AMENDED AND RESTATED
TRANSFER AGENT SERVICING AGREEMENT
(For Omnibus Accounts only)
THIS amended and restated agreement is made and entered into as of this
16th day of January, 2002, by and between Zodiac Trust, a business trust
organized under the laws of the State of Delaware (hereinafter referred to as
the "Trust") and U.S. Bancorp Fund Services, LLC, a limited liability company
organized under the laws of the State of Wisconsin (hereinafter referred to as
the "USBUSBFS").
WHEREAS, the Trust entered into a Transfer Agent Servicing Agreement with
USBFS (formerly, Firstar Mutual Fund Services, LLC) on August 1, 2001 and wishes
to amend and restate the agreement;
WHEREAS, the Trust is an open-end management investment company which is
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to create separate series, each with its
own separate investment portfolio;
WHEREAS, USBFS is a limited liability 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 Trust desires to retain USBFS to provide transfer and dividend
disbursing agent services to each series of the Trust listed on Exhibit A
attached hereto, (each hereinafter referred to as a "Fund") as may be amended
from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust and USBFS agree as follows:
1. Appointment of Transfer Agent
The Trust hereby appoints USBFS as Transfer Agent of the Trust
on the terms and conditions set forth in this Agreement, and USBFS
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 USBFS
USBFS 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 Trust's custodian, and
issue the appropriate number of uncertificated shares with such
uncertificated shares being held in the appropriate shareholder
account;
C. Arrange for issuance of shares obtained through transfers of funds
from shareholders' accounts at financial institutions and arrange for
the exchange of shares for shares of other eligible investment
companies, when permitted by Prospectus.
D. Process redemption requests received in good order and, where
relevant, deliver appropriate documentation to the Trust's custodian;
E. Pay monies upon receipt from the Trust's custodian, where relevant, in
accordance with the instructions of redeeming shareholders;
F. Process transfers of shares in accordance with the shareholder's
instructions;
G. Process exchanges between funds and/or classes of shares of funds both
within the same family of funds and with a First American Money Market
Fund, if applicable;
H. Prepare and transmit payments for dividends and distributions declared
by the Trust with respect to the Fund, after deducting any amount
required to be withheld by any applicable laws, rules and regulations
and in accordance with shareholder instructions;
I. Make changes to shareholder records, including, but not limited to,
address changes in plans (i.e., systematic withdrawal, automatic
investment, dividend reinvestment, etc.);
J. 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;
K. Prepare shareholder meeting lists and, if applicable, mail, receive
and tabulate proxies;
L. Mail shareholder reports and prospectuses to current shareholders;
M. Prepare and file U.S. Treasury Department Forms 1099 and other
appropriate information returns required with respect to dividends and
distributions for all shareholders;
N. 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 Trust;
O. Mail requests for shareholders' certifications under penalties of
perjury and pay on a timely basis to the appropriate Federal
authorities any taxes to be withheld on dividends and distributions
paid by the Trust, all as required by applicable Federal tax laws and
regulations;
P. Provide a Blue Sky System that will enable the Trust to monitor the
total number of shares of the Fund sold in each state. In addition,
the Trust or its agent, including USBFS, shall identify to USBFS in
writing those transactions and assets to be treated as exempt from the
Blue Sky reporting for each state. The responsibility of USBFS for the
Trust's Blue Sky state registration status is solely limited to the
initial compliance by the Trust and the reporting of such transactions
to the Trust or its agent;
Q. Answer correspondence from shareholders, securities brokers and others
relating to USBFS's duties hereunder and such other correspondence as
may from time to time be mutually agreed upon between USBFS and the
Trust.
R. Reimburse the Fund each month for all material losses resulting from
"as of" processing errors for which USBFS is responsible in accordance
with the "as of" processing guidelines set forth in the attached
Exhibit B.
3. Compensation
The Trust agrees to pay USBFS 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 Trust), mailing, insertion, programming
(if requested by the Trust), 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 Trust and
USBFS.
The Trust agrees to pay all fees and reimbursable expenses
within ten (10) business days following the receipt of the billing
notice.
Notwithstanding anything to the contrary, amounts owed by the
Trust to USBFS shall only be paid out of assets and property of the
particular Fund involved.
4. Representations of USBFS
USBFS represents and warrants to the Trust that:
A. It is a limited liability corporation 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, the Exchange Act, the 1940 Act, and any laws,
rules, and regulations of governmental authorities having
jurisdiction.
