TRANSFER AGENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into on this third day of
October, 1995, by and between ▇▇▇▇▇▇▇▇ Funds, Inc. (hereinafter
referred to as the "Fund") and Firstar Trust Company, a
corporation organized under the laws of the State of Wisconsin
(hereinafter referred to as the "Agent").
WHEREAS, the Fund is an open-ended management investment
company which is registered under the Investment Company Act of
1940; and
WHEREAS, the Agent is a trust company and, among other things,
is in the business of administering transfer and dividend
disbursing agent functions for the benefit of its customers;
NOW, THEREFORE, the Fund and the Agent do mutually promise and
agree as follows:
1. Terms of Appointment; Duties of the Agent
Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints the Agent to act
as transfer agent and dividend disbursing agent.
The Agent shall perform all of the customary services of a
transfer agent and dividend disbursing agent, and as relevant,
agent in connection with accumulation, open account or similar
plans (including without limitation any periodic investment plan
or periodic withdrawal program), including but not limited to:
A. Receive orders for the purchase of shares, with prompt
delivery, where appropriate, of payment and supporting
documentation to the Fund's custodian;
B. Process purchase orders and issue the appropriate number of
certificated or uncertificated shares with such uncertificated
shares being held in the appropriate shareholder account;
C. Process redemption requests received in good order and,
where relevant, deliver appropriate documentation to the
Fund's custodian;
D. Pay monies upon receipt from the Fund's custodian, where
relevant in accordance with the instructions of redeeming
shareholders;
E. Process transfers of shares in accordance with the
shareowner's instructions;
F. Process exchanges between funds within the same family of
funds;
G. Issue and/or cancel certificates as instructed; replace
lost, stolen or destroyed certificates upon receipt of
satisfactory indemnification or surety bond;
H. Prepare and transmit payments for dividends and
distributions declared by the Fund;
I. Make changes to shareholder records, including, but not
limited to, address changes in plans (i.e., systematic
withdrawal, automatic investment, dividend reinvestment,
etc.);
J. Record the issuance of shares of the Fund and maintain,
pursuant to Securities Exchange Act of 1934 Rule 17ad-10(e), a
record of the total number of shares of the Fund which are
authorized, issued and outstanding;
K. Prepare shareholder meeting lists and, if applicable, mail,
receive and tabulate proxies;
L. Mail shareholder reports and prospectuses to current
shareholders;
M. Prepare and file U.S. Treasury Department forms 1099 and
other appropriate information returns required with respect to
dividends and distributions for all shareholders;
N. Provide shareholder account information upon request and
prepare and mail confirmations and statements of account to
shareholders for all purchases, redemptions and other
confirmable transactions as agreed upon with the Fund; and
O. Provide a Blue Sky System which will enable the Fund to
monitor the total number of shares sold in each state. In
addition, the Fund shall identify to the Agent in writing
those transactions and assets to be treated as exempt from
the Blue Sky reporting to the Fund for each state. The
responsibility of the Agent for the Fund's Blue Sky state
registration status is solely limited to the initial
compliance by the Fund and the reporting of such transactions
to the Fund.
2. Compensation
The Fund agrees to pay the Agent for performance of the duties
listed in this Agreement; the fees and out-of-pocket expenses
include, but are not limited to the following: printing,
postage, forms, stationery, record retention, mailing,
insertion, programming, labels, shareholder lists and proxy
expenses.
These fees and reimbursable expenses may be changed from time
to time subject to mutual written agreement between the Fund and
the Agent.
The Fund agrees to pay all fees and reimbursable expenses
within ten (10) business days following the mailing of the
billing notice.
3. Representations of Agent
The Agent represents and warrants to the Fund that:
A. It is a trust company duly organized, existing and in good
standing under the laws of Wisconsin;
B. It is a registered transfer agent under the Securities
Exchange Act of 1934 as amended.
