Exhibit 23(h)
Other Material Contracts
(i) Transfer Agency Agreement - incorporated by reference to Registrant's
Pre-Effective Amendment No. 2 to its Registration Statement dated January
28, 1997.
(ii) Sub-Transfer Agency Agreement attached hereto.
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
between
ALPS MUTUAL FUNDS SERVICES, INC.
and
FINANCIAL ADMINISTRATIVE SERVICES CORPORATION
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
Between
ALPS MUTUAL FUNDS SERVICES, INC.
And
FINANCIAL ADMINISTRATIVE SERVICES CORPORATION
_____________________________________________________________________________
TABLE OF CONTENTS
Section Page
1. Terms of Appointment and Duties ................................................................1
2. Third Party Administrators for Defined Contribution Plans ......................................3
3. Fees and Expenses ..............................................................................4
4. Representations and Warranties of ALPS .........................................................4
5. Representations and Warranties of the Transfer Agent ...........................................5
6. Wire Transfer Operating Guidelines .............................................................5
7. Indemnification ................................................................................6
8. Standard of Care ...............................................................................7
9. Confidentiality ...............................................................................8
10. Covenants of the Transfer Agent and ALPS ......................................................8
11. Termination of Agreement ......................................................................8
12. Assignment and Third Party Beneficiaries ......................................................9
13. Subcontractors ................................................................................9
14. Miscellaneous .................................................................................9
- 16 -
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 2nd day of November, 1998, by and between Financial
Administrative Services Corporation a Colorado corporation, having its principal
office and place of business at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇(▇▇▇ "Transfer Agent"), and ALPS MUTUAL FUNDS SERVICES, INC., a Colorado
corporation, having its principal office and place of business at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("ALPS").
WHEREAS, the Transfer Agent has been appointed by the investment company
(including each series thereof) listed on Schedule A (the "Trust"), an open-end
diversified management investment company registered under the Investment
Company Act of 1940, as amended, as transfer agent, dividend disbursing agent
and shareholder servicing agent in connection with certain activities, and the
Transfer Agent has accepted each such appointment;
WHEREAS, the Transfer Agent has entered into a Transfer Agency and Service
Agreement with the Trust listed on Schedule A pursuant to which the Transfer
Agent is responsible for certain transfer agency and dividend disbursing
functions and the Transfer Agent is authorized to subcontract for the
performance of its obligations and duties thereunder in whole or in part with
ALPS;
WHEREAS, the Transfer Agent is desirous of having ALPS perform certain
shareholder accounting, administrative and servicing function (collectively
"Shareholder and Record-Keeping Services");
WHEREAS, the Transfer Agent desires to appoint ALPS as its sub-transfer agent
and servicing agent , and ALPS 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; Duties
1.1 Sub-Transfer Agency Services. Subject to the terms and conditions set forth
in this Agreement, the Transfer Agent hereby employs and appoints ALPS to
act as, and ALPS agrees to act as, the sub-transfer agent for the Trust's
authorized and issued shares of beneficial interest, and the dividend
disbursing agent. As used herein, the term "Shares" means the authorized
and issued shares of common stock, or shares of beneficial interest, as the
case may be, for the Trust (including each series thereof) enumerated in
Schedule A. ALPS agrees that it will perform the following Shareholder and
Record-Keeping services:
(a) In accordance with procedures established from time to time by agreement
between the Transfer Agent and ALPS, ALPS shall:
(i) Receive for acceptance, orders for the purchase of Shares, and promptly
deliver payment and appropriate documentation thereof to the Custodian of
the Trust authorized by the Board of Trustees of the Trust (the
"Custodian");
(ii) Pursuant to purchase orders, issue the appropriate number of Shares and
hold such Shares in the appropriate Shareholder account;
(iii)Receive for acceptance redemption requests and redemption directions and
deliver the appropriate documentation thereof to the Custodian;
