EXHIBIT 8(a)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
OPUS INVESTMENT TRUST
AND
ALPS MUTUAL FUNDS SERVICES, INC.
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TABLE OF CONTENTS
Page
1. Terms of Appointment and Duties........................................1
2. Fees and Expenses 5
3. Representations and Warranties of the Transfer Agent...................6
4. Representations and Warranties of the Fund.............................6
5. Wire Transfer Operating Guidelines.....................................7
6. Indemnification.......................................................10
7. Standard of Care......................................................11
8. Confidentiality ......................................................11
9. Covenants of the Fund and the Transfer Agent..........................13
10. Termination of Agreement..............................................14
11. Assignment and Third Party Beneficiaries..............................15
12. Subcontractors ....................................................15
13. Miscellaneous ....................................................16
14. Additional Funds......................................................16
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TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 11th day of October, 2004, by and between Opus
Investment Trust, a Massachusetts business trust, having its principal office
and place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Fund"), and ALPS Mutual Funds Services, Inc., a Colorado corporation having its
principal office and place of business at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund presently offers shares in one series, which shall be named in
the attached Schedule A which may be amended by the parties from time to time
(each such fund, together with all other series subsequently established by the
Fund and made subject to this Agreement in accordance with Section 15, being
herein referred to as a "Portfolio", and collectively as the "Portfolios"); and
WHEREAS, the Fund on behalf of the Portfolios desires to appoint the Transfer
Agent as its 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 Fund, on
behalf of the Portfolios, hereby employs and appoints
the Transfer Agent to act as, and the Transfer Agent
agrees to act as its transfer agent for the Fund's
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 Portfolios of the Fund ("Shareholders") and
as set out in the currently effective prospectus and
statement of additional information ("Prospectus") of
the Fund on behalf of the applicable Portfolio,
including without limitation any periodic investment
plan or periodic withdrawal program. In accordance with
procedures established from time to time by agreement
between the Fund on behalf of each of the Portfolios, as
applicable and the Transfer Agent, 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 Fund
authorized pursuant to the Agreement and Declaration of
Trust of the Fund (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;
(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 Fund, deemed to
be acting as a limited agent of the Fund. 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;
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(g) Prepare and transmit payments for dividends and
distributions declared by the Fund on behalf of the
applicable Portfolio;
(h) Maintain records of account for and advise the Fund and
its Shareholders as to the foregoing;
(i) Record the issuance of Shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total
number of Shares of the Fund which are authorized, based
upon data provided to it by the Fund, and issued and
outstanding. The Transfer Agent shall also provide the
Fund 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 Fund; and
(j) Perform additional telephone support services as
detailed in Schedule 1.1, which may be amended in
writing by the parties from time to time.
(k) 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, 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, and providing Shareholder account
information;
(b) Control Book. Maintain a daily record and produce a
daily report for the Fund of all transactions and
receipts and disbursements of money and securities and
deliver a copy of such report for the Fund for each
business day to the Fund no later than 9:00 AM Eastern
Time, or such earlier time as the Fund may reasonably
require, on the next business day;
(c) "Blue Sky" Reporting. The Fund 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 Fund's
blue sky State registration status is solely limited to
the initial establishment of transactions subject to
blue sky compliance by the Fund, providing a system
which will enable the Fund to monitor the total number
of Shares sold in each State, and providing any other
information reasonably requested by the Fund to fulfill
the Fund's 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 Fund), 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 Fund's banks for the
settlement of transactions between the Fund and NSCC
(acting on behalf of its broker-dealer and bank
participants); (iii) provide account and transaction
information from the affected Fund's 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
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(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 agreement
between the Fund and the Transfer Agent. Pursuant to
such agreement the Transfer Agent may at times perform
only a portion of these services and the Fund or its
agent may perform these services on the Fund's behalf.
2. Fees and Expenses
2.1 Fee Schedule. For the performance by the Transfer Agent
pursuant to this Agreement, the Fund agrees to pay the
Transfer Agent fees as set forth in the attached fee
schedule ("Schedule 2.1"). Such fees and out-of-pocket
expenses and advances identified under Section 2.2 below
may be changed from time to time subject to mutual
written agreement between the Fund and the Transfer
Agent.
