FUND ADMINISTRATION SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into
as of this 1st day of January, 2006, by and between WEXFORD
TRUST, a Massachusetts business trust (the “Trust”) and U.S.
BANCORP FUND SERVICES, LLC, a Wisconsin limited liability company
(“USBFS”).
WHEREAS,
the Trust 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 providing fund administration
services for the benefit of its customers; and
WHEREAS,
the Trust desires to retain USBFS to provide fund administration services to
each series of 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 Administrator
The
Trust
hereby appoints USBFS as administrator of 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 administration services to the Fund:
A. General
Fund Management:
(1) Act
as liaison among Fund service providers.
(2) Supply:
a.
Corporate secretarial services.
b.
Office facilities (which may be in USBFS’s, or an affiliate’s, own offices).
c.
Non-investment-related statistical and research data as needed.
(3) Coordinate
the Trust’s board of trustees’ (the “Board of Trustees” or the “Trustees”)
communications, such as:
a.
Prepare meeting agendas and resolutions, with the assistance of Fund counsel.
b.
Prepare reports for the Board of Trustees based on financial and administrative
data.
c.
Evaluate independent auditor.
d.
Secure and monitor fidelity bond and director and officer liability coverage,
and make the necessary Securities and Exchange
Commission
(the “SEC”) filings relating thereto.
e.
Prepare minutes of meetings of the Board of Trustees and Fund shareholders.
f. Recommend
dividend declarations to the Board of Trustees and prepare and distribute to
appropriate parties notices announcing
declaration
of dividends and other distributions to shareholders.
g.
Provide personnel to serve as officers of the Trust if so elected by the Board
of Trustees, attend Board of Trustees meetings and
present
materials for Trustees’ review at such meetings.
(4) Audits:
a. Prepare
appropriate schedules and assist independent auditors.
b. Provide
information to the SEC and facilitate audit process.
c. Provide
office facilities.
(5) Assist
in overall operations of the Fund.
(6) Pay
Fund expenses upon written authorization from the Trust.
(7)
Keep the Trust’s governing documents, including its charter, bylaws and minute
books, but only to the extent such documents are provided to USBFS by the Trust
or its representatives for safe keeping.
B.
Compliance:
(1) Regulatory
Compliance:
a. Monitor
compliance with the 1940 Act requirements, including:
(i) Asset
diversification tests.
(ii) Total
return and SEC yield calculations.
(iii) Maintenance
of books and records under Rule 31a-3.
(iv) Code
of ethics requirements under Rule 17j-1 for the disinterested Trustees.
b. Monitor
Fund's compliance with the policies and investment limitations as set forth
in
its prospectus (the “Prospectus”) and statement of additional information (the
“SAI”).
c. Perform
its duties hereunder in compliance with all applicable laws and regulations
and
provide any sub-certifications reasonably requested by the Trust in connection
with any certification required of 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.
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d. Monitor
applicable regulatory and operational service issues, and update Board of
Trustees periodically.
(2) Blue
Sky Compliance:
a. Prepare
and file with the appropriate state securities authorities any and all required
compliance filings relating to the qualification of the securities of the Fund
so as to enable the Fund to make a continuous offering of its shares in all
states.
b. Monitor
status and maintain registrations in each state.
c. Provide
updates regarding material developments in state securities regulation.
(3) SEC
Registration and Reporting:
a. Assist
Fund counsel in annual update of the Prospectus and SAI and in preparation
of
proxy statements as needed.
b. Prepare
and file annual and semiannual shareholder reports, Form N-SAR, Form N-CSR,
and
Form N-Q filings and Rule 24f-2
notices.
As
requested by the Trust, prepare and file Form N-PX filings.
c. Coordinate
the printing, filing and mailing of Prospectuses and shareholder reports, and
amendments and supplements thereto.
d.
File fidelity bond under Rule
17g-1.
e.
Monitor sales of Fund shares and ensure that such shares are properly registered
or qualified, as applicable, with the SEC and the
appropriate state authorities.
(4) IRS
Compliance:
a. Monitor
the Trust’s status as a regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended (the “Code”), including without
limitation, review of the following:
(i)
Asset diversification
requirements.
(ii)
Qualifying income requirements.
(iii)
Distribution requirements.
b. Calculate
required distributions (including excise tax distributions).
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C. Financial
Reporting:
(1) Provide
financial data required by the Prospectus and SAI.
(2) Prepare
financial reports for officers, shareholders, tax authorities, performance
reporting companies, the Board of Trustees, the SEC, and independent
accountants.
