INVESTMENT COMPANY SERVICES AGREEMENT
XXXXXX MUTUAL FUNDS, INC.
This AGREEMENT, dated as of the 30th day of November, 1999 , made by and between
Xxxxxx Mutual Funds, Inc. ("Fund"), a corporation operating as an open-end,
management investment company registered under the Investment Company Act of
1940, as amended (the "Act"), duly organized and existing under the laws of the
State of Maryland, Edgemoor Capital Management, Inc. ("Adviser"), a corporation
duly organized under the laws of the State of Maryland, and Declaration Service
Company ("Declaration"), a corporation duly organized under the laws of the
Commonwealth of Pennsylvania (collectively, the "Parties").
WHEREAS, the Fund is authorized by its Articles of Incorporation and
By-Laws to issue separate series of shares representing interests in separate
investment portfolios which are identified on Schedule "C" attached hereto and
which Schedule "C" may be amended from time to time by mutual agreement of the
Fund and Declaration; and
WHEREAS, the Fund and the Adviser have entered into an "Operating
Services Agreement" authorizing the Adviser to provide certain investment
company services to the Fund, and which further authorizes the Adviser to enter
into this Investment Company Services Agreement (hereafter "Agreement") on
behalf of the Fund; and
WHEREAS, the Parties desire to enter into an agreement whereby
Declaration will provide the services to the Fund as specified herein and set
forth in particular in Schedule "A" which is attached hereto and made a part
hereof.
NOW THEREFORE, in consideration of the promises and mutual covenants
contained herein, and in exchange of good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the Parties hereto,
intending to be legally bound, do hereby agree as follows:
GENERAL PROVISIONS
SECTION 1. APPOINTMENT. The Adviser hereby appoints Declaration as servicing
agent to the Fund and Declaration hereby accepts such appointment. In order that
Declaration may perform its duties under the terms of this Agreement, the Board
of Directors of the Fund shall direct the officers, investment adviser, legal
counsel, independent accountants and custodian of the Fund to cooperate fully
with Declaration and, upon request of Declaration, to provide such information,
documents and advice relating to the Fund which Declaration requires to execute
its responsibilities hereunder. In connection with its duties, Declaration shall
be entitled to rely, and will be held harmless by the Fund when acting in
reasonable reliance, upon any instruction, advice or document relating to the
Fund as provided to Declaration by any of the aforementioned persons on behalf
of the Fund. All fees charged by any such persons acting on behalf of the Fund
will be deemed an expense of the Fund.
Any services performed by Declaration under this Agreement will conform
to the requirements of:
(a) the provisions of the Act and the Securities Act of 1933, as
amended, and any rules or regulations in force thereunder;
(b) any other applicable provision of state and federal law;
(c) the provisions of the Fund's Articles of Incorporation and the
By-Laws as amended from time to time and delivered to Declaration;
(d) any policies and determinations of the Board of Directors of the
Fund which are communicated to Declaration; and
(e) the policies of the Fund as reflected in the Fund's registration
statement as filed with the U.S. Securities and Exchange Commission.
Nothing in this Agreement will prevent Declaration or any officer
thereof from providing the same or comparable services for or with any other
person, firm or corporation. While the services supplied to the Fund may be
different than those supplied to other persons, firms or corporations,
Declaration will provide the Fund equitable treatment in supplying services. The
Fund recognizes that it will not receive preferential treatment from Declaration
as compared with the treatment provided to other Declaration clients.
SECTION 2. DUTIES AND OBLIGATIONS OF DECLARATION.
Subject to the provisions of this Agreement, Declaration will provide
to the Fund the specific services as set forth in Schedule "A" attached hereto.
SECTION 3. DEFINITIONS. For purposes of this Agreement:
"CERTIFICATE" will mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement. To be effective, such
Certificate shall be given to and received by the custodian and shall be signed
on behalf of the Fund by any two of its designated officers, and the term
Certificate shall also include instructions communicated to the custodian by
Declaration.
"CUSTODIAN" will refer to that agent which provides safekeeping of the
assets of the Fund.
"INSTRUCTIONS" will mean communications containing instructions
transmitted by electronic or telecommunications media including, but not limited
to, Industry Standardization for Institutional Trade Communications,
computer-to-computer interface, dedicated transmission line, facsimile
transmission (which may be signed by an officer or unsigned) and tested telex.
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"ORAL INSTRUCTION" will mean an authorization, instruction, approval,
item or set of data, or information of any kind transmitted to Declaration in
person or by telephone, telegram, telecopy or other mechanical or documentary
means lacking original signature, by a person or persons reasonably identified
to Declaration to be a person or persons so authorized by a resolution of the
Board of Directors of the Fund to give Oral Instructions to Declaration on
behalf of the Fund.