(iv) In respect to the transactions in items (i) (ii) and (iii) above, ALPS
shall execute transactions directly with broker-dealers authorized by the
Funds who shall thereby be deemed to be acting on behalf of the Trust;
(v) When it receives monies paid to it by the Custodian with respect to any
redemption, pay or cause to be paid in the appropriate manner such monies
as instructed by the redeeming Shareholders;
(vi) Effect transfers of Shares by the registered owners thereof upon receipt of
appropriate instructions;
(vii) Prepare and transmit payments for dividends and distributions
declared by the Trust;
(viii) Maintain records of account for and advise the Trust and its Shareholders
as to the foregoing; and
(ix) (Record the issuance of Shares of the Trust and maintain pursuant to SEC
Rule 17Ad-10(e) a record of the total number of Shares of the Trust which
are authorized, based upon data provided to it by the Trust, and issued and
outstanding. ALPS shall also provide the Trust on a regular basis with the
total number of Shares which are authorized and issued and outstanding and
shall have no obligation, when recording the issuance of Shares, to monitor
the issuance of such Shares or to take cognizance of any laws relating to
the issue or sale of such Shares, which functions shall be the sole
responsibility of the Trust.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph, ALPS 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 plans (including without
limitation any periodic investment plan or periodic withdrawal program),
including but not limited to: maintaining all Shareholder accounts,
preparing Shareholder meeting lists, mailing Shareholder proxies,
Shareholder reports and prospectuses to current Shareholders, withholding
taxes on U.S. resident and non-resident alien accounts, 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 taxable 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 (also known as "Super Sheet"). Maintain a daily record and
produce a daily report for the Trust of all transactions and receipts and
disbursements of money and securities and deliver a copy of such report for
the Trust for each business day to the Trust no later than 9:00 AM Mountain
Time, or such earlier time as the Trust may reasonably require, on the next
business day;
(c) "Blue Sky" Reporting. The Trust or Transfer Agent shall (i) identify to
ALPS in writing those transactions and assets to be treated as exempt from
blue sky reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and
thereafter monitor the daily activity for each State. The responsibility of
ALPS for the Trust's blue sky State registration status is solely limited
to the initial establishment of transactions subject to blue sky compliance
by the Trust and providing a system which will enable the Trust to monitor
the total number of Shares sold in each State;
(d) National Securities Clearing Corporation (the "NSCC"). If the transactions
are to be made via NSCC ALPS shall: (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), in accordance
with, instructions transmitted to and received by ALPS by transmission from
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 ALPS; (ii) issue
instructions to Trust's banks for the settlement of transactions between
the Trust and NSCC (acting on behalf of its broker-dealer and bank
participants); (iii) provide account and transaction information from the
affected Trust's records in accordance with NSCC's Networking and Fund/DERV
rules for those broker-dealers; and (iv) maintain Shareholder accounts
through Networking.
(e) New Procedures. New procedures as to who shall provide certain of these
services in Section I may be established from time to time by agreement
between the Transfer Agent and ALPS. ALPS may at times perform only a
portion of these services and the Transfer Agent, the Trust or their agent
may perform these services on the Trust's behalf.
2. Third Party Administrators for Defined Contribution Plans
2.1 The Trust may decide to make these shares available to certain of its
customers' ("Employers") deferred compensation plans ("Plan or Plans") for
the benefit of the individual Plan participant (the "Plan Participant"),
such Plan(s) being established under Sections 401(a), 403(b) or 457 of the
Internal Revenue Code of 1986, as amended ("Code"). These Plans may be
administered by third party administrators which may or may not be plan
administrators as defined in the Employee Retirement Income Security Act of
1974, as amended)(the "TPA(s)")
2.2 ALPS shall:
(a) Treat Shareholder accounts established by the Plans in the name of the
Trustees, Plans or TPAs as the case may be as omnibus accounts;
(b) Maintain omnibus accounts on its records in the name of the Trustee of such
Plans, or its designee for the benefit of the Plan; and
(c) Perform all services under Section 1 on behalf of the Trust and not as a
record-keeper for the Plans.
