MUTUAL FUND SERVICES AGREEMENT
THIS AGREEMENT is made as of this 1st day of February, 2005, by and between
THE BERWYN FUNDS (the "Trust"), a Delaware business trust, and ULTIMUS FUND
SOLUTIONS, LLC ("Ultimus"), a limited liability company organized under the laws
of the State of Ohio and having its principal place of business at 000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires that Ultimus provide certain mutual fund
services for each series of the Trust, listed on Schedule A attached hereto and
made part of this Agreement, as such Schedule A may be amended from time to time
(individually referred to herein as the "Portfolio" and collectively as the
"Portfolios"); and
WHEREAS, Ultimus is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF ULTIMUS.
The Trust hereby retains Ultimus to act as the administrator, fund
accountant and transfer agent of the Trust and to furnish the Trust with the
services as set forth below. Ultimus hereby accepts such employment to perform
such duties.
2. ADMINISTRATION SERVICES.
Ultimus shall provide the Trust with regulatory reporting services; shall
provide all necessary office space, equipment, personnel, compensation and
facilities for handling the affairs of the Trust; and shall provide such other
services as the Trust may request that Ultimus perform consistent with its
obligations under this Agreement. Without limiting the generality of the
foregoing, Ultimus shall:
(a) calculate Trust expenses and administer all disbursements for the
Trust, and as appropriate, compute the Trust's yields, total return,
expense ratios and portfolio turnover rate;
(b) prepare and coordinate, in consultation with Trust counsel, the
preparation of prospectuses, statements of additional information,
registration statements and proxy materials;
(c) prepare such reports, notice filing forms and other documents
(including reports regarding the sale and redemption of shares of the
Trust as may be required in order to comply with federal and state
securities law) as may be necessary or desirable to make notice
filings relating to the Trust's shares with state securities
authorities, monitor the sale of Trust shares for compliance with
state securities laws, and file with the appropriate state securities
authorities the compliance
filings as may be necessary or convenient to enable the Trust to make
a continuous offering of its shares;
(d) develop and prepare, with the assistance of the Trust's investment
adviser, communications to shareholders, including the annual report
to shareholders, coordinate the mailing of prospectuses, notices,
proxy statements, proxies and other reports to Trust shareholders, and
supervise and facilitate the proxy solicitation process for all
shareholder meetings, including the tabulation of shareholder votes;
(e) administer contracts on behalf of the Trust with, among others, the
Trust's investment adviser, distributor and custodian;
(f) calculate performance data of the Trust for dissemination to
information services covering the investment company industry;
(g) prepare and file all of the Trust's tax returns and prepare and mail
annual Forms 1099, Forms W-2P and Forms 5498 to shareholders, with a
copy to the Internal Revenue Service;
(h) assist with the layout and printing of prospectuses and supplements
thereto, and assist with and coordinate layout and printing of the
Trust's semi-annual and annual reports to shareholders;
(i) provide individuals reasonably acceptable to the Trust's Trustees to
serve as officers of the Trust, who will be responsible for the
management of certain of the Trust's affairs as determined by the
Trustees;
(j) advise the Trust and its Trustees on matters concerning the Trust and
its affairs, including making recommendations regarding dividends and
distributions;
(k) obtain and keep in effect on behalf of the Trust fidelity bonds and
directors and officers/errors and omissions insurance policies for the
Trust in accordance with the requirements of the 1940 Act and as such
bonds and policies are approved by the Trustees;
(l) monitor and advise the Trust and its Portfolios on their registered
investment company status under the Internal Revenue Code of 1986;
(m) monitor and advise the Trust and its Portfolios on compliance with
applicable limitations as imposed by the 1940 Act and the rules and
regulations thereunder or set forth in the Trust's or any Portfolio's
then current Prospectus or Statement of Additional Information;
(n) provide such internal legal services as are requested by the Trust
including, but not limited to, the coordination of meetings and
preparation of materials for the quarterly and special meetings of the
Trustees and meetings of the Trust's shareholders;
2
(o) cooperate with, and take all reasonable actions in the performance of
its duties under this Agreement to ensure that all necessary
information is made available to, the Trust's independent public
accountants in connection with the preparation of any audit or report
requested by the Trust;
(p) cooperate with, and take all reasonable actions in the performance of
its duties under this Agreement to ensure that the necessary
information is made available to the Securities and Exchange
Commission (the "SEC") or any other regulatory authority in connection
with any regulatory audit of the Trust or the investment adviser of
the Trust;
(q) perform all administrative services and functions of the Trust to the
extent administrative services and functions are not provided to the
Trust by other agents of the Trust;
(r) prepare and file with the SEC the semi-annual report for the Trust on
Form N-SAR and all required notices pursuant to Rule 24f-2 under the
1940 Act; and
(s) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Trust as the Trust and Ultimus shall
determine desirable.
