THIS
AGREEMENT is made and entered into as of this 6th day of November, 2008, by
and between XXXXXXXX FUNDS, INC., a Maryland corporation (the “Company”),
and U.S. BANCORP FUND SERVICES, LLC, a Wisconsin limited liability company
(“USBFS”).
WHEREAS,
the Company is registered under the Investment Company Act of 1940, as amended (the
“1940 Act”), as an open-end management investment company, and is 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 administering transfer and dividend
disbursing agent functions for the benefit of its customers; and
WHEREAS,
the Company desires to retain USBFS to provide transfer and dividend disbursing agent
services to each series of the Company 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 Transfer Agent |
| |
The
Company hereby appoints USBFS as transfer agent of the Company 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 transfer agent and dividend disbursing agent services to the
Fund: |
| |
A. |
Receive
and process all orders for the purchase, exchange, and/or redemption of
shares in accordance with Rule 22c-1 under the 1940 Act. |
| |
B. |
Process
purchase orders with prompt delivery, where appropriate, of payment and
supporting documentation to the Company’s custodian, and issue the
appropriate number of uncertificated shares with such uncertificated
shares being held in the appropriate shareholder account. |
| |
C. |
Arrange
for the issuance of shares obtained through transfers of funds from Fund
shareholders’ accounts at financial institutions and arrange for the
exchange of shares for shares of other eligible investment companies, when
permitted by the Fund’s prospectus (the “Prospectus”). |
| |
D. |
Process
redemption requests received in good order and, where relevant, deliver
appropriate documentation to the Company’s custodian. |
| |
E. |
Pay
monies upon receipt from the Company’s custodian, where relevant, in
accordance with the instructions of redeeming shareholders. |
| |
F. |
Process
transfers of shares in accordance with the shareholder’s
instructions, after receipt of appropriate documentation from the
shareholder as specified in the Prospectus. |
| |
G. |
Process
exchanges between Funds and/or classes of shares of Funds both within the
same family of funds and with a First American Money Market Fund, if
applicable. |
| |
H. |
Prepare
and transmit payments for dividends and distributions declared by the
Company with respect to the Fund, after deducting any amount required to
be withheld by any applicable laws, rules and regulations and in
accordance with shareholder instructions. |
| |
I. |
Serve
as the Fund’s agent in connection with accumulation, open account or
similar plans (e.g., periodic investment plans and periodic withdrawal
plans). |
| |
J. |
Make
changes to shareholder records, including, but not limited to, address
changes in plans (e.g., systematic withdrawal, automatic investment,
dividend reinvestment). |
| |
K. |
Handle
load and multi-class processing, including rights of accumulation and
purchases by letters of intent. |
| |
L. |
Record
the issuance of shares of the Fund and maintain, pursuant to Rule 17Ad-10(e)
promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), a record of the total number of shares of the
Fund which are authorized, issued and outstanding. |
| |
M. |
Prepare
shareholder meeting lists and, as necessary, mail, receive and tabulate
proxies. |
| |
N. |
Mail
shareholder reports and Prospectuses to current shareholders. |
| |
O. |
Prepare
and file U.S. Treasury Department Forms 1099 and other appropriate
information returns required with respect to dividends and distributions
for all shareholders. |
| |
P. |
Provide
shareholder account information upon request and prepare and mail
confirmations and statements of account to shareholders for all purchases,
redemptions and other confirmable transactions as agreed upon with the
Company. |
2
| |
Q. |
Mail
requests for shareholders’ certifications under penalties of perjury
and pay on a timely basis to the appropriate federal authorities any taxes
to be withheld on dividends and distributions paid by the Company, all as
required by applicable federal tax laws and regulations. |
| |
R. |
Provide
a Blue Sky system that will enable the Company to monitor the total number
of shares of the Fund sold in each state; provided that the Company, not
