ADMINISTRATION & ACCOUNTING
SERVICE AGREEMENT
BETWEEN
QUESTAR FUNDS, INC.
PHEONIX MANAGEMENT FUND
AND
AMERICAN DATA SERVICES, INC.
LOGO
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INDEX
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1. APPOINTMENT AND DELIVERY OF DOCUMENTS.....................................3
2. DUTIES OF ADS.............................................................4
3. COMPENSATION OF ADS.......................................................7
4. EXPENSES ASSUMED AS ADMINISTRATOR.........................................7
5. RESPONSIBILITY AND INDEMNIFICATION........................................8
6. REPORTS...................................................................8
7. ADDITIONAL FUNDS AND CLASSES..............................................9
8. ACTIVITIES OF ADS.........................................................9
9. RECORDS...................................................................9
10. CONFIDENTIALITY..........................................................10
11. EFFECTIVENESS, DURATION, AND TERMINATION.................................10
12. ASSIGNMENT...............................................................11
13. FORCE MAJEURE............................................................11
14. SERVICE DAYS.............................................................12
15. LIMITATION OF SHAREHOLDER & TRUSTEE LIABILITY............................12
16. NOTICES..................................................................12
17. MISCELLANEOUS............................................................13
SCHEDULE A....................................................................15
(A) ADMINISTRATIVE SERVICE FEE:..............................................15
FEE INCREASES.................................................................15
(B) EXPENSES.................................................................16
(C) STATE REGISTRATION (BLUE SKY) FEES:......................................16
(D) SPECIAL REPORTS:.........................................................16
(E) SERVICE DEPOSIT:.........................................................16
SCHEDULE B....................................................................17
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QUESTAR FUNDS, INC.: PHEONIX MANAGEMENT FUND
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made this 21st day of December, 1999, by and between the
Questar Funds, Inc., Pheonix Management Fund, a Maryland Corporation, having its
principal office and place of business at 000 Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000 (the "Corporation"), and American Data Services, Inc., a New
York corporation having its principal office and place of business at the
Hauppauge Corporate Center, 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx
00000 ("ADS").
WHEREAS, the Corporation is an open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Corporation is authorized to issue shares ("Shares") in
separate series, with each such series representing interests in a separate
portfolio of securities and other assets, and is authorized to divide those
series into separate classes; and
WHEREAS, the Corporation offers shares in the series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Corporation and made subject to this Agreement in accordance
with Section 13, being herein referred to as a "Fund," and collectively as the
"Funds") and the Corporation offers shares of the classes of each Fund as listed
in Appendix A hereto (each such class together with all other classes
subsequently established by the Corporation in a Fund being herein referred to
as a "Class," and collectively as the "Classes"); and
WHEREAS, the Corporation desires that ADS perform certain
administrative services for each Fund and Class thereof and ADS is willing to
provide those services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Corporation and ADS hereby agree as follows:
1 APPOINTMENT AND DELIVERY OF DOCUMENTS
(a) The Corporation hereby appoints ADS, and ADS hereby agrees, to act
as administrator of the Corporation for the period and on the terms set forth in
this Agreement.
(b) In connection therewith, the Corporation has delivered to ADS
copies of
(i) the Corporation's Articles of Incorporation and Bylaws
(collectively, as amended from time to time, "Organic Documents"),
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(ii) the Corporation's Registration Statement on Form N-1A and
all amendments thereto filed with the U.S. Securities and Exchange Commission
("SEC") pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), or the 1940 Act (the "Registration Statement"),
(iii) the Corporation's notification of registration under the
1940 Act on Form N-8A as filed with the SEC;
(iv) the Corporation's current Prospectus and Statement of
Additional Information for each Fund (collectively, as currently in effect and
as amended or supplemented, the "Prospectus"),
(v) each current plan of distribution or similar document
adopted by the Corporation under Rule 12b-1 under the 1940 Act ("Plan") and each
current shareholder service plan or similar document adopted by the Corporation
("Service Plan"), and
(vi) all procedures adopted by the Corporation with respect to
the Funds (e.g., procedures relating to rule 17a-7 transactions, repurchase
agreements, etc.), and shall promptly furnish ADS with all amendments of or
supplements to the foregoing. The Corporation shall deliver to ADS a certified
copy of the resolution of the Board of Trustees of the Corporation (the "Board")
appointing ADS and authorizing the execution and delivery of this Agreement.
2 DUTIES OF ADS.
(a) Subject to the direction and control of the Board, ADS shall manage
all aspects of the Corporation's operations with respect to the Funds except
those that are the responsibility of any other service provider hired by the
Corporation, all in such manner and to such extent as may be authorized by the
Board.
(b) ADS shall provide persons suitable to the Board to serve as
officers of the Corporation;
(c) ADS will provide the Fund with the adequate general office space,
communication facilities and personnel to perform the services for the Fund
described in this Section 2.
(d) oversee the performance of administrative and professional services
rendered to the Corporation by others, including its custodian, transfer agent
and dividend disbursing agent as well as legal, auditing, shareholder servicing
and other services performed for the Funds, including:
(i) the preparation and maintenance by the Corporation's
custodian, transfer agent, dividend disbursing agent and fund accountant in such
form, for such periods and in such locations as may be required by applicable
United States law, of all documents and records relating to the operation of the
Corporation required to be prepared or maintained by the Corporation or its
agents pursuant to applicable law;
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(ii) the reconciliation of account information and balances
among the Corporation's custodian, transfer agent, dividend disbursing agent and
fund accountant;
(iii) the transmission of purchase and redemption orders for
Shares; and
(iv) the performance of fund accounting, including the
calculation of the net asset value of the Shares;
(e) assist each Fund's investment adviser in monitoring Fund holdings
for compliance with Prospectus investment restrictions and assist in preparation
of periodic compliance reports, as applicable;
(f) Prepare and coordinate the printing of semi-annual and annual
financial statements;
(g) Prepare selected management reports for performance and compliance
analyses agreed upon by the Fund and Administrator from time to time;
(h) advise the Corporation and the Board on matters concerning the
Corporation and its affairs;
(i) with the cooperation of the counsel to the Corporation, the
investment advisers, officers of the Trust and other relevant parties, prepare
and disseminate materials for meetings of the Board, including agendas and
selected financial information as agreed upon by the Fund and ADS from time to
time; attend and participate in Board meetings to the extent requested by the
Board; and prepare or cause to be prepared minutes of the meetings of the Board;
(j) Determine income and capital gains available for distribution and
calculate distributions required to meet regulatory, income, and excise tax
requirements, to be reviewed by the Fund's independent public accountants;
(k) Prepare the Fund's federal, state, and local tax returns to be
reviewed by the Fund's independent public accountants;
(l) Prepare and maintain the Fund's operating expense budget to
determine proper expense accruals to be charged to the Fund in order to
calculate it's daily net asset value;
(m) in consultation with counsel for the Corporation, assist in and
oversee the preparation, filing, printing and where applicable, dissemination to
shareholders of the following:
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(i) amendments to the Corporation's Registration Statement on
Form N-1A;
(ii) periodic reports to the Funds' shareholders and the
Commission, including but not limited to annual reports and semi-annual reports;
(iii) notices pursuant to Rule 24f-2;
(iii) proxy materials; and
(iv) reports to the SEC on Form N-SAR.
