Exhibit (h)(1)
AHA INVESTMENT FUNDS, INC.
TRANSFER AGENCY SERVICES AGREEMENT
AGREEMENT made as of the ___ day of _________, 2005, by and between AHA
Investment Funds, Inc., a Maryland Corporation, with its principal office and
place of business at ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"CLIENT"), and Forum Shareholder Services, LLC, a Delaware limited liability
company with its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("FORUM").
WHEREAS, the Client is registered under the 1940 Act (as defined below)
as an open-end management investment company that issues shares (the "SHARES");
and
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 Fund to develop
and implement an anti-money laundering program and monitor the operation of the
program and assess the effectiveness; and
WHEREAS, the regulations implementing Section 326 of the Act require
the Fund to implement a Customer Identification Program ("CIP") that contains
procedures for (1) verifying the identity of any person seeking to open an
account, to the extent reasonable and practicable, (2) maintaining records of
the information used to verify the person's identity, including name, address,
and other identifying information and (3) determining whether the person appears
on any lists of known or suspected terrorists or terrorist organizations
provided to the Fund by any governmental agency; and
WHEREAS, in order to assist its transfer agent clients with their
anti-money laundering compliance responsibilities under the Act and the Rule,
Forum has provided to the Fund for its 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 "Procedures") as well as a written CIP together
referred to as the "Procedures;" and
WHEREAS, the Fund desires to implement the Procedures as part of its
overall anti-money program and, subject to the terms of the Act and the Rule,
delegates to Forum the day-to-day operation of the Procedures on behalf of the
Fund; and
WHEREAS, the Client offers Shares in various series as listed in
Schedule 1 hereto (each such series, together with all other series subsequently
established by the Client and made subject to this Agreement in accordance with
Section 7.7 of this Agreement being herein referred to as a "FUND," and
collectively as the "FUNDS") and the Client offers shares of various classes of
each Fund as listed in Schedule 1 hereto (each such class together with all
other classes subsequently established by the Client in a Fund in accordance
with Section 7.7 of this Agreement being herein referred to as a "CLASS," and
collectively as the "CLASSES"); and
WHEREAS, the Client desires that Forum perform certain services for
each Fund and Class, and Forum is willing to provide those services 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 Client and Forum hereby agree as follows:
SECTION 1. DEFINITIONS; APPOINTMENT; DELIVERY OF DOCUMENTS
1.1 FREQUENTLY USED DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings:
(a) "1940 ACT" means the Investment Company Act of 1940, as amended.
(b) "AFFILIATE" means, with respect to any Person, any other Person that is
controlled by, controls, or is under common control with such Person; for
purposes hereof, "CONTROL" of a Person means (i) ownership of, or
possession of the right to vote, more than 25% of the outstanding voting
equity of that person or (ii) the right to control the appointment of the
board of directors, management or executive officers of that person.
(c) "AGREEMENT" means this Agreement and any appendices and schedules
attached hereto, in each case as they may be amended from time to time.
(d) "AUTHORIZED PERSON(S)" means the persons described or listed on
Schedule 2 hereto.
(e) "CLASS" and "CLASSES" have the meaning set forth in the preamble to
this Agreement.
(f) "CLIENT" has the meaning set forth in the preamble to this Agreement
and includes successors-in-interest; unless the context shall require
otherwise, references to the Client shall include any Funds or Classes
thereof.
(g) "EFFECTIVE DATE" means the date first set forth above.
(h) "GOVERNING BODY" means, for any entity, the Person or body of Persons
governing the operations of the entity under its Organic Documents (for
example, if the entity is a corporation, its board of directors).
(i) "FORUM" has the meaning set forth in the preamble to this Agreement and
includes successors-in-interest.
(J) "FUND" and "FUNDS" have the meaning set forth in the preamble to this
Agreement.
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(k) "INSTRUCTION" means any oral and written notice or statement directing
action or inaction, including any such notice or statement transmitted to
Forum (i) in electronic format by machine readable input, electronic mail,
CRT data entry or other similar means, or (ii) in person or by telephone,
telecopy, vocal telegram or similar means.
(l) "LAWS" means any statutes, rules and regulations of any governmental
authority and applicable judicial or regulatory interpretations thereof.
(m) "ORGANIC DOCUMENTS" means, for any entity, the documents pursuant to
which the entity was formed as a legal entity, as such documents may be
amended from time to time.
(n) "PARTIES" means the Client and Forum.
(o) "PERSON" means any natural person or incorporated or unincorporated
entity.
(p) "POLICIES AND PROCEDURES" means the written policies and procedures of
the Client in any way related to the Services, including any such policies
and procedures contained in the Organic Documents and the Prospectus.
(q) "PREDECESSOR RECORDS" has the meaning set forth in Section 2.9(b).
(r) "PROSPECTUS" has the meaning set forth in Section 2.4(a).
(s) "SEC" means the United States Securities and Exchange Commission and
any successor governmental authority.
(t) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(u) "SERVICES" means the services set forth in Appendix A.
(v) "SERVICES COMMENCEMENT DATE" means, with respect to any Fund or Class
thereof, (i) if the registration statement of the Fund or Class is
effective as of the Effective Date, then such Effective Date; (ii), if such
registration statement is not effective as of the Effective Date, then the
date such registration statement is declared effective; or (iii) such other
date as may be agreed in writing by the Parties.
