INVESTMENT COMPANY SERVICES AGREEMENT
Memorial Funds
This AGREEMENT, dated as of the 1st day of October, 2001, made by and
between Memorial Funds (the "Fund"), a trust operating as an open-end,
management investment company registered under the Investment Company Act of
1940, as amended (the "Act"), duly organized and existing under the laws of the
State of Delaware, and InCap Service Company ("InCap"), a corporation duly
organized under the laws of the State of Maryland (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, the Fund is authorized by its Indenture of Trust and By- Laws to
issue separate series of shares representing interests in separate investment
portfolios which are identified on Schedule "C" attached hereto and which
Schedule "C" may be amended from time to time by mutual agreement of the Fund
and InCap; and
WHEREAS, the Parties desire to enter into an agreement whereby InCap will
provide the services to the Fund as specified herein and set forth in
particular in Schedule "A" which is attached hereto and made a part hereof.
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, and in exchange of good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the Parties hereto,
intending to be legally bound, do hereby agree as follows:
GENERAL PROVISIONS
SECTION 1. APPOINTMENT. The Fund hereby appoints InCap as servicing agent
and InCap hereby accepts such appointment. In order that InCap may perform its
duties under the terms of this Agreement, the Board of Trustees of the Fund
shall direct the officers, investment adviser, legal counsel, independent
accountants and custodian of the Fund to cooperate fully with InCap and, upon
request of InCap, to provide such information, documents and advice relating to
the Fund which InCap requires to execute its responsibilities hereunder. In
connection with its duties, InCap shall be entitled to rely, and will be held
harmless by the Fund when acting in reasonable reliance, upon any instruction,
advice or document relating to the Fund as provided to InCap by any of the
aforementioned persons on behalf of the Fund. All fees charged by any such
persons acting on behalf of the Fund will be deemed an expense of the Fund.
Any services performed by InCap under this Agreement will conform to the
requirements of:
(a) the provisions of the Act and the Securities Act of 1933, as amended,
and any rules or regulations in force thereunder;
(b) any other applicable provision of state and federal law;
(c) the provisions of the Indenture of Trust and the By-Laws as amended
from time to time and delivered to InCap;
(d) any policies and determinations of the Board of Trustees of the Fund
which are communicated to InCap; and
(e) the policies of the Fund as reflected in the Fund's registration
statement as filed with the U.S. Securities and Exchange Commission.
Nothing in this Agreement will prevent InCap or any officer thereof from
providing the same or comparable services for or with any other person, trust,
firm or corporation. While the services supplied to the Fund may be different
than those supplied to other persons, trusts, firms or corporations, InCap will
provide the Fund equitable treatment in supplying services. The Fund recognizes
that it will not receive preferential treatment from InCap as compared with the
treatment provided to other InCap clients.
SECTION 2. DUTIES AND OBLIGATIONS OF INCAP.
Subject to the provisions of this Agreement, InCap will provide to the Fund
the specific services as set forth in Schedule "A" attached hereto.
SECTION 3. DEFINITIONS. For purposes of this Agreement:
"Certificate" will mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement. To be effective, such
Certificate shall be given to and received by the custodian and shall be signed
on behalf of the Fund by any two of its designated officers, and the term
Certificate shall also include instructions communicated to the custodian by
InCap.
"Custodian" will refer to that agent which provides safekeeping of the
assets of the Fund.
"Instructions" will mean communications containing instructions transmitted
by electronic or telecommunications media including, but not limited to,
Industry Standardization for Institutional Trade Communications,
computer-to-computer interface, dedicated transmission line, facsimile
transmission (which may be signed by an officer or unsigned) and tested telex.
"Oral Instruction" will mean an authorization, instruction, approval, item
or set of data, or information of any kind transmitted to InCap in person or by
telephone, telegram, telecopy or other mechanical or documentary means lacking
original signature, by a person or persons reasonably identified to InCap to be
a person or persons so authorized by a resolution of the Board of Trustees of
the Fund to give Oral Instructions to InCap on behalf of the Fund.
"Shareholders" will mean the registered owners of the shares of the Fund in
accordance with the share registry records maintained by InCap for the Fund.
