EXHIBIT (h)(2)
ARRIVATO FUNDS TRUST
SUB-TRANSFER AGENCY AGREEMENT
__________, 2005
Ladies and Gentlemen:
We, the Arrivato Funds Trust (the "Trust"), on behalf of each series of
the Trust set forth on Schedule 1 hereto, as such Schedule may be revised from
time to time (each, a "Fund"), wish to enter into this Sub-Transfer Agency
Agreement (the "Agreement") with you. For purposes of this Agreement, the term
"Shares" shall mean the authorized shares of the relevant Fund. The terms and
conditions of this Agreement are as follows:
1. APPOINTMENT. You hereby agree to perform certain sub-transfer agency
services as hereinafter set forth. Your appointment hereunder is non-exclusive,
and you understand and accept that (a) we are seeking to enter into this
Agreement in counterparts with you and certain other persons, (b) except as we
may otherwise agree with you, we may enter into agreements (which may or may not
be the same as this Agreement) with other persons, and (c) we may, upon notice,
cancel or change the terms of this Agreement.
2. SERVICES TO BE PERFORMED. Pursuant to this Agreement, you shall be
responsible for performing sub-transfer agency services to the extent
permissible under applicable statutes, rules and regulations. Such services may
include: (i) maintaining shareholder accounts which shall include name, address,
taxpayer identification number, and number of shares; (ii) preparation of
shareholder statements; (iii) preparation of confirmations; (iv) preparation of
shareholder lists when reasonably requested by us; (v) mailing shareholder
communications, including, but not limited to, shareholder statements,
confirmations, prospectuses, statements of additional information, annual and
semi-annual reports and proxy statements (collectively, "Shareholder
Communications"); (vi) tabulating proxies; (vii) disbursement of dividends and
other distributions; (viii) withholding taxes on U.S. resident and non-resident
accounts where applicable; (ix) preparation and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required by applicable statutes, rules
and regulations resulting from your role hereunder; and (x) providing such other
similar services directly to clients as we may reasonably request to the extent
you are permitted to do so under applicable statutes, rules and regulations. You
also will provide such office space and equipment, telephone facilities and
personnel (which may be any part of the space, equipment and facilities
currently
used in your business, or any personnel employed by you) as may be reasonably
necessary or beneficial in order to provide the aforementioned services.
3. COMPENSATION. In consideration of the services and facilities provided by
you hereunder, the Trust will pay to you, as provided under the Trust's
Sub-Transfer Agency Plan, and you will accept as full payment therefor, a fee
under the terms and at the rates as set forth in Schedule 2. This fee is not
intended to be compensation for the sale or distribution of Shares or a
"services fee" within the meaning of the NASD Rules.
4. REPRESENTATIONS, Warranties and Undertakings. You represent and warrant
and undertake that:
a) You have the requisite authority and have taken all necessary corporate
action to enter into this Agreement and to perform the services contemplated
herein.
b) With respect to your services hereunder, you will comply with all
applicable provisions of the Securities Act, the Exchange Act and the
Investment Company Act.
c) You will assume full responsibility for (i) monitoring shareholder
accounts, which includes verifying new account information and documentation,
(ii) to the extent we have provided sufficient Trust materials to you or your
agent in a timely manner, the timely delivery to shareholders of all
Shareholder Communications, and (iii) all other services described in this
Agreement, and agreed to from time-to-time by each party to this Agreement.
d) The compensation payable to will be disclosed by you to your clients, will
be authorized by your clients and will not be excessive.
e) The services provided by you under this Agreement will in no event be
primarily intended to result in the sale of Shares.
f) For all purposes of this Agreement, you will be deemed to be an
independent contractor, and you will have no authority to act as agent for us
in any matter or in any respect.
