MUTUAL FUND SERVICES AGREEMENT
Fund Administration Services
Fund Accounting Services
Transfer Agency Services
between
XXXXXX CAPITAL FUNDS, INC.
and
UNIFIED FUND SERVICES, INC.
Exhibit A Portfolio Listing
Exhibit B - Fund Administration Services Description
Exhibit C - Fund Accounting Services Description
Exhibit D - Transfer Agency Services Description
Exhibit E - Anti-Money Laundering Services
Exhibit F - Fees and Expenses
AMENDED AND RESTATED
MUTUAL FUND SERVICES AGREEMENT
This Amended and Restated Mutual Fund Services Agreement is entered into
and effective as of May 26, 2005 by and between Xxxxxx Capital Funds, Inc., a
Maryland corporation (the "Fund") and Unified Fund Services, Inc., a Delaware
corporation ("Unified").
WHEREAS, the Fund and Unified entered into a Mutual Fund Services Agreement
dated February 9, 2004 and they desire to amend and restate the Agreement as
provided herein;
WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain Unified to provide certain transfer
agent, fund accounting and administration services with respect to the Fund, and
Unified is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. Appointment. The Fund hereby appoints Unified to provide
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transfer agent, fund accounting and fund administration services for the Fund,
subject to the supervision of the Board of Directors of the Fund (the "Board"),
for the period and on the terms set forth in this Agreement. Unified accepts
such appointment and agrees to furnish the services herein set forth in return
for the compensation as provided in Section 6 and Exhibit F to this Agreement.
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The Fund will initially consist of the portfolios, funds and/or classes of
shares (each a "Portfolio"; collectively the "Portfolios") listed on Exhibit A.
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The Fund shall notify Unified in writing of each additional Portfolio
established by the Fund. Each new Portfolio shall be subject to the provisions
of this Agreement, except to the extent that the provisions (including those
relating to the compensation and expenses payable by the Fund and its
Portfolios) may be modified with respect to each new Portfolio in writing by the
Fund and Unified at the time of the addition of the new Portfolio.
SECTION 2. Representations and Warranties of Unified. Unified represents
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and warrants to the Fund that:
(a) Unified is a corporation duly organized and existing under the laws of
the State of Delaware;
(b) Unified is empowered under applicable laws and by its Certificate of
Incorporation and By-Laws to enter into and perform this Agreement, and all
requisite corporate proceedings have been taken by Unified to authorize Unified
to enter into and perform this Agreement;
(c) Unified has, and will continue to have, access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(d) no legal or administrative proceedings have been instituted or
threatened against Unified that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) Unified's entrance into this Agreement will not cause a material breach
or be in material conflict with any other agreement or obligation of Unified or
any law or regulation applicable to Unified.
SECTION 3. Representations and Warranties of the Fund. The Fund represents
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and warrants to Unified that:
(a) the Fund is a corporation duly organized and existing under the laws of
the State of Maryland;
(b) the Fund is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement, and the Fund
and its Board have taken all requisite proceedings and actions to authorize the
Fund to enter into and perform this Agreement;
(c) the Fund is an investment company properly registered under the 1940
Act; a registration statement under the Securities Act of 1933, as amended
("1933 Act"), and the 1940 Act on Form N-lA has been filed and will be effective
and will remain effective during the term of this Agreement, and all necessary
filings under the laws of the states will have been made and will be current
during the term of this Agreement;
(d) no legal or administrative proceedings have been instituted or
threatened against the Fund that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) the Fund's entrance into this Agreement will not cause a material
breach or be in material conflict with any other agreement or obligation of the
Fund or any law or regulation applicable to it.
SECTION 4. Delivery of Documents and Other Materials.
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(a) The Fund will promptly furnish to Unified such copies, properly
certified or authenticated, of contracts, documents and other related
information that Unified may request or require to properly discharge its
duties. Such documents may include, but are not limited to, the following:
(i) resolutions of the Board authorizing the appointment of Unified to
provide certain transfer agency, fund accounting and administration
services to the Fund and approving this Agreement;
(ii) the Fund's Articles of Incorporation;
(iii) the Fund's By-Laws, anti-money laundering policies, and code of
ethics;
(iv) the Fund's Notification of Registration on Form N-8A under the
1940 Act as filed with the Securities and Exchange Commission ("SEC");
(v) the Fund's registration statement including exhibits, as amended,
on Form N-1A (the "Registration Statement") under the 1933 Act and the 1940
Act, as filed with the SEC;
(vi) copies of the Management Agreement between the Fund and its
investment advisor (the "Advisory Agreement"), and advisor or sub-advisor
proxy voting procedures, and copies of the advisor's errors and omissions
and directors' and officers' insurance policies;
(vii) opinions of counsel and auditors reports;
(viii) the Fund's Prospectus and Statement of Additional Information
relating to all Portfolios and all amendments and supplements thereto (such
Prospectus and Statement of Additional Information and supplements thereto,
as presently in effect and as from time to time hereafter amended and
supplemented, herein called the "Prospectuses"); and
(ix) such other agreements as the Fund may enter into from time to
time including securities lending agreements, futures and commodities
account agreements, brokerage agreements and options agreements, and the
Fund's errors and omissions and directors' and officers' insurance
policies.
(b) The Fund shall cause to be turned over to Unified copies of all records
of, and supporting documentation relating to, its accounts (including account
applications and related documents, records of dividend
distributions, NAV calculations, tax reports and returns, and receivables and
payables) for all Portfolios and matters for which Unified is responsible
hereunder, together with such other records relating to such Portfolios and
matters as may be helpful or necessary to Unified's delivery of services
hereunder, including copies of litigation, regulatory inquiries or
investigations, or other litigation involving the Fund during the three years
preceding the date of this Agreement. Such records and documentation shall be in
electronic format to the extent practicable. The Fund also shall cause to be
delivered to Unified reconciliations (as of the date Unified begins providing
services hereunder) of the Fund's outstanding shares, securities and cash held
by the Fund, checking accounts, outstanding redemption checks and related
accounts, tax payments and backup withholding accounts, and any other demand
deposit accounts or other property held or owned by the Fund. The parties
acknowledge that Unified will rely on these reconciliations (and other balances
provided by Unified's predecessor) as opening balances for the performance of
its services. On an ongoing basis, the Fund shall cause to be turned over to
Unified all trade tickets and other documents evidencing transactions made on
behalf of the Fund as and when made.
SECTION 5. Services Provided by Unified.
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(a) Unified will provide the following services subject to the direction
and supervision of the Fund's Board, and in compliance with the objectives,
policies and limitations set forth in the Fund's Registration Statement,
Articles of Incorporation and By-Laws; applicable laws and regulations; and all
resolutions and policies implemented by the Board, and further subject to
Unified's policies and procedures as in effect from time to time:
(i) Fund Administration Services, as described on Exhibit B to this
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Agreement.
(ii) Fund Accounting Services, as described on Exhibit C to this
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Agreement.
(iii) Transfer Agency Services, as described on Exhibit D to this
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Agreement. In connection with such services, Unified is hereby granted such
power and authority as may be necessary to establish one or more bank
accounts for the Fund as may be necessary or appropriate from time to time
in connection with the services performed by Unified. The Fund shall be
deemed to be the customer of such bank or banks for purposes of this
Agreement. To the extent that the performance of such service hereunder
shall require Unified to disburse amounts from such accounts in payment of
dividends, redemption proceeds or for other purposes, the Fund shall
provide such bank or banks with all instructions and authorizations
necessary, if any, for Unified to effect such disbursements. The Fund shall
cause any predecessor banks to provide Unified with such records as may be
helpful or necessary in connection with the services provided by Unified
under this Agreement.