USBFS, is responsible for ensuring that shares are not sold in violation
of any requirement under the securities laws or regulations of any state. |
| |
S. |
Answer
correspondence from shareholders, securities brokers and others relating
to USBFS’s duties hereunder. |
| |
T. |
Reimburse
the Fund each month for all material losses resulting from “as of
processing errors for which USBFS is responsible in accordance with the
“as of’ processing guidelines set forth on Exhibit B
hereto. |
| 3. |
Additional
Services to be Provided by USBFS |
| |
A. |
If
the Company so elects, by including the service it wishes to receive in its
fee schedule, USBFS shall provide the following services that are further
described and that may be subject to additional terms and conditions
specified in their respective exhibits, as such may be amended from time
to time: |
| |
Internet
Access, Fan Web, Vision Mutual Fund Gateway (Exhibit C) |
| |
The
Company hereby acknowledges that exhibits are an integral part of this Agreement and, to
the extent services included in Exhibit C are selected by the Company, such
services shall also be subject to the terms and conditions of this Agreement. To the
extent the terms and conditions of this Agreement conflict with the terms and conditions
included in Exhibit C, the exhibits shall control. The provisions of
Exhibit C, as applicable, shall continue in effect for as long as this
Agreement remains in effect, unless sooner terminated pursuant to Section 13 hereof. |
| |
B. |
USBFS
shall allow the Company access to various fund data, systems, industry
information and processes as the parties may agree to from time to time,
through Mutual Fund eXchange (“MFx”), subject to the terms of
this Agreement and the additional terms and conditions contained in the
on-line MFx access agreement to be entered into upon accessing MFx for the
first time. USBFS shall enable the Company to access MFx services by
supplying the Company with necessary software, training, information and
connectivity support as mutually agreed upon, all of which shall
constitute confidential knowledge and information of USBFS and shall be
used by the Company only as necessary to access MFx services pursuant to
this Agreement. The Company shall provide for the security of all codes
and system access mechanisms relating to MFx provided to it by USBFS and
implement such security procedures and/or devices to ensure the integrity
of MFx. The Company hereby understands that USBFS will perform periodic
maintenance to the MFx hardware and software being accessed, which may
cause temporary service interruptions. USBFS shall notify the Company of
all planned outages and, to the extent possible, will perform any
necessary maintenance during non-business hours. |
3
| |
The
Company hereby acknowledges that all programs, software, manuals and other written
information relating to MFx access provided by USBFS pursuant to this Agreement shall
remain the exclusive property of USBFS at all times. |
| |
The
Company acknowledges that it is responsible for determining the suitability and accuracy
of the information obtained through its access to MFx. USBFS MAKES NO WARRANTIES OR
REPRESENTATIONS, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SUITABILITY AND ACCURACY OF
FUND DATA, SYSTEMS, INDUSTRY INFORMATION AND PROCESSES ACCESSED THROUGH MFx. However,
USBFS will assist the Company in verifying the accuracy of any of the information made
available to the Company through MFx and covered by this Agreement. |
| |
In
the event of termination of this Agreement, in addition to the requirements set forth in
Section 14 hereof, the Company shall immediately end its access to MFx and return all
codes, system access mechanisms, programs, manuals and other written information to USBFS,
and shall destroy or erase all such information on any diskettes or other storage medium,
unless such access continues to be permitted pursuant to a separate agreement. |
| 4. |
Lost
Shareholder Due Diligence Searches and Servicing |
| |
The
Company hereby acknowledges that USBFS has an arrangement with an outside vendor to
conduct lost shareholder searches required by Rule 17Ad-17 under the Securities
Exchange Act of 1934, as amended. Costs associated with such searches will be passed