(w) "SHAREHOLDER" means any Person that holds Shares of record.
(x) "SHARES" has the meaning set forth in the preamble to this Agreement.
Other capitalized terms used but not defined in this Section 1.1 shall have the
meanings set forth in this Agreement.
1.2 APPOINTMENT. The Client hereby appoints Forum to act as transfer agent and
dividend disbursing agent for the Funds for the period and on the terms set
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forth in this Agreement, and Forum hereby accepts such appointment and in
connection with such appointment agrees to provide the Services on the terms and
conditions set forth in this Agreement.
SECTION 2. SERVICES; OTHER RELATED TERMS AND CONDITIONS
2.1. SERVICES. Subject to the terms and conditions of this Agreement and under
the direction and control of the Governing Body, Forum shall provide the
Services.
2.2 OTHER SERVICES. Forum shall provide such other services and assistance
relating to the affairs of the Client as the Client may, from time to time,
reasonably request pursuant to mutually acceptable compensation and
implementation arrangements.
2.3 FORUM'S COMPLIANCE WITH LAWS.
(a) Forum shall comply in all material respects with all Laws applicable to
Forum's delivery of the Services.
(b) Nothing contained herein shall be construed to require Forum to perform
any service that could cause Forum to be deemed an investment adviser for
purposes of the 1940 Act or the Investment Advisers Act of 1940, as
amended, or that could cause a Fund to act in contravention of the Fund's
Prospectus or any provision of the 1940 Act.
(c) Except as specifically set forth in this Agreement to the contrary,
Forum assumes no responsibility for compliance by the Client with any Laws
applicable to the Client; and, notwithstanding any other provision of this
Agreement to the contrary, Forum assumes no responsibility under this
Agreement to Client or any other Person for compliance by the Client or
Forum with the Laws of any jurisdiction other than those of the United
States.
2.4 CERTAIN DOCUMENTS; CHANGES IN POLICIES AND PROCEDURES OR APPLICABLE LAW.
(a) Contemporaneous with or promptly after the Effective Date, the Client
shall deliver to Forum copies of the following documents: (i) the Client's
Organic Documents; (ii) the offering documents, prospectuses, private
placement memoranda, subscription agreements and/or other offering
documents for the Funds and Classes thereof (collectively, the
"PROSPECTUS"); (iii) a copy, certified by the secretary or other individual
or legal entity responsible for maintaining the official records of the
Client, of the resolution of its Governing Body appointing Forum and
authorizing the execution and delivery of this Agreement; and (iv) the
Client's Policies and Procedures.
(b) Client shall deliver to Forum as soon as is reasonably practical any
and all amendments to the documents required to be delivered under Section
2.4(a).
(c) Forum shall perform the Services in accordance with the Policies and
Procedures delivered to Forum pursuant to Section 2.4(a), provided that
with respect to any provision(s) of the Policies and Procedures that are
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delivered to Forum after the Effective Date, such provision(s) are
commercially reasonable. Notwithstanding the foregoing, in the event the
Client amends the Policies and Procedures or there is a change in Law
related to or affecting the Services, Forum need not begin performing any
new service(s), and need not perform any service(s) in a materially
different or more burdensome manner, except upon written agreement by Forum
and pursuant to mutually acceptable compensation agreements and Forum's
written approval of any amended Policies and Procedures, which approval
shall not be unreasonably withheld or delayed.
2.5. SERVICE DAYS. Nothing contained in this Agreement shall require Forum to
perform any functions or duties on any weekend day or on any other day on which
the Client does not accept subscriptions and redemptions of its Shares (a
"BUSINESS DAY"). Functions or duties normally scheduled to be performed on any
day that is not a Business Day shall be performed on, and as of, the next
Business Day, unless otherwise required by applicable Law.
2.6. RELIANCE ON INSTRUCTIONS, DOCUMENTS AND ADVICE.
(a) With respect to the subject matter of this Agreement, Forum may rely on
(i) with respect to any matter, advice or Instruction that it receives and
that it reasonably believes in good faith was transmitted by the Client's
Governing Body or an Authorized Person; or (ii) with respect to any factual
matter, any signature, Instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document of or presented by any Person (including
any authorized representative(s) of any predecessor service providers to
the Client).
(b) Notwithstanding any other provision of this Agreement to the contrary,
Forum shall have no duty or obligation to inquire into (i) the authenticity
of any statement, oral or written Instruction, resolution, signature,
request, letter of transmittal, certificate, opinion of counsel,
instrument, report, notice, consent, order, or any other document or
instrument that Forum reasonably believes in good faith to be genuine; or
(ii) the authority or lack thereof of any Person to represent or act as an
agent for any other Person, provided that Forum reasonably believes in good
faith that such authority exists, and, provided, further, that with respect
to Instructions of the Client, Forum may only rely on Instructions of the
Client's Governing Body or Authorized Persons.
(c) Forum may assume that any Instructions are not in any way inconsistent
with the Organizational Documents, the Prospectus, the Policies and
Procedures or any proceeding or resolution of the Client's Governing Body
or the Shareholders of the Client, unless and until Forum receives written
notice to the contrary from the Client's Governing Body or an Authorized
Person.