"SHAREHOLDERS" will mean the registered owners of the shares of the
Fund in accordance with the share registry records maintained by Declaration for
the Fund.
"SHARES" will mean the issued and outstanding shares of the Fund.
"SIGNATURE GUARANTEE" will mean the guarantee of signatures by an
"eligible guarantor institution" as defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Eligible guarantor
institutions include banks, brokers, dealers, credit unions, national securities
exchanges, registered securities associations, clearing agencies and savings
associations. Broker-dealers guaranteeing signatures must be members of a
clearing corporation or maintain net capital of at least $100,000. Signature
guarantees will be accepted from any eligible guarantor institution which
participates in a signature guarantee program.
"WRITTEN INSTRUCTION" will mean an authorization, instruction,
approval, item or set of data or information of any kind transmitted to
Declaration in an original writing containing an original signature or a copy of
such document transmitted by telecopy including transmission of such signature
reasonably identified to Declaration to be the signature of a person or persons
so authorized by a resolution of the Board of Directors of the Fund, or so
identified by the Fund to give Written Instructions to Declaration on behalf of
the Fund.
CONCERNING ORAL AND WRITTEN INSTRUCTIONS For all purposes under this
Agreement, Declaration is authorized to act upon receipt of the first of any
Written or Oral Instruction it receives from the Fund or its agents. In cases
where the first instruction is an Oral Instruction that is not in the form of a
document or written record, a confirmatory Written Instruction or Oral
Instruction in the form of a document or written record shall be delivered. In
cases where Declaration receives an Instruction, whether Written or Oral, to
enter a portfolio transaction onto the Fund's records, the Fund shall cause the
broker/dealer executing such transaction to send a written confirmation to the
Custodian.
Declaration shall be entitled to rely on the first Instruction
received. For any act or omission undertaken by Declaration in compliance
therewith, it shall be free of liability and fully indemnified and held harmless
by the Fund, provided however, that in the event a Written or Oral Instruction
received by Declaration is countermanded by a subsequent Written or Oral
Instruction received prior to acting upon such countermanded Instruction,
Declaration shall act upon such subsequent Written or Oral Instruction. The sole
obligation of Declaration with respect to any follow-up or confirmatory Written
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Instruction or Oral Instruction in documentary or written form shall be to make
reasonable efforts to detect any such discrepancy between the original
Instruction and such confirmation and to report such discrepancy to the Fund.
The Fund shall be responsible and bear the expense of its taking any action,
including any reprocessing, necessary to correct any discrepancy or error. To
the extent such action requires Declaration to act, the Fund shall give
Declaration specific Written Instruction as to the action required.
The Fund will file with Declaration a certified copy of each resolution
of the Fund's Board of Directors authorizing execution of Written Instructions
or the transmittal of Oral Instructions as provided above.
SECTION 4. INDEMNIFICATION.
(a) Declaration, its directors, officers, employees, shareholders, and
agents will be liable for any loss suffered by the Fund resulting from the
willful misfeasance, bad faith, gross negligence or reckless disregard on the
part of Declaration in the performance of its obligations and duties under this
Agreement.
(b) Any director, officer, employee, shareholder or agent of
Declaration, who may be or become an officer, director, employee or agent of the
Fund, will be deemed, when rendering services to the Fund, or acting on any
business of the Fund (other than services or business in connection with
Declaration' duties hereunder), to be rendering such services to or acting
solely for the Fund and not as a director, officer, employee, shareholder or
agent of, or under the control or direction of Declaration even though such
person may be receiving compensation from Declaration.
(c) The Fund agrees to indemnify and hold Declaration harmless,
together with its directors, officers, employees, shareholders and agents from
and against any and all claims, demands, expenses and liabilities (whether with
or without basis in fact or law) of any and every nature which Declaration may
sustain or incur or which may be asserted against Declaration by any person by
reason of, or as a result of:
(i) any action taken or omitted to be taken by Declaration except
claims, demands, expenses and liabilities arising from willful misfeasance, bad
faith, negligence or reckless disregard on the part of Declaration in the
performance of its obligations and duties under this Agreement; or
(ii) any action taken or omitted to be taken by Declaration in
reliance upon any Certificate, instrument, order or stock certificate or other
document reasonably believed by Declaration to be genuine and signed,
countersigned or executed by any duly authorized person, upon the Oral
Instructions or Written Instructions of an authorized person of the Fund, or
upon the written opinion of legal counsel for the Fund or Declaration; or
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(iii) the offer or sale of shares of the Fund to any person,
natural or otherwise, which is in violation of any state or federal law.