3. FUND ACCOUNTING SERVICES
Ultimus will provide the Trust with the fund accounting services as set
forth below:
(a) MAINTENANCE OF BOOKS AND RECORDS.
Ultimus shall maintain and keep current the accounts, books, records
and other documents relating to the Trust's financial and portfolio
transactions as may be required by the rules and regulations of the
SEC adopted under Section 31(a) of the 1940 Act. Ultimus shall cause
the subject records of the Trust to be maintained and preserved
pursuant to the requirements of the 1940 Act.
(b) PERFORMANCE OF DAILY ACCOUNTING SERVICES.
In addition to the maintenance of the books and records specified
above, Ultimus shall perform the following accounting services daily
for each Portfolio:
(i) Calculate the net asset value per share utilizing prices
obtained from the sources described in subsection 1(b)(ii)
below;
(ii) Obtain security prices from independent pricing services, or
if such quotes are unavailable, then obtain such prices from
each Portfolio's investment adviser or its designee, as
approved by the Trust's Board of Trustees (hereafter
referred to as "Trustees");
(iii)Verify and reconcile with the Portfolios' custodian all
daily trade activity;
(iv) Compute, as appropriate, each Portfolio's net income and
capital gains, dividend payables, dividend factors, yields,
and weighted average portfolio maturity;
(v) Review daily the net asset value calculation and dividend
factor (if any) for each Portfolio prior to release to
shareholders, check
3
and confirm the net asset values and dividend factors for
reasonableness and deviations, and distribute net asset
values and yields to NASDAQ;
(vi) Determine unrealized appreciation and depreciation on
securities held by the Portfolios;
(vii)Amortize premiums and accrete discounts on securities
purchased at a price other than face value, if requested by
the Trust;
(viii) Update fund accounting system to reflect rate changes, as
received from a Portfolio's investment adviser, on variable
interest rate instruments;
(ix) Post Portfolio transactions to appropriate categories;
(x) Accrue expenses of each Portfolio;
(xi) Determine the outstanding receivables and payables for all
(1) security trades, (2) Portfolio share transactions and
(3) income and expense accounts;
(xii)Provide accounting reports in connection with the Trust's
regular annual audit and other audits and examinations by
regulatory agencies; and
(xiii) Provide such periodic reports, as the parties shall agree
upon.
(c) SPECIAL REPORTS AND SERVICES.
(i) Ultimus may provide additional special reports upon the
request of the Trust or a Portfolio's investment adviser,
which may result in an additional charge, the amount of
which shall be agreed upon between the parties.
(ii) Ultimus may provide such other similar services with respect
to a Portfolio as may be reasonably requested by the Trust,
which may result in an additional charge, the amount of
which shall be agreed upon between the parties.
(d) ADDITIONAL ACCOUNTING SERVICES.
Ultimus shall also perform the following additional accounting
services for each Portfolio:
(i) Provide monthly (or as frequently as may reasonably be
requested by the Trust or a Portfolio's investment adviser)
a set of financial statements for each Portfolio as
described below, upon request of the Trust:
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Security Purchases and Sales Journals
Portfolio Holdings Reports
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise
tax returns;
4
(B) the Trust's semi-annual reports with the SEC on Form
N-SAR;
(C) the Trust's annual, semi-annual and quarterly (if any)
shareholder reports;
(D) registration statements on Form N-1A and other filings
relating to the registration of shares;
(E) Ultimus' monitoring of the Trust's status as a
regulated investment company under Subchapter M of the
Internal Revenue Code, as amended;
(F) annual audit by the Trust's auditors; and
(G) examinations performed by the SEC.
4. TRANSFER AGENT AND SHAREHOLDER SERVICES
Ultimus will provide the Trust with the transfer agent and shareholder
services as set forth below:
(a) Shareholder Transactions
(i) Process shareholder purchase and redemption orders in accordance
with conditions set forth in the Trust's prospectus.
(ii) Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions.
(iii)Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended (the "1934 Act").
