SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
between
ALPS MUTUAL FUNDS SERVICES, INC.
and
STATE STREET BANK AND TRUST COMPANY
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
ALPS MUTUAL FUNDS SERVICES, INC.
AND
STATE STREET BANK AND TRUST COMPANY
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TABLE OF CONTENTS
SECTION PAGE
1. Terms of Appointment and Duties . . . . . . . . . . . . . . . . . . . . 1
2. Third Party Administrators for Defined Contribution Plans . . . . . . . 4
3. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Representations and Warranties of the Bank . . . . . . . . . . . . . . 5
5. Representations and Warranties of the Transfer Agent . . . . . . . . . 5
6. Wire Transfer Operating Guidelines . . . . . . . . . . . . . . . . . . 6
7. Data Access and Proprietary Information . . . . . . . . . . . . . . . . 7
8. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9. Standard of Care . . . . . . . . . . . . . . . . . . . . . . . . . . .10
10. Year 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
11. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
12. Covenants of the Transfer Agent and the Bank . . . . . . . . . . . . .11
13. Termination of Agreement . . . . . . . . . . . . . . . . . . . . . . .11
14. Assignment and Third Party Beneficiaries . . . . . . . . . . . . . . .11
15. Subcontractors . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
16. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
SUB-TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ______ day of __________________, 1998, by and between
ALPS MUTUAL FUNDS SERVICES, INC., a Colorado corporation, having its principal
office and place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (the "Transfer Agent"), and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company having its principal office and place of business at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Bank").
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 (including each series thereof) 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 the Bank;
WHEREAS, the Transfer Agent is desirous of having the Bank perform certain
shareholder accounting, administrative and servicing function (collectively
"Shareholder and Record-Keeping Services");
WHEREAS, the Transfer Agent desires to appoint the Bank as its agent, and the
Bank 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
the Bank to act as, and the Bank agrees to act as, the agent of the
Transfer Agent for the shares of the Trust in connection with any
accumulation, open-account, retirement plans or similar plan provided to
the shareholders of each Fund ("Shareholders") and set out in the
currently effective prospectus and statement of additional information
("prospectus") of the Trust, including without limitation any periodic
investment plan or periodic withdrawal program. 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. The Bank 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 the Bank, the Bank 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) (11) and (iii)
above, the Bank 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) 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;
(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) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt
by the Bank of indemnification satisfactory to the Bank and
protecting the Bank and the Trust, and the Bank at its
option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof and
without such indemnity;
(ix) Maintain records of account for and advise the Trust and
its Shareholders as to the foregoing; and
(x) 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. The Bank 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, the Bank shall perform the
following services:
(a) OTHER CUSTOMARY SERVICES. Perform the customary services of a
transfer agent, dividend disbursing agent, custodian of certain
retirement plans 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 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 Eastern 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 the Bank 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 Bank 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"). (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 the Bank 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 the Bank; (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 on DST Systems, Inc. computer system
TA2000 ("TA2000 System") in accordance with NSCC's Networking and
Fund/DERV rules for those broker-dealers; and (iv) maintain
Shareholder accounts on TA2000 System 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 the Bank. The Bank 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 available to certain of its customers, a
qualified plan program (the "Program") pursuant to which the customers
("Employers") may adopt certain plans of deferred compensation ("Plan or
Plans") for the benefit of the individual Plan participant (the "Plan
Participant"), such Plan(s) being qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended ("Code") and administered by
third party administrators which may be plan administrators as defined in
the Employee Retirement Income Security Act of 1974, as amended)(the
"TPA(s)")
2.2 In accordance with the procedures established in the initial Schedule 2.1
entitled "Third Party Administrator Procedures", as may be amended by the
Bank and the Trust from time to time ("Schedule 2. 1"), the Bank 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 TPA or
its designee as the Trustee for the benefit of the Plan; and
(c) Perform all services under SECTION I 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 the Bank to use methods and procedures other than
those usually employed by the Bank to perform services
under SECTION 1 of this Agreement;
(b) Involve the provision of information to the Bank after the
commencement of the nightly processing cycle of the TA2000
System; or
(c) Require more manual intervention by the Bank, either in
the entry of data or in the modification or amendment of
reports generated by the TA2000 System than is usually
required by non-retirement plan and pre-nightly
transactions.
3. FEES AND EXPENSES
3.1 FEE SCHEDULE. For the performance by the Bank pursuant to this Agreement,
the Transfer Agent agrees to pay the Bank an annual maintenance fee for
each Shareholder account as set out in the initial 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 the Bank.
