TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT is made as of May 19,
2009, between Xxxx & Xxxxx Funds Trust (the “Fund”), a business trust
established under the laws of Delaware, and ALPS Fund Services, Inc. (the
“Transfer Agent”), a Colorado corporation having its principal office at 0000
Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000.
WHEREAS,
the Fund is an open-end management investment company registered under the
Investment Company Act of 1940, as amended (“1940 Act”), presently consisting of
one portfolio, listed in Appendix
A;
WHEREAS,
the Transfer Agent provides certain transfer agency services to investment
companies; and
WHEREAS,
the Fund 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 premises and 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, the transfer agent for
the Fund's authorized and issued shares of beneficial interest ("Shares"),
dividend disbursing agent, and agent in connection with any 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 "Procedures"), the
Transfer Agent agrees that it will perform the following services:
(a)
Establish each Shareholder's account in the Fund on the Transfer Agent's
recordkeeping system and maintain such account for the benefit of such
Shareholder in accordance with the Procedures;
(b)
Receive for acceptance and process orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the Custodian
of the Fund authorized by the Fund (the "Custodian");
(c)
Pursuant to purchase orders, issue the appropriate number of Shares and hold
such Shares in the appropriate Shareholder account;
(d)
Receive for acceptance and process redemption requests and redemption directions
and deliver the appropriate documentation thereof to the Custodian;
(e) With
respect to the transactions enumerated in 1.1 (a), (b), (c) and
(d) above, the Transfer Agent shall execute transactions directly with
broker-dealers and other financial institutions authorized by the Fund, and will
be 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 purchase order, exchange or redemption requests received in proper form by
the terms specified in the Prospectus will be processed on that day and purchase
order, exchange or redemption requests received in proper form after the terms
specified in the Prospectus will be processed on the next business
day;
(f) 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;
(g) Effect
transfers of Shares by the registered owners thereof upon receipt of appropriate
instructions;
(h)
Prepare and transmit payments for dividends and distributions declared by the
Fund on behalf of the applicable Portfolio;
(i)
Maintain records of account for and advise the Fund and its Shareholders as to
the foregoing; Transfer Agent shall maintain a record of the number of shares
held by each shareholder of record which shall include name, address, taxpayer
identification and which shall indicate whether certificates exist for such
shares;
(j) Record
the issuance of Shares of the Fund and maintain pursuant to Securities and
Exchange Commission ("SEC") Rule 17Ad-10(e) under the Securities Exchange
Act of 1934, as amended, 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 responsibility of the
Fund and ALPS Distributors, Inc., the Portfolios’ principal
underwriter;
(k)
Orders or redemption requests received in proper form by the terms specified in
the Prospectus 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 will be processed by the Transfer Agent on the next business
day;
(l) ALPS
shall maintain controls and procedures to segregate orders for the purchase of
shares received prior to that day’s computation of net asset value of such
shares from orders received after such computation, and shall determine
correctly the number of shares to be issued based on applicable net asset
value;
(m) Maintain
an Anti-Money Laundering Program in compliance with the USA PATRIOT Act of 2001
and regulations thereunder, and provide the Fund with a copy of such
program;
(n) Perform
services necessary to implement and enforce the Anti-Money Laundering
Program;
(o) Provide
necessary and reasonable access to properly authorized federal examiners so that
they can obtain all necessary information and records relating to the Anti-Money
Laundering Program and to inspect ALPS’ implementation and operation of the
Anti-Money Laundering Program;
(p) Report
to the Department of the Treasury’s Financial Crimes Enforcement Network
suspicious transactions encountered when monitoring certain shareholder activity
and implementing the Fund’s customer identification program; prepare a draft in
accordance with the procedures set forth in 31 CFR §103.15(a)(3) of a joint
Suspicious Activity Report on Form SAR-SF, send a copy to the Fund’s Anti-Money
Laundering Officer, and file the Suspicious Activity Report upon receipt of
final approval from the Fund’s Anti-Money Laundering Officer;
(q) Respond
to telephonic or mail from existing shareholders or their representatives
requesting information regarding matters such as net asset value of Fund shares,
Fund performance, Fund services, Fund investment policies, Fund portfolio
holdings and Fund distributions and classifications thereof for tax
purposes;
(r) Manage
fulfillment process and coordinate with outside vendor;
(s) Compile
monthly reports on call statistics;
(t) ALPS
shall perform such services as are required in order to comply with the rules
and regulations under the 1934 Act, including, but not limited to, Rule 17Ad-17,
regarding searching for lost shareholders;
(u) Issue
replacement checks and place stop orders on original checks based on