"Shares" will mean the issued and outstanding shares of the Fund.
"Signature Guarantee" will mean the guarantee of signatures by an "eligible
guarantor institution" as defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Eligible
guarantor institutions include banks, brokers, dealers, credit unions, national
securities exchanges, registered securities associations, clearing agencies and
savings associations. Broker-dealers guaranteeing signatures must be members of
a clearing corporation or maintain net capital of at least $100,000. Signature
guarantees will be accepted from any eligible guarantor institution which
participates in a signature guarantee program.
"Written Instruction" will mean an authorization, instruction, approval,
item or set of data or information of any kind transmitted to InCap in an
original writing containing an original signature or a copy of such document
transmitted by telecopy including transmission of such signature reasonably
identified to InCap to be the signature of a person or persons so authorized by
a resolution of the Board of Trustees of the Fund, or so identified by the Fund
to give Written Instructions to InCap on behalf of the Fund.
CONCERNING ORAL AND WRITTEN INSTRUCTIONS For all purposes under this
Agreement, InCap is authorized to act upon receipt of the first of any
Written or Oral Instruction it receives from the Fund or its agents. In
cases where the first instruction is an Oral Instruction that is not in
the form of a document or written record, a confirmatory Written
Instruction or Oral Instruction in the form of a document or written
record shall be delivered promptly. In cases where InCap receives an
Instruction, whether Written or Oral, to enter a portfolio transaction
onto the Fund's records, the Fund shall cause the broker/dealer executing
such transaction to send a written confirmation to the Custodian.
InCap shall be entitled to rely on the first Instruction received from the
Fund or its' authorized agents, whether Oral or otherwise. For any act or
omission undertaken by InCap in compliance therewith, it shall be free of
liability and fully indemnified and held harmless by the Fund, provided
however, that in the event any Instruction received by InCap is
countermanded by a subsequent Written or Oral Instruction received prior
to acting upon such countermanded Instruction, InCap shall act upon such
subsequent Written or Oral Instruction. The sole obligation of InCap with
respect to any follow-up or confirmatory Written Instruction or Oral
Instruction in documentary or written form shall be to make reasonable
efforts to detect any discrepancy between the original Instruction and
such follow-up or confirmatory Written or Oral Instruction, and to report
such discrepancy to the Fund. The Fund shall be responsible and bear the
expense of its taking any action, including any reprocessing, necessary to
correct any discrepancy or error. To the extent such action requires InCap
to act, the Fund shall give InCap specific Written Instruction as to the
action required.
The Fund will file with InCap a certified copy of each resolution of the
Fund's Board of Trustees authorizing execution of Written Instructions or
the transmittal of Oral Instructions as provided above.
SECTION 4. INDEMNIFICATION.
(a) InCap, its officers, employees, shareholders, and agents will be liable
for any loss suffered by the Fund resulting from the willful misfeasance, bad
faith, gross negligence or reckless disregard on the part of InCap in the
performance of its obligations and duties under this Agreement.
(b) Any director, officer, employee, shareholder or agent of InCap, who
may be or become an officer, trustee, employee or agent of the Fund, will be
deemed, when rendering services to the Fund, or acting on any business of the
Fund (other than services or business in connection with InCap' duties
hereunder), to be rendering such services to or acting solely for the Fund and
not as a director, officer, employee, shareholder or agent of, or under the
control or direction of InCap even though such person may be receiving
compensation from InCap.
(c) The Fund agrees to indemnify and hold InCap harmless, together with its
officers, employees, shareholders and agents 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 InCap may sustain or incur or which may be
asserted against InCap by any person by reason of, or as a result of:
(i) any action taken or omitted to be taken by InCap except claims,
demands, expenses and liabilities arising from willful misfeasance, bad faith,
negligence or reckless disregard on the part of InCap in the performance of its
obligations and duties under this Agreement; or
(ii) any action taken or omitted to be taken by InCap in reliance
upon any Certificate, instrument, order or stock certificate or other document
reasonably believed by InCap to be genuine and signed, countersigned or executed
by any duly authorized person, upon the Oral Instructions or Written
Instructions of an authorized person of the Fund, or upon the written opinion of
legal counsel for the Fund or InCap; or
(iii) the offer or sale of shares of the Fund to any person, natural
or otherwise, which is in violation of any state or federal law.
