TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as the___ day of _______, 2000 by and between TRUST FOR
INVESTMENT MANAGERS (the "Trust"), a Delaware business trust, on behalf of the
First Internet Fund (the "Fund"), a series of the Trust, and ICA FUND SERVICES
CORP., a Delaware corporation ("ICA").
WHEREAS, the Trust is an open-end management series investment company
registered with the Securities and Exchange Commission under the Investment
Company Act of 1940 (the "1940 Act"); and
WHEREAS, ICA is registered as a transfer agent under the Securities
Exchange Act of 1934 (the "1934 Act");
WHEREAS, the Trust desires to appoint ICA as the transfer agent, dividend
disbursing agent and agent of the Fund in connection with certain other
activities, and ICA desires to accept such appointment;
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the Trust and ICA hereby agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF ICA
1.01. Subject to the terms and conditions set forth in this agreement, the
Trust hereby employs and appoints ICA, and ICA agrees, to act as the transfer
agent for the Fund's authorized and issued shares of beneficial interest
("Shares") and the dividend disbursing agent and agent in connection with any
accumulation, open-account or similar plans provided to the shareholders of the
Fund ("Shareholders").
1.02. ICA agrees that it will perform the following services:
(a) In accordance with the Trust's Registration Statement with respect
to the Fund, which describes how sales and redemptions of Shares shall be
made, ICA shall:
(i) Receive for acceptance orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation therefor to the
Custodian of the Fund authorized by the Board of Trustees of the Trust
(the "Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of
full and fractional 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 redemption, 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 Fund, and effect dividend and capital
gains distribution reinvestments in accordance with Shareholder
instructions;
(vii) Serve as a record keeping transfer agent for the Fund, and
maintain records of account for and advise the Fund and its
Shareholders as to the foregoing; and
(viii) Record the issuance of Shares and maintain pursuant to
Rule 17Ad-10(e) under the 1934 Act a record of the total number of
Shares which are authorized, based upon data provided to it by the
Fund, and issued and outstanding.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a), ICA shall:
(i) Perform all of the customary services of a transfer agent,
dividend disbursing agent, 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 U.S.
resident and non-resident 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 confirmable transactions in
Shareholder accounts as prescribed in the federal securities laws or
as described in the Trust's Registration Statement, preparing and
mailing activity statements for Shareholders, and providing
Shareholder account information; and
(ii) provide a system and reports which will enable the Fund to
monitor the total number of Shares sold in each State. The
responsibility of ICA pursuant to this Agreement for the Fund's blue
sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by the
Fund and the reporting of such transactions to the Fund as provided
above.
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Procedures applicable to certain of these services may be established from
time to time by agreement between the Trust and ICA.
1.03. The Fund agrees that it will:
(i) identify to ICA in writing those transactions and shares to
be treated as exempt from blue sky reporting for each State; and
(ii) monitor the daily activity for each State, as provided by
ICA.
1.04. In the performance of these services, ICA agrees that it shall
exercise the care and adhere to the standards that are usual and customary for
mutual fund transfer agents.
2. FEES AND EXPENSES
2.01. For performance by ICA pursuant to this Agreement, the Trust agrees
to pay ICA fees as set out in the fee schedule attached hereto. Such fees and
out-of pocket expenses and advances identified under Section 2.02 below may be
changed from time to time subject to mutual written agreement between the Trust
and ICA.
2.02. In addition to the fee paid under Section 2.01 above, the Trust
agrees to reimburse ICA for out-of-pocket expenses or advances incurred by ICA
in connection with its duties under this Agreement. In addition, any other
expenses incurred by ICA at the request or with the consent of the Trust, will
be reimbursed by the Trust.
2.03. Unless otherwise stated, ICA shall look only to the assets of the
Fund to satisfy the fees earned and expenses incurred by ICA.
3. INDEMNIFICATION
3.01. ICA shall not be responsible for, and the Trust shall indemnify and
hold ICA 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 of ICA or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in
good faith and without negligence, willful misconduct, or in reckless
disregard of its duties under this Agreement.