3.2 OUT-OF-POCKET EXPENSES. In addition to the fee paid under Section 3.1
above, the Transfer Agent agrees to reimburse the Bank for out-of-pocket
expenses, including but not limited to confirmation production, postage,
forms, telephone, microfilm, microfiche, mailing and tabulating proxies,
records storage, or advances incurred by the Bank for the items set out
in the fee schedule attached hereto. In addition, any other expenses
incurred by the Bank 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 the Bank 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 THE BANK
The Bank represents and warrants to the Transfer Agent that:
4.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
4.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
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 is duly registered as a transfer agent under the Securities Exchange
Act of 1934 or exempt from any such registration requirement.
5. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Bank that:
5.1 It is a corporation duly organized and existing and in good standing
under the laws of the State 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.
5.4 The Trust is an open-end and diversified management investment company
registered under the Investment Company Act of 1940, as amended.
5.5 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 Trust being offered
for sale.
6. WIRE TRANSFER OPERATING GUIDELINES/ARTICLES 4A OF THE UNIFORM COMMERCIAL
CODE
6.1 The Bank is authorized to promptly debit the appropriate Transfer Agent
account(s) upon the receipt of a payment order in compliance with the
selected security procedure (the "Security Procedure") chosen for funds
transfer and in the amount of money that the Bank has been instructed to
transfer. The Bank shall execute payment orders in compliance with the
Security Procedure 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 acknowledges that the Security Procedure it has
designated on the Transfer Agent Selection Form was selected by the
Transfer Agent from security procedures offered by the Bank. The Transfer
Agent shall restrict access to confidential information relating to the
Security Procedure to authorized persons as communicated to the Bank in
writing. The Transfer Agent must notify the Bank 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. The Bank shall verify the authenticity of all Transfer Agent
instructions according to the Security Procedure.
6.3 The Bank 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 The Bank 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 Bank's receipt of such payment
order; (b) if initiating such payment order would cause the Bank, in the
Bank's sole judgment, to exceed any volume, aggregate dollar, network,
time, credit or similar limits which are applicable to the Bank; or (c)
if the Bank, in good faith, is unable to satisfy itself that the
transaction has been properly authorized.
6.5 The Bank shall use reasonable 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 Bank reasonable opportunity to act. However, the
Bank assumes no liability if the request for amendment or cancellation
cannot be satisfied.
6.6 The Bank shall assume no responsibility for failure to detect any
erroneous payment order provided that the Bank complies with the payment
order instructions as received and the Bank 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.
6.7 The Bank shall assume no responsibility for lost interest with respect to
the refundable amount of any unauthorized payment order, unless the Bank
is notified of the unauthorized payment order within thirty (30) days of
notification by the Bank of the acceptance of such payment order. In no
event (including failure to execute a payment order) shall the Bank be
liable for special, indirect or consequential damages, even if advised of
the possibility of such damages.
6.8 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, the Bank 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 the Bank with respect to an ACH credit entry are
provisional until the Bank receives final settlement for such entry from
the Federal Reserve Bank. If the Bank does not receive such final
settlement, the Transfer Agent agrees that the Bank 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.
6.9 Confirmation of Bank's execution of payment orders shall ordinarily be
provided within twenty four (24) hours notice of which may be delivered
through the Bank's proprietary information systems, or by facsimile or
call-back. Transfer Agent must report any objections to the execution of
an order within thirty (30) days.
7. DATA ACCESS AND PROPRIETARY INFORMATION
7.1 The Transfer Agent acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Transfer Agent by the Bank as part
of the Trust's ability to access certain Trust-related data ("Customer
Data") maintained by the Bank on data bases under the control and
ownership of the Bank or other third party ("Data Access Services")
constitute copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to the
Bank or other third party. In no event shall Proprietary Information be
deemed Customer Data. The Transfer Agent agrees to treat all Proprietary
Information as proprietary to the Bank and further agrees that it shall
not divulge any Proprietary Information to any person or organization
except as may be provided hereunder. Without limiting the foregoing, the
Transfer Agent agrees for itself and its employees and agents to:
(a) Use such programs and databases (i) solely on the Transfer Agent's
computers, or (ii) solely from equipment at the location agreed to
between the Bank and the Transfer Agent and (iii) solely in
accordance with the Bank's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course or performing processing on the Transfer Agent's
computer(s)), the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose of
such information in accordance with the Bank's instructions;
(d) Refrain from causing or allowing information transmitted from the
Bank's computer to the Transfer Agent's terminal to be
retransmitted to any other computer terminal or other device
except as expressly permitted by the Bank (such permission not to
be unreasonably withheld);
(e) Allow the Transfer Agent to have access only to those authorized
transactions as agreed between the Bank and the Transfer Agent;
and
(f) Honor all reasonable written requests made by the Bank to protect
at the Bank's expense the rights of the Bank in Proprietary
Information at common law, under federal copyright law and under
other federal or state law.
