TRANSFER AGENCY AND SERVICE AGREEMENT
Transfer Agency and Services Agreement (the "Agreement") made this __ day
of December, 2004, between California Investment Trust and California Investment
Trust II, two trusts established under the laws of the State of Massachusetts
(collectively the "Trusts") and ALPS Mutual Funds Services, Inc., a Colorado
corporation having its principal office at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Trusts are open-end management investment companies
registered under the Investment Company Act of 1940, as amended, presently
consisting of 12 portfolios, with nine portfolios having two classes of shares
and three portfolios having one class of shares, listed in Appendix A attached
hereto; each of such investment portfolios and any additional investment funds
that may be established by the Trusts is referred to herein individually as a
"Fund" and collectively as the "Funds"; and
WHEREAS, the Transfer Agent provides certain transfer agency services to
investment companies; and
WHEREAS, the Trusts, desire to appoint the Transfer Agent as the Trusts'
transfer agent, dividend disbursing agent, and agent in connection with certain
other activities, and the Transfer Agent desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Terms of Appointment and Duties
1.1 Transfer Agency Services. Subject to the terms and conditions set
forth in this Agreement, the Trusts, on behalf of the Funds, hereby
employs and appoints the Transfer Agent to act as, and the Transfer
Agent agrees to act as its transfer agent for the Trusts' authorized
and issued shares of its beneficial interest ("Shares"), dividend
disbursing agent, and agent in connection with any accumulation,
open-account or similar plan provided to the shareholders of each of
the respective Funds of the Trusts ("Shareholders") and as set out
in the currently effective prospectus and statement of additional
information ("Prospectus") of the Trusts on behalf of the applicable
Fund, including without limitation any periodic investment plan or
periodic withdrawal program. In accordance with procedures
established from time to time by written agreement between the
Trusts on behalf of each of the Funds, as applicable and the
Transfer Agent agrees that it will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to
the Custodian of the Trusts authorized by the Trusts (the
"Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
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(d) With respect to the transactions enumerated in 1.1 (a), (b) and
(c) above, the Transfer Agent shall execute transactions directly
with broker-dealers and other financial institutions authorized by
the Trusts, deemed to be acting as a limited agent of the Trusts.
The Transfer Agent will execute transactions only from
broker-dealers and other financial institutions who have adopted and
implemented internal controls reasonably designed to ensure that
order or redemption requests received in proper form by the terms
specified in the Prospectus (currently, the close of regular trading
on the New York Stock Exchange) will be processed on that day and
order or redemption requests received in proper form after the terms
specified in the Prospectus (currently, the close of regular trading
on the New York Stock Exchange) will be processed on the next
business day;
(e) At the appropriate time as and when it receives monies paid to
it by the Custodian with respect to any redemption, pay over or
cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Trusts on behalf of the applicable Fund;
(h) Maintain records of account for and advise the Trusts and its
Shareholders as to the foregoing;
(i) Record the issuance of Shares of the Trusts and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number of
Shares of the Trusts which are authorized, based upon data provided
to it by the Trusts, and issued and outstanding. The Transfer Agent
shall also provide the Trusts on a regular basis with the total
number of Shares which are authorized and issued and outstanding and
shall have no obligation, when recording the issuance of Shares, to
monitor the issuance of such Shares or to take cognizance of any
laws relating to the issue or sale of such Shares, which functions
shall be the sole responsibility of the Trusts; and
(j) Orders or redemption requests received in proper form by the
terms specified in the Prospectus (currently, the close of regular
trading on the New York Stock Exchange) will be processed by the
Transfer Agent that day and orders or redemption requests received
in proper form after the terms specified in the Prospectus
(currently, the close of regular trading on the New York Stock
Exchange) will be processed by the Transfer Agent on the next
business day.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph 1.1,
the Transfer Agent shall perform the following services:
(a) Other Customary Services. Perform the customary services of a