2.2 Out-of-Pocket Expenses. In addition to the fee paid
under Section 2.1 above, the Fund agrees to reimburse
the Transfer Agent for reasonable out-of-pocket
expenses, including but not limited to statement and
confirmation production, postage, forms, telephone,
records storage, or advances incurred by the Transfer
Agent for the items set out in Schedule 2.1 attached
hereto. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the
Fund, will be reimbursed by the Fund.
2.3 Postage. Postage for mailing of dividends, Fund reports
and other mailings to all shareholder accounts shall be
advanced to the Transfer Agent by the Fund at least
seven (7) days prior to the mailing date of such
materials.
2.4 Invoices. The Fund agrees 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 Fund may
only withhold that portion of the fee or expense subject
to the good faith dispute. The Fund shall notify the
Transfer Agent in writing within twenty-one (21)
calendar days following the receipt of each billing
notice if the Fund is disputing any amounts in good
faith. If the Fund does not provide such notice of
dispute within the required time, the billing notice
will be deemed accepted by the Fund. The Fund 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 Cost of Living Adjustment. Following each Term, unless
the parties shall otherwise agree and provided that the
service mix and volumes remain consistent as previously
provided in the previous Term, the total fee for all
services shall equal the fee that would be charged for
the same services based on a fee rate (as reflected in a
fee rate schedule) increased by the percentage increase
for the twelve-month period of such previous calendar
year of 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 both parties.
2.6 Late Payments. If any undisputed amount in an invoice of
the Transfer Agent (for fees or reimbursable expenses)
is not paid when due, the Fund 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 Fund) 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
The Transfer Agent represents and warrants to the Fund 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.
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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 is duly licensed to use Envision PowerAgent Transfer
Agency System and will continue to maintain such license
during the term of this Agreement.
3.8 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 Fund. 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 Fund 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 Funds 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.
3.9 It will impose and collect any redemption fees imposed
by the Portfolios of the Fund in accordance with the
terms set forth in the Prospectus.
4. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
4.1 It is a statutory trust duly organized and existing and
in good standing under the laws of the state of
Massachusetts.
4.2 It is 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 It is an 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 Fund being offered for
sale.
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 Fund account(s) upon
the receipt of a payment order in compliance with the
selected security procedure (the "Security Procedure"),
attached hereto as Schedule B chosen for funds 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 Fund instructions on the
execution date provided that such payment order is
received by the customary deadline 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 Fund acknowledges that the
Security Procedure it has designated on the Fund
Selection Form, attached hereto as Schedule B, was
selected by the Fund. The Fund must notify the Transfer
Agent immediately of any change in the Fund's authorized
personnel. The Transfer Agent shall verify the
authenticity of all Fund instructions according to the
Security Procedure. The Transfer Agent is authorized to
make exceptions to the Security Procedures if instructed
by the Fund. For purposes of this section only,
instructions received from representatives of Opus
Investment Management, Inc. , the Fund's Investment
Adviser, will be considered to be instructions from the
Fund.
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.
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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.
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 thirty (30) days of
notification by the Transfer Agent of the acceptance of
such payment order.
5.8 ACH Credit Entries/Provisional Payments. When the Fund
initiates or receives 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 Fund agrees that the Transfer Agent
shall receive a refund of the amount credited to the
Fund in connection with such entry, and the party making
payment to the Fund 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. Fund must report any objections
to the execution of an order within thirty (30) days.
6. Indemnification
6.1 The Transfer Agent shall not be responsible for, and the
Fund 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 Fund's 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 Fund in writing, and which have been
prepared, maintained or performed by the Fund or any
other person or firm on behalf of the Fund including but
not limited to any broker-dealer, TPA or previous
transfer agent; (ii) any instructions or requests of the
Fund or any of its officers reasonably believed by the
Transfer Agent to be authorized by the Fund's Board of
Trustees; (iii) any instructions or opinions of 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 Fund's demand
deposit account maintained by the Transfer Agent,
excluding checks not made payable to the order of the
Fund, the Fund's 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 Fund's request entering into any agreements
required by the NSCC for the transmission of Fund 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 Fund 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 Fund of such assertion, and
shall keep the Fund advised with respect to all
developments concerning such claim. The Fund 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 Fund may be
required to indemnify the Transfer Agent except with the
Fund's prior written consent.