(iv) Unified AML Program Services, as described on Exhibit E to this
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Agreement. Unified formulates, maintains and uniformly administers policies
and procedures (as amended from time to time, the "Unified AML Program")
that are reasonably designed to ensure compliance with the USA Patriot Act
of 2002, the Bank Secrecy Act of 1970, the Customer Identification Program
rules jointly adopted by the SEC and U.S. Treasury Department, and other
applicable regulations adopted thereunder (collectively, the "Applicable
AML Laws"). Unified has provided the Fund with a copy of the Unified AML
Program documents, and will provide the Fund with all amendments thereto.
The Fund hereby delegates to Unified its obligation to identify and verify
its customers and its obligations to perform those anti-money laundering
and other services set forth in Exhibit E to this Agreement, in each case
with regard to those shareholder accounts maintained by Unified pursuant to
this Agreement. Unified accepts the foregoing delegation and agrees to
perform the duties set forth on Exhibit E in accordance with the Unified
AML Program. The Fund acknowledges and agrees that, notwithstanding such
delegation, the Fund maintains full responsibility for ensuring its
compliance with Applicable AML Laws and, therefore, must monitor the
operation and effectiveness of the Unified AML Program.
(v) Dividend Disbursing. Unified will serve as the Fund's dividend
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disbursing agent. Unified will prepare and mail checks, place wire
transfers of credit income and capital gain payments to
shareholders. The Fund will advise Unified in advance of the declaration of
any dividend or distribution and the record and payable date thereof.
Unified will, on or before the payment date of any such dividend or
distribution, notify the Fund's Custodian of the estimated amount required
to pay any portion of such dividend or distribution payable in cash, and on
or before the payment date of such distribution, the Fund will instruct its
Custodian to make available to Unified sufficient funds for the cash amount
to be paid out. If a shareholder is entitled to receive additional shares
by virtue of any such distribution or dividend, appropriate credits will be
made to each shareholder's account and/or certificates delivered where
requested. A shareholder not receiving certificates will receive a
confirmation from Unified indicating the number of shares credited to
his/her account.
(b) Unified will also:
(i) provide office facilities with respect to the provision of the
services contemplated herein (which may be in the offices of Unified or a
corporate affiliate of Unified);
(ii) provide or otherwise obtain personnel sufficient, in Unified's
sole discretion, for provision of the services contemplated herein;
(iii) furnish equipment and other materials, which Unified, in its
sole discretion, believes are necessary or desirable for provision of the
services contemplated herein; and
(iv) keep records relating to the services provided hereunder in such
form and manner as set forth on (or required by policies described in)
Exhibits B, C, D and E and as Unified, in its sole discretion, may
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otherwise deem appropriate or advisable, all in accordance with the 1940
Act. To the extent required by Section 31 of the 1940 Act and the rules
thereunder, Unified agrees that all such records prepared or maintained by
Unified relating to the services provided hereunder are the property of the
Fund and will be preserved for the periods prescribed under Rule 31a-2
under the 1940 Act, maintained at the Fund's expense, and made available to
the SEC for inspection in accordance with such Section and rules. Subject
to the provisions of Section 9 hereof, Unified further agrees to surrender
promptly to the Fund upon its request those records and documents created
and maintained by Unified pursuant to this Agreement.
SECTION 6. Fees: Expenses: Expense Reimbursement.
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(a) As compensation for the services rendered to the Fund pursuant to this
Agreement the Fund shall pay Unified on a monthly basis those fees determined as
set forth on Exhibit F to this Agreement. The fees set forth on Exhibit F may be
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adjusted from time to time by agreement of the parties. Upon any termination of
this Agreement before the end of any month, the fee for the part of the month
before such termination shall be equal to the fee normally due for the full
monthly period and shall be payable, without setoff, upon the date of
termination of this Agreement.
(b) For the purpose of determining fees calculated as a function of a
Portfolio's net assets, the value of the Portfolio's net assets shall be
computed as required by the Prospectus, generally accepted accounting principles
and resolutions of the Board.
(c) Unified will from time to time employ or associate with such person or
persons as may be appropriate to assist Unified in the performance of this
Agreement. Except as otherwise expressly provided in this Agreement, the
compensation of such person or persons for such employment shall be paid by
Unified and no obligation will be incurred by or on behalf of the Fund in such
respect. If any such person or persons are employed or designated as officers by
both Unified and the Fund, Unified shall be responsible for the compensation of
such person (including travel and other expenses) in their capacity as an
employee or officer of Unified, and the Fund shall be responsible for the
compensation of such person (including travel and other expenses) in their
capacity as an employee or officer of the Fund. If Unified gives permission to
one or more of its employees or officers to act as an
employee, officer or other agent of the Fund, Unified shall not be responsible
for any action or omission of any such person(s) while such person is rendering
or deemed to be rendering services to the Fund or acting on business of the
Fund.
(d) Unified will bear all of its own expenses incurred by reason of its
performance of the services required under this Agreement, except as otherwise
expressly provided in this Agreement. The Fund agrees to promptly reimburse
Unified for any equipment and supplies specially ordered by or for the Fund
through Unified and for any other expenses not contemplated by this Agreement
that Unified may incur on the Fund's behalf, at the Fund's request or as
consented to by the Fund. Such other expenses to be incurred in the operation of
the Fund and to be borne by the Fund, include, but are not limited to: taxes;
interest; brokerage fees and commissions; salaries and fees of officers and
directors who are not officers, directors, shareholders or employees of Unified
or Unified's affiliates; SEC and state Blue Sky registration and qualification
fees, levies, fines and other charges; advisory fees; charges and expenses of
custodians; insurance premiums including fidelity bond premiums, errors and
omissions and directors and officers premiums; auditing and legal expenses;
costs of maintenance of corporate existence; expenses of typesetting and
printing of prospectuses and for distribution to current shareholders of the
Fund; expenses of printing and production costs of shareholders' reports and
proxy statements and materials; costs and expenses of Fund stationery and forms;
costs and expenses of special telephone and data lines and devices; costs
associated with corporate, shareholder and Board meetings; and any extraordinary
expenses and other customary Fund expenses. In addition, Unified may utilize one
or more independent pricing services to obtain securities prices and to act as
backup to the primary pricing services, in connection with determining the net
asset values of the Fund, and the Fund will be charged according to the Fund's
share of the cost of such services based upon the actual usage, or a pro-rata
estimate of the usage, of the services. The parties acknowledge that the Fund
may contract with its own pricing service and cause such information to be
timely provided to Unified, and is under no obligation to avail itself of the
service(s) contracted by Unified. The Fund retains sole responsibility for the
pricing of securities that are not actively traded, and shall similarly be
responsible for the valuation of odd lot securities (including bonds), and to
the extent Unified shall render assistance in such valuation, the Fund shall
bear Unified's costs and pay Unified for its assistance at its normal hourly
rate then in effect.
(e) The Fund may request additional services, additional processing or
special reports. Additional services, including third party services, generally
will be charged at Unified's standard rates or at such other rate as agreed by
the parties. The parties acknowledge that the Fund is under no obligation to
avail itself of third party services through Unified, and is free to choose its
own service provider, so long as such choice does not cause additional work on
Unified's part.
(f) All fees, out-of-pocket expenses or additional charges of Unified shall
be billed on a monthly basis and shall be due and payable upon receipt of the
invoice. No fees, out-of-pocket expenses or other charges set forth in this
Agreement shall be subject to setoff.
Unified will render, after the close of each month in which services have
been furnished, a statement reflecting the charges for such month. Charges
remaining unpaid after thirty (30) days shall bear interest at the rate of 1.5%
per month (including specific amounts which are contested in good faith by the
Fund as provided in the next paragraph, unless such amounts prove not to be
payable), and all costs and expenses of effecting collection of any such charges
and interest, including reasonable attorney's fees, shall be paid by the Fund to
Unified.