(m) coordinate the Fund's annual or SEC audit by:
(i) assisting the Fund's independent auditors, or, upon
approval of the Fund, any regulatory body, in any requested review of the Fund's
accounts and records;
(ii) providing appropriate financial schedules (as requested
by the Fund's independent public accountants or SEC examiners); and,
(iii) providing office facilities as may be required.
(n) after consultation with counsel for the Corporation and the
investment adviser, determine the jurisdictions in which Shares of the Fund
shall be registered or qualified for sale; register, or prepare applicable
filings with respect to, the Shares with the various state and other securities
commissions, provided that all fees for the registration of Shares or for
qualifying or continuing the qualification of the Funds shall be paid by the
Fund
(o) monitor sales of Shares, ensure that the Shares are properly and
duly registered with the SEC;
(p) oversee the calculation of performance data for dissemination to
information services covering the investment company industry, for sales
literature of the Corporation and other appropriate purposes;
(q) prepare, or cause to be prepared, expense and financial reports,
including Fund budgets, expense reports, pro-forma financial statements, expense
and profit/loss projections and fee waiver/expense reimbursement projections on
a periodic basis;
(r) authorize the payment of Corporation expenses and pay, from
Corporation assets, all bills of the Corporation;
(s) assist the Corporation in the selection of other service providers,
such as independent accountants, law firms and proxy solicitors; and
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perform such other recordkeeping, reporting and other tasks as may be specified
from time to time in the procedures adopted by the Board; provided, that ADS
need not begin performing any such task except upon 65 days' notice and pursuant
to mutually acceptable compensation agreements.
(t) ADS shall provide such other services and assistance relating to
the affairs of the Corporation as the Corporation may, from time to time,
reasonably request pursuant to mutually acceptable compensation agreements.
(u) Except with respect to ADS's duties as set forth in this Section 2
and except as otherwise specifically provided herein, the Corporation assumes
all responsibility for ensuring that the Corporation complies with all
applicable requirements of the Securities Act, the 1940 Act and any laws, rules
and regulations of governmental authorities with jurisdiction over the
Corporation. All references to any law in this Agreement shall be deemed to
include reference to the applicable rules and regulations promulgated under
authority of the law and all official interpretations of such law or rules or
regulations.
(v) In order for ADS to perform the services required by this Section
2, the Corporation (i) shall cause all service providers to the Corporation to
furnish any and all information to ADS, and assist ADS as may be required and
(ii) shall ensure that ADS has access to all records and documents maintained by
the Corporation or any service provider to the Corporation.
ADS shall, for all purposes herein, be deemed to be an independent contractor
and shall, unless otherwise expressly provided or authorized, have no authority
to act for or represent the Fund in any way or otherwise be deemed an agent of
the Fund.
3. COMPENSATION OF ADS.
In consideration of the services to be performed by ADS as set forth
herein for each portfolio listed in Schedule B, ADS shall be entitled to receive
compensation and reimbursement for all reasonable out-of-pocket expenses. The
Fund agrees to pay ADS the fees and reimbursement of out-of-pocket expenses as
set forth in the fee schedule attached hereto as Schedule A.
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4. EXPENSES ASSUMED AS ADMINISTRATOR.
Except as specifically stated in this Agreement, ADS shall pay all
expenses incurred by it in performing its services and duties as Administrator.
The Corporation will bear all other expenses to be incurred in the operation of
the Funds (other than those borne by the Adviser) including taxes, interest,
brokerage fees and commissions, if any, fees of Directors who are not officers,
directors, partners, employees or holders of five percent or more of the
outstanding voting securities of the Adviser or ADS or any of their affiliates,
Securities and Exchange Commission fees and state blue sky registration or
qualification fees, advisory fees, charges of custodians, transfer and dividend
disbursing agents' fees, payments under the Plans, certain insurance premiums,
outside auditing and legal expenses, costs of maintaining corporate existence,
costs attributable to shareholder services, including without limitation
telephone and personnel expenses, costs of preparing and printing Prospectuses
for regulatory purposes, costs of shareholders' reports and Corporation meetings
and any extraordinary expenses
5. RESPONSIBILITY AND INDEMNIFICATION.
(a) ADS shall be held to the exercise of reasonable care in carrying
out the provisions of the Agreement, but shall be without liability to the Fund
for any action taken or omitted by it in good faith without gross negligence,
bad faith, willful misconduct or reckless disregard of its duties hereunder. It
shall be entitled to rely upon and may act upon the accounting records and
reports generated by the Fund, advice of the Fund, or of counsel for the Fund
and upon statements of the Fund's independent accountants, and shall be without
liability for any action reasonably taken or omitted pursuant to such records
and reports or advice, provided that such action is not, to the knowledge of
ADS, in violation of applicable federal or state laws or regulations, and
provided further that such action is taken without gross negligence, bad faith,
willful misconduct or reckless disregard of its duties.
(b) ADS shall not be liable to the Fund for any error of judgment or
mistake of law or for any loss arising out of any act or omission by ADS in the
performance of its duties hereunder except as hereinafter set forth. Nothing
herein contained shall be construed to protect the Administrator against any
liability to the Fund or its security holders to which ADS shall otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence in the
performance of its duties on behalf of the Fund, reckless disregard of ADS's
obligations and duties under this Agreement or the willful violation of any
applicable law.
