TRANSFER AGENT AND SHAREHOLDER SERVICES 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 transfer agent and shareholder
services for each series of the Trust, listed on Schedule A attached hereto and
made part of this Agreement, as such Schedule A may be amended from time to time
(individually referred to herein as the "Portfolio" and collectively as the
"Portfolios"); 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
furnish the Trust with the transfer agent and shareholder services as set forth
below. Ultimus hereby accepts such employment to perform such
duties.
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(a)
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Shareholder
Transactions
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(i)
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Process
shareholder purchase and redemption orders in accordance with conditions
set forth in the Trust’s
prospectus.
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(ii)
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Set
up account information, including address, dividend option, taxpayer
identification numbers and wire
instructions.
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(iii)
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Issue
confirmations in compliance with Rule 10b-10 under the Securities Exchange
Act of 1934, as amended (the “1934
Act”).
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(iv)
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Issue
periodic statements for
shareholders.
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(v)
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Process
transfers and exchanges.
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(vi)
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Act
as a service agent and process dividend payments, including the purchase
of new shares, through dividend
reimbursement.
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(vii)
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Record
the issuance of shares and maintain pursuant to
Rule 17Ad-10(e) of the 1934 Act a
record of the total number of shares of each Portfolio which are
authorized, based upon data provided to it by the Trust, and issued and
outstanding.
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(viii)
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Perform
such services as are required to comply with Rules 17a-24 and 17Ad-17 of
the 1934 Act (the “Lost Shareholder
Rules”).
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(ix)
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Administer
and/or perform all other customary services of a transfer
agent.
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(b)
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Shareholder
Information Services
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(i)
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Make
information available to shareholder servicing unit and other remote
access units regarding trade date, share price, current holdings, yields,
and dividend information.
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(ii)
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Produce
detailed history of transactions through duplicate or special order
statements upon request.
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(iii)
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Provide
mailing labels for distribution of financial reports, prospectuses, proxy
statements or marketing material to current
shareholders.
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(iv)
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Respond
as appropriate to all inquiries and communications from shareholders
relating to shareholder accounts.
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(c)
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Compliance
Reporting
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(i)
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Provide
reports to the Securities and Exchange Commission (the “SEC”) and the
states in which the Portfolios are
registered.
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(ii)
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Prepare
and distribute appropriate Internal Revenue Service forms for shareholder
income and capital gains.
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(iii)
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Issue
tax withholding reports to the Internal Revenue
Service.
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(d)
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Dealer/Load Processing
(if applicable)
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(i)
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Provide
reports for tracking rights of accumulation and purchases made under a
Letter of Intent.
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(ii)
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Account
for separation of shareholder investments from transaction sale charges
for purchase of Portfolio shares.
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(iii)
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Calculate
fees due under Rule 12b-1 plans for distribution and marketing
expenses.
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(iv)
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Track
sales and commission statistics by dealer and provide for payment of
commissions on direct shareholder purchases in a load
Portfolio.
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(e)
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Shareholder Account
Maintenance
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(i)
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Maintain
all shareholder records for each account in each
Portfolio.
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(ii)
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Issue
customer statements on scheduled cycle, providing duplicate second and
third party copies if required.
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(iii)
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Record
shareholder account information
changes.
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(iv)
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Maintain
account documentation files for each
shareholder.
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Ultimus
shall perform such other services for the Trust that are mutually agreed upon by
the parties from time to time either at no additional fees or for such
reasonable and customary fees as are mutually agreed upon by the parties;
provided, however that the Trust may retain third parties to perform such other
services. Such services may include performing internal audit
examination; mailing the annual reports of the Portfolios; preparing an annual
list of shareholders; and mailing notices of shareholders’ meetings, proxies and
proxy statements, for all of which the Trust will pay Ultimus’ out-of-pocket
expenses.
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2.
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SUBCONTRACTING.
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Ultimus
may, at its expense and, upon at least 60 days’ advance written notice to the
Trust, subcontract with any entity or person concerning the provision of the
services contemplated hereunder; provided, however, that Ultimus shall not be
relieved of any of its obligations under this Agreement by the appointment of
such subcontractor and provided further, that Ultimus shall be responsible, to
the extent provided in Section 7 hereof, for all acts of such subcontractor as
if such acts were its own.
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3.
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COMPENSATION
OF ULTIMUS.
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The Trust
shall pay for the services to be provided by Ultimus under this Agreement in
accordance with, and in the manner set forth in, Schedule B attached hereto, as
such Schedule may be amended from time to time.
