Exhibit (h)(2)
Form of Transfer Agency Agreement
iMILLENNIUM CAPITAL TRUST
TRANSFER AGENCY AGREEMENT
AGREEMENT made this ____ day of ___________, [year], by and among iMillennium
Capital Trust, a Delaware business trust, having its principal office and place
of business at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and
American Data Services, Inc., New York corporation having its principal office
and place of business at the Hauppauge Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("ADS").
WHEREAS, the Trust is an open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized to issue shares ("Shares") in separate
series, with each such series representing interests in a separate portfolio of
securities and other assets, and is authorized to divide those series into
separate classes; and
WHEREAS, the Trust offers shares in the series as listed in Schedule B
hereto (each such series, together with all other series subsequently
established by the Trust and made subject to this Agreement in accordance with
Section 13, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of the classes of each Fund as listed in
Appendix A hereto (each such class together with all other classes subsequently
established by the Trust in a Fund being herein referred to as a "Class," and
collectively as the "Classes"); and
WHEREAS, ADS is a corporation experienced in providing transfer agency
and related services to mutual funds and possesses facilities sufficient to
provide such services; and
WHEREAS, the desires to appoint ADS as its transfer agent and dividend
disbursing agent for each Fund and Class thereof and ADS desires to accept such
appointment on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and ADS hereby agree as follows:
1. APPOINTMENT AND DELIVERY OF DOCUMENTS
(a) Appointment. The Trust, on behalf of the Funds, hereby appoints ADS
to act as, and ADS agrees to act as, (i) transfer agent for the authorized and
issued shares of beneficial interest stock of the Trust representing interests
in each of the respective Funds and Classes thereof ("Shares"), (ii) dividend
disbursing agent and (iii) agent in connection with any accumulation,
open-account or similar plans provided to the registered owners of shares of any
of the Funds ("Shareholders") and set out in the currently effective
prospectuses and statements of additional information of the applicable Fund,
including, without limitation, any periodic investment plan or periodic
withdrawal program.
(b) DOCUMENT DELIVERY. The Trust has delivered to ADS copies of:
(i) the Trust's Trust Instrument and Bylaws (collectively, as
amended from time to time, "Organic Documents");
(ii) the Trust's Registration Statement and all amendments
thereto filed with the U.S. Securities and Exchange Commission ("SEC")
pursuant to the Securities Act of 1933, as amended (the "1933 Act"), or
the Investment Company Act of 1940, as amended (the "1940 Act")(the
"Registration Statement");
(iii) the current Prospectus and Statement of Additional
Information of each Fund (collectively, as currently in effect and as
amended or supplemented, the "Prospectus"); and,
(iv) each current plan of distribution or similar document
adopted by the Trust under Rule 12b-1 under the 1940 Act ("Plan") and
each current shareholder service plan or similar document adopted by
the Trust ("Service Plan").
(v) TRUST'S DUTY TO UPDATE. The Trust shall promptly furnish
ADS with all amendments or supplements to the foregoing and shall deliver to ADS
a certified copy of the resolution of the Board of Trustees of the Trust (the
"Board") appointing ADS and authorizing the execution and delivery of this
Agreement.
2. DUTIES OF ADS AND THE TRUST
(a) TRANSFER AGENCY SERVICES. In accordance with procedures established
from time to time by agreement between the Trust on behalf of each of the Funds,
as applicable, and ADS, ADS will perform the following services:
(i) provide the 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)
that are customary for open-end management investment companies
including:
(A) maintaining all Shareholder accounts;
(B) preparing Shareholder meeting lists;
(C) mailing Shareholder reports and prospectuses to
current Shareholders;
(D) withholding taxes on U.S. resident and
non-resident alien accounts;
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(E) preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required by federal
authorities with respect to distributions for Shareholders;
(F) preparing and mailing confirmation forms and
statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in
Shareholder accounts; and,
(G) providing account information in response to
inquiries from Shareholders.