If a claim is made against InCap as to which InCap may seek indemnity under
this Section, InCap will notify the Fund promptly after receipt of any written
assertion of such claim threatening to institute an action or proceeding with
respect thereto and will notify the Fund promptly of any action commenced
against InCap within ten (10) days after InCap has been served with a summons or
other legal process. Failure to notify the Fund will not, however, relieve the
Fund from any liability which it may have on account of the indemnity under this
Section so long as the Fund has not been prejudiced in any material respect by
such failure.
The Fund and InCap will cooperate in the control of the defense of any
action, suit or proceeding in which InCap is involved and for which indemnity is
being provided by the Fund to InCap. The Fund may negotiate the settlement of
any action, suit or proceeding subject to InCap's approval, which will not be
unreasonably withheld. InCap reserves the right, but not the obligation, to
participate in the defense or settlement of a claim, action or proceeding with
its own counsel. Costs or expenses incurred by InCap in connection with, or as a
result of such participation, will be borne solely by the Fund if:
(i) InCap has received an opinion of counsel from counsel to the Fund
stating that the use of counsel to the Fund by InCap would present an
impermissible conflict of interest;
(ii) the defendants in, or targets of, any such action or proceeding
include both InCap and the Fund, and legal counsel to InCap has reasonably
concluded that there are legal defenses available to it which are different from
or additional to those available to the Fund or which may be adverse to or
inconsistent with defenses available to the Fund (in which case the Fund will
not have the right to direct the defense of such action on behalf of InCap); or
(iii) the Fund authorizes InCap to employ separate counsel at the
expense of the Fund.
(d) The terms of this Section will survive the termination of this
Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
(a) InCap represents and warrants that:
(i) it is a corporation duly organized and existing and in good
standing under the laws of Maryland;
(ii) it is empowered under applicable laws and by its Certificate of
Incorporation and By-Laws to enter into and perform this Agreement;
(iii) all requisite corporate proceedings have been taken to authorize
InCap to enter into and perform this Agreement;
(iv) it has and will continue to have access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(v) no legal or administrative proceedings have been instituted or
threatened which would impair InCap's ability to perform its duties and
obligations under this Agreement;
(vi) its entrance into this Agreement shall not cause a material breach
or be in material conflict with any other agreement or obligation of InCap or
any law or regulation applicable to it;
(vii) it is registered as a transfer agent under Section 17A(c)(2) of
the Exchange Act;
(viii) this Agreement has been duly authorized by InCap and, when
executed and delivered, will constitute a valid, legal and binding obligation of
InCap, enforceable in accordance with its terms.
(b) The Fund represents and warrants that:
(i) it is a trust duly organized and existing and in good standing
under the laws of the State of Delaware;
(ii) it is empowered under applicable laws and by its Indenture of
Trust and By-Laws to enter into and perform this Agreement;
(iii) all requisite proceedings have been taken to authorize the Fund
to enter into and perform this Agreement;
(iv) no legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform its duties and
obligations under this Agreement;
(v) the Fund's entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or obligations of the
Fund, or any law or regulation applicable to either;
(vi) the Shares are properly registered or otherwise authorized for
issuance and sale;
(vii) this Agreement has been duly authorized by the Fund and, when
executed and delivered, will constitute a valid, legal and binding obligation of
the Fund, enforceable in accordance with its terms.
(c) Delivery of Documents
The Fund will furnish or cause to be furnished to InCap the
following documents;
(i) current Prospectus and Statement of Additional Information for each
portfolio attached hereto as may be amended from time to time;
(ii) most recent Annual Report;
(iii) most recent Semi-Annual Report for registered investment
companies on Form N-SAR;
(iv) certified copies of resolutions of the Fund's Board of Trustees
authorizing the execution of Written Instructions or the transmittal of Oral
Instructions and those persons authorized to give those Instructions.