transfer agent, dividend disbursing agent and, as relevant, agent in
connection with accumulation, open-account or similar plan
(including without limitation any periodic investment plan or
periodic withdrawal program), including but not limited to:
maintaining all Shareholder accounts, preparing Shareholder meeting
lists, withholding taxes on U.S. resident and non-resident alien
accounts and maintaining records with respect to such withholding,
preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing
and mailing confirmation forms and statements of account to
Shareholders for all purchases and redemptions of Shares and other
confirmable transactions in Shareholder accounts, preparing and
mailing activity statements for Shareholders, perform anti-money
laundering and customer identification reviews of Shareholder
accounts, and providing Shareholder account information;
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(b) Control Book. Maintain a daily record and produce a daily report
for the Trusts of all transactions and receipts and disbursements of
money and securities and deliver a copy of such report for the
Trusts for each business day to the Trusts and Custodian no later
than 9:00 AM Eastern Time, or such earlier time as the Trusts may
reasonably require, on the next business day;
(c) "Blue Sky" Reporting. The Trusts shall (i) identify to the
Transfer Agent in writing those transactions and assets to be
treated as exempt from blue sky reporting for each State and (ii)
verify the establishment of transactions for each State on the
system prior to activation and thereafter monitor the daily activity
for each State. The responsibility of the Transfer Agent for the
Trusts' blue sky State registration status is solely limited to the
initial establishment of transactions subject to blue sky compliance
by the Trusts, providing a system which will enable the Trusts to
monitor the total number of Shares sold in each State, and providing
any other information reasonably requested by the Trusts to fulfill
the Trusts' obligation to monitor blue sky compliance;
(d) National Securities Clearing Corporation (the "NSCC"). (i)
accept and effectuate the registration and maintenance of accounts
through Networking and the purchase, redemption, transfer and
exchange of shares in such accounts through Fund/SERV (Networking
and Fund/SERV being programs operated by the NSCC on behalf of
NSCC's participants, including the Trusts), in accordance with,
instructions transmitted to and received by the Transfer Agent by
transmission from the NSCC on behalf of broker-dealers and banks
which have been established by, or in accordance with the
instructions of authorized persons, as hereinafter defined on the
dealer file maintained by the Transfer Agent; (ii) issue
instructions to Trusts' banks for the settlement of transactions
between the Trusts and NSCC (acting on behalf of its broker-dealer
and bank participants); (iii) provide account and transaction
information from the affected Trusts' records on the Transfer
Agent's computer system (the "System") in accordance with NSCC's
Networking and Fund/SERV rules for those broker-dealers; and (iv)
maintain Shareholder accounts on the System through Networking; and
(e) New Procedures. New procedures as to who shall provide certain
of these services in Section 1 may be established in writing from
time to time by mutual agreement between the Trusts and the Transfer
Agent. Pursuant to such agreement the Transfer Agent may at times
perform only a portion of these services and the Trusts or its agent
may perform these services on the Trusts' behalf.
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2. Fees and Expenses
2.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Trusts agree to pay the Transfer Agent fees as
set forth in the attached fee schedule ("Schedule B"). Such fees and
out-of-pocket expenses and advances identified Section 2.2 below may
be changed from time to time subject to mutual written agreement
between the Trusts and the Transfer Agent.
2.2 Out-of-Pocket Expenses. In addition to the fee paid under Section
2.1 above, the Trusts agree to reimburse the Transfer Agent for
reasonable out-of-pocket expenses, including but not limited to
statement and confirmation production, postage, forms,
NSCC interface fees, allocation of service auditor's report,
telephone, records storage, or advances incurred by the Transfer
Agent for the items set out in Schedule B attached hereto.
In addition, any other expenses incurred by the Transfer Agent at
the request or with the consent of the Trusts, will be reimbursed by
the Trusts.
2.3 Postage. Upon receipt of an invoice from Transfer Agent, postage for
mailing of dividends, Trusts reports and other mailings to all
shareholder accounts shall be advanced to the Transfer Agent by the
Trusts at least seven (7) days prior to the mailing date of such
materials.