C. It is duly qualified to carry on its business in the state
of Wisconsin;
D. It is empowered under applicable laws and by its charter and
bylaws to enter into and perform this Agreement;
E. All requisite corporate proceedings have been taken to
authorize it to enter and perform this Agreement; and
F. It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
G. It will comply with all applicable requirements of the
Securities Act of 1933 and the Securities Exchange Act of
1934, as amended, the Investment Company Act of 1940, as
amended, and any laws, rules, and regulations of governmental
authorities having jurisdiction.
4. Representations of the Fund
The Fund represents and warrants to the Agent that:
A. The Fund is an open-ended diversified investment company
under the Investment Company Act of 1940;
B. The Fund is a corporation organized, existing, and in good
standing under the laws of Maryland;
C. The Fund is empowered under applicable laws and by its
Corporate Charter and bylaws to enter into and perform this
Agreement;
D. All necessary proceedings required by the Corporate Charter
have been taken to authorize it to enter into and perform this
Agreement;
E. The Fund will comply with all applicable requirements of the
Securities Act of 1933 and the Securities Exchange Act of
1934, as amended, the Investment Company Act of 1940, as
amended, and any laws, rules and regulations of governmental
authorities having jurisdiction; and
F. A registration statement under the Securities Act of 1933 is
currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue
to be made, with respect to all shares of the Fund being
offered for sale.
5. Covenants of Fund and Agent
The Fund shall furnish the Agent a certified copy of the
resolution of the Board of Directors of the Fund authorizing
the appointment of the Agent and the execution of this
Agreement. The Fund shall provide to the Agent a copy of the
Corporate Charter, bylaws of the Corporation and all amendments.
The Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem
advisable. To the extent required by Section 31 of the
Investment Company Act of 1940, as amended, and the rules
thereunder, the Agent agrees that all such records prepared or
maintained by the Agent relating to the services to be performed
by the Agent hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such
section and rules and will be surrendered to the Fund on and in
accordance with its request.
6. Indemnification; Remedies Upon Breach
The Agent shall exercise reasonable care in the performance of
its duties under this Agreement. The Agent shall not be liable
for any error of judgment or mistake of law or for any loss
suffered by the Fund in connection with matters to which this
Agreement relates, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies
beyond the Agent's control, except a loss resulting from the
Agent's refusal or failure to comply with the terms of this
Agreement or from bad faith, negligence, or willful misconduct
on its part in the performance of its duties under this
Agreement. Notwithstanding any other provision of this
Agreement, the Fund shall indemnify and hold harmless the Agent
from and against any and all claims, demands, losses, expenses,
and liabilities (whether with or without basis in fact or law)
of any and every nature (including reasonable attorneys' fees)
which the Agent may sustain or incur or which may be asserted
against the Agent by any person arising out of any action taken
or omitted to be taken by it in performing the services
hereunder (i) in accordance with the foregoing standards, or
(ii) in reliance upon any written or oral instruction provided
to the Agent by any duly authorized officer of the Fund, such
duly authorized officer to be included in a list of authorized
officers furnished to the Agent and as amended from time to time
in writing by resolution of the Board of Directors of the Fund.
Further, the Fund will indemnify and hold the Agent harmless
against any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand, action, or suit as a result of
the negligence of the Fund or the principal underwriter (unless
contributed to by the Agent's breach of this Agreement or other
Agreements between the Fund and the Agent, or the Agent's own
negligence or bad faith); or as a result of the Agent acting
upon telephone instructions relating to the exchange or
redemption of shares received by the Agent and reasonably
believed by the Agent under a standard of care customarily used
in the industry to have originated from the record owner of the
subject shares; or as a result of acting in reliance upon any
genuine instrument or stock certificate signed, countersigned,
or executed by any person or persons authorized to sign,
countersign, or execute the same.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, the Agent
shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues
beyond the Agent's control. The Agent will make every
reasonable effort to restore any lost or damaged data and
correct any errors resulting from such a breakdown at the
expense of the Agent. The Agent agrees that it shall, at all
times, have reasonable contingency plans with appropriate
parties, making reasonable provision for emergency use of
electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Fund shall be
entitled to inspect the Agent's premises and operating
capabilities at any time during regular business hours of the
Agent, upon reasonable notice to the Agent.