In the event that the Fund is more than sixty (60) days delinquent in its
payments of monthly xxxxxxxx in connection with this Agreement (with the
exception of specific amounts which are contested in good faith by the Fund as
provided below), this Agreement may be terminated upon thirty (30) days' written
notice to the Fund by Unified. The Fund must notify Unified in writing of any
contested amounts within thirty (30) days of receipt of a billing for such
amounts, and the notice shall contain a description of the grounds for the
objection sufficient to permit an investigation and determination of its
accuracy. Amounts contested in good faith in writing within such 30-day period
are not due and payable while they are being investigated; uncontested amounts
remain due and payable.
SECTION 7. Proprietary and Confidential Information. Unified agrees on
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behalf of itself and its employees to treat confidentially and as proprietary
information of the Fund, all records and other information relative to the
Fund's prior, present or potential shareholders, and to not use such records and
information for any purpose other than performance of Unified's
responsibilities, rights and duties hereunder. Unified may seek a waiver of such
confidentiality provisions by furnishing reasonable prior notice to the Fund and
obtaining approval in writing from the Fund, which approval shall not be
unreasonably withheld. Waivers of confidentiality are not necessary (and are
deemed given) for use of such information for any purpose in the course of
performance of Unified's responsibilities, duties and rights hereunder, when
Unified may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, with respect to Internal Revenue Service levies, subpoenas and
similar actions, and with respect to any request by the Fund.
SECTION 8. Duties, Responsibilities and Limitations of Liability.
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(a) The parties agree that this Agreement is a contract for services, and
Unified accepts the duties imposed upon it by this Agreement. Unified shall be
liable to the Fund in accordance with the laws of the State of Indiana for any
breach by Unified of the duties imposed upon it by this Agreement.
(b) Neither Unified nor any of its officers, directors, partners,
employees, shareholders or agents (collectively, the "Unified Parties") shall
have any duty to the Fund to discover or attempt to discover any error or
mistake (including any continuing error) that occurred or began prior to the
date Unified commences performing services hereunder, and Unified is entitled to
rely upon, assume the accuracy of, and maintain, continue and carry forward the
classifications, conventions, treatments, entries, balances, practices and all
other work product and other data of its predecessor service providers;
provided, however, that Unified shall promptly notify the Fund of any errors of
its predecessors that it discovers, and the Fund and Unified shall at that time
determine how to proceed. Unified shall be entitled to receive, and the Fund
shall cause it to receive, the work product of its predecessor service
providers.
(c) In performing its services hereunder, Unified shall be entitled to rely
on any oral or written instructions, advice, notices or other communications,
information, records and documents (collectively, "Fund Information") from the
Fund, its custodian, officers and directors, investors, brokers, investment
advisors, agents, legal counsel, auditor and other service providers, including
predecessor service providers (excluding in each case, the Unified Parties) (the
Fund, collectively with such persons other than the Unified Parties, "Fund
Representatives"), which Unified reasonably believes to be genuine, valid and
authorized. Unified also shall be entitled to consult with and rely on the
advice and opinions of the Fund's auditor and of outside legal counsel retained
by the Fund, as may be reasonably necessary or appropriate in Unified's sole
judgment, as well as other Fund Representatives, in each case at the expense of
the Fund. For all purposes of this Agreement, any person who is an officer,
director, partner, employee or agent of a Unified Party, and who is also an
officer, director, partner, employee or agent of the Fund, shall be deemed when
rendering services to the Fund or acting on any business of the Fund to be
acting solely in such person's capacity as an officer, director, partner,
employee or agent of the Fund, and shall be deemed when rendering services in
fulfillment of Unified's duties hereunder to be acting solely in such person's
capacity as an officer, director, partner, employee or agent of Unified.
(d) Notwithstanding any other provision of this Agreement, the Fund agrees
to defend, indemnify and hold Unified and the other Unified Parties harmless
from all demands, claims, causes or other actions or proceedings of any nature
or kind whatsoever (collectively, "Claims"), expenses, liabilities, debts,
costs, losses, reasonable attorneys' fees and expenses, payments, and damages of
every nature or kind whatsoever (collectively, "Damages") arising directly or
indirectly out of or in connection with:
(i) the reliance on or use by the Unified Parties of Fund Information
which is furnished to any of the Unified Parties by or on behalf of any of
the Fund Representatives, including the reliance by Unified upon the
historical accounting records and other records of the Fund;
(ii) any delays, inaccuracies, errors or omissions in or arising out
of or attributable to Fund
Information which is furnished to any of the Unified Parties by or on
behalf of any of the Fund Representatives or to the untimely provision to
Unified of such Fund Information;
(iii) the taping or other form of recording of telephone conversations
or other forms of electronic communications with investment advisors,
brokers, investors and shareholders, or reliance by Unified on telephone or
other electronic instructions of any person acting on behalf of a
shareholder or shareholder account for which telephone or other electronic
services have been authorized;
(iv) the reliance on or the carrying out by Unified or its officers or
agents of any instructions reasonably believed to be duly authorized, or
requests of the Fund, or recognition by Unified of any share certificates
that are reasonably believed to bear the proper signatures of the officers
of the Fund and the proper countersignature of any transfer agent or
registrar of the Fund;
(v) any delays, inaccuracy, errors or omissions in or arising out of
or attributable to data or information provided to Unified by data and/or
pricing services or any other third party services, including but not
limited to escheatment and lost account services, and/or the selection of
any service provider, regardless of whether the Fund hires such services
itself or instead chooses to utilize the service through Unified;
(vi) the offer or sale of shares by the Fund in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state or other instrumentality, or in
violation of any stop order or other determination or ruling by any federal
agency or any state agency with respect to the offer or sale of such shares
in such state or instrumentality (1) resulting from activities, actions or
omissions by Fund Representatives, or (2) existing or arising out of
activities, actions or omissions by or on behalf of the Fund
Representatives prior to the earlier of (x) the effective date of this
Agreement and (y) the effective date of an agreement between the parties
hereto with respect to the subject matter hereof that was in effect prior
to the effective date of this Agreement;
(vii) the noncompliance by the Fund, its investment advisor(s) and/or
its distributor with applicable securities, tax, commodities and other
laws, rules and regulations;
(viii)any Claim asserted by any current or former shareholder of the
Fund, or on such shareholder's behalf or derivatively by any
representative, estate, heir or legatee, agent or other person, in
connection with the holding, purchase or sale of shares of the Fund; and
(ix) with the exception of any Claim for breach of contract arising
out of this Agreement, any Claim taken by or on behalf of the Fund against
any of the Unified Parties that arises directly or indirectly in connection
with this Agreement, or directly or indirectly out of a Unified Party's
actions (or failure to act) in connection with this Agreement.
(e) In any case in which the Fund may be asked to indemnify or hold any
Unified Party harmless, the Unified Party will notify the Fund promptly after
identifying any circumstance that it believes presents or appears likely to
present a demand for indemnification against the Fund and shall keep the Fund
advised with respect to all material developments concerning such Claim;
provided, however, that the failure to do so shall not prevent recovery by the
Unified Party unless such failure causes actual material harm to the Fund. For
so long as indemnification payments due under this subparagraph are made to the
Unified Party when due, the Unified Party will not confess, compromise or settle
any Claim as to which the Fund Party will be asked to provide indemnification,
except with the Fund's prior written consent, which consent shall not be
unreasonably withheld; provided, however, that the Unified Party shall be
entitled to confess, compromise or settle any such Claim in connection with
which indemnification payments due under this subparagraph have not been made to
such Unified Party when due. Any payments under this subparagraph shall be due
upon presentment of substantiation that payment is due from the Unified Party on
the item of indemnified Damage (including attorney's fees), and shall bear
interest at the rate of 1.5% per month from the date of presentment, plus all
costs and expenses of effecting collection of any such payment and interest,
including reasonable attorney's fees.
