TRANSFER AGENCY AND SERVICE AGREEMENT
-------------------------------------
Transfer Agency and Services Agreement (the "Agreement") made this __
day of December, 2004, between California Investment Trust and California
Investment Trust II, two trusts established under the laws of the State of
Massachusetts (collectively the "Trusts") and ALPS Mutual Funds Services, Inc.,
a Colorado corporation having its principal office at 0000 Xxxxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000 (the "Transfer Agent").
WHEREAS, the Trusts are open-end management investment companies
registered under the Investment Company Act of 1940, as amended, presently
consisting of 12 portfolios, with nine portfolios having two classes of shares
and three portfolios having one class of shares, listed in Appendix A attached
hereto; each of such investment portfolios and any additional investment funds
that may be established by the Trusts is referred to herein individually as a
"Fund" and collectively as the "Funds"; and
WHEREAS, the Transfer Agent provides certain transfer agency services
to investment companies; and
WHEREAS, the Trusts, desire to appoint the Transfer Agent as the
Trusts' 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 Trusts, on behalf of the Funds,
hereby employs and appoints the Transfer Agent to act as, and the
Transfer Agent agrees to act as its transfer agent for the Trusts'
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 Funds of the Trusts
("Shareholders") and as set out in the currently effective
prospectus and statement of additional information ("Prospectus")
of the Trusts on behalf of the applicable Fund, including without
limitation any periodic investment plan or periodic withdrawal
program. In accordance with procedures established from time to
time by written agreement between the Trusts on behalf of each of
the Funds, as applicable and 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 Trusts authorized by the Trusts (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) With respect to the transactions enumerated in 1.1 (a), (b)
and (c) above, the Transfer Agent shall execute transactions
directly with broker-dealers and other financial institutions
authorized by the Trusts, deemed to be acting as a limited agent
of the Trusts. The Transfer Agent will execute transactions only
from broker-dealers and other financial institutions who have
adopted and implemented internal controls reasonably designed to
ensure that order or redemption requests received in proper form
by the terms specified in the Prospectus (currently, the close of
regular trading on the New York Stock Exchange) will be processed
on that day and order or redemption requests received in proper
form after the terms specified in the Prospectus (currently, the
close of regular trading on the New York Stock Exchange) will be
processed on the next business day;
(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 Trusts on behalf of the applicable Fund;
(h) Maintain records of account for and advise the Trusts and its
Shareholders as to the foregoing;
(i) Record the issuance of Shares of the Trusts and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number of
Shares of the Trusts which are authorized, based upon data
provided to it by the Trusts, and issued and outstanding. The
Transfer Agent shall also provide the Trusts 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
Trusts; and
(j) Orders or redemption requests received in proper form by the
terms specified in the Prospectus (currently, the close of regular
trading on the New York Stock Exchange) will be processed by the
Transfer Agent that day and orders or redemption requests received
in proper form after the terms specified in the Prospectus
(currently, the close of regular trading on the New York Stock
Exchange) will be processed by the Transfer Agent on the next
business day.
1.2 Additional Services. In addition to, and neither in lieu nor in
contravention of, the services set forth in the above paragraph
1.1, 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, perform anti-money laundering and customer
identification reviews of Shareholder accounts, and providing
Shareholder account information;
(b) Control Book. Maintain a daily record and produce a daily
report for the Trusts of all transactions and receipts and
disbursements of money and securities and deliver a copy of such
report for the Trusts for each business day to the Trusts and
Custodian no later than 9:00 AM Eastern Time, or such earlier time
as the Trusts may reasonably require, on the next business day;
(c) "Blue Sky" Reporting. The Trusts 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 Trusts' blue sky State registration status is solely
limited to the initial establishment of transactions subject to
blue sky compliance by the Trusts, providing a system which will
enable the Trusts to monitor the total number of Shares sold in
each State, and providing any other information reasonably
requested by the Trusts to fulfill the Trusts' obligation to
monitor blue sky compliance;
(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 Trusts), 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 Trusts' banks for the settlement of transactions
between the Trusts and NSCC (acting on behalf of its broker-dealer
and bank participants); (iii) provide account and transaction
information from the affected Trusts' 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 mutual agreement between the Trusts and the
Transfer Agent. Pursuant to such agreement the Transfer Agent may
at times perform only a portion of these services and the Trusts
or its agent may perform these services on the Trusts' behalf.