(ii) Receive for acceptance, orders for the purchase of Shares, and promptly
deliver payment and appropriate documentation therefore to the
Custodian of the Fund authorized by the Board of Directors of the Fund
(the "Custodian"); or, in the case of a Fund's operating in a
master-feeder or fund of funds structure, to the transfer agent or
interest-holder recordkeeper for the master portfolios in which the
Fund invests;
(iii) pursuant to purchase orders, issue the appropriate
number of Shares and hold such Shares in the appropriate Shareholder
account;
(iv) receive for acceptance redemption requests and deliver
the appropriate documentation therefor to the Custodian or, in the case
of Fund's operating in a master-feeder or fund of funds structure, to
the transfer agent or interest-holder recordkeeper for the master
portfolios in which the Fund invests;
(v) as and when it receives monies paid to it by the Custodian
with respect to any redemption, pay the redemption proceeds as required
by the Prospectus pursuant to which the redeemed Shares were offered
and as instructed by the redeeming Shareholders;
(vi) effect transfers of Shares upon receipt of appropriate
instructions from Shareholders;
(vii) prepare and transmit to Shareholders (or credit the
appropriate Shareholder accounts) payments for all distributions
declared by the Trust with respect to Shares;
(viii) issue share certificates and replacement share
certificates for those share certificates alleged to have been lost,
stolen, or destroyed upon receipt by ADS of indemnification
satisfactory to ADS and protecting ADS and the Trust and, at the option
of ADS, issue replacement certificates in place of mutilated share
certificates upon presentation thereof without requiring
indemnification;
(ix) receive from Shareholders or debit Shareholder accounts
for sales commissions, including contingent deferred, deferred and
other sales charges, and service fees (i.e., wire redemption charges)
and prepare and transmit payments to underwriters, selected dealers and
others for commissions and service fees received;
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(x) track shareholder accounts by financial intermediary
source and otherwise as requested by the Trust and provide periodic
reporting to the Trust or its administrator or other agent;
(xi) maintain records of account for and provide reports and
statements to the Trust and Shareholders as to the foregoing;
(xii) Record the issuance of shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number of shares
of the Fund which are authorized, based upon data provided to it by the
Fund, and issued and outstanding.
(xiii) provide a system which will enable the Trust to
calculate the total number of Shares of each Fund and Class thereof
sold in each State.
(b) Other Services. ADS shall provide the following additional services
on behalf of the Trust and such other services agreed to in writing by the Trust
and ADS:
(i) monitor and make appropriate filings with respect to the escheatment
laws of the various states and territories of the United States; and
(c) BLUE SKY MATTERS. The Trust or its administrator or other agent
(i) shall identify to ADS in writing those transactions and
assets to be treated as exempt from reporting for each state and
territory of the United States and for each foreign jurisdiction
(collectively "States"); and
(ii) shall monitor the sales activity with respect to
Shareholders domiciled or resident in each State.
(d) SAFEKEEPING. ADS shall establish and maintain facilities and
procedures reasonably acceptable to the Trust for the safekeeping, control,
preparation and use of share certificates, check forms, and facsimile signature
imprinting devices. ADS shall establish and maintain facilities and procedures
reasonably acceptable to the Trust for safekeeping of all records maintained by
ADS pursuant to this Agreement.
(e) COOPERATION WITH ACCOUNTANTS. ADS shall cooperate with each Fund's
independent public accountants and shall take reasonable action to make all
necessary information available to the accountants for the performance of the
accountants' duties.
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(f) RESPONSIBILITY FOR COMPLIANCE WITH LAW.
(i) IN GENERAL. Except with respect to ADS's duties as set
forth in this Section 2 and except as otherwise specifically provided
herein, the Trust assumes all responsibility for ensuring that the
Trust complies with all applicable requirements of the Securities Act,
the 1940 Act and any laws, rules and regulations of governmental
authorities with jurisdiction over the Trust. All references to any law
in this Agreement shall be deemed to include reference to the
applicable rules and regulations promulgated under authority of the law
and all official interpretations of such law or rules or regulations.
(ii) ISSUANCE OF SHARES. The responsibility of ADS for the
Trust's state registration status is solely limited to the reporting of
transactions to the Trust, and ADS 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
Trust or its administrator or other agent.