Shareholder's representation that a check was not received or was lost. Such
stop orders and replacements will be deemed to have been made at the request of
the Fund, and, as between the Fund and the Transfer Agent, the Fund shall be
responsible for all losses or claims resulting from such
replacement;
(v) The
Transfer Agent shall answer telephone inquiries from 9:00 a.m. to
8:00 p.m., Eastern Time, each day on which the New York Stock Exchange is
open for regular trading. The Transfer Agent shall answer and respond to
inquiries from existing Shareholders, prospective Shareholders of the Fund and
broker-dealers on behalf of such Shareholders in accordance with telephone
scripts provided by the Fund to the Transfer Agent, such inquiries may include
requests for information on account set-up and maintenance, general questions
regarding the operation of the Fund, general account information, including
dates of purchases, redemptions, exchanges and account balances, requests for
account access instructions and literature requests;
(w) Upon
the request of the Fund, the Transfer Agent will provide the Fund with periodic
reports on trading activity in the Fund based on parameters provided to the
Transfer Agent by the Fund, as amended from time to time. The services to be
performed by the Transfer Agent for the Fund hereunder will be ministerial only
and the Transfer Agent shall have no responsibility for monitoring or reviewing
market-timing activities; and
(x)
Receive correspondence pertaining to any former, existing or new Shareholder
account, process such correspondence for proper recordkeeping and respond to
Shareholder correspondence;
(y)
Process any request from a Shareholder to change account registration,
beneficiary, beneficiary information, transfer and rollovers in accordance with
the Procedures;
(z) 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.
(a1)
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.
(b1)
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
11:00 a.m. Eastern Time, or such earlier time as the Fund may reasonably
require, 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) "Blue Sky" Reporting.
The Fund, or its designated agent who provides blue sky services, 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;
(c) 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;
(d) Compliance with Rules and
Regulations. Transfer Agent shall comply (and to the extent Transfer
Agent takes or is required to take action on behalf of the Fund hereunder shall
cause the Fund to comply) with all applicable requirements of the 1940 Act, the
Securities Act of 1933, as amended (the “1933 Act”), the Securities Exchange Act
of 1934, as amended (the “1934 Act”), and other applicable laws, rules,
regulations, orders and code of ethics, as well as all investment restrictions,
policies and procedures adopted by the Fund of which Transfer Agent has
knowledge (it being understood that Transfer Agent is deemed to have knowledge
of all investment restrictions, policies or procedures set out in the Fund’s
public filings or otherwise provided to Transfer Agent). Except as set out in
this Agreement, Transfer Agent assumes no responsibility for such compliance by
the Fund. Transfer Agent shall maintain at all times a program reasonably
designed to prevent violations of the federal securities laws (as defined in
Rule 38a-1 under the 0000 Xxx) with respect to the services provided, and shall
provide to the Fund a certification to such effect no less than annually or as
otherwise reasonably requested by the Fund. Transfer Agent shall make available
its compliance personnel and shall provide at its own expense summaries and
other relevant materials relating to such program as reasonably requested by the
Fund.
(f) Availability of
Facilities. Upon reasonable notice by the Fund, the Transfer Agent shall
make available during regular business hours such of its facilities and premises
employed in connection with the performance of its duties under this Agreement
for reasonable visitation by the Fund, or any person retained by the Fund as may
be necessary for the Fund to evaluate the quality of the services performed by
the Transfer Agent pursuant hereto;
(g) Accounts and
Records. The
accounts and records maintained by Transfer Agent shall be the property of the
Fund. Transfer Agent shall prepare, maintain and preserve such accounts and
records as required by the 1940 Act and other applicable securities laws, rules
and regulations. Transfer Agent shall surrender such accounts and records to the
Fund, in the form in which such accounts and records have been maintained or
preserved, promptly upon receipt of instructions from the Fund. The Fund shall
have access to such accounts and records at all times during Transfer Agent’s
normal business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by Transfer Agent to the Fund at the
Fund’s expense. Transfer Agent shall assist the Fund, the Fund’s independent
auditors, or, upon approval of the Fund, any regulatory body, in any requested
review of the Fund’s accounts and records, and reports by Transfer Agent or its
independent accountants concerning its accounting system and internal auditing
controls will be open to such entities for audit or inspection upon reasonable
request. In the event Transfer Agent receives a request or demand for
the inspection of records relating specifically to the Fund, Transfer Agent will
promptly notify the Fund of such request in writing and obtain instructions from
the Fund as to the handling of such request.
