ELEVATION ETF TRUST FUND ACCOUNTING AND SERVICES AGREEMENT
Exhibit Ex-28.H.3
THIS AGREEMENT is made between Elevation ETF Trust, a Delaware statutory trust (the “Trust”), and ALPS Fund Services, Inc., a Colorado corporation (“ALPS”). This Agreement shall be effective with respect to each management investment company identified on Appendix A hereto as of the effective date identified on such Appendix A.
WHEREAS, the Trust is registered under the Investment Company Act of 1940, as amended (“1940 Act”), as an open-end management investment company, presently consisting of the portfolios listed in Appendix A (each a Fund, and together, the “Funds”);
WHEREAS, ALPS Advisors, Inc. is the Funds’ investment adviser and is responsible for managing the Trusts’ business affairs and providing certain clerical, bookkeeping and other administrative and management services;
WHEREAS, ALPS provides certain fund accounting services to investment companies; and
WHEREAS, the Trust desires to appoint ALPS to perform certain fund accounting and other specified services for the Funds, and ALPS has indicated its willingness to so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants hereinafter contained, the parties hereto agree as follows.
| 1. |
ALPS Appointment and Duties.
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| (a) |
The Trust hereby appoints ALPS to provide to the Funds the fund accounting, pricing and other 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) |
ALPS may employ, delegate or associate itself with a person or persons, agents 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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| (c) |
In performing hereunder, ALPS shall provide, at its expense, office space, facilities, equipment and personnel.
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1
| (d) |
ALPS shall not provide any services relating to the management, investment advisory or sub-advisory functions of the Funds, distribution of shares of the Funds, maintenance of the Funds’ financial records or other services normally performed by the Funds’ counsel or independent auditors, however an affiliate of ALPS may perform certain above-described services pursuant to a separate agreement.
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| (e) |
The Trust shall cause its officers, advisors, sponsor, distributor, legal counsel, independent accountants, current administrator (if any), transfer agent, and any other service provider to cooperate with ALPS and to provide ALPS, upon request, with such information, documents and advice relating to the Trust as is within the possession or knowledge of such persons, and which in the opinion of ALPS, is necessary in order to enable it to perform its duties hereunder. ALPS shall not be responsible for, under any duty to inquire into, or be deemed to make any assurances with respect to the accuracy, validity or propriety of any information, documents or advice provided to ALPS by any of the aforementioned persons. ALPS shall not be liable for any loss, damage or expense resulting from or arising out of the failure of the Trust to cause any information, documents or advice to be provided to ALPS as provided herein and shall be held harmless by the Trust when acting in reliance upon such information, documents or advice relating to the Trust. All fees or costs charged by such persons shall be borne by the Trust. In the event that any services performed by ALPS hereunder rely, in whole or in part, upon information obtained from a third party service utilized or subscribed to by ALPS which ALPS in its reasonable judgment deems reliable, ALPS shall not have any responsibility or liability for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information.
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| (f) |
Nothing in this Agreement shall limit or restrict ALPS, any affiliate of ALPS or any officer or employee thereof from acting for or with any third parties, and providing services similar or identical to same or all of the services provided hereunder.
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| (g) |
Subject to the provisions of this Agreement, ALPS shall compute the net asset value per share of the Funds and shall value the securities held by the Funds at such times and dates and in the manner specified in each Fund’s valuation procedures and in the then currently effective Prospectus of the relevant Fund, except that notwithstanding any language in the Prospectus, in no event shall ALPS be required to determine, or have any obligations with respect to, whether a market price represents any fair or true value, nor to adjust any price to reflect any events or announcements, including, without limitation, those with respect to the issuer thereof, it being agreed that all such determinations and considerations shall be solely the responsibility of the Funds. To the extent valuation of securities or computation of a net asset value as specified in the Fund’s then currently effective Prospectus is at any time inconsistent with any applicable laws or regulations, the Fund shall immediately so notify ALPS in writing and thereafter shall either furnish ALPS at all appropriate times with the values of such securities and the Fund’s net asset value, or subject to the prior approval of ALPS, instruct ALPS in writing to value securities and compute net asset value in a manner which the Trust then represents in writing to be consistent with all applicable laws and regulations. The Trust may also from time to time, subject to the prior approval of ALPS, instruct ALPS in writing to compute the value of the securities or net asset value in a manner other than as specified in this paragraph. By giving such instruction, the Trust shall be deemed to have represented that such instruction is consistent with all applicable laws and regulations, the applicable Fund’s valuation procedures and the then currently effective Prospectus of the Fund. The Trust shall have sole responsibility for determining the method of valuation of securities and the method of computing net asset value.