3. RECORDKEEPING
(a) PREDECESSOR RECORDS. Prior to the commencement of ADS's
responsibilities under this Agreement, if applicable, the Trust shall deliver or
cause to be delivered over to ADS:
(i) an accurate list of Shareholders of the Trust, showing
each Shareholder's address of record, number of Shares owned and
whether such Shares are represented by outstanding share certificates
and
(ii) all Shareholder records, files, and other materials
necessary or appropriate for proper performance of the functions
assumed by ADS under this Agreement (collectively referred to as the
"Materials"). The Trust shall on behalf of each applicable Fund or
Class indemnify and hold ADS harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any error, omission,
inaccuracy or other deficiency of the Materials, or out of the failure
of the Trust to provide any portion of the Materials or to provide any
information in the Trust's possession or control reasonably needed by
ADS to perform the services described in this Agreement.
(b) RECORDKEEPING. ADS shall keep records relating to the services to
be performed under this Agreement, in the form and manner as it may deem
advisable and as required by applicable law. To the extent required by Section
31 of the 1940 Act, and the rules thereunder, ADS agrees that all such records
prepared or maintained by ADS relating to the services to be performed by ADS
under this Agreement are the property of the Trust and will be preserved,
maintained and made available in accordance with Section 31 of the 1940 Act and
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the rules thereunder, and will be surrendered promptly to the Trust on and in
accordance with the Trust's request. The Trust and the Trust's authorized
representatives shall have access to ADS's records relating to the services to
be performed under this Agreement at all times during ADS's normal business
hours. Upon the reasonable request of the Trust, copies of any such records
shall be provided promptly by ADS to the Trust or its authorized
representatives.
(c) INSPECTION OF RECORDS BY OTHERS. In case of any requests or demands
for the inspection of the Shareholder records of the Fund, ADS will endeavor to
notify the Fund and to secure instructions from an authorized officer of the
Fund as to such inspection. ADS 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, and shall promptly notify the Fund of any unusual request to inspect or
copy the shareholder records of the Fund or the receipt of any other unusual
request to inspect, copy or produce the records of the Fund.
4. ISSUANCE AND TRANSFER OF SHARES
(a) ISSUANCE OF SHARES. ADS shall make original issues of Shares of
each Fund and Class thereof in accordance with the Trust's then current
prospectus only upon receipt of
(i) instructions requesting the issuance,
(ii) a certified copy of a resolution of the Board
authorizing the issuance,
(iii) necessary funds for the payment of any original issue
tax applicable to such Shares, and
(iv) an opinion of the Trust's counsel as to the legality and
validity of the issuance, which opinion may provide that it is
contingent upon the filing by the Trust of an appropriate notice with
the SEC, as required by Section 24 of the 1940 Act or the rules
thereunder. If such opinion is contingent upon a filing under Section
24 of the 1940 Act, the Trust shall indemnify ADS for any liability
arising from the failure of the Trust to comply with that section or
the rules thereunder.
(b) Transfer of Shares. Transfers of Shares of each Fund and Class
thereof shall be registered on the Shareholder records maintained by ADS. In
registering transfers of Shares, ADS may rely upon the Uniform Commercial Code
as in effect in the State of New York or any other statutes that, in the opinion
of ADS's counsel, protect ADS and the Trust from liability arising from:
(i) not requiring complete documentation;
(ii) registering a transfer without an adverse claim inquiry;
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(iii) delaying registration for purposes of such inquiry; or,
(iv) refusing registration whenever an adverse claim requires
such refusal. As Transfer Agent, ADS will be responsible for delivery to the
transferor and transferee of such documentation as is required by the Uniform
Commercial Code.
5. SHARE CERTIFICATES
(a) SURCHARGE FOR ISSUANCE OF SHARE CERTIFICATIONS. If the Trust issues
share certificates, the Trust shall pay the surcharge for issuance of
certificates set forth in Schedule A, item (f).
(b) PROCEDURES FOR ISSUANCE OF CERTIFICATES. In the event the Trust
elects to issue share certificates, the following provisions shall apply:
(i) CERTIFICATES. The Trust shall furnish to ADS a supply of
blank share certificates of each Fund and Class thereof and, from time
to time, will renew such supply upon ADS's request. Blank share
certificates shall be signed manually or by facsimile signatures of
officers of the Trust authorized to sign by the Organic Documents of
the Trust and, if required by the Organic Documents, shall bear the
Trust's seal or a facsimile thereof. Unless otherwise directed by the
Trust, ADS may issue or register Share certificates reflecting the
manual or facsimile signature of an officer who has died, resigned or
been removed by the Trust.