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 Transfer Agent and the Fund agree that they will
not, at any time during the Term of this Agreement or
after its termination, reveal, divulge, or make known to
any person, firm, corporation or other business
organization, any Shareholders' or customers' lists,
trade secrets, cost figures and projections, profit
figures and projections, or any personal information of
the Fund's shareholders or other secret or confidential
information whatsoever, whether of the Transfer Agent or
of the Fund, used or gained by the Transfer Agent or the
Fund during performance under this Agreement. 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 Fund 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 Fund 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 Fund is required to keep
confidential pursuant to agreements with third party
service providers.
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 Fund, as the case
may be; (iii) are already in the possession
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of the receiving party at the time of receipt without
obligation of confidentiality or breach of this
Agreement; (iv) are subsequently disclosed to a party
hereto on a non-confidential basis by a third party that
is not bound by an agreement of non disclosure or
confidentiality with another party hereto or its
affiliates, which rightfully acquired such information;
or (v) are independently developed by a party hereto.
The Fund 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 Fund 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 Fund 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 Fund,
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
Fund to the extent legally permitted and to secure
instructions from an authorized officer of the Fund 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 Fund 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 to the Xxxxx-Xxxxx-Xxxxxx Act and Securities and
Exchange Commission Regulation S-P (17 CFR Part 248)
promulgated thereunder.
9. Covenants of the Fund and the Transfer Agent
9.1 The Fund shall promptly furnish to the Transfer Agent
the following:
(a) A certified copy of the resolution of the Board of
Trustees of the Fund 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 Fund and all amendments thereto.
9.2 The Transfer Agent hereby agrees to establish and
maintain facilities and procedures reasonably acceptable
to the Fund 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.
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 Fund and will be preserved,
maintained and made available in accordance with such
Section and Rules, and will be surrendered promptly to
the Fund on and in accordance with its request.
9.4 The Transfer Agent shall provide assistance to and
cooperate with the Fund's internal or external auditors
in connection with any Fund-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
Fund shall provide reasonable advance notice to the
Transfer Agent of such audits. For purposes of such
audits, at the request of the Fund, 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. On an
annual basis, the Transfer Agent will provide the Fund
with copies of its SAS 70 report. The Fund understands
and agrees that its auditors will be required by the
Transfer Agent to execute a confidentiality agreement
prior to being given access to such records, data and
operating processes.
10. Termination of Agreement
10.1 Term. The term of this Agreement shall be one year
("Initial Term") from the date first stated above unless
terminated pursuant to the provisions of this Section
10. After the Initial Term, this Agreement will renew
automatically from year
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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 ninety (90) days before the expiration of each Term
the parties to this Agreement will agree upon a Fee
Schedule for the upcoming Term. Otherwise, the fees
shall be increased pursuant to Section 2.5 of this
Agreement. 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 Fund 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
Fund, the Transfer Agent, at the Fund's request, shall
offer reasonable assistance to the Fund in converting
the records of the Fund from the Transfer Agent's
systems to whatever services or systems are selected by
the Fund (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
Fund 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.
10.3 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
Fund. Additionally, the Transfer Agent reserves the
right to charge a reasonable fee for its deconversion
services. In the event of termination of this Agreement,
the Fund agrees to pay the Transfer Agent promptly all
amounts due the Transfer Agent hereunder for services
performed and reasonable 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 Fund. The Fund, 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, or (ii) 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), the termination shall be effective at any time
specified in a written notice from the Fund to the
Transfer Agent. With respect to (ii), the Fund 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
Fund,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 Fund
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 Fund to
perform its duties and obligations under this Agreement
or a material breach of this Agreement by the Fund. With
respect to (i), the termination shall be effective at
any time specified in a written notice from the Transfer
Agent to the Fund. With respect to (ii), the Transfer
Agent shall provide the Fund 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 Fund within thirty (30) days
after receipt of such written notice from the Transfer
Agent.
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.
10
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 Fund, and the duties and
responsibilities undertaken pursuant to this Agreement
shall be for the sole and exclusive benefit of the
Transfer Agent and the Fund. 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 Fund. 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 Fund.
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 Fund 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.
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 Fund 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 Fund.
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 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.
11
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.
(a) ALPS Mutual Funds Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Legal Department
(b) If to the Fund, to:
Opus Invesment Trust
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
14. Additional Funds
In the event that the Fund establishes one or more
series of Shares, 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 series
of Shares shall become a Portfolio hereunder.
