EXHIBIT (5)(a)(iii)
INVESTMENT ADVISORY AGREEMENT
Investment Advisory Agreement made as of February 15, 1994, and revised as
of February 11, 1997, between THE INFINITY MUTUAL FUNDS, INC., a Maryland
corporation having its principal office and place of business at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein called the "Fund"), and FIRST AMERICAN
NATIONAL BANK, a national banking association having its principal office and
place of business at First American Center, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000-0000 (herein called the "Adviser").
WHEREAS, the Fund is an open-end, management investment company, registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund intends to employ BISYS Fund Services Limited Partnership
(the "Administrator") to act as the Fund's administrator; and
WHEREAS, the Fund desires to retain the Adviser to provide investment
advisory services and other services to the Fund's portfolios set forth on
Schedule 1 attached hereto, as such may be revised from time to time (each, a
"Series"; the provisions herein shall apply severally to each Series), and the
Adviser is willing to furnish such services upon the terms and conditions herein
set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT.
(a) The Fund hereby appoints the Adviser to act as investment adviser to
each Series for the period and on the terms set forth in this Agreement. The
Adviser accepts such appointment and agrees to furnish the services herein set
forth for the compensation herein provided.
(b) In the event that the Fund establishes one or more portfolios, other
than those set forth on Schedule 1 hereto, and with respect to which the Fund
desires the Adviser to act as investment adviser hereunder, the Fund shall
notify the Adviser in writing. If the Adviser is willing to render such services
under this Agreement it shall notify the Fund in writing whereupon such
portfolio shall become a Series hereunder and shall be subject to the provisions
of this Agreement to the same extent as the Series currently named in Schedule
1, except to the extent that said provisions (including those relating to the
compensation payable to the Adviser) are modified with respect to such Series in
writing by the Fund and the Adviser.
2. DELIVERY OF DOCUMENTS.
The Fund has furnished the Adviser with copies properly certified or
authenticated of each of the following:
(a) The Fund's Articles of Incorporation and any amendments
and supplements thereto (as presently in effect and as from time to
time amended or supplemented, herein called the "Charter");
(b) The Fund's By-laws and any amendments thereto;
(c) Resolutions of the Fund's Board of Directors
authorizing the appointment of the Adviser and approving
this Agreement;
(d) The Fund's Registration Statement on Form N-1A under the
Securities Act of 1933, as amended (the "1933 Act"), and under the 1940
Act most recently filed with the Securities and Exchange Commission
(the "Commission");
(e) The Fund's Notification of Registration on Form
N-8A under the 1940 Act as filed with the Commission; and
(f) The Fund's current Prospectuses and Statements of
Additional Information of the Series (as presently in
effect and as from time to time amended and supplemented, herein called
individually the "Prospectus" and collectively the "Prospectuses").
The Fund promptly will furnish the Adviser with copies of all amendments of or
supplements to the foregoing, if any.
3. SERVICES OF ADVISER.
Subject to the supervision of the Fund's Board of Directors, the Adviser
will provide a continuous investment program for each Series, including
investment research and day-to-day management with respect to such Series'
assets. The Adviser will determine from time to time what securities and other
investments will be purchased, retained or sold by the Series. The Adviser will
provide the services rendered by it under this Agreement in accordance with the
investment criteria and policies established from time to time for a Series by
the Fund, such Series' investment objective, policies and restrictions as stated
in its Prospectus and resolutions of the Fund's Board of Directors. The Fund
wishes to be informed of important developments materially affecting a Series'
portfolio and the Adviser agrees to furnish to the Fund from time to time such
information as the Adviser may believe appropriate for this purpose. The Adviser
shall be permitted to employ one or more sub-investment advisers (each a
"Sub-Adviser") to provide the day-to-day management of the investments of the
Series.
