FUND ACCOUNTING SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into this 15th
day of December , 2005, between
KINETICS
MUTUAL FUNDS, INC.,
a
Maryland corporation (the “Company”), KINETICS
PORTFOLIOS TRUST, a
Delaware statutory trust, (the “Trust”) and U.S.
BANCORP FUND SERVICES, LLC,
a
Wisconsin limited liability company (“USBFS”).
WHEREAS,
the Company and the Trust are registered under the Investment Company Act of
1940, as amended (the “1940 Act”), are open-end management investment companies,
and are authorized to issue shares of beneficial interest in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS,
USBFS is, among other things, in the business of providing mutual fund
accounting services to investment companies; and
WHEREAS,
the Company and the Trust desire to retain USBFS to provide accounting services
to each series of the Company and the Trust listed on Exhibit
A
hereto
(as amended from time to time) (each a “Fund” and collectively, the
“Funds”).
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
| 1. |
Appointment
of USBFS as Fund
Accountant
|
The
Company and the Trust hereby appoint USBFS as fund accountant of the Company
and
the Trust on the terms and conditions set forth in this Agreement, and USBFS
hereby accepts such appointment and agrees to perform the services and duties
set forth in this Agreement. The services and duties of USBFS shall be confined
to those matters expressly set forth herein, and no implied duties are assumed
by or may be asserted against USBFS hereunder.
| 2. |
Services
and Duties of USBFS
|
USBFS
shall provide the following accounting services to the Company and the
Trust:
A. Portfolio
Accounting Services:
| (1) |
Maintain
portfolio records on a trade date+1 basis using security trade
information
communicated from the Fund’s investment adviser.
|
| (2) |
For
each valuation date, obtain prices from a pricing source approved
by the
board of directors of the Company and the board of trustees of
the Trust
(the “Board”) and apply those prices to the portfolio positions. For
those securities where market quotations are not readily available,
the
Board shall approve, in good faith, procedures for determining
the fair
value for such securities.
|
| (3) |
Identify
interest and dividend accrual balances as of each valuation date
and
calculate gross earnings on investments for each accounting period.
|
| (4) |
Determine
gain/loss on security sales and identify them as short-term or
long-term;
account for periodic distributions of gains or losses to shareholders
and
maintain undistributed gain or loss balances as of each valuation
date.
|
| (5) |
On
a daily basis, reconcile cash of the Fund with the Fund’s
custodian.
|
| (6) |
Transmit
a copy of the portfolio valuation to the Fund’s investment adviser
daily.
|
| (7) |
Review
the impact of current day’s activity on a per share basis, and review
changes in market value.
|
B. Expense
Accrual and Payment Services:
| (1) |
For
each valuation date, calculate the expense accrual amounts as directed
by
the Company and the Trust as to methodology, rate or dollar amount.
|
| (2) |
Process
and record payments for Fund expenses upon receipt of written
authorization from the Company and the Trust.
|
| (3) |
Account
for Fund expenditures and maintain expense accrual balances at
the level
of accounting detail, as agreed upon by USBFS and the Company and
the
Trust.
|
| (4) |
Provide
expense accrual and payment reporting.
|
C. Fund
Valuation and Financial Reporting Services:
| (1) |
Account
for Fund share purchases, sales, exchanges, transfers, dividend
reinvestments, and other Fund share activity as reported by the
Fund’s
transfer agent on a timely basis.
|
| (2) |
Apply
equalization accounting as directed by the Company and the
Trust.
|
| (3) |
Determine
net investment income (earnings) for the Fund as of each valuation
date.
Account for periodic distributions of earnings to shareholders
and
maintain undistributed net investment income balances as of each
valuation
date.
|
2
| (4) |
Maintain
a general ledger and other accounts, books, and financial records
for the
Fund in the form as agreed upon.
|
| (5) |
Determine
the net asset value of the Fund according to the accounting policies
and
procedures set forth in the Fund's current prospectus.
|
| (6) |
Calculate
per share net asset value, per share net earnings, and other per
share
amounts reflective of Fund operations at such time as required
by the
nature and characteristics of the Fund.
|
| (7) |
Communicate
to the Company and the Trust, at an agreed upon time, the per share
net
asset value for each valuation date.
|
| (8) |
Prepare
monthly reports that document the adequacy of accounting detail
to support
month-end ledger balances.
|
| (9) |
Prepare
monthly security transactions
listings.