(d) Record Keeping and Other Information
InCap will create and maintain all records required of it pursuant to its
duties hereunder and as set forth in Schedule "A" in accordance with all
applicable laws, rules and regulations, including records required by Section
31(a) of the Act. All such records will be the property of the Fund and will be
available during regular business hours for inspection, copying and use by the
Fund. Where applicable, such records will be maintained by InCap for the periods
and in the places required by Rule 31a-2 under the Act. Upon termination of this
Agreement, InCap will deliver all such records to the Fund or such person as the
Fund may designate.
In case of any request or demand for the inspection of the Share records of
the Fund, InCap shall notify the Fund and secure instructions as to permitting
or refusing such inspection. InCap may, however, exhibit such records to any
person in any case where it is advised by its counsel that it may be held liable
for failure to do so.
SECTION 6. COMPENSATION. The Fund agrees to pay InCap compensation for its
services, and to reimburse it for expenses at the rates, times, manner and
amounts as set forth in Schedule "B" attached hereto and incorporated herein by
reference and as will be set forth in any amendments to such Schedule "B" agreed
upon in writing by the Parties. Upon receipt and approval of an invoice
therefor, InCap is authorized to collect such fees by debiting the Fund's
custody account. The Fund will approve or contest any invoice sent by InCap
within five (5) days of receipt. Disputed amounts shall not be deducted from the
Fund's custody account until the dispute is resolved. In addition, the Fund
agrees to reimburse InCap for any reasonable and ordinary out-of-pocket expenses
paid by InCap on behalf of the Fund within five (5) calendar days of the Fund's
receipt of an invoice therefor.
For the purpose of determining fees payable to InCap, the value of the
Fund's net assets will be computed at the times and in the manner specified in
the Fund's Prospectus and Statement of Additional Information then in effect.
During the term of this Agreement, should the Fund seek services or
functions in addition to those outlined below or in Schedule "A" attached
hereto, a written amendment to this Agreement specifying the additional services
and corresponding compensation will be executed by the Parties.
In the event that the Fund is more than thirty (30) days delinquent in its
payments of monthly xxxxxxxx in connection with this Agreement (with the
exception of specific amounts which may be contested in good faith by the Fund),
this Agreement may be terminated upon thirty (30) days' written notice to the
Fund by InCap. The Fund must notify InCap in writing of any contested amounts
within five (5) days of receipt of a billing for such amounts. Disputed amounts
are not due and payable while they are being disputed.
SECTION 7. DAYS OF OPERATION. Nothing contained in this Agreement is
intended to or will require InCap, in any capacity hereunder, to perform any
functions or duties on any holiday, day of special observance or any other day
on which the New York Stock Exchange ("NYSE") is closed. Functions or duties
normally scheduled to be performed on such days will be performed on and as of
the next succeeding business day on which the NYSE is open. Notwithstanding the
foregoing, InCap will compute the net asset value of the Fund on each day
required pursuant to Rule 22c-1 promulgated under the Act.
SECTION 8. ACTS OF GOD, ETC. InCap will not be liable or responsible for
delays or errors caused by acts of God or by reason of circumstances beyond its
control including, acts of civil or military authority, national emergencies,
labor difficulties, mechanical breakdown, insurrection, war, riots, or failure
or unavailability of transportation, communication or power supply, fire, flood
or other catastrophe.
In the event of equipment failures beyond InCap' control, InCap will, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions but will have no liability with respect thereto. The foregoing
obligation will not extend to computer terminals located outside of premises
maintained by InCap. InCap has entered into and maintains in effect agreements
making reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
SECTION 9. INSPECTION AND OWNERSHIP OF RECORDS. In the event of a request
or demand for the inspection of the records of the Fund, InCap will use its best
efforts to notify the Fund and to secure instructions as to permitting or
refusing such inspection. InCap may, however, make such records available for
inspection to any person in any case where it is advised in writing by its
counsel that it may be held liable for failure to do so after notice to the
Fund.
InCap recognizes that the records it maintains for the Fund are the
property of the Fund and will be surrendered to the Fund upon written notice to
InCap as outlined under Section 10(c) below. The Fund is responsible for the
payment in advance of any fees owed to InCap. InCap agrees to maintain the
records and all other information of the Fund in a confidential manner and will
not use such information for any purpose other than the performance of InCap'
duties under this Agreement.