2.4 Invoices. The Trusts agree to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of the respective
billing notice, except for any fees or expenses that are subject to
good faith dispute. In the event of such a dispute, the Trusts may
only withhold that portion of the fee or expense subject to the good
faith dispute. The Trusts shall notify the Transfer Agent in writing
following the receipt of each billing notice if the Trusts are
disputing any amounts in good faith. If the Trusts does not provide
such notice of dispute within the required time, the billing notice
will be deemed accepted by the Trusts. The Trusts shall settle such
disputed amounts within ten (10) business days from the day on which
the parties agree on the amount to be paid, or at such later date as
may be agreed upon by the Transfer Agent, by payment of the agreed
amount. If no agreement is reached, then such disputed amounts shall
be settled as may be required by law or legal process.
2.5 Late Payments. If any undisputed amount in an invoice of the
Transfer Agent (for fees or reimbursable expenses) is not paid when
due, the Trusts shall pay the Transfer Agent interest thereon (from
the due date to the date of payment) at a per annum rate equal to
one percent (1.0%) plus the Prime Rate (that is, the base rate on
corporate loans posted by large domestic banks) published by The
Wall Street Journal (or, in the event such rate is not so published,
a reasonably equivalent published rate selected by the Trusts) on
the first day of publication during the month when such amount was
due. Notwithstanding any other provision hereof, such interest rate
shall be no greater than permitted under applicable provisions of
Colorado law.
3. Representations and Warranties of the Transfer Agent
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The Transfer Agent represents and warrants to the Trusts that:
3.1 It is a Colorado corporation duly organized and existing and in good
standing under the laws of the State of Colorado.
3.2 It is duly qualified to carry on its business in the State of
Colorado.
3.3 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
3.6 It is, and will continue to be, registered as a transfer agent under
the Securities Exchange Act of 1934, as amended.
3.7 It will adopt and implement written policies and procedures
reasonably designed to prevent violations of the Federal Securities
Laws (as defined under Rule 38a-1 of the Investment Company Act of
1940, as amended) by the Trusts. It will review, no less frequently
than annually, the adequacy of the policies and procedures and the
effectiveness of their implementation and will report to the Trusts,
within a reasonable amount of time, any material changes made to the
policies and procedures since the date of the last report, and any
material changes made to the policies and procedures recommended as
a result of the annual review. It will provide the Trusts with an
annual report of each Material Compliance Matter (as defined under
Rule 38a-1 of the Investment Company Act of 1940, as amended) that
occurred since the date of the last report.
4. Representations and Warranties of the Trusts
The Trusts represent and warrant to the Transfer Agent that:
4.1 They are statutory trusts duly organized and existing and in good
standing under the laws of the state of Massachusetts..
4.2 They are empowered under applicable laws and by its Agreement and
Declaration of Trust and Bylaws to enter into and perform this
Agreement.
4.3 All trust proceedings required by said Agreement and Declaration of
Trust and Bylaws have been taken to authorize it to enter into and
perform this Agreement.
4.4 They are open-end management investment company registered under the
Investment Company Act of 1940, as amended.
4.5 A registration statement under the Securities Act of 1933, as
amended is currently, or will be upon commencement of operations,
effective and will remain effective, and appropriate state
securities law filings have been made and will continue to be made,
with respect to all Shares of the Trusts being offered for sale.
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5. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial
Code
5.1 Obligation of Sender. The Transfer Agent is authorized to promptly
debit the appropriate Trust account(s) upon the receipt of a payment
order in compliance with the selected security procedure (the
"Security Procedure"), attached hereto as Schedule C chosen for
Trusts transfer and in the amount of money that the Transfer Agent
has been instructed to transfer. The Transfer Agent shall execute
payment orders in compliance with the Security Procedure and with
the Trusts instructions on the execution date provided that such
payment order is received by the customary deadline as defined in
the then current Prospectus and Statement of Additional Information
for processing such a request, unless the payment order specifies a
later time. All payment orders and communications received after the
customary deadline will be deemed to have been received the next
business day.
