EXHIBIT (h)(4)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
THE DRAKE FUNDS TRUST
AND
ALPS MUTUAL FUNDS SERVICES, INC.
TABLE OF CONTENTS
Page
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1. Terms of Appointment and Duties.................................................................1
2. Fees and Expenses...............................................................................5
3. Representations and Warranties of the Transfer Agent............................................6
4. Representations and Warranties of the Fund......................................................6
5. Wire Transfer Operating Guidelines..............................................................7
6. Indemnification................................................................................10
7. Standard of Care...............................................................................11
8. Confidentiality ...............................................................................11
9. Covenants of the Fund and the Transfer Agent...................................................13
10. Termination of Agreement.......................................................................14
11. Assignment and Third Party Beneficiaries.......................................................15
12. Subcontractors.................................................................................15
13. Miscellaneous..................................................................................16
14. Additional Funds...............................................................................16
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 20th day of December, 2004, by and between The Drake
Funds Trust, a Delaware statutory trust, having its principal office and place
of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Fund"), and
ALPS Mutual Funds Services, Inc., a Colorado corporation having its principal
office and place of business at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx
00000 (the "Transfer Agent").
WHEREAS, the Fund is authorized to issue shares in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS, the Fund presently offers shares in two series, which shall be named in
the attached Schedule A which may be amended by the parties from time to time
(each such fund, together with all other series subsequently established by the
Fund and made subject to this Agreement in accordance with Section 15, being
herein referred to as a "Portfolio", and collectively as the "Portfolios"); and
WHEREAS, the Fund on behalf of the Portfolios 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 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 its transfer agent for the Fund's authorized and
issued shares of its beneficial interest ("Shares"), dividend
disbursing agent, and agent in connection with any accumulation,
open-account or similar plan provided to the shareholders of each of
the respective Portfolios of the Fund ("Shareholders") and 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 Transfer
Agent agrees that it will perform the following services:
(a) Receive for acceptance, orders for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof to the
Custodian of the Fund authorized pursuant to the Declaration of Trust
of the Fund (the "Custodian");
(b) Pursuant to purchase orders, issue the appropriate number of Shares
and hold such Shares in the appropriate Shareholder account;
(c) Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof to the
Custodian;
(d) In respect to the transactions in items (a), (b) and (c) above, the
Transfer Agent shall execute transactions directly with broker-dealers
and other financial institutions authorized by the Fund who shall
thereby be deemed to be acting on behalf of the Fund;
(e) 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;
(f) Effect transfers of Shares by the registered owners thereof upon
receipt of appropriate instructions;
(g) Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the applicable Portfolio;
(h) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(i) Record the issuance of Shares of the Fund and maintain pursuant to
SEC Rule 17Ad-10(e) 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 sole responsibility of the Fund;
and
(j) Perform additional telephone support services as detailed in
Schedule 1.1, which may be amended in writing by the parties from time
to time.
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) Control Book. Maintain a daily record and produce a daily report
for the Fund
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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 9:00 AM Eastern Time, or such
earlier time as the Fund may reasonably require, on the next business
day;
(c) "Blue Sky" Reporting. The Fund 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. The Transfer Agent will coordinate with State Street
Bank and Trust Company, the Fund's Administrator (or any other entity
subsequently performing such functions) on blue sky reporting and
related matters for the fund;
(d) 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)("NSCC accounts"), 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;
and
(e) New Procedures. New procedures as to who shall provide certain of
these services in Section 1 may be established in writing from time to
time by agreement between the Fund and the Transfer Agent. Pursuant to
such agreement the Transfer Agent may at times perform only a portion
of these services and the Fund or its agent may perform these services
on the Fund's behalf.
2. Fees and Expenses
2.1 Fee Schedule. For the performance 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 ("Schedule 2.1"). Such fees and
out-of-pocket expenses and advances identified under Section 2.2 below
may be changed from time to time subject to mutual written agreement
between the Fund and the Transfer Agent.