(3) Supervise
the Fund’s custodian and fund accountants in the maintenance of the Fund’s
general ledger and in the preparation of the Fund’s financial statements,
including oversight of expense accruals and payments, the determination of
net
asset value and the declaration and payment of dividends and other distributions
to shareholders.
(4) Compute
the yield, total return, expense ratio and portfolio turnover rate of each
class
of the Fund.
(5) Monitor
the expense accruals and notify the Trust’s management of any proposed
adjustments.
(6) Prepare
monthly financial statements, which include, without limitation, the following
items:
a.
Schedule of Investments.
b.
Statement of Assets and Liabilities.
c.
Statement of Operations.
d.
Statement of Changes in Net Assets.
e.
Cash Statement.
f.
Schedule of Capital Gains and Losses.
(7) Prepare
quarterly broker security transaction summaries.
D. Tax
Reporting:
(1) Prepare
and file on a timely basis appropriate federal and state tax returns including,
without limitation, Forms 1120/8610, with any necessary schedules.
(2) Prepare
state income breakdowns where relevant.
(3) File
Form 1099 for payments to disinterested Trustees and other service
providers.
(4)
Monitor wash sale losses.
(5) Calculate
eligible dividend income for corporate shareholders.
3. 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 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 Trust shall notify
USBFS in writing within 30 calendar days following receipt of each invoice
if
the Trust is disputing any amounts in good faith. 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
Trust is disputing in good faith as set forth above, unpaid invoices shall
accrue a finance charge of 0.5% per month after the due date. Notwithstanding
anything to the contrary, amounts owed by the Trust to USBFS shall only be
paid
out of the assets and property of the particular Fund involved.
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4.
Representations and Warranties
A. The
Trust 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 Trust in
accordance with all requisite action and constitutes a valid and legally binding
obligation of 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)
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.
B. USBFS
hereby represents and warrants to 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
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(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.
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 Trust 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, gross 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
Trust
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 Trust,
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, provided however, that
USBFS further agrees that it will seek satisfaction only from the assets of
the
Trust and that it shall not seek satisfaction of any such obligation from the
shareholders or any individual shareholder of a series of the Trust, or from
the
Trustees or any individual shareholder of a series of the Trust, or from the
Trustees or any individual Trustee of the Trust. This indemnity shall be a
continuing obligation of 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.
USBFS shall indemnify and hold 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 Trust may sustain or incur or that may be asserted against 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, gross 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 “Trust”
shall include the Trust’s directors, officers and employees.
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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 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 Trust, at such times as 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.
Notwithstanding the above, USBFS reserves
the right to reprocess and correct administrative errors at its own expense.
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 5 shall indefinitely
survive the termination and/or assignment of this Agreement.
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D. If
USBFS is acting in another capacity for the Trust pursuant to a separate
agreement, nothing herein shall be deemed to relieve USBFS of any of its
obligations in such other capacity.
6. Data
Necessary to Perform Services
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.
7. 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 Trust, all records and other information relative to the
Trust and prior, present, or potential shareholders of 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 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 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 Trust or its agent,
shall not be subject to this paragraph.
Further, USBFS will adhere to the privacy
policies adopted by 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 Trust and its shareholders.
8. 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 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 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 Trust or its designee on and in accordance with its request.
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9. Compliance
with Laws
The Trust has and retains 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 Prospectus and SAI. USBFS’s
services hereunder shall not relieve the Trust of its responsibilities for
assuring such compliance or the Board of Trustee’s oversight responsibility with
respect thereto.
10. 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 one
(1)
year. Subsequent to the initial one-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 Trust, and authorized or approved by the
Board of Trustees.
11. 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 Trust by written notice to USBFS, USBFS will promptly,
upon
such termination and at the expense of the Trust, 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
Trust (if such form differs from the form in which USBFS has maintained the
same, 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 Trust.
12. 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 Trust without the written consent of USBFS, or by
USBFS
without the written consent of the Trust accompanied by the authorization or
approval of the Trust’s Board of Trustees.
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13. 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.
14. 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.
15. 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.
16. 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.
17. 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
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and notice to the Trust shall be sent to:
Xxxxxxxxxx & Company, Inc.
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
18. 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.
|
WEXFORD
TRUST
|
U.S.
BANCORP FUND SERVICES, LLC
|
|
By:
/s/ Xxxxxx X. Xxxxxxxxxx
|
By:
/s/ Xxxxxxx X. XxXxx
|
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
Name:
Xxxxxxx X. XxXxx
|
|
Title:
President
|
Title:
Sr. Vice President
|
11
Exhibit
A
to
the
Fund
Names
Separate
Series of the Wexford Trust
Name
of
Series
Xxxxxxxxxx
Fund
B-1