If this
Agreement becomes effective subsequent to the first day of a month or terminates
before the last day of a month, Ultimus’ compensation for that part of the month
in which the Agreement is in effect shall be prorated in a manner consistent
with the calculation of the fees as set forth above. Payment of
Ultimus’ compensation for the preceding month shall be made
promptly.
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4.
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REIMBURSEMENT
OF EXPENSES.
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In
addition to paying Ultimus the fees described in Schedule B attached hereto, the
Trust agrees to reimburse Ultimus for its reasonable out-of-pocket expenses in
providing services hereunder, including without limitation the
following:
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(a)
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All
freight and other delivery and bonding charges incurred by Ultimus in
delivering materials to and from the
Trust;
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(b)
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All
direct telephone, telephone transmission and telecopy or other electronic
transmission expenses incurred by Ultimus in communication with the Trust,
the Trust's investment adviser or custodian, dealers or others as required
for Ultimus to perform the services to be provided
hereunder;
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(c)
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The
cost of microfilm, microfiche or other methods of storing records or other
materials;
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(d)
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The
cost of printing and generating confirmations, statements and other
documents and the cost of mailing such documents to shareholders and
others;
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(e)
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All
expenses incurred in connection with any licenses of software,
subscriptions to databases, custom programming or systems modifications
required to provide any special reports or services requested by the
Trust;
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(f)
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Any
expenses Ultimus shall incur at the direction of an officer of the Trust
thereunto duly authorized 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;
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(g)
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A
reasonable allocation of the costs associated with the preparation of
Reports on Controls Placed in Operation and Tests of Operating
Effectiveness (“SAS 70 Reports”);
and
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(h)
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Any
additional expenses reasonably incurred by Ultimus in the performance of
its duties and obligations under this
Agreement.
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5.
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EFFECTIVE
DATE.
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This
Agreement shall become effective with respect to a Portfolio as of the date
first written above (or, if a particular Portfolio is not in existence on that
date, on the date such Portfolio commences operation) (the "Effective
Date").
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6.
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TERM
OF THIS AGREEMENT.
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The term
of this Agreement shall continue in effect, unless earlier terminated by either
party hereto as provided hereunder, for a period of three
years. Thereafter, unless otherwise terminated as provided herein,
this Agreement shall be renewed automatically for successive one-year
periods.
This
Agreement may be terminated without penalty: (i) by provision of sixty (60)
days’ written notice; or (ii) for "cause" (as defined herein) upon the provision
of thirty (30) days’ advance written notice by the party alleging
cause.
For
purposes of this Agreement, "cause" shall mean: (i) a material breach of this
Agreement that has not been remedied within thirty (30) days following written
notice of such breach from the non-breaching party, (ii) a series of negligent
acts or omissions or breaches of this Agreement which, in the aggregate,
constitute in the reasonable judgment of the Trust, a serious failure to perform
satisfactorily Ultimus' obligations hereunder; (iii) a final, unappealable
judicial, regulatory or administrative ruling or order in which the party to be
terminated has been found guilty of criminal or unethical behavior in the
conduct of its business; or (iv) financial difficulties on the part of the party
to be terminated which are evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent or acquiescence in, a voluntary
or involuntary case under Title 11 of the United States Code, as from time to
time is in effect, or any applicable law, other than said Title 11, of any
jurisdiction relating to the liquidation or reorganization of debtors or the
modification or alteration of the rights of creditors.
Notwithstanding
the foregoing, after such termination for so long as Ultimus, with the written
consent of the Trust, in fact continues to perform any one or more of the
services
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contemplated
by this Agreement or any schedule or exhibit hereto, the provisions of this
Agreement, including without limitation the provisions dealing with
indemnification, shall continue in full force and
effect. Compensation due Ultimus and unpaid by the Trust upon such
termination shall be immediately due and payable upon and notwithstanding such
termination. Ultimus shall be entitled to collect from the Trust, in
addition to the compensation described in Schedule B, the amount of all of
Ultimus' cash disbursements for services in connection with Ultimus' activities
in effecting such termination, including without limitation, the delivery to the
Trust and/or its designees of the Trust's property, records, instruments and
documents.
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7.
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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 use its best efforts in the performance of its duties hereunder
and 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 it obligations and duties hereunder. (As used in this Section 7,
the term "Ultimus" shall include directors, officers, employees and other agents
of Ultimus as well as Ultimus itself.)
Without
limiting the generality of the foregoing or any other provision of this
Agreement, (i) 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; and (ii) Ultimus shall not be liable for the validity or
invalidity or authority or lack thereof of 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 persons of Ultimus who may otherwise be named as
an authorized representative of the Trust for certain purposes).