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2.2 Out-of-Pocket Expenses. In addition to the fee 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, telephone, records storage, or
advances incurred by the Transfer Agent for the items set out in
Schedule 2.1 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 Cost of Living Adjustment. Following each Term, unless the parties
shall otherwise agree and provided that the service mix and volumes
remain consistent as previously provided in the previous Term, the
total fee for all services shall equal the fee that would be charged
for the same services based on a fee rate (as reflected in a fee rate
schedule) increased by the percentage increase for the twelve-month
period of such previous calendar year of the Consumer Price Index for
Urban Wage Earners and Clerical Workers, for the Denver-Boulder-Greeley
area, as published bimonthly by the United States Department of Labor,
Bureau of Labor Statistics, or, in the event that publication of such
Index is terminated, any successor or substitute index, appropriately
adjusted, acceptable to both parties.
2.6 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
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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 By-Laws 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.
3.6 It is registered as a transfer agent under the Securities Exchange Act
of 1934, as amended.
3.7 It is duly licensed to use Envision PowerAgent Transfer Agency System
and will continue to maintain such license during the term of this
Agreement.
4. Representations and Warranties of the Fund
The Fund represents and warrants to the Transfer Agent that:
4.1 It is a statutory trust duly organized and existing and in good
standing under the laws of the state of Delaware.
4.2 It is empowered under applicable laws and by its Declaration of Trust
and Bylaws to enter into and perform this Agreement.
4.3 All trust proceedings required by said Declaration of Trust and Bylaws
have been taken to authorize it to enter into and perform this
Agreement.
4.4 It is an open-end management investment company registered under the
Investment Company Act of 1940, as amended.
4.5 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 Fund being offered for sale.
5. Wire Transfer Operating Guidelines/Articles 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 (the "Security
Procedure"), attached hereto as Schedule B chosen for funds transfer
and in the amount of money that the Transfer
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Agent has been instructed to transfer. The Transfer Agent shall execute
payment orders in compliance with the Security Procedure and with the
Fund 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 the Fund Selection Form, attached hereto as
Schedule B, was selected by the Fund. The Fund must notify the Transfer
Agent immediately of any change in the Fund's authorized personnel. 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 Procedures if instructed by the
Fund. For purposes of this section only, instructions received from
representatives of Drake Capital Management, LLC, 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 which (a) 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; (b) 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 to the Transfer Agent; or
(c) if the Transfer Agent, in good faith, is unable to satisfy itself
that the transaction has been properly authorized.
5.5 Cancellation Amendment. 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, the Transfer Agent
assumes no liability if the request for amendment or cancellation
cannot be satisfied.
5.6 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. The Security
Procedure is established for the purpose of authenticating payment
orders only and not for the detection of errors in payment orders.
5.7 Interest. 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.
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5.8 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.
5.9 Confirmation. Confirmation of Transfer Agent's execution of payment
orders shall ordinarily be provided within twenty four (24) hours notice
of which may be delivered through the Transfer Agent's information
systems, or by facsimile or call-back. 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 law suit 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;
(c) The reliance upon, and any subsequent use of or action taken or
omitted, by the Transfer Agent, or its agents or subcontractors on: (i)
any information, records, documents, data, or services, which are
received by the Transfer Agent or its agents or subcontractors by
machine readable input, facsimile, CRT data entry, electronic
instructions or other similar means authorized by the Fund in writing,
and which have been prepared, maintained or performed by the Fund or any
other person or firm on behalf of the Fund including but not limited to
any broker-dealer, Third Party Administrator or previous transfer agent;
(ii) any instructions or requests of the Fund or any of its officers
reasonably believed by the Transfer Agent to be authorized by the Fund's
Board of Trustees; (iii) any instructions or opinions of legal counsel
with respect to any matter arising in connection with the services to be
performed by the Transfer Agent under this Agreement which are provided
to the Transfer Agent after consultation with such legal counsel; or
(iv) any paper or document, reasonably believed to be genuine,
authentic, and signed by the proper
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person or persons;
(d) 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;
(e) 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
(f) Upon the Fund's request entering into any agreements required by the
NSCC for the transmission of Fund or Shareholder data through the NSCC
clearing systems.