(ii) ENDORSEMENT; TRANSPORTATION. New Share certificates shall
be issued by ADS upon surrender of outstanding Share certificates in
the form deemed by ADS to be properly endorsed for transfer and
satisfactory evidence of compliance with all applicable laws relating
to the payment or collection of taxes. ADS shall forward Share
certificates in "non-negotiable" form by first-class or registered
mail, or by whatever means ADS deems equally reliable and expeditious.
ADS shall not mail Share certificates in "negotiable" form unless
requested in writing by the Trust and fully indemnified by the Trust to
ADS's satisfaction.
6. SHARE PURCHASES; ELIGIBILITY TO RECEIVE DISTRIBUTIONS
(a) PURCHASE ORDERS. Shares shall be issued in accordance with the
terms of a Fund's or Class' prospectus after ADS or its agent receives either:
(i)(A) an instruction directing investment in a Fund or Class,
(B) a check (other than a third party check) or a wire or other
electronic payment in the amount designated in the instruction and (C),
in the case of an initial purchase, a completed account application;
or,
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(ii) the information required for purchases pursuant to a
selected dealer agreement, processing organization agreement, or a
similar contract with a financial intermediary.
(b) Distribution Eligibility. Shares issued in a Fund after receipt of
a completed purchase order shall be eligible to receive distributions of the
Fund at the time specified in the prospectus pursuant to which the Shares are
offered.
(c) Determination of Federal Funds. Shareholder payments shall be
considered Federal Funds no later than on the day indicated below unless other
times are noted in the prospectus of the applicable Class or Fund:
(i) for a wire received, at the time of the receipt of the
wire;
(ii) for a check drawn on a member bank of the Federal Reserve
System, on the second Fund Business Day following receipt of the check;
and
(iii) for a check drawn on an institution that is not a member
of the Federal Reserve System, at such time as ADS is credited with
Federal Funds with respect to that check.
7. COMPENSATION OF ADS
(a) Fees. For the services provided by ADS pursuant to this Agreement,
the Trust, on behalf of each Fund, agrees to pay ADS the fees set forth in
Schedule A. Fees will begin to accrue for each Fund on the latter of the date of
this Agreement or the date of commencement of operations of the Fund.
(b) Expenses. In addition to the fees paid under subsection (a), the
Trust agrees to reimburse ADS for out-of-pocket expenses or advances incurred by
ADS for the items set out in the Schedule A attached hereto. In addition, the
Trust will reimburse any other expenses incurred by ADS at the request or with
the consent of the Trust.
(c) Fee Changes. The fees, out-of pocket expenses and advances
identified in the foregoing subsections (a) and (b) above may be changed from
time to time subject to mutual written agreement between the Trust and ADS.
8. REPRESENTATIONS AND WARRANTIES
(a) Representations of ADS. ADS represents and warrants to the Trust
that:
(i) it is a corporation duly organized and existing and in
good standing under the laws of the State of New York;
(ii) it is duly qualified to carry on its business in the
State of New York;
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(iii) it is empowered under applicable laws and by its Article
of Incorporation and Bylaws to enter into this Agreement and perform
its duties under this Agreement;
(iv) it has access to the necessary facilities, equipment, and personnel to
perform its duties and obligations under this Agreement; and,
(iv) it is registered as a transfer agent under Section 17A of
the Securities Exchange Act of 1934 and shall continue to be registered
throughout the remainder of this Agreement.
(b) REPRESENTATIONS OF THE TRUST. The Trust represents and warrants to
ADS that:
(i) it is a business trust duly organized and existing and in
good standing under the laws of [Massachusetts/Delaware];
(ii) it is empowered under applicable laws and by its Organic
Documents to enter into and perform this Agreement;
(iii) all proceedings required by said Organic Documents have
been taken to authorize it to enter into and perform this Agreement;
(iv) it is an open-end management investment company
registered under the Investment Company Act of 1940; and,
(v) a registration statement under the Securities Act of 1933
is currently or will become effective and will remain effective, and appropriate
state securities law filings as required, have been or will be made and will
continue to be made, with respect to all Shares of the Fund being offered for
sale.