(f) Each of the Unified Parties, on the one hand, and the Fund, on the
other hand, shall have the duty to mitigate Damages for which the other party
may become responsible at law and/or in connection with this Agreement. This
duty shall include giving such other party every reasonable opportunity to
correct or ameliorate any error or other circumstance that caused, resulted in
or increased such Damages, and every reasonable opportunity to assist in such
mitigation. The parties acknowledge that the proper accounting, tax or other
treatment of an event or matter can be susceptible to differing opinions among
reputable practitioners of appropriate expertise, both as to events and
transactions that are complete and as to the most efficient remediation of
events and transactions that have resulted or may result in Damages. It is the
intention of the parties that events and transactions be treated and reported in
a legitimate manner that gives rise to the smallest amount of Damages, and that
any remediation or corrective action selected be that which gives rise to the
smallest amount of Damages. Accordingly and notwithstanding any other provision
of this Agreement, as to any matter where any portion of Damages arises in
connection with (or is determined by reference to, or caused or increased by)
the accounting or tax treatment of such matter, no recovery for any amount of
Damages in connection with such matter shall be had by any party to (or
beneficiary of) this Agreement if an alternative characterization, manner of
treatment, reporting or remediation of such item or amount (that tends to
mitigate such Damages) is or was possible and such alternative is or was, in the
written opinion of any reputable practitioner of appropriate expertise, more
likely than not a proper alternative (such opinion to be rendered in customary
form, subject to customary assumptions and representations); provided however,
that the provisions of this sentence shall not apply and recovery of such
Damages will not be precluded if and only if (i) the person seeking or who may
have sought to recover Damages (the "Damaged Party") provided the party against
whom recovery is or may have been sought (the "Potentially Responsible Party")
written notice bearing the bold heading "Notice of Potential Claim for Damages,"
identifying this Agreement, and describing the nature of the potential Claim and
the subject matter of the required opinion, (ii) such notice is sent by
certified mail and actually delivered to the Potentially Responsible Party
within fourteen (14) days after the Damaged Party first discovers the alleged
error, (iii) the Damaged Party fully and promptly cooperates in the attempts of
the Potentially Responsible Party to obtain such an opinion, and (iv) no such
opinion is obtained within sixty (60) days after delivery of such notice; and
provided further, if such an opinion is obtained on or before the end of the
60-day period described above, recoverable Damages shall be limited to those
that would be recoverable if such alternative characterization, manner of
treatment, reporting or remediation were implemented. If an opinion described in
the preceding sentence is obtained by the Potentially Responsible Party, the
Damaged Party shall bear the cost of such opinion.
(g) UNIFIED HEREBY AGREES TO CONTINUE TO PROVIDE AND MAINTAIN A FIDELITY
BOND OF NO LESS THAN $5 MILLION AND A PROFESSIONAL LIABILITY POLICY (ERRORS AND
OMISSIONS) WITH A LIMIT OF NO LESS THAN $5 MILLION, EACH PLACED WITH AN
INSURANCE CARRIER WITH AN A.M. BEST RATING GREATER THAN A-. UNIFIED AGREES TO
NOTIFY THE FUND WITHIN 30 DAYS IN THE EVENT THAT THE AGGREGATE LIMIT UNDER THE
PROFESSIONAL LIABILITY POLICY (ERRORS AND OMISSIONS) IS REDUCED TO $3 MILLION OR
LESS. RECOVERIES UNDER THE ABOVE-REFERENCED BOND AND POLICY SHALL BE USED TO
REIMBURSE A PORTFOLIO FOR DAMAGES INCURRED BY THE PORTFOLIO FOR WHICH UNIFIED OR
ANY OTHER UNIFIED PARTY HAS LIABILITY UNDER THIS AGREEMENT. NOTWITHSTANDING ANY
OTHER PROVISION IN THIS AGREEMENT, THE LIABILITY OF THE UNIFIED PARTIES FOR
DAMAGES (EXCLUDING DAMAGES REIMBURSED PURSUANT TO THE PRECEDING SENTENCE) THAT
ARISE DIRECTLY OR INDIRECTLY IN CONNECTION WITH THIS AGREEMENT, OR THAT ARISE
DIRECTLY OR INDIRECTLY OUT OF A UNIFIED PARTY'S ACTIONS (OR FAILURES TO ACT) IN
CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR LEGAL
THEORY, SHALL NOT EXCEED, IN THE AGGREGATE IN ANY CALENDAR YEAR, THE LESSER OF
$1 MILLION OR AN AMOUNT EQUAL TO THE FEES PAID BY ALL PORTFOLIOS OF THE FUND TO
UNIFIED PURSUANT TO THIS AGREEMENT DURING THE 48 MONTHS IMMEDIATELY PRECEDING
THE DISCOVERY OF THE EVENT GIVING RISE TO THE LIABILITY. THE FUND UNDERSTANDS
THIS LIMITATION UPON THE UNIFIED PARTIES' DAMAGES TO BE A REASONABLE ALLOCATION
OF RISK (BOTH INSURABLE AND OTHER RISKS), AND THE FUND EXPRESSLY CONSENTS TO
SUCH ALLOCATION OF RISK. THE FUND AND THE UNIFIED PARTIES AGREE THAT DAMAGES
LIMITATIONS AND INDEMNIFICATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY TO ANY
ALTERNATIVE REMEDY ORDERED BY AN ARBITRATION PANEL, COURT OR OTHER TRIER OF FACT
IN THE EVENT ANY TRIER OF FACT
DETERMINES THAT THE REMEDIES PROVIDED IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL
PURPOSE.
(h) Except for remedies that cannot be waived as a matter of law and
injunctive relief, the remedies provided in this Section 8 shall be the Fund's
sole and exclusive remedies for Claims and Damages that arise directly or
indirectly in connection with this Agreement, or directly or indirectly out of a
Unified Party's actions (or failure to act) in connection with this Agreement.
SECTION 9. Term. This Agreement shall become effective on the date first
----
herein above written. This Agreement may be modified or amended from time to
time by mutual agreement between the parties hereto. This Agreement shall
continue in effect unless terminated by either party on at least (i) 180 days'
prior written notice, if such notice is given on or prior to the second
anniversary of this Agreement, or (ii) ninety (90) days' prior written notice,
if such notice is given after the second anniversary of this Agreement. With the
sole exception of the 30-day termination described in Section 6(f) and the
180-day and 90-day terminations provided in this Section 9, no other event
(including any purported or actual breach) shall result in termination of this
Agreement, and the date of termination shall be the earlier of the last day of
the applicable notice period and the date of any merger, liquidation of the Fund
or other transaction of the Fund whereunder Unified does not provide services to
the surviving entity, if any, under this Agreement. On the date of termination,
the Fund shall pay to Unified all fees, compensation and other charges as shall
be accrued or due (or would accrue and become due) under the terms of this
Agreement through the last day of the applicable notice period. Unified shall
cease providing services upon the date of termination, except as otherwise
provided in this Section 9.
On the date of termination,, the Fund agrees to pay termination/conversion
fees simultaneous with the transfer of all Fund records to the Fund or to the
successor mutual fund service provider(s), for the expenses incurred in
connection with the retrieval, compilation and movement of books, records and
materials relative to the deconversion or conversion of Fund records to the Fund
or the successor mutual fund service provider, the closing of Unified's records
(and/or services related to the liquidation or other transaction), and other
services related to termination of Unified's services. Such fee shall not be
subject to any setoffs of any nature. In addition, the Fund agrees to pay for
all conversion tape set-up fees, test conversion preparation and processing fees
and final conversion fees, none of which shall be subject to any setoff.
