BANK AGENCY AGREEMENT
We, ALPS Mutual Funds Services, Inc., are distributors of First Funds. You
____________________ are a wholly-owned subsidiary or division of
_________________ ("Bank") and desire to make Portfolio shares available to your
bank customers upon the following terms and conditions:
1. As used herein the following terms shall have the meaning hereinafter set
forth (unless a different meaning is plainly required by the context):
(a) "Funds" shall mean the open-end investment companies, series, or
(in the case of companies or series offering multiple classes of shares) classes
of one or more of the foregoing, the shares of which from time to time shall be
offered by us as principal underwriter to you hereunder and which are designated
by us as such by telephonic or written notice to you. This Agreement shall apply
only to such companies, series, or classes so designated and only such
companies, series or classes shall be considered to be Funds hereunder. Until
further notice in writing from us to you, such Funds are the following series of
First Funds: U.S. Treasury Money Market Portfolio, U.S. Government Money Market
Portfolio, Municipal Money Market Portfolio, Cash Reserve Portfolio, Growth &
Income Portfolio, Bond Portfolio, Intermediate Bond Portfolio, Capital
Appreciation Portfolio and Tennessee Tax-Free Portfolio.
(b) "Portfolio" shall mean any one of the Funds.
(c) "Prospectus" shall mean a Portfolio's prospectus, statement of
additional information, any supplements thereto current at the time of any
action described herein.
2. (a) In respect of all sales of Portfolio shares to your customers for
which you act as agent, (i) such shares shall be sold at the applicable public
offering price, giving effect to cumulative or quantity discounts or other
purchase programs, plans or services as described in the Prospectus of the
Portfolio or class thereof whose shares are being sold and you shall transmit
payment for such shares in accordance with paragraph 3(a) below; (ii) your
customers' transactions will be executed only upon your authorization, and on
all such transactions you shall be acting solely as agent, upon the order and at
the request of your customers, without recourse to you, and such transactions
shall be for the account of your customers and not for your account; (iii) your
compensation for acting as agent with respect to sales shall be as set forth in
the applicable schedule issued and in effect at the time of the sale or as set
forth in the Prospectus. Such compensation schedules are subject to change or
discontinuance by us from time to time as set forth in paragraph 7 below.
(b) In the case of a Portfolio or class thereof which has adopted a
Distribution and Service Plan pursuant to Rule 12b-1 under the Investment
Company Act of 1940 (a "Plan"), and subject to applicable law, we may elect from
time to time to make service payments to you under such Plan. In the case of a
Portfolio that has no currently effective Plan, we, to the extent permitted by
applicable law, may elect to make service payments to you from our own funds for
services which may include, without limitation, changing client dividend
options, account designations and addresses; processing purchases and
redemptions on behalf of clients, including automatic dividend reinvestment
requests and automatic investment and redemption of client account cash
balances; arranging for bank wires; providing periodic statements of account or
subaccounting services to clients; and such other services or information as we
or your clients may reasonably request. Any such service payments shall be made
for shareholder servicing and shall be in the amount and manner set forth in the
applicable schedule of service payments issued by us and then in effect or as
set forth in the Prospectus. Such schedule of service payments may be changed or
discontinued by us from time to time and shall be in effect with respect to a
Portfolio which has a Plan only so long as such Portfolio's Plan remains in
effect.
(c) In the event that Article III, Section 26 of the NASD Rules of Fair
Practice preclude any Portfolio or class thereof from imposing a sales charge
(as defined in that Section) or any portion thereof, then you shall not be
entitled to any payments from us hereunder from the date that the Portfolio or
class thereof discontinues or is required to discontinue imposition of some or
all of its sales charges. If the Portfolio or class thereof resumes imposition
of some or all of its sales charge, you will be entitled to payments hereunder
on the same terms as the Portfolio extends to us.
