Exhibit 24(b)(9)(i)
XXXXXX MUTUAL FUND
XXXXXX SQUARE MANAGEMENT CORPORATION
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT made this 19th day February,
1997, by and between Xxxxxx Mutual Fund, formerly known as Kiewit
Institutional Fund, a Delaware business trust (the "Fund"), and
Xxxxxx Square Management Corporation, a corporation organized
under the laws of the State of Delaware ("Xxxxxx Square"), having
its principal place of business in Wilmington, Delaware.
WHEREAS, the Fund is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company, and has registered for public sale
under the Securities Act of 1933, as amended (the "1933 Act"),
shares of beneficial interest, par value $0.01 per share
("Shares"), corresponding to one or more separate and distinct
portfolios (individually, a "Portfolio", and collectively, the
"Portfolios");
WHEREAS, each share of a Portfolio represents an undivided
interest in the assets, subject to the liabilities, allocated to
that Portfolio, and each Portfolio has a separate investment
objective and separate investment policies;
WHEREAS, at the present time, the Fund has six Portfolios,
Kiewit Money Market Portfolio, Kiewit Government Money Market
Portfolio, Kiewit Short-Term Government Portfolio, Kiewit
Intermediate-Term Bond Portfolio, Kiewit Tax-Exempt Portfolio and
Kiewit Equity Portfolio.
WHEREAS, at the present time, each Portfolios consists of
and plans to issue, pursuant to separate Prospectuses, two
classes of Shares, a "K Class" (subject to no sales or
distribution charges) and a "S Class" (subject to a distribution
charge pursuant to Rule 12b-1 under the 1940 Act, as stipulated
in the Fund's S Class Prospectus);
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the Fund and Xxxxxx Square agree as
follows:
1. Appointments. The Fund hereby appoints Xxxxxx Square
as transfer agent, registrar and dividend disbursing agent; as
servicing agent in connection with the disbursements of dividends
and distributions; and as shareholders' servicing agent for all
current classes and series of Shares of the Fund, each such
appointment to take and remain in effect as hereinafter provided.
Xxxxxx Square shall act as such and perform its obligations
thereof upon the terms and conditions hereafter set forth, and in
accordance with the principles of principal and agent as
enunciated by the common law.
2. Documents. The Fund has furnished Xxxxxx Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Fund's Board of Trustees
authorizing the appointment of Xxxxxx Square to provide certain
transfer agent services to the Fund and approving this Agreement;
b. Schedule B identifying and containing the
signatures of the Fund's officers and other persons authorized
("Authorized Persons") to sign "Written Instructions" (as
hereinafter defined) on behalf of the Fund;
c. The Fund's Certificate of Trust filed with the
Secretary of the State of Delaware on June 1, 1994 and all
amendments thereto and restatements thereof;
d. The Fund's Agreement and Declaration of Trust and
all amendments thereto and restatements thereof;
e. The Fund's By-Laws and all amendments thereto and
restatements thereof (such By-Laws, as presently in effect and as
they shall from time to time be amended or restated, are herein
called "By-Laws");
f. The Accounting Services Agreement between the Fund
and Xxxxxx Square dated February 19, 1997;
g. The Custodian Agreement between the Fund and WTC
(the "Custodian") effective July 1, 1994;
h. The Administration Agreement between the Fund and
Xxxxxx Square dated February 19, 1997;
i. The Fund's Notification of Registration filed
pursuant to Section 8(a) of the 1940 Act filed with the
Securities and Exchange Commission ("SEC") on July 25, 1994;
j. The Fund's most recent Registration Statement on
Form N-1A under the 1933 Act (File No. 33-84762) and under the
1940 Act (File No. 811-8648), as filed with the SEC, and all
amendments thereto; and
k. The Fund's most recent prospectus(es)
("Prospectus") and Statements of Additional Information ("SAI")
relating to the Portfolio(s); and
l. If required, a copy of either (i) a filed notice
of eligibility to claim the exclusion from the definition of
"commodity pool operator" contained in Section 2(a)(1)(A) of the
Commodity Exchange Act ("CEA") that is provided in Rule 4.5 under
the CEA, together with all supplements as are required by the
Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Fund by the CFTC which states that the
Fund will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii) a letter
which has been granted the Fund by the CFTC which states that
CFTC will not take any enforcement action if the Fund does not
register as a "commodity pool operator."
The Fund will xxxxxxx Xxxxxx Square from time to time with
copies, properly certified or authenticated, of all additions,
amendments or supplements to the foregoing, if any.
