ADMINISTRATION, ACCOUNTING AND TRANSFER AGENCY AGREEMENT
AGREEMENT dated as of April 1, 1996 by and between Xxxxxxx MultiFund Trust
(the "Trust"), a Massachusetts business trust, Xxxxxxx Capital Management,
Inc. ("Xxxxxxx"), a Minnesota corporation, and MGF Service Corp. ("MGF"), an
Ohio corporation.
WHEREAS, the Trust has been organized to operate as an open-end investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, Xxxxxxx is registered as an investment adviser under the Investment
Advisers Act of 1940 and provides advisory services to the Trust pursuant to
an Investment Advisory Agreement; and
WHEREAS, under the Investment Advisory Agreement Xxxxxxx is responsible for
retaining and compensating agents to provide non- advisory services to the
Trust; and
WHEREAS, Xxxxxxx desires to appoint MGF to serve as its administrative
agent, accounting and pricing agent and transfer agent, dividend disbursing
agent, shareholder service agent, plan agent and shareholder purchase and
redemption agent, and MGF is willing to act in such capacities upon the terms
and conditions herein set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. APPOINTMENT.
MGF is hereby appointed to provide the Trust with those services
described in this Agreement, and MGF accepts such appointment and agrees to
provide such services under the terms and conditions set forth herein.
2. DOCUMENTATION.
The Trust will furnish from time to time the following documents:
A. Each resolution of the Board of Trustees of the Trust
authorizing the original issue of its shares;
B. Each Registration Statement filed with the Securities
and Exchange Commission (the "SEC") and amendments
thereof;
C. A certified copy of each amendment to the Agreement
and Declaration of Trust and the Bylaws of the Trust;
D. Certified copies of each resolution of the Board of
Trustees authorizing officers to give instructions to MGF;
E. Specimens of all new forms of share certificates
accompanied by Board of Trustees' resolutions
approving such forms;
F. Such other certificates, documents or opinions which
MGF may, in its discretion, deem necessary or
appropriate in the proper performance of its duties;
G. Copies of all Underwriting and Dealer Agreements in
effect;
H. Copies of all Advisory Agreements in effect; and
I. Copies of all documents relating to special investment
or withdrawal plans which are offered or may be
offered in the future by the Trust and for which MGF
is to act as plan agent.
3. TRUST ADMINISTRATION.
Subject to the direction and control of Xxxxxxx and the Trust, MGF
shall supervise the Trust's business affairs not otherwise supervised by other
agents of the Trust. To the extent not otherwise the primary responsibility
of, or provided by, other agents of Xxxxxxx or the Trust, MGF shall supply (i)
non-investment related statistical and research data, (ii) internal regulatory
compliance services, and (iii) executive and administrative services. MGF
shall coordinate the preparation of (i) tax returns, (ii) reports to
shareholders of the Trust, (iii) reports to and filings with the SEC and state
securities authorities including preliminary and definitive proxy materials
and post-effective amendments to the Trust's registration statement, and (iv)
necessary materials for meetings of the Trust's Board of Trustees unless
prepared by other parties under agreement with Xxxxxxx or the Trust. MGF shall
provide personnel to serve as officers of the Trust if so elected by the Board
of Trustees; provided, however, that Xxxxxxx shall reimburse MGF for the
reasonable out-of-pocket expenses incurred by such personnel in attending
Board of Trustees' meetings and shareholders' meetings of the Trust.
4. CALCULATION OF NET ASSET VALUE.
MGF will maintain and keep current the general ledger for each series
of the Trust, recording all income and expenses, capital share activity and
security transactions of the Trust. MGF will calculate the net asset value of
each series of the Trust and the per share net asset value of each series of
the Trust, in accordance with the Trust's current prospectus and statement of
additional information, once daily as of the time selected by the Trust's
Board of Trustees. MGF will prepare and maintain a daily valuation of all
securities and other assets of the Trust in accordance with instructions from
a designated officer of the Trust or Xxxxxxx and in the manner set forth in
the current prospectus and statement of additional information. In valuing
securities of the Trust, MGF may contract with, and rely upon market
quotations provided by, outside services.