4. OTHER COVENANTS.
The Adviser agrees that it will:
(a) comply with all applicable rules and regulations
of the Securities and Exchange Commission in performing its
duties as investment adviser for the Series and, in addition, will
conduct its activities under this Agreement in accordance with other
applicable federal and state law;
(b) review and analyze on a periodic basis each
Series' portfolio holdings and transactions;
(c) provide, or cause to be provided, to the Board of
Directors of the Fund such reports, statistical data and
economic information as may be reasonably requested in
connection with the Adviser's services hereunder;
(d) use the same skill and care in providing such
services as it uses in providing services to fiduciary
accounts for which it has investment responsibilities;
(e) place orders pursuant to its investment determinations for
the Series either directly with the issuer or with any broker or
dealer. In executing portfolio transactions and selecting brokers or
dealers, the Adviser will use its best efforts to seek on behalf of the
Series the best overall terms available. In assessing the best overall
terms available for any transaction, the Adviser shall consider all
factors that it deems relevant, including the breadth of the market in
the security, the price of the security, the financial condition and
execution capability of the broker or dealer, and the reasonableness of
the commission, if any, both for the specific transaction and on a
continuing basis. In evaluating the best overall terms available, and
in selecting the broker-dealer to execute a particular transaction, the
Adviser also may consider the brokerage and research services (as those
terms are defined in Section 28(e) of the Securities Exchange Act of
1934) provided to the Series and other accounts over which the Adviser
or an affiliate of the Adviser exercises investment
discretion. The Adviser is authorized, subject to the prior approval
of the Fund's Board of Directors, to pay to a broker or dealer who
provides such brokerage and research services a commission for
executing a portfolio transaction for any of the Series which is in
excess of the amount of commission another broker or dealer would have
charged for effecting that transaction if, but only if, the Adviser
determines in good faith that such commission was reasonable in
relation to the value of the brokerage and research services provided
by such broker or dealer as viewed in terms of that particular
transaction or in terms of the overall responsibilities of the Adviser
to the Series. In addition, the Adviser is authorized to take into
account the sale of the Fund's Shares in allocating purchase and sale
orders for portfolio securities to brokers or dealers (including
brokers and dealers that are affiliated with the Adviser or the Fund's
principal underwriter), provided the Adviser believes that the quality
of the execution and the commission are comparable to what they would
be with other qualified firms. In no instance, however, will portfolio
securities be purchased from or sold to the Adviser, the Fund's
principal underwriter or any affiliated person of either the Fund, the
Adviser, or the principal underwriter, acting as principal in the
transaction, except to the extent permitted by the Securities and
Exchange Commission and other applicable federal and state laws and
regulations;
(f) maintain historical tax lots for each portfolio
security held by the Series;
(g) transmit trades to the Fund's custodian for
proper settlement; and
(h) prepare a quarterly broker security transaction
summary and monthly security transaction listing for each
Series.
5. SERVICES NOT EXCLUSIVE.
The services furnished by the Adviser hereunder are deemed not to be
exclusive, and the Adviser shall be free to furnish similar services to others
so long as its services under this Agreement are not impaired thereby. To the
extent that the purchase or sale of securities or other investments of the same
issuer may be deemed by the Adviser to be suitable for two or more Series,
investment companies or accounts managed by the Adviser, the available
securities or investments will be allocated in a manner believed by the Adviser
to be equitable to each of them. It is recognized and acknowledged by the Fund
that in some cases this procedure may adversely affect the price paid or
received by a Series or the size of the position obtained for or disposed of by
a Series.
6. BOOKS AND RECORDS.
In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Adviser hereby agrees that all records which it maintains for the Series are the
property of the Fund and further agrees to surrender promptly to the Fund any of
such records upon the Fund's request. The Adviser further agrees to preserve for
the periods prescribed by Rule 31a-2 under the 1940 Act the records required to
be maintained by Rule 31a-1 under the 1940 Act.
7. EXPENSES.
Except as otherwise stated in this section 7, the Adviser shall pay all
expenses incurred by it in performing its services and duties as investment
adviser and shall pay all fees of each Sub-Adviser in connection with such
Sub-Adviser's duties in respect of the Fund. All other expenses incurred in the
operation of the Fund will be borne by the Fund, except to the extent
specifically assumed by others. The expenses to be borne by the Fund include,
without limitation, the following: organizational costs, taxes, interest,
brokerage fees and commissions, if any, fees of Directors who are not officers,
directors, employees or holders of 5% or more of the outstanding voting
securities of the Adviser, any Sub-Adviser or the Administrator, or any of their
affiliates, Commission fees, state Blue Sky qualification fees, advisory and
administration fees, charges of custodians, transfer and dividend disbursing
agents' fees, certain insurance premiums, industry association fees, auditing
and legal expenses, costs of maintaining corporate existence, costs of
independent pricing services, costs attributable to investor services
(including, without limitation, telephone and personnel expenses), costs of
calculating the net asset value of the Series' shares, costs of shareholders'
reports and corporate meetings, costs of preparing and printing certain
prospectuses and statements of additional information, and any extraordinary
expenses.