5.2 Security Procedure. The Trusts acknowledge that the Security
Procedure it has designated on the Trusts Selection Form, attached
hereto as Schedule C, was selected by the Trusts. The Trusts must
notify the Transfer Agent immediately of any change in the Trusts'
authorized personnel. The Transfer Agent shall verify the
authenticity of all Trusts instructions according to the Security
Procedure. The Transfer Agent is authorized to make exceptions to
the Security Procedures if instructed by the Trusts.
5.3 Account Numbers. The Transfer Agent shall process all payment orders
on the basis of the account number contained in the payment order.
In the event of a discrepancy between any name indicated on the
payment order and the account number, the account number shall take
precedence and govern.
5.4 Rejection. The Transfer Agent reserves the right to decline to
process or delay the processing of a payment order which (a) is in
excess of the collected balance in the account to be charged at the
time of the Transfer Agent's receipt of such payment order; (b) if
initiating such payment order would cause the Transfer Agent, in the
Transfer Agent's sole judgment, to exceed any volume, aggregate
dollar, network, time, credit or similar limits which are applicable
to the Transfer Agent; or (c) if the Transfer Agent, in good faith,
is unable to satisfy itself that the transaction has been properly
authorized.
5.5 Cancellation Amendment. The Transfer Agent shall use reasonable best
efforts to act on all authorized requests to cancel or amend payment
orders received in compliance with the Security Procedure provided
that such requests are received in a timely manner affording the
Transfer Agent reasonable opportunity to act. However, in absence of
negligence, bad faith or willful misconduct by the Transfer Agent,
the Transfer Agent assumes no liability if the request for amendment
or cancellation cannot be satisfied.
5.6 Errors. The Transfer Agent shall assume no responsibility for
failure to detect any erroneous payment order provided that the
Transfer Agent complies with the payment order instructions as
received and the Transfer Agent complies with the Security Procedure
and acts without negligence, bad faith or willful misconduct. The
Security Procedure is established for the purpose of authenticating
payment orders only and not for the detection of errors in payment
orders.
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5.7 Interest. Absent negligence, bad faith or willful misconduct, the
Transfer Agent shall assume no responsibility for lost interest with
respect to the refundable amount of any unauthorized payment order,
unless the Transfer Agent is notified of the unauthorized payment
order within sixty (60) days of notification by the Transfer Agent
of the acceptance of such payment order.
5.8 ACH Credit Entries/Provisional Payments. When the Trusts initiate or
receive Automated Clearing House credit and debit entries pursuant
to these guidelines and the rules of the National Automated Clearing
House Association and the New England Clearing House Association,
the Transfer Agent will act as an Originating Depository Financial
Institution and/or Receiving Depository Financial Institution, as
the case may be, with respect to such entries. Credits given by the
Transfer Agent with respect to an ACH credit entry are provisional
until the Transfer Agent receives final settlement for such entry
from the Federal Reserve Bank. If the Transfer Agent does not
receive such final settlement, the Trusts agree that the Transfer
Agent shall receive a refund of the amount credited to the Trusts in
connection with such entry, and the party making payment to the
Trusts via such entry shall not be deemed to have paid the amount of
the entry.
5.9 Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours
notice of which may be delivered through the Transfer Agent's
information systems, or by facsimile or call-back. Trusts must
report any objections to the execution of an order within thirty
(30) days.