(h)
Transfer Agent may employ or associate itself with a person or persons or
organizations as Transfer Agent believes to be desirable in the performance of
its duties hereunder; provided that, in such event, the compensation of such
person or persons or organizations shall be paid by and be the sole
responsibility of Transfer Agent, and the Fund shall bear no cost or obligation
with respect thereto; and provided further that Transfer Agent shall not be
relieved of any of its obligations under this Agreement in such event and shall
be responsible for all acts of any such person or persons or organizations taken
in furtherance of this Agreement to the same extent it would be for its own
acts.
2. Fees
and Expenses
2.1 Fee Schedule. For the performance of
services 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 ("Appendix
C"). Such fees and out-of-pocket expenses and advances identified in
Section 2.2 below may be changed from time to time subject to mutual
written agreement between the Fund and the Transfer Agent. Notwithstanding
anything to the contrary in this Agreement, fees billed for the services to be
performed by ALPS under this Agreement are based on information provided by the
Fund and such fees are subject to renegotiation between the parties to the
extent such information is determined to be materially different from what the
Fund originally provided to ALPS. During each year of the Term,
unless the parties shall otherwise agree and provided that the service mix and
volumes remain consistent with those provided in the previous year of this
Agreement, the minimum fee that would be charged for the same services would be
the base fee rate (as reflected in Appendix C) increased by 5% per
annum.
ALPS will
bear all expenses in connection with the performance of its services under this
Agreement, except as otherwise provided herein. ALPS will not bear any of the
costs of Fund personnel. Other Fund expenses incurred shall be borne by the Fund
or the Fund’s investment adviser, including, but not limited to, initial
organization and offering expenses; litigation expenses; taxes; costs of
preferred shares; expenses of conducting repurchase offers for the purpose of
repurchasing Fund shares; administrative and accounting expenses; custodial
expenses; interest; Fund directors’ fees; brokerage fees and commissions; state
and federal registration fees; advisory fees; insurance premiums; fidelity bond
premiums; Fund and investment advisory related legal expenses; costs of
maintenance of Fund existence; printing and delivery of materials in connection
with meetings of the Fund’s directors; printing and mailing of shareholder
reports, prospectuses, statements of additional information, other offering
documents, supplements, proxy materials, and other communications to
shareholders; securities pricing data and expenses in connection with electronic
filings with the U.S. Securities and Exchange Commission (the
“SEC”).
2.2 Out-of-Pocket
Expenses. In
addition to the fees 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, NSCC interface fees, allocation of SAS 70 audit fees, telephone,
records storage, or advances incurred by the Transfer Agent for the items set
out in Appendix C
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 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
Bylaws 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 in
accordance with industry standards.
3.6 It
will provide the Fund with all information necessary to complete its filing
requirements in a timely fashion.
3.7 It
is, and will continue to be, duly registered as a transfer agent under the
Securities Exchange Act of 1934, as amended.
3.8 The
Transfer Agent maintains and will continue to maintain a comprehensive
compliance program reasonably designed to prevent violations of the federal
securities laws pursuant to Rule 38a-1 under the 1940 Act. 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 Fund with an annual report
of each Material Compliance Matter (as defined under the Rule 38a-1 under the
0000 Xxx) that occurred since the date of the last report. Upon
request of the Fund, the Transfer Agent will provide to the Fund in connection
with any periodic annual or semi-annual shareholder report filed by the Fund or,
in the absence of the filing of such reports, on a quarterly basis, a
sub-certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 with respect to the
Transfer Agent’s performance of the services set forth in this Agreement and its
internal controls related thereto. In addition, on a quarterly basis, the
Transfer Agent will provide to the Fund a certification in connection with Rule
38a-1 under the 1940 Act. The Transfer Agent reserves the right to amend and
update its compliance program and the measurement tools and certifications
provided thereunder from time to time to order to address changing regulatory
and industry developments. The Transfer Agent will provide the Fund with such
amendments or updates promptly upon effectiveness.
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.
3.10 It
will maintain insurance which covers such risks and is in such amounts, with
such deductibles and exclusions, sufficient for compliance by the Transfer Agent
with all requirements of law and sufficient for the Transfer Agent to perform
its obligations under this Agreement; and all such policies are in full force
and effect and are with financially sound and reputable insurance companies,
funds or underwriters.
4. Representations and
Warranties of the Fund. The Fund represents and warrants to
the Transfer Agent that:
4.1 It
is a business trust duly organized and existing and in good standing under the
laws of the state of Delaware.
4.2 The
Board of Trustees of the Fund has duly authorized it to enter into and perform
this Agreement.
4.3 It
is an open-end management investment company registered under the 0000
Xxx.