3. Definitions.
a. Authorized Person. As used in this Agreement, the
term "Authorized Person" means any officer of the Fund and any
other person, whether or not any such person is an officer of the
Fund, duly authorized by the Trustees of the Fund to give Oral
and Written Instructions on behalf of the Portfolio(s) and
certified by the Secretary or an Assistant Secretary of the Fund
or any amendment thereto as may be received by Xxxxxx Square from
time to time.
b. Oral Instructions. As used in this Agreement, the
term "Oral Instructions" means oral instructions actually
received by Xxxxxx Square from an Authorized Person or from a
person reasonably believed by Xxxxxx Square to be an Authorized
Person. The Fund agrees to deliver to Xxxxxx Square, at the time
and in the manner specified in Section 4(b) of this Agreement,
Written Instructions confirming Oral Instructions signed by two
Authorized Persons and received by Xxxxxx Square.
c. Written Instructions. As used in this Agreement,
the term "Written Instructions" means written instructions on
behalf of the Fund signed by two Authorized Persons, delivered by
hand, mail, telegram, cable, telex or facsimile to, and received
by, Xxxxxx Square.
4. Instructions Consistent with Declaration of Trust, etc.
a. Unless otherwise provided in this Agreement,
Xxxxxx Square shall act only upon Oral or Written Instructions.
Xxxxxx Square, in its capacity under this Agreement, may assume
that any Oral or Written Instructions received hereunder are not
in any way inconsistent with any provisions of this Agreement,
the Fund's Declaration of Trust or By-Laws, or any vote,
resolution or proceeding of the Fund's shareholders, or of the
Fund's Board of Trustees, or of any committee thereof.
b. Rodney Square shall be entitled to rely upon any
Oral Instructions and any Written Instructions actually received
by Xxxxxx Square pursuant to this Agreement. The Fund agrees to
forward to Xxxxxx Square Written Instructions confirming Oral
Instructions in such manner that the Written Instructions are
received by Xxxxxx Square by the close of business of the same
day that such Oral Instructions are given to Xxxxxx Square. The
Fund agrees that the fact that confirming Written Instructions
are not received by Xxxxxx Square shall in no way affect the
validity or enforceability of the transactions authorized by Oral
Instructions. The Fund agrees that Xxxxxx Square shall incur no
liability to the Fund in acting upon Oral Instructions, provided
such instructions reasonably appear to have been received from an
Authorized Person.
5. Transactions Not Requiring Instructions. In the
absence of contrary Written Instructions, Xxxxxx Square is
authorized to take the following actions:
a. Issuance of Shares. Upon receipt of a purchase
order from the "Distributor", as defined in the Distribution
Agreement between the Fund and Xxxxxx Square Distributions, Inc.,
or a prospective shareholder for the purchase of Shares and
sufficient information to enable Xxxxxx Square to establish a
shareholder account or to issue Shares to an existing shareholder
account, and after confirmation of receipt or crediting of
Federal funds for such order from Xxxxxx Square's designated
bank, Xxxxxx Square shall issue and credit the account of the
investor or other record holder with Shares in the manner
described in the Prospectus. Xxxxxx Square shall deposit all
checks received from prospective shareholders into an account on
behalf of the Fund, and shall promptly transfer all Federal
funds received from such checks to the Custodian, as defined in
the Custodian Agreement between the Fund and Wilmington Trust
Company. (References herein to "Custodian" shall also be
construed to refer to a "Sub-Custodian" if such appointment has
been made pursuant to the Custodian Agreement.) If so directed
by the Distributor, the confirmation supplied to the shareholder
to xxxx such issuance will be accompanied by a Prospectus.
b. Transfer of Shares; Uncertificated Securities.
Where a shareholder does not hold a certificate representing the
number of Shares in its account and does provide Xxxxxx Square
with instructions for the transfer of such Shares which include a
signature guaranteed by a commercial bank, trust company or
member firm of a national securities exchange and such other
appropriate documentation to permit a transfer, then Xxxxxx
Square shall register such Shares and shall deliver them pursuant
to instructions received from the transferor, pursuant to the
rules and regulations of the SEC, and the laws of the State of
Delaware relating to the transfer of shares of beneficial
interest
c. Share Certificates. If at any time the Portfolio
issues Share stock certificates, the following provisions will
apply:
(1) The Fund will supply Xxxxxx Square with a
sufficient supply of stock certificates
representing Shares, in the form approved from
time to time by the Trustees of the Fund, and,
from time to time, shall replenish such supply
upon request of Xxxxxx Square. Such stock
certificates shall be properly signed, manually or
by facsimile signature, by the duly authorized
officers of the Fund, and shall bear the corporate
seal or facsimile thereof of the Fund, and
notwithstanding the death, resignation or removal
of any officer of the Fund, such executed
certificates bearing the manual or facsimile
signature of such officer shall remain valid and
may be issued to shareholders until Xxxxxx Square
is otherwise directed by Written Instructions.