(c) Except as may otherwise be provided by applicable law, neither ADS
nor its stockholders, officers, directors, employees or agents shall be subject
to, and the Fund shall indemnify and hold such persons harmless from and
against, any liability for and any damages, expenses or losses incurred by
reason of the inaccuracy of information furnished to ADS by the Fund or its
authorized agents or in connection with any error in judgment or mistake of law
or any act or omission in the course of, connected with or arising out of any
services to be rendered hereunder, except by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties, by reason of
reckless disregard of ADS's obligations and duties under this Agreement or the
willful violation of any applicable law.
6. REPORTS.
(a) The Fund shall provide to ADS on a quarterly basis a report of a
duly authorized officer of the Fund representing that all information furnished
to ADS during the preceding quarter was true, complete and correct to the best
of its knowledge. ADS shall not be responsible for the accuracy of any
information furnished to it by the Fund, and the Fund shall hold ADS harmless in
regard to any liability incurred by reason of the inaccuracy of such
information.
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(b) ADS shall provide to the Board of Directors of the Fund, on a
quarterly basis, a report, in such a form as ADS and the Fund shall from time to
time agree, representing that, to its knowledge, the Fund was in compliance with
all requirements of applicable federal and state law, including without
limitation, the rules and regulations of the Securities and Exchange Commission
and the Internal Revenue Service, or specifying any instances in which the Fund
was not so in compliance. Whenever, in the course of performing its duties under
this Agreement, ADS determines, on the basis of information supplied to ADS by
the Fund, that a violation of applicable law has occurred, or that, to its
knowledge, a possible violation of applicable law may have occurred or, with the
passage of time, could occur, ADS shall promptly notify the Fund and its counsel
of such violation.
7. ADDITIONAL FUNDS AND CLASSES
In the event that the Corporation establishes one or more series of
Shares or one or more classes of Shares after the effectiveness of this
Agreement, such series of Shares or classes of Shares, as the case may be, shall
become Funds and Classes under this Agreement. ADS or the Corporation may elect
not to make any such series or classes subject to this Agreement.
8. ACTIVITIES OF ADS.
(a) ADS shall be free to render similar services to others so long
as its services hereinunder are not impaired thereby.
(b) ADS may subcontract any or all of its responsibilities pursuant
to this Agreement to one or more corporations, trusts, firms, individuals or
associations, which may be affiliated persons of Forum, who agree to comply with
the terms of this Agreement; provided, that any such subcontracting shall not
relieve Forum of its responsibilities hereunder. Forum may pay those persons for
their services, but no such payment will increase Forum's compensation from the
Trust.
9. RECORDS.
ADS shall maintain records relating to its services, such as journals,
ledger accounts and other records, as are required to be maintained under the
1940 Act and Rule 31a-1 thereunder. The books and records pertaining to the
Corporation that are in possession of ADS shall be the property of the
Corporation. The Corporation, or the Corporation's authorized representatives,
shall have access to such books and records at all times during ADS's normal
business hours. Upon the reasonable request of the Corporation, copies of any
such books and records shall be provided promptly by ADS to the Corporation or
the Corporation's authorized representatives. In the event the Corporation
designates a successor that assumes any of ADS's obligations hereunder, ADS
shall, at the expense and direction of the Corporation, transfer to such
successor all relevant books, records and other data established or maintained
by ADS under this Agreement.
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10. CONFIDENTIALITY.
ADS agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that ADS may
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(c) release such other information as approved in writing by the Trust,
which approval shall not be unreasonably withheld and may not be withheld where
ADS may be exposed to civil or criminal contempt proceedings for failure to
release the information, when requested to divulge such information by duly
constituted authorities or when so requested by the Trust.
11. EFFECTIVENESS, DURATION, AND TERMINATION
(a) This Agreement shall become effective on the date first above
written.
(b) This Agreement shall remain in effect for a period of three (3)
years from the date of its effectiveness and shall continue in effect for
successive twelve-month periods; provided that such continuance is specifically
approved at least annually by the Board and by a majority of the Trustees who
are not parties to this Agreement or interested persons of any such party.
(c) In the event of a material breach of this Agreement by either
party, the non-breaching part shall notify the breaching party in writing of
such breach and upon receipt of such notice, the breaching party shall by 45
days to remedy the breach. If said breach is not remedied to the reasonable
satisfaction of the non-breaching party, the non-breaching party may thereafter
terminate this Agreement immediately.
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If after such termination for so long as ADS, with the written consent
of the Corporation, in fact continues to perform any one or more of the services
contemplated by this Agreement or any schedule or exhibit hereto, the provisions
of this Agreement, including without limitation, the provisions dealing with
indemnification, shall continue in full force and effect.
Compensation due ADS and unpaid by the Corporation upon such
termination shall be immediately due and payable upon, and notwithstanding, such
termination.
(d) If at any time during the initial or any subsequent term of this
Agreement, ADS is replaced as transfer agent for any reason other than for a
material breach of this Agreement which ADS does not cure within a reasonable
time, or the Fund is merged into or sells all (or substantially all) of its
assets to another fund or family of funds for which ADS does not serve as
transfer agent, then the Fund shall, immediately upon demand by ADS, make a one
time cash payment equal to the net present value of the revenues ADS would have
earned during the remainder of the initial or subsequent term of the Agreement,
as the case may be, at the fee rate in effect at the time of such event
(including any applicable minimum).
For purposes of this paragraph, the asset figured used to calculate the
fee due ADS hereunder shall be the highest monthly average assets of the Fund at
any time during the 12 months immediately preceding the termination of ADS (or
the merger or sale of assets) of the Fund.
If the Corporation terminates this Agreement ADS shall be entitled to
collect from the Corporation, in addition to the compensation described under
Section 2 hereof, the amount of all of ADS's reasonable cash disbursements for
services in connection with ADS's' activities in effecting such termination,
including without limitation, the delivery to the Corporation and/or its
designees of the Corporation's property, records, instruments and documents, or
any copies thereof. Subsequent to such termination, for a reasonable fee, ADS
will provide the Corporation with reasonable access to all Corporation documents
or records, if any, remaining in its possession. Should the Fund exercise its
right to terminate, all out-of-pocket expenses associated with the movement of
records and material will be borne by the Fund. Additionally, ADS reserves the
right to charge for any other reasonable costs and expenses associated with such
termination.