6.2 The Fund shall be not be responsible for, and the Transfer Agent shall
indemnify and hold the Fund, its Officers and Trustees harmless from and
against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to lack
of good faith, negligence or willful misconduct by the Transfer Agent.
6.3 In order that the indemnification provisions contained in this Section 6
shall apply, upon the assertion of a claim for which the Fund may be
required to indemnify the Transfer Agent, the Transfer Agent shall
promptly notify the Fund of such assertion, and shall keep the Fund
advised with respect to all developments concerning such claim. The Fund
shall have the option to participate with the Transfer Agent in the
defense of such claim or to defend against said claim in its own name or
in the name of the Transfer Agent. The Transfer Agent shall in no case
confess any claim or make any compromise in any case in which the Fund
may be required to indemnify the Transfer Agent except with the Fund's
prior written consent.
7. Standard of Care
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to ensure the accuracy of
all services performed under this Agreement, but assumes no
responsibility and shall not be liable for loss or damage due to errors,
including encoding and payment processing errors, unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of
its employees or agents. According to mutually agreed upon procedures,
the Transfer Agent agrees to use reasonable efforts with regard to the
processing of investments checks. 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 Section 7
of this Agreement.
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8. Confidentiality
8.1 The Transfer Agent and the Fund agree that they will not, at any time
during the Term of this Agreement or after its termination, reveal,
divulge, or make known to any person, firm, corporation or other
business organization, any Shareholders' or customers' lists, trade
secrets, cost figures and projections, profit figures and projections,
or any personal information of the Fund's shareholders or other secret
or confidential information whatsoever, whether of the Transfer Agent or
of the Fund, used or gained by the Transfer Agent or the Fund during
performance under this Agreement. For purposes of this Agreement,
Confidential Information shall also include:
(a) Any data or information that is competitively sensitive material,
and not generally known to the public, including but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationship, customer profiles, Shareholder
personal information, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or the Transfer Agent, their respective
affiliates and customers, shareholders, clients and suppliers of any of
them;
(b) Any scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in the
sense that its confidentiality affords the Fund or the Transfer Agent a
competitive advantage over its competitors;
(c) All confidential or proprietary concepts, documentation, reports,
data specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how and trade secrets, whether or
not patentable or copyrightable; and
(d) Information that the Fund is required to keep confidential pursuant
to agreements with third party service providers or pursuant to the
Fund's established disclosure policies.
Confidential information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by a
written release by the Transfer Agent or the Fund, as the case may be;
(iii) are already in the possession of the receiving party at the time
of receipt without obligation of confidentiality or breach of this
Agreement; (iv) are subsequently disclosed to a party hereto on a
non-confidential basis by a third party that is not bound by an
agreement of non disclosure or confidentiality with another party hereto
or its affiliates, which rightfully acquired such information; or (v)
are independently developed by a party hereto.
The Fund and the Transfer Agent further covenant and agree to retain all
such knowledge and information acquired during and after the term of
this Agreement respecting such lists, trade secrets, or any secret or
confidential information whatsoever in trust for the sole benefit of the
Transfer Agent or the Fund and their successors and assigns. The above
prohibition of disclosure shall not apply to the
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extent that the Transfer Agent must disclose such data to its
sub-contractor or Fund agent for purposes of providing services under
this Agreement.
8.2 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.
8.3 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.
9. Covenants of the Fund and the Transfer Agent
9.1 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 Declaration of Trust and By-Laws of the Fund and all
amendments thereto.
9.2 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.
9.3 The Transfer Agent will maintain policies regarding cut-off times on
orders to prevent late trading of Fund shares for direct non-NSCC
accounts.
9.4 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 Investment Company Act of 1940, as
amended, 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.
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9.5 The Transfer Agent shall provide assistance to and cooperate with the
Fund's internal or external auditors in connection with any
Fund-directed audits. 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. For purposes of such audits, 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. On an annual
basis, the Transfer Agent will provide the Fund with copies of its SAS
70 report. The Fund understands and agrees that its auditors will be
required by the Transfer Agent to execute a confidentiality agreement
prior to being given access to such records, data and operating
processes.
