TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
FGIC PUBLIC TRUST
AND
ALPS MUTUAL FUNDS SERVICES, INC.
TABLE OF CONTENTS
Page
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Article 1. Terms of Appointment; Duties 2
Article 2. Fees and Expenses 6
Article 3. Representations and Warranties of ALPS 7
Article 4. Representations and Warranties of the Trust 8
Article 5. Data Access and Proprietary Information 8
Article 6. Indemnification 11
Article 7. Standard of Care 14
Article 8. Covenants of the Trust and ALPS 14
Article 9. Termination of Agreement 16
Article 10. Assignment 16
Article 11. Amendment 17
Article 12. Colorado Law to Apply 17
Article 13. Merger of Agreement 17
Article 14. Counterparts 17
Article 15. Limitation of Liability of the Trustees
and Shareholders 18
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 15th day of March, 1994, by and between FGIC
PUBLIC TRUST, a Delaware business trust, having its principal office and place
of business at 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the
"Trust"), and ALPS MUTUAL FUNDS SERVICES, INC., a Colorado Corporation having
its principal office and place of business at the above address ("ALPS" or the
"Administrator");
WHEREAS, THE TRUST AND ALPS HAVE ENTERED INTO AN ADMINISTRATION AGREEMENT
DATED AS OF FEBRUARY 1, 1994 (THE "ADMINISTRATION AGREEMENT") PURSUANT TO WHICH
ALPS IS TO PROVIDE VARIOUS SERVICES,
WHEREAS, the Trust IN ACCORDANCE WITH THE ADMINISTRATION Agreement desires
to appoint ALPS as its transfer agent, dividend disbursing agent and agent in
connection with certain other activities, and ALPS desires to accept such
appointment;
WHEREAS, the Trust is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets; and
WHEREAS, the Trust presently offers shares in two separate series, the
Enhanced Government Income Fund (the "Enhanced Fund") and the Treasury Money
Market Fund (the "Money Market Fund");
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Article 1. TERMS OF APPOINTMENT; DUTIES OF ALPS
1.01 Subject to the terms and conditions set forth in this Agreement,
the Trust hereby employs and appoints ALPS to act as, and ALPS agrees to act as
its transfer agent for the Trust's authorized and issued shares of beneficial
interest in the Trust or any other fund of the Trust ("Shares"), dividend
disbursing agent and agent in connection with any accumulation, open-account or
similar plans provided to the shareholders of the Trust ("Shareholders") and set
out in the currently effective prospectus and statement of additional
information ("prospectus") of the Trust, including without limitation any
periodic investment plan or periodic withdrawal program.
1.02 ALPS agrees that it will perform the following services in
accordance with the Trust's prospectus:
(a) In accordance with procedures established from time to time
by agreement between the Trust and ALPS, ALPS shall:
(i) Receive for acceptance, orders for the purchase of Shares, promptly
deliver payment and appropriate documentation thereof to the Custodians of the
Trust authorized pursuant to the Declaration of Trust of the Trust (who is
referred to herein as the "Custodian"), and make proper remittance of any sales
load received by it to the persons entitled to the same as instructed by the
Trust's Administrator;
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(ii) Pursuant to purchase orders, issue the appropriate number of Shares and
hold Shares in the appropriate Shareholder account;
(iii) In the event any check or other order for the transfer of money is
returned unpaid, take such steps as it may deem appropriate or the
Trust may instruct to protect the Trust and ALPS from financial loss;
(iv) Receive for acceptance redemption requests and redemption directions
and deliver the appropriate documentation thereof to the appropriate
Custodian;
(v) In respect to the transactions in items (i), (ii) and (iv) above, ALPS
shall execute transactions directly with broker-dealers authorized by
the Trust who shall thereby be deemed to be acting on behalf of the
Trust; 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;
(vii) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(viii) Prepare and transmit payments (or where appropriate credit a
Shareholder account) for dividends and distributions declared by a
Fund;
(ix) Issue replacement certificates for those certificates alleged to have
been lost, stolen or destroyed upon receipt by ALPS of indemnification
satisfactory to ALPS and protecting ALPS and the Trust, and ALPS at its
option, may issue replacement certificates in place of mutilated stock
certificates upon presentation thereof and without such indemnity;
(x) Maintain records of account for and advise the Trust and its
Shareholders as to the foregoing; and Record the issuance of Shares of
the Trust and maintain pursuant to SEC Rule 17Ad-lO(e) a record of the
total number of Shares of the Trust which are authorized, based upon
data provided to it by the Trust, and issued and outstanding. ALPS
shall also provide the Trust 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 Trust.
