EXHIBIT NO. 23(h)(5)(a)(2)
OPERATING EXPENSES AGREEMENT
NEW CENTURY BALANCED PORTFOLIO
This OPERATING EXPENSE AGREEMENT (the "Agreement") is effective as of the
8th day of April, 2003, by and between New Century Portfolios, a Massachusetts
Business Trust (hereinafter called the "Trust"), on behalf of the series of the
Trust listed in Appendix A hereto, as may be amended from time to time
(hereinafter referred to as the "Fund") and Weston Financial Group, Inc., a
corporation organized under the laws of the Commonwealth of Massachusetts
(hereinafter called the "Adviser").
WITNESSETH
WHEREAS, the Adviser is an investment adviser registered as such with the
United States Securities and Exchange Commission; and
WHEREAS, the Adviser renders investment advice and related services to each
Fund pursuant to the terms and provisions of certain Investment Advisory
Agreements entered into between the Trust and the Adviser on behalf of the Fund
(the "Investment Advisory Agreement"); and
WHEREAS, the Fund is responsible for the payment of certain expenses that
have not been assumed by the Adviser; and
WHEREAS, the Adviser desires to limit the Fund's Operating Expenses (as
that term is defined in Paragraph 2 of this Agreement) with respect to each
respective class of shares pursuant to the terms and provisions of this
Agreement, and the Trust (on behalf of the Fund) desires to allow the Adviser to
implement those limits;
NOW THEREFORE, in consideration of the covenants and the mutual promises
hereinafter set forth, the parties hereto, intending to be legally bound hereby,
mutually agree as follows:
1. LIMIT ON OPERATING EXPENSES. The Adviser hereby agrees to limit the
Fund's Operating Expenses to the respective annual rate of total Operating
Expenses specified for the Fund and each respective class of shares on APPENDIX
A of this Agreement by reducing, as necessary, the investment advisory fees
payable to the Adviser by the Fund under an Investment Advisory Agreement and/or
reimbursing other Operating Expenses of the Fund.
2. DEFINITION. For purposes of this Agreement, the term "Operating
Expenses" with respect to the Fund is defined to include all expenses necessary
or appropriate for the operation of the Fund including the Adviser's investment
advisory or management fee payable under the Investment Advisory Agreement and
other expenses described in the
Investment Advisory Agreement, but does not include any Rule 12b-1 fees,
front-end or contingent deferred loads, taxes, interest, dividend expenses,
brokerage commissions, expenses incurred in connection with any merger or
reorganization or extraordinary expenses such as litigation.
3. REIMBURSEMENT OF FEES AND EXPENSES. The Adviser hereby retains the right
to receive reimbursement of reductions of its investment management fees and the
Operating Expenses paid or reimbursed by it in accordance with Paragraph 1,
above, for a period ending three years after the end of the fiscal year in which
such fee or expense was waived or reimbursed, as applicable, provided that such
payment to the Adviser does not cause the Fund's Operating Expenses to exceed
the limit set forth on APPENDIX A.
4. TERM. This Agreement shall become effective on the date first specified
above and shall remain in effect until October 31, 2004, unless sooner
terminated as provided in Paragraph 5 of this Agreement. This Agreement shall
continue in effect thereafter for additional periods not exceeding one (1) year
so long as continuation is approved for the Fund at least annually by the Board
of Trustees of the Trust (and separately by the disinterested Trustees of the
Trust).
5. TERMINATION. This Agreement may be terminated at any time, and without
payment of any penalty, by either the Trust or by the Board of Trustees of the
Trust, on behalf of the Fund, upon sixty (60) days' written notice to the
Adviser. The Adviser may decline to renew this Agreement by written notification
to the Trust at least thirty (30) days before its annual expiration date.
6. ASSIGNMENT. This Agreement and all rights and obligations hereunder may
not be assigned without the written consent of the other party.
7. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute or rule, or shall be otherwise rendered
invalid, the remainder of the Agreement shall not be affected thereby.
8. CAPTIONS. The captions in the Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction of effect.
9. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts without giving
effect to the conflict of laws principles thereof; provided that nothing herein
shall be construed to preempt, or be inconsistent with, and federal law,
relation or rule, including the Investment Company Act of 1940, as amended, and
the Investment Advisers Act of 1940, as amended, and any rules and regulations
promulgated thereunder.
10. LIMITATION ON LIABILITY. The Declaration of Trust dated February 1,
1990, as amended from time to time, establishing the Trust, which is hereby
referred to
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and a copy of which is on file with the Secretary of the Commonwealth of
Massachusetts, provides that the name New Century Portfolios means the Trustees
from time to time serving (as Trustees but not personally) under the Declaration
of Trust. It is expressly acknowledged and agreed that the obligations of the
Trust hereunder shall not be binding upon any of the shareholders, Trustees,
officers, employees or agents of the Trust, personally, but shall bind only the
trust property of the Trust, as provided in its Declaration of Trust. The
execution and delivery of this Agreement have been authorized by the Trustees of
the Trust and signed by the President of the Trust, acting as such, and neither
such authorization by such Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in its Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested by their duly authorized officers, all on the day and
year first above written.
NEW CENTURY PORTFOLIOS
/s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: President
WESTON SECURITIES CORPORATION
/s/ I. XXXXXXX XXXXXXXX
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Name: I. Xxxxxxx Xxxxxxxx
Title: President
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APPENDIX A
OPERATING
FUND NAME EXPENSE LIMIT
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New Century Balanced Portfolio 1.50%