2. Fees and Expenses
2.1 Fee Schedule. For the performance by the Transfer Agent pursuant
to this Agreement, the Trusts agree to pay the Transfer Agent fees
as set forth in the attached fee schedule ("Schedule B"). Such
fees and out-of-pocket expenses and advances identified Section
2.2 below may be changed from time to time subject to mutual
written agreement between the Trusts and the Transfer Agent.
2.2 Out-of-Pocket Expenses. In addition to the fee paid under Section
2.1 above, the Trusts agree to reimburse the Transfer Agent for
reasonable out-of-pocket expenses, including but not limited to
statement and confirmation production, postage, forms, NSCC
interface fees, allocation of service auditor's report, telephone,
records storage, or advances incurred by the Transfer Agent for
the items set out in Schedule B attached hereto. In addition, any
other expenses incurred by the Transfer Agent at the request or
with the consent of the Trusts, will be reimbursed by the Trusts.
2.3 Postage. Upon receipt of an invoice from Transfer Agent, postage
for mailing of dividends, Trusts reports and other mailings to all
shareholder accounts shall be advanced to the Transfer Agent by
the Trusts at least seven (7) days prior to the mailing date of
such materials.
2.4 Invoices. The Trusts agree 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 Trusts may only withhold that portion of the fee or expense
subject to the good faith dispute. The Trusts shall notify the
Transfer Agent in writing following the receipt of each billing
notice if the Trusts are disputing any amounts in good faith. If
the Trusts does not provide such notice of dispute within the
required time, the billing notice will be deemed accepted by the
Trusts. The Trusts 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 Late Payments. If any undisputed amount in an invoice of the
Transfer Agent (for fees or reimbursable expenses) is not paid
when due, the Trusts 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
Trusts) 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
The Transfer Agent represents and warrants to the Trusts 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, and will continue to be, registered as a transfer agent
under the Securities Exchange Act of 1934, as amended.
3.7 It will adopt and implement written policies and procedures
reasonably designed to prevent violations of the Federal
Securities Laws (as defined under Rule 38a-1 of the Investment
Company Act of 1940, as amended) by the Trusts. It will review, no
less frequently than annually, the adequacy of the policies and
procedures and the effectiveness of their implementation and will
report to the Trusts, within a reasonable amount of time, any
material changes made to the policies and procedures since the
date of the last report, and any material changes made to the
policies and procedures recommended as a result of the annual
review. It will provide the Trusts with an annual report of each
Material Compliance Matter (as defined under Rule 38a-1 of the
Investment Company Act of 1940, as amended) that occurred since
the date of the last report.
4. Representations and Warranties of the Trusts
The Trusts represent and warrant to the Transfer Agent that:
4.1 They are statutory trusts duly organized and existing and in good
standing under the laws of the state of Massachusetts..
4.2 They are empowered under applicable laws and by its Agreement and
Declaration of Trust and Bylaws to enter into and perform this
Agreement.
4.3 All trust proceedings required by said Agreement and Declaration
of Trust and Bylaws have been taken to authorize it to enter into
and perform this Agreement.
4.4 They are 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, or will be upon commencement of operations,
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 Trusts 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 Trust account(s) upon the receipt of a
payment order in compliance with the selected security procedure
(the "Security Procedure"), attached hereto as Schedule C chosen
for Trusts transfer and in the amount of money that the Transfer
Agent has been instructed to transfer. The Transfer Agent shall
execute payment orders in compliance with the Security Procedure
and with the Trusts instructions on the execution date provided
that such payment order is received by the customary deadline as
defined in the then current Prospectus and Statement of Additional
Information 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 Trusts acknowledge that the Security
Procedure it has designated on the Trusts Selection Form, attached
hereto as Schedule C, was selected by the Trusts. The Trusts must
notify the Transfer Agent immediately of any change in the Trusts'
authorized personnel. The Transfer Agent shall verify the
authenticity of all Trusts instructions according to the Security
Procedure. The Transfer Agent is authorized to make exceptions to
the Security Procedures if instructed by the Trusts.
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, in absence of negligence, bad faith or willful misconduct
by the Transfer Agent, 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 and acts without negligence, bad faith or willful
misconduct. 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. Absent negligence, bad faith or willful misconduct, 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 sixty (60) days of notification by the
Transfer Agent of the acceptance of such payment order.