|
D. Tax
Accounting Services:
| (1) |
Maintain
accounting records for the investment portfolio of the Fund to
support the
tax reporting required for “regulated investment companies” under the
Internal Revenue Code of 1986, as amended (the
“Code”).
|
| (2) |
Maintain
tax lot detail for the Fund’s investment portfolio.
|
| (3) |
Calculate
taxable gain/loss on security sales using the tax lot relief method
designated by the Company and the
Trust.
|
| (4) |
Provide
the necessary financial information to calculate the taxable components
of
income and capital gains distributions to support tax reporting
to the
shareholders.
|
E. Compliance
Control Services:
| (1) |
Support
reporting to regulatory bodies and support financial statement
preparation
by making the Fund's accounting records available to the Company,
the
Trust, the Securities and Exchange Commission (the “SEC”), and the
independent accountants.
|
| (2) |
Maintain
accounting records according to the 1940 Act and regulations provided
thereunder.
|
3
| (3) |
Perform
its duties hereunder in compliance with all applicable laws and
regulations and provide any sub-certifications reasonably requested
by the
Company and the Trust in connection with any certification required
of the
Company and the Trust pursuant to the Xxxxxxxx-Xxxxx Act of 2002
(the “SOX
Act”) or any rules or regulations promulgated by the SEC thereunder,
provided the same shall not be deemed to change USBFS’s standard of care
as set forth herein.
|
| (4) |
Cooperate
with the Company and the Trust’s independent accountants and take all
reasonable action in the performance of its obligations under this
Agreement to ensure that the necessary information is made available
to
such accountants for the expression of their opinion on the Fund’s
financial statements without any qualification as to the scope
of their
examination.
|
| 3. |
License
of Data; Warranty; Termination of
Rights
|
| A. |
The
valuation information and evaluations being provided to the Company
and
the Trust by USBFS pursuant hereto (collectively, the “Data”) are being
licensed, not sold, to the Company. The Company and the Trust have
a
limited license to use the Data only for purposes necessary to valuing
the
Company and the Trust’s assets and reporting to regulatory bodies (the
“License”). The Company and the Trust do not have any license nor right to
use the Data for purposes beyond the intentions of this Agreement
including, but not limited to, resale to other users or use to create
any
type of historical database. The License is non-transferable and
not
sub-licensable. The Company and the Trust’s right to use the Data cannot
be passed to or shared with any other
entity.
|
The
Company and the Trust acknowledge the proprietary rights that USBFS and its
suppliers have in the Data.
| B. |
THE
COMPANY AND THE TRUST HEREBY ACCEPT THE DATA AS IS, WHERE IS, WITH
NO
WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS
FOR ANY
PURPOSE OR ANY OTHER MATTER.
|
| C. |
USBFS
may stop supplying some or all Data to the Company and the Trust
if
USBFS’s suppliers terminate any agreement to provide Data to USBFS. Also,
USBFS may stop supplying some or all Data to the Company and the
Trust if
USBFS reasonably believes that the Company and the Trust are using
the
Data in violation of the License, or breaching its duties of
confidentiality provided for hereunder, or if any of USBFS’s suppliers
demand that the Data be withheld from the Company and the Trust.
USBFS
will provide notice to the Company and the Trust of any termination
of
provision of Data as soon as reasonably
possible.
|
4
| 4. |
Pricing
of Securities
|
| A. |
For
each valuation date, USBFS shall obtain prices from a pricing source
recommended by USBFS and approved by the Board and apply those prices
to
the portfolio positions of the Fund. For those securities where market
quotations are not readily available, the Board shall approve, in
good
faith, procedures for determining the fair value for such
securities.
|
If
the
Company and the Trust desire to provide a price that varies from the price
provided by the pricing source, the Company and the Trust shall promptly notify
and supply USBFS with the price of any such security on each valuation date.