3. (a) The placing of orders with us shall be governed by instructions
which we shall issue from time to time. Payment for shares shall be made in
accordance with such instructions in New York Clearing House funds received by
us within five business days (as defined in each Portfolio's Prospectus) after
our acceptance of the order. If such payment is not received by us, we reserve
the right, without notice, forthwith to cancel the sale, or, at our option to
sell the shares ordered back to the issuing Portfolio, in which latter case, we
may hold you responsible for any loss, including loss of profit, suffered by us
as a result of your failure to make payment as aforesaid. You may deduct the
agency compensation due you under paragraph 2(a) above prior to payment for
shares purchased through you.
(b) You appoint the transfer agent for each Portfolio as your agent to
execute customers' purchase, sale, transfer, or redemption (each hereinafter a
"Transaction") of Portfolio shares in accordance with the terms and provisions
of any account, program, plan or service established or used by your customers
and to confirm each such Transaction to your customers on your behalf on a fully
disclosed basis, and at the time of the Transaction, you guarantee the legal
capacity of your customers and any co-owners of such shares so transacting in
such shares.
(c) You may instruct a Portfolio's transfer agent to register shares
purchased in your name and account as nominee for your customers, in which event
all Prospectuses, proxy statements, periodic reports and other printed material
will be sent to you and all confirmations and other communications to
shareholders will be transmitted to you. You shall be responsible for forwarding
such printed material, confirmations and communications, or the information
contained therein, to all customers for whom you hold such shares as nominee.
However, we, the Portfolios' transfer agent, or the Portfolios shall be
responsible for the reasonable costs associated with your forwarding such
printed material, confirmations and communications and shall reimburse you in
full for such costs. You shall also be responsible for complying with all
reporting and tax withholding requirements with respect to the customers for
whose accounts you are holding such shares. With respect to customers other than
such customers, you shall provide us with all information (including, without
limitation, certification of taxpayer identification numbers and back-up
withholding instructions) necessary or appropriate for us to comply with legal
and regulatory reporting requirements.
4. Upon request, we will furnish you a reasonable number of copies of the
Prospectus of each of the Portfolios and the printed information referred to in
paragraph 6 below issued as supplements thereto.
5. (a) You represent that you either (i) are registered as a securities
broker/dealer with the Securities and Exchange Commission ("SEC") and are and
will remain a member in good standing of the National Association of Securities
Dealers, Inc. ("NASD"), and agree to abide by all of its rules and regulations
including its Rules of Fair Practice (reference is hereby specifically made to
Section 26, Article III, of the Rules of Fair Practice of the NASD, which is
incorporated herein as if set forth in full), and you further agree to comply
with all applicable state and federal laws and rules and regulations of
regulatory agencies having jurisdiction; or (ii) you are a bank as defined in
Section 3(a)(6) of the Securities Exchange Act of 1934, as amended, and are duly
authorized to engage in the Transactions to be performed hereunder.
If your membership in the NASD terminates, or you breach any provision of
said Section 26, or if you cease to be a bank as defined above, this Agreement
will be immediately and automatically terminated.
(b) We shall not purchase Portfolio shares from a Portfolio except for
the purpose of covering purchase orders already received by us, and you shall
not purchase Portfolio shares from us, other than for investment, except for the
purpose of covering purchase orders already received by you.
(c) You shall not withhold placing customers' orders for Portfolio
shares so as to profit yourself as a result of such withholding, e.g., by virtue
of a change in a Portfolio's net asset value per share from that used in
determining the offering price to your customers.
(d) We shall not accept a conditional order for Portfolio shares on any
basis other than at a definite specified price.
(e) If, within seven business days after confirmation by us of the
original purchase order for shares of a Portfolio, such shares are repurchased
by the issuing Portfolio or by us for the account of such Portfolio, or are
tendered for redemption by the customer, you shall forthwith refund, or forfeit
the right to receive, the full amount of any agency compensation on the original
sale pursuant to paragraph 2(a) and any service payments made to you pursuant to
paragraph 2(b) above. You shall refund to the Portfolio immediately upon receipt
the amount of any dividends or distributions paid to you as nominee for your
customers with respect to redeemed or repurchased Portfolio shares to the extent
that the proceeds of such redemption or repurchase may include the dividends or
distributions payable on such shares. You shall be notified by us of such
repurchase or redemption within ten days of the date of such transaction.