(e) The obligations of Sections 2 and 3 shall survive any termination
of this Agreement
12. ASSIGNMENT.
This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Fund without the prior written consent
of ADS.
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13. FORCE MAJEURE
ADS 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 reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
14. SERVICE DAYS
Nothing contained in this Agreement is intended to or shall require
ADS, in any capacity under this Agreement, to perform any functions or duties on
any day other than a business day of the Trust or of a Fund. Functions or duties
normally scheduled to be performed on any day which is not a business day of the
Trust or of a Fund shall be performed on, and as of, the next business day,
unless otherwise required by law.
[Note section 16 is for use with business trusts only]
15. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The trustees of the Trust and the shareholders of each Fund shall
not be liable for any obligations of the Trust or of the Funds under this
Agreement, and ADS agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Fund to which Forum's rights or claims relate in settlement of such rights or
claims, and not to the trustees of the Trust or the shareholders of the Funds.
16. NOTICES.
All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when delivered in person or by certified
mail, return receipt requested, and shall be given to the following addresses
(or such other addresses as to which notice is given):
To the Fund:
Xxxxxxx Xxxxx
President and Chairman of the Board
Questar Funds, Inc., Pheonix Management Fund
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
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To ADS:
Xxxxxxx Xxxx
President
American Data Services, Inc.
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
13. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
(b) Except for Appendix A to add new Funds and Classes in accordance
with Section 6, no provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) The provisions of this Agreement shall be construed and interpreted
in accordance with the laws of the State of New York as at the time in effect
and the applicable provisions of the 1940 Act. To the extent that the applicable
law of the State of New York or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
(e) The parties may execute this Agreement on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(i) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Trust are separate and
distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(j) No affiliated person, employee, agent, director, officer or manager
of Forum shall be liable at law or in equity for Forum's obligations under this
Agreement.
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(k) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
QUESTAR FUNDS, INC., PHEONIX MANAGEMENT FUND
By: ___________________________________________________
Xxxxxxx Xxxxx, President, Chairman of the Board
AMERICAN DATA SERVICES, INC.
By: ___________________________
Xxxxxxx Xxxx, President
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QUESTAR FUNDS, INC.: PHEONIX MANAGEMENT FUND
SCHEDULE A
(a) ADMINISTRATIVE SERVICE FEE:
__________________For the services rendered by ADS in its capacity as
administrator, as specified in Paragraph 1. DUTIES OF ADS., the Fund shall pay
ADS within ten (10) days after receipt of an invoice from ADS at the beginning
of each month, a fee equal to the greater of:
CALCULATED FEE WILL BE BASED UPON PRIOR MONTH AVERAGE NET ASSETS:
(No prorating partial months)
NOTE: The following administrative service fees are per portfolio
serviced plus out-of-pocket expenses.
MINIMUM FEE:
Under $5 million....................................$ 3,000
From $5 million to $10 Million...................... 3,500
From $10 million to $20 million..................... 4,000
From $20 million on................................. 4,500
OR,
NET ASSET CHARGE:
First $75 Million of average monthly net assets of Fund 1/12th of 0.15%
(15 basis points), plus
Next $75 Million of average monthly net assets of Fund 1/12th of 0.10%
(10 basis points), plus
Over $150 Million of average monthly net assets of Fund 1/12th of 0.07%
(7 basis points).
FEE WAIVER:
A fee waiver of 40% will be in place for the first year of the Fund
until November 30, 2000 or until the assets exceed $10 million.
FEE INCREASES
On each annual anniversary date of this Agreement, the fees enumerated
above will be increased by the change in the Consumer Price Index for the
Northeast region (CPI) for the twelve-month period ending with the month
preceding such annual anniversary date.
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(b) EXPENSES.
The following expenses will be charged to the Fund as incurred by ADS
in connection with the performance of its duties to include
The Fund shall reimburse ADS for any out-of-pocket expenses, exclusive
of salaries, advanced by ADS in connection with but not limited to the printing
or filing of documents for the Fund, travel, daily quotation fees (currently
$0.10 for equity & $0.58 for debt positions), capital change information,
telephone toll charges, facsimile transmissions, supplies (related to fund
records), record storage, postage and courier charges, pro-rata portion of SAS
70 review, and NASDAQ insertion fee ($22 per month).incurred in connection with
the performance of its duties hereunder. ADS shall provide the Fund with a
monthly invoice of such expenses and the Fund shall reimburse ADS within fifteen
(15) days after receipt thereof.
(c) STATE REGISTRATION (BLUE SKY) SURCHARGE:
__________________The fees enumerated in paragraph (a) above do not include the
initial state registration, renewal and maintenance of registrations (as
detailed in Paragraph 1(l) DUTIES OF ADS). Each state registration requested
will be subject to the following fees:
Initial registration ............... $295.00
Registration renewal ............... $150.00
Sales reports (if required) ........ $ 25.00
(d) SPECIAL REPORTS.
__________________All reports and /or analyses requested by the Fund, its
auditors, legal counsel, portfolio manager, or any regulatory agency having
jurisdiction over the Fund, that are not in the normal course of fund
administrative activities as specified in Section 1 of this Agreement shall be
subject to an additional charge, agreed upon in advance, based upon the
following rates:
Labor:
Senior staff - $150.00/hr.
Junior staff - $ 75.00/hr.
Computer time -$ 45.00/hr.
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(e) SERVICE DEPOSIT.
The Fund will remit to ADS upon execution of this Agreement a security
deposit equal to one (1) month's minimum fee under this Agreement, computed in
accordance with the number of portfolios listed in Schedule B of this Agreement.
The Fund will have the option to have the security deposit applied to the last
month's service fee, or applied to any new contract between the Fund and ADS.
However, if the Fund elects or is forced to terminate this Agreement
for any reason what-so-ever (including, but not limited to, the voluntary or
involuntary termination of the Fund, liquidation of the Fund's assets, the sale
or merger of the Fund or it's assets to any successor entity) prior to the
termination date of this Agreement as specified in Paragraph 8 of this
Agreement, the Fund will forfeit the Security Deposit paid to ADS upon execution
of this Agreement.