8. COMPENSATION.
In consideration of services rendered pursuant to this Agreement, the Fund
will pay the Adviser on the first business day of each month the fee at the
annual rate set forth opposite the Series' name on Schedule 1 attached hereto,
based upon the value of the Series' average daily net assets for the previous
month. Such fee as is attributable to a Series shall be a separate charge to
such Series and shall be the several (and not joint or joint and several)
obligation of the Series. Fees hereunder shall be payable with respect to a
Series commencing on the date of the initial public sale of such Series' shares.
The Adviser agrees to accept such fee from the Fund as full compensation for the
services provided and expenses assumed by it pursuant to this Agreement, and
acknowledges that it shall not be entitled to any further compensation from the
Fund in respect of the same.
Net asset value shall be computed on such days and at such time or times as
described in the Prospectus. Upon the commencement or any termination of this
Agreement after the first day or before the end of any month, as the case may
be, the fee for such part of a month shall be pro-rated according to the
proportion which such period bears to the full monthly period and, in the case
of any termination, shall be payable upon the date of termination of this
Agreement.
For the purpose of determining fees payable to the Adviser, the value of
each Series' net assets shall be computed in the manner specified in the Charter
for the computation of the value of the Series' net assets.
Notwithstanding anything to the contrary herein, if in any fiscal year the
aggregate expenses of a Series, exclusive of taxes, brokerage, interest on
borrowings and (with the prior written consent of the necessary state securities
commissions) extraordinary expenses, but including investment advisory and
administration fees, exceed the expense limitation of any such state having
jurisdiction over such Series, the Fund may deduct from the fees to be paid
hereunder, or the Adviser will bear, to the extent required by state law, that
portion of such excess which bears the same relation to the total of such excess
as the Adviser's fee hereunder bears to the total fee otherwise payable for the
fiscal year by the Series pursuant to this Agreement and the Fund's
Administration Agreement. Such deduction or payment, if any, will be estimated
daily, and reconciled and effected or paid, as the case may be, on a monthly
basis.
9. LIMITATION OF LIABILITY.
The Adviser shall not be liable for any error of judgment or mistake of law
or for any loss suffered by the Fund in connection with the matters to which
this Agreement relates, except that the Adviser shall be liable to the Fund for
any loss resulting from willful misfeasance, bad faith or gross negligence on
its part in the performance of the Adviser's duties or from its reckless
disregard of its obligations and duties under this Agreement. Any person, even
though also an officer, director, partner, employee or agent of the Adviser, who
may be or become an officer, Director, employee or agent of the Fund, shall be
deemed, when rendering services to the Fund or to a Series, or acting on any
business of the Fund or of a Series (other than services or business in
connection with the Adviser's duties as investment adviser hereunder) to be
rendering such services to or acting solely for the Fund or such Series and not
as an officer, director, partner, employee or agent or one under the control or
direction of the Adviser even though paid by the Adviser.
10. TERM.
As to each Series, this Agreement shall continue until the date set forth
opposite such Series' name on Schedule 1 attached hereto (the "Reapproval
Date"), and thereafter shall continue automatically for successive annual
periods ending on the day of each year set forth opposite the Series' name on
Schedule 1 attached hereto (the "Reapproval Day"), provided such continuance is
specifically approved as to a Series at least annually by (a) the Fund's Board
of Directors or (b) vote of a majority (as defined in the 0000 Xxx) of such
Series' outstanding voting securities, provided that in either event its
continuance also is approved by a majority of the Fund's Directors who are not
"interested persons" (as defined in the 0000 Xxx) of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval. As to each Series, this Agreement may be terminated without
penalty, on 60 days' written notice to the Adviser (which notice may be waived
in writing by the Adviser), by the Fund's Board of Directors or by vote of the
holders of a majority of such Series' shares or may be terminated without
penalty, upon not less than 90 days' written notice to the Fund (which notice
may be waived in writing by the Fund), by the Adviser. This Agreement also will
terminate automatically, as to the relevant Series, in the event of its
assignment (as defined in the 1940 Act).