(d) Absent specific written notice to the contrary, Forum may assume that
Authorized Persons are authorized to deliver instructions relating to all
or any matter under this Agreement. The Client's Governing Body may at any
time (i) change the list of Authorized Persons or (ii) limit an Authorized
Person's authority. Forum shall not be deemed to have notice of any change
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of Authorized Persons or limitation of authority until receipt of written
notice thereof from the Client's Governing Body or from at least two
then-current (as reflected in Forum's records immediately prior to the
receipt of such notice) Authorized Persons.
(e) About any matter related to the Client or the Services, Forum may apply
to any Authorized Person for advice or Instructions; about any legal matter
related to the Services, Forum may request advice from counsel of its own
choosing (who may be counsel to the Client or to Forum); and about any
accounting or tax matter related to the Services, Forum may request advice
from the independent accountants of the applicable Fund or Class of the
Client. Any costs related to such advice or Instructions shall be borne by
the Client, except that Forum shall be responsible for costs related to
advice from its in-house or its external counsel or the in-house or
external counsel of any affiliate of Forum. In the event of any conflict
between advice or Instructions Forum receives from (i) any Authorized
Person or such independent accountant(s) and (ii) advice from counsel,
Forum may rely on advice from counsel.
(f) Nothing in this Section 2.6 shall be construed as imposing on Forum any
obligation to seek advice or Instructions, or, subject to Section 3.1(c),
to act in accordance with such advice or Instructions if and when received.
2.7. CERTAIN REPRESENTATIVE POWERS; OTHER ACTIVITIES.
(a) In the performance of the Services, Forum may use the name of the
Client and sign any necessary letters or other documents for and on behalf
of the Client.
(b) Forum may provide services similar to those provided under this
Agreement for any other Person on such terms as may be arranged with such
Person, and Forum shall not be required to disclose to the Client any fact
or thing that may come to the knowledge of Forum in the course of so doing.
(c) Forum may acquire, hold or deal with, for its own account or for the
account of any other Person, any shares or securities from time to time
issued by the Client or in which the Client is authorized to invest; and
Forum shall not be required to account to the Client for any profit arising
therefrom, except where such profit was generated based upon the
inappropriate use of nonpublic information related to the Funds or their
holdings.
2.8 COOPERATION WITH INDEPENDENT AUDITORS AND COUNSEL. Forum shall cooperate
with the independent auditor(s) and attorneys of the Client and shall take
reasonable action to make all necessary information related to the Services
available to such auditors and attorneys for the performance of their duties.
2.9 CERTAIN RESPONSIBILITIES OF THE CLIENT. In order to permit Forum to provide
the Services, the Client agrees to:
(a) Comply in all material respects with all Laws applicable to the Client;
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(b) Prior to the Services Commencement Date, deliver or cause to be
delivered to Forum all books, records and other documents relating to the
Client's prior operations and service providers, if any, that, in Forum's
reasonable opinion, are necessary for Forum properly to provide the
Services (collectively "PREDECESSOR RECORDS");
(c) Provide, and cause each other agent or service provider to the Client
to provide, to Forum all such information (and in such reasonable medium)
that Forum may reasonably request in connection with the Services and this
Agreement; and
(d) Deliver to Forum in advance of publication thereof any Prospectus or
amendment to a Prospectus in order to permit Forum and its agents to review
and comment upon, at Forum's discretion, those portions thereof that
describe Forum and Forum's duties and obligations under this Agreement,
including the indemnity provisions hereof, and the Client shall not make
any reference to Forum and such duties, obligations and indemnities in any
Prospectus without Forum's consent, which consent shall not be unreasonably
withheld or delayed.
SECTION 3. RECORDKEEPING; PROPRIETARY INFORMATION; CONFIDENTIALITY
3.1 CLIENT RECORDS; OWNERSHIP; INSPECTION; SUCCESSORS.
(a) Forum shall prepare and maintain on behalf of the Client the books and
records detailed in Appendix A and such other records as are agreed from
time to time in writing by Forum and the Client. The books and records
maintained by Forum shall be prepared, maintained and, subject to Section
3.1(d) below, preserved by Forum in such form, for such periods and in such
locations as may be required by applicable Law, including, without
limitation, Section 31 of the 1940 Act and Section 17(A) of the Securities
Exchange Act of 1934, as amended.
(b) The books and records maintained by Forum and any Predecessor Records
received by Forum pursuant to Section 2.9(b)(collectively, "CLIENT
RECORDS") in Forum's possession shall be the property of the Client. The
Client and the Client's authorized representatives shall have access to
such Client Records at all times during Forum's normal business hours. Upon
the reasonable advance request of the Client or such authorized
representatives, copies of any such Client Records shall be provided by
Forum to the Client or its authorized representatives.
(c) If Forum receives a request or demand from a third party to inspect any
Client Records, Forum will promptly notify the Client and secure
Instructions from the Client or an Authorized Person about such inspection
prior to permitting access. Forum shall abide by such Instructions for
granting or denying the inspection; provided, that Forum may grant the
inspection without Instructions or in contravention of specific
Instructions if Forum is advised by counsel to Forum that failure to do so
is substantially likely to result in liability to Forum; and provided,
further, that in such event, Forum shall promptly advise the Client of such
contrary advice, in advance of any actual inspection.