(2) In the case of the loss or destruction of any
certificate representing Shares, no new
certificate shall be issued in lieu thereof,
unless there shall first have been furnished an
appropriate bond of indemnity issued by a surety
company approved by Xxxxxx Square.
(3) Upon receipt of signed Share stock
certificates, which shall be in proper form for
transfer, and upon cancellation or destruction
thereof, Xxxxxx Square shall countersign, register
and issue new certificates for the same number of
Shares and shall deliver them pursuant to
instructions received from the transferor, the
rules and regulations of the SEC, and the laws of
the State of Delaware relating to the transfer of
shares of beneficial interest.
(4) Upon receipt of Share stock certificates,
which shall be in proper form for transfer,
together with the shareholder's instructions to
hold such Share certificates for safekeeping,
Xxxxxx Square shall reduce such Shares to
uncertificated status, while retaining the
appropriate registration in the name of the
shareholder upon the transfer books.
(5) Upon receipt of written instructions from a
shareholder of uncertificated securities for a
certificate in the number of Shares in its
account, Xxxxxx Square will issue such Share stock
certificates and deliver them to the shareholder.
d. Redemption of Shares. Upon receipt of a
redemption order from the Distributor or a shareholder, Xxxxxx
Square shall redeem the number of Shares indicated thereon from
the redeeming shareholder's account and receive from the Fund's
Custodian and disburse pursuant to the instructions of a
redeeming shareholder or his or her agent the redemption proceeds
therefor, or arrange for direct payment of redemption proceeds by
the Custodian to the redeeming shareholder or as instructed by
the shareholder or his or her agent, in accordance with such
procedures and controls as are mutually agreed upon from time to
time by and among the Fund, Xxxxxx Square and the Fund's
Custodian.
6. Shares. The Fund agrees to notify Xxxxxx Square
promptly of any change in the number of authorized Shares and of
any change in the number of Shares registered under the 1933 Act
or termination of the Fund's declaration under Rule 24f-2 of the
1940 Act. The Fund has advised Xxxxxx Square, as of the date
hereof, of the number of Shares (a) held in any redemption or
repurchase account, and (b) registered under the 1933 Act which
are unsold. In the event that the Fund shall declare a stock
dividend, a stock split or a reverse stock split, the Fund shall
deliver to Xxxxxx Square a certificate, upon which Xxxxxx Square
shall be entitled to rely for all purposes, certifying (i) the
number of Shares involved, (ii) that all appropriate corporate
action has been taken, and (iii) that any amendment to the
Certificate of Trust of the Fund which may be required has been
filed and is effective. Such certificate shall be accompanied by
an opinion of counsel to the Fund relating to the legal adequacy
and effect of the transaction.
7. Dividends and Distributions. The Fund shall xxxxxxx
Xxxxxx Square with appropriate evidence of action by the Fund's
Trustees authorizing the declaration and payment of dividends and
distributions as described in the Prospectus. After deducting
any amount required to be withheld by any applicable tax laws,
rules and regulations or other applicable laws, rules and
regulations, Xxxxxx Square shall, in accordance with instructions
in proper form from a shareholder and the provisions of the
Fund's Agreement and Declaration of Trust and Prospectus and/or
SAI, issue and credit the account of the shareholder with Shares,
or, if the shareholder so elects, pay such dividends or
distributions in cash to the shareholder in the manner described
in the Prospectus and/or SAI. In lieu of receiving from the
Fund's Custodian and paying to shareholders cash dividends or
distributions, Xxxxxx Square may arrange for the direct payment
of cash dividends and distributions to shareholders by the
Custodian, in accordance with such procedures and controls as are
mutually agreed upon from time to time by and among the Fund,
Xxxxxx Square and the Fund's Custodian.
Xxxxxx Square shall prepare, file with the Internal Revenue
Service and other appropriate taxing authorities, and address and
mail to shareholders such returns and information relating to
dividends and distributions paid by the Fund as are required to
be so prepared, filed and mailed by applicable laws, rules and
regulations, or such substitute form of notice as may from time
to time be permitted or required by the Internal Revenue Service.