2.3 Transactions identified under Section 2 of this Agreement shall be deemed
exception services ("Exception Services") when such transactions:
(a) Require ALPS to use methods and procedures other than those usually
employed by ALPS to perform services under Section 1 of this Agreement;
(b) Involve the provision of information to ALPS after the commencement of its
nightly processing cycle; or
(c) Require more manual intervention by ALPS, either in the entry of data or in
the modification or amendment of reports generated by ALPS than is usually
required by non-retirement plan and pre-nightly transactions.
3. Fees and Expenses
3.1 Fee Schedule. For the performance by ALPS pursuant to this Agreement, the
Transfer Agent agrees to pay ALPS fees as set out in the fee schedule
attached hereto. Such fees and out-of-pocket expenses and advances
identified under Section 3.2 below may be changed from time to time subject
to mutual written agreement between the Transfer Agent and ALPS.
3.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 3.1
above, the Transfer Agent agrees to reimburse ALPS for out-of-pocket
expenses, including but not limited to confirmation production, postage,
forms, telephone, mailing and tabulating proxies, records storage, or
advances incurred by ALPS for the items set out in the fee schedule
attached hereto. In addition, any other expenses incurred by ALPS at the
request or with the consent of the Transfer Agent, will be reimbursed by
the Fund.
3.3 Postage. Postage for mailing of dividends, proxies, reports and other
mailings to all shareholder accounts shall be advanced to ALPS by the
Transfer Agent at least seven (7) days prior to the mailing date of such
materials.
3.4 Invoices. The Transfer Agent agrees to pay all fees and reimbursable
expenses within thirty days following the receipt of the respective billing
notice.
4. Representations and Warranties of ALPS
ALPS represents and warrants to the Transfer Agent that:
4.1 It is a duly registered transfer agent under the Securities Exchange Act of
1934
4.2 It is duly organized and existing and in good standing under the laws of
the State of Colorado.
4.3 It is empowered under applicable laws and by its Charter and By-Laws to
enter into and perform this Agreement.
4.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
4.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
4.6 It will provide Transfer Agent with all information necessary to complete
its annual filing requirements in a timely fashion.
5. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to ALPS that:
5.1 It is a corporation duly organized and existing and in good standing under
the laws of Colorado.
5.2 It is empowered under applicable laws and by its Articles of Incorporation
and By-Laws to enter into and perform this Agreement.
5.3 The Board of Directors has duly authorized it to enter into and perform
this Agreement.
6. Wire Transfer Operating Guidelines/Articles 4A of the Uniform Commercial Code
6.1 ALPS is authorized to promptly debit the appropriate account(s) upon the
receipt of a payment order in compliance with the agreed upon security
procedures (the "Security Procedures") chosen for funds transfer and in the
amount of money that ALPS has been instructed to transfer. ALPS shall
execute payment orders in compliance with the Security Procedures and with
the Transfer Agent 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 this the customary deadline will
be deemed to have been received the next business day.
6.2 The Transfer Agent shall restrict access to confidential information
relating to the Security Procedures to authorized persons as communicated
to ALPS in writing. The Transfer Agent must notify ALPS immediately if it
has reason to believe unauthorized persons may have obtained access to such
information or of any change in the Transfer Agent's authorized personnel.
ALPS shall verify the authenticity of all Transfer Agent instructions
according to the Security Procedure.
6.3 ALPS 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.
6.4 ALPS 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 ALPS's receipt of such payment order;
or (b) if ALPS, in good faith, is unable to satisfy itself that the
transaction has been properly authorized.
6.5 ALPS shall use reasonable efforts to act on all authorized requests to
cancel or amend payment orders received in compliance with the Security
Procedures provided that such requests are received in a timely manner
affording ALPS reasonable opportunity to act. However, ALPS assumes no
liability if the request for amendment or cancellation cannot be satisfied.