6. Indemnification
6.1 Provided that the Transfer Agent follows the Security Proceduers,
the Transfer Agent shall not be responsible for, and the Trusts
shall indemnify and hold the Transfer Agent harmless from and
against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement
(including the defense of any law suit in which the Transfer Agent
or affiliate is a named party), provided that such actions are taken
in good faith and without negligence or willful misconduct;
(b) The Trusts' lack of good faith, negligence or willful
misconduct;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on:
(i) any information, records, documents, data, or services, which
are received by the Transfer Agent or its agents or subcontractors
by machine readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Trusts in
writing, and which have been prepared, maintained or performed by
the Trusts or any other person or firm on behalf of the Trusts
including but not limited to any broker-dealer, TPA or previous
transfer agent; (ii) any instructions or requests of the Trusts or
any of its officers reasonably believed by the Transfer Agent to be
authorized by the Trusts' Board of Trustees; (iii) any instructions
or opinions of the Trust's legal counsel with respect to any matter
arising in connection with the services to be performed by the
Transfer Agent under this Agreement which are provided to the
Transfer Agent after consultation with such legal counsel; or (iv)
any paper or document, reasonably believed to be genuine, authentic,
and signed by the proper person or persons;
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(d) The offer or sale of Shares in violation of federal or state
securities laws or regulations requiring that such Shares be
registered or in violation of any stop order or other determination
or ruling by any federal or any state agency with respect to the
offer or sale of such Shares;
(e) The negotiation and processing of any checks including without
limitation for deposit into the Trusts' demand deposit account
maintained by the Transfer Agent, excluding checks not made payable
to the order of the Trusts, the Trusts' management company,
custodian, transfer agent or distributor or the retirement account
custodian or trustee for a plan account investing in Shares (such
checks are commonly known as "third party checks") which checks are
tendered to the Bank for the purchase of Shares; or
(f) Upon the Trusts' request entering into any agreements required
by the NSCC for the transmission of Trusts or Shareholder data
through the NSCC clearing systems.
6.2 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which the
Trusts may be required to indemnify the Transfer Agent, the Transfer
Agent shall have acted without negligence, bad faith or willful
misconduct and shall promptly notify the Trusts of such assertion,
and shall keep the Trusts advised with respect to all developments
concerning such claim. The Trusts shall have the option to
participate with the Transfer Agent in the defense of such claim or
to defend against said claim in its own name or in the name of the
Transfer Agent. The Transfer Agent shall in no case confess any
claim or make any compromise in any case in which the Trusts may be
required to indemnify the Transfer Agent except with the Trusts'
prior written consent.
6.3 The Transfer Agent agrees to indemnify and hold harmless the Trusts
from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising
under the securities laws and any state or foreign securities and
blue sky laws, and amendments thereto), and expenses, including
(without limitation) reasonable attorneys' fees and disbursements
arising from any action or omission of the Transfer Agent's own
willful misfeasance, lack of good faith, negligence or reckless
disregard of its duties and obligations under this Agreement. For
any legal proceeding giving rise to this indemnification, the
Transfer Agent shall be entitled to defend or prosecute any claim in
the name of the Trusts at the Transfer Agent's own expense through
counsel of its own choosing if it gives written notice to the Trust
within ten (10) business days of receiving notice of such claim.
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7. Standard of Care
The Transfer Agent shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to ensure the accuracy of all
services performed under this Agreement, but assumes no responsibility and
shall not be liable for loss or damage due to errors, including encoding
and payment processing errors, unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees or
agents. According to mutually agreed upon procedures, the Transfer Agent
agrees to use reasonable efforts with regard to the processing of
investments checks. The parties agree that any encoding or payment
processing errors shall be governed by this standard of care and Section
4-209 of the Uniform Commercial Code is superseded by Section 7 of this
Agreement.
8. Confidentiality
8.1 The agent agrees The Transfer Agent and the Trusts agree on behalf
of themelves and their employees to treat confidentially all records
and other information relative to the other party and, if
applicable, their shareholders and shall not be disclosed to any
other party, except after prior notification to and approval in
writing, which approval shall not be unreasonably withheld and may
not be withheld where the agent may be exposed to civil or criminal
contempt proceedings for failure to comply after being requested to
divulge such information by duly constituted authorities. For
purposes of this Agreement, Confidential Information shall also
include:
(a) Any data or information that is competitively sensitive
material, and not generally known to the public, including but not
limited to, information about product plans, marketing strategies,
finance, operations, customer relationship, customer profiles,
Shareholder personal information, sales estimates, business plans,
and internal performance results relating to the past, present or
future business activities of the Trusts or the Transfer Agent,
their respective affiliates and customers, shareholders, clients and
suppliers of any of them;
(b) Any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Trusts or
the Transfer Agent a competitive advantage over its competitors;
(c) All confidential or proprietary concepts, documentation,
reports, data specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how and trade
secrets, whether or not patentable or copyrightable; and
(d) Information that the Trusts are required to keep confidential
pursuant to agreements with third party service providers.