4.4 The
Fund has furnished or will furnish, upon request, Transfer Agent with copies of
the Fund’s Articles of Incorporation, advisory agreement, custodian agreement,
transfer agency agreement, administration agreement, current prospectus,
statement of additional information, periodic Fund reports, and all forms
relating to any plan, program or service offered by the Fund. The Fund shall
furnish, within a reasonable time period, to Transfer Agent a copy of any
amendment or supplement to any of the above-mentioned documents. Upon request,
the Fund shall furnish promptly to Transfer Agent any additional documents
necessary or advisable to perform its functions hereunder. As used in this
Agreement the terms “registration statement,” “prospectus” and “statement of
additional information” shall mean any registration statement, prospectus and
statement of additional information filed by the Fund with the SEC and any
amendments and supplements thereto that are filed with the SEC.
A
registration statement under the Securities Act of 1933 Act and the 1940 Act, as
amended, is currently, or will be upon commencement of operations, effective and
will remain effective with respect to the Portfolios, 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.
4.5 Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to make any
modifications to its registration statement or adopt any policies which would
affect materially the obligations or responsibilities of ALPS hereunder without
the prior written approval or ALPS, which approval shall not be unreasonably
withheld or delayed.
5. Wire Transfer Operating
Guidelines/Article 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
attached as Appendix D
hereto (the “Security Procedure”) 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’s
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 Appendix D, was
selected by the Fund. The Fund must notify the Transfer Agent immediately of any
change in the Fund’s authorized personnel under such Security Procedures. 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 Procedure if instructed by the Fund. For purposes of this
Section 12 only, instructions received from representatives of 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.
5.4 Rejection. The Transfer Agent reserves
the right to decline to process or delay the processing of a payment order (i)
which 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; (ii) 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 the Transfer Agent; or (iii) if the Transfer
Agent, in good faith, is unable to satisfy itself that the transaction has been
properly authorized.
5.5 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.
5.6 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.
5.7 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.
5.8 Confirmation. Confirmation of the
Transfer Agent’ execution of payment orders shall ordinarily be provided within
twenty four (24) hours, but no later than forty eight (48) hours, notice of
which may be delivered through the Transfer Agent’ information systems, or by
facsimile or call-back. Confirmation will be delivered to the Shareholders in
accordance with applicable regulations and the terms set forth in the
Prospectus. The 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 lawsuit 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 which arise out of
the breach of any representation or warranty of the Fund hereunder;
(c) 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;
(d) 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 a bank for the purchase of Shares; or
7. Standard of
Care
7.1. The
Transfer Agent shall be obligated to act in good faith and to exercise
commercially reasonable care and diligence in the performance of its duties
under this Agreement, including with regard to the processing of investments
checks using mutually agreed upon procedures. 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 this Section 4
of this Agreement.
7.2 In
the absence of willful misfeasance, bad faith, negligence, or reckless disregard
by Transfer Agent in the performance of its duties, obligations or
responsibilities set forth in this Agreement, Transfer Agent and its affiliates,
including their respective officers, directors, agents and employees, shall not
be liable for, and the Fund agrees to indemnify, defend and hold harmless such
persons from, all taxes, charges, expenses, disbursements, assessments, claims,
losses, damages, penalties, actions, suits, judgments and liabilities
(including, without limitation, attorneys’ fees and disbursements and
liabilities arising under applicable federal and state laws) arising directly or
indirectly from the following:
(i) the
inaccuracy of factual information furnished to Transfer Agent by the Fund, the
Fund’s investment adviser or custodian or any authorized third party on behalf
of the Fund;
(ii) any
reasonable error of judgment or mistake of law or for any loss suffered by the
Fund in connection with the matters to which this Agreement
relates;
(iii) Transfer
Agent’s reliance on any instruction, direction, notice, instrument or other
information provided by the Fund, the Fund’s investment adviser or custodian or
any authorized third party on behalf of the Fund that Transfer Agent reasonably
believes to be genuine;
(iv) failure
to satisfy requests to cancel or amend payment orders, if Transfer Agent
receives such requests without reasonable time to comply with such
requests;
(v) failure
to detect any erroneous payment order, provided that Transfer Agent complies
with the payment order instructions as received and with the Security Procedure
(as defined below);
(vi) lost
interest with respect to the refundable amount of an unauthorized payment order,
unless Transfer Agent is notified of the unauthorized payment order within 30
days of notification by Transfer Agent of the acceptance of such payment order;
or
(vii) any
other action or omission to act which Transfer Agent properly takes in
connection with the provision of services to the Fund pursuant to this
Agreement.