6.6 ALPS shall assume no responsibility for failure to detect any erroneous
payment order provided that ALPS complies with the payment order
instructions as received and ALPS complies with the Security Procedures.
The Security Procedures are established for the purpose of authenticating
payment orders only and not for the detection of errors in payment orders.
6.7 When the Transfer Agent 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, ALPS or its bank 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 ALPS with
respect to an ACH credit entry are provisional until ALPS receives final
settlement for such entry from the Federal Reserve Bank. If ALPS does not
receive such final settlement, the Transfer Agent agrees that ALPS shall
receive a refund of the amount credited to the Transfer Agent in connection
with such entry, and the party making payment to the Transfer Agent via
such entry shall not be deemed to have paid the amount of the entry.
6.8 Confirmation of ALPS's execution of payment orders shall ordinarily be
provided within twenty four (24) hours notice of which may be delivered
through ALPS's proprietary information systems, or by facsimile or
call-back. Call-back confirmations will be followed with a written
confirmation. Transfer Agent must report any objections to the execution of
an order within thirty (30) days.
7. Indemnification
7.1 ALPS shall not be responsible for, and the Transfer Agent shall indemnify
and hold ALPS, harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out
of or attributable to:
(a) All actions of ALPS or its agent or subcontractors required to be taken
pursuant to this Agreement, provided that such actions are taken in good
faith and without negligence or willful misconduct;
(b) The Transfer Agent's lack of good faith, negligence or willful misconduct
which arise out of the breach of any representation or warranty of the
Transfer Agent hereunder;
(c) The reliance upon, and any subsequent use of or action taken or omitted, by
ALPS, or its agents or subcontractors on: (i) any information, records,
documents, data, stock certificates or services, which are received by ALPS
or its agents or subcontractors by machine readable input, facsimile, CRT
data entry, electronic instructions or other similar means authorized by
the Transfer Agent, and which have been prepared, maintained or performed
by the Transfer Agent or the Trust or any other person or firm on behalf of
the Transfer Agent or the Trust including but not limited to any previous
transfer agent or registrar; (ii) any written instructions or requests of
the Transfer Agent or the Trust or any of its officers; (iii) any written
instructions or opinions of Transfer Agent's legal counsel with respect to
any matter arising in connection with the services to be performed by ALPS
under this Agreement which are provided to ALPS after consultation with
such legal counsel; or (iv) any paper or document reasonably believed to be
genuine, authentic, or signed by the proper 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) Upon the Trust's request entering into any agreements required by the
National Securities Clearing Corporation (the "NSCC") required by the NSCC
for the transmission of Trust or Shareholder data through the NSCC clearing
systems.
7.2 Transfer Agent shall not be responsible for, and ALPS shall indemnify and
hold 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 Transfer Agent or its agent or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in
good faith and without negligence or willful misconduct;
(b) ALPS' lack of good faith, negligence or willful misconduct which arise out
of the breach of any representation or warranty of the Transfer Agent
hereunder;
(c) The reliance upon, and any subsequent use of or action taken or omitted, by
Transfer Agent, or its agents or subcontractors on: (i) any information,
records, documents, data, stock certificates 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 ALPS, and which have been prepared, maintained
or performed by ALPS or any other person or firm on behalf of ALPS; (i) any
written instructions or requests of the ALPS or any of its officers; (ii)
any written instructions or opinions of ALPS legal counsel with respect to
any matter arising in connection with the services to be performed by
Transfer Agent under this Agreement which are provided to Transfer Agent
after consultation with such legal counsel; or (iv) any paper or document
reasonably believed to be genuine, authentic, or signed by the proper
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;
7.3 In order that the indemnification provisions contained in this Section 7
shall apply, upon the assertion of a claim for which one party may be
required to indemnify the other party, the party seeking indemnification
shall promptly notify the party providing indemnification of such
assertion, and shall keep the that party advised with respect to all
developments concerning such claim. The party providing indemnification
shall have the option to participate with the other party in the defense of
such claim with its own counsel or to defend against said claim in its own
name or in the name of party seeking indemnification at its own expense.