5. PAYMENT OF TRUST EXPENSES.
MGF shall process each request received from the Trust or its
authorized agents for payment of the Trust's expenses. Upon receipt of written
instructions signed by an officer or other authorized agent of the Trust, MGF
shall prepare checks in the appropriate amounts which shall be signed by an
authorized officer of MGF and mailed to the appropriate party.
6. MGF TO RECORD SHARES.
MGF shall record the issuance of shares of the Trust and maintain
pursuant to applicable rules of the SEC a record of the total number of shares
of the Trust which are authorized, issued and outstanding, based upon data
provided to it by the Trust. MGF shall also provide the Trust on a regular
basis or upon reasonable request the total number of shares which are
authorized, issued and outstanding, but shall have no obligation when
recording the issuance of the Trust's shares, except as otherwise set forth
herein, to monitor the issuance of such shares or to take cognizance of any
laws relating to the issue or sale of such shares, which functions shall be
the sole responsibility of the Trust.
7. MGF TO VALIDATE TRANSFERS.
Upon receipt of a proper request for transfer and upon surrender to
MGF of certificates, if any, in proper form for transfer, MGF shall approve
such transfer and shall take all necessary steps to effectuate the transfer as
indicated in the transfer request. Upon approval of the transfer, MGF shall
notify the Trust in writing of each such transaction and shall make
appropriate entries on the shareholder records maintained by MGF.
8. SHARE CERTIFICATES.
If the Trust authorizes the issuance of share certificates and an
investor requests a share certificate, MGF will countersign and mail, by
insured first class mail, a share certificate to the investor at his address
as set forth on the transfer books of the Trust, subject to any other
instructions for delivery of certificates representing newly purchased shares
and subject to the limitation that no certificates representing newly
purchased shares shall be mailed to the investor until the cash purchase price
of such shares has been collected and credited to the account of the Trust
maintained by the Custodian. The Trust shall supply MGF with a sufficient
supply of blank share certificates and from time to time shall renew such
supply upon request of MGF. Such blank share certificates shall be properly
signed, manually or, if authorized by the Trust, by facsimile; and
notwithstanding the death, resignation or removal of any officers of the Trust
authorized to sign share certificates, MGF may continue to countersign
certificates which bear the manual or facsimile signature of such officer
until otherwise directed by the Trust. In case of the alleged loss or
destruction of any share certificate, no new certificates shall be issued in
lieu thereof, unless there shall first be furnished an appropriate bond
satisfactory to MGF and the Trust, and issued by a surety company satisfactory
to MGF and the Trust.
9. RECEIPT OF FUNDS.
Upon receipt of any check or other instrument drawn or endorsed to it
as agent for, or identified as being for the account of, the Trust, MGF shall
stamp the check or instrument with the date of receipt and shall forthwith
process the same for collection. Upon receipt of notification of receipt of
funds eligible for share purchases in accordance with the Trust's then current
prospectus and statement of additional information, MGF shall notify the
Trust, at the close of each business day, in writing of the amount of said
funds credited to the Trust and deposited in its account with the Custodian.
10. PURCHASE ORDERS.
Upon receipt of a check or other order for the purchase of shares of
the Trust, accompanied by sufficient information to enable MGF to establish a
shareholder account, MGF shall, as of the next determination of net asset
value after receipt of such order in accordance with the Trust's then current
prospectus and statement of additional information, compute the number of
shares due to the shareholder, credit the share account of the shareholder,
subject to collection of the funds, with the number of shares so purchased,
shall notify the Trust in writing or by computer report at the close of each
business day of such
transactions and shall mail to the shareholder and/or dealer of record a
notice of such credit when requested to do so by the Trust.
11. RETURNED CHECKS.
In the event that MGF is notified by the Trust's Custodian that any
check or other order for the payment of money is returned unpaid for any
reason, MGF will:
A. Give prompt notification to the Trust of the non-
payment of said check;
B. In the absence of other instructions from the Trust, take such
steps as may be necessary to redeem any shares purchased on the basis of such
returned check and cause the proceeds of such redemption plus any dividends
declared with respect to such shares to be credited to the account of the
Trust and to request the Trust's Custodian to forward such returned check to
the person who originally submitted the check; and
C. Notify the Trust of such actions and correct the
Trust's records maintained by MGF pursuant to this Agreement.