If a claim is made against Declaration as to which Declaration may seek
indemnity under this Section, Declaration will notify the Fund promptly after
receipt of any written assertion of such claim threatening to institute an
action or proceeding with respect thereto and will notify the Fund promptly of
any action commenced against Declaration within ten (10) days after Declaration
has been served with a summons or other legal process. Failure to notify the
Fund will not, however, relieve the Fund from any liability which it may have on
account of the indemnity under this Section so long as the Fund has not been
prejudiced in any material respect by such failure.
The Fund and Declaration will cooperate in the control of the defense
of any action, suit or proceeding in which Declaration is involved and for which
indemnity is being provided by the Fund to Declaration. The Fund may negotiate
the settlement of any action, suit or proceeding subject to Declaration's
approval, which will not be unreasonably withheld. Declaration reserves the
right, but not the obligation, to participate in the defense or settlement of a
claim, action or proceeding with its own counsel. Costs or expenses incurred by
Declaration in connection with, or as a result of such participation, will be
borne solely by the Fund if:
(i) Declaration has received an opinion of counsel from counsel to
the Fund stating that the use of counsel to the Fund by Declaration would
present an impermissible conflict of interest;
(ii) the defendants in, or targets of, any such action or
proceeding include both Declaration and the Fund, and legal counsel to
Declaration has reasonably concluded that there are legal defenses available to
it which are different from or additional to those available to the Fund or
which may be adverse to or inconsistent with defenses available to the Fund (in
which case the Fund will not have the right to direct the defense of such action
on behalf of Declaration); or
(iii) the Fund authorizes Declaration to employ separate counsel
at the expense of the Fund.
(d) The terms of this Section will survive the termination of this
Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) Declaration represents and warrants that:
(i) it is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of Pennsylvania;
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(ii) it is empowered under applicable laws and by its Certificate
of Incorporation and By-Laws to enter into and perform this Agreement; (iii) all
requisite corporate proceedings have been taken to authorize Declaration to
enter into and perform this Agreement;
(iv) it has and will continue to have access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(v) no legal or administrative proceedings have been instituted or
threatened which would impair Declaration's ability to perform its duties and
obligations under this Agreement;
(vi) its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or obligation of
Declaration or any law or regulation applicable to it;
(vii) it is registered as a transfer agent under Section 17A(c)(2)
of the Exchange Act;
(viii) this Agreement has been duly authorized by Declaration and,
when executed and delivered, will constitute valid, legal and binding obligation
of Declaration, enforceable in accordance with its terms.
(b) the Adviser represents and warrants that:
(i) it is a corporation duly organized and existing and in good
standing under the laws of Maryland;
(ii) it is empowered under applicable laws and by its Certificate
of Incorporation and by-laws to enter into and perform this Agreement;
(iii) all requisite corporate proceedings have been taken to
authorize the Adviser to enter into and perform this Agreement;
(iv) it has and will continue to have access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(v) no legal or administrative proceedings have been instituted or
threatened which would impair the Adviser's ability to perform its duties and
obligations under this Agreement;
(vi) its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or obligation of the
Adviser or any law or regulation applicable to it;
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(vii) this Agreement has been duly authorized by the Adviser and,
when executed and delivered, will constitute a valid, legal and binding
obligation of the Adviser, enforceable in accordance with its terms.
(c) The Fund represents and warrants that:
(i) it is a corporation duly organized and existing and in good
standing under the laws of the State of Maryland;
(ii) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(iii) all requisite proceedings have been taken to authorize the
Fund to enter into and perform this Agreement;
(iv) no legal or administrative proceedings have been instituted
or threatened which would impair the Fund's ability to perform its duties and
obligations under this Agreement;
(v) the Fund's entrance into this Agreement shall not cause a
material breach or be in material conflict with any other agreement or
obligations of the Fund, or any law or regulation applicable to either;
(vi) the Shares are properly registered with the SEC or otherwise
authorized for issuance and sale;
(vii) this Agreement has been duly authorized by the Fund and,
when executed and delivered, will constitute valid, legal and binding obligation
of the Fund, enforceable in accordance with its terms.
(d) Delivery of Documents
The Fund will furnish or cause to be furnished to Declaration the
following documents;
(i) current Prospectus and Statement of Additional Information;
(ii) most recent Annual Report;
(iii) most recent Semi-Annual Report for registered investment
companies on Form N-SAR;
(iv) certified copies of resolutions of the Fund's Board of
Directors authorizing the execution of Written Instructions or the transmittal
of Oral Instructions and those persons authorized to give those Instructions.
