MASTER SERVICES AGREEMENT
THIS AGREEMENT is made as of the 14th day of April, 2000 by and
between EXETER FUND, INC., a Maryland corporation (the "Fund"), and XXXXXXX &
XXXXXX ADVISORS, INC., a New York corporation ("MNA").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end, diversified management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund desires to retain MNA to provide certain services on
behalf of the Fund, as set forth in the Appendices to this Agreement, and MNA is
willing so to serve.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints MNA to perform
such services and to serve such functions on behalf of the Fund as set
forth in the Appendices to this Agreement, on the terms set forth in this
Agreement and the Appendices hereto. MNA accepts such appointment and agrees to
furnish such services and serve such functions. The Fund may have currently
outstanding one or more series (the "Series") or classes of its shares of common
stock, par value $0.01 per share ("Shares") and may from time to time hereafter
issue separate series or classes of its Shares or classify and reclassify Shares
of any series or class, and the appointment effected hereby shall constitute
appointment for the provision of services with respect to all existing series
and classes and any additional series and classes unless the parties shall
otherwise agree in writing.
2. Delivery of Documents. The Fund has furnished MNA with
copies properly certified or authenticated of the following documents
and will furnish MNA from time to time with copies, properly certified or
authenticated, of all amendments of or supplements thereto, if any:
(a)Resolutions of the Fund's Board of Directors
authorizing the appointment of MNA to act in such capacities on behalf of the
Fund as set forth in the Appendices to this Agreement, and the entering into of
this Agreement by the Fund;
(b)The Fund's Articles of Incorporation and all amendments
thereto (the "Charter") and the Fund's By-Laws and all amendments
thereto (the "By-Laws");
(c)The Fund's most recent Registration Statement on Form
N-1A under the Securities Act of 1933, as amended (the "1933 Act") and
under the 1940 Act as filed with the Securities and Exchange Commission (the
"SEC") relating to the Shares; and
(d)Copies of the Fund's most recent prospectus or
prospectuses, including amendments and supplements thereto (collectively, the
"Prospectus").
3. Services to be Provided; Fees. During the term of this
Agreement, MNA shall perform the services and act in such capacities on
behalf of the Fund as set forth herein and in the Appendices to this Agreement.
For the services performed by MNA for the Fund, the Fund will compensate MNA in
such amounts as may be agreed to from time to time by the parties in writing on
Schedule A to this Agreement. MNA may delegate, subject to the approval of the
Board of Directors of the Fund, any of its duties under this Agreement or the
Appendices attached hereto to a third party provider of services.
4. Records. The books and records pertaining to the Fund
which are in the possession of MNA shall be the property of the Fund.
Such books and records shall be prepared and maintained as required by the 1940
Act and other applicable securities laws and rules and regulations. The Fund,
or the Fund's authorized representatives, shall have access to such books and
records at all times during MNA's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be provided by
MNA to the Fund or the Fund's authorized representative at the Fund's expense.
5. Cooperation With Accountants. In addition to any
obligations set forth in an Appendix hereto, MNA shall cooperate with the
Fund's independent accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available to such accountants for the expression of such
accountants' opinion of the Fund's financial statements or otherwise, as such
may be required by the Fund from time to time.
6. Compliance with Governmental Rules and Regulations.
The Fund assumes full responsibility for insuring that the Fund complies
with all applicable requirements of the 1933 Act, the Securities
Exchange Act of 1934 (the "1934 Act"), the 1940 Act, and any laws, rules and
regulations of governmental authorities having jurisdiction. MNA undertakes to
comply with all applicable requirements of the 1933 Act, the 1934 Act, the 1940
Act, the Commodities Exchange Act (if applicable), and all laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
performance by MNA of its duties under this Agreement, including the Appendices
hereto.
7. Expenses.
(a)MNA shall bear all expenses of its employees and
overhead incurred in connection with its duties under this Agreement and
shall pay all salaries and fees of the Fund's directors and officers who are
employees of MNA.