12. DIVIDENDS AND DISTRIBUTIONS.
The Trust shall furnish MGF with appropriate evidence of trustee
action authorizing the declaration of dividends and other distributions. MGF
shall establish procedures in accordance with the Trust's then current
prospectus and statement of additional information and with other authorized
actions of the Trust's Board of Trustees under which it will have available
from the Custodian or the Trust any required information for each dividend and
other distribution. After deducting any amount required to be withheld by any
applicable laws, MGF shall, as agent for each shareholder who so requests,
invest the dividends and other distributions in full and fractional shares in
accordance with the Trust's then current prospectus and statement of
additional information. If a shareholder has elected to receive dividends or
other distributions in cash, then MGF shall disburse dividends to shareholders
of record in accordance with the Trust's then current prospectus and statement
of additional information. MGF shall, on or before the mailing date of such
checks, notify the Trust and the Custodian of the estimated amount of cash
required to pay such dividend or distribution, and the Trust shall instruct
the Custodian to make available sufficient funds therefor in the appropriate
account of the Trust. MGF shall mail to the shareholders periodic statements,
as requested by the Trust, showing the number of full and fractional shares
and the net asset value per share of shares so credited. When requested by the
Trust, MGF shall prepare and file with the Internal Revenue Service, and when
required, shall
address and mail to shareholders, such returns and information relating to
dividends and distributions paid by the Trust as are required to be so
prepared, filed and mailed by applicable laws, rules and regulations.
13. UNCLAIMED DIVIDENDS AND UNCLAIMED REDEMPTION PROCEEDS.
MGF shall, at least annually, furnish in writing to the Trust the
names and addresses, as shown in the shareholder accounts maintained by MGF,
of all shareholders for which there are, as of the end of the calendar year,
dividends, distributions or redemption proceeds for which checks or share
certificates mailed in payment of distributions have been returned. MGF shall
use its best efforts to contact the shareholders affected and to follow any
other written instructions received from the Trust concerning the disposition
of any such unclaimed dividends, distributions or redemption proceeds.
14. REDEMPTIONS AND EXCHANGES.
A. MGF shall process, in accordance with the Trust's then current
prospectus and statement of additional information, each order for the
redemption of shares accepted by MGF. Upon its approval of such redemption
transactions, MGF, if requested by the Trust, shall mail to the shareholder
and/or dealer of record a confirmation showing trade date, number of full and
fractional shares redeemed, the price per share and the total redemption
proceeds. For each such redemption, MGF shall either: (a) prepare checks in
the appropriate amounts for approval and verification by the Trust and
signature by an authorized officer of MGF and mail the checks to the
appropriate person, or (b) in the event redemption proceeds are to be wired
through the Federal Reserve Wire System or by bank wire, cause such proceeds
to be wired in federal funds to the bank account designated by the
shareholder, or (c) effectuate such other redemption procedures which are
authorized by the Trust's Board of Trustees or its then current prospectus and
statement of additional information. The requirements as to instruments of
transfer and other documentation, the applicable redemption price and the time
of payment shall be as provided in the then current prospectus and statement
of additional information, subject to such supplemental instructions as may be
furnished by the Trust and accepted by MGF. If MGF or the Trust determines
that a request for redemption does not comply with the requirements for
redemptions, MGF shall promptly notify the shareholder indicating the reason
therefor.
B. If shares of the Trust are eligible for exchange with shares of
any other investment company, MGF, in accordance with the then current
prospectus and statement of additional information and exchange rules of the
Trust and such other investment company, or such other investment company's
transfer
agent, shall review and approve all exchange requests and shall, on behalf of
the Trust's shareholders, process such approved exchange requests.
C. MGF shall notify the Trust and the Custodian on each business day
of the amount of cash required to meet payments made pursuant to the
provisions of this Paragraph, and, on the basis of such notice, the Trust
shall instruct the Custodian to make available from time to time sufficient
funds therefor in the appropriate account of the Trust. Procedures for
effecting redemption orders accepted from shareholders or dealers of record by
telephone or other methods shall be established by mutual agreement between
MGF and the Trust consistent with the then current prospectus and statement of
additional information.
