TRANSFER AGENCY AGREEMENT
AGREEMENT made this 22nd day of May, 2000, by and among WHATIFI FUNDS
(the "Trust"), a Delaware business trust, having its principal place of business
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, WHATIFI ASSET
MANAGEMENT, INC. (the"Adviser"), a Delaware corporation having its principal
place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and BISYS FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Trust is an open-end management investment company,
registered with the Securities and Exchange Commission (the "Commission") under
the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Adviser is a registered investment adviser that has been
retained by the Trust, pursuant to an Investment Advisory Agreement, dated May
22, 2000, to provide various investment advisory services to the Trust; and
WHEREAS, the Trust and the Adviser desire that BISYS perform certain
services for each series of the Trust (individually referred to herein as a
"Fund" and collectively as the "Funds").
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services.
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BISYS shall perform the transfer agent services set forth in
Schedule A hereto. BISYS also agrees to perform such special services incidental
to the performance of the services enumerated herein as agreed to by the parties
from time to time. BISYS shall perform such additional services as are provided
on an amendment to Schedule A hereof, in consideration of such fees as the
parties hereto may agree.
Subject to the prior written consent of the Trust and the
Adviser, which consent shall not be unreasonably withheld, BISYS may, in its
discretion, appoint in writing other parties qualified to perform transfer
agency services reasonably acceptable to the Trust and the Adviser
(individually, a "Sub-transfer Agent") to carry out some or all of its
responsibilities under this Agreement; provided, however, that the Sub-transfer
Agent shall be the agent of BISYS and not the agent of the Trust or the Adviser
, and that BISYS shall be fully responsible for the acts of such Sub-transfer
Agent and shall not be relieved of any of its responsibilities hereunder by the
appointment of such Sub-transfer Agent.
2. Fees.
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The Adviser shall pay BISYS for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth in
the Omnibus Fee Agreement by and among between the Trust, the Adviser and BISYS
dated as of May 22, 2000 (the "Fee Agreement"). Notwithstanding the foregoing,
the Trust hereby agrees that, in the event the Adviser shall fail at any time to
(i) make timely payment of fees that are due and payable under the Fee
Agreement, (ii) reimburse BISYS for expenses incurred in accordance with Section
3 herein within a reasonable time following the receipt of an invoice for such
expenses, or (iii) make any other payment in a timely manner that shall become
due and payable to BISYS hereunder, then the Trust shall immediately make or
cause to be made a payment of such fees and/or reimbursable expenses.
3. Reimbursement of Expenses.
In addition to paying BISYS the fees referred to in Section 2
hereof, the Adviser agrees to reimburse BISYS for BISYS' out-of-pocket expenses
in providing services hereunder, including without limitation, the following:
(a) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from the
Trust and in delivering all materials to shareholders;
(b) All direct telephone, telephone transmission and telecopy
or other electronic transmission expenses incurred by
BISYS in communication with the Trust, the Trust's
investment adviser or custodian, dealers, shareholders or
others as required for BISYS to perform the services to be
provided hereunder;
Costs of postage, couriers, stock computer paper,
statements, labels, envelopes, checks, reports, letters,
tax forms, proxies, notices or other forms of printed
material which shall be required by BISYS for the
performance of the services to be provided hereunder;
Sales taxes paid on behalf of the Trust;
Expenses associated with the tracking of "as-of" trades;
The cost of microfilm or microfiche of records or other
materials;
All systems-related expenses associated with the provision
of special reports and services pursuant to Schedule B
attached hereto; and
Any expenses BISYS shall incur at the written direction of
an officer of the Trust thereunto duly authorized.
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The parties acknowledge and agree that the fees set forth
below, which will be collected by BISYS from certain Trust
shareholders, shall be used by BISYS to offset the
out-of-pocket expenses referenced above for which BISYS is
entitled to reimbursement. Such fees shall include (i)
paper-based reporting fees, (ii) minimum balance fees,
(iii) wire fees and (iv) redemption fees.
4. Effective Date.
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This Agreement shall become effective as of the date first written above
(the "Effective Date").
5. Term.
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This Agreement shall become effective as of the date written
above and shall continue in effect with respect to a Fund, unless earlier
terminated by any party hereto as provided hereunder, for a three (3) year
period (the "Initial Term"). Notwithstanding the foregoing, this Agreement may
be terminated without penalty at any time (i) by any party upon the provision of
at least ninety (90) days advance written notice of termination to the other
parties or (ii) by mutual agreement of the parties.