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| (h) |
The Trust shall furnish ALPS with any and all instructions, explanations, information, specifications and documentation deemed necessary by ALPS in the performance of its duties hereunder, including, without limitation, the amounts or written formula for calculating the amounts and times of accrual of Trust liabilities and expenses. ALPS shall not be required to include as Trust liabilities and expenses, nor as a reduction of net asset value, any accrual for any federal, state, or foreign income taxes unless the Trust shall have specified to ALPS the precise amount of the same to be included in liabilities and expenses or used to reduce net asset value. The Trust shall also furnish ALPS with bid, offer, or market values of Securities if ALPS notifies the Trust that same are not available to ALPS from a security pricing or similar service utilized, or subscribed to, by ALPS which ALPS in its judgment deems reliable at the time such information is required for calculations hereunder. At any time and from time to time, the Trust also may furnish ALPS with bid, offer, or market values of Securities and instruct ALPS to use such information in its calculations hereunder. ALPS shall at no time be required or obligated to commence or maintain any utilization of, or subscriptions to, any particular securities pricing or similar service.
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| (i) |
ALPS may apply to an officer or duly authorized agent of the Trust for written instructions with respect to any matter arising in connection with ALPS’s performance hereunder for the Trust, and ALPS shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with such instructions. Such application for instructions may, at the option of ALPS, set forth in writing any action proposed to be taken or omitted to be taken by ALPS with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken, and ALPS shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, ALPS has received written instructions in response to such application specifying the action to be taken or omitted.
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| (j) |
ALPS may consult with counsel to the Trust (at the Trust’s expense) or its own counsel, (at its own expense), and shall be fully protected with respect to anything done or omitted by it in good faith in accordance with the advice or opinion of such counsel.
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| (k) |
Notwithstanding any other provision contained in this Agreement or Appendix B attached hereto, ALPS shall have no duty or obligation to with respect to, including, without limitation, any duty or obligation to determine, or advise or notify the Trust of: (i) the taxable nature of any distribution or amount received or deemed received by, or payable to, the Trust, (ii) the taxable nature or effect on the Trust or its shareholders of any corporate actions, class actions, tax reclaims, tax refunds or similar events, (iii) the taxable nature or taxable amount of any distribution or dividend paid, payable or deemed paid, by the Trust to its shareholders; or (iv) the effect under any federal, state, or foreign income tax laws of the Trust making or not making any distribution or dividend payment, or any election with respect thereto.
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| (1) |
ALPS shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and Appendix B attached hereto, and no covenant or obligation shall be implied against ALPS in connection with this Agreement.
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| (m) |
ALPS, in performing the services required of it under the terms of this Agreement, shall be entitled to rely fully on the accuracy and validity of any and all instructions, explanations, information, specifications and documentation furnished to it by the Trust and shall have no duty or obligation to review the accuracy, validity or propriety of such instructions, explanations, information, specifications or documentation, including, without limitation, evaluations of securities; the amounts or formula for calculating the amounts and times of accrual of a Fund’s liabilities and expenses; the amounts receivable and the amounts payable on the sale or purchase of Securities; and amounts receivable or amounts payable for the sale or redemption of Trust shares effected by or on behalf of the Trust. In the event ALPS’s computations hereunder rely, in whole or in part, upon information, including, without limitation, bid, offer or market values of securities or other assets, or accruals of interest or earnings thereon, from a pricing or similar service utilized, or subscribed to, by ALPS which ALPS in its judgment deems reliable, ALPS shall not be responsible for, under any duty to inquire into, or deemed to make any assurances with respect to, the accuracy or completeness of such information. Without limiting the generality of the foregoing, ALPS shall not be required to inquire into any valuation of securities or other assets by the Funds or any third party described in this Agreement even though ALPS, in performing services similar to the services provided pursuant to this Agreement for others, may receive different valuations of the same or different securities of the same issuers.
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| (n) |
ALPS, in performing the services required of it under the terms of this Agreement, shall not be responsible for determining whether any interest accruable to the Funds is or will be actually paid, but will accrue such interest until otherwise instructed by the Fund.