D. The authority of MGF to perform its responsibilities under
Xxxxxxxxx 00, Xxxxxxxxx 12, and this Paragraph 14 shall be suspended with
respect to any series of the Trust upon receipt of notification by it of the
suspension of the determination of such series' net asset value.
15. AUTOMATIC WITHDRAWAL PLANS.
MGF will process automatic withdrawal orders pursuant to the
provisions of the withdrawal plans duly executed by shareholders and the
current prospectus and statement of additional information of the Trust.
Payments upon such withdrawal order shall be made by MGF from the appropriate
account maintained by the Trust with the Custodian on approximately the last
business day of each month in which a payment has been requested, and will
withdraw from a shareholder's account and present for repurchase or redemption
as many shares as shall be sufficient to make such withdrawal pursuant to the
provisions of the shareholder's withdrawal plan and the current prospectus and
statement of additional information of the Trust. From time to time on new
automatic withdrawal plans a check for payment date already past may be issued
upon request by the shareholder.
16. WIRE-ORDER PURCHASES.
MGF will send written confirmations to the dealers of record
containing all details of the wire-order purchases placed by each such dealer
by the close of business on the business day following receipt of such orders
by MGF. Upon receipt of any check drawn or endorsed to the Trust (or MGF, as
agent) or otherwise identified as being payment of an outstanding wire- order,
MGF will stamp said check with the date of its receipt and deposit the amount
represented by such check to MGF's deposit accounts maintained with the
Custodian. MGF will cause the Custodian to transfer federal funds in an amount
equal to the net asset value of the shares so purchased to the Trust's account
with the Custodian, and will notify the Trust before noon of each business day
of the total amount deposited in the Trust's deposit accounts, and in the
event that payment for a purchase order is not received by MGF or the
Custodian on the tenth business day following receipt of the order, prepare an
NASD "notice of failure of dealer to make payment."
17. OTHER PLANS.
MGF will process such group programs and other plans or programs for
investing in shares of the Trust as are now provided for in the Trust's
current prospectus and statement of additional information and will act as
plan agent for shareholders pursuant to the terms of such plans and programs
duly executed by such shareholders.
18. RECORDKEEPING AND OTHER INFORMATION.
MGF shall create and maintain all records required by applicable
laws, rules and regulations, including but not limited to records required by
Section 31(a) of the 1940 Act and the rules thereunder, as the same may be
amended from time to time, pertaining to the various functions performed by it
and not otherwise created and maintained by another party pursuant to contract
with Xxxxxxx or the Trust. All such records shall be the property of the Trust
at all times and shall be available for inspection and use by the Trust. Where
applicable, such records shall be maintained by MGF for the periods and in the
places required by Rule 31a-2 under the 1940 Act. The retention of such
records shall be at the expense of Xxxxxxx. MGF shall make available during
regular business hours all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by the Trust,
Xxxxxxx, or any regulatory agency having authority over the Trust.
19. SHAREHOLDER RECORDS.
MGF shall maintain records for each shareholder account showing the
following:
A. Names, addresses and tax identifying numbers;
B. Name of the dealer of record, if any;
C. Number of shares held of each series;
D. Historical information regarding the account of each
shareholder, including dividends and distributions in
cash or invested in shares;
E. Information with respect to the source of all dividends
and distributions allocated among income, realized
short-term gains and realized long-term gains;
F. Any instructions from a shareholder including all forms
furnished by the Trust and executed by a shareholder
with respect to (i) dividend or distribution elections
and (ii) elections with respect to payment options in
connection with the redemption of shares;
G. Any correspondence relating to the current maintenance
of a shareholder's account;
H. Certificate numbers and denominations for any
shareholder holding certificates;
I. Any stop or restraining order placed against a
shareholder's account;
J. Information with respect to withholding in the case of a
foreign account or any other account for which
withholding is required by the Internal Revenue Code of
1986, as amended; and
K. Any information required in order for MGF to perform the
calculations contemplated under this Agreement.