On the date of termination and upon payment of all amounts due and payable
under this Agreement without setoff (excluding only those amounts not then due
and payable under Section 6(f); provided, however, that the
termination/conversion fees described in this Section 9 shall be paid without
setoff notwithstanding any dispute), Unified agrees to provide the Fund with the
complete transfer agency, fund accounting and administration records in its
possession and to assist the Fund in the orderly transfer of accounts and
records. Without limiting the generality of the foregoing, subject to the
preceding sentence, Unified agrees that upon termination of this Agreement:
(a) to deliver to the Fund or to the successor mutual fund service
provider(s), computer media containing the Fund's accounts and records together
with such record layouts and additional information as may reasonably be
necessary to enable the successor mutual fund service provider(s) to utilize the
information therein;
(b) to reasonably cooperate with the successor mutual fund service
provider(s) in the interpretation of the Fund's account and records;
(c) to forward all shareholder calls, mail and correspondence to the new
mutual fund service provider(s) upon de-conversion; and
(d) to act in good faith to make the conversion as smooth as possible for
the successor mutual fund service provider(s) and the Fund.
SECTION 10. Notices. Any notice required or permitted hereunder shall be in
-------
writing and shall be deemed to have been given and effective when delivered in
person or by certified mail, return receipt requested, at the following address
(or such other address as a party may specify by notice to the other):
(a) If to the Fund, to:
Xxxxxx Capital Funds, Inc.
0000 X. 000xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: President
(b) If to Unified, to:
Unified Fund Services, Inc.
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Notice also shall be deemed given and effective upon receipt by any party
or other person at the preceding address (or such other address as a party may
specify by notice to the other) if sent by regular mail, private messenger,
courier service, telex, facsimile, or otherwise, if such notice bears on its
first page in 14 point (or larger) bold type the heading "Notice Pursuant to
Mutual Fund Services Agreement."
SECTION 11. Assignment; Nonsolicitation; and Other Contracts. This
------------------------------------------------------
Agreement may not be assigned or otherwise transferred by either party hereto,
without the prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that Unified may, in its sole
discretion and upon notice to the Fund, assign all its right, title and interest
in this Agreement to an affiliate, parent or subsidiary, or to the purchaser of
substantially all of its business. Unified may, in its sole discretion, engage
subcontractors to perform any of its duties contained in this Agreement,
provided that Unified shall remain responsible to the Fund for all such
delegated duties in accordance with the terms and conditions of this Agreement,
in the same manner and to the same extent as if Unified were providing such
services itself. During the term of this Agreement and for a period of one (1)
year following the termination of this Agreement, the Fund shall not, and shall
not cause suffer or permit any affiliate, to recruit, solicit, employ or engage,
for the Fund or others, any Unified Party, without Unified's written consent.
The Fund shall not require or expect Unified to enter into any agreements for
the Fund's direct or indirect benefit, including any sales, servicing or other
similar agreements, that expose Unified to any liability that is greater than
the liability it is undertaking in this Agreement.
SECTION 12. Intended Beneficiaries. This Agreement shall be binding upon
-----------------------
the Fund, Unified and their respective successors and assigns, and shall inure
to the benefit of the Fund, Unified, the Unified Parties, their respective
heirs, successors and assigns. Nothing herein expressed or implied is intended
to confer upon any person not named or described in the preceding sentence any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 13. Arbitration. Notwithstanding any provision of this Agreement to
-----------
the contrary, any claim or controversy arising out of or in any manner relating
to this Agreement, or breach hereof, which cannot be resolved between the
parties themselves, shall be settled by arbitration administered by the American
Arbitration Association in Indianapolis, Indiana in accordance with its rules
applicable to commercial disputes. The arbitration panel shall consist of three
arbitrators selected from list(s) of candidates provided by the American
Arbitration Association. One party to the dispute shall be entitled to appoint
one arbitrator and the other party to the dispute shall be entitled to appoint
one arbitrator. The third arbitrator, who shall be an attorney in good standing
who is licensed to practice law in the State of Indiana and devotes more than
one-half of his or her professional time to the practice of commercial law in
the area of contracts and/or commercial transactions, shall be chosen by the two
arbitrators so appointed. If any party fails to appoint its arbitrator or to
notify the other party of such appointment within thirty (30) days after the
institution of arbitration proceedings, such other party may request the
President of the American
Arbitration Association to appoint such arbitrator on behalf of the party who so
failed. If the two arbitrators appointed by (or on behalf of) the parties fail
to appoint such third arbitrator, or fail to notify the parties to such
proceedings of such appointment, within thirty (30) days after the appointment
of the later of such two arbitrators to be appointed by (or on behalf of) the
parties, any party may request such President to appoint such third arbitrator.
The President of the American Arbitration Association shall appoint such
arbitrator or such third arbitrator, as the case may be, within thirty (30) days
after the making of such request. The parties hereby agree that judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction. The parties acknowledge and agree that the performance of the
obligations under this Agreement necessitates the use of instrumentalities of
interstate commerce and, notwithstanding other general choice of law provisions
in this Agreement, the parties agree that the Federal Arbitration Act shall
govern and control with respect to the provisions of this Section 13.
SECTION 14. Waiver. The failure of a party to insist upon strict adherence
------
to any term of this Agreement on any occasion shall not be considered a waiver
nor shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
SECTION 15. Force Majeure. Unified shall not be responsible or liable for
--------------
any failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including without limitation, acts of God, earthquake, fires, floods,
failure or fluctuations in electrical power, wars, acts of terrorism, acts of
civil or military authorities, governmental actions, nonperformance by a third
party or any similar cause beyond the reasonable control of Unified, failures or
fluctuations in telecommunications or other equipment, nor shall any such
failure or delay give the Fund the right to terminate this Agreement.
SECTION 16. Use of Name. The Fund and Unified agree not to use the other's
-----------
name nor the names of such other's affiliates, designees, or assignees in any
prospectus, sales literature, or other printed material written in a manner not
previously, expressly approved in writing by the other or such other's
affiliates, designees, or assignees except where required by the SEC or any
state agency responsible for securities regulation.
SECTION 17. Amendments. This Agreement may be modified or amended from time
----------
to time by mutual written agreement between the parties. No provision of this
Agreement may be changed, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
SECTION 18. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law to any person or circumstance, such provision
shall be ineffective only to the extent of such prohibition or invalidity. In
the event that any one or more of the provisions contained in this Agreement or
any application thereof shall be invalid, illegal or unenforceable in any
respect or to any extent, the validity, legality or enforceability of the
remaining provisions of this Agreement and any other application of such invalid
provision shall not in any way be affected or impaired thereby.
SECTION 19. Headings; Pronouns; Certain Phrases; Rules of Construction. The
----------------------------------------------------------
headings in the sections and subsections of this Agreement are inserted for
convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties. Wherever used in this Agreement,
masculine, feminine and neuter pronouns shall be deemed to include the other
genders. Singular pronouns and nouns (including defined terms) shall be deemed
to include the plural (and vice versa) as the context may require, but shall
have no effect upon the nature of a party's liability as joint or several. The
Exhibits to this Agreement are hereby incorporated by reference as if fully set
forth in this Agreement. Wherever used in this Agreement, the phrase "in
connection with" shall be given the broadest possible interpretation, and shall
include matters (without limitation) that are in whole or part caused by, relate
to, arise out of, are attributable to, or would not have occurred in the absence
of circumstances created by, the referent or object of such phrase. Each party
acknowledges that it was represented by legal counsel in connection with the
review and execution of this Agreement, or that it had an adequate opportunity
to engage counsel for such review and chose not to do so. The sole duties that
Unified is accepting in return for the fees and other remuneration hereunder are
expressly set forth herein. No exoneration of liability for a duty or other
indemnification or limitation shall be construed, by negative implication or
otherwise, to imply the existence of any duty. For example and without
limitation, indemnification of Unified for a failure of an investment advisor to
timely deliver trade tickets (or failure of any other third party to timely
deliver accurate Fund Information) shall not be construed to imply that Unified
has a duty to supervise such service provider or prevent a recurrence of such
failure.