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SCHEDULE B
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
Pheonix Management Fund
-18-
ADMINISTRATION & ACCOUNTING
SERVICE AGREEMENT
BETWEEN
QUESTAR FUNDS, INC.
MACROTRENDS FUND
AND
AMERICAN DATA SERVICES, INC.
[GRAPHIC OMITTED][GRAPHIC OMITTED]
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INDEX
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1. APPOINTMENT AND DELIVERY OF DOCUMENTS.....................................3
2. DUTIES OF ADS.............................................................4
3. COMPENSATION OF ADS.......................................................7
4. EXPENSES ASSUMED AS ADMINISTRATOR.........................................7
5. RESPONSIBILITY AND INDEMNIFICATION........................................8
6. REPORTS...................................................................8
7. ADDITIONAL FUNDS AND CLASSES..............................................9
8. ACTIVITIES OF ADS.........................................................9
9. RECORDS...................................................................9
10. CONFIDENTIALITY..........................................................10
11. EFFECTIVENESS, DURATION, AND TERMINATION.................................10
12. ASSIGNMENT...............................................................11
13. FORCE MAJEURE............................................................11
14. SERVICE DAYS.............................................................12
15. LIMITATION OF SHAREHOLDER & TRUSTEE LIABILITY............................12
16. NOTICES..................................................................12
17. MISCELLANEOUS............................................................13
SCHEDULE A....................................................................15
(A) ADMINISTRATIVE SERVICE FEE:...............................................15
FEE INCREASES.................................................................15
(B) EXPENSES.................................................................16
(C) STATE REGISTRATION (BLUE SKY) FEES:......................................16
(D) SPECIAL REPORTS:.........................................................16
(E) SERVICE DEPOSIT:.........................................................16
SCHEDULE B....................................................................17
-2-
QUESTAR FUNDS, INC.: MACROTRENDS FUND
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made this 21st day of December, 1999, by and between the
Questar Funds, Inc., MacroTrends Fund, a Maryland Corporation, having its
principal office and place of business at 000 Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000 (the "Corporation"), and American Data Services, Inc., a New
York corporation having its principal office and place of business at the
Hauppauge Corporate Center, 000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx
00000 ("ADS").
WHEREAS, the Corporation is an open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Corporation is authorized to issue shares ("Shares") in
separate series, with each such series representing interests in a separate
portfolio of securities and other assets, and is authorized to divide those
series into separate classes; and
WHEREAS, the Corporation offers shares in the series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Corporation and made subject to this Agreement in accordance
with Section 13, being herein referred to as a "Fund," and collectively as the
"Funds") and the Corporation offers shares of the classes of each Fund as listed
in Appendix A hereto (each such class together with all other classes
subsequently established by the Corporation in a Fund being herein referred to
as a "Class," and collectively as the "Classes"); and
WHEREAS, the Corporation desires that ADS perform certain
administrative services for each Fund and Class thereof and ADS is willing to
provide those services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Corporation and ADS hereby agree as follows:
1 APPOINTMENT AND DELIVERY OF DOCUMENTS
(a) The Corporation hereby appoints ADS, and ADS hereby agrees, to act
as administrator of the Corporation for the period and on the terms set forth in
this Agreement.
-3-
(b) In connection therewith, the Corporation has delivered to ADS
copies of
(i) the Corporation's Articles of Incorporation and Bylaws
(collectively, as amended from time to time, "Organic Documents"),
(ii) the Corporation's Registration Statement on Form N-1A and
all amendments thereto filed with the U.S. Securities and Exchange Commission
("SEC") pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), or the 1940 Act (the "Registration Statement"),
(iii) the Corporation's notification of registration under the
1940 Act on Form N-8A as filed with the SEC;
(iv) the Corporation's current Prospectus and Statement of
Additional Information for each Fund (collectively, as currently in effect and
as amended or supplemented, the "Prospectus"),
(v) each current plan of distribution or similar document
adopted by the Corporation under Rule 12b-1 under the 1940 Act ("Plan") and each
current shareholder service plan or similar document adopted by the Corporation
("Service Plan"), and
(vi) all procedures adopted by the Corporation with respect to
the Funds (e.g., procedures relating to rule 17a-7 transactions, repurchase
agreements, etc.), and shall promptly furnish ADS with all amendments of or
supplements to the foregoing. The Corporation shall deliver to ADS a certified
copy of the resolution of the Board of Trustees of the Corporation (the "Board")
appointing ADS and authorizing the execution and delivery of this Agreement.
2 DUTIES OF ADS.
(a) Subject to the direction and control of the Board, ADS shall manage
all aspects of the Corporation's operations with respect to the Funds except
those that are the responsibility of any other service provider hired by the
Corporation, all in such manner and to such extent as may be authorized by the
Board.
(b) ADS shall provide persons suitable to the Board to serve as
officers of the Corporation;
(c) ADS will provide the Fund with the adequate general office space,
communication facilities and personnel to perform the services for the Fund
described in this Section 2.
(d) oversee the performance of administrative and professional services
rendered to the Corporation by others, including its custodian, transfer agent
and dividend disbursing agent as well as legal, auditing, shareholder servicing
and other services performed for the Funds, including:
-4-
(i) the preparation and maintenance by the Corporation's
custodian, transfer agent, dividend disbursing agent and fund accountant in such
form, for such periods and in such locations as may be required by applicable
United States law, of all documents and records relating to the operation of the
Corporation required to be prepared or maintained by the Corporation or its
agents pursuant to applicable law;
(ii) the reconciliation of account information and balances
among the Corporation's custodian, transfer agent, dividend disbursing agent and
fund accountant;
(iii) the transmission of purchase and redemption orders for
Shares; and
(iv) the performance of fund accounting, including the
calculation of the net asset value of the Shares;
(e) assist each Fund's investment adviser in monitoring Fund holdings
for compliance with Prospectus investment restrictions and assist in preparation
of periodic compliance reports, as applicable;
(f) Prepare and coordinate the printing of semi-annual and annual
financial statements;
(g) Prepare selected management reports for performance and compliance
analyses agreed upon by the Fund and Administrator from time to time;
(h) advise the Corporation and the Board on matters concerning the
Corporation and its affairs;
(i) with the cooperation of the counsel to the Corporation, the
investment advisers, officers of the Trust and other relevant parties, prepare
and disseminate materials for meetings of the Board, including agendas and
selected financial information as agreed upon by the Fund and ADS from time to
time; attend and participate in Board meetings to the extent requested by the
Board; and prepare or cause to be prepared minutes of the meetings of the Board;
(j) Determine income and capital gains available for distribution and
calculate distributions required to meet regulatory, income, and excise tax
requirements, to be reviewed by the Fund's independent public accountants;
(k) Prepare the Fund's federal, state, and local tax returns to be
reviewed by the Fund's independent public accountants;
(l) Prepare and maintain the Fund's operating expense budget to
determine proper expense accruals to be charged to the Fund in order to
calculate it's daily net asset value;
-5-
(m) in consultation with counsel for the Corporation, assist in and
oversee the preparation, filing, printing and where applicable, dissemination to
shareholders of the following:
(i) amendments to the Corporation's Registration Statement on
Form N-1A;
(ii) periodic reports to the Funds' shareholders and the
Commission, including but not limited to annual reports and semi-annual reports;
(iii) notices pursuant to Rule 24f-2;
(iii) proxy materials; and
(iv) reports to the SEC on Form N-SAR.