5. INDEMNIFICATION. Neither of us shall be liable to the other except for (i)
acts or failures to act which constitute a lack of good faith or gross
negligence, and (ii) obligations expressly assumed under this Agreement. In
addition, you agree to indemnify us and hold us harmless from any claims or
assertions relating to the lawfulness of your participation in this Agreement
and the services contemplated hereby or relating to any activities of any
persons or entities affiliated with your organization which are performed in
connection with the discharge of your responsibilities under this Agreement for
which you may found liable to us. If such claims are asserted, we shall have the
right to manage
our own defense, including the selection and engagement of legal counsel, and
all costs of such defense will be borne by you.
6. TERM. This Agreement shall become effective upon execution and delivery
hereof. This Agreement may be terminated, without the payment of any penalty, by
either party to this Agreement upon at least sixty days' written notice to the
other party, unless both parties waive such notice.
7. RECORDKEEPING. You will maintain all records required by law to be kept by
you relating to the services under this Agreement and, upon request by the
Trust, promptly make such of these records available to the Trust as the Trust
may reasonably request in connection with its operations.
8. NOTICES. Notices hereunder shall be deemed to have been duly given if
delivered by hand or facsimile (a) if to you, at your address or facsimile
number set forth below and (b) if to us, to Arrivato Funds Trust, 000 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: _______________ or, in each
case, such other address as may be notified to the other party.
9. AMENDMENTS. We may modify this Agreement at any time by written notice to
you. The first services provided by you subsequent to the giving of such notice
shall be deemed acceptance by you of the modification described in such notice.
10. SEVERABILITY. Every provision of this Agreement shall be severable. If a
court of competent jurisdiction determines that any term or provision is illegal
or invalid for any reason, the illegality or invalidity shall not affect the
validity of the remainder of this Agreement.
11. LIMITATION OF LIABILITY. A copy of the Trust Instrument of the Trust is
on file with the Secretary of State of Delaware, and notice is hereby given that
this instrument is executed on behalf of the trustees of the Trust as trustees
and not individually and that the obligations of this instrument are not binding
upon any of the trustees or shareholders individually but are binding only upon
the assets and property of the Fund.
12. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Please confirm your agreement by signing and returning to us the two
enclosed duplicate copies of this Agreement. Upon our acceptance hereof, the
Agreement shall constitute a valid and binding contract between us. After our
acceptance, we will deliver to you one fully executed copy of this Agreement.
Very truly yours,
ARRIVATO FUNDS TRUST,
on behalf of each of
the Funds listed on Schedule 1
By:_____________________________
Name:
Title:
Agreed to:
(Name of Authorized Dealer)
By:_____________________________
Name:
Title:
________________________________
Street Address
________________________________
City State Zip
________________________________
Fax No.
________________________________
Telephone No.
________________________________
Firm Taxpayer Identification No.
SCHEDULE 1
NAME OF FUND
Arrivato Dow Xxxxx U.S. 2010 Fund
Arrivato Dow Xxxxx U.S. 2015 Fund
Arrivato Dow Xxxxx U.S. 2020 Fund
Arrivato Dow Xxxxx U.S. 2030 Fund
Arrivato Dow Xxxxx U.S. 2040 Fund
SCHEDULE 2
COMPENSATION PAYABLE
NAME OF FUND CLASS OF SHARES FEE RATE
The compensation payable under this agreement is the applicable fee rate
of the average daily net asset value of the shares for which you are providing
sub-transfer agency services hereunder (the "Clients' Shares"), which fee will
be computed daily (on the basis of 360 day year) and payable monthly. For
purposes of determining the fees payable under this section, the average daily
net asset value of the Clients' Shares will be computed in the manner specified
in our Registration Statement (as the same is in effect from time to time) in
connection with the computation of the net asset value of Shares for purposes of
purchases and redemptions. By your written acceptance of this Agreement, you
agree to and do waive such portion of any fee payable to you hereunder to the
extent necessary to assure that such fee and other expenses required to be
accrued by us on any day with respect to the Clients' Share in any Fund that
declares its net investment income as a dividend to shareholders on a daily
basis does not exceed the income to be accrued by us to such Shares on that day.
The fee rate stated above may be prospectively increased or decreased by
us, in our sole discretion, at any time upon notice to you.