7.3
Transfer Agent shall indemnify and hold harmless the Fund, the Fund’s investment
adviser and their respective officers, directors, agents and employees from and
against any and all taxes, charges, expenses, disbursements, assessments,
claims, losses, damages, penalties, actions, suits, judgments and liabilities
(including, without limitation, attorneys’ fees and disbursements and
liabilities arising under applicable federal and state laws) arising directly or
indirectly from Transfer Agent’s willful misfeasance, bad faith, negligence or
reckless disregard in the performance of its duties, obligations or
responsibilities set forth in this Agreement.
7.4
Notwithstanding anything in this Agreement to the contrary, neither party shall
be liable under this Agreement to the other party hereto for any punitive,
consequential, special or indirect losses or damages. Any indemnification
payable by a party to this Agreement shall be net of insurance maintained by the
indemnified party as of the time the claim giving rise to indemnity hereunder is
alleged to have arisen to the extent it covers such claim.
7.5 In
any case in which either party (the “Indemnifying Party”) may be asked to
indemnify or hold the other party (the “Indemnified Party”) harmless, the
Indemnified Party will notify the Indemnifying Party promptly after identifying
any situation which it believes presents or appears likely to present a claim
for indemnification against the Indemnifying Party although the failure to do so
shall not prevent recovery by the Indemnified Party and shall keep the
Indemnifying Party advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so
elects, such defense shall be conducted by counsel chosen by the Indemnifying
Party and reasonably satisfactory to the Indemnified Party, and thereupon the
Indemnifying Party shall take over complete defense of the claim and the
Indemnified Party shall sustain no further legal or other expenses in respect of
such claim. The Indemnified Party will not confess any claim or make
any compromise in any case in which the Indemnifying Party will be asked to
provide indemnification, except with the Indemnifying Party’s prior written
consent.
8.
Right to
Receive Advice.
(a) Advice of the Fund and
Service Providers. If ALPS is in doubt as to
any action it should or should not take, ALPS may request directions, advice or
instructions from the Fund or the Fund’s investment adviser or, as applicable,
the Fund’s custodian or other service providers.
(b) Advice of
Counsel. If ALPS
is in doubt as to any question of law pertaining to any action it should or
should not take, ALPS may request advice from counsel of its own choosing (who
may be counsel for the Fund, the Fund’s investment adviser, or ALPS, at the
option of ALPS).
(c) Conflicting
Advice. In the
event of a conflict between directions, advice or instructions ALPS receives
from the Fund or any authorized service provider on behalf of the Fund and the
advice ALPS receives from counsel, the Fund and ALPS shall mutually agree upon
the directions, advice or instructions to follow. Upon request, ALPS will
provide the Fund with a copy of the advice of counsel received pursuant to
Section 8(b).
9. Consultation Between the
Parties.
Transfer
Agent and the Fund shall regularly consult with each other regarding Transfer
Agent’s performance of its obligations under this Agreement. In connection
therewith, the Fund shall submit to Transfer Agent at a reasonable time in
advance of filing with the SEC reasonably final copies of any amended or
supplemented registration statement (including exhibits) under the 1933 Act and
the 1940 Act; provided, however, that nothing contained in this Agreement shall
in any way limit the Fund’s right to file at any time such amendments to any
registration statement and/or supplements to any prospectus or statement of
additional information, of whatever character, as the Fund may deem advisable,
such right being in all respects absolute and unconditional.
10. Confidential and Proprietary
Information.
In
accordance with Regulation S-P and other relevant rules and regulations,
Transfer Agent agrees that it will, on behalf of itself and its officers and
employees, treat all transactions contemplated by this Agreement, and all
records and information relative to the Fund and its current and former
shareholders and other information germane thereto, as confidential and as
proprietary information of the Fund and not to use, sell, transfer, or divulge
such information or records to any person for any purpose other than performance
of its duties hereunder, except after prior notification to and approval in
writing from the Fund, which approval shall not be unreasonably withheld.
Approval may not be withheld where Transfer Agent may be exposed to civil,
regulatory or criminal proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when requested by
the Fund. When requested to divulge such information by duly constituted
authorities, Transfer Agent shall use reasonable commercial efforts to request
confidential treatment of such information. Transfer Agent shall have in place
and maintain physical, electronic, and procedural safeguards reasonably designed
to protect the security, confidentiality, and integrity of, and to prevent
unauthorized access to or use of records and information relating to the Fund
and its current and former shareholders.
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. If the Transfer Agent is requested or required
by depositions, interrogatories, request for information or documents, subpoena,
civil investigation, demand or other action, proceeding or process or as
otherwise required by law, statute, regulation, writ, decree or the like to
disclose such information, the Transfer Agent will provide the Fund with prompt
written notice of any such request or requirement so that the Fund may seek an
appropriate protective order or other appropriate remedy and/or waive compliance
with this provision. If such order or other remedy is not sought, or obtained,
or waiver is not received within a reasonable period following such notice, then
the Transfer Agent may, without liability hereunder, disclose to the person,
entity or agency requesting or requiring the information, that portion of the
information that is legally required.