12
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. OPUS INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: Vice President
13
SCHEDULE A
Fund List
Opus Cash Reserves Fund
14
SCHEDULE 1.1
ADDITIONAL TELEPHONE SUPPORT AND SERVICES
I. SERVICES
1. Transfer Agent and Telephone Support Function
a. Maintain a telephone recording system that records all
orders and instructions. Transfer Agent shall maintain
these records in accordance with applicable federal and
state regulations.
b. Answer telephone inquiries from 7:00 a.m. to 6 p.m.
Mountain time Monday through Friday except for Holidays
as recognized by the New York Stock Exchange from
customers and prospective customers of the Fund.
c. Require shareholder service representatives to obtain a
Series 6 license within 12 months of providing service
for the Fund.
2. Send all literature orders for information received by
the Transfer Agent to the fulfillment agent for the Fund
within one business day.
3. Provide the Fund with reports detailing the calls
received during the month in the form that the Fund may
reasonably request;
ALPS MUTUAL FUNDS SERVICES, INC.OPUS INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: President Tile: Vice President
Date: 10/11/04 Date: 10/12/04
15
SCHEDULE 2.1
Fee Schedule
Base Fee:
Fees are billable on a monthly basis at the rate of 1/12 of the annual fee. A
charge is made for an account in the month that an account opens.
There is a one-time start-up fee of $3,500. Annual Fund Base Fee equals $45,000
per primary class of each fund. Open Account Fee is $15 per open account.
Inactive Account Fee is $5 per inactive account./1/ Closed Account Fee is $0.50
per closed account./2/
Each additional class of shares for each Portfolio will be charged a $5,000
Annual Fund Base Fee plus the Open, Inactive, and Closed Account Fees as noted
above.
/1/ An inactive account is an account with a zero balance that has had
activity in the last eighteen months.
/2/ A closed account is an account with a zero balance that has not had
activity in the last eighteen months.
Out-of-Pocket Fees:
The following fees represent expenses that may be incurred by ALPS from outside
vendors. These fees are passed directly through at cost to our clients as
out-of-pocket expenses. The following fees are estimates and are subject to
change:
. $15 annual fee on fiduciary accounts (may be charged to
shareholders directly)
. Monthly NSCC-interface fees
. The cost of printing and mailing shareholder confirmations and
statements
. The cost of fund-specific statement paper and envelopes
. Customized programming
. Other miscellaneous expenses that may occur at the fund's
direction
ALPS MUTUAL FUNDS SERVICES, INC. OPUS INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ ----------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: Vice President
16
Schedule B
SECURITY PROCEDURES
TELEPHONE VERIFICATION PROCEDURES:
The Transfer Agent will require verification of all of the following by the
caller
[ ] Social Security number or Tax ID number
[ ] Account Registration / Legal Name of
Account
[ ] Mailing Address of Record
FAX VERIFICATION PROCEDURES:
The Transfer Agent will require that the fax contain an authorized signature for
verification. In addition, for faxed applications, the Transfer Agent will
require the shareholder to mail the original in a timely manner.
Phone Fax Mail
------------------------------------------------------------------ --------------- ------------ -----------------------------
NO Signature Signature
Guarantee Guarantee
Required Required(2)
------------------------------------------------------------------ --------------- ------------ --------------- -------------
Redemptions
Wire to bank instructions on record
Wire to new bank instructions
Exchanges between classes
Purchases
Purchase by wire
Transfers
Transfer assets to different account registration
Account Maintenance
Establish new account
Change address of record
Change account registration
Add bank wiring instructions
Remove bank wiring instructions
Change interested party (additional mailings)
Change broker dealer of record
Change dividend options
Addition or removal of authorized signer or transactor
-----------------------------------------------------------------------------------------------------------------------------
In addition to the transaction discussed above, ALPS will follow the following
procedures with respect to corporate accounts:
. The Transfer Agent may require authorization from the Fund to
accept outdated corporate resolutions.
. The Transfer Agent will require authorization from the Fund to
accept transactions or maintenance requests for accounts with
corporate resolutions missing authorized signatories.
ALPS MUTUAL FUNDS SERVICES, INC. OPUS INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------- ----------------------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: Vice President
17