20. TAX RETURNS AND REPORTS.
MGF will prepare in the appropriate form, file with the Internal
Revenue Service and appropriate state agencies and, if required, mail to
shareholders of the Trust such returns for reporting dividends and
distributions paid by the Trust as are required to be so prepared, filed and
mailed and shall withhold such sums as are required to be withheld under
applicable federal and state income tax laws, rules and regulations.
21. FORM N-SAR.
MGF shall maintain such records within its control and shall be
requested by the Trust to assist the Trust in fulfilling the requirements of
Form N-SAR.
22. OTHER INFORMATION TO THE TRUST.
Subject to such instructions, verification and approval of the
Custodian and the Trust as shall be required by any agreement or applicable
law, MGF will also maintain such records as shall be necessary to furnish to
the Trust the following: annual shareholder meeting lists, proxy lists and
mailing materials, shareholder reports and confirmations and checks for
disbursing redemption proceeds, dividends and other distributions or expense
disbursements.
23. ACCESS TO SHAREHOLDER INFORMATION.
Upon request, MGF shall arrange for the Trust's investment adviser to
have direct access to shareholder information contained in MGF's computer
system, including account balances, performance information and such other
information which is available to MGF with respect to shareholder accounts.
24. COOPERATION WITH ACCOUNTANTS.
MGF shall cooperate with the Trust's independent public accountants
and shall take all reasonable action in the performance of its obligations
under this Agreement to assure that the necessary information is made
available to such accountants for the expression of their unqualified opinion
where required for any document for the Trust.
25. SHAREHOLDER SERVICE AND CORRESPONDENCE.
MGF will provide and maintain adequate personnel, records and
equipment to receive and answer all shareholder and dealer inquiries relating
to account status, share purchases, redemptions and exchanges and other
investment plans available to Trust shareholders. MGF will answer written
correspondence from shareholders relating to their share accounts and such
other written or oral inquiries as may from time to time be mutually agreed
upon, and MGF will notify the Trust of any correspondence or inquiries which
may require an answer from the Trust.
26. PROXIES.
MGF shall assist the Trust in the mailing of proxy cards and other
material in connection with shareholder meetings of the Trust, shall receive,
examine and tabulate returned proxies and shall, if requested by the Trust,
provide at least one inspector of election to attend and participate as
required by law in shareholder meetings of the Trust.
27. FURTHER ACTIONS.
Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
28. COMPENSATION.
For the performance of MGF's obligations under this Agreement,
Xxxxxxx shall pay MGF, on the first business day following the end of each
month, a monthly fee in accordance with the schedule attached hereto as
Schedule A. MGF shall not be required to reimburse the Trust or Xxxxxxx for
(or have deducted
from its fees) any expenses in excess of expense limitations imposed by
certain state securities commissions having jurisdiction over the Trust. The
Trust shall promptly reimburse MGF for any out-of-pocket expenses and advances
which are to be paid by the Trust in accordance with Paragraph 29.
29. EXPENSES.
MGF shall furnish, at its expense and without cost to the Trust (i)
the services of its personnel to the extent that such services are required to
carry out its obligations under this Agreement and (ii) use of data processing
equipment. All costs and expenses not expressly assumed by MGF under this
Paragraph 29 shall be paid by Xxxxxxx, including, but not limited to, costs
and expenses for postage, envelopes, checks, drafts, continuous forms,
reports, communications, statements and other materials, telephone, telegraph
and remote transmission lines, use of outside pricing services, use of outside
mailing firms, necessary outside record storage, media for storage of records
(e.g., microfilm, microfiche, computer tapes), printing, confirmations and any
other shareholder correspondence and any and all assessments, taxes or levies
assessed on MGF for services provided under this Agreement. Postage for
mailings of dividends, proxies, reports and other mailings to all shareholders
shall be advanced to MGF three business days prior to the mailing date of such
materials.
30. REFERENCES TO MGF.
The Trust or Xxxxxxx shall not circulate any printed matter which
contains any reference to MGF without the prior written approval of MGF,
excepting solely such printed matter as merely identifies MGF as
Administrative Services Agent, Transfer, Shareholder Servicing and Dividend
Disbursing Agent and Accounting Services Agent. The Trust or Xxxxxxx will
submit printed matter requiring approval to MGF in draft form, allowing
sufficient time for review by MGF and its counsel prior to any deadline for
printing.