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| (o) |
ALPS shall not be responsible for delays or errors which occur by reason of circumstances beyond its control in the performance of its duties under this Agreement, including, without limitation, labor difficulties within or without ALPS, mechanical breakdowns, flood or catastrophe, acts of God, failures of transportation, interruptions, loss, or malfunctions of utilities, communications or computer (hardware or software) services. Nor shall ALPS be responsible for delays or failures to supply the information or services specified in this Agreement where such delays or failures are caused by the failure of any person(s) other than ALPS to supply any instructions, explanations, information, specifications or documentation deemed necessary by ALPS in the performance of its duties under this Agreement.
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| 2. |
ALPS Compensation; Expenses.
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| (a) |
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 renegotiation between the parties to the extent such information is determined to be materially different from what the Trust originally provided to ALPS. During each year of the Term, unless the parties shall otherwise agree and provided that the service mix and volumes remain consistent with those provided in the previous year of this Agreement, the fee that would be charged for the same services would be the base fee rate (as reflected in Appendix C) subject to an annual cost of living adjustment based on the Consumer Price Index for Urban Wage Earners and Clerical Workers, for the Denver-Boulder-Greeley area, as published bimonthly by the United States Department of Labor, Bureau of Labor Statistics, or, in the event that publication of such index is terminated, any successor or substitute index, appropriately adjusted, acceptable to all parties.
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| (b) |
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 personnel. Other Trust expenses incurred shall be borne by the Trust, the Funds or the Funds’ 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 Fund shares; transfer agency and custodial expenses; interest; Fund directors’ fees; brokerage fees and commissions; state and federal registration fees; advisory fees; insurance premiums; fidelity bond premiums; Fund and investment advisory related legal expenses; costs of maintenance of Fund existence; printing and delivery of materials in connection with meetings of the Fund’s directors; 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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| 3. |
Right to Receive Advice.
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| (a) |
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) |
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 Funds, the Funds’ investment adviser or ALPS, at the option of ALPS).
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| (c) |
Conflicting Advice. In the event of a conflict between directions, advice or instructions ALPS receives from the Trust or any service provider and the advice ALPS receives from counsel, ALPS may in its sole discretion rely upon and follow the advice of counsel. ALPS will provide the Trust with prior written notice of its intent to follow advice of counsel that is materially inconsistent with directions, advice or instructions from the Trust. Upon request, ALPS will provide the Trust with a copy of such advice of counsel.
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| 4. |
Standard of Care; Limitation of Liability; Indemnification.
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| (a) |
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) |
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 (“ALPS Persons”), shall not be liable for, and the Trust agrees to 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) |
any error of judgment or mistake of law or for any loss suffered by the Funds or Trust in connection with the matters to which this Agreement relates;
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| (ii) |
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;
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| (iii) |
ALPS’ reliance on any instruction, direction, notice, instrument or other information that ALPS reasonably believes to be genuine;
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| (iv) |
loss of data or service interruptions caused by equipment failure; or
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| (v) |
any other action or omission to act which ALPS takes in connection with the provision of services to the Funds.
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The Trust further agrees that it shall indemnify, defend and hold harmless ALPS 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 inaccuracy of factual information furnished to ALPS by the Funds, the Trust or the Fund’s investment adviser, custodian or other service providers;
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| (c) |
ALPS shall indemnify and hold harmless the Funds, the Trust, the Fund’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 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) |
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. |
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 accounting and services agreements or other agreements with such other corporations and businesses.
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| 6. |
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 or upon termination of the Agreement. The Trust shall have access to such accounts and records at all times during ALPS’ normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by ALPS to the Fund at the Fund’s expense. ALPS shall assist the Fund, the Fund’s independent auditors, or, upon approval of the Fund, any regulatory body, in any requested review of the Fund’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. |
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. |
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-l under the 0000 Xxx) with respect to the services provided, and shall provide to the Trust a certification to such effect no less than annually 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. |
Representations and Warranties of ALPS. ALPS represents and warrants to the Trust that:
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| (a) |
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) |
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) |
All requisite corporate proceedings have been taken to authorize it to enter into and perform this Agreement.
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| (d) |
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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| 10. |
Representations and Warranties of the Trust. The Trust represents and warrants to ALPS that:
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| (a) |
It is a statutory trust duly organized and existing and in good standing under the laws of the state of Delaware and is registered with the SEC as an open-end management investment company.