SECTION 10. DURATION AND TERMINATION.
(a) The initial term of this Agreement will be for the period of two (2)
years, commencing on the date hereinabove first written (the "Effective Date")
and will continue thereafter subject to termination by either Party as set forth
in subsection (c) below.
(b) The fee schedules set forth in Schedule "B" attached hereto will be
fixed for the initial term commencing on the Effective Date of this Agreement
and will continue thereafter subject to their review and any adjustment.
(c) After the initial term of this Agreement, a Party may give written
notice to the other (the day on which the notice is received by the Party
against which the notice is made shall be the "Notice Date") of a date on which
this Agreement shall be terminated ("Termination Date"). The Termination Date
shall be set on a day not less than ninety (90) days after the Notice Date. The
period of time between the Notice Date and the Termination Date is hereby
identified as the "Notice Period". Any time up to, but not later than fifteen
(15) days prior to the Termination Date, the Fund will pay to InCap such
compensation as may be due as of the Termination Date and will likewise
reimburse InCap for any out-of-pocket expenses and disbursements reasonably
incurred or expected to by incurred by InCap up to and including the Termination
Date.
(d) In connection with the termination of this Agreement, if a successor to
any of InCap' duties or responsibilities under this Agreement is designated by
the Fund by written notice to InCap, InCap will promptly, on the Termination
Date and upon receipt by InCap of any payments owed to it as set forth in
Section 10(c) above, transfer to the successor, at the Fund's expense, all
records which belong to the Fund and will provide appropriate, reasonable and
professional cooperation in transferring such records to the named successor.
(e) Should the Fund desire to move any of the services outlined in this
Agreement to a successor service provider prior to the Termination Date, InCap
shall make a good faith effort to facilitate the conversion on such prior date,
however, there can be no guarantee that InCap will be able to facilitate a
conversion of services prior to the end of the Notice Period. Should services be
converted to a successor service provider prior to the end of the Notice Period,
or if the Fund is liquidated or its assets merged or purchased or the like with
another entity, payment of fees to InCap shall be accelerated to a date prior to
the conversion or termination of services and calculated as if the services had
remained at InCap until the expiration of the Notice Period and shall be
calculated at the asset levels on the Notice Date.
(f) Notwithstanding any other provisions of Paragraph 10, and after the
passage of one (1) year from the effective date of this Agreement; in the event
the Fund deregisters as an Investment Company with the United States Securities
and Exchange Commission ("SEC"), this Agreement may be terminated by the Fund
upon ninety (90) days written notice to InCap. The Termination Date shall be
ninety (90) days after the receipt of such notice by InCap. Any time up to, but
not later than fifteen (15) days prior to the Termination Date, the Fund will
pay to InCap such compensation as may be due as of the Termination Date and will
likewise reimburse InCap for any out- of- pocket expenses and disbursements
reasonably incurred or expected to be incurred by InCap up to and including the
Termination Date.
(g) Notwithstanding the foregoing, this Agreement may be terminated at any
time by either Party in the event of a material breach by the other Party
involving gross negligence, willful misfeasance, bad faith or a reckless
disregard of its obligations and duties under this Agreement provided that such
breach shall have remained unremedied for sixty (60) days or more after receipt
of written specification thereof.
SECTION 11. RIGHTS OF OWNERSHIP. All computer programs and procedures
developed to perform services required to be provided by InCap under this
Agreement are the property of InCap. All records and other data except such
computer programs and procedures are the exclusive property of the Fund and all
such other records and data will be furnished to the Fund in appropriate form as
soon as practicable after termination of this Agreement for any reason.
SECTION 12. AMENDMENTS TO DOCUMENTS. The Fund will furnish InCap written
copies of any amendments to, or changes in, the Indenture of Trust, By-Laws,
Prospectus or Statement of Additional Information in a reasonable time prior to
such amendments or changes becoming effective. In addition, the Fund agrees that
no amendments will be made to the Prospectus or Statement of Additional
Information of the Fund which might have the effect of changing the procedures
employed by InCap in providing the services agreed to hereunder or which
amendment might affect the duties of InCap hereunder unless the Fund first
obtains InCap' approval of such amendments or changes.