(iv) Issue periodic statements for shareholders.
(v) Process transfers and exchanges.
(vi) Act as service agent and process dividend payments, including the
purchase of new shares, through dividend reimbursement.
(vii)Record the issuance of shares and maintain pursuant to SEC Rule
17Ad-10(e) of the 1934 Act a record of the total number of shares
of each Portfolio which are authorized, based upon data provided
to it by the Trust, and issued and outstanding.
(viii) Perform such services as required to comply with Rules 17a-24
and 17Ad-17 of the 1934 Act (the "Lost Shareholder Rules").
(ix) Administer and/or perform all other customary services of a
transfer agent.
(b) Shareholder Information Services
--------------------------------
(i) Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
5
(ii) Produce detailed history of transactions through duplicate or
special order statements upon request.
(iii)Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders.
(iv) Respond as appropriate to all inquiries and communications from
shareholders relating to shareholder accounts.
(c) Compliance Reporting
--------------------
(i) Provides reports to the SEC and the states in which the
Portfolios are registered.
(ii) Prepare and distribute appropriate Internal Revenue Service forms
for shareholder income and capital gains.
(iii) Issue tax withholding reports to the Internal Revenue Service.
(d) Dealer/Load Processing (if applicable)
-------------------------------------
(i) Provide reports for tracking rights of accumulation and purchases
made under a Letter of Intent.
(ii) Account for separation of shareholder investments from
transaction sale charges for purchase of Portfolio shares.
(iii)Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
(iv) Track sales and commission statistics by dealer and provide for
payment of commissions on direct shareholder purchases in a load
Portfolio.
(e) Shareholder Account Maintenance
-------------------------------
(i) Maintain all shareholder records for each account in each
Portfolio.
(ii) Issue customer statements on scheduled cycle, providing duplicate
second and third party copies if required.
(iii) Record shareholder account information changes.
(iv) Maintain account documentation files for each shareholder.
Ultimus shall perform such other services for the Trust that are mutually
agreed upon by the parties from time to time either at no additional fees or for
such reasonable and customary fees as are mutually agreed upon by the parties;
provided, however that the Trust may retain third parties to perform such other
services. Such services may include performing internal audit examination;
mailing the annual reports of the Portfolios; preparing an annual list of
shareholders; and mailing notices of shareholders' meetings, proxies and proxy
statements, for all of which the Trust will pay Ultimus' out-of-pocket expenses.
6
5. SUBCONTRACTING.
Ultimus may, at its expense and, upon approval by the Trust, subcontract
with any entity or person concerning the provision of the services contemplated
hereunder; provided, however, that Ultimus shall not be relieved of any of its
obligations under this Agreement by the appointment of such subcontractor and
provided further, that Ultimus shall be responsible, to the extent provided in
Section 11 hereof, for all acts of such subcontractor as if such acts were its
own.
6. ALLOCATION OF CHARGES AND EXPENSES.
Ultimus shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
Ultimus shall also pay all compensation, if any, of officers of the Trust who
are affiliated persons of Ultimus.
The Trust assumes and shall pay or cause to be paid all other expenses of
the Trust not otherwise allocated herein, including, without limitation,
organization costs, taxes, expenses for legal and auditing services, the
expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing shareholders, all expenses incurred in connection with
issuing and redeeming shares, the costs of custodial services, the cost of
initial and ongoing registration and/or qualification of the shares under
federal and state securities laws, fees and out-of-pocket expenses of Trustees
who are not affiliated persons of Ultimus or the investment adviser to the
Trust, insurance premiums, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Trust.
7. COMPENSATION OF ULTIMUS.
For the services to be rendered, the facilities furnished and the expenses
assumed by Ultimus pursuant to this Agreement, the Trust shall pay to Ultimus
compensation at an annual rate specified in Schedule B attached hereto, as such
Schedule may be amended from time to time by mutual agreement of the parties.
Such compensation shall be calculated and accrued daily, and paid to Ultimus
monthly.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Ultimus' compensation for that
part of the month in which this Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above. Payment
of Ultimus' compensation for the preceding month shall be made promptly.