SECTION 20. No Strict Construction. The language used in this Agreement
-----------------------
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
SECTION 21. Entire Agreement; Survival; Governing Law. This Agreement, the
------------------------------------------
Exhibits hereto and any subsequent amendments of the foregoing embody the entire
understanding between the parties with respect to the subject matter hereof, and
supersedes all prior negotiations and agreements between the parties relating to
the subject matter hereof; PROVIDED, HOWEVER, THAT IF AN AGREEMENT BETWEEN THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF WAS IN EFFECT
IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT (THE "PREDECESSOR
AGREEMENT"), THEN THE PROVISIONS CONTAINED IN SECTION 8 OF THE PREDECESSOR
AGREEMENT (RELATING TO INDEMNIFICATION AND OTHER RISK ALLOCATION MATTERS) SHALL,
IN RESPECT OF ALL PERIODS PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT ("PRIOR
PERIODS"), SURVIVE AND REMAIN IN EFFECT TO THE SAME EXTENT AND IN THE SAME
MANNER AS SUCH PROVISIONS WOULD HAVE APPLIED IN RESPECT OF PRIOR PERIODS HAD THE
PREDECESSOR AGREEMENT NOT BEEN SUPERSEDED BY THIS AGREEMENT. The provisions of
Sections 6 through 21, inclusive, shall survive any termination of this
Agreement. This Agreement shall be governed by and construed and interpreted
according to the internal laws of the State of Indiana, without reference to
conflict of law principles.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Mutual Fund
Services Agreement to be signed by their respective duly authorized officers as
of the day and year first above written.
XXXXXX CAPITAL FUNDS, INC.
By: /s/ Xxxxx Xxxxxx Date 5/18/05
------------------------------------- ---------------------
Print Name: Xxxxx Xxxxxx
-----------------------------
Title: CFO
-----------------------------------
Attest: /s/ Xxxx X. Xxxxx
----------------------------------
UNIFIED FUND SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx Date 5/26/05
-------------------------------------- ---------------------
Print Name: Xxxxx X. Xxxxxxx
------------------------------
Title: Senior Vice President
-----------------------------------
By: /s/ Xxxxxxx X. Xxxxx Date 5/26/05
-------------------------------------- ---------------------
Print Name: Xxxxxxx X. Xxxxx
------------------------------
Title: CEO
-----------------------------------
Attest: /s/ Xxxxxxx Xxxxxx, Xx.
----------------------------------
EXHIBIT A
to
Mutual Fund Services Agreement
List of Portfolios
------------------
Xxxxxx Equity & Income Fund
EXHIBIT B
to
Mutual Fund Services Agreement
General Description of Fund Administration Services
---------------------------------------------------
The following is a general description of the administration services Unified
shall provide or make available to the fund:
I. FINANCIAL AND TAX REPORTING
A. Prepare agreed upon management reports and Board of Directors materials
such as unaudited financial statements, distribution summaries, and
deviations of xxxx-to-market valuation and the amortized cost for money
market funds.
B. Calculate and Report Fund performance to outside services as directed by
fund management.
C. Prepare and file Fund's Form N-SAR with the SEC.
D. Prepare and coordinate the printing of fund's Semiannual and Annual Reports
to Shareholders.
E. In conjunction with transfer agent, notify shareholders as to what portion,
if any, of the distributions made by the Fund's during the prior fiscal
year were exempt-interest dividends under Section 852(b)(5)(A) of the Code.
F. Provide financial information for Fund proxy statements and Prospectuses.
II. PORTFOLIO COMPLIANCE
A. Assist with monitoring each portfolio's compliance with investment
restrictions (e.g., issuer or industry diversification, etc.) listed in the
current Prospectus and Statement of Additional Information.
B. Assist with monitoring each portfolio's compliance with the requirements of
Section 851 of the Code for qualification as a RIC (i.e., 90% Income, and
Diversification Tests).
C. Assist with monitoring investment manager's compliance with Board
directives such as "Approved Issuers Listings for Repurchase Agreements",
Rule 17a-7, and Rule 12d-3 procedures.
D. Administer compliance by the fund's directors, officers and "access
persons" under the terms of the fund's Code of Ethics and SEC regulations.
III. REGULATORY AFFAIRS AND CORPORATE GOVERNANCE
A. Assist fund counsel in the preparation and filing of post-effective
amendments to the fund's registration statement on Form N-lA and
supplements as needed.
B. Administer shareholder meetings, and assist fund counsel in the preparation
and filing of proxy materials.
C. Prepare and file Rule 24f-2 notices.
D. Prepare and file all state notifications of intent to sell the fund's
securities including annual renewals, adding new portfolios, preparing and
filing sales reports, filing copies of the registration statement and final
prospectus and statement of additional information, and increasing
registered amounts of securities in individual states.
E. Prepare Board materials for all Board meetings.
F. Assist with the review and monitoring of fidelity bond and errors and
omissions insurance coverage and make any related regulatory filings.
G. Prepare and update documents such as charter document, By-Laws, foreign
qualification filings.
H. Assist in identifying and monitoring pertinent regulatory and legislative
developments which may affect the fund and, in response to the results of
such monitoring, coordinate and provide support to the fund and the fund's
investment advisor with respect to those developments and results,
including support with respect to routine regulatory examinations or
investigations of the fund, and with respect to such matters, to work in
conjunction with outside counsel, auditors and other professional
organizations engaged by the fund.
I. File copies of financial reports to shareholders with the SEC under Rule
30b2-1.
IV. GENERAL ADMINISTRATION
A. For new portfolios obtain Employer Identification Number and CUSIP numbers.
Estimate organizational costs and expenses and monitor against actual
disbursements.
B. Coordinate all communications and data collection with regard to any
regulatory examinations and yearly audits by independent accountants.
C. Establish and monitor expense budgets and accruals.
EXHIBIT C
to
Mutual Fund Services Agreement
General Description of Fund Accounting Services
-----------------------------------------------
The following is a general description of the accounting services Unified shall
provide or make available to the fund:
I. GENERAL DESCRIPTION
A. Maintain the books and records and accounting controls for the fund's
assets, including records of all securities transactions and payments of
fund expenses.
B. Calculate each Portfolio's net asset value in accordance with the
Prospectus and (once the Portfolio meets eligibility requirements) transmit
to NASDAQ and to such other entities as directed by the fund.
C. Provide the Administrator with the requested reports and information deemed
necessary to calculate dividend and capital gain distributions in
accordance with distribution policies detailed in the fund's prospectus.
Assist, if requested, the fund management in making final determinations of
distribution amounts.
D. Assist the fund's public accountants or other professionals in the
preparation and filing of the fund's Federal tax return on Form 1120-RIC
along with all state and local tax returns where applicable. Assist in the
preparation and filing of the Federal Excise Tax Return (Form 8613).
E. Account for dividends, interest and corporate actions received by the fund.
F. Assist the Administrator in the preparation of Fund expense projections and
establishing accruals.
G. Produce transaction data, financial reports and such other periodic and
special reports as the Board may reasonably request.
H. Liaison with the fund's independent auditors.
I. Monitor and administer arrangements with the fund's custodian and
depository banks.
EXHIBIT D
to
Mutual Fund Services Agreement
General Description of Transfer Agency Services
-----------------------------------------------
The following is a general description of the accounting services Unified shall
provide or make available to the fund:
I. GENERAL DESCRIPTION
A. Systems: Utilizing PowerAgent by Envision Financial Systems, Windows NT
-------
Servers and Microsoft SQL Databases, we offer a robust yet open
architecture for shareholder data.
B. Interactive Voice Response: Provides funds with the opportunity to offer
----------------------------
their shareholders 24 hour, 7 day a week access to their account
information, accessing the system either via telephone or computer, subject
to normal interruptions of service.
C. Shareholder Services: Shareholder telephone calls can be answered by
---------------------
Unified's shareholder services department through 800 numbers that are
unique to each fund family, during Unified's normal business hours and
subject to normal interruptions of service. Phone volumes and response
times are continually monitored for quality assurance.