11. USE OF NAME.
The parties hereto agree that (i) in the event of the termination of this
Agreement, the Adviser shall have the right to require the Fund, within 30 days
of such termination, to delete from the Series and its name, the word
"AmeriStar" and (ii) the Adviser or any affiliate of the Adviser shall have the
right to grant to other investment companies that it may sponsor or advise the
use of the word "AmeriStar" in the name of such investment company.
12. MISCELLANEOUS.
(a) AMENDMENTS. No provision of this Agreement may
be changed, waived, discharged or terminated, except by an
instrument in writing signed by the party against whom an
enforcement of the change, waiver, discharge or termination
is sought.
(b) CONSTRUCTION. 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. 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. Subject to the provisions of
Section 10 hereof, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors
and shall be governed by New York law; PROVIDED, HOWEVER, that nothing
herein shall be construed in a manner inconsistent with the 1940 Act or
any rule or regulation of the Commission thereunder.
(c) NOTICE. Any notice or other instrument in
writing, authorized or required by this Agreement to be
given to the Fund shall be effective upon actual receipt by
the Fund, or on the fourth day after the postmark if such notice or
other instrument is mailed via first class postage prepaid, at its
office at the address first above written, or at such other place as
the Fund may from time to time designate in writing. Any notice or
other instrument in writing, authorized or required by this Agreement
to be given to the Adviser shall be effective upon actual receipt by
the Adviser, or on the fourth day after the postmark if such notice or
other instrument is mailed via first class postage prepaid, at its
office at the address first above written, or at such other place as
the Adviser may from time to time designate in writing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the day and year first above
written.
THE INFINITY MUTUAL FUNDS, INC.
By:
Xxxxxxx X. Xxxxxxx,
President and Chairman of the Board
Attest:
Xxxxxx X. Xxxxxxxx,
Secretary
FIRST AMERICAN NATIONAL BANK
By:
Attest:
SCHEDULE 1
Annual Fee as
a Percentage of
Average Daily Reapproval Reapproval
Name of Series Net Assets Date Day
AmeriStar Capital
Growth Portfolio .65 of 1% December 31, 1997 December 31
AmeriStar Core Income
Portfolio .50 of 1% December 31, 1997 December 31
AmeriStar Dividend
Growth Portfolio .65 of 1% December 31, 1997 December 31
AmeriStar Limited
Duration Income
Portfolio .50 of 1% December 31, 1997 December 31
AmeriStar Limited
Duration Tennessee Tax
Free Portfolio .50 of 1% December 31, 1998 December 31
AmeriStar Limited
Duration U.S. Government
Portfolio .50 of 1% December 31, 1998 December 31
AmeriStar Prime Money
Market Portfolio * December 31, 1997 December 31
AmeriStar Tennessee
Tax Exempt Bond
Portfolio .50 of 1% December 31, 1997 December 31
AmeriStar U.S.
Treasury Money
Market Portfolio .25 of 1% December 31, 1997 December 31
As Revised: February 11, 1997
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* The Fund has agreed to pay the Adviser a monthly fee at the annual rate of .25
of 1% of the Series' average daily net assets less any amounts paid by the Fund
to Xxxxxxx Capital Advisors, Inc. as the Series' sub-investment adviser.
EXHIBIT (5) (c)
ADMINISTRATION AGREEMENT
Administration Agreement made as of April 25, 1996, and revised as of
February 11, 1997, between certain portfolios of THE INFINITY MUTUAL FUNDS,
INC., a Maryland corporation having its principal office and place of business
at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (herein called the
"Fund"), and BISYS FUND SERVICES LIMITED PARTNERSHIP, an Ohio limited
partnership having its principal office and place of business at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000-0000 (herein called "BISYS").