8. REIMBURSEMENT OF EXPENSES
In addition to paying Ultimus the fees described in Schedule B attached
hereto, the Trust agrees to reimburse Ultimus for its reasonable out-of-pocket
expenses in providing services hereunder, including without limitation the
following:
(a) Reasonable travel and lodging expenses incurred by officers and
employees of Ultimus in connection with attendance at Board meetings
and shareholders' meetings;
7
(b) All freight and other delivery and bonding charges incurred by Ultimus
in delivering materials to and from the Trust;
(c) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by Ultimus in communication
with the Trust, the Trust's investment adviser or custodian, dealers
or others as required for Ultimus to perform the services to be
provided hereunder;
(d) The cost of obtaining security market quotes;
(e) The cost of microfilm, microfiche or other methods of storing records
or other materials;
(f) The cost of printing and generating confirmations, statements and
other documents and the cost of mailing such documents to shareholders
and others;
(g) All expenses incurred in connection with any custom programming or
systems modifications required to provide any special reports or
services requested by the Trust;
(h) Any expenses Ultimus shall incur at the written direction of an
officer of the Trust thereunto duly authorized other than an employee
or other affiliated person of Ultimus who may otherwise be named as an
authorized representative of the Trust for certain purposes; and
(i) Any additional expenses reasonably incurred by Ultimus in the
performance of its duties and obligations under this Agreement.
9. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Portfolio as of the
date first written above (or, if a particular Portfolio is not in existence on
that date, on the date such Portfolio commences operation) (the "Effective
Date").
10. TERM OF THIS AGREEMENT.
The term of this Agreement shall continue in effect, unless earlier
terminated by either party hereto as provided hereunder, for a period of two
years. Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for successive one-year periods.
This Agreement may be terminated without penalty: (i) by provision of one
hundred twenty (120) days' written notice; or (ii) by mutual agreement of the
parties.
Notwithstanding the foregoing, after such termination for so long as
Ultimus, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due Ultimus and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination.
Ultimus shall be entitled to collect from the Trust, in addition to the
compensation described in
8
Schedule B, the amount of all of Ultimus' cash disbursements for services in
connection with Ultimus' activities in effecting such termination, including
without limitation, the delivery to the Trust and/or its designees of the
Trust's property, records, instruments and documents.
11. STANDARD OF CARE.
The duties of Ultimus shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against Ultimus
hereunder. Ultimus shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith in performing the
services provided for under this Agreement. Ultimus shall be liable for any
damages arising directly or indirectly out of Ultimus' failure to perform its
duties under this Agreement to the extent such damages arise directly or
indirectly out of Ultimus' willful misfeasance, bad faith, negligence in the
performance of its duties, or reckless disregard of it obligations and duties
hereunder. (As used in this Section 11, the term "Ultimus" shall include
directors, officers, employees and other agents of Ultimus as well as Ultimus
itself.)
Without limiting the generality of the foregoing or any other provision of
this Agreement, (i) Ultimus shall not be liable for losses beyond its reasonable
control, provided that Ultimus has acted in accordance with the standard of care
set forth above; and (ii) Ultimus shall not be liable for the validity or
invalidity or authority or lack thereof of any instruction, notice or other
instrument that Ultimus reasonably believes to be genuine and to have been
signed or presented by a duly authorized representative of the Trust (other than
an employee or other affiliated persons of Ultimus who may otherwise be named as
an authorized representative of the Trust for certain purposes).
Ultimus may apply to the Trust at any time for instructions and may consult
with counsel for the Trust or its own counsel and with accountants and other
experts with respect to any matter arising in connection with Ultimus' duties
hereunder, and Ultimus shall not be liable or accountable for any action taken
or omitted by it in good faith and in accordance with the standard of care set
forth above.
12. INDEMNIFICATION.
The Trust agrees to indemnify and hold harmless Ultimus from and against
any and all actions, suits, claims, losses, damages, costs, charges, reasonable
counsel fees and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) (collectively, "Losses") arising directly or
indirectly out of any action or omission to act which Ultimus takes (i) at any
request or on the direction of or in reliance on the reasonable advice of the
Trust, (ii) upon any instruction, notice or other instrument that Ultimus
reasonably believes to be genuine and to have been signed or presented by a duly
authorized representative of the Trust (other than an employee or other
affiliated person of Ultimus who may otherwise be named as an authorized
representative of the Trust for certain purposes) or (iii) on its own
initiative, in good faith and in accordance with the standard of care set forth
herein, in connection with the performance of its duties or obligations
hereunder; provided, however that the Trust shall have no obligation to
indemnify or reimburse Ultimus under this Section 12 to the extent that Ultimus
is entitled to reimbursement or indemnification for such Losses under any
liability insurance policy described in this Agreement or otherwise.
