COMPLIANCE CONSULTING AGREEMENT
THIS
AGREEMENT is made as of this 16th day of April, 2010, by and between THE EMPIRE
BUILDER TAX FREE BOND FUND (the “Trust”), a Massachusetts business trust having
its principal place of business at 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and ULTIMUS FUND SOLUTIONS, LLC (“Ultimus”), a
limited liability company organized under the laws of the State of Ohio and
having its principal place of business at 000 Xxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxx 00000.
WHEREAS,
the Trust is an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS,
the Trust desires that Ultimus perform certain services for the Trust as
required by Rule 38a-1 under the 1940 Act (“Rule 38a-1”); and
WHEREAS,
Ultimus is willing to perform such services on the terms and conditions set
forth in this Agreement;
NOW,
THEREFORE, in consideration of the mutual premises and covenants herein set
forth, the parties agree as follows:
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1.
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RETENTION
OF ULTIMUS.
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The Trust
hereby retains Ultimus to provide the Trust with the services as set forth
below. Ultimus hereby accepts such retention to perform such
duties.
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(a)
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Ultimus
will provide an individual with the requisite background and familiarity
with the Federal Securities Laws (as defined in Rule 38a-1) to serve as
the Chief Compliance Officer (“CCO”) and to administer the Trust’s
policies and procedures adopted pursuant to Rule
38a-1.
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(b)
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Ultimus
will assist in the preparation and implementation of written policies and
procedures reasonably designed to prevent violation of the Federal
Securities Laws by the Trust, including policies and procedures that
provide for the oversight of compliance by each investment adviser,
principal underwriter, administrator, and transfer agent of the
Trust.
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(c)
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The
CCO shall provide at least annually, or more often as the Board of
Trustees of the Trust reasonably requests, a written report to the Board
that addresses, at a minimum:
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The
operation of the policies and procedures of the Trust and each investment
adviser, principal underwriter, administrator, and transfer agent of the
Trust, and any material changes made to those policies and procedures
since the date of the last report;
and
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Each
Material Compliance Matter (as defined in Rule 38a-1) that occurred since
the date of the last report.
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(d)
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The
CCO shall, no less frequently than annually, meet separately with the
Trust’s Independent Trustees, and shall make himself or herself available
to participate telephonically in the Trust’s quarterly meetings, and shall
provide a written summary of compliance matters for the relevant quarterly
period.
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(e)
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Ultimus
shall maintain the following books and records on behalf of the
Trust:
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A
copy of the Trust’s Compliance Policies and Procedures adopted by the
Trust pursuant to Rule 38a-1 that are in effect, or at any time within the
past five years were in effect, in an easily accessible
place;
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Copies
of materials provided to the Board of Trustees in connection with their
approval under Rule 38a-1, and written reports provided to the Board of
Trustees pursuant to paragraph Rule 38a-1 for at least five years after
the end of the fiscal year in which the documents were provided, the first
two years in an easily accessible place;
and
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Any
records documenting the Trust's annual review pursuant to Rule 38a-1 for
at least five years after the end of the fiscal year in which the annual
review was conducted, the first two years in an easily accessible
place.
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2.
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COMPENSATION.
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Ultimus
shall receive $3,000 per month for the services to be provided under this
Agreement. Such fee contemplates a single series of shares and will
be renegotiated in good faith by the parties if the Trust authorizes additional
series.
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3.
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REIMBURSEMENT
OF EXPENSES.
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In
addition to the fees described in Schedule A attached hereto, Ultimus shall be
promptly reimbursed for its reasonable out-of-pocket expenses in providing
services hereunder.
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4.
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EFFECTIVE
DATE.
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This
Agreement shall become effective as of the date first written
above.
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5.
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TERMINATION
OF THIS AGREEMENT.
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This
Agreement may be terminated, without penalty, (i) by the Trust at any time upon
written notice to Ultimus, or (ii) by Ultimus upon ninety (90) days’ prior
written notice to the Trust.
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6.
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STANDARD
OF CARE.
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The
duties of Ultimus shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against Ultimus hereunder.
Ultimus shall be obligated to exercise care and diligence in the performance of
its duties hereunder and to act in good faith in performing the services
provided for under this Agreement. Ultimus shall be liable for any damages
arising directly or indirectly out of Ultimus’ failure to perform its duties
under this Agreement to the extent such damages arise directly or indirectly out
of Ultimus’ willful misfeasance, bad faith, negligence in the performance of its
duties, or reckless disregard of its obligations and duties
hereunder.