Ultimus
may apply to the Trust at any time for instructions and 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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8.
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INDEMNIFICATION
OF TRUST.
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Ultimus
agrees to indemnify and hold harmless the Trust, and each person who has been,
is or may hereafter be a Trustee or officer of the Trust, 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 Ultimus’ failure to exercise reasonable care and diligence
with respect to its services under this Agreement; provided, however that
Ultimus shall have no obligation to indemnify or reimburse the Trust under this
Section 8 to the extent that the Trust is reimbursed or indemnified for such
Losses under any liability insurance policy described in this Agreement or
otherwise although, Ultimus acknowledges that any insurer or other party may be
subrogated to the Trust’s rights hereunder. Ultimus shall not be
responsible for any retention amounts required under such liability insurance
policy.
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The Trust
shall not be indemnified against or held harmless from any Losses to the extent
such Losses arise directly or indirectly out of the Trust’s own willful
misfeasance, bad faith or negligence.
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9.
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INDEMNIFICATION
OF ULTIMUS.
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The Trust
agrees to indemnify and hold harmless Ultimus from and against any and all
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 Section 9 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.
The Trust shall not be responsible for any retention amounts required under such
liability insurance policy.
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. (As used in this Section 9,
the term "Ultimus" shall include directors, officers, employees and other agents
of Ultimus as well as Ultimus itself.)
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10.
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RECORD
RETENTION AND CONFIDENTIALITY.
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Ultimus
shall keep and maintain on behalf of the Trust all books and records which the
Trust and Ultimus is, or may be, required to keep and maintain pursuant to any
applicable statutes, rules and regulations, including without limitation Rules
31a-1 and 31a-2 under the 1940 Act, relating to the maintenance of books and
records in connection with the services to be provided hereunder. Ultimus
further agrees that all such books and records shall be the property of the
Trust and to make such books and records available for inspection by the Trust
or by the SEC at reasonable times and otherwise to keep confidential all books
and records and other information relative to the Trust and its shareholders;
except when requested to divulge such information by duly-constituted
authorities or court process. If Ultimus is requested or required to
disclose any confidential information supplied to it by the Trust, Ultimus
shall, unless prohibited by law, promptly notify the Trust of such request(s) so
that the Trust may seek an appropriate protective order.
Nonpublic
personal shareholder information shall remain the sole property of the
Trust. Such information shall not be disclosed or used for any
purpose except in connection with the performance of the duties and
responsibilities described herein or as required or permitted by
law. The provisions of this Section shall survive the termination of
this Agreement. The parties agree to comply with any and all
regulations promulgated by the SEC or other applicable laws regarding the
confidentiality of shareholder information.
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11.
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FORCE
MAJEURE.
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Ultimus
assumes no responsibility hereunder, and shall not be liable, for any damage,
loss of data, delay or any other loss whatsoever caused by events beyond its
reasonable control, including acts of civil or military authority, national
emergencies, fire, flood, catastrophe, acts of God, insurrection, war, riots or
failure of the mails, transportation, communication or power
supply.
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12.
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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 Ultimus'
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 so turned over to the
Trust, such documents and records will be (1) copied and made available to the
Trust by Ultimus as soon as reasonably practical, and (2) 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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13.
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REPRESENTATIONS
OF THE TRUST.
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The Trust
certifies to Ultimus that: (1) as of the close of business on the
Effective Date, each Portfolio that is in existence as of the Effective Date has
authorized unlimited shares, and (2) this Agreement has been duly authorized by
the Trust and, when executed and delivered by the Trust, will constitute a
legal, valid and binding obligation of the Trust, enforceable against the Trust
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
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14.
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REPRESENTATIONS
OF ULTIMUS.
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Ultimus
represents and warrants that: (1) it will maintain a disaster
recovery plan and procedures including provisions for emergency use of
electronic data processing equipment, which is reasonable in light of the
services to be provided, and it will, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions (Ultimus shall have no
liability with respect to the loss of data or service interruptions caused by
equipment failure, provided it maintains such plans and procedures); (2) this
Agreement has been duly authorized by Ultimus and, when executed and delivered
by Ultimus, will constitute a legal, valid and binding obligation of Ultimus,
enforceable against Ultimus in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties; (3) it is
duly registered with the appropriate regulatory agency as a transfer agent and
such registration will remain in full force and effect for the duration of this
Agreement; and (4) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
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15.
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INSURANCE.