(m) coordinate the Fund's annual or SEC audit by:
(i) assisting the Fund's independent auditors, or, upon
approval of the Fund, any regulatory body, in any requested review of the Fund's
accounts and records;
(ii) providing appropriate financial schedules (as requested
by the Fund's independent public accountants or SEC examiners); and,
(iii) providing office facilities as may be required.
(n) after consultation with counsel for the Corporation and the
investment adviser, determine the jurisdictions in which Shares of the Fund
shall be registered or qualified for sale; register, or prepare applicable
filings with respect to, the Shares with the various state and other securities
commissions, provided that all fees for the registration of Shares or for
qualifying or continuing the qualification of the Funds shall be paid by the
Fund
(o) monitor sales of Shares, ensure that the Shares are properly and
duly registered with the SEC;
(p) oversee the calculation of performance data for dissemination to
information services covering the investment company industry, for sales
literature of the Corporation and other appropriate purposes;
(q) prepare, or cause to be prepared, expense and financial reports,
including Fund budgets, expense reports, pro-forma financial statements, expense
and profit/loss projections and fee waiver/expense reimbursement projections on
a periodic basis;
(r) authorize the payment of Corporation expenses and pay, from
Corporation assets, all bills of the Corporation;
-6-
(s) assist the Corporation in the selection of other service providers,
such as independent accountants, law firms and proxy solicitors; and
perform such other recordkeeping, reporting and other tasks as may be specified
from time to time in the procedures adopted by the Board; provided, that ADS
need not begin performing any such task except upon 65 days' notice and pursuant
to mutually acceptable compensation agreements.
(t) ADS shall provide such other services and assistance relating to
the affairs of the Corporation as the Corporation may, from time to time,
reasonably request pursuant to mutually acceptable compensation agreements.
(u) Except with respect to ADS's duties as set forth in this Section 2
and except as otherwise specifically provided herein, the Corporation assumes
all responsibility for ensuring that the Corporation complies with all
applicable requirements of the Securities Act, the 1940 Act and any laws, rules
and regulations of governmental authorities with jurisdiction over the
Corporation. All references to any law in this Agreement shall be deemed to
include reference to the applicable rules and regulations promulgated under
authority of the law and all official interpretations of such law or rules or
regulations.
(v) In order for ADS to perform the services required by this Section
2, the Corporation (i) shall cause all service providers to the Corporation to
furnish any and all information to ADS, and assist ADS as may be required and
(ii) shall ensure that ADS has access to all records and documents maintained by
the Corporation or any service provider to the Corporation.
ADS shall, for all purposes herein, be deemed to be an independent contractor
and shall, unless otherwise expressly provided or authorized, have no authority
to act for or represent the Fund in any way or otherwise be deemed an agent of
the Fund.
3 COMPENSATION OF ADS.
In consideration of the services to be performed by ADS as set forth
herein for each portfolio listed in Schedule B, ADS shall be entitled to receive
compensation and reimbursement for all reasonable out-of-pocket expenses. The
Fund agrees to pay ADS the fees and reimbursement of out-of-pocket expenses as
set forth in the fee schedule attached hereto as Schedule A.
-7-
4. EXPENSES ASSUMED AS ADMINISTRATOR.
Except as specifically stated in this Agreement, ADS shall pay all
expenses incurred by it in performing its services and duties as Administrator.
The Corporation will bear all other expenses to be incurred in the operation of
the Funds (other than those borne by the Adviser) including taxes, interest,
brokerage fees and commissions, if any, fees of Directors who are not officers,
directors, partners, employees or holders of five percent or more of the
outstanding voting securities of the Adviser or ADS or any of their affiliates,
Securities and Exchange Commission fees and state blue sky registration or
qualification fees, advisory fees, charges of custodians, transfer and dividend
disbursing agents' fees, payments under the Plans, certain insurance premiums,
outside auditing and legal expenses, costs of maintaining corporate existence,
costs attributable to shareholder services, including without limitation
telephone and personnel expenses, costs of preparing and printing Prospectuses
for regulatory purposes, costs of shareholders' reports and Corporation meetings
and any extraordinary expenses
5. RESPONSIBILITY AND INDEMNIFICATION.
(a) ADS shall be held to the exercise of reasonable care in carrying
out the provisions of the Agreement, but shall be without liability to the Fund
for any action taken or omitted by it in good faith without gross negligence,
bad faith, willful misconduct or reckless disregard of its duties hereunder. It
shall be entitled to rely upon and may act upon the accounting records and
reports generated by the Fund, advice of the Fund, or of counsel for the Fund
and upon statements of the Fund's independent accountants, and shall be without
liability for any action reasonably taken or omitted pursuant to such records
and reports or advice, provided that such action is not, to the knowledge of
ADS, in violation of applicable federal or state laws or regulations, and
provided further that such action is taken without gross negligence, bad faith,
willful misconduct or reckless disregard of its duties.
(b) ADS shall not be liable to the Fund for any error of judgment or
mistake of law or for any loss arising out of any act or omission by ADS in the
performance of its duties hereunder except as hereinafter set forth. Nothing
herein contained shall be construed to protect the Administrator against any
liability to the Fund or its security holders to which ADS shall otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence in the
performance of its duties on behalf of the Fund, reckless disregard of ADS's
obligations and duties under this Agreement or the willful violation of any
applicable law.