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. The Transfer Agent agrees that it has and shall continue
to have in place and maintain physical, electronic and procedural safeguards
reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of, records and information
relating to customers of the Fund.
11. Business Interruption
Plan.
Transfer
Agent shall maintain in effect a business interruption plan, and enter into any
agreements necessary with appropriate parties making reasonable provisions for
emergency use of electronic data processing equipment customary in the industry.
In the event of equipment failures, Transfer Agent shall, at no additional
expense to the Fund, take commercially reasonable steps to minimize service
interruptions.
12. Customer Identification
Program.
To help
the government fight the funding of terrorism and money laundering activities,
Federal law requires each financial institution to obtain, verify and record
information that identifies each person who opens an account with that financial
institution. Consistent with this requirement, Transfer Agent will request each
party’s name, address, taxpayer identification number or other government-issued
identification number, and if such party is a natural person, that party’s date
of birth. Transfer Agent may also ask for additional identifying information,
and Transfer Agent may take steps to verify the authenticity and accuracy of
these data elements.
13. Covenants of the Fund and
the Transfer Agent
13.1 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 Bylaws of the Fund and all
amendments thereto.
13.2 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.
13.3 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 1940 Act 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.
13.4 In
case of any request or demands for the inspection of the shareholder records of
the Fund, the Transfer Agent will endeavor to notify the Fund and to secure
instructions from an authorized officer of the Fund as to such
inspection.
13.5 The
Transfer Agent shall provide assistance to and cooperate with the Fund' internal
or external auditors or other agents in connection with any Fund-directed audits
or examinations. 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 or
examinations. For purposes of such audits or examinations, 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 or other agents. On an annual basis, the Transfer Agent
will provide the Fund with copies of its SAS 70 report as well as such other
reports and information relative to the Transfer Agent's policies and procedures
and its compliance with such policies and procedures and with the laws
applicable to its business and its services, as the Fund may reasonably request.
The Fund understands and agrees that its auditors or other agents will be
required by the Transfer Agent to execute a confidentiality agreement reasonably
acceptable to the Fund and such auditors or other agents prior to being given
access to such records, data and operating processes.
14. Termination of
Agreement
14.1
Term. The term
of this Agreement shall be three years ("Initial Term") from the date first
stated above unless terminated pursuant to the provisions of this Section 14. 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 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 Fund is
completed.
14.2
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.
14.3
Fees and Expenses upon
Termination.
Should either party exercise its right to terminate this Agreement, all
reasonable out-of-pocket expenses or costs associated with the movement of
records and material will be borne by the Fund. Additionally, if the Agreement
is terminated by the Fund, 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.
14.4
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.
14.5
Termination by the
Fund.
Notwithstanding Section 14.3, the Fund, in addition to any other rights and
remedies, shall have the right to terminate this Agreement, without the payment
of any liquidated damages or other penalty, upon the occurrence of (i) the
bankruptcy of the Transfer Agent or the appointment of a receiver therefor if
such proceedings are not dismissed within 21 days of being brought,
(ii) the material failure by the Transfer Agent to perform its duties and
obligations under this Agreement, or (iii) 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) and (iii), 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.
14.6
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 therefor 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.
15. Assignment and Third Party
Beneficiaries
15.1 Assignment. This
Agreement shall extend to and shall be binding upon the parties hereto and their
respective successors and permitted assigns; provided, however, that this
Agreement shall not be assignable by the Fund without the prior written consent
of ALPS, or by ALPS without the prior written consent of the Fund.
15.2
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.
15.3 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 15.1, neither
party shall make any commitments with third parties that are binding on the
other party without the other party's prior written consent.
16. Unaffiliated Third Party
Service Providers
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, Envision, 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.
17. Miscellaneous
17.1
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.
17.2 Disaster
Recovery. The
Transfer Agent shall enter into and maintain in effect appropriate parties (a)
one or more agreements making reasonable provisions for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available, and (b) emergency data recovery policies and procedures (a “Disaster
Recovery Plan”), which is commercially reasonable in light of the services to be
provided . In the event of equipment failures, the Transfer Agent shall, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions caused by equipment failure
17.3 Activities of Transfer
Agent. The services of Transfer Agent under this Agreement are
not to be deemed exclusive, and Transfer Agent shall be free to render similar
services to others. The Fund recognizes that from time to time directors,
officers and employees of Transfer Agent may serve as directors, officers and
employees of other corporations or businesses (including other investment
companies) and that such other corporations and businesses may include Transfer
Agent as part of their name and that Transfer Agent or its affiliates may enter
into administrative, bookkeeping, pricing agreements or other agreements with
such other corporations and businesses.