10. Termination of Agreement
10.1 Term. The term of this Agreement shall be one year ("Initial Term") from
the date first stated above unless terminated pursuant to the provisions
of this Section 10. 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 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. Otherwise, the fees shall be increased pursuant
to Section 2.5 of this Agreement. 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.
10.2 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" 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 make a good faith
effort 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.
10.3 Fees and Expenses upon Termination. Should either party exercise its
right to terminate, all reasonable out-of-pocket expenses or costs
associated with the movement of records and material will be borne by
the Fund. Additionally, the
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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.
10.4 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.
10.5 Termination by the Fund. The Fund, in addition to any other rights and
remedies, shall have the right to terminate this Agreement upon the
occurrence of (i) the bankruptcy of the Transfer Agent or the
appointment of a receiver therefore if such proceedings are not
dismissed within 21 days of being brought, or (ii) the material failure
by the Transfer Agent to perform its duties and obligations under this
Agreement or 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), 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.
10.6 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 therefore 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.
11. Assignment and Third Party Beneficiaries
11.1 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other party.
Any attempt to do so in violation of this Section shall be void. Unless
specifically stated to the contrary in any written consent to an
assignment, no assignment will release or discharge the assignor from
any duty or responsibility under this Agreement.
11.2 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
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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.
11.3 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 12.1 and Schedule 1.1, neither party shall make any
commitments with third parties that are binding on the other party
without the other party's prior written consent.
12. Subcontractors
12.1 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, 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.
13. Miscellaneous
13.1 Amendment. This Agreement may 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.
13.2 Colorado Law to Apply. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
the state of Colorado.
13.3 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, 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.
13.4 Consequential Damages. Neither party to this Agreement shall be liable
to the other party for special, indirect or consequential damages under
any provision of this Agreement or for any special, indirect or
consequential damages arising out of any act or failure to act
hereunder.
13.5 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.
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13.6 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.
13.7 Priorities Clause. In the event of any conflict, discrepancy or
ambiguity between the terms and conditions contained in this Agreement
and any Schedules or attachments hereto, the terms and conditions
contained in this Agreement shall take precedence.
13.8 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.
13.9 Merger of Agreement. 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.
13.10 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.
13.11 Reproduction of Documents. This Agreement and all schedules, exhibits,
attachments and amendments hereto may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other
similar process. The parties hereto each agree that any such
reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party
in the regular course of business, and that any enlargement, facsimile
or further reproduction shall likewise be admissible in evidence.
13.12 Notices. All notices and other communications as required or permitted
hereunder shall be in writing and sent by first class mail, postage
prepaid, addressed as follows or to such other address or addresses of
which the respective party shall have notified the other.
(a) ALPS Mutual Funds Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Legal Department
(b) If to the Fund, to:
15. Additional Funds
In the event that the Fund establishes one or more series of Shares, in
addition to those listed on the attached Schedule A, with respect to
which it desires to have the
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Transfer Agent render services as transfer agent under the terms hereof,
it shall so notify the Transfer Agent in writing, and if the Transfer
Agent agrees in writing to provide such services, such series of Shares
shall become a Portfolio hereunder.
-15-
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.
ALPS MUTUAL FUNDS SERVICES, INC. THE DRAKE FUNDS TRUST
By: /s/ Xxxxxx X. May By: /s/ Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------------
Name: Xxxxxx X. May Name: Xxxxxx Xxxxxxxx
-------------------------------- --------------------------------------
Title: Managing Director Title: President
-------------------------------- --------------------------------------
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SCHEDULE A
Fund List
Low Duration Fund- Drake Class and Administrative Class shares
Total Return Fund-Drake Class and Administrative Class shares
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SCHEDULE 1.1
ADDITIONAL TELEPHONE SUPPORT AND SERVICES
I. SERVICES
1. Transfer Agent and Telephone Support Function
a. Maintain a telephone recording system that records all orders and
instructions. Transfer Agent shall maintain these records in accordance
with applicable federal and state regulations.
b. Answer telephone inquiries from 7:00 a.m. to 6 p.m. Mountain time Monday
through Friday except for Holidays as recognized by the Federal Reserve
Bank of New York and the New York Stock Exchange from customers and
prospective customers of the Fund.
c. Require shareholder service representatives to obtain a Series 6 license
within 12 months of providing service for the Fund.