WHEREAS, the Fund is an open-end, management investment company, registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and
consisting of, among others, the portfolios set forth on Schedule 1 hereto, as
such Schedule may be revised from time to time (each, a "Series");
WHEREAS, the Fund intends from time to time to employ certain entities (in
addition to those named below), some of which may be affiliated with BISYS, to
provide services to one or more Series (each, a "Service Provider");
WHEREAS, the Fund employs Concord Financial Group, Inc. and, in the future,
an affiliate of such entity (the "Distributor") to act as distributor for each
Series' shares of common stock, par value $.001 per share (the "Shares");
WHEREAS, the Fund, in respect of the Series, previously had employed an
affiliate of BISYS as its administrator; and
WHEREAS, the Fund desires to retain BISYS as its Administrator to provide
it with administrative services with respect to each Series, and BISYS is
willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, the parties hereto agree as follows:
I. DELIVERY OF DOCUMENTS
The Fund has delivered to BISYS copies of each of the following documents
and will deliver to it all future amendments and supplements thereto, if any:
(a) The Fund's Articles of Incorporation and all
amendments and supplements thereto (as presently in effect and as from
time to time amended or supplemented, herein called the "Charter");
(b) The Fund's By-laws (as presently in effect and as
from time to time amended, herein called the "By-laws");
(c) Resolutions of the Board of Directors of the Fund
authorizing the execution and delivery of this Agreement;
(d) The Fund's Registration Statement under the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act on Form
N-1A most recently filed with the Securities and Exchange Commission (the
"Commission") relating to the Shares, and all subsequent amendments or
supplements thereto (the "Registration Statement");
(e) The Fund's Notification of Registration under the
1940 Act on Form N-8A as filed with the Commission; and
(f) The Fund's current Prospectuses and Statements of
Additional Information pertaining to the Series (as presently in effect and as
from time to time amended and supplemented, herein called the "Prospectus").
II. ADMINISTRATION
1. APPOINTMENT OF ADMINISTRATOR. The Fund hereby appoints BISYS as its
Administrator for each of the Series on the terms and for the period set forth
in this Agreement and BISYS hereby accepts such appointment and agrees to
perform the services and duties set forth in this Section II for the
compensation provided in this Section. The Fund understands that BISYS now acts,
and that from time to time hereafter BISYS may act, as administrator of various
investment companies or fiduciary for other managed accounts, and the Fund has
no objection to BISYS' so acting. In addition, it is understood that the persons
employed by BISYS to assist in the performance of its duties hereunder will not
devote their full time to such services and nothing herein contained shall be
deemed to limit or restrict the right of BISYS or any affiliate of BISYS to
engage in and devote time and attention to other businesses or to render
services of whatever kind or nature.
2. SERVICES AND DUTIES.
(a) As Administrator, and subject to the supervision and control of the
Fund's Board of Directors, BISYS will provide office facilities, equipment,
statistical and research data, clerical, accounting and bookkeeping services,
internal compliance services relating to accounting and legal matters, and
personnel to carry out all administrative services required for operation of the
business and affairs of the Series, other than those management, investment
advisory and sub-advisory functions which are to be performed by certain Service
Providers pursuant to their respective agreements with the Fund, the services of
the Distributor, those services to be performed by the Fund's custodian and
transfer agent, and those services normally performed by the Fund's legal
counsel and independent auditors. BISYS' responsibilities include without
limitation the following services:
(1) Providing a facility to receive purchase and
redemption orders via toll-free IN-XXXXX telephone lines;
(2) Providing for the preparing, supervision and
mailing of confirmations for all purchase and redemption orders;
(3) Providing and supervising the operation of an
automated data processing system to process purchase and redemption
orders received by the Distributor (BISYS assumes responsibility for
the accuracy of the data transmitted for processing or storage);
(4) Overseeing the performance of the Fund's custodian
and transfer agent;
(5) Making available information concerning each
Series to its shareholders; distributing written communications to each
Series' shareholders such as periodic listings of each Series'
securities, annual and semi-annual reports, and the Prospectus and
supplements thereto; and handling shareholder problems and calls
relating to administrative matters; and
(6) Providing and supervising the services of
employees ("relationship coordinators") whose principal responsibility
and function shall be to preserve and strengthen each Series'
relationships with its shareholders.
