Accounting/Pricing Agreement
Exhibit
(H)(2)
This
Accounting/Pricing Agreement is made as of this 6th day of November, 2002
by and
between North Track Funds, Inc., a Maryland corporation (the “Fund”) and X.X.
Xxxxxxx and Company, a Wisconsin corporation (“Xxxxxxx”).
WHEREAS,
a
majority of the Directors of the Fund and a majority of the disinterested
Directors of the Fund have approved this Agreement between Xxxxxxx and the
Fund,
and in so approving the Agreement made the following findings:
a. the
Agreement is in the best interest of the Fund and its Shareholders;
b. the
services to be performed pursuant to the Agreement are services required
for the
operation of the Fund;
x. Xxxxxxx
can provide services, the nature and quality of which are at least equal
to
those provided by others offering the same or similar services; and
d. the
fees
for such services are fair and reasonable in light of the usual and customary
charges made by others for services of the same nature and quality.
WHEREAS,
the Fund
is authorized to issue shares in separate classes (the “Portfolios”) with each
such class representing interests in a separate portfolio of securities and
other assets;
WHEREAS,
the Fund
desires Xxxxxxx to render the services to the Fund in the manner and on the
terms and conditions hereinafter set forth with respect to each of the Fund’s
Portfolios identified on Schedule C attached hereto, as modified from time
to
time by the mutual consent of the parties; and
WHEREAS,
the
Administrative Services Agreement, dated as of August 26, 1988, by and
between the Fund and Xxxxxxx, as amended and renamed the Accounting/Pricing
Services Agreement by Amendment No. 1, is terminated and superseded upon
the
effectiveness of this Agreement.
NOW
THEREFORE,
in
consideration of the mutual covenants and agreements set forth herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
1. Services.
The
Fund hereby engages Xxxxxxx, and Xxxxxxx accepts such engagement, to perform
accounting and pricing services for the Fund as described in more detail
on
Schedule A, as the same may be modified from time to time by vote of a majority
of the Fund’s directors including a majority of those who are not interested
persons of Xxxxxxx, (the “Services”). The Fund agrees that Xxxxxxx shall have
ready access to the Fund’s agents, books, records, financial information,
management and resources, at such times and for such periods as Xxxxxxx deems
necessary to perform the Services.
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2. Rate
of Payment for the Services.
A. Contract
Price.
The
Fund agrees to pay Xxxxxxx for the Services at such rate, as may be approved
annually by a majority of the Fund’s directors, including a majority of
directors who are not parties to this Agreement or interested persons of
Xxxxxxx, (the “Contract Price”) as stated in Schedule B. The Fund shall
also pay all expenses, as set forth in paragraph B below, applicable taxes,
duties and charges (including sales, use and excise taxes) levied or assessed
as
a result of this Agreement. The Contract Price shall be payable monthly within
ten (10) days of the date of invoice. The Contract Price shall be adjusted
annually by mutual agreement.
B. Reimbursement
for Expenses.
Subject
to the Fund’s prior approvals, Xxxxxxx shall be paid by the Fund for actual
expenses and costs incurred by Xxxxxxx in the performance of the Services,
including, but not limited to, long distance telephone calls, postage, computer
time, supplies and expenses and costs stated in Schedule B hereto.
3. Employees.
All
personnel assigned by Xxxxxxx to perform the Services will be employees of
Xxxxxxx or its affiliates. Xxxxxxx will be considered for all purposes, an
independent contractor, and it will not, directly or indirectly, act as an
agent, servant or employee of the Fund, or make any commitments or incur
any
liabilities on behalf of the Fund without its prior written
consent.
4. Xxxxxxx’x
Use of the Services of Others.
Xxxxxxx
may (at its cost except as contemplated by Paragraph 2(B) of this Agreement)
employ, retain or otherwise avail itself of the services or facilities of
other
persons or organizations for the purpose of providing the Fund with such
information or Services as it may deem necessary, appropriate or convenient
for
the discharge of its obligations hereunder or otherwise helpful to the Fund,
or
in the discharge of its overall responsibilities with respect to the Services
to
be provided to the Fund.