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(d) Upon termination of this Agreement, Forum shall, subject to payment of
all undisputed amounts due to Forum hereunder and at the expense and
direction of the Client, promptly transfer to Client or any successor
service provider all Client Records in the electronic or other medium in
which such material is then maintained by Forum.
3.2 PROPRIETARY INFORMATION OF EACH PARTY. Each party acknowledges that the
databases, computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals maintained by the other party on databases
under the control and ownership of the other party or a third party constitute
copyrighted, trade secret, or other proprietary information (collectively,
"PROPRIETARY INFORMATION") of substantial importance to the other party or the
third party. Each party agrees to treat all Proprietary Information as
proprietary to the other party and further agrees that it shall maintain as
confidential any Proprietary Information, except as may be provided under this
Agreement, and that breach by either party of this confidentiality obligation
would cause irreparable injury to the other party.
3.3 CONFIDENTIALITY.
(a) Each Party (for purposes of this Section 3.3, a "RECEIVING PARTY")
agrees to keep confidential all information disclosed by the other Party
(for purposes of this Section 3.3, a "DISCLOSING PARTY"), including,
without limitation all forms and types of financial, business, marketing,
operations, technical, economic, shareholder (solely with respect to the
Funds) and engineering information of the Disclosing Party, whether
tangible or intangible.
(b) Notwithstanding any provision of this Agreement to the contrary, the
Parties agree that the following information shall not be deemed
confidential information: (i) information that was known to the receiving
Party before receipt thereof from or on behalf of the Disclosing Party;
(ii) information that is disclosed to the Receiving Party by a third person
who has a right to make such disclosure, without any obligation of
confidentiality to the Party seeking to enforce its rights under this
Section 3; (iii) information that is or becomes generally known in the
mutual fund advisory and servicing business without violation of this
Agreement by the Receiving Party; or (iv) information that is independently
developed by the Receiving Party or its employees or affiliates without
reference to the Disclosing Party's information.
(c) Notwithstanding any provision of this Agreement to the contrary, Forum
may: (i) provide information to Forum's counsel and to Persons engaged by
Forum or the Client to provide services with respect to the Client (so long
as those persons are under a similar obligation of confidentiality with
Forum for that information as contained in this Section 3.3); (ii) provide
information consistent with the Procedures or with operating procedures
that are customary with respect to the Services in the industry; (iii)
identify the Client as a client of Forum for Forum's sales and marketing
purposes; and (iv) provide information as approved by an Authorized Person,
provided, that (A) such approval shall not be unreasonably withheld or
delayed, and (B) Forum may release information without approval of the
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Client if Forum is advised by counsel to Forum that failure to do so will
result in liability to Forum; and provided, further, that, in such event
Forum shall promptly advise the Client of such advice, in advance of any
actual release of information.
(d) Forum acknowledges that certain Shareholder information made available
by the Client to Forum or otherwise maintained by Forum under this
Agreement may be deemed nonpublic personal information under the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and other applicable privacy Laws (collectively,
"PRIVACY LAWS"). Forum agrees (i) not to disclose or use such information
except as required to carry out its duties under the Agreement or as
otherwise permitted by law in the ordinary course of business; (ii) to
limit access to such information to authorized representatives of Forum and
the Client; (iii) to establish and maintain reasonable physical, electronic
and procedural safeguards to protect such information; and (iv) to
cooperate with the Client and provide reasonable assistance in ensuring
compliance with such Privacy Laws to the extent applicable to either or
both of the Parties.
SECTION 4. RESPONSIBILITY OF FORUM; INDEMNIFICATION; OTHER LIABILITY-RELATED
MATTERS
4.1. RESPONSIBILITY OF FORUM; LIMITATIONS.
(a) Forum shall be under no duty to take any action under this Agreement
except as specifically set forth in this Agreement or as may be
specifically agreed to by Forum and the Client in a written amendment to
this Agreement.
(b) In performing the Services, Forum (i) shall act in good faith and shall
be obligated to exercise reasonable care and diligence; and (ii) may,
without limiting the generality of any other provision of this Agreement,
rely on Instructions, advice and information pursuant to Section 2.6;
(c) Notwithstanding anything in this Agreement to the contrary, Forum shall
be liable to the Client only for any damages arising out of Forum's failure
to perform its duties under this Agreement to the extent such damages were
caused solely and directly by Forum's willful misfeasance, bad faith,
negligence or reckless disregard of such duties.
(d) Forum shall not be liable for the delays or errors of Persons that
provide services to the Client or Forum (other than employees of Forum) or
of other Persons, including the failure by any such Person to provide
information to Forum when they have a duty to do so (irrespective of
whether that duty is owed specifically to Forum or a third party). Without
limiting the generality of the foregoing, Forum shall not be liable for the
actions of omissions of third parties engaged by Forum at the request of
the Client, a Fund or a Fund's investment adviser or distributor to provide
services to or for the benefit of the Client or a Fund ("Non-Discretionary
Subcontractors").