All
pricing changes made by the Company and the Trust will be in writing and must
specifically identify the securities to be changed by CUSIP, name of security,
new price or rate to be applied, and, if applicable, the time period for which
the new price(s) is/are effective.
| B. |
In
the event that the Company and the Trust at any time receive Data
containing evaluations, rather than market quotations, for certain
securities or certain other data related to such securities, the
following
provisions will apply: (i) evaluated securities are typically complicated
financial instruments. There are many methodologies (including
computer-based analytical modeling and individual security evaluations)
available to generate approximations of the market value of such
securities, and there is significant professional disagreement about
which
method is best. No evaluation method, including those used by USBFS
and
its suppliers, may consistently generate approximations that correspond
to
actual “traded” prices of the securities; (ii) methodologies used to
provide the pricing portion of certain Data may rely on evaluations;
however, the Company and the Trust acknowledge that there may be
errors or
defects in the software, databases, or methodologies generating the
evaluations that may cause resultant evaluations to be inappropriate
for
use in certain applications; and (iii) the Company and the Trust
assume
all responsibility for edit checking, external verification of
evaluations, and ultimately the appropriateness of using Data containing
evaluations, regardless of any efforts made by USBFS and its suppliers
in
this respect.
|
| 5. |
Changes
in Accounting Procedures
|
Any
resolution passed by the Board that affects accounting practices and procedures
under this Agreement shall be effective upon written receipt of notice and
acceptance by USBFS.
| 6. |
Changes
in Equipment, Systems,
Etc.
|
USBFS
reserves the right to make changes from time to time, as it deems advisable,
relating to its systems, programs, rules, operating schedules and equipment,
so
long as such changes do not adversely affect the services provided to the
Company and the Trust under this Agreement.
5
| 7. |
Compensation
|
USBFS
shall be compensated for providing the services set forth in this Agreement
in
accordance with the fee schedule set forth on Exhibit
B
hereto
(as amended from time to time). USBFS shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by USBFS in
performing its duties hereunder. The Company and the Trust shall pay all such
fees and reimbursable expenses within 30 calendar days following receipt of
the
billing notice, except for any fee or expense subject to a good faith dispute.
The Company and the Trust shall notify USBFS in writing within 30 calendar
days
following receipt of each invoice if the Company and the Trust are disputing
any
amounts in good faith. The Company and the Trust shall pay such disputed amounts
within 10 calendar days of the day on which the parties agree to the amount
to
be paid. With the exception of any fee or expense the Company and the Trust
are
disputing in good faith as set forth above, unpaid invoices shall accrue a
finance charge of 1½% per month after the due date. Notwithstanding anything to
the contrary, amounts owed by the Company and the Trust to USBFS shall only
be
paid out of the assets and property of the particular Fund
involved.
| 8. |
Representations
and Warranties
|
| A. |
The
Company and the Trust hereby represent and warrant to USBFS, which
representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:
|
|
(1)
|
They
are duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by the
Company
and the Trust in accordance with all requisite action and constitutes
a
valid and legally binding obligation of the Company and the Trust,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured
parties; and
|
|
(3)
|
They
are conducting their business in compliance in all material respects
with
all applicable laws and regulations, both state and federal, and
have
obtained all regulatory approvals necessary to carry on their business
as
now conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit their execution
or performance of this Agreement.
|
6
| B. |
USBFS
hereby represents and warrants to the Company and the Trust, which
representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:
|
|
(1)
|
It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by USBFS
in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of USBFS, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other
laws of general application affecting the rights and remedies of
creditors
and secured parties; and
|
|
(3)
|
It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement.
|
| 9. |
Standard
of Care; Indemnification; Limitation of
Liability
|
| A. |
USBFS
shall exercise reasonable care in the performance of its duties under
this
Agreement. Neither USBFS nor its suppliers shall be liable for any
error
of judgment or mistake of law or for any loss suffered by the Company
and
the Trust or any third party in connection with its duties under
this
Agreement, including losses resulting from mechanical breakdowns
or the
failure of communication or power supplies beyond USBFS’s control, except
a loss arising out of or relating to USBFS’s refusal or failure to comply
with the terms of this Agreement or from its bad faith, negligence,
or
willful misconduct in the performance of its duties under this Agreement.
Notwithstanding any other provision of this Agreement, if USBFS has
exercised reasonable care in the performance of its duties under
this
Agreement, the Company and the Trust shall indemnify and hold harmless
USBFS and its suppliers from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including
reasonable attorneys’ fees) that USBFS or its suppliers may sustain or
incur or that may be asserted against USBFS or its suppliers by any
person
arising out of or related to (X) any action taken or omitted to be
taken
by it in performing the services hereunder (i) in accordance with
the
foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to USBFS by any duly authorized officer of the
Company and the Trust, as approved by the Board of Directors of the
Company and the Board of Trustees of the Trust, or (Y) the Data,
or any
information, service, report, analysis or publication derived therefrom,
except for any and all claims, demands, losses, expenses, and liabilities
arising out of or relating to USBFS’s refusal or failure to comply with
the terms of this Agreement or from its bad faith, negligence or
willful
misconduct in the performance of its duties under this Agreement.