Regardless of the above, the Agent reserves the right to
reprocess and correct administrative errors at its own expense.
In order that the indemnification provisions contained in this
section shall apply, it is understood that if in any case the
Fund may be asked to indemnify or hold the Agent harmless, the
Fund shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further
understood that the Agent will use all reasonable care to notify
the Fund promptly concerning any situation which presents or
appears likely to present the probability of such a claim for
indemnification against the Fund. The Fund shall have the
option to defend the Agent against any claim which may be the
subject of this indemnification. In the event that the Fund so
elects, it will so notify the Agent and thereupon the Fund shall
take over complete defense of the claim, and the Agent shall in
such situation initiate no further legal or other expenses for
which it shall seek indemnification under this section. The
Agent shall in no case confess any claim or make any compromise
in any case in which the Fund will be asked to indemnify the
Agent except with the Fund's prior written consent.
The Agent shall indemnify and hold the Fund harmless from and
against any and all claims, demands, losses, expenses, and
liabilities (whether with or without basis in fact or law) of
any and every nature (including reasonable attorneys' fees)
which may be asserted against the Fund by any person arising out
of any action taken or omitted to be taken by the Agent as a
result of the Agent's refusal or failure to comply with the
terms of this Agreement, its bad faith, negligence, or willful
misconduct.
7. Confidentiality
The Agent agrees on behalf of itself and its employees to treat
confidentially all records and other information relative to the
Fund and its shareholders and shall not be disclosed to any
other party, except after prior notification to and approval in
writing by the Fund, which approval shall not be unreasonably
withheld and may not be withheld where the Agent may be exposed
to civil or criminal contempt proceedings for failure to comply
after being requested to divulge such information by duly
constituted authorities.
The ________________________ is authorized to issue separate
classes of shares of beneficial interest representing interests
in separate investment portfolios. The parties intend that each
portfolio established by the trust, now or in the future, be
covered by the terms and conditions of this agreement.
8. Records
The Agent shall keep records relating to the services to be
performed hereunder, in the form and manner, and for such period
as it may deem advisable and is agreeable to the Fund but not
inconsistent with the rules and regulations of appropriate
government authorities, in particular, Section 31 of The
Investment Company Act of 1940 as amended (the "Investment
Company Act"), and the rules thereunder. The Agent agrees that
all such records prepared or maintained by The Agent relating to
the services to be performed by the Agent hereunder are the
property of the Fund and will be preserved, maintained, and made
available with such section and rules of the Investment Company
Act and will be promptly surrendered to the Fund on and in
accordance with its request.
9. Wisconsin Law to Apply
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the state
of Wisconsin.
10. Amendment, Assignment, Termination and Notice
A. This Agreement may be amended by the mutual written consent
of the parties.
B. This Agreement may be terminated upon ninety (90) day's
written notice given by one party to the other.
C. This Agreement and any right or obligation hereunder may not
be assigned by either party without the signed, written
consent of the other party.
D. Any notice required to be given by the parties to each other
under the terms of this Agreement shall be in writing,
addressed and delivered, or mailed to the principal place of
business of the other party. If to the agent, such notice
should to be sent to:
Firstar Trust Company
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Fund, such notice should be sent to:
E. In the event that the Fund gives to the Agent its written
intention to terminate and appoint a successor transfer agent,
the Agent agrees to cooperate in the transfer of its duties
and responsibilities to the successor, including any and all
relevant books, records and other data established or
maintained by the Agent under this Agreement.
F. Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records
and material will be paid by the Fund.
▇▇▇▇▇▇▇▇ Funds, Inc. Firstar Trust Company
By: ___________________________ By: _____________________________
Attest: _______________________ Attest: _________________________
Assistant Secretary