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(e) Notwithstanding anything in this Agreement to the contrary, the
cumulative liability of Forum to the Client for all losses, claims, suits,
controversies, breaches or damages for any cause whatsoever (including but
not limited to those arising out of or related to this Agreement), and
regardless of the form of action or legal theory, shall not exceed the
lesser of $100,000 or the fees received by Forum under this Agreement
during the 12 months immediately prior to the date of such loss or damage.
4.2 INDEMNIFICATION; NOTIFICATION OF CLAIMS.
(a) Notwithstanding anything in this Agreement to the contrary, Forum shall
not be responsible for, and the Client shall on behalf of each applicable
Fund or Class thereof, indemnify and hold harmless Forum, its employees,
directors, officers and managers and any person who controls Forum within
the meaning of section 15 of the Securities Act or section 20 of the
Securities Exchange Act of 1934, as amended, (for purposes of this Section
4.2, "INDEMNITEES") from and against, any and all losses, damages, costs,
charges, reasonable counsel fees, payments, liability and other expenses of
every nature and character (including, but not limited to, direct and
indirect reasonable reprocessing costs) arising out of or attributable to
all and any of the following (for purposes of this Section 4.2, a "CLAIM"):
(i) any action (or omission to act) of Forum or its agents taken in
connection with this Agreement; provided, that such action (or
omission to act) is taken in good faith and without willful
misfeasance, gross negligence or reckless disregard by Forum of
its duties and obligations under this Agreement;
(ii) any material breach of the Client's agreements, representations,
warranties, and covenants in Sections 2.9 and 5.2 of this
Agreement or in Appendix A;
(iii) the Client's lack of good faith or the Client's gross negligence
or willful misfeasance;
(iv) the reliance on or use by Forum or its agents or subcontractors
of information, records, documents or services which have been
prepared, maintained or performed by the Client or any other
person or firm on behalf of the Client, including but not limited
to any Predecessor Records provided pursuant to Section 2.9(b);
and
(v) the reliance on advice, Instructions, and other information, as
set forth in Section 2.6.
(b) Notwithstanding anything in this Agreement to the contrary, the Client
shall not be responsible for, and Forum shall indemnify and hold harmless
Client, its employees, directors, officers and managers and any person who
controls Forum within the meaning of section 15 of the Securities Act or
section 20 of the Securities Exchange Act of 1934, as amended, (for
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purposes of this Section 4.2, "INDEMNITEES") from and against, any and all
losses, damages, costs, charges, reasonable counsel fees, payments,
liability and other expenses of every nature and character (including, but
not limited to, direct and indirect reasonable reprocessing costs) arising
out of or attributable to Forum's lack of good faith, gross negligence or
willful misfeasance (for purposes of this Section 4.2, a "CLAIM"):
(c) In order that the indemnification provisions contained in this Section
4.2 shall apply, upon the assertion of a Claim for which the Client or
Forum (the "INDEMNITOR") MAY be required to indemnify an Indemnitee, the
Indemnitee must promptly notify the Indemnitor of such assertion, and shall
keep the Indemnitor advised with respect to all developments concerning
such Claim. The Indemnitor shall have the option to participate with the
Indemnitee in the defense of such Claim or to defend against said Claim in
its own name or in the name of the Indemnitee. The Indemnitee shall in no
case confess any Claim or make any compromise in any case in which the
Indemnitor may be required to indemnify it except with the Indemnitor's
prior written consent.
4.3 OTHER LIABILITY-RELATED MATTERS. Notwithstanding anything in this Agreement
to the contrary excepting Section 4.2 or as specifically set forth below:
(a) Neither Party shall be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including, without limitation,
acts of God; action or inaction of civil or military authority; public
enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities; insurrection; or
elements of nature;
(b) Neither Party shall be liable for any consequential, special or
indirect losses or damages suffered by the other Party, whether or not the
likelihood of such losses or damages was known by the Party;
(c) No affiliate, director, officer, employee, manager, shareholder,
partner, agent, counsel or consultant of either Party shall be liable at
law or in equity for the obligations of such Party under this Agreement or
for any damages suffered by the other Party related to this Agreement;
(d) No Shareholder or member of the Client's Governing Body may bring any
action under or in the name of the Client in connection with this Agreement
except as is specifically permitted under applicable Law;
(e) There are no third party beneficiaries of this Agreement;
(f) Each Party shall have a duty to mitigate damages for which the other
Party may become responsible;
(g) Except as expressly provided in this Agreement, Forum hereby disclaims
all representations and warranties, express or implied, made to the Client
or any other Person, including, without limitation, any warranties
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regarding quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom or
usage of trade), of any services or any goods provided incidental to
Services provided under this Agreement. Forum disclaims any warranty of
title or non-infringement except as otherwise set forth in this Agreement;
and
(h) The assets and liabilities of each Fund are separate and distinct from
the assets and liabilities of each other Fund, and 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; and in asserting
any rights or claims under this Agreement, Forum shall look only to the
assets and property of the Fund to which Forum's rights or claims relate in
settlement of such rights or claims.
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF FORUM. Forum represents and warrants to
the Client that:
(a) It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Delaware;
(b) It is empowered under applicable Laws and by its Organic Documents to
enter into this Agreement and perform its obligations under this Agreement;
(c) All requisite limited liability company proceedings have been taken to
authorize it to enter into this Agreement and perform its obligations under
this Agreement;
(d) It has access to the necessary facilities, equipment, and personnel to
perform its duties and obligations under this Agreement;
(e) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of Forum, enforceable against Forum 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; and
(f) It has in effect and will maintain all licenses, permits and other
authorizations necessary or appropriate for Forum to perform the Services.