SECTION 13. CONFIDENTIALITY. Both Parties hereto agree that any non-public
information obtained hereunder concerning the other Party is confidential and
may not be disclosed to any other person without the consent of the other Party,
except as may be required by applicable law or at the request of the U.S.
Securities and Exchange Commission or other governmental agency. InCap agrees
that it will not use any non-public information for any purpose other than
performance of its duties or obligations hereunder. The obligations of the
Parties under this Section will survive the termination of this Agreement. The
Parties further agree that a breach of this Section would irreparably damage the
other Party and accordingly agree that each of them is entitled, without bond or
other security, to an injunction or injunctions to prevent breaches of this
provision.
SECTION 14. NOTICES. Except as otherwise provided in this Agreement, any
notice or other communication required by or permitted to be given in connection
with this Agreement will be in writing and will be delivered in person or sent
by first class mail, postage prepaid or by prepaid overnight delivery service to
the respective parties as follows:
IF TO THE FUND: IF TO INCAP:
--------------- ------------
Memorial Funds InCap Service Company.
0000 Xxx Xxxxxx, Xxxxx 000 000 Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxx Attention: Xxxxxxx X. Xxxxx
President President
SECTION 15. AMENDMENT. No provision of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by the Parties. This Agreement may be amended from time to time by
supplemental agreement executed by the Parties and the compensation stated in
Schedule "B" attached hereto may be adjusted accordingly as mutually agreed
upon.
SECTION 16. AUTHORIZATION. The Parties represent and warrant to each other
that the execution and delivery of this Agreement by the undersigned officer of
each Party has been duly and validly authorized; and when duly executed, this
Agreement will constitute a valid and legally binding enforceable obligation of
each Party.
SECTION 17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which when so executed will be deemed to be an original,
but such counterparts will together constitute but one and the same instrument.
SECTION 18. ASSIGNMENT. This Agreement will extend to and be binding upon
the Parties hereto and their respective successors and assigns; provided,
however, that this Agreement will not be assignable by the Fund without the
written consent of InCap or by InCap without the written consent of the Fund
which consent must be authorized or approved by a resolution by its respective
Boards of Trustees prior to such assignment.
SECTION 19. GOVERNING LAW. This Agreement will be governed by the laws of
the State of Pennsylvania and the exclusive venue of any action arising under
this Agreement will be Xxxxxxxxxx County, Commonwealth of Pennsylvania.
SECTION 20. SEVERABILITY. If any part, term or provision of this Agreement
is held by any court to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions will be considered severable and not
be affected and the rights and obligations of the parties will be construed and
enforced as if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid, provided that the basic agreement is
not thereby materially impaired.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
consisting of twenty (20) typewritten pages, together with Schedules "A," "B"
and "C" (Pages 21- 28, attached), to be signed by their duly authorized officers
as of the day and year first above written.
Memorial Funds InCap Service Company
/s/ Xxxxxxxxxxx X. Xxxx /s/ Xxxxxxx X. Xxxxx
------------------------ ---------------------
By: Xxxxxxxxxxx X. Xxxx By: Xxxxxxx X. Xxxxx
President President
SCHEDULE A
ACCOUNTING SERVICES PROVIDED BY INCAP SERVICE COMPANY
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o Journalize each Portfolio's investment, capital share and income and
expense activities.
o Verify investment buy/sell trade tickets when received from the advisor
and transmit trades to the Fund's custodian for proper settlement.
o Maintain individual ledgers for investment securities.
o Maintain historical tax lots for each security.
o Reconcile cash and investment balances of each Portfolio with the
custodian, and provide the advisor with the beginning cash balance
available for investment purposes.
o Update the cash availability throughout the day as required by the
advisor.
o Post to and prepare each Portfolio's Statement of Assets and Liabilities
and Statement of Operations.
o Calculate expenses payable pursuant to the Fund's various contractual
obligations.
o Control all disbursements from the Fund on behalf of each Portfolio and
authorize such disbursements upon instructions of the Fund.
o Calculate capital gains and losses.
o Determine each Portfolio's net income.