On behalf of the Fund, Xxxxxx Square shall mail certain requests
for shareholders' certifications under penalties of perjury and
pay on a timely basis to the appropriate Federal authorities any
taxes to be withheld on dividends and distributions paid by the
Fund, all as required by applicable Federal tax laws and
regulation.
In accordance with the Prospectus, resolutions of the Fund's
Trustees that are not inconsistent with this Agreement and are
provided to Xxxxxx Square from time to time, and such procedures
and controls as are mutually agreed upon from time to time by and
among the Fund, Xxxxxx Square and the Fund's Custodian, Xxxxxx
Square shall (a) arrange for issuance of Shares obtained through
transfers of funds from shareholders' accounts at financial
institutions; and (b) arrange for the exchange of Fund Shares for
shares of other eligible investment companies, if and as
permitted by the Fund Prospectus.
8. Communications with Shareholders.
a. Communications to Shareholders. Xxxxxx Square
will address and mail all communications by the Fund to its
shareholders, including reports to shareholders, confirmations of
purchases and sales of Shares, monthly statements, dividend and
distribution notices and proxy material for its meetings of
shareholders. Xxxxxx Square will receive and tabulate the proxy
cards for shareholder meetings.
b. Correspondence. Xxxxxx Square will answer such
correspondence from shareholders, securities brokers and others
relating to its duties hereunder and such other correspondence as
may from time to time be mutually agreed upon between Xxxxxx
Square and the Fund.
9. Services to be Performed. Xxxxxx Square shall be
responsible for administering and/or performing transfer agent
functions, for acting as service agent in connection with
dividend and distribution functions and for performing
shareholder account functions in connection with the issuance,
transfer and redemption or repurchase (including coordination
with the Fund's Custodian bank in connection with shareholder
redemption by check) of the Fund's Shares as set forth in
Schedule B. The details of the operating standards and
procedures to be followed shall be determined from time to time
by agreement between Xxxxxx Square and the Fund.
10. Record Keeping and Other Information.
a. Rodney Square shall maintain records of the
accounts for each shareholder showing the items listed in
Schedule X.
x. Xxxxxx Square shall create and maintain all
necessary records in accordance with all applicable laws, rules
and regulations, including but not limited to records required by
Section 31(a) of the 1940 Act and the rules thereunder and any
applicable regulations of the Federal Deposit Insurance
Corporation ("FDIC") or any successor regulatory authority, as
the same may be amended from time to time, and those records
pertaining to the various functions performed by it hereunder.
All records shall be the property of the Fund at all times and
shall be available for inspection and use by the Fund. Where
applicable, such records shall be maintained by Xxxxxx Square for
the periods and in the places required by Rule 31a-2 under the
1940 Act and any applicable regulations of the FDIC or any
successor regulatory authority.
11. Audit, Inspection and Visitation. Xxxxxx Square shall
make available during regular business hours all records and
other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Fund or any person
retained by the Fund. Upon reasonable notice by the Fund, Xxxxxx
Square shall make available during regular business hours its
facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the
Fund, or any person retained by the Fund.
12. Compensation. Compensation for services and duties
performed pursuant to this Agreement will be paid by the Fund to
Xxxxxx Square as stipulated in Schedule D hereto. Certain other
fees due and expenses incurred pursuant to this Agreement shall
be payable by the Fund, or the shareholder on whose behalf the
service is performed, to Xxxxxx Square and are also listed in
Schedule D.
The Fund shall reimburse Xxxxxx Square for all reasonable
out-of-pocket expenses incurred by Xxxxxx Square or its agents in
the performance of its obligations hereunder. Such reimbursement
for expenses incurred in any calendar month shall be made on or
before the tenth day of the next succeeding month
The term "out-of-pocket expenses" shall include, but not be
limited to, the following expenses incurred by Xxxxxx Square in
the performance of its obligations hereunder: the cost of
stationery and forms (including but not limited to checks, proxy
cards, and envelopes), the cost of postage, the cost of insertion
of non-standard size materials in mailing envelopes and other
special mailing preparation by outside firms, the cost of
first-class mailing insurance, the cost of external electronic
communications as approved by the Trustees (to include telephone
and telegraph equipment and an allocable portion of the cost of
personnel responsible for the maintenance of such equipment),
toll charges, data communications equipment and line charges and
the cost of microfilming of shareholder records (including both
the cost of storage as well as charges for access to such
records). If Xxxxxx Square shall undertake the responsibility
for microfilming shareholder records, it may be separately
compensated therefor in an amount agreed upon by the principal
financial officer of the Fund and Xxxxxx Square, such amount not
to exceed the amount which would be paid to an outside firm for
providing such microfilming services.