2. Send all literature orders for information received by the Transfer
Agent to the fulfillment agent for the Fund within one business day.
3. Provide the Fund with reports detailing the calls received during the
month in the form that the Fund may reasonably request;
4. Maintain and adhere to late trading policies of the Fund as disclosed in
Fund's prospectus for direct non-NSCC accounts.
ALPS MUTUAL FUNDS SERVICES, INC. THE DRAKE FUNDS TRUST
By: By:
---------------------------- ----------------------------------
Name: Name:
-------------------------- --------------------------------
Title: Title:
------------------------- -------------------------------
Date: Date:
-------------------------- --------------------------------
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SCHEDULE 2.1
FEE SCHEDULE
ALPS MUTUAL FUNDS SERVICES, INC. THE DRAKE FUNDS TRUST
By: By:
-------------------------------- --------------------------------------
Name: Name:
-------------------------------- --------------------------------------
Title: Title:
-------------------------------- --------------------------------------
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SCHEDULE B
SECURITY PROCEDURES
TELEPHONE VERIFICATION PROCEDURES:
The Transfer Agent will require verification of all of the following by the
caller
[ ] Social Security number or Tax ID number
[ ] Account Registration / Legal Name of Account
[ ] Mailing Address of Record
FAX VERIFICATION PROCEDURES:
The Transfer Agent will require that the fax contain an authorized signature for
verification. In addition, for faxed applications, the Transfer Agent will
require the shareholder to mail the original in a timely manner.
-----------------------------------------------------------------------------------------------------------------------------
Phone Fax Mail
-----------------------------------------------------------------------------------------------------------------------------
NO
Signature Signature
Guarantee Guarantee
Required Required(2)
-----------------------------------------------------------------------------------------------------------------------------
Redemptions
-----------------------------------------------------------------------------------------------------------------------------
Wire to bank instructions on record
-----------------------------------------------------------------------------------------------------------------------------
Wire to new bank instructions
-----------------------------------------------------------------------------------------------------------------------------
Exchanges between classes
-----------------------------------------------------------------------------------------------------------------------------
Purchases
-----------------------------------------------------------------------------------------------------------------------------
Purchase by wire
-----------------------------------------------------------------------------------------------------------------------------
Transfers
-----------------------------------------------------------------------------------------------------------------------------
Transfer assets to different account registration
-----------------------------------------------------------------------------------------------------------------------------
Account Maintenance
-----------------------------------------------------------------------------------------------------------------------------
Establish new account
-----------------------------------------------------------------------------------------------------------------------------
Change address of record
-----------------------------------------------------------------------------------------------------------------------------
Change account registration
-----------------------------------------------------------------------------------------------------------------------------
Add bank wiring instructions
-----------------------------------------------------------------------------------------------------------------------------
Remove bank wiring instructions
-----------------------------------------------------------------------------------------------------------------------------
Change interested party (additional mailings)
-----------------------------------------------------------------------------------------------------------------------------
Change broker dealer of record
-----------------------------------------------------------------------------------------------------------------------------
Change dividend options
-----------------------------------------------------------------------------------------------------------------------------
Addition or removal of authorized signer or transactor
-----------------------------------------------------------------------------------------------------------------------------
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In addition to the transaction discussed above, ALPS will follow the following
procedures with respect to corporate accounts:
- The Transfer Agent may require authorization from the Fund to accept
outdated corporate resolutions.
- The Transfer Agent will require authorization from the Fund to
accept transactions or maintenance requests for accounts with
corporate resolutions missing authorized signatories.
ALPS MUTUAL FUNDS SERVICES, INC. THE DRAKE FUNDS TRUST
By: By:
-------------------------------- --------------------------------------
Name: Name:
-------------------------------- --------------------------------------
Title: Title:
-------------------------------- --------------------------------------
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