(b)The Fund assumes and shall pay or cause to be paid
all other expenses of the Fund, including, without limitation: the fees of
the Fund's investment advisor, administrator and distributor; the charges and
expenses of any registrar, any custodian or depositary appointed by the Fund for
the safekeeping of its cash, portfolio securities and other property, and any
stock transfer, dividend or accounting agent or agents appointed by the Fund;
brokers' commissions chargeable to the Fund in connection with portfolio
securities transactions to which the Fund is a party; all taxes, including
securities issuance and transfer taxes, and corporate fees payable by the Fund
to federal, state or other governmental agencies; the cost and expense of
engraving or printing of stock certificates representing Shares; all costs and
expenses in connection with maintenance of registration of the Fund and its
Shares with the SEC and various states and other jurisdictions (including filing
fees and legal fees and disbursements of counsel); the expenses of printing,
including typesetting, and distributing prospectuses of the Fund and supplements
thereto to the Fund's shareholders; all expenses of shareholders' and directors'
meetings and of preparing, printing and mailing of proxy statements and reports
to shareholders; fees and travel expenses of directors or members of any
advisory board or committee other than such directors or members who are
"interested persons" of the Fund (as defined in the 1940 Act); all expenses
incident to the payment of any dividend, distribution, withdrawal or redemption,
whether in Shares or in cash; charges and expenses of any outside service used
for pricing of the Shares; charges and expenses of legal counsel, including
counsel to the directors of the Fund who are not "interested persons" of the
Fund (as defined in the 1940 Act), and of independent accountants, in connection
with any matter relating to the Fund; a portion of membership dues of industry
associations; interest payable on Fund borrowings; postage; insurance premiums
on property or personnel (including officers and directors) of the Fund which
inure to its benefit; extraordinary expenses (including, but not limited to,
legal claims and liabilities and litigation costs and any indemnification
related thereto); and all other charges and costs of the Fund's operation unless
otherwise explicitly provided herein.
8. Liability; Indemnification. Neither MNA nor any of its
officers, directors or employees shall be liable for any error of
judgment or for any loss suffered by the Fund in connection with the matters to
which this Agreement, including the Appendices hereto, relates, except a loss
resulting from willful misfeasance, bad faith or negligence on its or their part
in the performance of, or from reckless disregard by it or them of, its or their
obligations and duties under this Agreement. The Fund agrees to indemnify and
hold harmless MNA and its nominees from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation, liabilities
arising under the 1933 Act, the 1934 Act, the 1940 Act, and any state and
foreign securities and blue sky laws, all as currently in existence or as
amended from time to time) and expenses, including (without limitation)
attorneys' fees and disbursements, arising directly or indirectly from any
action or thing which MNA takes or does or omits to take or do at the request or
on the direction of or in reliance on the advice of the Fund; provided, that
neither MNA nor any of its nominees shall be indemnified against any liability
to the Fund or to its shareholders (or any expenses incident to such liability)
arising out of MNA's own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement. Notwithstanding
anything else in this Agreement or any Appendix hereto to the contrary, MNA
shall have no liability to the Fund for any consequential, special or indirect
losses or damages which the Fund may incur or suffer as a consequence of MNA's
performance of the services provided in this Agreement or any Appendix hereto.
9. Responsibility of MNA. MNA shall be under no duty to take
any action on behalf of the Fund except as specifically set forth herein or
as may be specifically agreed to by MNA in writing. In the performance of
its duties hereunder, MNA shall be obligated to exercise care and diligence
and to act in good faith and to use its best efforts within reasonable
limits in performing services provided for under this Agreement, but MNA shall
not be liable for any act or omission which does not constitute willful
misfeasance, bad faith or negligence on the part of MNA or reckless disregard by
MNA of its duties under this Agreement. Notwithstanding anything in this
Agreement to the contrary, MNA shall have no liability to the Fund for any
consequential, special or indirect losses or damages which the Fund may incur or
suffer by or as a consequence of MNA's performance of the services provided
hereunder.
10. Non-Exclusivity. The services of MNA to the Fund are
not to be deemed exclusive and MNA shall be free to render accounting
or other services to others (including other investment companies) and to engage
in other activities. It is understood and agreed that directors, officers or
employees of MNA may serve as directors or officers of the Fund, and that
directors or officers of the Fund may serve as directors, officers and employees
of MNA to the extent permitted by law; and that directors, officers and
employees of MNA are not prohibited from engaging in any other business activity
or from rendering services to any other person, or from serving as partners,
directors or officers of any other firm or corporation, including other
investment companies.