through to the Company as an out-of-pocket expense in accordance with the fee schedule set
forth in Exhibit E hereto. If a shareholder remains lost and the
shareholder’s account unresolved after completion of the mandatory Rule 17Ad-17
search, the Company hereby authorizes vendor to enter, at its discretion, into fee sharing
arrangements with the lost shareholder (or such lost shareholder’s representative or
executor) to conduct a more in-depth search in order to locate the lost shareholder before
the shareholder’s assets escheat to the applicable state. The Company hereby
acknowledges that USBFS is not a party to these arrangements and does not receive any
revenue sharing or other fees relating to these arrangements. Furthermore, the Company
hereby acknowledges that vendor may receive up to 35% of the lost shareholder’s
assets as compensation for its efforts in locating the lost shareholder. |
| 5. |
Anti-Money
Laundering and Red Flag Identity Theft Programs |
| |
The
Company acknowledges that it has had an opportunity to review, consider and comment upon
the written procedures provided by USBFS describing various tools used by USBFS which are
designed to promote the detection and reporting of potential money laundering activity by
monitoring certain aspects of shareholder activity as well as written procedures for
verifying a customer’s identity (collectively, the “Procedures”). Further,
the Company has determined that the Procedures, as part of the Company’s overall
anti-money laundering program and Red Flag Identity Theft Prevention program, are
reasonably designed to prevent the Fund from being used for identity theft, money
laundering or the financing of terrorist activities and to achieve compliance with the
applicable provisions of the Fair and Accurate Credit Transactions Act of 2003 and the USA
Patriot Act of 2001 and the implementing regulations thereunder. |
4
| |
Based
on this determination, the Company hereby instructs and directs USBFS to implement the
Procedures on the Company’s behalf, as such may be amended or revised from time to
time. It is contemplated that these Procedures will be amended from time to time by the
parties as additional regulations are adopted and/or regulatory guidance is provided
relating to the Company’s anti-money laundering and identity theft responsibilities. |
| |
USBFS
agrees to provide to the Company: |
| |
A. |
Prompt
written notification of any transaction or combination of transactions
that USBFS believes, based on the Procedures, evidence money laundering
activity or identity theft activities in connection with the Company or
any shareholder of the Fund; |
| |
B. |
Prompt
written notification of any customer(s) that USBFS reasonably believes,
based upon the Procedures, to be engaged in money laundering or identity
theft activities, provided that the Company agrees not to communicate this
information to the customer; |
| |
C. |
Any
reports received by USBFS from any government agency or applicable industry
self-regulatory organization pertaining to USBFS’s anti-money
laundering monitoring or Red Flag Identity Theft Prevention program on
behalf of the Company; |
| |
D. |
Prompt
written notification of any action taken in response to anti-money
laundering violations or identity theft activity as described in (A), (B)
or (C) above; and |
| |
E. |
Certified
annual and quarterly reports of its monitoring and customer identification
activities on behalf of the Company. |
| |
The
Company hereby directs, and USBFS acknowledges, that USBFS shall (i) permit federal
regulators access to such information and records maintained by USBFS and relating to
USBFS’s implementation of the Procedures, on behalf of the Company, as they may
request, and (ii) permit such federal regulators to inspect USBFS’s
implementation of the Procedures on behalf of the Company. |
5
| |
Other
than for services, if any, to be provided pursuant to Section 3(A) of this Agreement,
USBFS shall be compensated for providing the services set forth in this Agreement in
accordance with the fee schedule set forth on Exhibit D hereto (as amended
from time to time). For services to be provided pursuant to Section 3(A) of this
Agreement, if applicable, USBFS shall be compensated in accordance with the fee schedule
set forth in Exhibit D that relates to the services selected by the Company.
