Trust Company
▇.▇.▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
ARTICLE 23. Limitation of Liability
23.01 The term The FundManager means and refers to the Trustees from
time to time serving under the Declaration, as the same may subsequently
thereto have been, or subsequently hereto be, amended. It is expressly
agreed that the obligations of the Fund hereunder shall not be binding upon
any of the Trustees, shareholders, nominees, officers, agents or employees
of the Fund, personally, but shall bind only the property of the Fund as
provided in the Declaration. The execution and delivery of this agreement
have been authorized by the Trustees of the fund and this Agreement has
been signed by an authorized officer of the Fund, acting as such, and
neither such authorization by such Trustees nor such execution and delivery
by such officer shall be deemed to have been made by any of them, but shall
bind only the property of the Fund as provided in the Declaration.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and
through their duly authorized officers, as of the day and the year first
above written.
FundManager Trust
22
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ATTEST:
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Investors Bank & Trust Company
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Managing Director
ATTEST:
Signature unidentifiable
DATE:11/5/95