13. Use of Xxxxxx Square's Name. The Fund shall not use
the name of Xxxxxx Square in any Prospectus, SAI, sales
literature or other material relating to the Fund in a manner not
approved prior thereto, provided, however, that Xxxxxx Square
shall approve all uses of its name which merely refer in accurate
terms to its appointments hereunder or which are required by the
SEC or a state securities commission and, provided further, that
in no event shall such approval be unreasonably withheld.
14. Use of Fund's Name. Xxxxxx Square shall not use the
name of the Fund or the Portfolios of the Fund or material
relating to the Fund or the Portfolios on any checks, bank
drafts, bank statements or forms for other than internal use in a
manner not approved prior thereto, provided, however, that the
Fund shall approve all uses of its name which merely refer in
accurate terms to the appointment of Xxxxxx Square hereunder or
which are required by the FDIC, the SEC or a state securities
commission, and, provided, further, that in no event shall such
approval be unreasonably withheld.
15. Security. Xxxxxx Square represents and warrants that
the various procedures and systems which Xxxxxx Square has
implemented with regard to safeguarding from loss or damage
attributable to fire, theft or any other cause (including
provision for twenty-four hours a day restricted access) the
Fund's blank checks, records and other data and Xxxxxx Square's
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 in
its judgment are required for the secure performance of its
obligations hereunder. The parties shall review such systems and
procedures on a periodic basis.
16. Insurance. Upon request, Xxxxxx Square shall provide
the Fund with details regarding its insurance coverage, and
Xxxxxx Square shall notify the Fund should any of its insurance
coverage be materially changed. Such notification shall include
the date of change and the reason or reasons therefor. Xxxxxx
Square shall notify the Fund of any material claims against it,
whether or not they may be covered by insurance and shall notify
the Fund from time to time as may be appropriate of the total
outstanding claims made by Xxxxxx Square under its insurance
coverage.
17. Appointment of Agents. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Xxxxxx Square
without the written consent of the Fund. Xxxxxx Square may,
however, at any time or times in its discretion appoint (and may
at any time remove) any other bank or trust company, which is
itself qualified under the Securities Exchange Act of 1934 (the
"1934 Act") to act as a transfer agent, as its agent to carry out
such of the services to be performed under this agreement as
Xxxxxx Square may from time to time direct; provided, however,
that the appointment of any agent shall not relieve Xxxxxx Square
of any of its responsibilities or liabilities hereunder.
18. Delegation. On thirty (30) days' prior written notice
to the Fund, Xxxxxx Square may assign any part or all its rights
and delegate its duties hereunder to any affiliate, provided that
(i) the delegate agrees with Xxxxxx Square to comply with all
relevant provisions of the 1940 Act and applicable rules and
regulations thereunder; (ii) Xxxxxx Square shall remain
responsible for the performance of all of its duties under this
Agreement; (iii) Xxxxxx Square and such delegate shall promptly
provide such information as the Fund may request; and (iv) Xxxxxx
Square shall respond to such questions as the Fund may ask,
relative to the delegation, including (without limitation) the
capabilities of the delegate.
19. Indemnification.
a. The Fund agrees to indemnify and hold harmless
Xxxxxx Square, its directors, officers, employees, agents and
representatives (collectively, "Representatives") from all taxes,
charges, expenses, assessments, claims and liabilities including,
without limitation, liabilities arising under the 1933 Act, the
1934 Act, the 1940 Act and any applicable state and/or foreign
securities laws or amendments thereto (the "Securities Laws"),
and expenses, including without limitation reasonable attorneys'
fees and disbursements arising directly or indirectly from any
action or omission to act which Xxxxxx Square takes (i) at the
request of or on the direction of or in reliance on the advice of
the Fund or (ii) upon Oral or Written Instructions. Neither
Xxxxxx Square nor any of its Representatives shall be indemnified
against any liability (or any expenses incident to such
liability) arising out of Xxxxxx Square's or its Representatives'
own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold
harmless the Fund from all taxes, charges, expenses, assessments,
claims and liabilities arising from Xxxxxx Square's obligations
pursuant to this Agreement (including, without limitation,
liabilities arising under the Securities Laws) and expenses,
including (without limitation) reasonable attorneys' fees and
disbursements arising directly or indirectly out of Xxxxxx
Square's or its Representatives' own willful misfeasance, bad
faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
c. In order that the indemnification provisions
contained in this Section 19 shall apply, upon the assertion of a
claim for which either party may be required to indemnify the
other, the party seeking indemnification shall promptly notify
the other party of such assertion, and shall keep the other party
advised with respect to all developments concerning such claim.