This
indemnity shall be a continuing obligation of the Company and the
Trust,
its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term “USBFS” shall include
USBFS’s directors, officers and
employees.
|
7
The
Company and the Trust acknowledge that the Data are intended for use as an
aid
to institutional investors, registered brokers or professionals of similar
sophistication in making informed judgments concerning securities. The Company
and the Trust accepts responsibility for, and acknowledges it exercises its
own
independent judgment in, its selection of the Data, its selection of the use
or
intended use of such, and any results obtained. Nothing contained herein shall
be deemed to be a waiver of any rights existing under applicable law for the
protection of investors.
USBFS
shall indemnify and hold the Company and the Trust harmless from and against
any
and all claims, demands, losses, expenses, and liabilities of any and every
nature (including reasonable attorneys' fees) that the Company and the Trust
may
sustain or incur or that may be asserted against the Company and the Trust
by
any person arising out of any action taken or omitted to be taken by USBFS
as a
result of USBFS’s refusal or failure to comply with the terms of this Agreement,
or from its bad faith, negligence, or willful misconduct in the performance
of
its duties under this Agreement. This indemnity shall be a continuing obligation
of USBFS, its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term “Company” shall include the
Company and the Trust’s directors, trustees, officers and
employees.
In
the
event of a mechanical breakdown or failure of communication or power supplies
beyond its control, USBFS shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues. USBFS will make
every reasonable effort to restore any lost or damaged data and correct any
errors resulting from such a breakdown at the expense of USBFS. USBFS agrees
that it shall, at all times, have reasonable contingency plans with appropriate
parties, making reasonable provision for emergency use of electrical data
processing equipment to the extent appropriate equipment is available.
Representatives of the Company and the Trust shall be entitled to inspect
USBFS’s premises and operating capabilities at any time during regular business
hours of USBFS, upon reasonable notice to USBFS. Moreover, USBFS shall provide
the Company, at such times as the Company and the Trust may reasonably require,
copies of reports rendered by independent accountants on the internal controls
and procedures of USBFS relating to the services provided by USBFS under this
Agreement.
8
Notwithstanding
the above, USBFS reserves the right to reprocess and correct administrative
errors at its own expense.
In
no
case shall either party be liable to the other for (i) any special, indirect
or
consequential damages, loss of profits or goodwill (even if advised of the
possibility of such); (ii) any delay by reason of circumstances beyond its
control, including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown, flood or catastrophe, acts
of
God, insurrection, war, riots, or failure beyond its control of transportation
or power supply; or (iii) any claim that arose more than one year prior to
the
institution of suit therefor.
| B. |
In
order that the indemnification provisions contained in this section
shall
apply, it is understood that if in any case the indemnitor may be
asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be
fully
and promptly advised of all pertinent facts concerning the situation
in
question, and it is further understood that the indemnitee will use
all
reasonable care to notify the indemnitor promptly concerning any
situation
that presents or appears likely to present the probability of a claim
for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it will
so
notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with
the
indemnitor’s prior written consent.
|
| C. |
The
indemnity and defense provisions set forth in this Section 9 shall
indefinitely survive the termination and/or assignment of this
Agreement.
|
| D. |
If
USBFS is acting in another capacity for the Company and the Trust
pursuant
to a separate agreement, nothing herein shall be deemed to relieve
USBFS
of any of its obligations in such other
capacity.
|
| 10. |
Notification
of Error
|
The
Company and the Trust will notify USBFS of any discrepancy between USBFS and
the
Company and the Trust, including, but not limited to, failing to account for
a
security position in the Fund’s portfolio, upon the later to occur of: (i) three
business days after receipt of any reports rendered by USBFS to the Company
and
the Trust; (ii) three business days after discovery of any error or omission
not
covered in the balancing or control procedure; or (iii) three business days
after receiving notice from any shareholder regarding any such
discrepancy.