Ultimus shall not be indemnified against or held harmless from any Losses
arising directly or indirectly out of Ultimus' own willful misfeasance, bad
faith, negligence in the performance of its duties, or reckless disregard of its
obligations and duties hereunder. (As used
9
in this Section 12, the term "Ultimus" shall include directors, officers,
employees and other agents of Ultimus as well as Ultimus itself.)
13. INDEMNIFICATION OF THE TRUST.
Ultimus agrees to indemnify and hold harmless the Trust and each person who
has been, is or may hereafter be a Trustee, officer, employee, shareholder or
control person of the Trust against any and all Losses arising directly or
indirectly out of Ultimus' failure to exercise the standard of care set forth
above with respect to its services under this Agreement. The Trust and any such
persons shall not be indemnified against or held harmless from any Losses
arising directly or indirectly out of the Trust's or such person's willful
misfeasance, bad faith or negligence.
14. RECORD RETENTION AND CONFIDENTIALITY.
Ultimus shall keep and maintain on behalf of the Trust all books and
records which the Trust and Ultimus is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Ultimus further agrees that all such books and records shall be the property of
the Trust and to make such books and records available for inspection by the
Trust or by the SEC at reasonable times and otherwise to keep confidential all
books and records and other information relative to the Trust and its
shareholders; except when requested to divulge such information by
duly-constituted authorities or court process.
15. FORCE MAJEURE.
Ultimus assumes no responsibility hereunder, and shall not be liable, for
any damage, loss of data, delay or any other loss whatsoever caused by events
beyond its reasonable control, including acts of civil or military authority,
national emergencies, fire, flood, catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply.
16. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
All records and other data except computer programs and procedures
developed to perform services required to be provided by Ultimus are the
exclusive property of the Trust and all such records and data will be furnished
to the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason. Ultimus may at its option at any time, and shall
promptly upon the Trust's demand, turn over to the Trust and cease to retain
Ultimus' files, records and documents created and maintained by Ultimus pursuant
to this Agreement which are no longer needed by Ultimus in the performance of
its services or for its legal protection. If not so turned over to the Trust,
such documents and records will be retained by Ultimus for six years from the
year of creation. At the end of such six-year period, such records and documents
will be turned over to the Trust unless the Trust authorizes in writing the
destruction of such records and documents.
17. REPRESENTATIONS OF THE TRUST.
The Trust certifies to Ultimus that: (1) as of the close of business on the
Effective Date, each Portfolio that is in existence as of the Effective Date has
authorized unlimited shares, and (2)
10
this Agreement has been duly authorized by the Trust and, when executed and
delivered by the Trust, will constitute a legal, valid and binding obligation of
the Trust, enforceable against the Trust 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.
18. REPRESENTATIONS OF ULTIMUS.
Ultimus represents and warrants that: (1) the various procedures and
systems which Ultimus has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause the records, and other
data of the Trust and Ultimus' records, data, equipment facilities and other
property used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as are required for the
secure performance of its obligations hereunder, (2) this Agreement has been
duly authorized by Ultimus and, when executed and delivered by Ultimus, will
constitute a legal, valid and binding obligation of Ultimus, enforceable against
Ultimus in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties, (3) it is duly registered
with the appropriate regulatory agency as a transfer agent and such registration
will remain in full force and effect for the duration of the Agreement, and (4)
it has and will continue to have access to the necessary facilities, equipment
and personnel to perform its duties and obligations under this Agreement.
Ultimus further represents that it will inform the Trust immediately in the
event there is a material adverse change in its financial condition.
19. INSURANCE.
Ultimus shall furnish the Trust with pertinent information concerning the
professional liability insurance coverage that it maintains. Such information
shall include the identity of the insurance carrier(s), coverage levels and
deductible amounts. Ultimus shall notify the Trust should any of its insurance
coverage be canceled or reduced. Such notification shall include the date of
change and the reasons therefore. Ultimus shall notify the Trust of any material
claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Trust from
time to time as may be appropriate of the total outstanding claims made by
Ultimus under its insurance coverage.
20. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust has furnished to Ultimus the following:
(a) Copies of the Declaration of Trust and of any amendments thereto,
certified by the proper official of the state in which such document
has been filed.
(b) Copies of the following documents:
(1) The Trust's Bylaws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of a specified officer
of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct
Ultimus thereunder.
11
(c) A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct Ultimus in
all matters.
