ADMINISTRATION, BOOKKEEPING AND PRICING SERVICES AGREEMENT
Exhibit
10 under Item 601/Reg. S-K
ADMINISTRATION,
BOOKKEEPING AND
PRICING
SERVICES AGREEMENT
THIS
AGREEMENT is made as of March 21, 2009, between WesMark Funds, an open-end,
management investment company organized as a business trust under the laws of
the State of Massachusetts (the “Trust”), and ALPS Fund Services, Inc., a
Colorado corporation (“ALPS”).
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(a)
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The
Trust hereby appoints ALPS to provide the administrative, bookkeeping and
pricing services set forth in Appendix B
hereto, as amended from time to time, upon the terms and conditions
hereinafter set forth. ALPS hereby accepts such appointment and
agrees to furnish such specified services. ALPS shall for all
purposes be deemed to be an independent contractor and shall, except as
otherwise expressly authorized in this Agreement, have no authority to act
for or represent the Trust in any way or otherwise be deemed an agent of
the Trust.
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(b)
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ALPS
may employ or associate itself with a person or persons or organizations
as ALPS believes to be desirable in the performance of its duties
hereunder; provided that, in such event, the compensation of such person
or persons or organizations shall be paid by and be the sole
responsibility of ALPS, and the Trust shall bear no cost or obligation
with respect thereto; and provided further that ALPS shall not be relieved
of any of its obligations under this Agreement in such event and shall be
responsible for all acts of any such person or persons or organizations
taken in furtherance of this Agreement to the same extent it would be for
its own acts.
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(a)
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In
consideration for the services to be performed hereunder by ALPS, the
Trust shall pay ALPS the fees listed in Appendix C
hereto. Notwithstanding anything to the contrary in this
Agreement, fees billed for the services to be performed by ALPS under this
Agreement are based on information provided by the Trust and such fees are
subject to good faith renegotiation between the parties to the extent such
information is reasonably determined to be materially different from what
the Trust originally provided to
ALPS.
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(b)
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ALPS
will bear all expenses in connection with the performance of its services
under this Agreement, except as otherwise provided herein. ALPS
will not bear any of the costs of Trust officers or employees (other than
employees of ALPS who are named as officers of the
Trust). Other Trust expenses incurred shall be borne by the
Trust or the Trust’s investment adviser, including, but not limited to,
initial organization and offering expenses; litigation expenses; taxes;
costs of preferred shares; expenses of conducting repurchase offers for
the purpose of repurchasing Portfolio shares; transfer agency and
custodial expenses; interest; Trust trustees’ fees; brokerage fees and
commissions; state and federal registration fees; advisory fees; insurance
premiums; fidelity bond premiums; Trust and investment advisory related
legal expenses; costs of maintenance of Trust existence; printing and
delivery of materials in connection with meetings of the Trust’s trustees;
printing and mailing of shareholder reports, prospectuses, statements of
additional information other offering documents, supplements, proxy
materials and other communications to shareholders; securities pricing
data and expenses in connection with electronic filings with the U.S.
Securities and Exchange Commission (the
“SEC”).
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(a)
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Advice of the Trust
and Service Providers. If ALPS is in doubt as to any
action it should or should not take, ALPS may request directions, advice
or instructions from the Trust or, as applicable, the Trust’s investment
adviser, custodian or other service
providers.
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(b)
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Advice of
Counsel. If ALPS is in doubt as to any question of law
pertaining to any action it should or should not take, ALPS may request
advice from counsel of its own choosing (who may be counsel for the Trust,
the Trust’s investment adviser or ALPS, at the option of ALPS) and at its
own expense.
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(c)
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Conflicting
Advice. In the event of a conflict between directions,
advice or instructions ALPS receives from the Trust and instructions ALPS
receives from any other service provider of the Trust, then ALPS shall
follow the directions, advice or instructions of the
Trust.
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(a)
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ALPS
shall be obligated to act in good faith and to exercise commercially
reasonable care and diligence in the performance of its duties under this
Agreement.