Neither party shall confess any claim or make any compromise in any case in
which the other party may be required to provide indemnification except
with the other party's prior written consent.
8. Standard of Care
ALPS shall at all times act in good faith and agrees to use its best efforts to
ensure the accuracy of all services performed under this agreement. At all
times, ALPS shall be held to a reasonableness standard of actions by other
similar transfer agents in the mutual fund industry and shall be liable for
any errors caused by the negligence, willful misconduct or bad faith of its
employees.
9. Confidentiality
9.1 ALPS and the Transfer Agent 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, corporations or other business
organization, any customers' lists, trade secrets, cost figures and
projections, profit figures and projections, or any other secret or
confidential information whatsoever, whether of ALPS or of the Transfer
Agent, used or gained by ALPS or the Transfer Agent during performance
under this Agreement. ALPS 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 ALPS or the Transfer Agent and their successors and assigns. The
above prohibition of disclosure shall not apply to the extent that ALPS
must disclose such data to a Trust agent for purposes of providing services
under this Agreement.
9.2 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 subpoenas from state or federal government
authorities, ALPS will notify the Transfer Agent and secure instructions
from an authorized officer of the Transfer Agent as to such inspection.
ALPS expressly reserves the right, however, to exhibit the Shareholder
records as required by law or court order, upon notification of Transfer
Agent, provided that Transfer Agent has an opportunity to seek proper
action to maintain the records' confidentiality.
10. Covenants of the Transfer Agent and ALPS
10.1 ALPS hereby agrees to establish and maintain facilities and procedures
reasonably acceptable to the Transfer Agent for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account of, such
certificates, forms and devices.
10.2 ALPS shall keep records relating to the services to be performed hereunder,
in the form and manner as it may deem advisable. To the extent required by
Section 31 of the Investment Company Act of 1940, as amended, and the Rules
thereunder, ALPS agrees that all such records prepared or maintained by
ALPS relating to the services to be performed by ALPS hereunder are the
property of the Trust and will be preserved, maintained and made available
in accordance with such Section and Rules, and will be surrendered promptly
to the Trust on and in accordance with its request.
11. Termination of Agreement
11.1 This Agreement may be terminated by either party upon one-hundred twenty
(120) days written notice to the other.
11.2 Should the Transfer Agent exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material
will be borne by the Transfer Agent. Additionally, ALPS reserves the right
to charge for any other reasonable expenses associated with such
termination. Payment of such expenses or costs shall be in accordance with
Section 3.4 of this Agreement.
11.3 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.
12. Assignment and Third Party Beneficiaries
12.1 Except as provided in Section 13.1 below, 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.
12.2 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 ALPS and the Transfer Agent, and the duties
and responsibilities undertaken pursuant to this Agreement shall be for the
sole and exclusive benefit of ALPS and the Transfer Agent. This Agreement
shall inure to the benefit of and be binding upon the parties and their
respective permitted successors and assigns.
12.3 This Agreement does not constitute an agreement for a partnership or joint
venture between ALPS and the Transfer Agent. Neither party shall make any
commitments with third parties that are binding on the other party without
the other party's prior written consent.
13. Subcontractors
13.1 Nothing herein shall impose any duty upon ALPS in connection with or make
ALPS 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. mail, the NSCC and
telecommunication companies, provided, if the Transfer Agent selected such
company, ALPS shall have exercised due care in selecting the same.
14. Miscellaneous
14.1 Amendment. This Agreement may be amended or modified by a written agreement
executed by both parties.
14.2 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.
14.3 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. However, equipment or
transmission problems associated with computer year 2000 problems do not
constitute a valid force majeure.
14.4 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.
14.5 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.