5. Representations of the Trust
The Trust represents and warrants to USBFS that:
A. The Trust is an open-end diversified investment company under the 1940
Act;
B. The Trust is a business trust organized, existing, and in good
standing under the laws of Delaware;
C. The Trust is empowered under applicable laws and by its Declaration of
Trust and Bylaws to enter into and perform this Agreement;
D. All necessary proceedings required by the Declaration of Trust have
been taken to authorize it to enter into and perform this Agreement;
E. The Trust 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 has been declared
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 Trust being offered for sale.
6. Performance of Service; Limitation of Liability
A. USBFS shall exercise reasonable care in the performance of its duties
under this Agreement. USBFS shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the Trust in
connection with matters to which this Agreement relates, including
losses resulting from mechanical breakdowns or the failure of
communication or power supplies beyond USBFS's control, except a loss
arising out of or relating to the USBFS' 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,
if USBFS has exercised reasonable care in the performance of its
duties under this Agreement, the Trust shall indemnify and hold
harmless USBFS 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 USBFS may sustain or incur or which may be asserted against
USBFS by any person arising out of any action taken or omitted to be
taken by it in performing the services hereunder, except for any and
all claims, demands, losses, expenses, and liabilities arising out of
or relating to USBFS's refusal or failure to comply with the terms of
this Agreement or from bad faith, negligence or from willful
misconduct on its part in performance of its duties under this
Agreement, (i) in accordance with the foregoing standards, or (ii) in
reliance upon any written or oral instruction provided to USBFS by any
duly authorized officer of the Trust, such duly authorized officer to
be included in a list of authorized officers furnished to USBFS and as
amended from time to time in writing by resolution of the Board of
Trustees of the Trust.
USBFS shall indemnify and hold the Trust 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 Trust may sustain or
incur or which may be asserted against the Trust by any person arising
out of any action taken or omitted to be taken by USBFS as a result of
USBFS'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, USBFS shall take all reasonable
steps to minimize service interruptions for any period that such
interruption continues beyond USBFS's control. USBFS 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 USBFS. USBFS
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 Trust shall be entitled
to inspect USBFS's premises and operating capabilities at any time
during regular business hours of USBFS, upon reasonable notice to
USBFS.
Regardless of the above, USBFS reserves the right to reprocess and
correct administrative errors at its own expense.
B. 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.
C. USBFS is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Trust's Declaration of Trust
and agrees that obligations assumed by the Trust pursuant to this
Agreement shall be limited in all cases to the Trust and its assets,
and if the liability relates to one or more series, the obligations
hereunder shall be limited to the respective assets of such series.
USBFS further agrees that it shall not seek satisfaction of any such
obligation from the shareholder or any individual shareholder of a
series of the Trust, nor from the Trustees or any individual Trustee
of the Trust.
7. Proprietary and Confidential Information
USBFS agrees on behalf of itself and its directors, officers, and employees
to treat confidentially and as proprietary information of the Trust all
records and other information relative to the Trust 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 Trust, which approval shall not be
unreasonably withheld and may not be withheld where USBFS 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 Trust.
Further, USBFS will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the ▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the "Act") as may be
modified from time to time. Notwithstanding the foregoing, USBFS will not
share any nonpublic personal information concerning any of the Trust's
shareholders with any third party unless specifically directed by the Trust
or allowed under one of the exceptions noted under the Act.
8. Term of Agreement
This Agreement shall become effective as of the date hereof and will
continue in effect through August 1, 2004. Subsequent to the initial term,
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 amended
by mutual written consent of the parties.
9. Records
USBFS shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may deem
advisable and is agreeable to the Trust but not inconsistent with the rules
and regulations of appropriate government authorities, in particular,
Section 31 of the 1940 Act, and the rules thereunder. USBFS agrees that all
such records prepared or maintained by USBFS relating to the services to be
performed by USBFS hereunder are the property of the Trust and will be
preserved, maintained, and made available in accordance with such section
and rules of the Investment Company Act and will be promptly surrendered to
the Trust on and in accordance with its request.
10. 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.
11. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
USBFS's duties or responsibilities hereunder is designated by the Trust by
written notice to USBFS, USBFS will promptly, upon such termination and at
the expense of the Trust, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by USBFS
under this Agreement in a form reasonably acceptable to the Trust (if such
form differs from the form in which USBFS has maintained, the Trust 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 USBFS's personnel in the
establishment of books, records, and other data by such successor.