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(e) Record Keeping and Other Information
Declaration will create and maintain all records required of it
pursuant to its duties hereunder and as set forth in Schedule "A" in accordance
with all applicable laws, rules and regulations, including records required by
Section 31(a) of the Act. All such records will be the property of the Fund and
will be available during regular business hours for inspection, copying and use
by the Fund. Where applicable, such records will be maintained by Declaration
for the periods and in the places required by Rule 31a-2 under the Act. Upon
termination of this Agreement, Declaration will deliver all such records to the
Fund or such person as the Fund may designate.
In case of any request or demand for the inspection of the Share
records of the Fund, Declaration shall notify the Fund and secure instructions
as to permitting or refusing such inspection. Declaration may, however, exhibit
such records to any person in any case where it is advised by its counsel that
it may be held liable for failure to do so.
SECTION 6. COMPENSATION. The Adviser agrees to pay Declaration compensation for
its services, and to reimburse it for expenses at the rates, times, manner and
amounts as set forth in Schedule "B" attached hereto and incorporated herein by
reference and as will be set forth in any amendments to such Schedule "B" agreed
upon in writing by the Parties. Upon receipt of an invoice therefor, the Adviser
agrees to pay such fees within five (5) business days. In addition, the Adviser
agrees to reimburse Declaration for any out-of-pocket expenses paid by
Declaration on behalf of the Fund within ten (10) calendar days of the Fund's
receipt of an invoice therefor.
In the event the Adviser fails for any reason to pay properly submitted
invoices for services or for out-of-pocket expenses within the time limits
specified above, the Fund will make payment to Declaration of those amounts that
are properly due and payable, and thereby reduce the fees that would otherwise
be payable by the Fund to the Adviser under the Operating Services Agreement
between the Fund and the Adviser, by the amount of such payments.
For the purpose of determining fees payable to Declaration, the value
of the Fund's net assets will be computed at the times and in the manner
specified in the Fund's Prospectus and Statement of Additional Information then
in effect.
During the term of this Agreement, should the Fund seek services or
functions in addition to those outlined below or in Schedule "A" attached
hereto, a written amendment to this Agreement specifying the additional services
and corresponding compensation will be executed by the Parties.
In the event that Adviser is more than sixty (60) days delinquent in
its payments of monthly xxxxxxxx in connection with this Agreement (with the
exception of specific amounts which may be contested in good faith by the Fund),
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this Agreement may be terminated upon thirty (30) days' written notice by
Declaration. The Adviser must notify Declaration in writing of any contested
amounts within thirty (30) days of receipt of a billing for such amounts.
Disputed amounts are not due and payable while they are being disputed.
SECTION 7. DAYS OF OPERATION. Nothing contained in this Agreement is intended to
or will require Declaration, in any capacity hereunder, to perform any functions
or duties on any holiday, day of special observance or any other day on which
the New York Stock Exchange ("NYSE") is closed. Functions or duties normally
scheduled to be performed on such days will be performed on and as of the next
succeeding business day on which the NYSE is open. Notwithstanding the
foregoing, Declaration will compute the net asset value of the Fund on each day
required pursuant to Rule 22c-1 promulgated under the Act.
SECTION 8. ACTS OF GOD, ETC. Declaration will not be liable or responsible for
delays or errors caused by acts of God or by reason of circumstances beyond its
control including, acts of civil or military authority, national emergencies,
labor difficulties, mechanical breakdown, insurrection, war, riots, or failure
or unavailability of transportation, communication or power supply, fire, flood
or other catastrophe.
In the event of equipment failures beyond Declaration's control,
Declaration will, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions but will have no liability with respect thereto.
The foregoing obligation will not extend to computer terminals located outside
of premises maintained by Declaration. Declaration has entered into and
maintains in effect agreements making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available.
SECTION 9. INSPECTION AND OWNERSHIP OF RECORDS. In the event of a request or
demand for the inspection of the records of the Fund, Declaration will use its
best efforts to notify the Fund and to secure instructions as to permitting or
refusing such inspection. Declaration may, however, make such records available
for inspection to any person in any case where it is advised in writing by its
counsel that it may be held liable for failure to do so after notice to the
Fund.
Declaration recognizes that the records it maintains for the Fund are
the property of the Fund and will be surrendered to the Fund upon written notice
to Declaration as outlined under Section 10(c) below. The Fund is responsible
for the payment in advance of any fees owed to Declaration. Declaration agrees
to maintain the records and all other information of the Fund in a confidential
manner and will not use such information for any purpose other than the
performance of Declaration' duties under this Agreement.