(g) It will certify at least annually to the Fund that it has implemented
its anti-money laundering program, and that, subject to Section 2.4(c), it
(or its agent(s)) will perform the specific requirements of the Fund's CIP.
(h) The Fund hereby directs, and Forum acknowledges, that Forum shall (1)
permit federal regulators access to such information and records maintained
by Forum and relating to Forum's implementation of the Procedures on behalf
of the Fund, as they may reasonably request, and (2) permit such federal
regulators reasonably to inspect Forum's implementation of the Procedures
on behalf of the Fund.
-12-
5.2 REPRESENTATIONS AND WARRANTIES OF THE CLIENT. The Client represents and
warrants to Forum that:
(a) It is duly organized and existing and in good standing under the laws
of the jurisdiction of its organization;
(b) It is empowered under applicable Laws and by its Organic Documents to
enter into this Agreement and perform its obligations under this Agreement;
(c) All requisite corporate or similar proceedings have been taken to
authorize it to enter into this Agreement and perform its obligations under
this Agreement;
(d) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Client, enforceable against the Client
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;
(e) With respect to all Shares from time to time being offered for sale to
the public, a registration statement under the Securities Act (the
"REGISTRATION STATEMENT") is currently effective or will be effective at
the time of sale, and will remain effective, and all appropriate Federal
and State securities law filings have been made and will continue to be
made;
(f) The Prospectuses and, if Shares are offered for sale to the public,
Registration Statement, have been, and any amendment thereto will be, as
the case may be, prepared in conformity with the requirements of the
Securities Act and the 1940 Act and the rules and regulations thereunder,
and all statements of fact contained or to be contained in the Registration
Statement or Prospectuses are or will be true and correct in all material
respects at the time indicated or on the effective date, as the case may
be; and neither the Registration Statement nor any Prospectus, when they
shall become effective or be authorized for use, will include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading to a purchaser of Shares, except that no representation is made
with respect to information furnished to the Client by Forum with the
written approval of Forum expressly for use in the Registration Statement
or Prospectus; and
(g) It will from time to time amend its Registration Statement or
Prospectuses as, in the light of then-current and then-prospective
developments, shall, in the opinion of its counsel, be necessary in order
to have the Registration Statement and Prospectuses at all times contain
all material facts required to be stated therein or necessary to make any
statements therein not misleading to a purchaser of Shares;
-13-
SECTION 6. COMPENSATION AND EXPENSES
6.1 COMPENSATION. In consideration of the Services provided by Forum pursuant to
this Agreement, with respect to the Funds and each Class thereof the Client
shall pay Forum the fees as from time to time set forth in a separate written
agreement between Forum and the Client (the "FEE SCHEDULE").
6.2 EXPENSES.
(a) Forum shall be responsible for expenses incurred in providing office
space, equipment, and personnel as may be necessary or convenient to
provide the Services, including the compensation of any Forum employee who
serves as an officer of the Client.
(b) In connection with the Services, the Client, on behalf of each Fund and
Class thereof, agrees to reimburse Forum for its reasonable out-of-pocket
expenses as listed in the Fee Schedule.
(c) Notwithstanding any other provisions of this Agreement to the contrary,
the Client is responsible for and assumes the obligation for payment (or
reimbursement to Forum) of all Client expenses, including those listed
below:
(i) the fees and expenses payable under the Client's various services
agreements;
(ii) expenses of issue, repurchase and redemption of Shares;
(iii) interest, taxes and brokerage fees and commissions;
(iv) premia for D&O and E&O insurance and for fidelity and other
bonds;
(v) costs of membership in trade associations;
(vi) costs of forming the Client and maintaining its existence;
(vii) expenses of meetings of shareholders and proxy solicitations
therefor;
(viii) fees and expenses of the Client's Governing Body and its
committees, officers, employees and corporate meetings,
(ix) SEC, state, territory or foreign securities laws registration
fees and related expenses; and
(x) fees and expenses payable in accordance with any distribution,
service or similar plan or agreement related to similar matters.
-14-
6.3 ACCRUAL AND PAYMENT OF FEES AND EXPENSES; EXTRAORDINARY AUDITS.
(a) All fees and reimbursable expenses (or an estimate thereof) shall be
accrued daily by the Client. Fixed or determinable fees shall be paid
monthly in advance on the first day of each calendar month. Variable fees
(such as asset-based fees) and reimbursable expenses shall be payable
monthly in arrears on the first day of each calendar month for services
performed or expenses incurred during the prior calendar month.
(b) If fees begin to accrue in the middle of a month or if this Agreement
terminates before the end of any month, all fees for the period from that
date to the end of that month or from the beginning of that month to the
date of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the
effectiveness or termination occurs.
(c) Upon the termination of this Agreement either in its entirety or with
respect to a Fund or Class, the Client shall pay to Forum such fees as
shall be payable prior to the effective date of termination and shall also
pay any applicable termination costs pursuant to Section 7.4 of the
Agreement.
