BOOKKEEPING AND PRICING AGREEMENT
BETWEEN
FGIC PUBLIC TRUST
AND
ALPS MUTUAL FUNDS SERVICES, INC.
BOOKKEEPING AND PRICING AGREEMENT
AGREEMENT made this 15th day of March, 1994 between FGIC Public Trust,
a business trust established under the laws of the State of Delaware (the
"Trust") and ALPS MUTUAL FUNDS SERVICES, INC., a Colorado corporation having its
principal office at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
(the "Agent").
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940 presently consisting of the
following investment portfolios: Treasury Money Market Fund, the Enhanced
Government Income Fund, and any additional investment portfolios that may be
established by the Trust herein referred to individually as a "Portfolio" and
collectively as the "Portfolios;" and
WHEREAS, THE TRUST AND THE AGENT HAVE ENTERED INTO AN ADMINISTRATION
AGREEMENT, DATED AS OF FEBRUARY 1, 1994 (THE "ADMINISTRATION AGREEMENT"),
PURSUANT TO WHICH THE AGENT WILL PROVIDE CERTAIN SERVICES; AND
WHEREAS, the Trust desires to appoint the Agent as agent to perform
certain bookkeeping and pricing services for the Portfolios on behalf of the
Trust, and the Agent 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. AGENT APPOINTED BOOKKEEPING AND PRICING AGENT. The Trust hereby
appoints the Agent as bookkeeping and pricing agent for the Portfolios and the
Agent agrees to provide the services contemplated herein upon the terms and
conditions hereinafter set forth.
2. DEFINITIONS. In this Agreement the terms below have the following
meanings:
(a) AUTHORIZED PERSON. Authorized Person means any of the persons duly
authorized to give Proper Instructions or otherwise act on behalf of the Trust
by appropriate resolution of the Board of Trustees of the Trust The Trust will
at all times maintain on file with the Agent certification, in such form as may
be acceptable to the Agent, of (i) the names and signatures of the Authorized
Person(s) and (ii) the names of the members of the Board of Trustees of the
Trust, it being understood that upon the occurrence of any change in the
information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Trust will provide a new
or amended certification setting forth the change. The Agent will be entitled to
rely upon any Proper Instruction (defined below) which has been signed by
person(s) named in the most recent certification.
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(b) PROPER INSTRUCTIONS. Proper Instructions means any request,
instruction or certification signed by one or more Authorized Persons. Oral
instructions will be considered Proper Instructions if the Agent reasonably
believes them to have been given by an Authorized Person and they are confirmed
in writing. Proper Instructions may include communication effected directly
between electromechanical or electronic devices as agreed upon by the parties
hereto.
3. DUTIES OF THE AGENT. The Agent agrees to provide or to arrange to
provide at its expense the following services for the Trust:
(a) Maintain separate accounts for the Portfolios, all as directed from time to
time by Proper Instructions;
(b) Timely calculate and transmit to NASDAQ each Portfolio's daily net asset
value and public offering price (such determinations to be made in
accordance with the provisions of the Declaration of Trust and the
appropriate prospectus and statement of additional information relating to
the Portfolios, and any applicable resolutions of the Board of Trustees of
the Trust) and promptly communicate such values and prices to the
Portfolio's and the Portfolio's transfer agent;
(c) Maintain and keep current all books and records of the Fund as required by
Section 31 and the rules thereunder under the 1940 Act ("Section 31") in
connection with the Agent's duties hereunder. The Agent shall comply with
all laws, rules and regulations applicable to the performance of its
obligations hereunder. Without limiting the generality of the foregoing,
the Agent will prepare and maintain the following records upon receipt of
information in proper form from Authorized Persons of the Trust:
(i) Cash receipts journal
(ii) Cash disbursements journal
(iii) Dividend records
(iv) Purchase and sales - portfolio securities journals
(v) Subscription and redemption journals
(vi) Security ledgers
(vii) Broker ledgers
(viii) General ledger
(ix) Daily expense accruals
(x) Daily income accruals
(xi) Securities and monies borrowed or loaned and collateral
therefore
(xii) Foreign currency journals
(xiii) Trial balances
(d) Provide the Trust and its investment adviser(s) with daily portfolio
values, net asset values and other statistical data for each Portfolio as
requested from time to time.
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(e) Compute the net income, exempt interest income and capital gains of the
Portfolio for dividend purposes in accordance with relevant prospectus
policies and resolutions of the Board of Trustees of the Trust.
(f) Provide the Portfolio and its investment adviser(s) with copies of the
semi-annual and annual financial statements to be furnished to shareholders
of each Portfolio and all raw financial data necessary for the timely
preparation of tax returns, Form N-SAR, prospectus updates, Rule 24f-2
filings and proxy statements.
(g) Provide facilities to accommodate annual audits and any audits or
examinations conducted by the Securities and Exchange Commission or other
governmental entities.
(h) Provide audited financial statements regarding the Agent on an annual
basis, as requested. Such audits shall be conducted by an independent
accounting firm mutually agreed upon by the Agent and the Trust.
(i) Furnish to the Trust at the end of every month, and at the close of each
quarter of the Trust's fiscal year, a list of the portfolio securities and
the aggregate amount of cash in the Portfolios.
(j) Assist in the preparation of certain reports, audits of accounts, and other
matters of like nature, as reasonably requested from time to time by the
Trust.
The Agent shall for all purposes be deemed to be an independent
contractor and shall, unless otherwise expressly authorized, have no authority
to act for or represent the Fund in any way or otherwise be deemed an agent of
the Trust.