5. Ownership
of Records.
All
records required to be maintained and preserved by the Fund pursuant to the
provisions of rules or regulations of the Securities and Exchange Commission
under Section 31(a) of the Investment Company Act of 1940, as amended (the
“Act”), and maintained and preserved by Xxxxxxx on behalf of the Fund are the
property of the Fund and will be surrendered by Xxxxxxx promptly on request
by
the Fund.
6. Reports
to Fund by Xxxxxxx.
Xxxxxxx
shall provide the Fund, at such times as the Fund may reasonably require,
with
reports relating to the Services provided by Xxxxxxx under this Agreement.
Such
reports shall be of sufficient scope and in sufficient detail, as may reasonably
be required by the Fund.
7. Services
to Other Clients.
Nothing
herein contained shall limit the freedom of Xxxxxxx or any affiliated person
of
Xxxxxxx to render investment advice or corporate administrative services
to
other investment companies, to act as investment advisor or investment counselor
to other persons, firms or corporations, or to engage in other business
activities.
8. Limitation
of Liability of Xxxxxxx.
Neither
Xxxxxxx, nor any of its officers, directors, or employees, nor any person
performing administrative or other functions for the Fund (at the direction
or
request of Xxxxxxx) or the Advisor in connection with Xxxxxxx’x discharge of its
obligations undertaken or reasonably assumed with respect to this Agreement,
shall 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 for loss resulting from willful misfeasance, bad faith, or
gross
negligence in the performance of its or their duties on behalf of the Fund
or
from reckless disregard by Xxxxxxx or any such person of the duties of Xxxxxxx
under this Agreement.
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9. Term
of Agreement.
The
term of this Agreement shall begin, with respect to any Portfolio of the
Fund,
on the date agreed upon between the parties. Once effective with respect
to any
Portfolio, this Agreement will continue in effect from year to year with
respect
to such Portfolio, subject to the termination provisions and all other terms
and
conditions hereof, so long as such continuation shall be specifically approved
at least annually by the board of directors of the Fund or by vote of a majority
of the outstanding voting securities of such Portfolio and, concurrently
with
such approval by the board of directors or prior to such approval by the
holders
of the outstanding voting securities of such Portfolio, as the case may be,
by
the vote, cast in person at a meeting called for the purpose of voting on
such
approval, of a majority of the directors of the Fund who are not parties
to this
Agreement or interested persons of any such party. Xxxxxxx shall furnish
to the
Fund, promptly upon its request, such information as may reasonably be necessary
to evaluate the terms of this Agreement or any extension, renewal or amendment
hereof.
10. Termination
of Agreement.
This
Agreement may be terminated with respect to each Portfolio by any party hereto
without the payment of any penalty, upon 60 days prior notice in writing
to the
other party; provided that, in the case of termination by the Fund, such
action
shall have been authorized by resolutions of a majority of the directors
of the
Fund who are not parties to this Agreement or interested persons of any such
party, or by vote of a majority of the outstanding voting securities of each
Portfolio affected by such termination. This Agreement shall automatically
and
immediately terminate in the event of its assignment.
11. Miscellaneous.
A. Captions.
The
captions in this Agreement are included for convenience of reference only
and in
no way define or delineate any of the provisions hereof or otherwise affect
their construction or effect.
B. Interpretation.
Nothing
herein contained shall be deemed to require the Fund to take any action contrary
to its Articles of Incorporation or By-Laws, or any applicable statutory
or
regulatory requirement to which it is subject or by which it is bound, or
to
relieve or deprive the board of directors of the Fund of its responsibility
for
and control of the conduct of the affairs of the Fund.
C. Definitions.
Any
question of interpretation of any term or provision of this Agreement having
a
counterpart in or otherwise derived from a term or provision of the Act shall
be
resolved by reference to such term or provision of the Act and to
interpretations thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the Securities and Exchange Commission validly issued pursuant to the
Act. In
addition, where the effect of a requirement of the Act reflected in any
provision of this Agreement is relaxed by a rule, regulation or order of
the
Securities and Exchange Commission, whether of special or of general
application, such provision shall be deemed to incorporate the effect of
such
rule, regulation or order.