(d) The Client, on behalf of the applicable Fund or Class thereof, shall
reimburse Forum for all reasonably incurred expenses and employee time
attributable to (i) any review of the Client's accounts and records by the
Client's independent accountants or any regulatory body outside of routine
and normal periodic reviews and (ii) any material, non-routine Services.
6.4 OTHER COMPENSATION. Notwithstanding anything in this Agreement to the
contrary, Forum and its affiliates may receive compensation or reimbursement
from the Client with respect to any services not included under this Agreement.
SECTION 7. EFFECTIVENESS, DURATION, TERMINATION; ASSIGNMENT; ADDITIONAL FUNDS
AND CLASSES
7.1 EFFECTIVENESS. This Agreement shall become effective on the Effective Date,
and shall become effective with respect to each Fund or Class thereof on the
Services Commencement Date with respect to such Fund or Class.
7.2 DURATION. This Agreement shall have a minimum term of two years from the
Effective Date (the "BASE TERM") and shall thereafter continue in effect until
terminated, either in its entirety or with respect to a Fund, as applicable.
7.3 TERMINATION. This Agreement may be terminated at any time, either in its
entirety or with respect to a Fund, without the payment of any penalty:
(a) with or without cause, at any time after the expiration of the Base
Term, by either Party on at least sixty (60) days' written notice to the
other Party.
-15-
(b) for cause, and before or after the expiration of the Base Term, by the
non-breaching Party on at least thirty (30) days' written notice thereof to
the other Party, if the other party has materially breached any of its
obligations hereunder including, with respect to Forum, the failure by
Forum to act consistently with the standard of care set forth in Section
4.1(b); provided, however, that (i) the termination notice shall describe
the breach, and (ii) no such termination shall be effective if, with
respect to any breach that is capable of being cured prior to the date set
forth in the termination notice, the breaching Party has cured such breach
to the reasonable satisfaction of the non-breaching Party.
(c) by the Client with respect to a Fund or a Class, if the operations of
the Fund or Class are wound up and discontinued, and the assets of such
Fund or Class are distributed to the Shareholders after the Client's
Governing Body determines that it no longer is in the Shareholders' best
interest to continue the operations of the Fund or Class; provided,
however, that the Client shall be required to pay a Default Payment (as
defined below) if
(i) such distribution to Shareholders is incident to a merger,
consolidation or reorganization to which the Fund or Class is a
party that (A) is treated as a tax-free reorganization pursuant
to Section 368 of the Internal Revenue Code of 1986, as amended
or (B) as a result of which the Fund or Class is the accounting
successor under generally accepted accounting principles (a "FUND
REORGANIZATION"); and
(ii) after the Fund Reorganization, Forum does not continue to provide
services with respect to the Fund or Class, or any successor fund
or class, pursuant to this Agreement or any substantially similar
agreement.
(d) by the Client with respect to a Fund or a Class, if the
operations of the Fund or Class are merged into another fund or
class and Forum is the transfer agent or sub-transfer agent for
such successor fund or class.
7.4 DEFAULT PAYMENT. The Client agrees that if the Client terminates this
Agreement, either in its entirety or with respect to a Fund or Class, prior to
the expiration of the Base Term then the Client shall be in default of this
Agreement, unless the Agreement is properly terminated by the Client (x) for
"cause" pursuant to Section 7.3(b) after the notice and cure period provided
therein, (y) because the Fund or Class is being liquidated under the
circumstances described in Section 7.3(c) and such liquidation is not incident
to a Fund Reorganization or (z) because the Fund or Class is being merged into
another fund or class as described in Section 7.3(d). Inasmuch as a default by
Client will cause substantial damages to Forum and because of the difficulty of
estimating the damages that will result, the Client agrees to pay to Forum, as
liquidated damages for such default, an amount equal to (i) the average monthly
fees payable to Forum pursuant to Section 6.1 of this Agreement with respect to
the affected Funds or Classes for the last six (6) months preceding default,
multiplied by (ii) the number of full and partial months remaining until the
expiration of the Base Term (the "Default Payment"). The Parties agree that this
sum is a reasonable forecast of probable actual loss to Forum and that this sum
is agreed to as liquidated damages and not as a penalty.
-16-
7.5 SURVIVAL. The provisions of Sections 2.8, 3.1(d), 3.2, 3.3, 4, 6.3(c), 7 and
8 shall survive any termination of this Agreement.
7.6 ASSIGNMENT. Except as otherwise provided in this Agreement, neither this
Agreement nor any rights or obligations under this Agreement may be assigned by
any 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. Forum may, without further consent on the part
of the Client, (i) assign this agreement to any affiliate of Forum or (ii)
subcontract for the performance hereof with any entity, including an affiliate
of Forum; provided, that, subject to Section 4.1(d) with respect to
Non-Discretionary Subcontractors, Forum shall be as fully responsible to the
Client for the acts and omissions of any subcontractor as Forum is for its own
acts and omissions; and provided further, that, Forum may not subcontract any
material part of its duties hereunder without Client's prior written consent,
not to be unreasonably withheld or delayed.
7.7 ADDITIONAL FUNDS AND CLASSES.
(a) In the event that the Client requests Forum to provide services with
respect to one or more additional funds and/or classes of the Client after
the Effective Date, such funds and/or classes shall become Funds and/or
Classes under this Agreement for all purposes hereof upon the execution of
a joinder to this Agreement by the Client and Forum, which joinder shall
specify such Funds and/or Classes and the compensation due Forum for
providing Services with respect thereto.