12. 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 USBFS shall be sent to:
U.S. Bancorp Fund Services, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and notice to the Trust shall be sent to:
Zodiac Trust
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
ZODIAC TRUST U.S. BANCORP FUND SERVICES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________ By: ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: President
___________________________ _____________________________
ADDENDUM TO TRANSFER AGENT SERVICING AGREEMENT
THIS ADDENDUM, dated as of July 24, 2002, modifies the Transfer Agent Servicing
Agreement by and between U.S. Bancorp Fund Services, LLC (the "Transfer Agent")
and Zodiac Trust (the "Trust"), such Agreement being hereinafter referred to as
the "Agreement."
WHEREAS, Section 352 of the USA Patriot Act (the "Act") and the Interim Final
Rule (Section 103.130) adopted by the Department of the Treasury's Financial
Crimes Enforcement Network (the "Rule") require the Trust to develop and
implement an anti-money laundering program and monitor the operation of the
program and assess the effectiveness; and
WHEREAS, Section 326 of the Act, as proposed, requires the Trust to develop and
implement a Customer Identification Program ("CIP") as part of the Trust's
overall anti-money laundering program to ensure, among other things, that the
Trust obtains certain information from each of its customers and to be
reasonably sure it knows each of its customers; and
WHEREAS, in order to assist its transfer agent clients with their anti-money
laundering compliance responsibilities under the Act and the Rule, the Transfer
Agent has provided to the Trust for their consideration and approval written
procedures describing various tools designed to promote the detection and
reporting of potential money laundering activity by monitoring certain aspects
of shareholder activity (the "Monitoring Procedures") as well as written
procedures for verifying a customer's identity (the "Customer Identification
Procedures"), together referred to as the "Procedures"; and
WHEREAS, the Trust desires to implement the Procedures as part of their overall
anti-money laundering program and, subject to the terms of the Act and the Rule,
delegate to the Transfer Agent the day-to-day operation of the Procedures on
behalf of the Trust.
NOW THEREFORE, the parties agree, and the Agreement is hereby modified, as
follows:
1. The Trust acknowledges that they have had an opportunity to review,
consider and comment upon the Procedures provided by the Transfer Agent and
the Trust has determined that the Procedures, as part of the Trust's
overall anti-money laundering program, are reasonably designed to prevent
the Trust from being used for money laundering or the financing of
terrorist activities and to achieve compliance with the applicable
provision of the Bank Secrecy Act and the implementing regulations
thereunder.
2. Based on this determination, the Trust hereby instructs and directs the
Transfer Agent to implement the Procedures on the Trust's behalf, as such
may be amended or revised from time to time.
3. It is contemplated that these Procedures will be amended from time to time
by the parties as additional regulations are adopted and/or regulatory
guidance is provided relating to the Trust's anti-money laundering
responsibilities.
4. The Transfer Agent agrees to provide to the Trust (a) prompt written
notification of any transaction or combination of transactions that the
Transfer Agent believes, based on the Procedures, evidence money laundering
activity in connection with the Trust or any shareholder of the Trust, (b)
prompt written notification of any customer(s) that the Transfer Agent
reasonably believes, based upon the Procedures, to be engaged in money
laundering activity, provided that the Trust agrees not to communicate this
information to the customer, (c) any reports received by the Transfer Agent
from any government agency or applicable industry self-regulatory
organization pertaining to the Transfer Agent's anti-money laundering
monitoring on behalf of the Trust as provided in this Addendum, (d) prompt
written notification of any action taken in response to anti-money
laundering violations as described in (a), (b) or (c), and (e) an annual
report of its monitoring and customer identification activities on behalf
of the Trust. The Transfer Agent shall provide such other reports on the
monitoring and customer identification activities conducted at the
direction of the Trust as may be agreed to from time to time by the
Transfer Agent and the Trust.
5. The Trust hereby directs, and the Transfer Agent acknowledges, that the
Transfer Agent shall (a) permit federal regulators access to such
information and records maintained by the Transfer Agent and relating to
the Transfer Agent's implementation of the Procedures on behalf of the
Trust, as they may request, and (b) permit such federal regulators to
inspect the Transfer Agent's implementation of the Procedures on behalf of
the Trust.
6. Fees and expenses (other than those already set forth in the Agreement) for
services to be provided by the Transfer Agent hereunder shall be set forth
in a fee schedule agreed upon by the Trust and the Transfer Agent from time
to time. A copy of the initial fee schedule is attached hereto as Exhibit
A.
7. This Addendum constitutes the written instructions of the Trust pursuant to
the terms of the Agreement. Except to the extent supplemented hereby, the
Agreement shall remain in full force and effect.
IN WITNESS HEREOF, the undersigned have executed this Addendum as of the date
and year first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________ _________________________________
Zodiac Trust U.S. Bancorp Fund Services, LLC
By: President By: President
_________________________________ _____________________________
Authorized Officer Authorized Officer