D. Shareholder Recordkeeping: Maintains complete shareholder records for each
-------------------------
fund including the following: (i) name, address and tax identification
number; (ii) number of shares held; (iii) historical information including
dividends paid and individual purchases and redemptions; and (iv) any
systematic purchase or redemption instructions and correspondence relating
to the current maintenance of the account.
E. Purchase and Redemption Orders: Unified will process all purchase and
---------------------------------
redemption orders of a fund's shareholders in accordance with the fund's
current prospectus. Confirmation statements are produced for each
transaction and promptly mailed to shareholders. Daily transaction reports
and share proofs are made available to all necessary parties via electronic
medium.
F. Telephone Orders: Process redemption, exchange and transfer requests upon
----------------
telephone instructions from qualified shareholders, subject to normal
interruptions of service. Unified will redeem and/or transfer fund shares
from any account for which such services have been properly authorized.
G. Shareholder Correspondence: Acknowledge all correspondence from
-----------------------------
shareholders relating to their share accounts and undertake such other
shareholder correspondence as may from time to time be mutually agreed
upon.
H. NSCC Fund/Serv and Networking: Support of the processing of shareholder
-------------------------------
transactions, commissions, and other functionality as may be offered
through NSCC as an optional and additional transfer agency service.
I. Asset Allocation Program Support: Provide rebalancing, asset allocation
---------------------------------
models and performance measurement as an optional and additional transfer
agency service, for certain types of asset allocation and/or wrap programs.
EXHIBIT E
to
Mutual Fund Services Agreement
General Description of the Unified AML Program Services
-------------------------------------------------------
The following is a general description of the Unified AML Program services
Unified shall provide to the fund:
I. GENERAL DESCRIPTION
A. Customer Identification. Verify shareholder identity upon opening new
------------------------
accounts, consistent with the Unified AML Program, and perform such other checks
and verifications as are specified in Unified's Customer Identification Program
(which is a component of the Unified AML Program).
B. Purchase Transactions. Unified shall reject and return to sender any and
---------------------
all checks, deposits, and other deliveries of cash or property that do not
comply with the Unified AML Program, SUBJECT TO THE PROVISIONS OF ANY ADDITIONAL
AGREEMENT BETWEEN THE FUND AND UNIFIED REGARDING SPECIAL LIABILITY CHECKS AND
OTHER REMITTANCES.
C. Monitoring and Reporting. Monitoring shareholder transactions and
--------------------------
identifying and reporting suspicious activities that are required to be so
identified and reported, including suspicious activity reports or Form 8300
reports, and provide other reports of shareholder activity to the Securities and
Exchange Commission, the U.S. Treasury Department, the Internal Revenue Service,
and other appropriate authorities, in each case consistent with the Unified AML
Program.
D. Frozen Accounts. Unified shall place holds on transactions in
-----------------
shareholder accounts or freeze assets in shareholder accounts as provided for in
the Unified AML Program.
E. Maintenance of Records. Maintain all records or other documentation
-----------------------
related to shareholder accounts and transactions therein that are required to be
prepared and maintained pursuant to the Unified AML Program, and make the same
available for inspection by (1) the Funds' compliance officer, (2) any auditor
of the Funds, (3) regulatory or law enforcement authorities, and (4) those other
persons specified in the Unified AML Program.
F. Other Services. Unified shall apply all other policies and procedures of
--------------
the Unified AML Program to the Fund.
G. Maintenance of the Unified AML Program. Unified shall maintain and
----------------------------------------
modify the Unified AML Program from time to time to ensure that it remains
reasonably designed to ensure compliance with the Applicable AML Laws. Upon
request by the Fund, Unified shall make available its compliance personnel to
the Fund and the Fund's counsel to discuss amendments to the Unified AML Program
that the Fund or its counsel believes are necessary to keep such program in
compliance with Applicable AML Laws. Changes to Unified's AML Program or special
procedures may be implemented, at Unified's sole discretion, for an additional
fee to be agreed upon. The Fund may cancel its participation in the Unified AML
Program at any time, and no further fees to Unified in respect of such program
shall accrue after the date of cancellation.
H. Annual Certification. On an annual basis during the term of this
---------------------
Agreement, Unified will certify to the Fund's Board of Directors that it has
implemented the Unified AML Program and that it will continue to perform the
specific requirements of the Unified AML Program in accordance with the terms of
this Agreement.
EXHIBIT F
to
Mutual Fund Services Agreement
TRANSFER AGENCY FEE SCHEDULE
----------------------------
The prices contained herein are effective for twelve months from the execution
date of the Mutual Fund Services Agreement.
I NEW FUND START-UP/EXISTING FUND CONVERSION FEE
--------------------------------------------------------------------------------
o New fund establishment; manual conversion - $1,500 or less per portfolio.
o Electronic conversion - $1.50 per shareholder account
for no-load funds or
- $2.50 per shareholder account
for load funds
* A load fund is defined as any fund with front-end load, CDSC or redemption
fee.
* Electronic conversions are subject to a minimum of $2,500 per fund or
$5,000 per conversion, whichever is greater.
II STANDARD BASE FEES FOR STANDARD BASE SERVICES
--------------------------------------------------------------------------------
The Base Fee1 is $18.00 for money market funds and $15.00 for equity/bond
funds per active Shareholder Account per year with a minimum fee of $15,000
per initial portfolio and/or share class per year plus $9,000 per year for
each additional share class. An Active Shareholder Account is any
Shareholder Account existing on Transfer Agent's computerized files with a
non-zero Share balance. There is a $.50 per account charge in addition to
the base fee for any account with a zero share balance for the current
month, as determined on the last day of each month. The base fee will be
billed on a monthly basis.
1The Base Fee does not include: forms design and printing, statement
production, envelope design and printing, postage and handling,
shipping, statement microfiche copies and 800 number access to
Unified's shareholder services group.
Unified will provide lost account search services in connection of SEC
Rules 17Ad-17 and 17a-24 at a cost of $2.50 per account searched. These
"Electronic Data Search Services" will be performed on a semi-annual basis.
This service will apply to only Active Shareholder Accounts maintained on
the transfer agency system coded as RPO accounts.
In addition to the above fees, there will be a $200.00 per day minimum
fee/rerun charge when the nightly processing has to be repeated due to
incorrect NAV or dividend information received from the Portfolio Pricing
Agent due to incorrect or untimely information provided by an Advisor or
its Agent.
III STANDARD SERVICES PROVIDED
--------------------------------------------------------------------------------
o Open new accounts
o Maintain Shareholder accounts, including:
o Change addresses
o Prepare daily reports on number of Shares, accounts
o Prepare Shareholder federal tax forms
o Withhold taxes on U.S. residents
o Reply to Shareholder calls and correspondence other than that for Fund
information and related inquiries
o Process purchase of Shares
o Process partial and complete redemptions
o Process regular and legal transfer of accounts
o Process dividends and distributions
o Confirm all transactions as provided by the terms of each Shareholder's
account
o Provide a system which will enable Fund to monitor the total number of
Shares sold in each state. System has capability to halt sales and warn
of potential oversell. (Blue Sky Reports)
o Determine/Identify lost Shareholder accounts
o Operate Unified's AML/CIP program
IV STANDARD REPORTS AVAILABLE
--------------------------------------------------------------------------------
o 12b-1 Disbursement Report o Holdings by Account Type
o 12b-1 Disbursement Summary o Posting Details
o Dealer Commission Report o Posting Summary
o Dealer Commission Summary Report o Settlement Summary
o Exchange Activity Report o Tax Register
o Fees Paid Summary Report o Transactions Journal
o Fund Accrual Details
V NSCC INTERFACES
--------------------------------------------------------------------------------
o Fund/Serv and/or Networking set-up - $1,000 per occurrence
o Fund/Serv processing - $250 per month per trust
o Networking processing - $250 per month per trust
o Commserv processing - $250 per month per trust
o Fund/Serv transactions - $0.35 per trade
o Direct Networking expenses:
o Monthly dividend fund - $0.025 per item
o Non-monthly dividend fund - $0.015 per item
VI ANTI-MONEY LAUNDERING - CUSTOMER IDENTIFICATION PROGRAM
--------------------------------------------------------------------------------
o $3.00 per non-exempt shareholder account (as stated in Section 326 of the
USA Patriot Act) submitted to Unified's AML/CIP vendor at account
opening, plus;
o $3.00 per non-exempt shareholder annually thereafter.