14.6 Priorities Clause. In the event of any conflict, discrepancy or ambiguity
between the terms and conditions contained in this Agreement and any
Schedules hereto, the terms of the Agreement shall take precedence.
However, any written amendment to the Agreement shall incorporate the
Agreement and shall take precedence over any existing term in the
Agreement, to the extent applicable.
14.7 Audit of Records. ALPS will permit FASCorp or its authorized agents to
visit, inspect, duplicate, examine, audit and verify (collectively "audit")
the Records belonging to or in the possession or control of ALPS. Such
audit will be completed at ALPS's office or elsewhere during regular
business hours, and with at least seventy-two (72) hours prior notice to
ALPS. The Records to which FASCorp will have access are those which are
required by law to be maintained pursuant to the provision of the Services
which ALPS provides to the shareholders. FASCorp may make copies and make
extracts from such records, provided that such audit shall not unreasonably
interfere with ALPS's normal course of business.
14.8 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.
14.9 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.
14.10Counterparts. 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.
14.11Reproduction 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.
14.12Notices. 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) If to Financial Administrative Services Corporation, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Vice President, Investments
cc: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
Facsimile: _____________________
(b) If to the ALPS, to:
ALPS Mutual Funds Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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.
BY: ________________________________
Executive Vice President
ATTEST: ___________________________
FINANCIAL ADMINISTRATIVE SERVICES CORP.
BY: ________________________________
TITLE:______________________________
ATTEST: ____________________________
ALPS MUTUAL FUNDS SERVICES, INC.
TRANSFER AGENT SERVICE RESPONSIBILITIES*
Service Performed Responsibility ALPS Transfer Agent
1. Receives orders for the purchase X
of Shares.
2. Issue Shares and hold Shares in X
Shareholders accounts.
3. Receive redemption requests. X
4. Effect transactions 1-3 above X
directly with broker-dealers.
5. Pay monies to redeeming X
Shareholders.
6. Effect transfers of Shares. X
7. Prepare and transmit dividends X
and distributions.
8. Reporting of abandoned property. X
9. Maintain records of account. X
10.Maintain and keep a current and X
accurate control book for each
issue of securities.
11. Mail proxies.
X
12. Mail Shareholder reports. X
13. Mail prospectuses to current X
Shareholders.
14. Withhold taxes on U.S. resident X
and non-resident alien accounts.
Service Performed Responsibility ALPS Transfer Agent
15. Prepare and file U.S. Treasury X
Department forms.
16. Prepare and mail account and X
confirmation statements for
Shareholders.
17. Provide Shareholder account X
information.
18. Blue sky reporting.
X
*Such services are more fully described in Section 1.1 (a), (b) and (c) of the
Agreement.
ALPS MUTUAL FUNDS SERVICES, INC.
BY: ____________________________
Executive Vice President
ATTEST: _______________________
FINANCIAL ADMINISTRATIVE SERVICES CORPORATION
BY: _____________________________
TITLE:___________________________
ATTEST: _________________________
SCHEDULE A
Orchard Value Fund, Class B
FEE SCHEDULE
ONE TIME CONVERSION FEE $0
GREATER OF:
MINIMUM BASE ANNUAL FEE OR $24,000
MAINTENANCE FEE PER ACCOUNT $13
OUT OF POCKET EXPENSES
NEW ACCOUNT SET UP $4.00 per account
MANUAL FIN. TRANSACTIONS $5.00 each
MANUAL MAINT. TRANSACTIONS $2.00 each
TELEPHONE CALLS $2.00 each
CORRESPONDENCE SENT $4.00 each
CLOSED ACCOUNT FEE $3.00 per account
Dated:_____________ , 1999
ALPS MUTUAL FUNDS SERVICES, INC.
BY: _______________________________
Executive Vice President
ATTEST: ___________________________
FINANCIAL ADMINISTRATIVE SERVICES CORPORATION
BY: _________________________________
ATTEST: ____________________________