Without
limiting the generality of the foregoing or any other provision of this
Agreement, Ultimus shall not be liable for losses beyond its reasonable control,
provided that Ultimus has acted in accordance with the standard of care set
forth above. Ultimus may consult with counsel for the Trust or its
own counsel and with accountants and other experts with respect to any matter
arising in connection with Ultimus’ duties hereunder, and Ultimus shall not be
liable or accountable for any action taken or omitted by it in good faith in
accordance with such instruction or with the reasonable opinion of such counsel,
accountants or other experts qualified to render such opinion.
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7.
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INDEMNIFICATION.
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The Trust
agrees to indemnify and hold harmless Ultimus from and against any and all
actions, suits, claims, losses, damages, costs, charges, reasonable counsel fees
and disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) (collectively, “Losses”) arising directly or indirectly
out of any action or omission to act which Ultimus takes (i) at any request or
on the direction of or in reliance on the reasonable advice of the Trust, (ii)
upon any instruction, notice or other instrument that Ultimus reasonably
believes to be genuine and to have been signed or presented by a duly authorized
representative of the Trust (other than an employee or other affiliated person
of Ultimus who may otherwise be named as an authorized representative of the
Trust for certain purposes) or (iii) on its own initiative, in good faith and in
accordance with the standard of care set forth herein, in connection with the
performance of its duties or obligations hereunder; provided, however that the
Trust shall have no obligation to indemnify or reimburse Ultimus under this
Article 7 to the extent that Ultimus is reimbursed or indemnified for such
Losses under any liability insurance policy described in this Agreement or
otherwise although, the Trust acknowledges that any insurer or other party may
be subrogated to Ultimus’ rights hereunder.
Ultimus
shall not be indemnified against or held harmless from any Losses to the extent
such Losses arise directly or indirectly out of Ultimus’ own willful
misfeasance, bad faith, negligence in the performance of its duties, or reckless
disregard of its obligations and duties hereunder.
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8.
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RIGHTS
OF OWNERSHIP; RETURN OF RECORDS.
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All
records and other data except computer programs and procedures developed to
perform services required to be provided by Ultimus are the exclusive property
of the Trust and all such records and data will be furnished to the Trust in
appropriate form as soon as practicable after termination of this Agreement for
any reason. Ultimus may at its option at any time, and shall promptly
upon the Trust’s demand, turn over to the Trust and cease to retain Trust files,
records and documents created and maintained by Ultimus pursuant to this
Agreement which are no longer needed by Ultimus in the performance of its
services or for its legal protection. If not
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so turned
over to the Trust, (1) such documents and records will be copied and complete
copies shall be delivered to the Trust by Ultimus as soon as reasonably
practical, and (2) the original documents and records will be retained by
Ultimus for six years from the year of creation. At the end of such six-year
period, such records and documents will be turned over to the Trust unless the
Trust authorizes in writing the destruction of such records and
documents.
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9.
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INSURANCE.
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The Trust
shall maintain professional liability insurance coverage that covers the duties
and responsibilities of the CCO (who shall be named as an officer of the Trust)
in providing the services under this Agreement. The Trust shall
notify Ultimus should any of its insurance coverage be canceled or
reduced. Such notification shall include the date of change and the
reasons therefor. Ultimus shall notify the Trust of any material
claims with respect to services performed under this Agreement, whether or not
they may be covered by insurance.
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10.
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AMENDMENTS
TO AGREEMENT.
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This
Agreement, or any term thereof, may be changed or waived only with the written
approval of the Board of Trustees of the Trust.
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11.
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NOTICES.
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Any
notice provided hereunder shall be sufficiently given when sent by registered or
certified mail to the party required to be served with such notice, at the
following address: if to the Trust, at 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. Xxxxx; and if to Ultimus, at
000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X. Xxxxxx;
or at such other address as such party may from time to time specify in writing
to the other party pursuant to this Section.
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12.
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GOVERNING
LAW.
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This
Agreement shall be construed in accordance with the laws of the State of Ohio
without giving effect to the provisions thereof relating to conflicts of
law. To the extent that the applicable laws of the State of Ohio, or
any of the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control.
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13.
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LIMITATION
OF LIABILITY.
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A copy of
the Declaration of Trust of the Trust is on file with the Secretary of the
Commonwealth of Massachusetts, and notice is hereby given that this instrument
is executed on behalf of the Board of Trustees of the Trust and not individually
and that the obligations of this instrument are not binding upon any of the
Trustees, officers or shareholders individually but are binding only upon the
assets and property of the Trust, and Ultimus shall look only to the assets of
the Trust for the satisfaction of such obligations.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed all as of the day and year first above written.
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By: /s/ Xxxx X.
Xxxxxxxxxxx
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Title:
Chairman
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ULTIMUS
FUND SOLUTIONS, LLC
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By:
/s/ Xxxx X.
Xxxxx
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Title:
President
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