11. Notice. Any notice or other communication required
to be given pursuant to this Agreement shall be deemed duly given if
delivered or mailed by registered mail, postage prepaid, to the Fund at 0000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, 00000, Attention: Xxxxxxx Xxxxxxx, or to MNA
at 0000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, 00000, Attention: B. Xxxxxx Xxxxxxx.
12. Miscellaneous.
(a)This Agreement shall become effective as of the date
first above written and shall remain in force until terminated. This
Agreement, or any Appendix hereto, may be terminated at any time without the
payment of any penalty, by either party hereto on sixty (60) days' written
notice to the other party.
(b)This Agreement shall be construed in accordance with
the laws of the State of New York.
(c)If any provisions of this Agreement shall be held
or made invalid in whole or in part, the other provisions of this Agreement
shall remain in force. Invalid provisions shall, in accordance with the intent
and purpose of this Agreement, be replaced by mutual consent of the parties with
such valid provisions which in their economic effect come as close as legally
possible to such invalid provisions.
(d)Except as otherwise specified in the Appendices
hereto, MNA shall be entitled to rely on any notice or communication believed by
it to be genuine and correct and to have been sent to it by or on behalf of the
Fund.
(e)MNA agrees on behalf of itself and its employees
to treat confidentially all records and other information relative to
the Fund and its prior, present, or potential shareholders, except, after prior
notification to and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where MNA may be exposed to civil
or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Fund.
(f)Any part of this Agreement or any Appendix attached
hereto may be changed or waived only by an instrument in writing signed
by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
EXETER FUND, INC.
By: /s/Xxxxxxx Xxxxxxx
Title: President
XXXXXXX & XXXXXX ADVISORS, INC.
By: /s/ B. Xxxxxx Xxxxxxx
Title: Executive Vice President
ACCOUNTING SERVICES APPENDIX
TO
MASTER SERVICES AGREEMENT
BETWEEN
EXETER FUND, INC.
XXXXXXX & XXXXXX ADVISORS, INC.
This Appendix is hereby incorporated into and made a part of the
Master Services Agreement dated as of April 14, 2000, (the "Master Services
Agreement") between EXETER FUND, INC. and XXXXXXX & XXXXXX ADVISORS, INC.
Defined terms not other wise defined herein shall have the meaning set forth in
the Master Services Agreement.
1. MNA will perform the following accounting functions
if required:
(a) Maintenance of Books and Records. MNA will
keep and maintain the following books and records of each Fund pursuant
to Rule 31a-1 under the Investment Company Act of 1940 (the "Rule"):
(i) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of cash and
all other debits and credits, as required by subsection (b)(1) of the Rule;
(ii) General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including interest accrued and
interest received, as required by subsection (b)(2)(i) of the Rule;
(iii) Separate ledger accounts required by subsection (b)(2)(ii) and
(iii) of the Rule; and
(iv) A monthly trial balance of all ledger accounts (except shareholder
accounts) as required by subsection (b)(8) of the Rule.
(b) Performance of Daily Accounting Services.
In addition to the maintenance of the books and records specified above, MNA
shall perform the following accounting services daily for each Fund:
(i) Calculate the net asset value per share utilizing prices obtained
from the sources described in subsection 1(b)(ii) below;
(ii) Obtain security prices from independent pricing services;
(iii) Verify and reconcile with the Fund's custodian all daily trade
activity, verify and reconcile cash and foreign currency daily, verify and
reconcile all positions at least monthly;
(iv) Compute, as appropriate, each Series' net income and capital
gains, dividend payables, dividend factors, 7-day yields, 7-day effective
yields, 30-day yields, and weighted average portfolio maturity;
(v) Review daily the net asset value calculation and dividend factor
(if any) for each Series prior to release to shareholders, check and confirm the
net asset values and dividend factors for reasonableness and deviations, and
distribute net asset values and yields to NASDAQ, Fund's transfer agent, the
Fund, and other recipients as requested;
(vi) Report to the Fund the daily market pricing of securities in any
money market Funds, with the comparison to the amortized cost basis;
(vii) Determine unrealized appreciation and depreciation on securities
held in variable net asset value Funds;
(viii) Amortize premiums and accrete discounts on securities purchased
at a price other than face value, if requested by the Company;
(ix) Update fund accounting system to reflect rate changes on variable
interest rate instruments;
(x) Post Fund transactions to appropriate categories;
(xi) Accrue expenses of each Series;
(xii) Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income and expense
accounts;
(xiii) Provide accounting reports in connection with the Fund's regular
annual audit and other audits and examinations by regulatory agencies and make
sufficient staff available for issues relating to said audits and examinations;
and
(xiv) Provide such periodic reports as the parties shall agree upon, as
set forth in a separate schedule.