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Confidential information shall not include all or any portion of any
of the foregoing items that: (i) are or become publicly available
without breach of this Agreement; (ii) are released with the written
permission of the other party for general disclosure by a written
release by the Transfer Agent or the Trusts, as the case may be; or
(iii) are independently developed by a party hereto.
The Trusts and the Transfer Agent further covenant and agree to
retain all such knowledge and information acquired during and after
the term of this Agreement respecting such lists, trade secrets, or
any secret or confidential information whatsoever in trust for the
sole benefit of the Transfer Agent or the Trusts and their
successors and assigns. The above prohibition of disclosure shall
not apply to the extent that the Transfer Agent must disclose such
data to its sub-contractor or Trusts agent for purposes of providing
services under this Agreement, provided such parties are bound by
the same obligations to maintain confidentiality as set forth above.
8.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Trusts, other than
request for records of Shareholders pursuant to standard subpoenas
from state or federal government authorities (i.e., divorce and
criminal actions), the Transfer Agent will use reasonable efforts to
notify the Trusts to the extent legally permitted and to secure
instructions from an authorized officer of the Trusts as to such
inspection. The Transfer Agent expressly reserves the right,
however, to exhibit the Shareholder records to any person whenever
it is advised by counsel that it may be held liable for the failure
to exhibit the Shareholder records to such person or if required by
law or court order.
8.3 The Trusts and the Transfer Agent shall each comply with all
applicable laws, rules and regulations relating to privacy,
confidentiality, data security and the handling of personal
financial information applicable to it that may be established from
time to time, including but not limited the polices in the Trust's
then current prospectus, the Xxxxx-Xxxxx-Xxxxxx Act and Securities
and Exchange Commission Regulation S-P (17 CFR Part 248) promulgated
thereunder.
9. Covenants of the Trusts and the Transfer Agent
9.1 The Trusts shall promptly furnish to the Transfer Agent the
following:
(a) A certified copy of the resolution of the Board of Trustees of
the Trusts authorizing the appointment of the Transfer Agent and the
execution and delivery of this Agreement; and
(b) A copy of the Agreement and Declaration of Trust and By-Laws of
the Trusts and all amendments thereto.
9.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Trusts for
safekeeping of check forms and facsimile signature imprinting
devices, if any; and for the preparation or use, and for keeping
account of, such certificates, forms and devices.
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9.3 The Transfer Agent shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable
as required by applicable laws, rules and regulations. To the extent
required by Section 31 of the Investment Company Act of 1940, as
amended, and the Rules thereunder, the Transfer Agent agrees that
all such records prepared or maintained by the Transfer Agent
relating to the services to be performed by the Transfer Agent
hereunder are the property of the Trusts and will be preserved,
maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Trusts on and in
accordance with its request.
9.4 The Transfer Agent shall provide assistance to and cooperate with
the Trusts' internal or external auditors in connection with any
Trust-directed audits. The Transfer Agent shall provide such
assistance in accordance with reasonable procedures and at
reasonable frequencies, which shall not exceed twice each calendar
year unless otherwise agreed to by the parties, and the Trusts shall
provide reasonable advance notice to the Transfer Agent of such
audits. For purposes of such audits, at the request of the Trusts,
the Transfer Agent will use reasonable efforts to make available,
during normal business hours, all required records, data and
operating processes for review by such auditors.
10. Termination of Agreement
10.1 Term. The term of this Agreement shall be until June 30, 2009
("Initial Term") unless terminated pursuant to the provisions of
this Section 10. After the Initial Term, this Agreement will renew
automatically from year to year (each such renewal year and the
Initial Term, each a "Term"). After the initial term, this Agreement
may be terminated by either party upon at least sixty (60) days'
written notice to the other party. No later than one hundred and
eighty (180) days' before the expiration of each Term. Transfer
Agent shall propose to the Trusts an updated fee schedule. No later
than ninety (90) days before the expiration of each Term the parties
to this Agreement will agree upon a Fee Schedule for the upcoming
Term. In the event of the termination of this Agreement, the terms
of this Agreement shall continue in effect until the date that the
Deconversion (defined below) of the Trusts is completed.