5.8 ACH Credit Entries/Provisional Payments. When the Trusts initiate
or receive 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
Trusts agree that the Transfer Agent shall receive a refund of the
amount credited to the Trusts in connection with such entry, and
the party making payment to the Trusts 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. Trusts
must report any objections to the execution of an order within
thirty (30) days.
6. Indemnification
6.1 Provided that the Transfer Agent follows the Security Proceduers,
the Transfer Agent shall not be responsible for, and the Trusts
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 Trusts' 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 Trusts in writing, and which have been prepared, maintained
or performed by the Trusts or any other person or firm on behalf
of the Trusts including but not limited to any broker-dealer, TPA
or previous transfer agent; (ii) any instructions or requests of
the Trusts or any of its officers reasonably believed by the
Transfer Agent to be authorized by the Trusts' Board of Trustees;
(iii) any instructions or opinions of the Trust's 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 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 Trusts' demand deposit account
maintained by the Transfer Agent, excluding checks not made
payable to the order of the Trusts, the Trusts' 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 the Bank for the
purchase of Shares; or
(f) Upon the Trusts' request entering into any agreements required by
the NSCC for the transmission of Trusts or Shareholder data
through the NSCC clearing systems.
6.2 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which the
Trusts may be required to indemnify the Transfer Agent, the
Transfer Agent shall have acted without negligence, bad faith or
willful misconduct and shall promptly notify the Trusts of such
assertion, and shall keep the Trusts advised with respect to all
developments concerning such claim. The Trusts 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 Trusts may be required to indemnify the Transfer Agent except
with the Trusts' prior written consent.
6.3 The Transfer Agent agrees to indemnify and hold harmless the
Trusts from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising
under the securities laws and any state or foreign securities and
blue sky laws, and amendments thereto), and expenses, including
(without limitation) reasonable attorneys' fees and disbursements
arising from any action or omission of the Transfer Agent's own
willful misfeasance, lack of good faith, negligence or reckless
disregard of its duties and obligations under this Agreement. For
any legal proceeding giving rise to this indemnification, the
Transfer Agent shall be entitled to defend or prosecute any claim
in the name of the Trusts at the Transfer Agent's own expense
through counsel of its own choosing if it gives written notice to
the Trust within ten (10) business days of receiving notice of
such claim.
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.
8. Confidentiality
8.1 The agent agrees The Transfer Agent and the Trusts agree on behalf
of themelves and their employees to treat confidentially all
records and other information relative to the other party and, if
applicable, their shareholders and shall not be disclosed to any
other party, except after prior notification to and approval in
writing, which approval shall not be unreasonably withheld and may
not be withheld where the agent may be exposed to civil or
criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted
authorities. 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 Trusts 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
Trusts 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 Trusts are required to keep confidential
pursuant to agreements with third party service providers.
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 with
the written permission of the other party for general disclosure
by a written release by the Transfer Agent or the Trusts, as the
case may be; or (iii) are independently developed by a party
hereto.
The Trusts 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 Trusts and
their successors and assigns. The above prohibition of disclosure
shall not apply to the extent that the Transfer Agent must
disclose such data to its sub-contractor or Trusts agent for
purposes of providing services under this Agreement, provided such
parties are bound by the same obligations to maintain
confidentiality as set forth above.
8.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Trusts, 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 Trusts to the extent legally permitted and to secure
instructions from an authorized officer of the Trusts 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 Trusts 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 the polices in the
Trust's then current prospectus, the Xxxxx-Xxxxx-Xxxxxx Act and
Securities and Exchange Commission Regulation S-P (17 CFR Part
248) promulgated thereunder.
9. Covenants of the Trusts and the Transfer Agent
9.1 The Trusts shall promptly furnish to the Transfer Agent the
following:
(a) A certified copy of the resolution of the Board of Trustees of
the Trusts authorizing the appointment of the Transfer Agent and
the execution and delivery of this Agreement; and
(b) A copy of the Agreement and Declaration of Trust and By-Laws
of the Trusts and all amendments thereto.
9.2 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Trusts 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 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 Trusts and will
be preserved, maintained and made available in accordance with
such Section and Rules, and will be surrendered promptly to the
Trusts on and in accordance with its request.
9.4 The Transfer Agent shall provide assistance to and cooperate with
the Trusts' internal or external auditors in connection with any
Trust-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 Trusts
shall provide reasonable advance notice to the Transfer Agent of
such audits. For purposes of such audits, at the request of the
Trusts, 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.