(b) BISYS shall assure that persons are available to
receive redemption requests to the Fund's transfer agent as promptly
as practicable.
(c) BISYS shall assure that persons are available to
receive orders accepted for the purchase of Shares to the transfer
agent as promptly as practicable.
(d) BISYS shall participate in the periodic updating
of the Prospectus and shall accumulate information for and, subject
to approval by the Fund's Treasurer and legal counsel, coordinate the
preparation, filing, printing and dissemination of reports to the Series'
shareholders and the Commission, including but not limited to annual reports and
semi-annual reports on Form N-SAR, notices pursuant
to Rule 24f-2 and proxy materials.
(e) BISYS shall pay all costs and expenses of
maintaining the offices of the Fund, wherever located, and shall arrange for
payment by the Series of all expenses payable by the Series.
(f) BISYS, after consultation with legal counsel for
the Fund, shall determine the jurisdictions in which the Shares shall be
registered or qualified for sale and, in connection therewith, shall be
responsible for the maintenance of the registration or qualification of the
Shares for sale under the securities laws of any state. Payment of share
registration fees and any fees for qualifying or continuing the qualification of
the Series shall be made by the Series.
(g) BISYS shall provide the services of certain
persons who may be appointed as officers of the Fund by the Fund's
Board of Directors.
(h) BISYS shall oversee the maintenance by the Fund's
custodian and transfer agent of the books and records of the Fund required
under the 1940 Act in connection with the performance of the Fund's agreements
with such entities, and shall maintain, or provide for the maintenance of, such
other books and records (other than those required to be maintained by the
Service Providers) as may be required by law or may be required for the proper
operation of the business and affairs of the Series. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, BISYS agrees that all such books
and records which it maintains, or is responsible for maintaining, for the
Series are the property of the Fund and further agrees to surrender promptly to
the Fund any of such books and records upon the Fund's request. BISYS further
agrees to preserve for the periods prescribed by Rule 31a-2 under the 1940 Act
said books and records required to be maintained by Rule 31a-1 under said Act.
(i) BISYS shall prepare the Series' federal, state and
local income tax returns.
(j) BISYS shall prepare and, subject to approval of
the Fund's Treasurer, disseminate to the Fund's Directors the Fund's and each
Series' quarterly financial statements and schedules of investments, and shall
prepare such other reports relating to the business and affairs of the Fund and
each Series (not otherwise appropriately prepared by the Service Providers, the
Fund's legal counsel or its independent auditors) as the officers and Directors
of the Fund may from time to time reasonably request in connection with the
performance of their duties.
(k) BISYS shall assist with the coordination of the
provision of investment management, advisory and sub-advisory services by
the Service Providers to the Series, and shall provide other administration
assistance to said entities as required to carry out the business and operations
of the Series.
(l) BISYS shall recommend, implement and monitor all
specialized services and programs that are necessary or appropriate in
order for the Series to serve properly the investment needs of the
fiduciary accounts investing in their Shares.
(m) In performing its duties as Administrator for the
Series, BISYS will act in conformity with the Charter, By-laws and Prospectus
and with the instructions and directions of the Board of Directors of the Fund
and will conform to and comply with the requirements of the 1940 Act and all
other applicable federal or state
laws and regulations.
3. SUBCONTRACTORS. It is understood that BISYS may from time to time employ
or associate with itself such person or persons as BISYS may believe to be
particularly fitted to assist in the performance of this Agreement; provided,
however, that the compensation of such person or persons shall be paid by BISYS
and that BISYS shall be as fully responsible to the Fund for the acts and
omissions of any subcontractor as it is for its own acts and omissions.