7.2 Proprietary 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; or (iii) are already in the possession of the receiving
party at the time or receipt without obligation of confidentiality or
breach of this Agreement.
7.3 The Transfer Agent acknowledges that its obligation to protect the Bank's
Proprietary Information is essential to the business interest of the Bank
and that the disclosure of such Proprietary Information in breach of this
Agreement would cause the Bank immediate, substantial and irreparable
harm, the value of which would be extremely difficult to determine.
Accordingly, the parties agree that, in addition to any other remedies
that may be available in law, equity, or otherwise for the disclosure or
use of the Proprietary Information in breach of this Agreement, the Bank
shall be entitled to seek and obtain a temporary restraining order,
injunctive relief, or other equitable relief against the continuance of
such breach.
7.4 If the Transfer Agent notifies the Bank that any of the Data Access
Services do not operate in material compliance with the most recently
issued user documentation for such services, the Bank shall endeavor in a
timely manner to correct such failure. Organizations from which the Bank
may obtain certain data included in the Data Access Services are solely
responsible for the contents of such data and the Transfer Agent agrees
to make no claim against the Bank arising out of the contents of such
third-party data, including, but not limited to, the accuracy thereof.
DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS, AS
AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE
EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.5 If the transactions available to the Transfer Agent include the ability
to originate electronic instructions to the Bank in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event the Bank shall be
entitled to rely on the validity and authenticity of such instruction
without undertaking any further inquiry as long as such instruction is
undertaken in conformity with security procedures established by the Bank
from time to time.
7.6 Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this SECTION 7. The obligations of this Section
shall survive any earlier termination of this Agreement.
8. INDEMNIFICATION
8.1 The Bank shall not be responsible for, and the Transfer Agent shall
indemnify and hold the Bank, 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 Bank 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 the Bank, or its agents or subcontractors on: (i) any
information, records, documents, data, stock certificates or
services, which are received by the Bank 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
instructions or requests of the Transfer Agent or the Trust or any
of its officers; (iii) any instructions or opinions of legal
counsel with respect to any matter arising in connection with the
services to be performed by the Bank under this Agreement which
are provided to the Bank 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) The negotiation and processing of any checks including without
limitation for deposit into the Trust's demand deposit account
maintained at the Bank; or
(f) 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.
8.2 In order that the indemnification provisions contained in this Section 8
shall apply, upon the assertion of a claim for which the Transfer Agent
may be required to indemnify the Bank, the Bank shall promptly notify the
Transfer Agent of such assertion, and shall keep the Transfer Agent
advised with respect to all developments concerning such claim. The
Transfer Agent shall have the option to participate with the Bank in the
defense of such
claim or to defend against said claim in its own name or in the name of
the Bank. The Bank shall in no case confess any claim or make any
compromise in any case in which the Transfer Agent may be required to
indemnify the Bank except with the Transfer Agent's prior written
consent.
9. STANDARD OF CARE
9.1 The Bank shall at all times act in good faith and agrees to use its best
efforts within reasonable limits to insure 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 unless said errors are
caused by its negligence, bad faith, or willful misconduct or that of its
employees, except as provided in Section 9.2 below.
9.2 In the case of Exception Services as defined in SECTION 2.3 herein, the
Bank shall be held to a standard of gross negligence and encoding and
payment processing errors shall not be deemed negligence.
10. YEAR 2000
The Bank will take reasonable steps to ensure that its products (and
those of its thirdparty suppliers) reflect the available technology to
offer products that are Year 2000 ready, including, but not limited to,
century recognition of dates, calculations that correctly compute same
century and multi century formulas and date values, and interface values
that reflect the date issues arising between now and the next one-hundred
years, and if any changes are required, the Bank will make the changes to
its products at a price to be agreed upon by the parties and in a
commercially reasonable time frame and will require third-party suppliers
to do likewise.
11. CONFIDENTIALITY
11.1 The Bank 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 the Bank or of the
Transfer Agent, used or gained by the Bank or the Transfer Agent during
performance under this Agreement. The Bank 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 Bank or the Transfer Agent and their
successors and assigns. In the event of breach of the foregoing by either
party, the remedies provided by SECTION 7.3 shall be available to the
party whose confidential information is disclosed. The above prohibition
of disclosure shall not apply to the extent that the Bank must disclose
such data to its sub-contractor or Trust agent for purposes of providing
services under this Agreement.