After such termination, for so long as BISYS, with the written
consent of the Adviser or the Trust, in fact continues to perform any one or
more of the services contemplated by this Agreement or any Schedule or exhibit
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 BISYS but unpaid by the
Adviser upon such termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Adviser, in addition to the fees and disbursements provided by Sections 2 and 3
hereof, the amount of all of BISYS' cash disbursements in connection with BISYS'
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its distributor or investment adviser and/or other
parties, of the Trust's property, records, instruments and documents.
6. Uncontrollable Events.
BISYS assumes no responsibility hereunder, and shall not be
liable for any damage, loss of data, delay or any other loss whatsoever caused
by events beyond its reasonable control.
7. Legal Advice.
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BISYS may apply to the Adviser or the Trust at any time for
instructions and may consult counsel for the Trust or its own counsel with
respect to any matter arising in connection with BISYS's duties, and BISYS shall
not be liable or accountable for any action taken or omitted by it
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in good faith in accordance with such instruction or with the opinion of such
counsel.
8. Instructions.
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Whenever BISYS is requested or authorized to take action
hereunder pursuant to instructions from a shareholder, or a properly authorized
agent of a shareholder ("shareholder's agent"), concerning an account in a Fund,
BISYS shall be entitled to rely upon any certificate, letter or other instrument
or communication, believed by BISYS to be genuine and to have been properly
made, signed or authorized by an officer or other authorized agent of the Trust
or by the shareholder or shareholder's agent, as the case may be, and shall be
entitled to receive as conclusive proof of any fact or matter required to be
ascertained by it hereunder a certificate signed by an officer of the Trust or
any other person authorized by the Trust's Board of Trustees/Directors
(hereafter referred to as the "Directors") or by the shareholder or
shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the Funds to the extent that such services
are described therein unless BISYS receives written instructions to the contrary
in a timely manner from the Trust.
9. Standard of Care; Reliance on Records and Instructions; Indemnification.
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BISYS shall use its best efforts to ensure the accuracy of all
services performed under this Agreement, but shall not be liable to the Adviser
or the Trust for any action taken or omitted by BISYS in the absence of bad
faith, willful misfeasance, negligence or from reckless disregard by it of its
obligations and duties. The Trust agrees to indemnify and hold harmless BISYS,
its employees, agents, directors, officers and nominees from and against any and
all claims, demands, actions and suits, whether groundless or otherwise, and
from and against any and all judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character arising
out of or in any way relating to BISYS' actions taken or nonactions with respect
to the performance of services under this Agreement or based, if applicable,
upon reasonable reliance on information, records, instructions or requests given
or made to BISYS by the Trust, the investment adviser and on any records
provided by any fund accountant or custodian thereof; provided that this
indemnification shall not apply to actions or omissions of BISYS in cases of its
own bad faith, willful misfeasance, negligence or from reckless disregard by it
of its obligations and duties; and further provided that prior to confessing any
claim against it which may be the subject of this indemnification, BISYS shall
give the Trust written notice of and reasonable opportunity to defend against
said claim in its own name or in the name of BISYS.
10. Record Retention and Confidentiality.
BISYS shall keep and maintain on behalf of the Trust all books
and records which the Trust or BISYS is, or may be, required to keep and
maintain pursuant to any applicable statutes, rules and regulations, including
without limitation Rules 31a-1 and 31a-2 under the 1940 Act,
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relating to the maintenance of books and records in connection with the services
to be provided hereunder. BISYS further agrees that all such books and records
shall be the property of the Trust and to make such books and records available
for inspection by the Trust or by the Securities and Exchange Commission (the
"Commission") at reasonable times and otherwise to keep confidential all books
and records and other information relative to the Trust and its shareholders,
except when requested to divulge such information by duly-constituted
authorities or court process, or requested by a shareholder or shareholder's
agent with respect to information concerning an account as to which such
shareholder has either a legal or beneficial interest or when requested by the
Trust, the shareholder, or shareholder's agent, or the dealer of record as to
such account.
11. Reports.
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BISYS will furnish to the Trust and to its properly-authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Trust in writing,
such reports at such times as are prescribed in Schedule B attached hereto, or
as subsequently agreed upon by the parties pursuant to an amendment to Schedule
B. The Trust agrees to examine each such report or copy promptly and will report
or cause to be reported any errors or discrepancies therein.
12. Rights of Ownership.
All computer programs and procedures developed by BISYS or
paid for by BISYS to perform services required to be provided by BISYS under
this Agreement are the property of BISYS. All records and other data except such
computer programs and procedures developed by or paid for BISYS are the
exclusive property of the Trust and all such other records and data will be
furnished to the Trust in appropriate form as soon as practicable after
termination of this Agreement for any reason.