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D. Governing
Law.
This
Agreement shall be construed and governed by the laws of the state of
Wisconsin.
E. Amendment.
This
Agreement, including the Schedules hereto, may be amended only by an instrument
in writing executed by the parties.
F. Notices.
All
communications or notices required or permitted by this Agreement shall be
in
writing and shall be deemed to have been given at the earlier of the date
when
actually delivered to an officer of a party or when deposited in the United
States Mail, certified or registered mail, postage prepaid, return receipt
requested, and addressed to the principal place of business of such party,
unless and until any of such parties notifies the parties in accordance with
this section of a change of address.
G. Entire
Agreement.
This
Agreement together with the Schedules hereto constitutes the entire agreement
between the Fund and Xxxxxxx with respect to the subject matter hereof. There
are no restrictions, promises, warranties, covenants or undertakings other
than
those expressly set forth herein and therein. This Agreement supersedes all
prior negotiations, agreements and undertakings between the parties with
respect
to such subject matter.
H. Enforceability.
The
invalidity or unenforceability of any provision hereof shall not affect or
impair any other provisions.
I. Scope
of Agreement.
If the
scope of any of the provisions of this Agreement is too broad in any respect
whatsoever, to prevent enforcement to its full extent, then such provisions
shall be enforced to the maximum extent permitted by law, and the parties
hereto
consent and agree that such scope may be judicially modified accordingly
and
that the whole of such provisions of this Agreement shall not hereby fail,
but
that the scope of such provisions shall be curtailed only to the extent
necessary to conform to the law.
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be signed by their respective
officers thereunto duly authorized as of the day and year first above
written.
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NORTH
TRACK FUNDS, INC.
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| By: | /s/ Xxxxxx X. Xxxxxxxxx | |
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Xxxxxx X. Xxxxxxxxx, President |
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X.
X. XXXXXXX AND COMPANY
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| By: | /s/ Xxxx Xxxxxxxx | |
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Xxxx Xxxxxxxx, President |
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SCHEDULE
A
Services
to be performed by Xxxxxxx:
1. Calculate
daily net asset value per share.
2. Maintain
original entry documents and books of record and general ledgers.
3. Post
cash
receipts and disbursements.
4. Reconcile
bank account balances monthly.
5. Record
purchases and sales based upon portfolio manager communications.
6. Prepare
monthly and annual summaries to assist in the preparation of financial
statements of, and regulatory reports for, the Fund.
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SCHEDULE
B
X.
X. Xxxxxxx Accounting/Pricing
Fee
Schedule
For:
North Track Funds, Inc.
Base
—
$13,000 Annually per Fund, plus an annual Asset Charge (described
below)
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Asset
Charge -
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Assets
of $0 but less than $100 million - .05 of 1%
|
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Assets
of $100 million but less than $200 million - .03 of
1%
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Assets
of $200 million but less than $500 million - .01 of
1%
|
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No
additional charge over $500 million
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Plus:
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Out
of Pocket Expenses
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Pricing
valuations - by outside pricing sources
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Paper,
phone and other miscellaneous expenses
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Fees
will
be billed monthly
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SCHEDULE
C
Stand
Alone Funds
1. S&P
100 Index Fund (Effective 5/1/93)
2. NYSE
Arca
Tech 100 Index Fund (Effective 6/10/96)
3. Geneva
Growth Fund (Effective 1/1/99)
4. Wisconsin
Tax-Exempt Fund (Effective 6/13/94)
5. Cash
Reserve Fund, including Class X(Retail Class) and Class Y (Institutional
Class)
(Effective 1/1/96), and Class B and Class C (Retail CDSC Classes) (Effective
March 1, 2003)
6. Dow
Xxxxx
U.S. Health Care 100 Plus Fund (Effective 4/17/01)
7. Dow
Xxxxx
U.S. Financial 100 Plus Fund (Effective 4/17/01)
8. Strategic
Allocation Fund (Effective 12/10/03)
9.
Equity
Income Fund (Effective 3/1/05)
10.
Large
Cap
Equity Fund (Effective 5/1/07)
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