9
| 11. |
Data
Necessary to Perform
Services
|
The
Company and the Trust or its agent shall furnish to USBFS the data necessary
to
perform the services described herein at such times and in such form as mutually
agreed upon.
| 12. |
Proprietary
and Confidential
Information
|
| A. |
USBFS
agrees on behalf of itself and its directors, officers, and employees
to
treat confidentially and as proprietary information of the Company
and the
Trust, all records and other information relative to the Company
and the
Trust and prior, present, or potential shareholders of the Company
and the
Trust(and clients of said shareholders), and not to use such records
and
information for any purpose other than the performance of its
responsibilities and duties hereunder, except (i) after prior notification
to and approval in writing by the Company and the Trust, which approval
shall not be unreasonably withheld and may not be withheld where
USBFS may
be exposed to civil or criminal contempt proceedings for failure
to
comply, (ii) when requested to divulge such information by duly
constituted authorities, or (iii) when so requested by the Company
and the
Trust. Records and other information which have become known to the
public
through no wrongful act of USBFS or any of its employees, agents
or
representatives, and information that was already in the possession
of
USBFS prior to receipt thereof from the Company and the Trust or
its
agent, shall not be subject to this
paragraph.
|
Further,
USBFS will adhere to the privacy policies adopted by the Company and the Trust
pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time
to time. In this regard, USBFS shall have in place and maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of, records and information relating to the Company and the Trust
and
its shareholders.
| B. |
The
Company and the Trust, on behalf of itself and its directors, trustees,
officers, and employees, will maintain the confidential and proprietary
nature of the Data and agrees to protect it using the same efforts,
but in
no case less than reasonable efforts, that it uses to protect its
own
proprietary and confidential
information.
|
| 13. |
Records
|
USBFS
shall keep records relating to the services to be performed hereunder in the
form and manner, and for such period, as it may deem advisable and is agreeable
to the Company and the Trust, but not inconsistent with the rules and
regulations of appropriate government authorities, in particular, Section 31
of
the 1940 Act and the rules thereunder. USBFS agrees that all such records
prepared or maintained by USBFS relating to the services to be performed by
USBFS hereunder are the property of the Company and the Trust and will be
preserved, maintained, and made available in accordance with such applicable
sections and rules of the 1940 Act and will be promptly surrendered to the
Company and the Trust or its designee on and in accordance with its
request.
10
| 14. |
Compliance
with Laws
|
The
Company and the Trust have and retain primary responsibility for all compliance
matters relating to the Fund, including but not limited to compliance with
the
1940 Act, the Code, the SOX Act, the USA Patriot Act of 2002 and the policies
and limitations of the Fund relating to its portfolio investments as set forth
in its current prospectus and statement of additional information. USBFS’s
services hereunder shall not relieve the Company and the Trust of its
responsibilities for assuring such compliance or the Board’s oversight
responsibility with respect thereto.
| 15. |
Term
of Agreement; Amendment
|
This
Agreement may be terminated by either party upon giving 90 days prior written
notice to the other party or such shorter period as is mutually agreed upon
by
the parties. Notwithstanding the foregoing, this Agreement may be terminated
by
any party upon the breach of the other party of any material term of this
Agreement if such breach is not cured within 15 days of notice of such breach
to
the breaching party. This Agreement may not be amended or modified in any manner
except by written agreement executed by USBFS and the Company and the Trust,
and
authorized or approved by the Board.
| 16. |
Duties
in the Event of
Termination
|
In
the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by the Company and the Trust by
written notice to USBFS, USBFS will promptly, upon such termination and at
the
expense of the Company, transfer to such successor all relevant books, records,
correspondence and other data established or maintained by USBFS under this
Agreement in a form reasonably acceptable to the Company and the Trust (if
such
form differs from the form in which USBFS has maintained the same, the Company
and the Trust shall pay any expenses associated with transferring the data
to
such form), and will cooperate in the transfer of such duties and
responsibilities, including provision for assistance from USBFS’s personnel in
the establishment of books, records and other data by such successor. If no
such
successor is designated, then such books, records and other data shall be
returned to the Company and the Trust.
| 17. |
Assignment
|
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by the Company and the Trust without the written consent
of
USBFS, or by USBFS without the written consent of the Company and the Trust
accompanied by the authorization or approval of the Company and the Trust’s
Board.
11
| 18. |
Governing
Law
|
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that
the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with
the
1940 Act or any rule or order of the SEC thereunder.
| 19. |
No
Agency Relationship
|
Nothing
herein contained shall be deemed to authorize or empower either party to act
as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
| 20. |
Services
Not Exclusive
|
Nothing
in this Agreement shall limit or restrict USBFS from providing services to
other
parties that are similar or identical to some or all of the services provided
hereunder.
| 21. |
Invalidity
|
Any
provision of this Agreement which may be determined by competent authority
to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case, the
parties shall in good faith modify or substitute such provision consistent
with
the original intent of the parties.
| 22. |
Notices
|
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
Notice
to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
and
notice to the Company and the Trust shall be sent to:
Kinetics
Mutual Funds, Inc.