9. STANDARD OF CARE, INDEMNIFICATION AND RELIANCE
(a) STANDARD OF CARE. ADS shall be under no duty to take any action
except as specifically set forth herein or as may be specifically agreed to by
ADS in writing. ADS shall use its best judgment and efforts in rendering the
services described in this Agreement. ADS shall not be liable to the Trust or
any of the Trust's shareholders for any action or inaction of ADS relating to
any event whatsoever in the absence of bad faith, willful misfeasance or gross
negligence in the performance of ADS's duties or obligations under this
Agreement or by reason of ADS's reckless disregard of its duties and obligations
under this Agreement.
(b) INDEMNIFICATION OF ADS. ADS shall not be responsible for, and the
Trust shall on behalf of each applicable Fund or Class thereof indemnify and
hold ADS harmless from and against, any and all losses, damages, costs, charges,
reasonable counsel fees, payments, expenses and liability arising out of or
attributable to:
(i) all actions of ADS or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such
actions are taken in good faith and without gross negligence or willful
misconduct; the Trust's lack of good faith or the Trust's gross
negligence or willful misconduct;
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(ii) the reliance on or use by ADS or its agents or
subcontractors of information, records or documents which (i) are
received by ADS or its agents or subcontractors and furnished to it by
or on behalf of the Fund, and (ii) have been prepared or maintained by
the Trust or any other person or firm on behalf of the Trust, including
but not limited to any previous transfer agent or registrar;
(iii) the reasonable reliance on, or the carrying out by ADS
or its agents or subcontractors of, any instructions or requests of the
Trust on behalf of the applicable Fund;
(iv) the Fund's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Fund's lack good faith, gross
negligence or willful misconduct or which arise out of the breach of
any representation or warranty of the Fund hereunder and,
(v) the offer or sale of Shares in violation of any
requirement under the Federal securities laws or regulations or the
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.
(c) INDEMNIFICATION OF THE TRUST. ADS shall indemnify and hold the
Trust and each Fund or Class thereof harmless from and against any and all
losses, damages, costs, charges, reasonable counsel fees, payments, expenses and
liability arising out of or attributed to any action or failure or omission to
act by ADS as a result of ADS's lack of good faith, gross negligence or willful
misconduct with respect to the services performed under or in connection with
this Agreement.
(d) RELIANCE. At any time ADS may apply to any officer of the Trust for
instructions, and may consult with legal counsel to the Trust or to ADS with
respect to any matter arising in connection with the services to be performed by
ADS under this Agreement, and ADS and its agents or subcontractors shall not be
liable and shall be indemnified by the Trust on behalf of the applicable Fund
for any action taken or omitted by it in reasonable reliance upon such
instructions or upon the advice of such counsel. ADS, its agents and
subcontractors shall be protected and indemnified in acting upon
(i) any paper or document furnished by or on behalf of the
Trust, reasonably believed by ADS to be genuine and to have been signed
by the proper person or persons;
(ii) any instruction, information, data, records or documents
provided ADS or its agents or subcontractors by machine readable input,
telex, CRT data entry or other similar means authorized by the Trust;
and,
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(iii) any authorization, instruction, approval, item or set of
data, or information of any kind transmitted to ADS in person or by
telephone, vocal telegram or other electronic means, reasonably
believed by ADS to be genuine and to have been given by the proper
person or persons. ADS shall not be held to have notice of any change
of authority of any person, until receipt of written notice thereof
from the Trust. ADS, its agents and subcontractors shall also be
protected and indemnified in recognizing share certificates which are
reasonably believed to bear the proper manual or facsimile signatures
of the officers of the Trust, and the proper countersignature of any
former transfer agent or former registrar or of a co-transfer agent or
co-registrar of the Trust.
(d) RELIANCE ON ELECTRONIC INSTRUCTIONS. If the Trust has the ability
to originate electronic instructions to ADS in order to (i) effect the transfer
or movement of cash or Shares or (ii) transmit Shareholder information or other
information, then in such event ADS shall be entitled to rely on the validity
and authenticity of such instruction without undertaking any further inquiry as
long as such instruction is undertaken in conformity with security procedures
established by ADS from time to time.