13. Return of Records.
BISYS may at its option at any time, and shall promptly upon
the Trust's demand, turn over to the Trust and cease to retain BISYS' files,
records and documents created and maintained by BISYS pursuant to this Agreement
which are no longer needed by BISYS in the performance of its services or for
its legal protection. If not so turned over to the Trust, such documents and
records will be retained by BISYS for six years from the year of creation. At
the end of such six-year period, such records and documents will be turned over
to the Trust unless the Trust authorizes in writing the destruction of such
records and documents.
14. Bank Accounts.
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The Trust and the Funds shall establish and maintain such bank
accounts with such bank or banks as are selected by the Trust, as are necessary
in order that BISYS may perform the services required to be performed hereunder.
To the extent that the performance of such services
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shall require BISYS directly to disburse amounts for payment of dividends,
redemption proceeds or other purposes, the Trust and Funds shall provide such
bank or banks with all instructions and authorizations necessary for BISYS to
effect such disbursements.
15. Representations of the Trust.
The Trust certifies to BISYS that: (a) as of the close of
business on the Effective Date, each Fund which is in existence as of the
Effective Date has authorized unlimited shares, and (b) by virtue of its
Declaration of Trust or Articles of Incorporation, shares of each Fund which are
redeemed by the Trust may be sold by the Trust from its treasury, and (c) this
Agreement has been duly authorized by the Trust and, when executed and delivered
by the Trust, will constitute a legal, valid and binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
16. Representations of BISYS.
BISYS represents and warrants that: (a) BISYS has been in, and
shall continue to be in, substantial compliance with all provisions of law,
including Section 17A(c) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), required in connection with the performance of its duties under
this Agreement; and (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other data of the
Trust and BISYS' records, data, equipment, facilities and other property used in
the performance of its obligations hereunder are adequate and that it will make
such changes therein from time to time as are required for the secure
performance of its obligations hereunder.
17. Insurance.
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BISYS shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors and officers
errors and omissions coverage in amounts that are appropriate in light of its
duties and responsibilities hereunder. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled or reduced. Such notification shall include the
date of change and the reasons therefor. BISYS shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust from time to time as may be appropriate of the total outstanding claims
made by BISYS under its insurance coverage.
18. Information to be Furnished by the Trust and Funds.
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The Trust has furnished to BISYS the following:
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(a) Copies of the Declaration of Trust or Articles of
Incorporation of the Trust and of any amendments
thereto, certified by the proper official of the state
in which such Declaration or Articles has been filed.
(b) Copies of the following documents:
1. The Trust's Bylaws and any amendments thereto;
Certified copies of resolutions of the Directors Board of
Directors covering the following matters:
A. Approval of this Agreement and authorization of a specified
officer of the Trust to execute and deliver this Agreement
and authorization for specified officers of the Trust to
instruct BISYS hereunder; and
B. Authorization of BISYS to act as Transfer Agent for the
Trust on behalf of the Funds.
(c) A list of all officers of the Trust, together with
specimen signatures of those officers, who are
authorized to instruct BISYS in all matters.
(d) Two copies of the following (if such documents are
employed by the Trust):
1. Prospectuses and Statement of Additional Information;
2. Distribution Agreement; and
3. All other forms commonly used by the Trust or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(e) A certificate as to shares of beneficial interest or
common stock of the Trust authorized, issued, and
outstanding as of the Effective Date of BISYS'
appointment as Transfer Agent (or as of the date on
which BISYS' services are commenced, whichever is the
later date) and as to receipt of full consideration by
the Trust for all shares outstanding, such statement to
be certified by the Treasurer of the Trust.
19. Information Furnished by BISYS.
BISYS has furnished to the Trust the following:
(a) BISYS' Articles of Incorporation.
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(b) BISYS' Bylaws and any amendments thereto.
(c) Certified copies of actions of BISYS covering the
following matters:
1. Approval of this Agreement, and authorization of a
specified officer of BISYS to execute and deliver this
Agreement;
2. Authorization of BISYS to act as Transfer Agent for the
Trust.
(d) A copy of the most recent report describing control
structure policies and procedures relating to
transfer agency operations pursuant to AICPA
Statement on Auditing Standards Number 70.
20. Amendments to Documents.
The Trust shall furnish BISYS written copies of any amendments
to, or changes in, any of the items referred to in Section 18 hereof forthwith
upon such amendments or changes becoming effective. In addition, the Trust
agrees that no amendments will be made to the Prospectuses or Statement of
Additional Information of the Trust which might have the effect of changing the
procedures employed by BISYS in providing the services agreed to hereunder or
which amendment might affect the duties of BISYS hereunder unless the Trust
first obtains BISYS' approval of such amendments or changes.