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(b)
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In
the absence of willful misfeasance, bad faith, negligence or reckless
disregard by ALPS in the performance of its duties, obligations or
responsibilities set forth in this Agreement, ALPS and its affiliates,
including their respective officers, directors, agents and employees,
shall not be liable for, and the Trust agrees to indemnify, defend and
hold harmless such persons from, all taxes, charges, expenses,
disbursements, assessments, claims, losses, damages, penalties, actions,
suits, judgments and liabilities (including, without limitation,
attorneys’ fees and disbursements and liabilities arising under applicable
federal and state laws) arising directly or indirectly from the
following:
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(i)
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the
inaccuracy of factual information furnished to ALPS by the Trust or the
Trust’s investment adviser, custodian or other service providers that are
not affiliated with ALPS and are not a party that ALPS has employed or
affiliated itself with pursuant to Section 1(b) of this
Agreement;
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(ii)
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any
loss suffered by the Trust in connection with the matters to which this
Agreement relates;
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(iii)
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for
any loss suffered by the Trust as a result of 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, war, terrorism, riot, fire,
flood, sabotage, labor disputes, elements of nature or non-performance by
a third party that are not affiliated with ALPS and are not a party
that ALPS has employed or affiliated itself with pursuant to Section 1(b)
of this Agreement;
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(iv)
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ALPS’ reliance on any instruction, direction,
notice, instrument or other information that ALPS receives from the Trust
or a service provides to the Trust other than an affiliate of ALPS or a
party that ALPS has employed or affiliated itself with pursuant to Section
1(b) of this Agreement and that ALPS reasonably believes to be genuine;
or
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(v)
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any other action or omission to act which ALPS
takes in connection with the provision of services to the
Trust.
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(c)
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ALPS
shall indemnify and hold harmless the Trust, the Trust’s
investment adviser and their respective officers, directors, agents, and
employees from and against any and all taxes, charges, expenses,
disbursements, assessments, claims, losses, damages, penalties, actions,
suits, judgments and liabilities (including, without limitation,
attorneys’ fees and disbursements and liabilities arising under applicable
federal and state laws) arising directly or indirectly from ALPS’ willful
misfeasance, bad faith, negligence or reckless disregard in the
performance of its duties, obligations or responsibilities set forth in
this Agreement.
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(d)
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Notwithstanding anything in this Agreement to the
contrary, neither party shall be liable under this Agreement to the other
party hereto for any punitive, consequential, special or indirect losses
or damages. Any indemnification payable by a party to this
Agreement shall be net of insurance maintained by the indemnified party as
of the time the claim giving rise to indemnity hereunder is alleged to
have arisen to the extent it covers such
claim.
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5.
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Activities of
ALPS. The services of ALPS under this Agreement are not
to be deemed exclusive, and ALPS shall be free to render similar services
to others. The Trust recognizes that from time to time
directors, officers and employees of ALPS may serve as directors, officers
and employees of other corporations or businesses (including other
investment companies) and that such other corporations and businesses may
include ALPS as part of their name and that ALPS or its affiliates may
enter into administrative, bookkeeping, pricing agreements or other
agreements with such other corporations and
businesses.
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6.
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Accounts and
Records. The accounts and records maintained by ALPS
shall be the property of the Trust. ALPS shall prepare, maintain and preserve
such accounts and records as required by the 1940 Act and other
applicable securities laws, rules and regulations. ALPS shall surrender such
accounts and records to the Trust, in the form in which
such accounts and records have been maintained or preserved, promptly upon receipt of instructions from the
Trust. The Trust shall have access to such accounts and
records at all times during ALPS’ normal business hours. Upon
the reasonable request of the Trust, copies of any such books and records
shall be provided by ALPS to the Trust at the Trust’s
expense. ALPS shall assist the Trust, the Trust’s independent
auditors, or, upon approval of the Trust, any regulatory body, in any
requested review of the Trust’s accounts and records and reports by ALPS
or its independent accountants concerning its accounting system and
internal auditing controls will be open to such entities for audit or
inspection upon reasonable request.
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7.
