EXHIBIT (h)(i)
OPERATING SERVICES AGREEMENT
Agreement made as of the ____ day of _______, 2003, between Agile Funds,
Inc., a registered investment company (the "Company"), and Tactical Allocation
Services, Inc., a registered investment adviser ("Tactical").
WHEREAS, the Company is engaged in business as an open-end management
investment company, registered as such under the Investment Company Act of 1940,
as amended (the "Act"), and is authorized to issue shares in multiple classes
representing interests in separate portfolios of investments as listed on
Schedule A (the "Portfolios"); and
WHEREAS, Tactical is registered as an investment adviser under the
Investment Advisers Act of 1940, and engages in the business of acting as
investment adviser and providing certain other administrative, sub-accounting
and recordkeeping services to certain investment companies, including the
Company; and
WHEREAS, the Company desires to retain Tactical to render certain
administrative, sub-accounting and recordkeeping services (the "Services") in
the manner and on the terms and conditions hereinafter set forth; and
WHEREAS, Tactical desires to be retained to perform such services on said
terms and conditions;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Company and Tactical agree as follows:
1. The Company hereby retains Tactical to provide, or, upon receipt of
written approval of the Company arrange for other corporations, including
affiliates of Tactical, to provide to the Portfolios such sub-accounting and
recordkeeping services and functions as are reasonably necessary for the
operation of the Portfolios. Such services shall include, but shall not be
limited to, preparation and maintenance of the following required books, records
and other documents: (i) journals containing daily itemized records of all
purchases and sales, and receipts and deliveries of securities and all receipts
and disbursements of cash and all other debits and credits, in the form required
by Rule 31a-1(b)(1) under the Act; (ii) general and auxiliary ledgers reflecting
all asset, liability, reserve, capital, income and expense accounts, in the form
required by Rules 31a-1(b)(2)(i)-(iii) under the Act; (iii) a securities record
or ledger reflecting separately for each portfolio security as of trade date all
"long" and "short" positions carried by the Portfolios for the account of the
Portfolios, if any, and showing the location of all securities long and the
off-setting position to all securities short, in the form required by Rule
31a-1(b)(3) under the Act; (iv) a record of all portfolio purchases or sales, in
the form required by Rule 31a-1(b)(6) under the Act; (v) a record of all puts,
calls, spreads, straddles and all other options, if any, in which the Portfolios
have any direct or indirect interest or which the Portfolios have granted or
guaranteed, in the form required by Rule 31a-1(b)(7) under the Act; (vi) a
record of the proof of money balances in all ledger accounts maintained pursuant
to this Agreement, in the form required by Rule 31a-1(b)(8) under the Act; and
(vii) price make-up sheets and such records as are necessary to reflect the
determination of the Portfolios' net asset value. The foregoing books and
records shall be maintained and preserved by Tactical in accordance with and for
the time periods specified by applicable rules and regulations, including Rule
31a-2 under the Act. All such books and records shall be the property of the
Company and, upon request therefor, Tactical shall surrender to the Company such
of the books and records so requested.
2. Tactical shall, at its own expense, maintain such staff and employ or
retain such personnel and consult with such other persons as it shall from time
to time determine to be necessary or useful to the performance of its
obligations under this Agreement. Without limiting the generality of the
foregoing, such staff and personnel shall be deemed to include officers of
Tactical and persons employed or otherwise retained by Tactical to provide or
assist in providing the Services to the Portfolios.
3. Tactical shall, at its own expense, provide such office space,
facilities and equipment (including, but not limited to, computer equipment,
communication lines and supplies) and such clerical help and other services as
shall be necessary to provide the Services to the Portfolios. In addition,
Tactical may arrange on behalf of a Company to obtain pricing information
regarding the Portfolios' investment securities from such company or companies
as are approved by a majority of the Fund's board of directors, (the
"Directors") and, if necessary, the Company shall be financially responsible to
such company or companies for the reasonable cost of providing such pricing
information. In addition, the Adviser shall pay the following Portfolio
expenses:
a. the costs incurred in connection with registration and maintenance
of its registration under the Securities Act of 1933, as amended, the Investment
Company Act of 1940, as amended, and state securities laws and regulations;
b. preparation, printing and mailing of reports, notices and
prospectuses to current shareholders;
c. transfer taxes on the sales of the Portfolio's shares;
d. custodial, shareholder transfer charges and fees of the Portfolio's
distributor;
e. legal, auditing and accounting expenses;
f. expenses of servicing shareholder accounts;
g. insurance expenses for fidelity and other coverage;
h. fees and expenses of Directors who are not "interested persons"
within the meaning of the Investment Company Act of 1940; and
i. expenses of Board of Director and shareholder meetings.
4. Except as set forth above, each Portfolio shall pay its own expenses,
including but not limited to:
a. transfer taxes on the sales of portfolio securities;
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b. transaction charges assessed by the Custodian
c. brokerage commissions;
d. taxes owed to Federal and State jurisdictions by the Portfolio;
e. Interest expense on Portfolio borrowing; and
f. Dividends paid out on short sales.
5. The Company will, from time to time, furnish or otherwise make available
to Tactical such information relating to the business and affairs of the
Portfolios as Tactical may reasonably require in order to discharge its duties
and obligations hereunder.
6. For the services rendered, facilities furnished, and expenses assumed by
Tactical under this Agreement, the Company shall pay to Tactical the fees set
forth on Schedule B.
7. Tactical will permit representatives of a Company including the
Company's independent auditors to have reasonable access to the personnel and
records of Tactical in order to enable such representatives to monitor the
quality of services being provided and the level of fees due Tactical pursuant
to this Agreement. In addition, Tactical shall promptly deliver to the Directors
such information as may reasonably be requested from time to time to permit the
Directors to make an informed determination regarding continuation of this
Agreement and the payments contemplated to be made hereunder.
8. This Agreement shall remain in effect until no later than September 30,
2004, and from year to year thereafter provided such continuance is approved at
least annually by the vote of a majority of the Directors who are not parties to
this Agreement, or "interested persons" (as defined in the Act) of any such
party, which vote must be cast in person at a meeting called for the purpose of
voting on such approval; and further provided, however, that (a) a Company may,
at any time and without the payment of any penalty, terminate this Agreement
(with respect to itself or one or more of its Portfolios) upon thirty (30) days
written notice to Tactical; (b) the Agreement shall immediately terminate in the
event of its assignment (within the meaning of the Act and the Rules thereunder)
unless the Directors approve such assignment; and (c) Tactical may terminate
this Agreement (or terminate it with respect to a Company or one or more
Portfolios thereof) without payment of penalty on sixty (60) days written notice
to a Company. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postage pre-paid, to the other party at the
principal office of such party.
9. This Agreement shall be construed in accordance with the laws of the
State of Colorado and the applicable provisions of the Act. To the extent the
applicable law of the State of Colorado or any of the provisions herein conflict
with the applicable provisions of the Act, the latter shall control.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written.
AGILE FUNDS, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
Title: President/CEO
TACTICAL ALLOCATION SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
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OPERATING SERVICES AGREEMENT
SCHEDULE A
REGISTERED INVESTMENT COMPANY FUNDS EFFECTIVE DATE
Agile Funds, Inc. Agile Multi-Strategy Fund _____, 2004
OPERATING SERVICES AGREEMENT
SCHEDULE B
For full compensation for services provided under this Agreement, the
Company pays a monthly fee to Tactical computed daily and paid monthly at an
annual rate of 1.0% of the Fund's average daily net assets.