The party who may be required to indemnify shall have the option
to participate with the party seeking indemnification in the
defense of such claim. The party seeking indemnification shall
in no case confess any claim or make any compromise in any case
in which the other party may be required to indemnify it except
with the other party's prior written consent.
20. Responsibility of Xxxxxx Square. Xxxxxx Square shall
be under no duty to take any action on behalf of the Fund except
as specifically set forth herein or as may be specifically agreed
to by Xxxxxx Square in writing. Xxxxxx Square shall be obligated
to exercise due care and diligence in the performance of its
duties hereunder, to act in good faith and to use its best
efforts in performing the services provided for under this
Agreement. Xxxxxx Square shall be liable for any damages arising
out of or in connection with Xxxxxx Square's performance of or
omission or failure to perform its duties under this Agreement to
the extent such damages arise out of Xxxxxx Square's negligence,
reckless disregard of its duties, bad faith or willful
misfeasance.
Without limiting the generality of the foregoing or of any
other provision of this Agreement, Xxxxxx Square, in connection
with its duties under this Agreement, shall not be under any duty
or obligation to inquire into and shall not be liable for (i) the
validity or invalidity or authority or lack thereof of any Oral
or Written Instruction, notice or other instrument which conforms
to the applicable requirements of this Agreement, and which
Xxxxxx Square reasonably believes to be genuine; or (ii) subject
to the provisions of Section 21 hereof, delays or errors or loss
of data occurring by reason of circumstances beyond Xxxxxx
Square's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, flood or
catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply.
21. Acts of God, etc. Xxxxxx Square shall not be liable
for delays or errors occurring by reason of circumstances beyond
its control, including but not limited to acts of civil or
military authority, national emergencies, labor difficulties,
fire, flood or catastrophe, acts of God, insurrection, war,
riots, or failure of the mails, transportation, communication or
power supply. In the event of equipment breakdowns beyond its
control, Xxxxxx Square shall, at no additional expense to the
Fund, take reasonable steps to minimize service interruptions,
but shall have no liability with respect thereto. Xxxxxx Square
shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provision for
emergency use of electronic data processing equipment to the
extent appropriate equipment is available.
22. Amendments. Xxxxxx Square and the Fund shall regularly
consult with each other regarding Xxxxxx Square's performance of
its obligations and its compensation hereunder. In connection
therewith, the Fund shall submit to Xxxxxx Square, at a
reasonable time in advance of filing with the SEC, copies of any
amended or supplemented registration statements (including
exhibits) under the 1933 Act and the 1940 Act, and a reasonable
time in advance of their proposed use, copies of any amended or
supplemented forms relating to any plan, program or service
offered by the Fund. Any change in such material which would
require any change in Xxxxxx Square's obligations hereunder shall
be subject to Xxxxxx Square's approval, which shall not be
unreasonably withheld. In the event that such change materially
increases the cost to Xxxxxx Square of performing its obligations
hereunder, Xxxxxx Square shall be entitled to receive reasonable
compensation therefor.
23. Duration, Termination, etc. Neither this Agreement nor
any provisions hereof may be changed, waived or discharged
orally, but only by written instrument which shall make specific
reference to this Agreement and which shall be signed by the
party against which enforcement of such change, waiver or
discharge is sought.
This Agreement shall become effective as of the close of
business on the date first written above, and unless terminated
as hereinafter provided, shall continue in effect for two (2)
years from the date of its execution and thereafter from year to
year.
This Agreement may be terminated by a vote of the Board of
Trustees of the Fund, or by a vote of a majority of the
outstanding voting securities of any one or more of the Fund's
Portfolios, upon written notice to Xxxxxx Square, in the event of
a material breach remaining uncured for thirty (30) days after
due written notification of such breach has been issued by the
Fund to, and received by, Xxxxxx Square. "Material breach"
includes gross negligence in the performance of the duties of
Xxxxxx Square, as well as a material breach of a provision of
this Agreement. However, in the event of a material breach
resulting from willful misconduct or reckless disregard of the
duties of Xxxxxx Square or its employees, this Agreement may be
terminated thirty (30) days after written notification of such
breach has been issued by the Fund to, and received by, Xxxxxx
Square.