10.2 Termination; Deconversion. In the event that this Agreement is
terminated, the Transfer Agent agrees that, in order to provide for
uninterrupted service to the Trusts, the Transfer Agent, at the
Trusts' request, shall offer reasonable assistance and cooperation
to the Trusts in converting the records of the Trusts from the
Transfer Agent's systems to whatever services or systems are
selected by the Trusts (the "Deconversion"). As used herein
"reasonable assistance" and "transitional assistance" shall not
include requiring the Transfer Agent (i) to assist any new service
or system provider (the "new agent") to modify, to alter, to
enhance, or to improve the new agent's system, or to provide any new
functionality to the new agent's system, (ii) to disclose any
Proprietary Information of the Transfer Agent, or (iii) to develop
Deconversion software, to modify any Transfer Agent software, or to
otherwise alter the format of the data as maintained on any Transfer
Agent's systems. Notwithstanding anything contained in this
Agreement to the contrary, should the Trusts desire to carry out
such Deconversion, the Transfer Agent shall use its best efforts to
facilitate the conversion on such date; however, there can be no
guarantee or assurance that the Transfer Agent will be able to
complete a Deconversion by such requested date.
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10.3 Fees and Expenses upon Termination. Should either party exercise its
right to terminate, all reasonable third-party out-of-pocket
expenses or costs associated with the movement of records and
material and programming charges, if any, will be borne by the
Trusts. Additionally, the Transfer Agent reserves the right to
charge a reasonable fee, not to exceed $50,000, for its deconversion
services. In the event of termination of this Agreement, the Trusts
agree to pay the Transfer Agent promptly all amounts due the
Transfer Agent hereunder for services performed and reasonable
third-party out-of-pocket expenditures incurred prior to such
termination
10.4 Confidential Information. Upon termination of this Agreement, each
party shall return to the other party all copies of confidential or
proprietary materials or information received from such other party
hereunder, other than materials or information required to be
retained by such party under applicable laws or regulations.
10.5 Termination by the Trusts. The Trusts, in addition to any other
rights and remedies, shall have the right to terminate this
Agreement upon the occurrence of (i) the bankruptcy of the Transfer
Agent or the appointment of a receiver therefore if such proceedings
are not dismissed within 21 days of being brought, (ii) the sale of
substantially all assets of ALPS Mutual Funds Services, Inc. to an
unaffiliated entity or (iii) the material failure by the Transfer
Agent to perform its duties and obligations under this Agreement or
a material breach of this Agreement by the Transfer Agent. With
respect to (i) and (ii), the termination shall be effective at any
time specified in a written notice from the Trusts to the Transfer
Agent. With respect to (iii), the Trusts shall provide the Transfer
Agent with written notice identifying such failure or breach and
stating its intention to terminate the Agreement in sixty (60) days
from the date of such notice if such failure or breach has not been
cured by the Transfer Agent within thirty (30) days after receipt of
such written notice from the Trusts, except that any failure by the
Transfer Agent to maintain its registration as a transfer agent must
be cured immediately.
10.6 Termination by the Transfer Agent. The Transfer Agent, in addition
to any other rights and remedies, shall have the right to terminate
this Agreement upon the occurrence at any time of (i) the bankruptcy
of the Trusts or the appointment of a receiver therefore if such
proceedings are not dismissed within 21 days of being brought, or
(ii) the material failure by the Trusts to perform its duties and
obligations under this Agreement or a material breach of this
Agreement by the Trusts. With respect to (i), the termination shall
be effective at any time specified in a written notice from the
Transfer Agent to the Trusts. With respect to (ii), the Transfer
Agent shall provide the Trusts with written notice identifying such
failure or breach and stating its intention to terminate the
Agreement in sixty (60) days from the date of such notice if such
failure or breach has not been cured by the Trusts within thirty
(30) days after receipt of such written notice from the Transfer
Agent.