(b) In addition to and neither in lieu nor in contravention of
the services set forth in the above paragraph (a), ALPS shall:
(i) perform the customary services of a transfer agent, dividend
disbursing agent and, as relevant, agent in connection with accumulation,
open-account or similar plans (including without limitation any periodic
investment plan or periodic withdrawal program), including but not limited to:
maintaining all Shareholder accounts, preparing shareholder meeting lists,
mailing proxies, mailing Shareholder reports and prospectuses to current
Shareholders, 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, responding to Shareholder
telephone calls and Shareholder correspondence, preparing and mailing activity
statements for Shareholders, and providing Shareholder account information and
(ii) provide a system which will enable the Trust to monitor the total number of
Shares sold in each State.
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(c) In addition, the Trust's outside legal counsel shall (i)
identify to ALPS 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 ALPS for a
Fund's blue sky State registration status is solely limited to the initial
establishment of transactions subject to blue sky compliance by such Fund and
the reporting of such transactions to the Fund as provided above.
(d) Procedures as to who shall provide certain of these services
in Article 1 may be established from time to time by agreement between the Trust
and ALPS per the attached service responsibility schedule. ALPS may at times
perform only a portion of these services and the Trust or its agent may perform
these services on the Trust's behalf.
(e) ALPS shall provide additional services on behalf of the
Trust (i.e., escheatment services) which may be agreed upon in writing between
the Trust and ALPS.
Article 2. FEES AND EXPENSES
2.01 For the performance by ALPS pursuant to this Agreement, the Trust
agrees to pay ALPS the fees IN ACCORDANCE WITH THE TERMS OF THE ADMINISTRATION
AGREEMENT.
2.02 In addition to the fee paid under Section 2.01 above, the Trust
agree(s) to reimburse ALPS for tabulating proxies. In addition, any other
expenses incurred by ALPS at the request or with the consent of the Trust, will
be reimbursed by the Fund.
2.03 The Trust agree(s) to pay all fees and reimbursable expenses
within thirty days following the receipt of the respective billing notice.
Postage for mailing of proxies to all Shareholder accounts shall be advanced to
ALPS by the Trust at least seven (7) days prior to the mailing date of such
materials.
Article 3. REPRESENTATIONS AND WARRANTIES OF ALPS
ALPS represents and warrants to the Trust that:
3.01 It is a company duly organized and existing and in good standing
under the laws of the State of Colorado.
3.02 It is duly qualified to carry on its business in the State of
Colorado.
3.03 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
Article 4. REPRESENTATIONS AND WARRANTIES OF THE TRUST
The Trust represents and warrants to ALPS that:
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4.01 It is a business trust duly organized and existing and in good
standing under the laws of Massachusetts.
4.02 It is empowered under applicable laws and by its Declaration of
Trust and Code of Regulations to enter into and perform this Agreement.
4.03 All trust proceedings required by said Declaration of Trust and
Code of Regulations have been taken to authorize it to enter into and perform
this Agreement.
4.04 It is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
4.05 A registration statement under the Securities Act of 1933, as
amended is currently 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 Trust being offered for sale.
Article 5. DATA ACCESS AND PROPRIETARY INFORMATION
5.01 The Trust acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and documentation
manuals furnished to the Trust by ALPS as part of the Trust's ability to access
certain related data ("Customer Data") maintained by ALPS on data bases under
the control and ownership of ALPS ("Data Access Services") constitute
copyrighted, trade secret, or other proprietary information (collectively,
"Proprietary Information") of substantial value to ALPS. It is understood that
Customer Data, which includes data provided to ALPS by or on behalf of the Trust
and records belonging to the Trust pursuant to Section 31 of the Investment
Company Act of 1940 as amended (and the Rules thereunder), will not be deemed to
be Data Access Services or Proprietary Information. The Trust agrees to treat
all Proprietary Information as proprietary to ALPS and further agrees that it
shall not divulge any Proprietary Information to any person or organization
except as may be provided hereunder. Without limiting the foregoing, the Trust
agrees for itself and its employees and agents:
(a) to access Customer Data solely from locations as may be designated in
writing by and solely in accordance with ALPS' applicable user
documentation;
(b) to refrain from copying or duplicating in any way the Proprietary
Information;
(c) to refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently obtained, to
inform in a timely manner of such fact and dispose of such information in
accordance with ALPS' instructions;
(d) to refrain from causing or allowing third-party data acquired hereunder
from being retransmitted to any other computer facility or other
location, except with the prior written consent of ALPS;
(e) that the Trust shall have access only to those authorized transactions
agreed upon by the parties;
(f) to honor all reasonable written requests made by ALPS to protect at ALPS'
expense the rights of ALPS in Proprietary Information at common law,
under federal copyright law and under other federal or state law.
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Each party shall take reasonable efforts to advise its employees or
independent service contractors of the obligations pursuant to this Article 5.
The obligations of this Article shall survive any earlier termination of this
Agreement.