SECTION 10. DURATION AND TERMINATION.
(a) The initial term of this Agreement will be for the period of two
(2) years, commencing on the date hereinabove first written (the "Effective
9
Date") and will continue thereafter subject to termination by either Party as
set forth in subsection (c) below.
(b) The fee schedules set forth in Schedule "B" attached hereto will
be fixed for the initial term commencing on the Effective Date of this Agreement
and will continue thereafter subject to their review and any adjustment.
(c) After the initial term of this Agreement, a Party may give written
notice to the other (the day on which the notice is received by the Party
against which the notice is made shall be the "Notice Date") of a date on which
this Agreement shall be terminated ("Termination Date"). The Termination Date
shall be set on a day not less than sixty (60) days after the Notice Date. The
period of time between the Notice Date and the Termination Date is hereby
identified as the "Notice Period". Adviser will pay to Declaration on the
Termination Date such compensation due as of the Termination Date and will
reimburse Declaration on the Termination Date for any out-or-pocket expenses and
disbursements reasonably incurred by Declaration up to and including the
Termination Date. Such payments will include costs associated with the
conversion of services to a successor to Declaration, if applicable. If such
conversion is performed after the Termination Date, Adviser will reimburse
Declaration for associated conversion costs when performed.
(d) In connection with the termination of this Agreement, if a
successor to any of Declaration' duties or responsibilities under this Agreement
is designated by the Fund by written notice to Declaration, Declaration will
promptly, on the Termination Date and upon receipt by Declaration of any
payments owed to it as set forth in Section 10(c) above, transfer to the
successor, at the Adviser's expense, all records which belong to the Fund and
will provide appropriate, reasonable and professional cooperation in
transferring such records to the named successor.
(e) Should the Fund desire to move any of the services outlined in
this Agreement to a successor service provider prior to the Termination Date,
Declaration shall make a good faith effort to facilitate the conversion on such
prior date, however, there can be no guarantee that Declaration will be able to
facilitate a conversion of services prior to the end of the Notice Period.
Should services be converted to a successor service provider prior to the end of
the Notice Period, or if the Fund is liquidated or its assets merged or
purchased or the like with another entity, payment of fees to Declaration shall
be accelerated to a date prior to the conversion or termination of services and
calculated as if the services had remained at Declaration until the expiration
of the Notice Period and shall be calculated at the asset levels on the Notice
Date.
(f) Notwithstanding any other provisions of Paragraph 10, and after the
passage of one (1) year from the date of the Agreement, in the event the Fund
deregisters as an Investment Company with the United States Securities and
Exchange Commission ("SEC"), this Agreement may be terminated by the Fund upon
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sixty (60) days written notice to Declaration. The Termination Date shall be
sixty (60) days after the receipt of such notice by Declaration. Adviser will
pay to Declaration on the Termination Date such compensation due as of the
Termination Date and will reimburse Declaration on the Termination Date for any
out-or-pocket expenses and disbursements reasonably incurred by Declaration up
to and including the Termination Date. Such payments will include costs
associated with the conversion of services to a successor to Declaration, if
applicable. If such conversion is performed after the Termination Date, Adviser
will reimburse Declaration for associated conversion costs when performed.
(g) Notwithstanding the foregoing, this Agreement may be terminated at
any time by either Party in the event of a material breach by the other Party
involving negligence, willful misfeasance, bad faith or a reckless disregard of
its obligations and duties under this Agreement provided that such breach shall
have remained unremedied for sixty (60) days or more after receipt of written
specification thereof.
SECTION 11. RIGHTS OF OWNERSHIP. All computer programs and procedures developed
to perform services required to be provided by Declaration under this Agreement
are the property of Declaration. All records and other data except such computer
programs and procedures are the exclusive property of the Fund and all such
other records and data will be furnished to the Fund in appropriate form as soon
as practicable after termination of this Agreement for any reason.
SECTION 12. AMENDMENTS TO DOCUMENTS. The Fund will furnish Declaration written
copies of any amendments to, or changes in, the Articles of Incorporation,
By-Laws, Prospectus or Statement of Additional Information in a reasonable time
prior to such amendments or changes becoming effective. In addition, the Fund
agrees that no amendments will be made to the Prospectus or Statement of
Additional Information of the Fund which might have the effect of changing the
procedures employed by Declaration in providing the services agreed to hereunder
or which amendment might affect the duties of Declaration hereunder unless the
Fund first obtains Declaration' approval of such amendments or changes.