11.3 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 Bank
will endeavor to notify the Fund and to secure instructions from an
authorized officer of the Fund as to such inspection. The Bank 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.
12. COVENANTS OF THE TRANSFER AGENT AND THE BANK
12.1 The Transfer Agent shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Board of Directors of
the Transfer Agent authorizing the Appointment of the Bank and the
execution and delivery of this Agreement.
12.2 The Bank 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.
12.3 The Bank 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, the Bank agrees that all such records prepared
or maintained by the Bank relating to the services to be performed by the
Bank 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.
13. TERMINATION OF AGREEMENT
13.1 This Agreement may be terminated by either party upon one hundred twenty
(120) days written notice to the other.
13.2 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, the Bank
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.
13.3 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.
14. ASSIGNMENT AND THIRD PARTY BENEFICIARIES
14.1 Except as provided in SECTION 15.1 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.
14.2 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 Bank and the Transfer Agent, and the
duties and responsibilities undertaken pursuant to this Agreement shall
be for the sole and exclusive benefit of the Bank 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.
14.3 This Agreement does not constitute an agreement for a partnership or
joint venture between the Bank and the Transfer Agent. Other than as
provided in SECTION 15.1, neither party shall make any commitments with
third parties that are binding on the other party without the other
party's prior written consent.
15. SUBCONTRACTORS
15.1 The Bank may, without further consent on the part of the Transfer Agent,
subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934, as amended ("Section 17A(c)(2)") (ii) a
BFDS subsidiary duly registered as a transfer agent pursuant to Section
17A(c)(2) or (iii) a BFDS affiliate; provided, however, that the Bank
shall be as fully responsible to the Transfer Agent for the acts and
omissions of any subcontractor as it is for its own acts and omissions.
15.2 Nothing herein shall impose any duty upon the Bank in connection with or
make the Bank 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. malls, the
NSCC and telecommunication companies, provided, if the Transfer Agent
selected such company, the Bank shall have exercised due care in
selecting the same.
16. MISCELLANEOUS
16.1 AMENDMENT. This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a
resolution of the Transfer Agent.
16.2 MASSACHUSETTS LAW TO APPLY. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
The Commonwealth of Massachusetts.
16.3 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.
16.4 CONSEQUENTIAL DAMAGES. Neither party to this Agreement shall be liable to
the other party for consequential damages under any provision of this
Agreement or for any consequential damages arising out of any act or
failure to act hereunder.
16.5 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.
16.6 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.
16.5 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
the Schedules shall take precedence.
16.6 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.
16.7 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.
16.8 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.
16.9 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.
16.11 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) If to State Street Bank and Trust Company, to:
State Street Bank and Trust Company
------------------------------------------
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Attention:
--------------------------------
Facsimile:
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(b) If to the Transfer Agent, to:
ALPS Mutual Funds Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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:
--------------------------------
President
ATTEST:
----------------------------
STATE STREET BANK AND TRUST COMPANY
BY:
--------------------------------
Executive Vice President
ATTEST:
----------------------------
STATE STREET BANK & TRUST COMPANY
TRANSFER AGENT SERVICE RESPONSIBILITIES*
SERVICE PERFORMED RESPONSIBILITY
Bank Transfer Agent
1. Receives orders for the purchase X X (telephone only)
of Shares.
2. Issue Shares and hold Shares in X
Shareholders accounts.
3. Receive redemption requests. X(telephone only)
4. Effect transactions 1-3 above X
directly with broker-dealers.
5. Pay over monies to redeeming X
Shareholders.
6. Effect transfers of Shares. X
7. Prepare and transmit dividends X
and distributions.
8. Issue Replacement Certificates. X
9. Reporting of abandoned property. X
10. Maintain records of account. X
11. Maintain and keep a current and X
accurate control book for each
issue of securities.
12. Mail proxies. X
13. Mail Shareholder reports. X
14. Mail prospectuses to current X
Shareholders.
15. Withhold taxes on U.S. resident X
and non-resident alien accounts.
Service Performed Responsibility
BANK TRANSFER AGENT
16. Prepare and file U.S. Treasury X
Department forms.
17. Prepare and mail account and X
confirmation statements for
Shareholders.
18. Provide Shareholder account X X
information.