Furthermore, this Agreement may be terminated by the
Fund if a majority of the Board of Trustees votes to approve such
a termination, for any of the following reasons: (a) the Fund
ceases doing business, liquidates, and distributes all remaining
assets to its shareholders; (b) the merger of the Fund with
another registered investment company, substantially all of the
assets of which are owned by shareholders not presently
affiliated with or related to the shareholders of the Fund or
Kiewit Investment Trust; (c) the merger with or sale of
substantially all of the assets of Xxxxxx Investment Management
Corporation to a person not presently affiliated with or related
to the shareholders of the Fund or Kiewit Investment Trust; or
(d) any other event of similar kind, which results in a
fundamental change in the nature of the mutual fund business of
the Fund or Kiewit Investment Trust. The reasons set forth in
this paragraph may be applied to terminate this Agreement with
respect to one or more Series, as well as to the Fund itself.
Termination shall occur at the time of the relevant event, but
not earlier than six (6) months after written notification issued
by the Fund to, and received by, Xxxxxx Square.
This Agreement may also be terminated by Xxxxxx Square, upon
written notice to the Fund, in the event of a material breach
remaining uncured for sixty (60) days after due written
notification of such breach has been issued by Xxxxxx Square to,
and received by, the Fund.
Termination shall not relieve the parties of duties and
obligations accrued prior to termination (including the duty to
pay accrued fees and expenses), nor those duties which by their
nature survive termination (such as the duty to maintain the
confidentiality of information, and the duty to transfer assets
and records to successors in an orderly and cooperative manner).
Upon the termination hereof, the Fund shall reimburse Xxxxxx
Square any fees incurred as a result of the termination
conversion for any out-of-pocket expenses reasonably incurred by
Xxxxxx Square including or during the period prior to the date of
such termination. In the event that the Fund designates a
successor to any of Xxxxxx Square's obligations hereunder, Xxxxxx
Square shall, at the expense and direction of the Fund, transfer
to such successor a certified list of the shareholders of the
Fund (with name, address, and, if provided, tax identification or
Social Security number), a complete record of the account of each
shareholder, and all other relevant books, records and other data
established or maintained by Xxxxxx Square hereunder. Xxxxxx
Square shall be liable for any losses sustained by the Fund as a
result of Xxxxxx Square's failure to accurately and promptly
provide these materials.
24. Registration as a Transfer Agent. Xxxxxx Square
represents that it is currently registered with the appropriate
Federal agency for the registration of transfer agents, and that
it will remain so registered for the duration of this Agreement.
Xxxxxx Square agrees that it will promptly notify the Fund in the
event of any material change in its status as a registered
transfer agent. Should Xxxxxx Square fail to be registered with
the Federal Deposit Insurance Company or any successor regulatory
authority as a transfer agent at any time during this Agreement,
the Fund may, on written notice to Xxxxxx Square, immediately
terminate this Agreement.
25. Notice. Any notice under this Agreement shall be given
in writing addressed and delivered or mailed, postage prepaid, to
the other party to this Agreement at its principal place of
business.
26. Severability. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected
thereby.
27. Governing Law. To the extent that state law has not
been preempted by the provisions of any law of the United States
heretofore or hereafter enacted, as the same may be amended from
time to time, this Agreement shall be governed and construed
according to the laws (without regard, however, to laws as to
conflicts of law) of the State of Delaware.
28. Shareholder Liability. Xxxxxx Square acknowledges that
it has received notice of and accepts the limitations of
liability set forth in the Fund's Agreement and Declaration of
Trust. Xxxxxx Square agrees that the Fund's obligations
hereunder shall be limited to the Fund, and that Xxxxxx Square
shall have recourse solely against the assets of the Portfolios
with respect to which the Fund's obligations hereunder relate and
shall have no recourse against the assets of any other Portfolio
or against any shareholder, Trustee, officer, employee, or agent
of the Fund.
29. Miscellaneous. Both parties agree to perform such
further acts and execute such further documents as are necessary
to effectuate the purposes hereof. The captions in this
Agreement are included for convenience of reference only and in
no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. This Agreement
may be executed simultaneously in two counterparts, each of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this
agreement as of the day and year first above written.