SECTION 13. CONFIDENTIALITY. Both Parties hereto agree that any non-public
information obtained hereunder concerning the other Party is confidential and
may not be disclosed to any other person without the consent of the other Party,
except as may be required by applicable law or at the request of the U.S.
Securities and Exchange Commission or other governmental agency. Declaration
agrees that it will not use any non-public information for any purpose other
than performance of its duties or obligations hereunder. The obligations of the
Parties under this Section will survive the termination of this Agreement. The
Parties further agree that a breach of this Section would irreparably damage the
other Party and accordingly agree that each of them is entitled, without bond or
other security, to an injunction or injunctions to prevent breaches of this
provision.
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SECTION 14. NOTICES. Except as otherwise provided in this Agreement, any notice
or other communication required by or permitted to be given in connection with
this Agreement will be in writing and will be delivered in person or sent by
first class mail, postage prepaid or by prepaid overnight delivery service to
the respective parties as follows:
If to the Fund:
Xxxxxx Mutual Funds, Inc.
0000 X Xxxxxx X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
President
If to the Adviser:
Edgemoor Capital Management, Inc.
0000 X Xxxxxx X.X., Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
President
If to Declaration:
Declaration Service Company
000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Chief Executive Officer
SECTION 15. AMENDMENT. No provision of this Agreement may be amended or modified
in any manner except by a written agreement properly authorized and executed by
the Parties. This Agreement may be amended from time to time by supplemental
agreement executed by the Parties and the compensation stated in Schedule "B"
attached hereto may be adjusted accordingly as mutually agreed upon.
SECTION 16. AUTHORIZATION. The Parties represent and warrant to each other that
the execution and delivery of this Agreement by the undersigned officer of each
Party has been duly and validly authorized; and when duly executed, this
Agreement will constitute a valid and legally binding enforceable obligation of
each Party.
SECTION 17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which when so executed will be deemed to be an original,
but such counterparts will together constitute but one and the same instrument.
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SECTION 18. ASSIGNMENT. This Agreement will extend to and be binding upon the
Parties hereto and their respective successors and assigns; provided, however,
that this Agreement will not be assignable by any of the parties without the
written consent of the other parties, which consents shall be authorized or
approved by a resolution by its respective Boards of Directors.
SECTION 19. GOVERNING LAW. This Agreement will be governed by the laws of the
Commonwealth of Pennsylvania and the exclusive venue of any action arising under
this Agreement will be Xxxxxxxxxx County, Commonwealth of Pennsylvania.
SECTION 20. SEVERABILITY. If any part, term or provision of this Agreement is
held by any court to be illegal, in conflict with any law or otherwise invalid,
the remaining portion or portions will be considered severable and not be
affected and the rights and obligations of the parties will be construed and
enforced as if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid, provided that the basic agreement is
not thereby materially impaired.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
consisting of thirteen (13) typewritten pages, together with Schedules "X," "X"
and "C" (Pages 14-21, attached), to be signed by their duly authorized officers
as of the day and year first above written.
Xxxxxx Mutual Funds, Inc. Edgemoor Capital Management, Inc.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
By: Xxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxx
President President
Declaration Service Company
/s/ Xxxxxxx X. Xxxxx
---------------------------------
By: Xxxxxxx X. Xxxxx
Chief Executive Officer
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SCHEDULE A
Accounting Services Provided by Declaration Service Company
--------------------------------------------------------------------------------
o Journalize each Portfolio's investment, capital share and income and
expense activities.
o Verify investment buy/sell trade tickets when received from the advisor
and transmit trades to the Trust's custodian for proper settlement.
o Maintain individual ledgers for investment securities.
o Maintain historical tax lots for each security.
o Reconcile cash and investment balances of each Portfolio with the
custodian, and provide the advisor with the beginning cash balance
available for investment purposes.
o Update the cash availability throughout the day as required by the
advisor.
o Post to and prepare each Portfolio's Statement of Assets and
Liabilities and Statement of Operations.
o Calculate expenses payable pursuant to the Trust's various contractual
obligations.
o Control all disbursements from the Trust on behalf of each Portfolio
and authorize such disbursements upon instructions of the Trust.
o Calculate capital gains and losses.
o Determine each Portfolio's net income.
o Obtain security market prices and exchange rates or if such market
prices or exchange rates are not readily available, then obtain such
prices from services approved by the advisor, and in either case
calculate the market or fair value of each Portfolio's investments.