4. SUBCONTRACTORS. It is understood that the Agent may from time to
time at its own expense delegate the performance of all or a portion of its
obligations under this Agreement to one or more persons (hereinafter
"subcontractor(s)") as the Agent may believe to be particularly fit to assist it
in the performance of this Agreement. The Agent shall provide oversight over any
subcontractor(s) who shall in turn provide services pursuant to an agreement
with the Agent approved by a resolution of the Board of Trustees of the Trust.
5. INSTRUCTIONS TO THE AGENT. The Agent shall promptly take all
appropriate steps necessary to carry out or comply with any Proper Instructions
received from the Trust.
6. AGENT COMPENSATION. In consideration for the services to be
performed by the Agent, the Agent shall be entitled to receive from the Fund
such compensation as set forth in the Administration Agreement.
7. LIABILITY OF THE AGENT.
(a) The Agent may rely upon the written advice of counsel for
the Trust and the Trust's independent accountants, and upon oral or written
statements of brokers and other persons reasonably believed by the Agent in good
faith to be expert in the matters upon which they are
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consulted and, for any actions reasonably taken in good faith reliance upon such
advice or statements and without negligence, the Agent shall not be liable to
anyone.
(b) Nothing herein contained shall be construed to protect the
Agent against any liability to the Trust or its security holders to which the
Agent would otherwise be subject by reason of willful misfeasance, bad faith or
negligence in the performance of its duties.
(c) Except as may otherwise be provided by applicable law,
neither the Agent nor its shareholders, officers, directors, employees or agents
shall be subject to, and the Trust shall indemnify and hold such persons
harmless from and against, any liability for and any damages, expenses or losses
incurred by reason of the inaccuracy of factual information furnished to the
Agent or any subcontractor(s) by an Authorized Person of the Fund.
(d) The Agent shall ensure that it or any subcontractors have
and maintain Errors and omissions Insurance for the services rendered under this
Agreement of at least S1 million (provided the Board of Trustees of the Trust
may by resolution approve some lesser amount). The Agent shall provide to the
Trust annually a certificate from the appropriate errors and omissions insurance
carrier(s) certifying that such Errors and Omissions Insurance is in full force
and effect.
8. REPORTS. Whenever, in the course of performing its duties under
this Agreement, the Agent determines, on the basis of information supplied to
the Agent by the Trust or its authorized agents, that a violation of applicable
law has occurred or that, to its knowledge, a possible violation of applicable
law may have occurred or, with the passage of time, would occur, the Agent shall
promptly notify the Trust and its counsel.
9. ACTIVITIES OF THE AGENT. The services of the Agent under this
Agreement are not to be deemed exclusive, and the Agent shall be free to render
similar services to others so long as its services hereunder are not impaired
thereby.
10. ACCOUNTS AND RECORDS. The accounts and records maintained by the
Agent shall be the property of the Trust, and shall be surrendered to the Trust
promptly upon receipt of Proper Instructions from the Trust in the form in which
such accounts and records have been maintained or preserved. The Agent agrees to
maintain a back-up set of accounts and records of the Trust (which back-up set
shall be updated on at least a weekly basis) at a location other than that where
the original accounts and records are stored. The Agent 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 by the Agent 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. There
shall be no additional fee for these services. The Agent shall preserve the
accounts and records, as they are required to be maintained and preserved by
Section 31 of the Investment Company Act of 1940.
11. CONFIDENTIALITY. The Agent agrees that it will, on behalf of
itself and its officers and employees, treat all transactions contemplated by
this Agreement, and all other information germane thereto, as confidential and
not to be disclosed to any person except as may be authorized by the Trust in
Proper Instructions.
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12. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective as of the date hereof. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS AGREEMENT, THE AGENT MAY NOT TERMINATE THIS AGREEMENT PRIOR TO THE LATER
OF: (i) THE EXPIRATION OF THE INITIAL OR ANY RENEWAL TERM OF THE ADMINISTRATION
AGREEMENT; OR (II) THE EFFECTIVENESS OF ANY TERMINATION NOTICE PURSUANT TO THE
ADMINISTRATION AGREEMENT.
Upon termination of this Agreement, the Agent shall deliver to the
Trust or as otherwise directed in Proper Instructions (at the expense of the
Fund, unless such termination is for breach of this Agreement by the Agent) all
records and other documents made or accumulated in the performance of its duties
or the duties of any subcontractor(s) for the Trust hereunder.
13. ASSIGNMENT. This Agreement shall extend to and shall be binding
upon the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Trust without the
prior written consent of the Agent, or by the Agent without the prior written
consent of the Trust.
14. 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 Colorado
conflict with the 1940 Act or such rules, the latter shall control.
15. NAMES. The names "FGIC Public Trust" and "Trustees of FGIC Public
Trust" refer respectively to the Trust created and the Trustees as trustees but
not individually or personally, acting from time to time under the Declaration
of Trust dated Feb. 23, 1994 and as may be amended from time to time which is
hereby referred to and a copy of which is on file at the office of the Secretary
of the State of Delaware and the principal office of the Trust. The obligations
of "FGIC Public Trust" entered into in the name or on behalf thereof by any of
the Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of the Trust personally, but bind only the Trust Property, and
all persons dealing with any class of shares of the Trust must look solely to
the Trust Property belonging to such class for the enforcement of any claims
against the Trust.
16. AMENDMENTS TO THIS AGREEMENT. This Agreement may only be amended
by the parties in writing.
17. 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):
TO THE AGENT:
ALPS Mutual Funds Services, Inc.
000 Xxxxxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
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TO THE FUND:
FGIC Public Trust
000 Xxxxxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
18. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
FGIC PUBLIC TRUST
BY:
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ATTEST:
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ALPS MUTUAL FUNDS SERVICES, INC.
BY:
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ATTEST:
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