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 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 shall notify
USBFS in writing within 30 calendar days following receipt of each invoice if the Company
is disputing any amounts in good faith. The Company 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 is 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 to USBFS shall only
be paid out of assets and property of the particular Fund involved. |
| 7. |
Representations
and Warranties |
| |
A. |
The
Company hereby represents and warrants to USBFS, 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 the Company
in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Company, 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; |
| |
(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; and |
6
| |
(4) |
A
registration statement under the 1940 Act and the Securities Act of 1933, as
amended, will be made effective prior to the effective date of this
Agreement and will remain effective during the term of this Agreement, and
appropriate state securities law filings will be made prior to the
effective date of this Agreement and will continue to be made during the
term of this Agreement as necessary to enable the Company to make a
continuous public offering of its shares. |
| |
B. |
USBFS
hereby represents and warrants to the Company, 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; |
| |
(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; and |
| |
(4) |
It
is a registered transfer agent under the Exchange Act. |
| 8. |
Standard
of Care; Indemnification; Limitation of Liability |
| |
A. |
USBFS
shall exercise reasonable care in the performance of its duties under this
Agreement. USBFS shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Company 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 shall indemnify and hold
harmless USBFS from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including reasonable
attorneys’ fees) that USBFS may sustain or incur or that may be
asserted against USBFS by any person arising out of 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, as approved by the Board of Directors of the
Company (the “Board of Directors”), 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, 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
| |
USBFS
shall indemnify and hold the Company 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 may sustain or incur or that may be asserted
against the Company 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’s directors,
officers and employees. |
| |
Neither
party to this Agreement shall be liable to the other party for consequential, special or
punitive damages under any provision of this Agreement. |
| |
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 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
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. |
| |
Notwithstanding
the above, USBFS reserves the right to reprocess and correct administrative errors at its
own expense. |
8
| |
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 8, and in Exhibit C,
if applicable, shall indefinitely survive the termination and/or
assignment of this Agreement. |
| |
D. |
If
USBFS is acting in another capacity for the Company pursuant to a separate
agreement, nothing herein shall be deemed to relieve USBFS of any of its
obligations in such other capacity. |
| |
9. |
Data
Necessary to Perform Services |
| |
The
Company 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. |
| 10. |
Proprietary
and Confidential Information |
| |
USBFS
agrees on behalf of itself and its directors, officers, and employees to treat
confidentially and as proprietary information of the Company, all records and other
information relative to the Company and prior, present, or potential shareholders of the
Company (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, 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. 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 or its agent, shall not be subject to this paragraph. |
9
| |
Further,
USBFS will adhere to the privacy policies adopted by the Company 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 its
shareholders. |
| |
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, 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 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 or its designee on and in accordance with its
request. |
| |
The
Company has and retains primary responsibility for all compliance matters relating to the
Fund, including but not limited to compliance with the 1940 Act, the Internal Revenue Code
of 1986, the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2001 and the policies and
limitations of the Fund relating to its portfolio investments as set forth in its
Prospectus and statement of additional information. USBFS’s services hereunder shall
not relieve the Company of its responsibilities for assuring such compliance or the Board
of Director’s oversight responsibility with respect thereto. |
| 13. |
Term
of Agreement; Amendment |
| |
This
Agreement shall become effective as of the date first written above and will continue in
effect for a period of three (3) years. Subsequent to the initial three-year term, 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 authorized or approved by the Board of Directors. The provisions of this
Section 13 shall also apply to Exhibit C. |
| 14. |
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 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
(if such form differs from the form in which USBFS has maintained the same, the Company
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. |
10
| |
In
the absence of any material breach of this Agreement, should the Company elect to
terminate this Agreement prior to the end of the term, the Company agrees to pay the
following fees: |
| |
a. |
all
monthly fees through the life of the contract, including the rebate of any
negotiated discounts and conversion costs from the prior service
provider; |
| |
b. |
all
fees associated with converting services to successor service provider; |
| |
c. |
all
fees associated with any record retention and/or tax reporting obligations
that may not be eliminated due to the conversion to a successor
service provider; |
| |
d. |
all
out-of-pocket costs associated with a-c above. |
| |
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 without the written consent of USBFS, or by USBFS without the written consent
of the Company, accompanied by the authorization or approval of the Company’s Board
of Directors. |
| |
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
Securities and Exchange Commission thereunder. |
| 18. |
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. |
11
| 19. |
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. |
| |
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. |
| |
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 shall be sent to: |
| |
Xxxxxxxx
Capital Management
Attn: Xxxxxxxxx Xxxxxxxx
0000
Xxxxx Xx., #000
Xxxxxxx, XX 00000 |
| |
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. |
| |
This
Agreement, together with any exhibits, attachments, appendices or schedules expressly
referenced herein, sets forth the sole and complete understanding of the parties with
respect to the subject matter hereof and supersedes all prior agreements relating thereto,
whether written or oral, between the parties. |
12
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.
| XXXXXXXX FUNDS, INC. |
U.S. BANCORP FUND SERVICES, LLC |
| By: /s/ Xxxxxxxxx X. Xxxxxxxx |
By: /s/ Xxxxxxx X. XxXxx |
| Name: Xxxxxxxxx X. Xxxxxxxx |
Name: Xxxxxxx X. XxXxx |
| Title: President |
Title: Executive Vice President |
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