5.02 If the Trust notifies ALPS that any of the Data Access Services
do not operate in material compliance with the most recently issued user
documentation for such services, ALPS shall endeavor in a timely manner to
correct such failure. Organizations from which ALPS may obtain certain data
included in the Data Access Services are solely responsible for the contents of
such data and the Trust agrees to make no claim against ALPS arising out of the
contents of such third-party data, including, but not limited to, the accuracy
thereof, provided that ALPS will comply with all reasonable requests for
assistance from the Trust in resolving any claim or other discrepancy the Trust
may have with such third party organizations. DATA ACCESS SERVICES AND ALL
COMPUTER PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE
PROVIDED ON AN AS IS, AS AVAILABLE BASIS (PROVIDED THAT ALPS SHALL CONTINUE TO
BE RESPONSIBLE FOR ANY DELAY IN OR OTHER FAILURE OF PERFORMANCE THAT ARISES AS A
RESULT OF A MATTER REASONABLY WITHIN ALPS' CONTROL). ALPS EXPRESSLY DISCLAIMS
ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
5.03 If the transactions available to the Trust include the ability to
originate a customer originated electronic financial instruction to ALPS in
order to (i) effect the transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information (such transactions constituting a
"COEFI"), then in such event ALPS shall be entitled to rely on the validity and
authenticity of such instruction without undertaking any further inquiry as long
as such instruction is undertaken in conformity with reasonable security
procedures established by ALPS from time to time.
Article 6. INDEMNIFICATION
6.01 ALPS shall not be responsible for, and the Trust shall indemnify
and hold ALPS 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 taken or omitted to be taken by ALPS or its
agent or subcontractors required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and without negligence or
willful misconduct.
(b) The Funds 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 good faith reliance on or use by ALPS or its agents or
subcontractors of written information, records and documents or services which
(i) are received or relied upon by ALPS or its agents or subcontractors and
furnished to it or performed by or on behalf of the Fund, and (ii) have been
prepared, maintained and/or performed by the Fund or any other authorized person
or firm on behalf of the Fund.
(d) The reliance on, or the carrying out by ALPS or its agents
or subcontractors of any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities laws or
regulations of any state that such Shares be registered in
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such state or in violation of any stop order or other determination or ruling by
any federal agency or any state with respect to the offer or sale of such Shares
in such state.
6.02 At any time ALPS may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by ALPS under this
Agreement, and ALPS and its agents or subcontractors shall not be liable and
shall be indemnified by the Trust for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel (provided
such counsel is reasonably satisfactory to the Trust). ALPS, its agents and
subcontractors shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Trust, reasonably believed to be
genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided ALPS or its agents
or subcontractors by machine readable input, telex, CRT data entry or other
similar means authorized by the Trust, and shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Fund. ALPS, its agents and subcontractors shall also be protected and
indemnified in recognizing stock certificates which are reasonably believed to
bear the proper manual or facsimile signatures of the officer(s) of the Trust,
and the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
6.03 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, 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.
6.04 In order that the indemnification provisions contained in this
Article 6 shall apply, upon the assertion of a claim for which the Trust may be
required to indemnify ALPS, ALPS shall promptly notify the Trust of such
assertion, and shall keep the Trust advised with respect to all developments
concerning such claim. The Trust shall have the option to participate with ALPS
in the defense of such claim or to defend against said claim in its own name or
in the name of ALPS. ALPS shall in no case confess any claim or make any
compromise in any case in which the Trust may be required to indemnify ALPS
except with the Trust's prior written consent.
Article 7. STANDARD OF CARE
7.01 ALPS shall at all times act in good faith and agrees to use its
best efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss OF damage due to errors unless said errors are caused by its
negligence, bad faith, or willful misconduct or that of its employees.
Article 8. COVENANTS OF THE TRUST AND ALPS
8.01 The Trust shall promptly furnish to ALPS the following:
(a) A certified copy of the resolution of the Board of Trustees
of the Trust authorizing the appointment of ALPS and the execution and delivery
of this Agreement.
(b) A copy of the Declaration of Trust and Code of Regulations
of the Trust and all amendments thereto.
(c) Copies of each vote of the Board of Trustees of the Trust
designating authorized persons to give instructions to ALPS.
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8.02 ALPS hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, 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.
8.03 ALPS 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, ALPS
agrees that all such records prepared or maintained by ALPS relating to the
services to be performed by ALPS hereunder are the property of the Trust and
will be preserved, maintained and made available in accordance with such Section
and Rules, and will be surrendered promptly to the Trust on and in accordance
with its request. Additionally, ALPS will make reasonably available to the Trust
and its authorized representatives records maintained by ALPS pursuant to this
Agreement for reasonable inspection, use and audit, and will take all reasonable
action to assist the Trust's independent accountants in rendering their opinion.