(b) In the event that after the Effective Date the Client winds up one or
more Funds and/or Classes or otherwise terminates this Agreement with
respect to a Fund and its Classes, such Fund shall from the date of such
winding up or termination no longer be deemed a Fund under this Agreement,
provided, that the Client shall remain obligated pursuant (i) Section 6 to
make any payments for obligations incurred through the date of termination
respecting such Fund and/or Class and (ii) pursuant to Section 7.4, if
applicable.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by the
Parties; provided, that (i) the Client may amend Schedule 2 as permitted by
Section 2.6(d); and (ii) the Client and/or Forum may, as a result of the
addition or termination of a Fund or Class hereunder as contemplated by Section
7.7, amend Schedule 1 as permitted by Section 7.7.
8.2 GOVERNING OF LAW. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the Laws of the State of
Delaware, without giving effect to the conflicts of laws, principles and rules
thereof.
-17-
8.3 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.
8.4 COUNTERPARTS. This Agreement may be executed by the Parties hereto in any
number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
8.5 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 unaffected, 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.
8.6 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.
8.7 NOTICES AND OTHER COMMUNICATIONS; ELECTRONIC RECORDS.
(a) Notices, requests, instructions and communications related to matters
described in Sections 7.1 to 7.6 of this Agreement shall be delivered in
writing as set forth below:
If to Forum:
------------
Forum Shareholder Services, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Legal Department
If to Client:
------------
▇▇▇▇▇▇▇ ▇▇▇, Esq.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Fax:
Notices received by the Parties at such addresses, or at such other
principle business addresses as they shall specify in writing, shall be
deemed to have been properly given.
(b) Other notices between the Parties and their agents and employees may be
sent in person, by telecopy, by mail or overnight courier, or through
electronic messages at such addresses as shall be specified by the Parties
or their agents.
-18-
(c) This Agreement and electronic signatures and records delivered and
maintained under the Agreement shall be effective to the fullest extent
permitted by Law, provided that references in this Agreement to written
approval or approval in writing of either Party shall be restricted to a
writing executed by a then-current executive officer of such Party. Each
Party agrees to maintain a copy of this Agreement and any amendments to
this Agreement for its records.
8.8 INTERPLEADER. In the event of a dispute about any funds of the Client held
by Forum from time to time under this Agreement, Forum or its agents may
commence an action in interpleader and pay the disputed funds into a court of
competent jurisdiction, and the Client shall reimburse Forum for its reasonable
costs and expenses related to any such action in interpleader.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-19-
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
officers or representatives, as of the day and year first above written.
AHA INVESTMENT FUNDS, INC.
By:
--------------------------------------------------
Authorized Officer
FORUM SHAREHOLDER SERVICES, LLC
By:
--------------------------------------------------
Director
LIST OF SCHEDULES AND APPENDICES THAT ARE PART OF THIS AGREEMENT:
Schedule 1 Funds and Classes of the Client
----------
Schedule 2 Authorized Persons
----------
Appendix A Services
----------
-20-
TRANSFER AGENCY SERVICES AGREEMENT
SCHEDULE 1
FUNDS AND CLASSES OF THE CLIENT
AS OF THE EFFECTIVE DATE:
--------------------------------------------------------------------------------------------------------------------
FUNDS CLASSES
--------------------------------------------------------------------------------------------------------------------
AHA LIMITED MATURITY FIXED INCOME FUND Institutional Share Class, A Share Class
--------------------------------------------------------------------------------------------------------------------
AHA FULL MATURITY FIXED INCOME FUND Institutional Share Class, A Share Class
--------------------------------------------------------------------------------------------------------------------
AHA BALANCED FUND Institutional Share Class
--------------------------------------------------------------------------------------------------------------------
AHA DIVERSIFIED EQUITY FUND Institutional Share Class, A Share Class
--------------------------------------------------------------------------------------------------------------------
AHA SOCIALLY RESPONSIBLE EQUITY FUND Institutional Share Class
--------------------------------------------------------------------------------------------------------------------
- Schedule 2- Schedule 1 page 1 -
TRANSFER AGENCY SERVICES AGREEMENT
SCHEDULE 2
AUTHORIZED PERSONS
1. AUTHORIZED PERSONS:
In addition to the officers (including assistant officers) of the Client, the
following persons are authorized to give Instructions to Forum with respect to
this Agreement:
--------------------------------------------------------------------------------------------------------------------
NAME TITLE
--------------------------------------------------------------------------------------------------------------------
Savi Pai Chief Legal Officer
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ President
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Treasurer
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Secretary
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CCM Advisors, LLC Financial Analyst
--------------------------------------------------------------------------------------------------------------------
2. CHANGE IN AUTHORIZED PERSONS
Any change in Authorized Persons shall only be made in accordance with Section
2.6(d) of the Agreement.
- Schedule 2 page 1 -
TRANSFER AGENCY SERVICES AGREEMENT
APPENDIX A
SERVICES
[SEE DOCUMENT SEPARATELY PROVIDED]
- Appendix B
- Page 1 -