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| (b) |
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) |
The Board of Trustees of the Fund has duly authorized it to enter into and perform this Agreement.
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| (d) |
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, to the extent practicable, reasonable prior notice to ALPS, which approval shall not be unreasonably withheld or delayed.
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| (e) |
The Trust is conducting its business in compliance with all applicable laws and regulations, both state and federal, and has obtained all regulatory licenses, approvals and consents necessary to carry on its business as now conducted; there is no statute, regulation, rule, order or judgment binding on it and no provision of its charter or by laws, nor of any mortgage, indenture, credit agreement or other contract binding on it or affecting its property which would prohibit its execution or performance of this Agreement; and
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| 11. |
Documents. The Trust has furnished or will furnish, upon request, ALPS with copies of the Trust’s Articles of Incorporation bylaws or other organizational documents (the “Charter”), advisory agreement, custodian agreement, transfer agency agreement, administration agreement, current prospectus, statement of additional information, the Trust’s registration statement most recently filed with the Securities and Exchange Commission (“SEC”), the Trust’s Notification of Registration under the 1940 Act on Form N-8A filed with the SEC, a copy of any and all SEC exemptive orders issued to the Trust, periodic Trust reports and all forms relating to any plan, program or service offered by the Trust. 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. Each copy of the bylaws, Registration Statement and Prospectus, and all amendments thereto, and copies of Board resolutions, shall be certified by the Secretary or an Assistant Secretary of the appropriate Fund. Upon request, the Trust shall furnish promptly to ALPS any additional documents necessary or advisable to perform its functions hereunder. It shall be the sole responsibility of each Trust to deliver to ALPS its currently effective Prospectus and ALPS shall not be deemed to have notice of any information contained in such Prospectus until it is actually received by ALPS. 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. |
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. |
Liaison with Accountants. ALPS shall act as a liaison with the Funds’ 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. |
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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| 15. |
Duration and Termination of this Agreement.
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| (a) |
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 written agreement of the parties or for cause pursuant to Section 15(c) hereof.
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| (b) |
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) |
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) |
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) |
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) |
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) |
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. Upon termination hereof, the Trust shall pay to ALPS such compensation as may be due as of the date of such termination, and shall reimburse ALPS for any disbursements and expenses made or incurred by ALPS and payable or reimbursable 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 120 days, provided that the Trust uses all reasonable commercial efforts to appoint such replacement on a timely basis.
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| (e) |
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.
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| 16. |
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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| 18. |
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. |
Amendments to this Agreement. This Agreement may only be amended by the parties in writing.
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| 20. |
Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations shall not in any way be affected or impaired thereby, and if any provision is inapplicable to any person or circumstances, it shall nevertheless remain applicable to all other persons and circumstances.
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| 21. |
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:
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ALPS Fund Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxx 00000 Attn: General Counsel Fax: (000) 000-0000 |
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To the Fund:
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Elevation ETF Trust
0000 Xxxxxxxx, Xxxxx 0000 Xxxxxx, Xxxxxxxx 00000 Attn: Xxxxxx X. May Fax: (000) 000-0000 Fund
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| 22. |
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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| 23. |
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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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By:
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/s/ Xxxxxxxx Xxxxxx
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Name:
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Xxxxxxxx Xxxxxx
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Title:
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Treasurer
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ALPS FUND SERVICES, INC.
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By:
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/s/ Xxxxxx X. May
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Name:
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Xxxxxx X. May
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Title:
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President
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APPENDIX A
LIST OF PORTFOLIOS
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• Dhandho Junoon ETF
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Effective 3/31/2016
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• Summit Water Infrastructure Multifactor ETF
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Effective 8/8/2016
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APPENDIX B
SERVICES
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Calculate daily NAVs
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Transmit NAVs to ETF Services Team, NASDAQ, transfer agent, and other third parties
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Compute yields, expense ratios, portfolio turnover rates, etc.
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| ■ |
Reconcile cash and investment balances with the custodian
|
| ■ |
Support preparation of financial statements
|
| ■ |
Prepare required Fund Accounting records in accordance with the 1940 Act
|
| ■ |
Obtain security valuations from appropriate sources consistent with the Fund’s pricing and valuation policies
|
| ■ |
Transmit Portfolio Listing File to ETF Services Team
|
APPENDIX C
COMPENSATION