(d) Copies of the Prospectus and Statement of Additional Information for
each Portfolio.
21. AMENDMENTS TO AGREEMENT.
This Agreement, or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and Ultimus
may conclusively assume that any special procedure which has been approved by
the Trust does not conflict with or violate any requirements of its Declaration
of Trust or then current prospectuses, or any rule, regulation or requirement of
any regulatory body.
22. COMPLIANCE WITH LAW.
Except for the obligations of Ultimus otherwise set forth herein, the Trust
assumes full responsibility for the preparation, contents and distribution of
each prospectus of the Trust as to compliance with all applicable requirements
of the Securities Act of 1933, as amended (the "Securities Act"), the 1940 Act
and any other laws, rules and regulations of governmental authorities having
jurisdiction. The Trust represents and warrants that no shares of the Trust will
be offered to the public until the Trust's registration statement under the
Securities Act and the 1940 Act has been declared or becomes effective.
23. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to the Trust, at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxxxx X. Xxxxxx; and if to Ultimus, at 000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X. Xxxxxx; or at
such other address as such party may from time to time specify in writing to the
other party pursuant to this Section.
24. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
25. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State
of Ohio and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
12
26. LIMITATION OF LIABILITY.
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of the State of Delaware and notice is hereby given that this
instrument is executed on behalf of the Board of Trustees of the Trust and not
individually and that the obligations of this instrument are not binding upon
any of the Trustees, officers or shareholders individually but are binding only
upon the assets and property of the Trust (or if the matter relates only to a
particular Portfolio, that Portfolio), and the Ultimus shall look only to the
assets of the Trust, or the particular Portfolio, for the satisfaction of such
obligations.
27. MULTIPLE ORIGINALS.
This Agreement may be executed in 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
duly executed all as of the day and year first above written.
THE BERWYN FUNDS
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: Chairman
ULTIMUS FUND SOLUTIONS, LLC
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Title: President
13
SCHEDULE A
TO THE MUTUAL FUND SERVICES AGREEMENT BETWEEN
THE BERWYN FUNDS
AND
ULTIMUS FUND SOLUTIONS, LLC
FUND PORTFOLIOS
---------------
Berwyn Fund
Berwyn Income Fund
Berwyn Cornerstone Fund
14
SCHEDULE B
TO THE MUTUAL FUND SERVICES AGREEMENT BETWEEN
THE BERWYN FUNDS
AND
ULTIMUS FUND SOLUTIONS, LLC
FEES
----
Ultimus will provide all of the fund administration, fund accounting and
pricing, transfer agent and shareholder services described herein for a monthly
fee calculated at an annual rate as a percentage of the Trust's aggregate
average daily net assets as follows*:
--------------------------------------------------------
AVERAGE DAILY NET ASSETS FEE
--------------------------------------------------------
First $500 million .150%
--------------------------------------------------------
$500 million to $1 billion .125%
--------------------------------------------------------
In excess of $1 billion .100%
--------------------------------------------------------
* Subject to a monthly minimum fee of $15,000.
FOR THE FIRST THREE MONTHS OF THIS AGREEMENT, IN RECOGNITION THAT ULTIMUS WILL
NOT BE SERVING AS TRANSFER AND SHAREHOLDER SERVICING AGENT UNTIL MAY 1, 2005,
THE FORGOING FEES WILL BE DISCOUNTED BY 30%.
OTHER FEES
o For Performance Reporting (including after-tax performance reporting),
Ultimus charges $250 per month per Portfolio.
o The above fee includes 200 portfolio trades per month (exclusive of daily
cash investments). For Portfolios with more than 200 portfolio trades per
month, Ultimus would charge $5.00 for each trade in excess of 200.
o Ultimus charges a $15 annual maintenance fee for XXX accounts.
o For Web Inquiry access service, Ultimus charges an annual fee of $2,500 per
Portfolio, plus usage charges and a one-time setup fee of $2,000.
o For Interactive Voice Response ("IVR") access service, Ultimus charges a
one-time setup fee of $1,000. Ongoing charges for IVR are based upon usage
and are charged as an out-of-pocket expense.
o To convert the shareholder data to our transfer agent system, Ultimus will
charge a one-time conversion fee of $10,000.
OUT-OF-POCKET EXPENSES:
The fees set forth above shall be in addition to the payment of
out-of-pocket expenses, as provided for in Section 8 of this Agreement.
15