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Confidential and
Proprietary Information. ALPS agrees that it will, on
behalf of itself and its officers and employees, treat all transactions
contemplated by this Agreement, and all records and information relative
to the Trust and its current and former shareholders and other information
germane thereto, as confidential and as proprietary information of the
Trust and not to use, sell, transfer or divulge such information or
records to any person for any purpose other than performance of its duties
hereunder, except after prior notification to and approval in writing from
the Trust, which approval shall not be unreasonably
withheld. Approval may not be withheld where ALPS may be
exposed to civil, regulatory, or criminal proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, or when requested by the Trust. When requested to
divulge such information by duly constituted authorities, ALPS shall use
reasonable commercial efforts to request confidential treatment of such
information. ALPS shall have in place and maintain physical,
electronic, and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized
access to or use of records and information relating to the Trust and its
current and former shareholders.
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8.
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Compliance with Rules
and Regulations. ALPS shall comply (and to the extent
ALPS takes or is required to take action on behalf of the Trust hereunder
shall cause the Trust to comply) with all applicable requirements of the
1940 Act and other applicable laws, rules, regulations, orders and code of
ethics, as well as all investment restrictions, policies and procedures
adopted by the Trust of which ALPS has knowledge (it being understood that ALPS is deemed to have
knowledge of all investment restrictions, policies or procedures set out
in the Trust’s public filings or
otherwise provided to ALPS). Except as set out in this Agreement, ALPS assumes no
responsibility for such compliance by the
Trust. ALPS shall maintain
at all times a program reasonably designed to prevent violations of the
federal securities laws (as defined in Rule 38a-1 under the 0000 Xxx) with
respect to the services provided, and shall provide to the Trust
a certification to such effect no less than
quarterly or as otherwise reasonably requested by the Trust. ALPS shall make available its
compliance personnel and shall provide at its own expense summaries and
other relevant materials relating to such program as reasonably
requested by the Trust.
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9.
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Representations and
Warranties of ALPS. ALPS represents and warrants to the
Trust that:
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(a)
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It
is duly organized and existing as a corporation and in good standing under
the laws of the State of Colorado.
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(b)
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It
is empowered under applicable laws and by its Articles of Incorporation
and By-laws to enter into and perform this
Agreement.
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(c)
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All
requisite corporate proceedings have been taken to authorize it to enter
into and perform this Agreement.
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(d)
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It
has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement in accordance with industry
standards.
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(e)
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Upon
the execution and delivery of this Agreement by ALPS and the Trust, this
Agreement will be a valid and binding obligation of
ALPS.
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10.
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Representations and
Warranties of the Trust. The
Trust represents and warrants to ALPS
that:
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(a)
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It
is a trust duly organized and existing and in good standing under the laws
of the state of Massachusetts and is registered with the SEC as an
open-end, diversified management investment
company.
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(b)
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It
is empowered under applicable laws and by its Declaration of Trust and
By-laws to enter into and perform this
Agreement.
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(c)
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The
Board of Trustees of the Trust has
duly authorized it to enter into and perform this
Agreement.
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(d)
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Notwithstanding
anything in this Agreement to the contrary, the Trust agrees not to make
any modifications to its registration statement or adopt any policies
which would affect materially the obligations or responsibilities of ALPS
hereunder without the prior written approval or ALPS, which approval shall
not be unreasonably withheld or delayed except that no approval shall be
required for the Trust to make any modifications to its registration
statement required in order to reasonably comply with the 1933 Act, 1940
Act or any other applicable laws, rules, or
regulations.
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(e)
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The
execution, delivery and performance of this Agreement by Trust does not
breach, violate or cause a default under any agreement, contract or
instrument to which Trust is a party or any judgment, order or decree to
which Trust is subject.
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(f)
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Upon
the execution and delivery of this Agreement by ALPS and the Trust, this
Agreement will be a valid and binding obligation of the
Trust.