o At the Portfolio's expense, obtain security market prices or if such
market prices are not readily available, then obtain such prices from
services approved by the advisor, and in either case calculate the market
or fair value of each Portfolio's investments.
o Where applicable, calculate the amortized cost value of debt instruments.
o Transmit or mail a copy of the portfolio valuations to the advisor.
o Compute the net asset value of each Portfolio.
o Report applicable net asset value and performance data to performance
tracking organizations.
o Compute each Portfolio's yields, total returns, expense ratios and
portfolio turnover rate.
o Prepare and monitor the expense accruals and notify Fund management of any
proposed adjustments.
o Prepare monthly financial statements, which will include, without
limitation, the Schedule of Investments, the Statement of Assets and
Liabilities, the Statement of Operations, the Statement of Changes in Net
Assets, the Cash Statement, and the Schedule of Capital Gains and Losses.
o Prepare monthly security transactions listings.
o Prepare monthly broker security transactions summaries.
o Supply various Fund and Portfolio statistical data as requested on an
ongoing basis.
o Assist in the preparation of support schedules necessary for completion of
Federal and state tax returns.
o Assist in the preparation and filing of the Fund's annual and semiannual
reports with the SEC on Form N-SAR.
o Assist in the preparation and filing of the Fund's annual and semiannual
reports to shareholders and proxy statements.
o Assist with the preparation of amendments to the Fund's Registration
Statements on From N-1A and other filings relating to the registration of
shares.
o Monitor each Portfolio's status as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended from time to
time ("Code").
o Determine the amount of dividends and other distributions payable to
shareholders as necessary to, among other things, maintain the
qualification as a regulated investment company of each Portfolio of the
Fund under the Code.
o Provide other accounting services as may be agreed upon from time to time
in writing by the Fund and InCap.
ADMINISTRATIVE SERVICES PROVIDED BY INCAP SERVICE COMPANY
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o Provide overall day-to-day Fund administrative management, including
coordination of investment advisor, custodian, transfer agency,
distribution and pricing and accounting services.
o Preparation of filing of all Federal and State reports including:
- Fund's post-effective amendments under the Securities Act of 1933 and
the Investment Company Act of 1940.
- Form N-SAR - Semi-Annual report for Registered Investment Companies.
- The Fund's Annual and Semi-Annual Report.
- Rule 24f-2 Notice - filing regarding sale(s) of securities.
- Rule 17g-1 filing with the SEC regarding Fidelity Bond coverage.
- Ongoing monitoring and filing of State Blue Sky registrations.
o Prepare and file such reports, applications and documents as may be
necessary or desirable to register the Fund's shares with the Federal and
state securities authorities, and monitor the sale of Fund shares for
compliance with Federal and state securities laws.
o Prepare and file reports to shareholders, including the annual report to
shareholders, and coordinate mailing Prospectuses, notices, proxy
statements, proxies and other reports to shareholders.
o Assist with layout and printing of shareholder communications, including
Prospectuses and reports to shareholders.
o Administer contracts on behalf of the Fund with, among others, the Fund's
investment advisor, custodian, transfer agent/shareholder servicing agent,
distributor, and accounting services agent.
o Prepare and maintain materials for trustees/management meetings including,
agendas, minutes, attendance records and minute books.
o Coordinate shareholder meetings, including assisting Fund counsel in
preparation of proxy materials, preparation of minutes and tabulation of
results.
o Monitor and pay Fund bills, maintain Fund budget and report budget expenses
and variances to Fund management.
o Monitor the Fund's compliance with the investment restrictions and
limitations imposed by the 1940 Act and state Blue Sky laws and applicable
regulations thereunder, the fundamental and non-fundamental investment
policies and limitations set forth in the Fund's Prospectuses and Statement
of Additional Information, and the investment restrictions and limitations
necessary for each Portfolio of the Fund to qualify as a regulated
investment company under Subchapter M of the Internal Revenue Code of 1986,
as amended, or any successor statute.
o Prepare and distribute to appropriate parties notices announcing the InCap
of dividends and other distributions to shareholders.
o Provide other administrative services as may be agreed from time to time in
writing by the Fund or Administrator.