4. EXPENSES ASSUMED AS ADMINISTRATOR. Except as otherwise stated in this
subsection 4, BISYS shall pay all expenses incurred by it in performing its
services and duties as Administrator. All other expenses incurred in the
operation of the Fund will be borne by the Fund, except to the extent
specifically assumed by others. The expenses to be borne by the Fund include,
without limitation, the following: organizational costs, taxes, interest,
brokerage fees and commissions, if any, fees of Directors who are not officers,
directors, employees or holders of 5% or more of the outstanding voting
securities of any Service Provider or BISYS, or any of their affiliates,
Commission fees, state Blue Sky qualification fees, management, advisory,
sub-advisory, administration and other shareholder services fees, charges of
custodians, transfer and dividend disbursing agents' fees, certain insurance
premiums, industry association fees, auditing and legal expenses, costs of
maintaining corporate existence, costs of independent pricing services, costs
attributable to investor services (including, without limitation, telephone and
personnel expenses), costs of calculating the net asset value of the Series'
shares, costs of shareholders' reports and corporate meetings, costs of
preparing and printing prospectuses and statements of additional information for
regulatory purposes and for distribution to existing shareholders (unless
otherwise provided pursuant to a plan adopted in accordance with Rule 12b-1
under the 1940 Act), and any extraordinary expenses.
5. COMPENSATION. In consideration of services rendered pursuant to this
Agreement, the Fund will pay BISYS on the first business day of each month the
fee at the annual rate set forth opposite each Series' name on Schedule 1
hereto, based upon the value of each Series' average daily net assets for the
previous month. Net asset value shall be computed on such days and at such time
or times as described in the Prospectus. The fee for the period from the date of
the commencement of the initial public sale of each Series' shares to the end of
the month during which such sale shall have been commenced shall be pro-rated
according to the proportion which such period bears to the full monthly period,
and upon any termination of this Agreement before the end of any month, the fee
for such part of a month shall be pro-rated according to the proportion which
such period bears to the full monthly period and shall be payable upon the date
of termination of this Agreement.
For the purpose of determining fees payable to BISYS, the value of each
Series' net assets shall be computed in the manner specified in the Charter for
the computation of the value of each Series' net assets.
Notwithstanding anything to the contrary herein, if in any fiscal year the
aggregate expenses of any Series, exclusive of taxes, brokerage, interest on
borrowings and (with the prior written consent of the necessary state securities
commissions) extraordinary expenses, but including the management, investment
advisory, sub-advisory and administration fees, exceed the expense limitation of
any such state having jurisdiction over the Series, the Fund may deduct from the
fees to be paid hereunder, or BISYS will bear, to the extent required by state
law, that portion of such excess which bears the same relation to the total of
such excess as BISYS' fee hereunder bears to the total fee otherwise payable for
the fiscal year by the Series pursuant to this Agreement and the Fund's
management, investment advisory and sub- advisory or similar agreements. BISYS'
obligation is limited to the amount of its fees hereunder. Such deduction or
payment, if any, will be estimated daily, and reconciled and effected or paid,
as the case may be, on a monthly basis.
6. CONFIDENTIALITY. BISYS will treat confidentially and as proprietary
information of the Fund all records and other information relative to the Fund
and each Series' prior or present shareholders or those persons or entities who
respond to inquiries concerning investment in a Series and, except as provided
below, will not use such records or information for any other purpose other than
for the performance of its responsibilities and duties with regard to the Series
which now exist or which may be added in the future. Any other use by BISYS of
the records and information referred to above may be made only after prior
notification to and approval in writing by the Fund. Such approval shall not be
unreasonably withheld and may not be withheld where (i) BISYS may be exposed to
civil or criminal contempt proceedings for failure to divulge such information;
(ii) BISYS is requested to divulge such information by duly constituted
authorities; or (iii) BISYS is so requested by the Fund.
III. LIMITATION OF LIABILITY
BISYS shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund in connection with the matters to which this
Agreement relates, except a loss resulting from willful misfeasance, bad faith
or gross negligence on its part in the performance of BISYS' duties or from its
reckless disregard of its obligations and duties under this Agreement. Any
person, even though also an officer, director, partner, employee or agent of
BISYS, who may be or become an officer, Director, employee or agent of the Fund,
shall be deemed, when rendering services to the Fund or to any Series, or acting
on any business of the Fund or of any Series (other than services or business in
connection with BISYS' duties as Administrator hereunder) to be rendering such
services to or acting solely for the Fund or Series and not as an officer,
director, partner, employee or agent or one under the control or direction of
BISYS even though paid by BISYS.