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(g)
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Any
officer positions of the Trust filled by ALPS shall be covered by
the Trust’s Directors & Officers/Errors & Omissions
Policy (the “Policy”), and the Trust shall use reasonable efforts to
ensure that such coverage be (a) reinstated should the Policy be
cancelled; (b) continued after such officers cease to serve as Trust
officers on substantially the same terms as such coverage is provided for
the Trust officers after such persons are no longer officers of the Trust;
or (c) continued in the event the Trust merges or terminates, on
substantially the same terms as such coverage is provided for the Trust
officers. The Trust shall provide ALPS with proof of current
coverage, including a copy of the Policy, and shall notify ALPS
immediately should the Policy be cancelled or
terminated.
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(h)
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The
officer positions filled by ALPS are named officer positions, in the
Trust’s corporate resolutions and are subject to the provisions of the
Trust’s Organizational Documents regarding indemnification of its
officers.
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11.
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Documents. The
Trust has furnished or will furnish, upon request, ALPS with copies of the
Trust’s Declaration of Trust, advisory agreement(s), custodian agreement,
transfer agency agreement, administration agreement, current prospectus,
statement of additional information, periodic shareholder reports of the
Trust and all forms relating to any plan, program or service offered by
the Trust to its shareholders. The Trust shall furnish, within
a reasonable time period, to ALPS a copy of any amendment or supplement to
any of the above-mentioned documents. Upon request, the Trust shall
furnish promptly to ALPS any additional documents reasonably necessary or
advisable to perform its functions hereunder. As used in this Agreement
the terms “registration statement,” “prospectus” and “statement of
additional information” shall mean any registration statement, prospectus
and statement of additional information filed by the Trust with the SEC
and any amendments and supplements thereto that are filed with the
SEC.
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12.
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Consultation Between
the Parties. ALPS and the Trust shall regularly consult
with each other regarding ALPS’ performance of its obligations under this
Agreement. In connection therewith, the Trust shall submit to ALPS at a
reasonable time in advance of filing with the SEC reasonably final copies
of any amended or supplemented registration statement (including exhibits)
under the Securities Act of 1933, as amended, and the 1940 Act; provided,
however, that nothing contained in this Agreement shall in any way limit
the Trust’s right to file at any time such amendments to any
registration statement and/or supplements to any prospectus or statement
of additional information, of whatever character, as the Trust may deem
advisable, such right being in all respects absolute and
unconditional.
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13.
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Liaison with
Accountants. ALPS shall act as a liaison with the
Trust’s independent public accountants and shall provide account analysis,
fiscal year summaries, and other audit-related schedules with respect to
the services provided to the Trust. ALPS shall take all
reasonable action in the performance of its duties under this Agreement to
assure that the necessary information is made available to such
accountants as reasonably requested or required by the
Trust.
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14.
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Business Interruption
Plan. ALPS shall maintain in effect a business
interruption plan and enter into any agreements necessary with appropriate
parties making reasonable provisions for emergency use of electronic data
processing equipment customary in the industry. In the event of
equipment failures, ALPS shall, at no additional expense to the Trust,
take commercially reasonable steps to minimize service
interruptions.
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(a)
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Initial
Term. This Agreement shall become effective as of the
date first written above (the “Start Date”) and shall continue thereafter
throughout the period that ends three (3) years after the Start Date (the
“Initial Term”). Until the end of the Initial Term, this
Agreement may be terminated without penalty only by agreement of the
parties or for cause pursuant to Section 15(c) hereof. If the
Trust terminates this Agreement unilaterally without cause prior to the
end of the Initial Term it will cause substantial damages to
ALPS. Because of the difficulty of estimating the damages that
will result, the Trust agrees to pay ALPS, as liquidated damages for such
termination, an amount equal to twenty-five percent (25%) of the annual
fee in effect at the time of termination (the “Termination
Payment”). The parties agree that the Termination Payment is a
reasonable forecast of probable actual loss to ALPS and that this sum is
agreed to as liquidated damages and not as a
penalty.
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(b)
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Renewal
Term. If not sooner terminated, this Agreement shall
renew at the end of the Initial Term and shall thereafter continue for
successive annual periods until terminated by either party upon not less
than sixty (60) days’ written notice prior to the expiration of the then
current renewal term or for cause pursuant to Section 15(c)
hereof.