(e) USE OF FUND/SERV AND NETWORKING. The Trust has authorized or in the
future may authorize ADS to act as a "Mutual Fund Services Member" for the Trust
or various Funds and Classes. Fund/SERV and Networking are services sponsored by
the National Securities Clearing Corporation ("NSCC") and as used herein have
the meanings as set forth in the then current edition of NSCC RULES AND
PROCEDURES published by NSCC or such other similar publication as may exist from
time to time. The Trust shall indemnify and hold ADS harmless from and against
any and all losses, damages, costs, charges, reasonable counsel fees, payments,
expenses and liability arising directly or indirectly out of or attributed to
any action or failure or omission to act by NSCC.
(f) NOTIFICATION OF CLAIMS. In order that the indemnification
provisions contained in this Section shall apply, upon the assertion of a claim
for which either party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion, and
shall keep the other party advised with respect to all developments concerning
such claim. The party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense of such claim
or to defend against said claim in its own name or in the name of the other
party. The party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
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10. CONFIDENTIALITY
ADS and the Trust agree that all books, records, information, and data
pertaining to the business of the other party which 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
that ADS may:
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC; and
(b) release such other information as approved in writing by the Trust
which approval shall not be unreasonably withheld and may not be withheld where
ADS may be exposed to civil or criminal contempt proceedings for failure to
release the information, when requested to divulge such information by duly
constituted authorities or when so requested by the Trust or the Adviser.
11. EFFECTIVENESS, DURATION, AND TERMINATION
(a) EFFECTIVE DATE. This Agreement shall become effective on the date
first above written.
(b) TERM. This Agreement shall remain in effect for a period of three
(3) years from the date of its effectiveness and shall continue in effect for
successive twelve-month periods; provided that such continuance is specifically
approved at least annually by the Board and by a majority of the Directors who
are not parties to this Agreement or interested persons of any such party.
(c) TERMINATION FOR CAUSE. In the event of a material breach of this
Agreement by either party, the non-breaching part shall notify the breaching
party in writing of such breach and upon receipt of such notice, the breaching
party shall by 45 days to remedy the breach. If said breach is not remedied to
the reasonable satisfaction of the non-breaching party, the non-breaching party
may thereafter terminate this Agreement immediately. Compensation due ADS and
unpaid by the Trust upon such termination shall be immediately due and payable
upon, and notwithstanding, such termination. If after such termination for so
long as ADS, with the written consent of the Trust, in fact continues to perform
any one or more of the services contemplated by this Agreement, the provisions
of this Agreement, including without limitation, the provisions dealing with
indemnification, shall continue in full force and effect.
(d) PAYMENT UPON TERMINATION. If at any time during the initial or any
subsequent term of this Agreement, ADS is replaced as transfer agent or dividend
disbursing agent for any reason other than for a material breach of this
Agreement which ADS does not cure within a reasonable time, or a Fund is merged
into or sells all (or substantially all) of its assets to another fund or family
of funds for which ADS does not serve as transfer agent or dividend disbursing
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agent, then the Fund shall, immediately upon demand by ADS, make a one time cash
payment equal to the net present value of the revenues ADS would have earned
during the remainder of the initial or subsequent term of the Agreement, as the
case may be, at the fee rate in effect at the time of such event (including any
applicable minimum). For purposes of this paragraph, the present value of the
revenues shall be determined by applying a 5.00% discount rate, and the asset
figure used to calculate the fee due ADS hereunder shall be the highest monthly
average assets of the Fund at any time during the 12 months immediately
preceding the termination of ADS (or the merger or sale of assets) of the Fund.
(e) REIMBURSEMENT OF ADS'S EXPENSES. If this Agreement is terminated with
respect to a Fund or Funds, ADS shall be entitled to collect from the
Fund or Funds, in addition to the compensation described under Sections
4 and 11(d) hereof, the amount of all of ADS's reasonable cash
disbursements for services in connection with ADS's activities in
effecting such termination, including without limitation, the delivery
to the Trust and/or its designees of the Trust's property, records,
instruments and documents, or any copies thereof. Subsequent to such
termination, for a reasonable fee, ADS will provide the Trust with
reasonable access to all Trust documents or records, if any, remaining
in its possession. Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and
material will be borne by the Fund. Additionally, ADS reserves the
right to charge for any other reasonable costs and expenses associated
with such termination.