10. Termination of Agreement
10.1 Term. The term of this Agreement shall be until June 30, 2009
("Initial Term") 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 at least sixty
(60) days' written notice to the other party. No later than one
hundred and eighty (180) days' before the expiration of each Term.
Transfer Agent shall propose to the Trusts an updated fee
schedule. 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. 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
Trusts 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 Trusts, the Transfer Agent, at
the Trusts' request, shall offer reasonable assistance and
cooperation to the Trusts in converting the records of the Trusts
from the Transfer Agent's systems to whatever services or systems
are selected by the Trusts (the "Deconversion"). As used herein
"reasonable assistance" and "transitional 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 Trusts desire to carry
out such Deconversion, the Transfer Agent shall use its best
efforts 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 third-party out-of-pocket
expenses or costs associated with the movement of records and
material and programming charges, if any, will be borne by the
Trusts. Additionally, the Transfer Agent reserves the right to
charge a reasonable fee, not to exceed $50,000, for its
deconversion services. In the event of termination of this
Agreement, the Trusts agree to pay the Transfer Agent promptly all
amounts due the Transfer Agent hereunder for services performed
and reasonable third-party 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 Trusts. The Trusts, 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,
(ii) the sale of substantially all assets of ALPS Mutual Funds
Services, Inc. to an unaffiliated entity or (iii) 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) and (ii), the
termination shall be effective at any time specified in a written
notice from the Trusts to the Transfer Agent. With respect to
(iii), the Trusts 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 Trusts, except that any failure by
the Transfer Agent to maintain its registration as a transfer
agent must be cured immediately.
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 Trusts 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 Trusts to
perform its duties and obligations under this Agreement or a
material breach of this Agreement by the Trusts. With respect to
(i), the termination shall be effective at any time specified in a
written notice from the Transfer Agent to the Trusts. With respect
to (ii), the Transfer Agent shall provide the Trusts 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 Trusts 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 Trusts, and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive
benefit of the Transfer Agent and the Trusts. 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 Trusts. 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, and shall have acted without
negligence, bad faith or willful misconduct.
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 Trusts.
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, and such party has acted without negligence, bad
faith or willful misconduct, 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 Trusts 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 Notice. A copy of the Agreement and Declaration of Trust is on
file with the Secretary of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf
of the Board of Trustees of the Trusts as Trustees and not
individually and that the obligations of this instrument are not
binding upon any of the Trustees or shareholders individually but
are binding only upon the assets and property of the Trusts.
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.
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 plus the documents in Schedule
C. attached hereto, 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: General Counsel Fax:
303.623.7850
(b) If to the Trusts, to: California
Investment Trust & California
Investment Trust II 00 Xxxxxxxxxx
Xxxxxx, Xxxxx 0000 Xxx Xxxxxxxxx, XX
00000-0000 Attention: Xxxxx Xxxxxx
Fax: 000.000.0000
14. Additional Trusts
In the event that the Trusts establish one or more Funds, in
addition to those listed on the attached Schedule A, with respect
to which it desires to have the 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 Fund shall become a Fund
hereunder.
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. CALIFORNIA INVESTMENT TRUST & CALIFORNIA
INVESTMENT TRUST II
By: By:
--------------------------------- -----------------------------------------
Name: Name:
--------------------------------- -----------------------------------------
Title: Title:
--------------------------------- -----------------------------------------
SCHEDULE A
CIT FUND LIST
CALIFORNIA TAX-FREE INCOME FUND
Investor Class
CALIFORNIA INSURED INTERMEDIATE FUND
Investor Class
CALIFORNIA TAX-FREE MONEY MARKET FUND
Investor Class
S&P 500 INDEX FUND
Investor Class
Class K
S&P MIDCAP INDEX FUND
Investor Class
Class K
S&P SMALLCAP INDEX FUND
Investor Class
Class K
EQUITY INCOME FUND
Investor Class
Class K
NASDAQ-100 INDEX FUND
Investor Class
Class K
EUROPEAN GROWTH & INCOME FUND
Investor Class
Class K
U.S. GOVERNMENT SECURITIES FUND
Investor Class
Class K
SHORT-TERM U.S. GOVT. BOND FUND
Investor Class
Class K
THE UNITED STATES TREASURY TRUST
Investor Class
Class K