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(c)
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Cause. Notwithstanding
anything to the contrary elsewhere in this Agreement, the Trust may
terminate this Agreement for cause immediately at any time, without
penalty, without default and without the payment of any Termination
Payment or other liquidated damages. For purposes of this
Section 15, “cause” shall mean:
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(i)
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willful
misfeasance, bad faith, negligence or reckless disregard on the part of
ALPS in the performance of its duties, obligations and
responsibilities set forth in this
Agreement;
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(ii)
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in
the event ALPS is no longer permitted to perform its duties, obligations
or responsibilities hereunder pursuant to applicable law, or regulatory,
administrative or judicial proceedings against ALPS which result in a
determination that ALPS has violated, or has caused the Trust to violate,
in any material respect any applicable law, rule, regulation, order or
code of ethics, or any material investment restriction, policy or
procedure adopted by the Trust of which ALPS had knowledge (it being
understood that ALPS is deemed to have knowledge of all investment
restrictions, policies or procedures set out in the Trust’s public filings
or otherwise provided to ALPS); or
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(iii)
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financial
difficulties on the part of ALPS which are evidenced by the authorization
or commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of
the United States Code, as from time to time in effect, or any applicable
law other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of
creditors.
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(d)
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Deliveries Upon
Termination. Upon termination of this Agreement, ALPS
agrees to cooperate in the orderly transfer of administrative duties and
shall deliver to the Trust or as otherwise directed by the Trust (at the
expense of the Trust) all records and other documents made or accumulated
in the performance of its duties for the Trust
hereunder. In the event ALPS gives notice of termination
under this Agreement, it will continue to provide the services
contemplated hereunder after such termination at the contractual rate for
up to 150 days, provided that the Trust uses all reasonable commercial
efforts to appoint such replacement on a timely
basis.
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(e)
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Fees and Expenses Upon
Termination. Should either party exercise its right to terminate,
all reasonable out-of-pocket expenses or costs associated with the
movement of records and material will be borne by the
Trust. Additionally, ALPS reserves the right to charge a
reasonable fee for its de-conversion services to be reasonably agreed upon
in good faith by the Trust and
ALPS.
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16.
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Assignment. This
Agreement shall extend to and shall be binding upon the parties hereto and
their respective successors and permitted assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the prior
written consent of ALPS, or by ALPS without the prior written consent of
the Trust.
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17.
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Governing
Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of Colorado and
the 1940 Act and the rules thereunder. To the extent that the
laws of the State of Colorado conflict with the 1940 Act or such rules,
the latter shall control.
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18.
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Names. The
obligations of the Trust entered into in the name or on behalf thereof by
any director, shareholder, representative or agent thereof are made not
individually, but in such capacities, and are not binding upon any of the
directors, shareholders, representatives or agents of the Trust
personally, but bind only the property of the Trust, and all persons
dealing with the Trust must look solely to the property of the Trust for
the enforcement of any claims against the
Trust.
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19.
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Amendments to this
Agreement. This Agreement may only be amended by the
parties in writing.
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20.
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Notices. All
notices and other communications hereunder shall be in writing, shall be
deemed to have been given when received or when sent by telex or
facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is
given):
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To
ALPS:
ALPS Fund
Services, Inc.
0000
Xxxxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attn: General
Counsel
Fax: (000)
000-0000
To the
Trust:
0 Xxxx
Xxxxx, Xxxxx Xxxxx
Xxxxxxxx,
XX 00000
Attn: Xxxxx
Xxxxxxx
Fax: (000)
000-0000
With a
copy to:
Xxxx
Xxxxx LLP
0000
Xxxxxxx Xxxxxx
Xxxxxxxxxx
XX 00000
Attn:
Xxxx Xxxxxx
Fax: (000)
000-0000
21.
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Counterparts. This
Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same
instrument.
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22.