31. EQUIPMENT FAILURES.
In the event of equipment failures beyond MGF's control, MGF shall
take all steps necessary to minimize service interruptions but shall have no
liability with respect thereto. MGF shall endeavor to enter into one or more
agreements making provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
32. INDEMNIFICATION OF MGF.
A. MGF may rely on information reasonably believed by it to be accurate and
reliable. Except as may otherwise be required by the 1940 Act and the rules
thereunder, neither MGF nor its shareholders, officers, directors, employees,
agents, control persons or affiliates of any thereof shall be subject to any
liability for, or any damages, expenses or losses incurred by the Trust or
Xxxxxxx in connection with, any error of judgment, mistake of law, any act or
omission connected with or arising out of any services rendered under or
payments made pursuant to this Agreement or any other matter to which this
Agreement relates, except by reason of willful misfeasance, bad faith or gross
negligence on the part of any such persons in the performance of the duties of
MGF under this Agreement or by reason of reckless disregard by any of such
persons of the obligations and duties of MGF under this Agreement.
B. Any person, even though also a director, officer, employee, shareholder
or agent of MGF, or any of its affiliates, who may be or become an officer,
trustee, employee or agent of the Trust, shall be deemed, when rendering
services to the Trust or acting on any business of the Trust, to be rendering
such services to or acting solely as an officer, trustee, employee or agent of
the Trust and not as a director, officer, employee, shareholder or agent of or
one under the control or direction of MGF or any of its affiliates, even
though paid by one of these entities.
C. Notwithstanding any other provision of this Agreement, the Trust and
Xxxxxxx shall each indemnify and hold harmless MGF, its directors, officers,
employees, shareholders, agents, control persons and affiliates 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 MGF may sustain or
incur or which may be asserted against MGF by any person by reason of, or as a
result of: (i) any action taken or omitted to be taken by MGF in good faith in
reliance upon any certificate, instrument, order or share certificate believed
by it to be genuine and to be signed, countersigned or executed by any duly
authorized person, upon the oral instructions or written instructions of an
authorized person of the Trust or upon the opinion of legal counsel for the
Trust or its own counsel; or (ii) any action taken or omitted to be taken by
MGF in connection with its appointment in good faith in reliance upon any law,
act, regulation or interpretation of the same even though the same may
thereafter have been altered, changed, amended or repealed. However,
indemnification under this subparagraph shall not apply to actions or
omissions of MGF or its directors, officers, employees, shareholders or agents
in cases of its or their own gross negligence, willful misconduct, bad faith,
or reckless disregard of its or their own duties hereunder.
33. TERMINATION
A. The provisions of this Agreement shall be effective on the date
first above written, shall continue in effect for two years from that date and
shall continue in force from year to year thereafter, but only so long as such
continuance is approved (1) by MGF, (2) by Xxxxxxx, (3) by vote, cast in
person at a meeting called for the purpose, of a majority of the Trust's
trustees who are not parties to this Agreement or interested persons (as
defined in the 0000 Xxx) of any such party, and (4) by vote of a majority of
the Trust's Board of Trustees or a majority of the Trust's outstanding voting
securities.
B. Any party may terminate this Agreement on any date by giving the
other parties at least sixty (60) days' prior written notice of such
termination specifying the date fixed therefor. Upon termination of this
Agreement, Xxxxxxx shall pay to MGF such compensation as may be due as of the
date of such termination, and shall likewise reimburse MGF for any
out-of-pocket expenses and disbursements reasonably incurred by MGF to such
date.
C. In the event that in connection with the termination of this
Agreement a successor to any of MGF's duties or responsibilities under this
Agreement is designated by the Trust or by Xxxxxxx by written notice to MGF,
MGF shall, promptly upon such termination and at the expense of Xxxxxxx,
transfer all records maintained by MGF under this Agreement and shall
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from MGF's cognizant personnel in the establishment
of books, records and other data by such successor.