(e) SURVIVAL OF CERTAIN OBLIGATIONS. The obligations of Sections 8, 10
and 11 shall survive any termination of this Agreement
12. ADDITIONAL FUNDS AND CLASSES.
If the Trust establishes one or more series of Shares or one or more
classes of Shares after the effectiveness of this Agreement, such series of
Shares or classes of Shares, as the case may be, shall become Funds and Classes
under this Agreement; provided, however, that either ADS or the Trust may elect
not to make and such series or classes subject to this Agreement.
13. ASSIGNMENT
Except as otherwise provided in this Agreement, neither this Agreement
nor any rights or obligations under this Agreement may be assigned by either
party without the written consent of the other party. This Agreement shall inure
to the benefit of and be binding upon the parties and their respective permitted
successors and assigns. ADS may, without further consent on the part of the
Trust, subcontract for the performance hereof with any entity, including
affiliated persons of ADS; provided however, that ADS shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor as ADS
is for its own acts and omissions.
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14. TAXES
ADS shall not be liable for any taxes, assessments or governmental
charges that may be levied or assessed on any basis whatsoever in connection
with the Trust or any Shareholder or any purchase of Shares, excluding taxes
assessed against ADS for compensation received by it under this Agreement.
15. MISCELLANEOUS
(a) AMENDMENTS. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by both parties hereto.
(b) CHOICE OF LAW. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York.
(c) REFERENCES TO LAW. References to any law in this Agreement shall be
deemed to include reference to the applicable rules and regulations promulgated
under authority of the law and all official interpretations of such law or rules
or regulations.
(d) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
(e) COUNTERPARTS. The parties may execute this Agreement on any number
of counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) SEVERABILITY. If any part, term or provision of this Agreement is
held to be illegal, in conflict with any law or otherwise invalid, the remaining
portion or portions shall be considered severable and not be affected, and the
rights and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid.
(g) HEADINGS. Section and paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
(h) NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
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To the Trust: To ADS:
[Name] ▇▇▇▇▇▇▇ ▇▇▇▇▇
[Title] President
[Name of Trust] American Data Services, Inc.
[Street] ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
[▇▇▇▇, ▇▇▇▇▇, Zip] ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(i) BUSINESS DAYS. Nothing contained in this Agreement is intended to
or shall require ADS, in any capacity hereunder, to perform any functions or
duties on any day other than a Fund Business Day as defined in the Prospectus
for the Fund. Functions or duties normally scheduled to be performed on any day
which is not a Fund Business Day shall be performed on, and as of, the next Fund
Business Day, unless otherwise required by law.
(j) DISTINCTION OF FUNDS. Notwithstanding any other provision of this
Agreement, the parties agree that the assets and liabilities of each Fund of the
Trust are separate and distinct from the assets and liabilities of each other
Fund and that no Fund shall be liable or shall be charged for any debt,
obligation or liability of any other Fund, whether arising under this Agreement
or otherwise.
(l) NON-LIABILITY OF AFFILIATES. No affiliated person (as that term is
defined in the 1940 Act), employee, agent, director, officer or manager of ADS
shall be liable at law or in equity for ADS's obligations under this Agreement.
(m) CONSEQUENTIAL DAMAGES. No party to this Agreement shall be liable
to the other parties for consequential damages under any provision of this
Agreement.
(n) REPRESENTATION OF SIGNATORIES. Each of the undersigned expressly
warrants and represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their signature will bind
the party indicated to the terms hereof
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized persons,
as of the day and year first above written.
[Name of Trust] AMERICAN DATA SERVICES, INC.
By: _______________________________________ By: ___________________________
[Name], [Title] ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
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iMILLENNIUM CAPITAL TRUST
TRANSFER AGENCY AGREEMENT
SCHEDULE A
FEES
A-1
iMILLENNIUM CAPITAL TRUST
TRANSFER AGENCY AGREEMENT
SCHEDULE B
FUNDS AND CLASSES TO BE SERVICED UNDER THIS AGREEMENT
1.
B-1