(f) In the event any adjustment in the amount of agency compensation
made to you on any sale under paragraph 2(a), or in service payments made to you
under paragraph 2(b) shall result in an overpayment by us of such compensation
or service payment, you shall forthwith remit to us such overpayment. The term
"adjustment" as used in the preceding sentence shall not include any changes in
amounts paid to or due you caused by a change in or discontinuance of such
compensation or service payments (as provided under paragraphs 2(a), 2(b), and
7) prior to the effective date of such change or discontinuance of such
compensation or service payment. You acknowledge that the foregoing shall in no
way limit our right to change or discontinue such compensation or payments as
provided in paragraphs 2 and 7 hereof, and that, after the effective date of a
change in, or discontinuance by us of the agency compensation schedules or of
the service payments or termination of any Plan, any such agency compensation
under paragraph 2(a) or service payment under 2(b) shall be in amounts and made
in accordance with such change, discontinuation or termination.
(g) Nothing in this Agreement shall prevent you from acting as your
customers' agent in selling Portfolio shares for the account of a record owner
to us or the issuing Portfolio and charging your customers a reasonable charge
for handling the transaction, provided you disclose to such record owner that
direct redemption of the shares can be accomplished by the record owner without
incurring such charge.
6. (a) In all sales of Portfolio shares to the public you shall act as
agent for your own customers and in no transaction shall you have any authority
to act or hold yourself out as agent for us or any Portfolio, and nothing in
this Agreement, including the use of the word "compensation" or "payment," shall
cause you to be our partner, employee, or agent or give you any authority to act
for us or for any Portfolio. Neither we nor any Portfolio shall be liable for
any of your acts or obligations under this Agreement.
(b) No person is authorized to make any representations concerning
Portfolio shares except those contained in such Portfolio's Prospectus and you
shall rely solely on the representations contained in such Prospectus. We or the
Portfolio shall bear the expense of qualifying Portfolio shares under the
securities laws of the various states. Any printed information which we shall
furnish you (other than the Portfolios' Prospectuses, periodic reports and
supplemental information) is our sole responsibility and not the responsibility
of the respective Portfolios. You agree that the Portfolios shall have no
liability or responsibility to you with respect to any such printed information.
No sales literature or advertising material (including material disseminated
through radio, television or other electronic media) concerning Portfolio
shares, other than such printed information, shall be used by you in connection
with making Portfolio shares available without obtaining our prior written
approval. You shall not distribute or make available to investors any printed
information furnished by us which is marked "FOR BROKER/DEALER USE ONLY" or
which otherwise indicates that it is confidential or not intended to be
distributed to investors.
(c) You will comply with all applicable state and federal laws and with
the rules and regulations of authorized regulatory agencies thereunder. You will
not make available shares of any Portfolio unless such shares are duly
registered under the applicable state and federal statutes and the rules and
regulations thereunder. You may rely on written or oral communications from us
as to due registration.
7. All orders are subject to acceptance or rejection by us. We reserve the
right in our discretion, without notice, to suspend sales or to withdraw the
offering of Portfolio shares, in whole or in part, or to make a limited offering
of Portfolio shares. Either of us may cancel this Agreement upon telephonic or
written notice to the other. Upon telephonic or written notice to you, we may
also change, or amend any provision of this Agreement. Upon telephonic or
written notice to you, we or any Portfolio may change, amend or discontinue any
schedule or schedules of compensation or service payments issued by us from time
to time and may issue a new or replacement schedule or schedules of compensation
or service payments from time to time. You hereby agree that you shall have no
vested interest in any type, amount or rate of compensation or service payment
and that you shall have no claim against us or any Portfolio by virtue of any
change or diminution in the rate or amount of, or discontinuance of, any
compensation or service payment in connection with the shares of any Portfolio.