TRANSFER AGENT, SHAREHOLDER SERVICING AGENT AND DIVIDEND DISBURSING AGENT
SERVICES PROVIDED BY INCAP SERVICE COMPANY
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o Examine and process new accounts, subsequent payments, liquidations,
exchanges, transfers, telephone transactions, check redemptions automatic
withdrawals, and wire order trades.
o Reinvest or pay dividends and make other distributions.
o Answer investor and dealer telephone and/or written inquiries, except as
otherwise agreed by the Transfer Agent and the Fund.
o Process and confirm address changes.
o Process standard account record changes as required, i.e. Dividend Codes,
etc.
o Microfilm and/or store source documents for transactions, such as account
applications and correspondence.
o Perform backup withholding for those accounts in accordance with Federal
regulations.
o Solicit missing taxpayer identification numbers.
o Provide remote access inquiry to Fund records via Fund supplied hardware
(fund responsible for connection line and monthly fee).
o Maintain the following shareholder information in such a manner as the
Transfer Agent shall determine:
- Name and address, including zip code.
- Balance of Shares.
- Number of Shares, issuance date of each share outstanding and
cancellation date of each share no longer outstanding, if issued.
- Balance of dollars available for redemption.
- Dividend code (daily accrual, monthly reinvest, monthly cash or
quarterly cash).
- Type of account code.
- Establishment date indicating the date an account was opened, carrying
forward pre-conversion data as available.
- Original establishment date for accounts opened by exchange.
- W-9 withholding status and periodic reporting.
- State of residence code.
- Social security or taxpayer identification number, and indication of
certification.
- Historical transactions on the account for the most recent 18 months,
or other period as mutually agreed to from time to time.
- Indication as to whether phone transaction can be accepted for this
account. Beneficial owner code, i.e. male, female, joint tenant, etc.
o Provide the following reports and statements:
- Prepare daily journals for Fund reflecting all shares and dollar
activity for the previous day.
- Supply information monthly for Fund's preparation of Blue Sky
reporting.
- Supply monthly purchase, redemption and liquidation information for
use in Fund's N-SAR report.
- Provide monthly average daily balance reports for the Fund.
- Prepare and mail copies of summary statements to dealers and
investment advisors.
- Mail transaction confirmation statements daily to investors.
- Address and mail four periodic financial reports (material must be
adaptable to Transfer Agent's mechanical equipment as reasonably
specified by the Transfer Agent).
- Mail periodic statement to investors.
- Compute, prepare and furnish all necessary reports to governmental
authorities: Forms 1099R, 1099DIV, 1099B, 1042 and 1042S.
- Enclose various marketing material as designated by the Fund in
statement mailings, i.e. monthly and quarterly statements (material
must be adaptable to mechanical equipment as reasonably specified by
the Transfer Agent).
o Prepare and mail confirmation statements to dealers daily.
o Prepare certified list of stockholders for proxy mailing.
SCHEDULE B
Compensation Schedule for Services Provided by InCap Service Company
AGGREGATE ASSETS ALL PORTFOLIOS
0.20% on first $25 million of average annual assets
0.15% on next $25 million of average annual assets
0.10% on next $50 million of average annual assets
0.075% on next $300 million of average annual assets
0.03% thereafter
MINIMUM ANNUAL FEES:
--------------------
Year one (1) $ 60,000
Thereafter 71,000
PLUS:
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$ 12.00 per Shareholder Account on Transfer Agent System
Plus out-of-pocket expenses to include, BUT NOT LIMITED TO: wire fees, check
processing charges, bank service charges, printing, copying, postage, courier,
account statement/ confirmation (including programming costs for specialized
statements/ confirmations), portfolio price quotation service, corporate action
services, asset allocation charges, travel, telephone, communication link
charges, registration fees, and other standard miscellaneous items.
ADDITIONAL CLASSES OF SHARES PER PORTFOLIO
Each category of fee ( including annual minimums) increases by 50% for the
second class of shares per portfolio, and by 25% for each additional class of
shares per portfolio.
SCHEDULE C
Memorial Funds
Portfolios covered by this Agreement:
Government Bond Fund
Corporate Bond Fund
Growth Equity Fund
Value Equity Fund
04014.0001 #319885