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Upon
request, Ultimus shall furnish the Trust with pertinent information concerning
the professional liability insurance coverage that it maintains. Such
information shall include the identity of the insurance carrier(s), coverage
levels and deductible amounts. Ultimus shall notify the Trust 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 against it with respect to
services performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Trust from time to time as may be appropriate of
the total outstanding claims made by Ultimus under its insurance
coverage.
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16.
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INFORMATION
TO BE FURNISHED BY THE TRUST.
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The
Trust has furnished to Ultimus the following:
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(a)
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Copies
of the Agreement and Declaration of Trust (the “Declaration of Trust”) and
of any amendments thereto, certified by the proper official of the state
in which such document has been
filed.
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(b)
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Copies
of the following documents:
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(1)
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The
Trust's Bylaws and any amendments thereto;
and
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(2)
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Certified
copies of resolutions of the Trustees covering the approval of this
Agreement, authorization of a specified officer of the Trust to execute
and deliver this Agreement and authorization for specified officers of the
Trust to instruct Ultimus
thereunder.
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(c)
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A
list of all the officers of the Trust, together with specimen signatures
of those officers who are authorized to instruct Ultimus in all
matters.
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(d)
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Copies
of the Prospectus and Statement of Additional Information for each
Portfolio.
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17.
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AMENDMENTS
TO AGREEMENT.
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This
Agreement, or any term thereof, may be changed or waived only by written
amendment signed by the party against whom enforcement of such change or waiver
is sought.
For
special cases, the parties hereto may amend such procedures set forth herein as
may be appropriate or practical under the circumstances, and Ultimus may
conclusively assume that any special procedure which has been approved by the
Trust does not conflict with or violate any requirements of its Declaration of
Trust or then current prospectuses, or any rule, regulation or requirement of
any regulatory body.
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18.
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COMPLIANCE
WITH LAW.
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Except
for the obligations of Ultimus otherwise set forth herein, the Trust assumes
full responsibility for the preparation, contents and distribution of each
prospectus of the Trust as to compliance with all applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), the 1940 Act and any
other laws, rules and regulations of governmental authorities having
jurisdiction. The Trust represents and warrants that no shares of the Trust will
be offered to the public until the Trust's registration statement under the
Securities Act and the 1940 Act has been declared or becomes
effective.
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19.
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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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20.
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ASSIGNMENT.
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This
Agreement and the rights and duties hereunder shall not be assignable by either
of the parties hereto except by the specific written consent of the other
party. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
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21.
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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
and the applicable provisions of the 1940 Act. 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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22.
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LIMITATION
OF LIABILITY.
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A copy of
the Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Trustees 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 (or
if the matter relates only to a particular Portfolio, that Portfolio), and
Ultimus shall look only to the assets of the Trust, or the particular Portfolio,
for the satisfaction of such obligations.
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23.
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MULTIPLE
ORIGINALS.
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This
Agreement may be executed in two or more counterparts, each of which when so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
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:
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/s/ Xxxx X. Xxxxxxxxxxx | ||
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Its:
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Chairman | ||
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ULTIMUS
FUND SOLUTIONS, LLC
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By:
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/s/ Xxxxxx X. Xxxxxx
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Its:
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President
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SCHEDULE
A
TO
THE TRANSFER AGENT AND SHAREHOLDER SERVICES AGREEMENT BETWEEN
AND
ULTIMUS
FUND SOLUTIONS, LLC
FUND
PORTFOLIOS
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SCHEDULE
B
TO
THE TRANSFER AGENT AND SHAREHOLDER SERVICES AGREEMENT BETWEEN
AND
ULTIMUS
FUND SOLUTIONS, LLC
FEES AND
EXPENSES
FEES:
Ultimus
shall be entitled to receive a fee from the Trust on the first business day
following the end of each month, or at such time(s) as Ultimus shall request and
the parties hereto shall agree, a fee computed with respect to each Portfolio as
follows:
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Annual
fee per shareholder account
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$20.00
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Minimum
fee per year
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$18,000
per Portfolio/class
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WEB-ACCESS:
For Web Inquiry access, Ultimus charges
each Portfolio an annual fee of $2,500 and a on-time set up fee of
$2,000.
INTERACTIVE
VOICE RESPONSE:
For Interactive Voice Response (“IVR”)
access, Ultimus charges a one-time set up fee of $1,000. Ongoing
charges for IVR access are based upon usage and are charged to the Portfolios as
an out-of-pocket expense.
OUT-OF-POCKET
EXPENSES:
The fees
set forth above shall be in addition to the payment of out-of-pocket expenses,
as provided for in Section 4 of this Agreement.
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