(b) The Trust's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Trust's lack of good faith, negligence
or willful misconduct or which arise out of the breach of any
representation or warranty of the Trust hereunder.
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(c) The reliance on or use by ICA or its agents or subcontractors of
information, records and documents which (i) are received by ICA or its
agents or subcontractors and furnished to it by or on behalf of the Trust,
and (ii) have been prepared and/or maintained by the Trust or any other
person or firm on behalf of the Trust.
(d) The reliance on, or the carrying out by ICA or its agents or
subcontractors of any written instruction signed by an officer of the
Trust, or any legal opinion of counsel to the Trust.
(e) 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.
(f) The content, adequacy or completeness of any prospectus, proxy
statement, financial report or other document required or requested by the
Trust to be transmitted to Shareholders.
3.02. ICA shall indemnify and hold the Trust harmless from and against any
and all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any action or failure or omission to
act by ICA as a result of ICA's lack of good faith, gross negligence or willful
misconduct or the breach of any warranty or representation of ICA hereunder.
3.03. At any time ICA may apply to any officer of the Trust for
instructions, and may consult with the Trust's legal counsel with respect to any
matter arising in connection with the services to be performed by ICA under this
Agreement, and ICA and its agents or subcontractors shall not be liable and
shall be indemnified by the Trust for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. ICA, its
agents and subcontractors shall be protected and indemnified in acting upon any
paper or document furnished by or on behalf of the Trust, reasonably believed to
be genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided ICA or its agents
or subcontractors by machine readable input, telex, CRT data entry or other
similar means authorized by the Trust, and shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Trust. ICA, its agents and subcontractors shall also be protected and
indemnified in recognizing stock 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 registrar, or of a
co-transfer agent or co-registrar.
3.04. In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
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3.05. 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.
3.06. In order that the indemnification provisions contained in this
Article 3 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. 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.
4. COVENANTS OF THE TRUST AND ICA
4.01. ICA shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable, provided such form
and manner of recordkeeping conforms to the applicable provisions of the 1934
Act and the 1940 Act. To the extent required by Section 31 of the 1940 Act and
the Rules thereunder, ICA agrees that all such records prepared or maintained by
ICA relating to the services to be performed by ICA hereunder are the property
of the Trust and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered promptly to the Trust on
and in accordance with its request.
4.02. ICA 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
as may be required by law.
4.03. In case of any requests or demands for the inspection of the
Shareholder records of the Fund, ICA will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. ICA 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 Trust 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 Trust.
4.04. The Trust covenants that it shall keep its Registration Statement
with respect to the Fund current and in effect; that such Registration Statement
shall contain all the information required by Form N-1A under the 1940 Act; that
such Registration Statement shall contain no material misstatements of fact or
fail to state any facts the omission of which would render the facts stated
misleading; and that the Trust shall be responsible for the payment of all
registration fees applicable to the Shares. The Trust agrees to notify ICA of
all states in which the Fund's Shares are registered for sale, any limitations
on the amount of Shares that can be sold in any state and any changes in the
status of a state registration.
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5. TERMINATION OF AGREEMENT
5.01. This Agreement shall become effective as of the date hereof and shall
remain in force for an indefinite period, provided however, that both parties to
this Agreement have the option to terminate the Agreement, without penalty, upon
thirty (30) days' prior written notice.
5.02. Should the Trust exercise its right to terminate, all expenses
incurred by ICA associated with the movement of records and material will be
borne by the Trust. Such expenses will include all out-of-pocket expenses and
the reasonable cost of all time incurred to train or consult with the successor
transfer agent with regard to the transfer of shareholder accounting and stock
transfer responsibilities.
6. AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended by the parties hereto only if such amendment
is in writing and signed by both parties.
7. MERGER OF 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.
8. 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):
To the Trust: To ICA:
Trust for Investment Managers ICA Fund Services Corp.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TRUST FOR INVESTMENT MANAGERS ICA FUND SERVICES CORP.
on behalf of the First Internet Fund
By: By:
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Title: Title:
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