19. 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:
---------------------------------
President
ATTEST:
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STATE STREET BANK AND TRUST COMPANY
BY:
---------------------------------
Executive Vice President
ATTEST:
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SCHEDULE A
STONEBRIDGE FUNDS TRUST CURRENTLY CONSISTING OF TWO SERIES:
STONEBRIDGE GROWTH FUND
STONEBRIDGE AGGRESSIVE GROWTH FUND
SCHEDULE 2.1
THIRD PARTY ADMINISTRATOR PROCEDURES
Dated ________________
1. On each Business Day, the TPA(s) shall receive, on behalf of and as agent
of the Fund(s), Instructions (as hereinafter defined) from the Plan.
Instructions shall mean as to each Fund (i) orders by the Plan for the
purchases of Shares, and (ii) requests by the Plan for the redemption of
Shares; in each case based on the Plan's receipt of purchase orders and
redemption requests by Participants in proper form by the time required
by the term of the Plan, but not later than the time of day at which the
net asset value of a Fund is calculated, as described from time to time
in that Fund's prospectus. Each Business Day on which the TPA receives
Instructions shall be a "Trade Date".
2. The TPA(s) shall communicate the TPA(s)'s acceptance of such
Instructions, to the applicable Plan.
3. On the next succeeding Business Day following the Trade Date on which it
accepted Instructions for the purchase and redemption of Shares, (TD+1),
the TPA(s) shall notify the Bank of the net amount of such purchases or
redemptions, as the case may be, for each of the Plans. In the case of
net purchases by any Plan, the TPA(s) shall instruct the Trustees of such
Plan to transmit the aggregate purchase price for Shares by wire transfer
to the Bank on TD+1. In the case of net redemptions by any Plan, the
TPA(s) shall instruct the Fund's custodian to transmit the aggregate
redemption proceeds for Shares by wire transfer to the Trustees of such
Plan on TD+1. The times at which such notification and transmission shall
occur on TD+1. shall be as mutually agreed upon by each Fund, the TPA(s)
and the Bank.
4. The TPA(s) shall maintain separate records for each Plan, which record
shall reflect Shares purchased and redeemed, including the date and price
for all transactions, and Share balances. The TPA(s) shall maintain on
behalf of each of the Plans a single master account with the Bank and
such account shall be in the name of that Plan, the TPA(s) or the nominee
of either thereof as the record owner of Shares owned by such Plan.
5. The TPA(s) shall maintain records of all proceeds of redemptions of
Shares and all other distributions not reinvested in Shares.
6. The TPA(s) shall prepare, and transmit to each of the Plans, periodic
account statements showing the total number of Shares owned by that Plan
as of the statement closing date, purchases and redemptions of Shares by
the Plan during the period covered by the statement, and the dividends
and other distributions paid to the Plan on Shares during the statement
period (whether paid in cash or reinvested in Shares).
7. The TPA(s) shall, at the request and expense of each Fund, transmit to
the Plans prospectuses, proxy materials, reports, and other information
provided by each Fund for delivery to its shareholders.
8. The TPA(s) shall, at the request of each Fund, prepare and transmit to
each Fund or any agent designated by it such periodic reports covering
Shares of each Plan as each Fund shall reasonably conclude are necessary
to enable the Fund to comply with state Blue Sky requirements.
9. The TPA(s) shall transmit to the Plans confirmation of purchase orders
and redemption requests placed by the Plans; and
10. The TPA(s) shall, with respect to Shares, maintain account balance
information for the Plan(s) and daily and monthly purchase summaries
expressed in Shares and dollar amounts.
11. Plan sponsors may request, or the law may require, that prospectuses,
proxy materials, periodic reports and other materials relating to each
Fund be furnished to Participants in which event the Bank or each Fund
shall mail or cause to be mailed such materials to Participants. With
respect to any such mailing, the TPA(s) shall, at the request of the Bank
or each Fund, provide at the TPA(s)'s expense complete and accurate set
of mailing labels with the name and address of each Participant having an
interest through the Plans in Shares.
ALPS MUTUAL FUNDS SERVICES, INC.
BY:
---------------------------------
President
ATTEST:
-----------------------------
STATE STREET BANK AND TRUST COMPANY
BY:
---------------------------------
Executive Vice President
ATTEST:
-----------------------------
SCHEDULE 3.1
FEES
Dated _____________
ALPS MUTUAL FUNDS SERVICES, INC.
BY:
---------------------------------
President
ATTEST:
-----------------------------
STATE STREET BANK AND TRUST COMPANY
BY:
---------------------------------
Executive Vice President
ATTEST:
-----------------------------