VII ADDITIONAL FEES FOR SERVICES OUTSIDE THE STANDARD BASE
--------------------------------------------------------------------------------
o Interactive Voice Response System Set-up - Pass through
o Archiving of old records/storage of aged records - Pass through
o Off-line Shareholder research - $25 per hour (Billed to customer account)
o Check copies - $3 each (Billed to customer account)
o Statement copies - $5 each (Billed to customer account)
o Mailing of semi-annual and annual reports - External Vendor - Pass through
o Mailing of semi-annual and annual reports - Internal Mailing - $1.00 per item
o Mutual Fund fulfillment/prospect file maintenance - $1.00 per item
o Shareholder communications charges (Faxes) - Pass through
o Leased line/equipment on TA's computer system - Pass through
o Dial-up access to TA's computer system - Pass through
o Shareholder labels/ files for mailings - $.05 each ($100 minimum)
o AD-HOC REPORTWRITER Report Generation - $75.00 per report
o Bank Reconciliation Service - $50.00 monthly maintenance fee per bank account
- $1.50 per bank item
o Systems Programming Labor Charges:
o Programmers or Consultants - $125.00 per hour
o Officers - $150.00 per hour
o Proxy Processing - Negotiable
FUND ACCOUNTING FEE SCHEDULE
----------------------------
The prices contained herein are effective for twelve months from the execution
date of the Mutual Fund Services Agreement.
I STANDARD FEE*
--------------------------------------------------------------------------------
0.04% for the first $50 million in average net assets per portfolio and/or
share class per year;
0.03% from $50 million to $100 million in average net assets per portfolio
and/or share class per year;
0.02% from $100 million to $150 million in average net assets per portfolio
and/or share class per year;
0.01% over $150 million in average net assets per portfolio and/or share
class per year.
*Subject to a $25,000 annual minimum per portfolio (one share class) plus
$7,500 per additional share class for Domestic Funds and a $30,000 annual
minimum per portfolio (one share class) plus $7,500 per additional share
class for International/Global Funds. Fees are billed on a monthly basis.
Out of Pocket Fees: Fees charged for outside pricing services and all
accompanying administrative expenditures.
II STANDARD REPORTS AVAILABLE
--------------------------------------------------------------------------------
Daily Reports
-------------
A. General Ledger Reports
1. Trial Balance Report
2. General Ledger Activity Report
B. Portfolio Reports
1. Portfolio Report
2. Tax Lot Report
3. Purchase Journal
4. Sell/Maturity Journal
5. Amortization/Accretion Report
6. Maturity Projection Report
C. Pricing Reports
1. Pricing Report
2. Pricing Report by Market Value
3. Pricing Variance by % Change
4. NAV Report
5. NAV Proof Report
6. Money Market Pricing Report
D. Accounts Receivable/Payable Reports
1. Accounts Receivable for Investments Report
2. Accounts Payable for Investments Report
3. Interest Accrual Report
4. Dividend Accrual Report
E. Other Reports
1. Dividend Computation Report
2. Cash Availability Report
3. Settlement Journal
II STANDARD REPORTS AVAILABLE (CONTINUED)
--------------------------------------------------------------------------------
Monthly Reports
---------------
A. Standard Reports
1. Cost Proof Report
2. Transaction History Report
3. Realized Gain/Loss Report
4. Interest Record Report
5. Dividend Record Report
6. Broker Commission Totals
7. Broker Principal Trades
8. Shareholder Activity Report
9. SEC Yield Calculation Work Sheet (fixed-income funds only)
III OPTIONAL SERVICES AVAILABLE - INITIAL (FOR DESIRED SERVICES)
--------------------------------------------------------------------------------
__________ Additional portfolio sub-adviser fee - $10,000 per portfolio
__________ Multiple custodian fee - $5,000 per fund group
__________ GNMA securities fee - $2,500 per portfolio
__________ S.E.C. audit requirements - Pass through
IV SPECIAL MAINTENANCE FEES
--------------------------------------------------------------------------------
o Non-Routine Investment Processing: - $500 per month for the first type; $250 per month
o Short Sales for each additional. ($1000 maximum per month)
o Options
o Futures
o Additional Brokers Used For Short Sales - $500 per month for each additional broker used in
excess of one
o High Trade Volume - $2 per trade for each trade in excess of 100 trades
per month per portfolio
o Illiquid/Manually-Priced Securities - $100 per month for each security requiring Pricing
Committee review
V REPORT GENERATION FEES
--------------------------------------------------------------------------------
o AD-HOC Report Generation - $75.00 per report
o Non-System Generated Reports - $75.00 per occurrence
o Dissemination of NAV Information To Third-Party - $25 per month for each recipient in excess of three
Recipients, e.g., NASDAQ, Morningstar, Lipper
o Reruns - $75.00 per run
o Extract Tapes - $110.00 plus
VI SYSTEMS PROGRAMMING LABOR CHARGES
--------------------------------------------------------------------------------
o System Support Representatives - $100.00 per hour
o Programmers, Consultants or Department Heads - $125.00 per hour
o Officers - $150.00 per hour
VII REPRICING CHARGES
--------------------------------------------------------------------------------
For incorrect or untimely information provided by an Advisor or its Agent,
Unified will charge $200.00 per day for each day that a portfolio is
repriced. Unified reserves the right to charge $25 per occurrence for each
information change where repricing is not required, but additional work
processes must be performed or repeated, e.g., incorrect/late trade ticket.
VIII DE-CONVERSION FEES
--------------------------------------------------------------------------------
De-Conversion fees will be subject to additional charges commensurate with
particular circumstances and dependent upon scope of problems.
FUND ADMINISTRATION FEE SCHEDULE
--------------------------------
The prices contained herein are effective for twelve months from the execution
date of the Mutual Fund Services Agreement.
I STANDARD FEE*
--------------------------------------------------------------------------------
0.08% for the first $50 million in average net assets per portfolio and/or share class per year;
0.06% from $50 million to $100 million in average net assets per portfolio and/or share class per year;
0.05% from $100 million to $150 million in average net assets per portfolio and/or share class per year;
0.02% over $150 million in average net assets per portfolio and/or share class per year;
* Subject to a $30,000 annual minimum per portfolio (one share class) plus
$7,500 per additional share class. Fees are billed on a monthly basis.
II ADDITIONAL SERVICES AND FEES
--------------------------------------------------------------------------------
1. Assistance in preparation and filing for an - $1,500 minimum
exemptive order or no action letter from the
Securities & Exchange Commission
2. Assist in the preparation and filing of - Negotiable additional
Funds Registration Statement on Form N-1A or any replacement
thereof
3. Assistance in preparation, filing and vote - $5,000 minimum per Special Meeting
compilation of Proxy Statement for Special
Shareholders Meeting
4. Assistance in Dissolution and Deregistration of - $15,000 minimum
the Fund (including related proxy statement)
5. Reorganization or Merger of the Fund or - $15,000 minimum
portfolios (including proxy statement and
excluding tax opinion)
6. Blue Sky Filing Fees - $25.00 per permit
7. Such other duties related to the Administration - Negotiable of the
Fund as agreed to by Unified