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11. Assignment and Third Party Beneficiaries
11.1 Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the written consent of the other
party. Any attempt to do so in violation of this Section shall be
void. Unless specifically stated to the contrary in any written
consent to an assignment, no assignment will release or discharge
the assignor from any duty or responsibility under this Agreement.
11.2 Except as explicitly stated elsewhere in this Agreement, nothing
under this Agreement shall be construed to give any rights or
benefits in this Agreement to anyone other than the Transfer Agent
and the Trusts, and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive
benefit of the Transfer Agent and the Trusts. This Agreement shall
inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
11.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Transfer Agent and the Trusts. Other than
as provided in Section 12.1 and Schedule 1.1, neither party shall
make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
12. Subcontractors
12.1 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties such as by way of
example and not limitation, Airborne Services, Federal Express,
United Parcel Service, the U.S. Mails, the NSCC and
telecommunication companies, provided, if the Transfer Agent
selected such company, the Transfer Agent shall have exercised due
care in selecting the same, and shall have acted without negligence,
bad faith or willful misconduct.
13. Miscellaneous
13.1 Amendment. This Agreement may be amended or modified by a written
agreement executed by both parties and, if material, authorized or
approved by a resolution of the Board of Trustees of the Trusts.
13.2 Colorado Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws
of the state of Colorado.
13.3 Force Majeure. In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of
God, strikes, equipment or transmission failure or damage reasonably
beyond its control, or other causes reasonably beyond its control,
and such party has acted without negligence, bad faith or willful
misconduct, such party shall not be liable for damages to the other
for any damages resulting from such failure to perform or otherwise
from such causes. In the event of a disaster rendering the Transfer
Agent's systems or facilities inoperable, the Transfer Agent will
use all reasonable efforts to continue to provide services to the
Trusts in accordance with the Transfer Agent's then current Business
Contingency plan, which includes such general back-up facilities as
the Transfer Agent reasonably determines to be appropriate.
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13.4 Notice. A copy of the Agreement and Declaration of Trust is on file
with the Secretary of the Commonwealth of Massachusetts, and notice
is hereby given that this instrument is executed on behalf of the
Board of Trustees of the Trusts as Trustees and not individually and
that the obligations of this instrument are not binding upon any of
the Trustees or shareholders individually but are binding only upon
the assets and property of the Trusts.
13.5 Survival. All provisions regarding indemnification, warranty,
liability, and limits thereon, and confidentiality and/or
protections of proprietary rights and trade secrets shall survive
the termination of this Agreement.
13.6 Severability. If any provision or provisions of this Agreement shall
be held invalid, unlawful, or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way
be affected or impaired.
13.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this
Agreement and any Schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
13.8 Waiver. No waiver by either party or any breach or default of any of
the covenants or conditions herein contained and performed by the
other party shall be construed as a waiver of any succeeding breach
of the same or of any other covenant or condition.
13.9 Merger of Agreement. This Agreement plus the documents in Schedule
C. attached hereto, constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to
the subject matter hereof whether oral or written.
13.10 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.
13.11 Reproduction of Documents. This Agreement and all schedules,
exhibits, attachments and amendments hereto may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto each agree
that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business,
and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
13.12 Notices. All notices and other communications as required or
permitted hereunder shall be in writing and sent by first class
mail, postage prepaid, addressed as follows or to such other address
or addresses of which the respective party shall have notified the
other.
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(a) ALPS Mutual Funds Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: General Counsel
Fax: 000.000.0000
(b) If to the Trusts, to:
California Investment Trust &
California Investment Trust II
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Fax: 000.000.0000
14. Additional Trusts
In the event that the Trusts establish one or more Funds, in addition to
those listed on the attached Schedule A, with respect to which it desires
to have the Transfer Agent render services as transfer agent under the
terms hereof, it shall so notify the Transfer Agent in writing, and if the
Transfer Agent agrees in writing to provide such services, such Fund shall
become a Fund hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
ALPS MUTUAL FUNDS SERVICES, INC. CALIFORNIA INVESTMENT TRUST &
CALIFORNIA INVESTMENT TRUST II
By: By:
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Name: Name:
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Title: Title:
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