8. You agree, in connection with Portfolios that offer multiple classes of
shares, to disclose to investors that are eligible to purchase the other
class(es) of such Portfolio(s) (as set forth in the applicable Prospectus) the
availability of such other class(es). You and we each agree to waive or accept
reduced payments pursuant to any Plan from a Portfolio that is a money market
fund within the meaning of Rule 2a-7 under the Investment Company Act of 1940
(or from any class thereof) to the extent necessary to assure that such
Portfolio and each class thereof maintains a constant $1.00 net asset value per
share.
9. Failure of either party to terminate this Agreement upon the occurrence of
any event set forth in this Agreement as a cause for termination shall not
constitute a waiver of the right to terminate this Agreement at a later time on
account of such occurrence.
10. In the event of a dispute, such dispute shall be settled by arbitration
before arbitrators sitting in Denver, Colorado in accordance with the commercial
rules then in effect at the NASD. The arbitrators shall act by majority
decision, and their award may allocate attorneys' fees and arbitration costs
between the parties; such award shall be final and binding between the parties
and judgment thereon may be entered in any court of competent jurisdiction.
11. All communications to us should be sent to our address. Any notice to you
shall be duly given if mailed or telegraphed to you at the address specified by
you below. This Agreement shall become binding upon receipt by us in Denver,
Colorado of a counterpart hereof duly accepted and signed by you. THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO.
12. The Agent will provide the Trust or its designees such information as the
Trust or its designees may reasonably request (including, without limitation,
periodic certifications confirming the provision to Customers of the services
described herein), and will otherwise cooperate with the Trust and its designees
(including, without limitation, any auditors designated by the Trust), in
connection with the preparation of reports to its Board of Trustees concerning
this Agreement and the monies paid or payable under this Agreement, as well as
any other reports or filings that may be required by law.
13. This Agreement supersedes and cancels all previous agreements between us,
whether oral or written.
Very truly yours,
Dated as of: ___________________ ALPS MUTUAL FUNDS
SERVICES, INC.
By:
________________________________
______________________________
Signature
Its:
_______________________________
ACCEPTED AND AGREED:
________________________________
Firm:
By: ____________________________
Authorized Representative
________________________________
Signature
Address: _______________________
________________________________
________________________________
BANK AGENCY AGREEMENT FEE SCHEDULE
In consideration of sales of shares of the Portfolios of First Funds (the Trust)
under the terms and conditions of the Bank Agency Agreement, the following
schedule for the payment of fees shall apply:
RULE 12b-1 ANNUAL RATE
Name of Portfolio CONTRACTUAL RATE CURRENT CHARGE
----------------- ---------------- --------------
CLASS III
U.S. TREASURY MONEY MARKET PORTFOLIO .45% .25%
U.S. GOVERNMENT MONEY MARKET PORTFOLIO .45% .25%
MUNICIPAL MONEY MARKET PORTFOLIO .45% .25%
CASH RESERVE PORTFOLIO .45% .25%
BOND PORTFOLIO .75% .75%
GROWTH & INCOME PORTFOLIO .75% .75%
TENNESSEE TAX-FREE PORTFOLIO .75% .50%
INTERMEDIATE BOND PORTFOLIO .75% .75%
CAPITAL APPRECIATION PORTFOLIO .75% .75%
CLASS IV
GROWTH & INCOME PORTFOLIO .75% .75%
TENNESSEE TAX-FREE PORTFOLIO .60% .60%
CAPITAL APPRECIATION PORTFOLIO .75% .75%
Class III and IV of each Portfolio shall pay to ALPS Mutual Funds Services, Inc.
(ALPS) a fee based on the average daily net assets of a class throughout the
month, or such lesser amount as may be established from time to time by the
Trustees of the Trust, as specified in the Distribution and Service Plan;
provided that, for any period during which the total of such fee and all other
expenses of Class III or IV, would exceed the gross income of such Class, such
fee shall be reduced by such excess. Such fee shall be computed daily and paid
monthly. The determination of daily net assets shall be made at the close of
each business day throughout the month and computed in the manner specified in
the Portfolio's then current Prospectus for the determination of the net asset
value of shares of each Class, but shall exclude assets attributable to any
other Class of the Portfolio.