(c) Except as may otherwise be provided by applicable law, neither ADS
nor its stockholders, officers, directors, employees or agents shall be subject
to, and the Fund shall indemnify and hold such persons harmless from and
against, any liability for and any damages, expenses or losses incurred by
reason of the inaccuracy of information furnished to ADS by the Fund or its
authorized agents or in connection with any error in judgment or mistake of law
or any act or omission in the course of, connected with or arising out of any
services to be rendered hereunder, except by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties, by reason of
reckless disregard of ADS's obligations and duties under this Agreement or the
willful violation of any applicable law.
-8-
6. REPORTS.
(a) The Fund shall provide to ADS on a quarterly basis a report of a
duly authorized officer of the Fund representing that all information furnished
to ADS during the preceding quarter was true, complete and correct to the best
of its knowledge. ADS shall not be responsible for the accuracy of any
information furnished to it by the Fund, and the Fund shall hold ADS harmless in
regard to any liability incurred by reason of the inaccuracy of such
information.
(b) ADS shall provide to the Board of Directors of the Fund, on a
quarterly basis, a report, in such a form as ADS and the Fund shall from time to
time agree, representing that, to its knowledge, the Fund was in compliance with
all requirements of applicable federal and state law, including without
limitation, the rules and regulations of the Securities and Exchange Commission
and the Internal Revenue Service, or specifying any instances in which the Fund
was not so in compliance. Whenever, in the course of performing its duties under
this Agreement, ADS determines, on the basis of information supplied to ADS by
the Fund, that a violation of applicable law has occurred, or that, to its
knowledge, a possible violation of applicable law may have occurred or, with the
passage of time, could occur, ADS shall promptly notify the Fund and its counsel
of such violation.
7. ADDITIONAL FUNDS AND CLASSES
In the event that the Corporation establishes one or more series of
Shares or one or more classes of Shares after the effectiveness of this
Agreement, such series of Shares or classes of Shares, as the case may be, shall
become Funds and Classes under this Agreement. ADS or the Corporation may elect
not to make any such series or classes subject to this Agreement.
8. ACTIVITIES OF ADS.
(a) ADS shall be free to render similar services to others so long
as its services hereinunder are not impaired thereby.
(b) ADS may subcontract any or all of its responsibilities pursuant
to this Agreement to one or more corporations, trusts, firms, individuals or
associations, which may be affiliated persons of Forum, who agree to comply with
the terms of this Agreement; provided, that any such subcontracting shall not
relieve Forum of its responsibilities hereunder. Forum may pay those persons for
their services, but no such payment will increase Forum's compensation from the
Trust.
-9-
9. RECORDS.
ADS shall maintain records relating to its services, such as journals,
ledger accounts and other records, as are required to be maintained under the
1940 Act and Rule 31a-1 thereunder. The books and records pertaining to the
Corporation that are in possession of ADS shall be the property of the
Corporation. The Corporation, or the Corporation's authorized representatives,
shall have access to such books and records at all times during ADS's normal
business hours. Upon the reasonable request of the Corporation, copies of any
such books and records shall be provided promptly by ADS to the Corporation or
the Corporation's authorized representatives. In the event the Corporation
designates a successor that assumes any of ADS's obligations hereunder, ADS
shall, at the expense and direction of the Corporation, transfer to such
successor all relevant books, records and other data established or maintained
by ADS under this Agreement.
10. CONFIDENTIALITY.
ADS agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that ADS may
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(c) release such other information as approved in writing by the Trust,
which approval shall not be unreasonably withheld and may not be withheld where
ADS may be exposed to civil or criminal contempt proceedings for failure to
release the information, when requested to divulge such information by duly
constituted authorities or when so requested by the Trust.
11. EFFECTIVENESS, DURATION, AND TERMINATION
(a) This Agreement shall become effective on the date first above
written.
(b) This Agreement shall remain in effect for a period of three (3)
years from the date of its effectiveness and shall continue in effect for
successive twelve-month periods; provided that such continuance is specifically
approved at least annually by the Board and by a majority of the Trustees who
are not parties to this Agreement or interested persons of any such party.
(c) In the event of a material breach of this Agreement by either
party, the non-breaching part shall notify the breaching party in writing of
such breach and upon receipt of such notice, the breaching party shall by 45
days to remedy the breach. If said breach is not remedied to the reasonable
satisfaction of the non-breaching party, the non-breaching party may thereafter
terminate this Agreement immediately.
-10-
If after such termination for so long as ADS, with the written consent
of the Corporation, in fact continues to perform any one or more of the services
contemplated by this Agreement or any schedule or exhibit hereto, the provisions
of this Agreement, including without limitation, the provisions dealing with
indemnification, shall continue in full force and effect.
Compensation due ADS and unpaid by the Corporation upon such
termination shall be immediately due and payable upon, and notwithstanding, such
termination.
(d) If at any time during the initial or any subsequent term of this
Agreement, ADS is replaced as transfer agent for any reason other than for a
material breach of this Agreement which ADS does not cure within a reasonable
time, or the Fund is merged into or sells all (or substantially all) of its
assets to another fund or family of funds for which ADS does not serve as
transfer agent, then the Fund shall, immediately upon demand by ADS, make a one
time cash payment equal to the net present value of the revenues ADS would have
earned during the remainder of the initial or subsequent term of the Agreement,
as the case may be, at the fee rate in effect at the time of such event
(including any applicable minimum).
For purposes of this paragraph, the asset figured used to calculate the
fee due ADS hereunder shall be the highest monthly average assets of the Fund at
any time during the 12 months immediately preceding the termination of ADS (or
the merger or sale of assets) of the Fund.
If the Corporation terminates this Agreement ADS shall be entitled to
collect from the Corporation, in addition to the compensation described under
Section 2 hereof, the amount of all of ADS's reasonable cash disbursements for
services in connection with ADS's' activities in effecting such termination,
including without limitation, the delivery to the Corporation and/or its
designees of the Corporation's property, records, instruments and documents, or
any copies thereof. Subsequent to such termination, for a reasonable fee, ADS
will provide the Corporation with reasonable access to all Corporation documents
or records, if any, remaining in its possession. Should the Fund exercise its
right to terminate, all out-of-pocket expenses associated with the movement of
records and material will be borne by the Fund. Additionally, ADS reserves the
right to charge for any other reasonable costs and expenses associated with such
termination.