8.04 ALPS and the Trust agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential and shall not be voluntarily disclosed to any other person,
except as may be required by law.
8.05 In case of any requests or demands for the inspection of the
Shareholder records of the Trust, ALPS will endeavor to notify the Trust and to
secure instructions from an authorized officer of the Trust as to such
inspection. ALPS reserves the right, however, to exhibit the Shareholder records
to any person whenever it is advised by its counsel that it may be held liable
for the failure to exhibit the Shareholder records to such person.
Article 9. TERMINATION OF AGREEMENT
9.01 This Agreement may be terminated by either party upon NINETY-(90)
days written notice to the other. NOT WITHSTANDING ANYTHING TO THE CONTRARY IN
THIN AGREEMENT, ALPS MAY NOT TERMINATE THIS AGREEMENT PRIOR TO THE LATER OF: (i)
the EXPIRATION OF THE INITIAL OR ANY RENEWAL TERM OF THE ADMINISTRATION
AGREEMENT; OR (II) THE EFFECTIVENESS OF ANY TERMINATION NOTICE PURSUANT TO THE
ADMINISTRATION AGREEMENT. THIS AGREEMENT may be terminated immediately by the
Trust should ALPS cease to be qualified to act as the Trust's transfer agent
pursuant to applicable law.
9.02 Should the Trust exercise its right to terminate, other than as a
result of a default under this Agreement by ALPS, all out-of-pocket expenses
associated with the movement of records and material will be borne by the Trust.
Additionally, ALPS reserves the right to charge for any other reasonable
expenses associated with such termination.
Article 10. ASSIGNMENT
10.01 Except as provided in Section 10.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
10.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
10.03 ALPS may, without further consent on the part of the Trust,
subcontract for the performance hereof with (i) State Street Bank Trust, a duly
registered transfer agent pursuant to Section
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17A(c)(l) of the Securities Exchange Act of 1934, as amended ("Section
17A(c)(l)"); provided, however, that ALPS shall be as fully responsible to the
Trust for the acts and omissions of any subcontractor as it is for its own acts
and omissions.
Article 11. AMENDMENT
11.01 This Agreement may be amended or modified by a written agreement
executed by both parties and authorized or approved by a resolution of the Board
of Trustees of the Trust.
Article 12. COLORADO LAW TO APPLY
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of Colorado.
Article 13. MERGER OF AGREEMENT
13.01 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.
Article 14. COUNTERPARTS
14.01 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.
Article 15. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS
15.01 The names "FGIC Public Trust" and "Trustees of FGIC Public
Trust" refer respectively to the Trust created and the Trustees, as trustees but
not individually or personally, acting from time to time under a Declaration of
Trust dated Feb. 23, 1994, which may be further amended from time to time which
i hereby referred to and a copy of which is on file at the office of the
Secretary of the State of Delaware and the principal office of the Trust. The
obligations of "FGIC Public Trust" entered into in the name or on behalf thereof
by any of the Trustees, representatives or agents are made not individually, but
in such capacities, and are not binding upon any of the Trustees, shareholders,
or representatives of the Trust personally, but bind only the Trust Property,
and all persons dealing with any class of shares of the Trust must look solely
to the Trust Property belonging to such class for the enforcement of any claims
against the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
FGIC PUBLIC TRUST
By:
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ATTEST:
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ALPS MUTUAL FUNDS SERVICES, INC.
By:
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ATTEST:
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ALPS MUTUAL FUNDS SERVICES, INC.
FUND SERVICE RESPONSIBILITIES
SERVICE PERFORMED RESPONSIBILITY
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ALPS TRUST
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1. Receives orders for the purchase of Shares. X
2. Issue Shares and hold Shares in Shareholder's accounts. X
3. Receive redemption requests. X
4. Effect transactions 1-3 above directly with broker-dealers. X
5. Pay over monies to redeeming Shareholders. X
6. Effect transfers of Shares. X
7. Prepare and transmit dividends and distributions. X
8. Issue replacement Certificates. X
9. Reporting of abandoned property. X
10. Maintain records of account. X
11. Maintain and keep a current and accurate control
book for each issue of securities. X
12. Mail proxies. X
13. Mail Shareholder reports. X
14. Mail prospectuses to current Shareholders. X
15. Withhold taxes on U.S. resident and non-resident alien accounts. X
16. Prepare and file U.S. Treasury Department forms. X
17. Prepare and mail account and confirmation
statements for Shareholders. X
18. Provide Shareholder account information. X
19. Blue sky reporting. X
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- Such services are more fully described in Article 1.02 (a), (b) and (c) of
the Agreement.
FGIC PUBLIC TRUST
By:
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ATTEST:
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ALPS MUTUAL FUNDS SERVICES, INC.
By:
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ATTEST:
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