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Entire
Agreement. This Agreement embodies the entire agreement
and understanding among the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof; provided,
however, that ALPS may embody in one or more separate documents its
agreement, if any, with respect to delegated duties and oral
instructions.
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23. Limitation of
Liability. ALPS is expressly put on notice of the
limitation of liability as set forth in the Trust’s Declaration of Trust
and agrees that the obligations assumed by the Trust pursuant to this
Agreement shall be limited in any case to the Trust and its assets and
ALPS shall not seek satisfaction of any such obligation from the
shareholders of the Trust, the Trustees, officers, employees or agents of
the Trust, or any of them.
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By:
Name:
Title:
ALPS FUND
SERVICES, INC.
By:
Name:
Xxxxxx X. May
Title: President
APPENDIX
A
LIST OF
PORTFOLIOS
WesMark
Small Company Growth Fund
WesMark
Growth Fund
WesMark
Balanced Fund
WesMark
Government Bond Fund
WesMark
West Virginia Municipal Bond Fund
APPENDIX
B
SERVICES
Fund
Administration
· Prepare
annual and semi-annual financial statements.
· Coordinate
layout and printing of reports.
· Prepare
and file Forms N-SAR, N-CSR, N-Q and 24f-2.
·
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Host
annual audits and SEC exams.
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· Perform
monthly prospectus compliance and IRS/SEC diversification tests.
·
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Calculate
performance figures.
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Prepare
required reports for quarterly Board
meetings.
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Monitor
expense ratios.
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Maintain
budget vs. actual expenses.
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·
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Manage
fund invoice approval and xxxx payment
process.
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Maintain
and coordinate Blue Sky
registration.
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Assist
with placement of fidelity bond and E&O
insurance.
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·
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Coordinate
reporting to outside agencies including Morningstar,
etc.
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Oversee
and administer 12b-1 plans (if
any).
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Fund
Accounting
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·
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Calculate
daily NAVs.
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Transmit
daily NAVs to NASDAQ, transfer agent and other third
parties.
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Compute
yields, expense ratios, portfolio turnover rates,
etc.
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Calculate
income dividend rates.
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Reconcile
cash and investment balances with the
custodian.
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·
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Support
preparation of financial
statements.
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Prepare
required Fund Accounting records in accordance with the 1940
Act.
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Legal
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·
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Review
and update Prospectus and Statement of Additional Information
annually.
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Provide
legal review of SEC financial
filings.
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·
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Coordinate
EDGARization and filing of
documents.
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·
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Prepare
required reports for quarterly Board of Trustees’
meetings.
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·
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Review
legal contracts.
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·
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Oversee
Trust’s Code of Ethics reporting.
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Tax
·
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Perform
monthly, quarterly or annual distribution calculations, as appropriate,
including distributions necessary to avoid excise
tax.
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·
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Prepare
provision for income tax and tax disclosure information (ROCSOP) for the
audited financial statements.
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·
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Prepare
and file federal and state income tax returns (and appropriate
extensions).
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·
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Prepare
and file federal excise tax
returns.
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·
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Perform
wash sale deferral and tax straddle deferral activity
analysis.
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APPENDIX
C
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Annual
Fee: Greater of $650,000 annual minimum or:
i. 7.0
basis points of the Portfolios’ average annual net assets between $0 -
$1B;
ii. 5.0
basis points of the Portfolios’ average annual net assets between $1B - $3B;
and
iii. 4.0
basis points of the Portfolios’ average annual net assets over $3B.
In
addition, there will be a $5,000 annual fee charged per each additional share
class.
Pass-through
at cost of out-of-pocket expenses, including: third-party security pricing
and/or data fees; Bloomberg fees; Gainskeeper fees; Blue Sky fees; control
review reports; travel expenses to Board meetings and on-sight supervisory
reviews; sales reporting and customized programming/enhancements; and other
expenses which may occur at the direction of the Fund.
LATE CHARGES: All
invoices are due and payable upon receipt. Any invoices not paid
within forty-five (45) days of the invoice date are subject to a one percent
(1%) per month financing charge on any unpaid balance but only to the extent
permitted by law.