34. SERVICES FOR OTHERS.
Nothing in this Agreement shall prevent MGF or any affiliated person
(as defined in the 0000 Xxx) of MGF from providing services for any other
person, firm or corporation (including other investment companies); provided,
however, that MGF expressly represents that it will undertake no activities
which, in its judgment, will adversely affect the performance of its
obligations to the Trust under this Agreement.
35. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
The parties hereto acknowledge and agree that nothing contained
herein shall be construed to require MGF to perform any services for the Trust
or Xxxxxxx which services could cause MGF to be deemed an "investment adviser"
of the Trust within the meaning of Section 2(a)(20) of the 1940 Act or to
supersede or
contravene the prospectus or statement of additional information of the Trust
or any provisions of the 1940 Act and the rules thereunder. Except as
otherwise provided in this Agreement and except for the accuracy of
information furnished to it by MGF, the Trust assumes full responsibility for
complying with all applicable requirements of the 1940 Act, the Securities Act
of 1933, as amended, and any other laws, rules and regulations of governmental
authorities having jurisdiction.
36. LIMITATION OF LIABILITY.
It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Trust, personally, but bind only the
trust property of the Trust. The execution and delivery of this Agreement have
been authorized by the Trustees of the Trust and signed by an officer 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.
37. SEVERABILITY.
In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
38. QUESTIONS OF INTERPRETATION.
This Agreement shall be governed by the laws of the State of Ohio.
Any question of interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
1940 Act shall be resolved by reference to such term or provision of the 1940
Act and to interpretations thereof, if any, by the United States Courts or in
the absence of any controlling decision of any such court, by rules,
regulations or orders of the SEC issued pursuant to said 1940 Act. In
addition, where the effect of a requirement of the 1940 Act, reflected in any
provision of this Agreement, is revised by rule, regulation or order of the
SEC, such provision shall be deemed to incorporate the effect of such rule,
regulation or order.
39. NOTICES.
Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party at such address as such
other party may designate for the receipt
of such notice. Until further notice to the other party, it is agreed that the
address of the Trust and of Xxxxxxx for this purpose shall be 0000 Xxxxxx
Xxxxxx Xxxxx, Xxxxx, Xxxxxxxxx 00000 and that the address of MGF for this
purpose shall be 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
40. BINDING EFFECT.
Each of the undersigned expressly warrants and represents that he has
the full power and authority to sign this Agreement on behalf of the party
indicated, and that his signature will operate to bind the party indicated to
the foregoing terms.
41. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
42. FORCE MAJEURE.
If MGF shall be delayed in its performance of services or prevented
entirely or in part from performing services due to causes or events beyond
its control, including and without limitation, acts of God, interruption of
power or other utility, transportation or communication services, acts of
civil or military authority, sabotages, national emergencies, explosion,
flood, accident, earthquake or other catastrophe, fire, strike or other labor
problems, legal action, present or future law, governmental order, rule or
regulation, or shortages of suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused and a
reasonable time for performance in connection with this Agreement shall be
extended to include the period of such delay or non-performance.
43. MISCELLANEOUS.
The captions in this 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 or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
XXXXXXX MULTIFUND TRUST
By: /S/ XXXXXX X. XXXXXXX
Its: Chairman of the Board
XXXXXXX CAPITAL MANAGEMENT, INC.
By: /S/ XXXXXX X. XXXXXXX
Its: President
MGF SERVICE CORP.
By: /S/ XXXXXX X. XXXXXX
Its: President
SCHEDULE A
COMPENSATION
For the administrative, fund accounting, transfer agent and shareholder
services provided by MGF Service Corp. to the Xxxxxxx MultiFund Trust, Xxxxxxx
will pay to MGF Service Corp. a monthly fee calculated based upon the
following schedule:
BASE FEES MONTHLY FEE
3 Funds $15,000
6 Funds 24,000
ADDITIONAL FEES
A monthly fee calculated at an annual rate of the Trust's average
daily net assets according to the following schedule:
PERCENTAGE AVERAGE DAILY
RATE NET ASSETS
.04% First $200,000,000
.03% Next 300,000,000
.02% Over 500,000,000
PER ACCOUNT FEES
An annual per account fee of $8.00 for each shareholder account,
payable monthly.