(e) The obligations of Sections 2 and 3 shall survive any termination
of this Agreement
-11-
12. ASSIGNMENT.
This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Fund without the prior written consent
of ADS.
13. FORCE MAJEURE
ADS 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 reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
14. SERVICE DAYS
Nothing contained in this Agreement is intended to or shall require
ADS, in any capacity under this Agreement, to perform any functions or duties on
any day other than a business day of the Trust or of a Fund. Functions or duties
normally scheduled to be performed on any day which is not a business day of the
Trust or of a Fund shall be performed on, and as of, the next business day,
unless otherwise required by law.
[Note section 16 is for use with business trusts only]
15. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The trustees of the Trust and the shareholders of each Fund shall
not be liable for any obligations of the Trust or of the Funds under this
Agreement, and ADS agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Fund to which Forum's rights or claims relate in settlement of such rights or
claims, and not to the trustees of the Trust or the shareholders of the Funds.
16. NOTICES.
All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when delivered in person or by certified
mail, return receipt requested, and shall be given to the following addresses
(or such other addresses as to which notice is given):
To the Fund:
Xxxxxxx Xxxxx
President and Chairman of the Board
Questar Funds, Inc., MacroTrends Fund
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
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To ADS:
Xxxxxxx Xxxx
President
American Data Services, Inc.
000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
13. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement.
(b) Except for Appendix A to add new Funds and Classes in accordance
with Section 6, no provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by
both parties hereto.
(c) The provisions of this Agreement shall be construed and interpreted
in accordance with the laws of the State of New York as at the time in effect
and the applicable provisions of the 1940 Act. To the extent that the applicable
law of the State of New York or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
(e) The parties may execute this Agreement on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
-13-
(i) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Trust are separate and
distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(j) No affiliated person, employee, agent, director, officer or manager
of Forum shall be liable at law or in equity for Forum's obligations under this
Agreement.
(k) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
QUESTAR FUNDS, INC., MACROTRENDS FUND
By: ___________________________________________________
Xxxxxxx Xxxxx, President, Chairman of the Board
AMERICAN DATA SERVICES, INC.
By: ___________________________
Xxxxxxx Xxxx, President
------------------
-14-
QUESTAR FUNDS, INC.: MACROTRENDS FUND
SCHEDULE A
(a) ADMINISTRATIVE SERVICE FEE:
__________________For the services rendered by ADS in its capacity as
administrator, as specified in Paragraph 1. DUTIES OF ADS., the Fund shall pay
ADS within ten (10) days after receipt of an invoice from ADS at the beginning
of each month, a fee equal to the greater of:
CALCULATED FEE WILL BE BASED UPON PRIOR MONTH AVERAGE NET ASSETS:
(No prorating partial months)
NOTE: The following administrative service fees are per portfolio
serviced plus out-of-pocket expenses.
MINIMUM FEE:
Under $5 million....................................$ 3,000
From $5 million to $10 Million...................... 3,500
From $10 million to $20 million..................... 4,000
From $20 million on................................. 4,500
OR,
NET ASSET CHARGE:
First $75 Million of average monthly net assets of Fund 1/12th of 0.15%
(15 basis points), plus
Next $75 Million of average monthly net assets of Fund 1/12th of 0.10%
(10 basis points), plus
Over $150 Million of average monthly net assets of Fund 1/12th of 0.07%
(7 basis points).
-15-
FEE INCREASES
On each annual anniversary date of this Agreement, the fees enumerated
above will be increased by the change in the Consumer Price Index for the
Northeast region (CPI) for the twelve-month period ending with the month
preceding such annual anniversary date.
(b) EXPENSES.
The following expenses will be charged to the Fund as incurred by ADS
in connection with the performance of its duties to include
The Fund shall reimburse ADS for any out-of-pocket expenses , exclusive
of salaries, advanced by ADS in connection with but not limited to the printing
or filing of documents for the Fund, travel, daily quotation fees (currently
$0.10 for equity & $0.58 for debt positions), capital change information,
telephone toll charges, facsimile transmissions, supplies (related to fund
records), record storage, postage and courier charges, pro-rata portion of SAS
70 review, and NASDAQ insertion fee ($22 per month).incurred in connection with
the performance of its duties hereunder. ADS shall provide the Fund with a
monthly invoice of such expenses and the Fund shall reimburse ADS within fifteen
(15) days after receipt thereof.
(c) STATE REGISTRATION (BLUE SKY) SURCHARGE:
__________________The fees enumerated in paragraph (a) above do not include the
initial state registration, renewal and maintenance of registrations (as
detailed in Paragraph 1(l) DUTIES OF ADS). Each state registration requested
will be subject to the following fees:
Initial registration ............... $295.00
Registration renewal ............... $150.00
Sales reports (if required) ........ $ 25.00
(d) SPECIAL REPORTS.
__________________All reports and /or analyses requested by the Fund, its
auditors, legal counsel, portfolio manager, or any regulatory agency having
jurisdiction over the Fund, that are not in the normal course of fund
administrative activities as specified in Section 1 of this Agreement shall be
subject to an additional charge, agreed upon in advance, based upon the
following rates:
Labor:
Senior staff - $150.00/hr.
Junior staff - $ 75.00/hr.
Computer time - $ 45.00/hr.
-16-
(e) SERVICE DEPOSIT.
The Fund will remit to ADS upon execution of this Agreement a security
deposit equal to one (1) month's minimum fee under this Agreement, computed in
accordance with the number of portfolios listed in Schedule B of this Agreement.
The Fund will have the option to have the security deposit applied to the last
month's service fee, or applied to any new contract between the Fund and ADS.
However, if the Fund elects or is forced to terminate this Agreement
for any reason what-so-ever (including, but not limited to, the voluntary or
involuntary termination of the Fund, liquidation of the Fund's assets, the sale
or merger of the Fund or it's assets to any successor entity) prior to the
termination date of this Agreement as specified in Paragraph 8 of this
Agreement, the Fund will forfeit the Security Deposit paid to ADS upon execution
of this Agreement.
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SCHEDULE B
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
MacroTrends Fund
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