Price and exchange rate quotation costs for fixed income and
international securities will be at the expenses of the respective
portfolio.
o Where applicable, calculate the amortized cost value of debt
instruments.
o Transmit or mail a copy of the portfolio valuations to the advisor.
o Research and Corporate Action notices.
o Monitor Custodian to insure tax reclaims are collected on a timely
basis.
o Compute the net asset value of each Portfolio in accordance with
applicable laws.
o Report applicable net asset value and performance data to performance
tracking organizations.
o Compute each Portfolio's yields, total returns, expense ratios and
portfolio turnover rate in accordance with applicable laws.
o Prepare and monitor the expense accruals and notify Trust management of
any proposed adjustments.
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o Prepare monthly financial statements, which will include, without
limitation, the Schedule of Investments, the Statement of Assets and
Liabilities, the Statement of Operations, the Statement of Changes in
Net Assets, the Cash Statement, and the Schedule of Capital Gains and
Losses.
o Prepare monthly security transactions listings.
o Prepare monthly broker security transactions summaries.
o Supply various Trust and Portfolio statistical data as requested on an
ongoing basis.
o Assist in the preparation of support schedules necessary for completion
of Federal and state tax returns.
o Assist in the preparation and filing of the Trust's annual and
semiannual reports with the SEC on Form N-SAR.
o Assist in the preparation and filing of the Trust's annual and
semiannual reports to shareholders and proxy statements.
o Assist with the preparation of amendments to the Trust's Registration
Statements on From N-1A and other filings relating to the registration
of shares.
o Monitor each Portfolio's status as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended from time
to time ("Code").
o Determine the amount of dividends and other distributions payable to
shareholders as necessary to, among other things, maintain the
qualification as a regulated investment company of each Portfolio of
the Trust under the Code.
o Provide other accounting services as may be agreed upon from time to
time in writing by the Trust and the Accounting Services Agent.
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o Administrative Services Provided by Declaration Service Company
--------------------------------------------------------------------------------
o Provide overall day-to-day Trust administrative management, including
custodian, transfer agency, distribution and pricing and accounting
services.
o Assist in Preparation and filing of all Federal and State reports
including:
- Fund's post-effective amendments under the Securities Act of 1933
and the Investment Company Act of 1940.
- Form N-SAR - Semi-Annual report for Registered Investment
Companies.
- The Fund's Annual and Semi-Annual Report.
- Rule 24f-2 Notice - filing regarding sale(s) of securities.
- Rule 17g-1 filing with the SEC regarding Fidelity Bond coverage.
- Ongoing monitoring and filing of State Blue Sky notice filings.
- Proxy statements.
o Prepare and file such reports, applications and documents as may be
necessary or desirable to register the Trust's shares with the Federal
and state securities authorities, and monitor the sale of Fund shares
for compliance with Federal and state securities laws.
o Prepare and file reports to shareholders, including the annual report
to shareholders, and coordinate mailing Prospectuses, notices, proxy
statements, proxies and other reports to shareholders.
o Assist with layout and printing of shareholder communications,
including Prospectuses and reports to shareholders.
o Administer contracts on behalf of the Trust with, among others, the
Trust's investment advisor(s), custodian, transfer agent/shareholder
servicing agent, distributor, and accounting services agent.
o Prepare and maintain materials for directors/management meetings
including, agendas, minutes, attendance records and minute books.
o Coordinate shareholder meetings, including assisting Trust counsel in
preparation of proxy materials, preparation of minutes and tabulation
of results.
o Monitor and pay Trust bills, maintain Trust budget and report budget
expenses and variances to Trust management.
o Monitor the Trust's compliance with the investment restrictions and
limitations imposed by the 1940 Act and applicable regulations
thereunder, the fundamental and non-fundamental investment policies and
limitations set forth in the Trust's Prospectuses and Statement of
Additional Information, and the investment restrictions and limitations
necessary for each Portfolio of the Fund to qualify as a regulated
16
investment company under Subchapter M of the Internal Revenue Code of
1986, as amended, or any successor statute.
o Prepare and distribute to appropriate parties notices announcing the
declaration of dividends and other distributions to shareholders.
o Provide administrative services as may be agreed from time to time in
writing by the Fund or Administrator.