(xv) Post shareholder activity.
(xvi) Post and monitor corporate actions not subject to investment
adviser election.
(xvii) Calculate allocation of income, expenses, and security
appreciation/depreciation across multiple classes as appropriate.
(xviii) Complete mutual fund database surveys and file as requested.
(xix) Provide access to internet-based on-line fund accounting
information system, which contains fund accounting records and information that
is required to be provided under the terms of this Agreement.
(c) Additional Accounting Services. MNA shall also
perform the following additional accounting services for each Fund:
(i) Provide monthly a download (and hard copy thereof) of the financial
statements described below, upon request of the Fund. The download will include
the following items:
Statement of Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net Assets, and
Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise tax
returns;
(B) the Fund's semi-annual reports with the Securities and Exchange
Commission ("SEC") on Form N-SAR;
(C) the Fund's annual, semi-annual and quarterly (if any) shareholder
reports;
(D) registration statements on Form N-1A and other filings relating to
the registration of shares;
(E) the Administrator's monitoring of the Fund's status as a regulated
investment company under Subchapter M of the Internal Revenue Code, as amended;
(F) annual audit by the Fund's auditors; and
(G) examinations performed by the SEC.
2. Records. MNA shall keep the following records:
(a) all books and records with respect to the
Fund's books of account; and (b) records of the Fund's securities transactions.
3. Liaison With Accountants. In addition to MNA's
obligations relating to the Fund's independent Accountants set forth in the
Master Services Agreement, MNA shall act as liaison with the Fund's independent
accountants and shall provide account analyses, fiscal year summaries, and other
audit related schedules.
4. Compensation. For services performed by MNA pursuant
to this Appendix, the Fund will pay to MNA compensation for such services
as the parties may agree to from time to time in writing, set forth in,
Schedule A, hereto, as such Schedule may be amended from time to time.
SCHEDULE A
SCHEDULE OF ACCOUNTING SERVICES FEES
TO THE ACCOUNTING SERVICES AGREEMENT
BETWEEN
EXETER FUND, INC. AND
XXXXXXX & XXXXXX ADVISORS, INC.
ANNUAL FEE:
Xxxxxxx & Xxxxxx Advisors, Inc. shall be entitled to receive an annual fee from
Exeter Fund, Inc. in accordance with the following schedule:
The greater of (i) four one-hundredths of on percent (0.04%) of each Series
average daily net assets or (ii) $48,000 for each Series, calculated and paid
monthly.
MULTIPLE CLASSES OF SHARES:
Each additional class of shares, per Series, shall be charged an additional
annual fee of $10,000, calculated and paid monthly.
OUT-OF-POCKET EXPENSES:
Out-of Pocket expenses include, but are not limited to:
All freight and other delivery and bonding charges incurred by Fund
Accountant in delivering materials to and from the Company;
All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by Fund Accountant in communication
with the Company, the Company's investment adviser or custodian, dealers or
others as required for Fund Accountant to perform the services to be provided
hereunder;
The cost of obtaining security market quotes pursuant to Section l
(b)(ii) in the Accounting Services Appendix;
The cost of microfilm or microfiche of records or other materials;
All systems-related expenses associated with the provision of special
reports and services pursuant to Section 1(c) herein;
Any expenses Fund Accountant shall incur at the written direction of
an officer of the Company thereunto duly authorized; and
Any additional expenses reasonably incurred by Fund Accountant in the
performance of its duties and obligations under this Agreement.