17.4 Governing Law. The provisions
of this Agreement shall be construed and interpreted in accordance with the laws
of the State of Colorado and the 1940 Act and the rules thereunder. To the
extent that the laws of the State of Colorado conflict with the 1940 Act or such
rules, the latter shall control.
17.5 Names. The obligations
of the Fund entered into in the name or on behalf thereof by any director,
shareholder, representative, or agent thereof are made not individually, but in
such capacities, and are not binding upon any of the directors, shareholders,
representatives or agents of the Fund personally, but bind only the property of
the Fund, and all persons dealing with the Fund must look solely to the property
of the Fund for the enforcement of any claims against the Fund.
17.6 Amendments to this
Agreement. This Agreement
may only 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.
17.7
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.
17.8 Notices. All notices and other
communications hereunder shall be in writing, shall be deemed to have been given
when received or when sent by telex or facsimile, and shall be given to the
following addresses (or such other addresses as to which notice is
given):
To the
Transfer Agent:
|
|
Name:
|
ALPS
Fund Services, Inc.
|
|
|
Address:
|
0000
Xxxxxxxx, Xxxxx 0000
|
|
|
Xxxxxx,
Xxxxxxxx 00000
|
|
|
Attn:
|
General
Counsel
|
|
|
Fax:
|
(000)
000-0000
|
To the
Fund:
|
|
Name:
|
Xxxx
& Xxxxx Funds Trust
|
|
|
Address:
|
0000
Xxxxxxxxx Xxxxx, Xxxxx 000
|
|
|
Xxxxxxxxxx,
XX 00000
|
|
|
Attn:
|
X.
Xxxx Xxxxx
|
|
|
Fax:
|
(000)
000-0000
|
|
|
Telephone:
|
(000)
000-0000
|
17.9 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.
17.10 Entire Agreement. This Agreement embodies the
entire agreement and understanding among the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof; provided,
however, that the Transfer Agent may embody in one or more separate documents
its agreement, if any, with respect to delegated duties and oral
instructions.
17.11 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.
17.12
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.
17.13 Additional
Portfolios. If
the Fund establishes one or more additional portfolios with respect to which it
wishes to retain ALPS to provide transfer agency services hereunder, it will
notify ALPS in writing. If ALPS is willing to render such services under this
Agreement, it will so notify the Fund in writing, whereupon such series will
become a “Portfolio” as defined hereunder and will be subject to the provisions
of this Agreement to the same extent as the Fund is named above, except to the
extent that such provisions are modified with respect to such new Portfolio in
writing by the Fund and ALPS.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
XXXX
& XXXXX FUNDS TRUST
By: /s/ X. Xxxx
Xxxxx
Name:
X. Xxxx
Xxxxx
Title:
Trustee,
Vice-President and Secretary
ALPS
FUND SERVICES, INC.
By: /s/ Xxxxxx X.
May
Name: Xxxxxx
X. May
Title: President
APPENDIX
A
LIST OF
PORTFOLIOS
The Xxxx
& Xxxxx Fund
Appendix
B intentionally removed
COMPENSATION
Annual Fee: $30,000 annual
base fee per portfolio
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.
Annual
Open Account Fee:
|
Open
Accounts
|
Fees
Per Account
|
|
Direct
and NSCC
|
$15.00
|
Annual
Inactive Account Fee:
$5.50 per
inactive account (an inactive account is an account with a zero balance that has
had activity in the last eighteen months)
Annual
Closed Account Fee:
$0.50 per
closed account (a closed account is an account with a zero balance that has not
had activity in the last eighteen months)
Out-of-Pocket
Fees:
In
addition, the Fund agrees to pay the Transfer Agent its out-of-pocket expenses
including, but not limited to, statement and confirmation production;
portfolio-specific statement paper and envelopes; postage; forms; NSCC interface
fees; 22c-2 fees; sales reporting fees; private label of money market fund fees
and customized programming/enhancements; control review reports; retirement
account disclosure statement language; telephone; records storage; advances
incurred for postage; other miscellaneous expenses that may occur at the Fund’s
discretion. 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. The Transfer
Agent will seek advance approval before incurring any out-of-pocket expenses
that are out of the ordinary course of business.