BLUE SKY ADMINISTRATION
-----------------------
o Produce and mail the following required filings:
o Initial Filings - produce all required forms and follow-up on any
comments, including notification of SEC Effectiveness.
o Renewals - produce all renewal documents and mail to states,
includes follow-up to ensure all is in order to continue selling
in states.
o Sales Reports - produce all the relevant sales reports for the
states and complete necessary documents to properly file sales
reports with states.
o Annual Report Filings - file copies of all annual reports with
states.
o Prospectus Filings - file all copies of Definitive SAI &
Prospectuses with the states.
o Post-Effective Amendment Filing - file all Post-Effective
Amendments with the states, as well as, any other required
documents.
o On demand additional states - complete filing for any states that you
would like to add.
o Amendments to current permits - file in a timely manner any amendment
to registered share amounts.
o Update and file hard copy of all data pertaining to individual permits.
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Transfer Agent, Shareholder Servicing Agent and Dividend Disbursing Agent
Services provided by Declaration Service Company
--------------------------------------------------------------------------------
o Examine and process new accounts, subsequent payments, liquidations,
exchanges, transfers, telephone transactions, check redemptions,
automatic withdrawals, and wire order trades.
o Reinvest or pay dividends and make other distributions.
o Answer investor and dealer telephone and/or written inquiries, except
as otherwise agreed by the Transfer Agent and the Fund.
o Process and confirm address changes.
o Process standard account record changes as required, i.e. Dividend
Codes, etc.
o Microfilm and/or store source documents for transactions, such as
account applications and correspondence.
o Perform backup withholding for those accounts in accordance with
Federal regulations.
o Solicit missing taxpayer identification numbers.
o Provide remote access inquiry to Fund records via Fund supplied
hardware (fund responsible for connection line and monthly fee).
o Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
- Name and address, including zip code.
- Balance of Shares.
- Number of Shares, issuance date of each share
outstanding and cancellation date of each share no
longer outstanding, if issued.
- Balance of dollars available for redemption.
- Dividend code (daily accrual, monthly reinvest, monthly
cash or quarterly cash).
- Type of account code.
- Establishment date indicating the date an account was
opened, carrying forward pre-conversion data as
available.
- Original establishment date for accounts opened by
exchange.
- W-9 withholding status and periodic reporting.
- State of residence code.
- Social security or taxpayer identification number, and
indication of certification.
- Historical transactions on the account for the most
recent 18 months, or other period as mutually agreed to
from time to time.
- Indication as to whether phone transaction can be
accepted for this account. Beneficial owner code, i.e.
male, female, joint tenant, etc.
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o Provide the following reports and statements:
- Prepare daily journals for Fund reflecting all shares
and dollar activity for the previous day.
- Supply information monthly for Fund's preparation of
Blue Sky reporting.
- Supply monthly purchase, redemption and liquidation
information for use in Fund's N-SAR report.
- Provide monthly average daily balance reports for the
Fund.
- Prepare and mail copies of summary statements to
dealers and investment advisors.
- Mail transaction confirmation statements daily to
investors.
- Address and mail four periodic financial reports
(material must be adaptable to Transfer Agent's
mechanical equipment as reasonably specified by the
Transfer Agent).
- Mail periodic statement to investors.
- Compute, prepare and furnish all necessary reports to
governmental authorities: Forms 1099R, 1099DIV, 1099B,
1042 and 1042S.
- Enclose various marketing material as designated by the
Fund in statement mailings, i.e. monthly and quarterly
statements (material must be adaptable to mechanical
equipment as reasonably specified by the Transfer
Agent).
o Prepare and mail confirmation statements to dealers daily.
o Prepare certified list of stockholders for proxy mailing.
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SCHEDULE B
Compensation Schedule for Services Provided by Declaration Service Company
PER PORTFOLIO
-------------
0.20% on first $25 million of average annual assets
0.15% on next $25 million of average annual assets
0.10% on next $50 million of average annual assets
0.075% in excess of $100 million of average annual assets
Transfer Agent/ Shareholder Services:
------------------------------------
$ 7.50 per Shareholder Account
Minimum annual fees:
-------------------
Year one (1) $ 50,000
Year two (2) 60,000
PLUS OUT-OF-POCKET EXPENSES TO INCLUDE, BUT NOT LIMITED TO: wire fees, bank
service charges, printing, copying, postage, courier, account statement/
confirmation (including programming costs for specialized statements/
confirmations), Fund/SERV and Networking Costs, portfolio price quotation and
corporate action services, asset allocation charges, travel, telephone,
registration fees, and other standard miscellaneous items.
ADDITIONAL CLASSES OF SHARES PER PORTFOLIO
Each category of fee (including annual minimums) increases by 50% for the second
class of shares per portfolio, and by 25% for each additional class of shares
per portfolio.
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SCHEDULE C
Xxxxxx Mutual Funds, Inc.
Portfolios covered by this Agreement:
Xxxxxx Focus Fund
21