21. Reliance on Amendments.
BISYS may rely on any amendments to or changes in any of the
documents and other items to be provided by the Trust pursuant to Sections 18
and 20 of this Agreement and the Trust hereby indemnifies and holds harmless
BISYS from and against any and all claims, demands, actions, suits, judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character which may result from actions or omissions on the
part of BISYS in reasonable reliance upon such amendments and/or changes.
Although BISYS is authorized to rely on the above-mentioned amendments to and
changes in the documents and other items to be provided pursuant to Sections 18
and 20 hereof, BISYS shall be under no duty to comply with or take any action as
a result of any of such amendments or changes unless the Trust first obtains
BISYS' written consent to and approval of such amendments or changes.
22. Compliance with Law.
Except for the obligations of BISYS set forth in Section 10
hereof, the Trust assumes full responsibility for the preparation, contents, and
distribution of each prospectus of the Trust as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, and any other laws, rules and regulations of governmental
authorities having jurisdiction. BISYS shall have no obligation to take
cognizance of any laws relating to the sale of
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the Trust's shares. The Trust represents and warrants that no shares of the
Trust will be offered to the public until the Trust's registration statement
under the 1933 Act and the 1940 Act has been declared or becomes effective.
23. Notices.
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Any notice provided hereunder shall be sufficiently given when
sent by registered or certified mail, postage prepaid, addressed by the party
giving notice to the other party at the following address: if to the Adviser or
the Trust, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: President; and if to BISYS, at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, Attention: President, or at such other address as such party may from
time to time specify in writing to the other party pursuant to this Section.
24. Headings.
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Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
25. Assignment.
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This Agreement and the rights and duties hereunder shall not
be assignable by any of the parties hereto except by the specific written
consent of the other parties. This Section 25 shall not limit or in any way
affect BISYS' right to appoint a Sub-transfer Agent pursuant to Section 1
hereof. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and permitted assigns.
26. Governing Law.
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This Agreement shall be governed by and provisions shall be
construed in accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
WHATIFI FUNDS
By:________________________________
Title: ______________________________
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WHATIFI ASSET MANAGEMENT, INC.
By: _______________________________
Title: ______________________________
BISYS FUND SERVICES OHIO, INC.
By:________________________________
Title:______________________________
B-
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SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BY AND AMONG
WHATIFI FUNDS,
WHATIFI ASSET MANAGEMENT, INC.
AND
BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
a. Process shareholder purchase and redemption orders.
b. Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions.
c. Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
d. Issue periodic statements for shareholders.
e. Process transfers and exchanges.
f. Process dividend payments, including the purchase of new shares,
through dividend reimbursement.
2. Shareholder Information Services
a. Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
b. Produce detailed history of transactions through duplicate or
special order statements upon request.
c. Provide mailing labels for distribution of financial reports,
prospectuses, proxy
statements or marketing material to current shareholders.
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3. Compliance Reporting
a. Provide reports to the Securities and Exchange Commission,
the National Association of Securities Dealers and the
States in which the Fund is registered.
b. Prepare and distribute appropriate Internal Revenue Service
forms for corresponding Fund and shareholder income and
capital gains.
c. Issue tax withholding reports to the Internal Revenue Service.
4. Dealer/Load Processing (if applicable)
a. Provide reports for tracking rights of accumulation and
purchases made under a Letter of Intent.
b. Account for separation of shareholder investments from
transaction sale charges for purchase of Fund shares.
Calculate fees due under 12b-1 plans for distribution and marketing
expenses.
Track sales and commission statistics by dealer and provide for payment of
commissions on direct shareholder purchases in a load Fund.
5. Shareholder Account Maintenance
a. Maintain all shareholder records for each account in the Trust.
b. Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
Record shareholder account information changes.
Maintain account documentation files for each shareholder.
SCHEDULE B
TO THE TRANSFER AGENCY AGREEMENT
BY AND AMONG
WHATIFI FUNDS,
WHATIFI ASSET MANAGEMENT, INC.
AND
BISYS FUND SERVICES OHIO, INC.
REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
a. Beginning Balance
b. Dealer Transactions
c. Shareholder Transactions
d. Reinvested Dividends
e. Exchanges
f. Adjustments
g. Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report describing control structure policies and
procedures relating to transfer agency operations pursuant to AICPA
Statement on Auditing Standards Number 70.
8. Such special reports and additional information that the parties may agree
upon, from time to time.