Late Charges: All invoices are due and
payable upon receipt. Any invoices not paid within thirty (30) days of the
invoice date are subject to a one percent (1%) per month financing charge on any
unpaid balance but only to the extent permitted by law.
APPENDIX
D
SECURITY
PROCEDURE
FUNDS
TRANSFER
Please
complete this form, indicating whether ALPS is authorized to execute the
following procedures by phone, fax, and mail, and if a signature guarantee is
required.
Telephone
Verification Procedures:
ALPS will
require Verification of Social Security number and account registration by the
caller.
|
Funds Transfer Procedures
|
Phone
|
Fax
|
Mail
|
Signature
Guarantee
Required (Y/N)
|
|
Redemptions
|
||||
|
Wire
to bank instructions on record
|
x
|
x
|
x
|
N
|
|
Wire
to new bank instructions
|
x
|
x
|
Y
|
|
|
ACH
to bank instructions on record
|
x
|
x
|
x
|
N
|
|
ACH
to new bank instructions
|
x
|
x
|
Y
|
|
|
Send
by check to address of record
|
x
|
x
|
x
|
N
|
|
Send
by check to different address
|
x
|
x
|
Y
|
|
|
Purchases
|
||||
|
Purchase
by wire
|
x
|
x
|
x
|
N
|
|
Purchase
by check
|
x
|
x
|
x
|
N
|
|
Purchase
by Transfer Agency initiated ACH from Bank instructions on
record
|
x
|
x
|
x
|
N
|
|
By:
|
X. Xxxx Xxxxx
|
/s/ X. Xxxx Xxxxx
|
Vice-President
|
May 19, 2009
|
|
Print
Name
|
Authorized
Signature
|
Title
|
Date
|
ACCOUNT
MAINTENANCE
SECURITY
SELECTION FORM
Please
complete this form, indicating whether ALPS is authorized to execute the
following procedures by phone, fax, and mail, and if a signature guarantee is
required.
Telephone
Verification Procedures:
ALPS will
require verification of social security number and account registration by the
caller.
Fax
Verification Procedures:
ALPS will
verify that the fax contains the appropriate signature.
ALPS will
require that telephone verification should accompany each fax.
|
Account Maintenance
Function
|
Phone
|
Fax
|
Mail
|
Signature
Guarantee
Required (Y/N)
|
|
Establish
New Account
|
x
|
x
|
x
|
N
|
|
Change
to Address of Record
Also
indicate requirements for redemption trades within 15 days of address
change
|
x
|
x
|
x
|
N
Y
|
|
Changing
SS# (need W-9)
|
x
|
x
|
N
|
|
|
Name
Change (Divorce or Marriage)
|
x
|
x
|
Y
|
|
|
Re-Registration
of Acct
|
x
|
x
|
Y
|
|
|
Changing
Bank Wiring or ACH information (Redemp)
|
x
|
x
|
Y
|
|
|
Establishing
Telephone Redemption
|
x
|
x
|
x
|
Y
|
|
Starting
New AIP (cancelled check required)
|
x
|
x
|
x
|
Y
|
|
Canceling
ACH
|
x
|
x
|
x
|
N
|
|
Decreasing
ACH $ Amount
|
x
|
x
|
x
|
N
|
|
Account Maintenance
Function
|
Phone
|
Fax
|
Mail
|
Signature
Guarantee
Required (Y/N)
|
|
Increasing
ACH $ Amount
|
x
|
x
|
x
|
N
|
|
Changing
Bank Info for ACH (AIP Purchases)
|
x
|
x
|
Y
|
|
|
Starting
New SWP (Systematic Withdrawal Plan)
|
x
|
x
|
x
|
N
|
|
Canceling
SWP
|
x
|
x
|
x
|
N
|
|
Decreasing
SWP $ Amount
|
x
|
x
|
x
|
N
|
|
Increasing
SWP $ amount
|
x
|
x
|
x
|
N
|
|
Changing
Bank Info for SWP
|
x
|
x
|
Y
|
|
|
Changing
Dividend Options (Cash & Reinvest)
|
x
|
x
|
x
|
N
|
|
Sending
Dividends to Secondary Address
|
x
|
x
|
Y
|
|
|
Setting
Up Systematic Exchange
|
x
|
x
|
x
|
N
|
|
Setting
Up Systematic Dividend Exchange
|
x
|
x
|
x
|
N
|
|
Adding
Bank Instructions to Account (Non AIP)
|
x
|
X
|
Y
|
|
|
By:
|
X. Xxxx Xxxxx
|
/s/ X. Xxxx Xxxxx
|
Vice-President
|
May 19, 2009
|
|
Print
Name
|
Authorized
Signature
|
Title
|
Date
|