IV. TERM
As to each Series, this Agreement shall continue until the date set forth
opposite such Series' name on Schedule 1 hereto (the "Reapproval Date"), and
thereafter shall continue automatically for successive annual periods ending on
the day of each year set forth opposite the Series' name on Schedule 1 hereto
(the "Reapproval Day"), provided such continuance is specifically approved as to
the Series at least annually by (a) the Fund's Board of Directors or (b) vote of
a majority (as defined in the 0000 Xxx) of such Series' outstanding voting
securities, provided that in either event its continuance also is approved by a
majority of the Fund's Directors who are not "interested persons" (as defined in
the 0000 Xxx) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. As to each Series,
this Agreement is terminable without penalty, at any time if for "cause," by the
Fund's Directors or by vote of holders of a majority of such Series' shares or,
upon not less than 90 days' written notice to the Fund, by BISYS. This Agreement
also will terminate automatically, as to the relevant Series, in the event of
its assignment (as defined in the 1940 Act). "Cause" shall mean a material
breach by BISYS of its obligations under this Agreement which shall not have
been cured within 30 days after the date on which BISYS shall have received
written notice setting forth in detail the facts alleged to give rise to the
breach.
V. MISCELLANEOUS
1. AMENDMENTS. No provision of this Agreement may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party
against whom an enforcement of the change, waiver, discharge or termination is
sought.
2. CONSTRUCTION. 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. 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. Subject to the provisions of Article IV hereof, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and shall be governed by New York law; PROVIDED,
HOWEVER, that nothing herein shall be construed in a manner inconsistent with
the 1940 Act or any rule or regulation of the Commission thereunder.
3. NOTICE. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Fund shall be sufficiently given
if addressed to the Fund and mailed or delivered to it at its office at the
address first above written, or at such other place as the Fund may from time to
time designate in writing. Any notice or other instrument in writing, authorized
or required by this Agreement to be given to BISYS shall be sufficiently given
if addressed to BISYS and mailed or delivered to it at its office at the address
first above written, or at such other place as BISYS may from time to time
designate in writing.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below as of the day and
year first above written.
THE INFINITY MUTUAL FUNDS, INC.
By:______________________________
Xxxxxxx X. Xxxxxxx,
President and Chairman of the Board
Attest:________________________
Xxxxxx X. Xxxxxxxx,
Secretary
BISYS FUND SERVICES LIMITED PARTNERSHIP
By: BISYS Fund Services, Inc.,
General Partner
By:___________________________
Attest: ________________________
SCHEDULE 1
Annual Fee as
a Percentage of
Average Daily
Name of Series Net Assets Reapproval Date Reapproval Day
AmeriStar Capital
Growth Portfolio .15 of 1% April 25, 2001 April 25
AmeriStar Core
Income Portfolio .15 of 1% April 25, 2001 April 25
AmeriStar Dividend
Growth Portfolio .15 of 1% April 25, 2001 April 25
AmeriStar Limited
Duration Income
Portfolio .15 of 1% April 25, 2001 April 25
AmeriStar Limited
Duration Tennessee
Tax Free
Portfolio .15 of 1% April 25, 2001 April 25
AmeriStar Limited
Duration U.S.
Government
Portfolio .15 of 1% April 25, 2001 April 25
AmeriStar Prime
Money Market
Portfolio .10 of 1% April 25, 2001 April 25
AmeriStar Tennessee
Tax Exempt Bond
Portfolio .15 of 1% April 25, 2001 April 25
AmeriStar U.S.
Treasury Money
Market Portfolio .10 of 1% April 25, 2001 April 25
Alpha Government .13% of assets December 31, 1997 December 31
Securities less than $200
Portfolio million
.12% of assets
from $200 million
to less than $300
million
.11% of assets
from $300 million
to less than $350
million
.10% of assets
$350 million and
over
XXX Xxxxx Duration
Portfolio .12 of 1% December 31, 1997 December 31
Correspondent Cash .10 of 1% December 31, 1997 December 31
Reserves Money
Market Portfolio
Correspondent Cash .10 of 1% December 31, 1997 December 31
Reserves Tax Free
Money Market
Portfolio
As Revised: February 11, 1997