00
Xxx
Xxxxxxxx
Xxxxxx
Xxxxxx, XX 00000
12
| 23. |
Multiple
Originals
|
This
Agreement may be executed on two or more counterparts, each of which when so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
a duly authorized officer on one or more counterparts as of the date first
above
written.
KINETICS
MUTUAL FUNDS, INC.
U.S.
BANCORP FUND SERVICES, LLC
| By: /s/ Xxxxxx Xxxxxxxx | By: /s/ Xxx X. Xxxxxxx |
| Name: Xxxxxx Xxxxxxxx | Name: Xxx X. Xxxxxxx |
| Title: Treasurer | Title: President |
KINETICS
PORTFOLIOS TRUST
By:
/s/ Xxxxxx
Xxxxxxxx
Name:
Xxxxxx
Xxxxxxxx
Title:
Treasurer
13
Exhibit
A
to
the
Fund
Names
Separate
Series of Kinetics Mutual Funds, Inc. - Feeder Funds
Name
of Series
The
Medical Fund
The
Internet Fund
The
Internet Emerging Growth Fund
The
Paradigm Fund
The
Small
Cap Opportunities Portfolio
The
Kinetics Government Money Market Fund
The
Market Opportunities Fund - effective on or about 1/2/2006
Separate
Series of Kinetics Portfolios Trust - Master Investment Portfolios
Name
of Series
The
Internet Portfolio
The
Medical Portfolio
The
Internet Emerging Growth Portfolio
The
Paradigm Portfolio
The
Small
Cap Opportunities Portfolio
The
Kinetics Government Money Market Portfolio
The
Market Opportunities Portfolio - effective on or about 1/2/2006
A-1
Exhibit
B
to
the
Fund
Accounting Servicing Agreement - Kinetics Mutual Funds, Inc. and Kinetics
Portfolios Trust
Fee
Schedule at 11/14/05 - Master Portfolios
Domestic
Equity Portfolios
The
Internet Portfolio, The Medical Portfolio, The Internet Emerging Growth
Portfolio, The Paradigm Portfolio, The Small Cap Opportunities Portfolio
and The
Market Opportunities Portfolio shall each incur the following fee
schedule:
Annual
fee per portfolio based on market value of assets:
* 3
basis points on the first $100 million
* 2
basis points on the next $200 million
* 1
basis point on the balance
International
Equity Portfolios
Annual
fee per portfolio based on market value of assets:
* 3.90
basis points on the first $100 million
* 2.50
basis points on the next $200 million
* 1.50
basis points on the balance
Taxable
Money Market Portfolios
The
Kinetics Government Money Market Portfolio shall incur the following fee
schedule:
Annual
fee per portfolio based on market value of assets:
* 3.90
basis points on the first $100 million
* 1.50
basis points on the next $200 million
* 1.00
basis points on the balance
Plus
out-of-pocket expenses, including pricing service:
Domestic
and Canadian Equities $
.15
Options $
.15
Corp/Gov/Agency
Bonds $
.50
CMO’s
$
.80
Currency
transactions $
.45
International
Equities and Bonds $
.50
Municipal
Bonds $
.80
Money
Market Instruments $
.80
Mutual
Funds $125/fund/mo.
Fees
and out-of pocket expenses are billed to the fund monthly. Note: all schedules
subject to change depending upon the use of derivatives - options, futures,
short sales, etc.
B-1
Exhibit
B - Continued
Fund
Accounting Servicing Agreement - Kinetics Mutual Funds, Inc. and Kinetics
Portfolios Trust
Annual
fee schedule at 11/14/05 - Feeder Funds
Domestic
Equity Funds
The
Internet Fund, The Medical Fund, The Internet Emerging Growth Fund, The Paradigm
Fund, The Small Cap Opportunities Fund and The Market Opportunities Fund
shall
each incur the following fee schedule:
No
annual fee
Additional
annual fee per class:
½
of 1 basis point on feeder fund assets
International
Equity Funds
No
annual fee
Additional
annual fee per class:
½
of 1 basis point on feeder fund assets
Taxable
Money Market Funds
The
Kinetics Government Money Market Fund shall incur the following fee
schedule:
No
annual fee
Additional
annual fee per class:
½
of 1 basis point on feeder fund assets
B-2