XXXXXX MUTUAL FUND
By: /s/ Xxx XxXxxxxxx
Xxx XxXxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx,
President
TRANSFER AGENCY AGREEMENT
SCHEDULE A
XXXXXX MUTUAL FUND
Fund Listing
Kiewit Money Market Portfolio
Kiewit Government Money Market Portfolio
Kiewit Short-Term Government Portfolio
Kiewit Intermediate-Term Bond Portfolio
Kiewit Tax-Exempt Portfolio
Kiewit Equity Portfolio
TRANSFER AGENCY AGREEMENT
SCHEDULE B
XXXXXX MUTUAL FUND
Services to be Performed
Xxxxxx Square will perform the following functions as transfer
agent on an ongoing basis with respect to each Portfolio:
a. furnish state-by-state registration reports;
b. provide toll-free lines for direct shareholder use,
plus customer liaison staff with on-line inquiry capacity;
c. mail duplicate confirmations to dealers and other
financial institutions ("Service Organizations") of their
clients' activity, whether executed through the Service
Organization or directly with Xxxxxx Square;
d. provide detail for Service Organization confirmations
and other Service Organization shareholder accounting, in
accordance with such procedures as may be agreed upon
between the Fund and Xxxxxx Square;
e. provide shareholder lists and statistical information
concerning shareholder accounts to the Fund;
f. provide timely notification of Fund activity and such
other information as may be agreed upon from time to time
between Xxxxxx Square and the Fund or the Custodian, to the
Fund or the Custodian; and
g. with respect to dividends and distributions, prepare
and file required reports with the Internal Revenue Service
("IRS"), prepare and mail reports to shareholders as
required by the IRS and as described in the Fund's latest
effective SEC registration statement.
TRANSFER AGENCY AGREEMENT
SCHEDULE C
XXXXXX MUTUAL FUND
Shareholder Records
Xxxxxx Square shall maintain records of the accounts for each
shareholder showing the following information:
a. name, address and United States Tax Identification or
Social Security number;
b. number of Shares held and number of Shares for which
certificates, if any, have been issued, including
certificate numbers and denominations;
c. historical information regarding the account of each
shareholder, including dividends and distributions paid and
the date and price for all transactions on a shareholder's
account;
d. any stop or restraining order placed against a
shareholder's account;
e. any correspondence relating to the current maintenance
of a shareholder's account;
f. information with respect to withholding; and,
g. any information required in order for Xxxxxx Square to
perform any calculations contemplated or required by this
Agreement.
TRANSFER AGENCY AGREEMENT
SCHEDULE X
XXXXXX MUTUAL FUND
Fee Schedule
For the services Xxxxxx Square provides under the Transfer Agency
Agreement attached hereto, Xxxxxx Mutual Fund (the "Fund") agrees
to pay Xxxxxx Square a fee for transfer agency services equal to
$15,000 per annum for each Class of Fund Shares issued by each
Fund Portfolio, payable monthly, plus, for any Class exceeding
500 shareholder accounts, an additional account fee as follows:
Fee per Annum
Type of Fund/Account per Account
Annual Dividend $15
Semi-Annual Dividend $15
Quarterly Dividend $15
Monthly Dividend $17.50
Daily Accrued Dividend $20
Out of pocket expenses shall be reimbursed by the Fund to Xxxxxx
Square or paid directly by the Fund. Such expenses include but
are not limited to the following:
a. Toll-free lines (if required)
b. Forms, envelopes, checks, checkbooks
c. Postage (bulk, pre-sort, first-class at current
prevailing rates)
d. Hardware/phone lines for remote terminal(s) (if
required)
e. Microfiche/Microfilm
f. Wire fee for receipt or disbursement
g. Mailing fees
h. Cost of proxy solicitation, mailing and tabulation
(if required)
i. Certificate issuance
j. Record retention storage
k. Development/programming costs/special projects -
time and material
l. ACH transaction charges
m. "B" notice mailing
n. Locating lost shareholders in anticipation of
escheating
Additional Expenses (which may be paid by Fund shareholders)
a. XXX Processing $10.00 per account per annum
$ 5.00 new account set up fee
(waived)
$ 2.50 per distribution (waived)
$10.00 per plan transfer out
b. Exchange Fees $ 5.00 per transaction
Payment
The above will be billed to the Fund within the first ten
(10) business days of each month, and shall be paid by the
Fund by wire transfer within five (5) business days of
billing receipt.
XXXXXX MUTUAL FUND
By: /s/ Xxx XxXxxxxxx
Xxx XxXxxxxxx, President
XXXXXX SQUARE MANAGEMENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, President
