EXHIBIT 23(h)(5)
AMENDED AND RESTATED
SHAREHOLDER SERVICES AGREEMENT
AGREEMENT dated__________, 2011, between Xxx Financial
Recordkeeping, Inc. ("LFR"), a Hawaii Corporation and First Pacific Mutual Fund,
Inc. (the "Corporation"), a Maryland Corporation. Hawaii Municipal Fund series
and First Pacific Low Volatility Fund series are series of the Corporation
operated as open-ended, non-diversified management investment companies. All
references to any series of the Corporation will be called the "Fund"
unless expressly noted otherwise.
WITNESSETH:
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WHEREAS, each Fund is a non-diversified, open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, LFR serves as Transfer Agent to each Fund under a separate
Transfer Agent Agreement and each Fund desires to avail itself of certain
administrative services provided by LFR with regard to personal services of
shareholder accounts which are not covered by the Transfer Agent Agreement;
and
WHEREAS, LFR is willing to furnish such services on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
Section 1. Each Fund hereby appoints LFR to administer certain
of the affairs of each Fund for the period and on the terms set forth in this
Agreement. LFR hereby accepts such appointment and agrees during such period to
render the services herein described and to assume the obligations set forth
herein, for the compensation herein provided.
Section 2. LFR shall provide personal servicing of shareholder
accounts, which may include telephone and written conversations, assistance in
redemptions, exchanges, transfers and opening accounts as may be required from
time to time. LFR shall, in addition, provide such additional administrative
management services as it and each Fund may from time to time agree.
Section 3. Xxx Financial Group Inc. shall oversee all
relationships between each Fund and its Custodian, Transfer Agent and any
accounting services agents, including the supervision of the performance of
each Fund's agreements with such parties.
Section 4. The accounts and records maintained by LFR shall be
the property of each Fund and shall be made available to each Fund within a
reasonable period of time, upon demand. LFR shall assist each Fund's
independent auditors, or upon approval of each Fund, or upon demand, any
regulatory body, in any requested review of each Fund's accounts and records
but shall be reimbursed for all expenses and employee time invested in any such
review outside of routine and normal periodic reviews. LFR shall supply the
necessary data for each Fund's completion of any necessary tax returns,
questionnaires, periodic reports to shareholders and such other reports and
information requests as each Fund and LFR shall agree upon from time to
time.
Section 5. LFR may rely upon the advice of each Fund and
counsel to each Fund and upon statements of each Fund's accountants and other
persons believed by it in good faith to be expert in matters upon which they
are consulted, and LFR shall not be liable for any actions taken in good faith
upon such statements.
Section 6. LFR shall not be liable for any action taken in good
faith reliance upon any authorized Oral Instructions, any Written Instructions
and certified copy of any resolution of the Board of Directors of each Fund or
any other document reasonably believed by LFR to be genuine and to have been
executed or signed by the proper person or persons.
Section 7. Each Fund shall indemnify and hold LFR harmless from
any and all expenses, damages, claims, suits, liabilities, actions, demands and
losses whatsoever arising out of or in connection with any error, omission,
inaccuracy or other deficiency of any information provided to LFR by each Fund,
or the failure of each Fund to provide any information needed by LFR
knowledgeably to perform its functions hereunder. Also, each Fund shall
indemnify and hold harmless LFR from all claims and liabilities (including
reasonable expenses for legal counsel) incurred by or assessed against LFR in
connection with the performance of this Agreement, except such as may arise from
LFR's own negligent action, omission or willful misconduct; provided, however,
that before confessing any claim against it, LFR shall give each Fund reasonable
opportunity to defend against such claim in the name of each Fund or LFR or
both.
Section 8. As full compensation for the services performed by
LFR, each Fund shall pay LFR a fee at the annualized rate of up to .10 of one
percent (.10%) of the average daily net assets of the respective Fund. This
fee will be computed daily and be paid monthly within ten (10) business days
after the last six (6) days of each month. This fee shall be prorated for any
fraction of a month at the commencement or termination of this Agreement.
Section 9. Except as required by laws and regulations
governing investment companies, nothing contained in this Agreement is intended
to or shall require LFR, in any capacity hereunder, to perform any functions or
duties on any holiday or other day of special observance on which LFR is closed.
Functions or duties normally scheduled to be performed on such days shall be
performed on, and as of, the next business day on which both each Fund and
LFR are open.
Section 10. Either each Fund or LFR may give written notice to
the other of the termination of this Agreement, such termination to take effect
at the time specified in the notice, which time shall be not less than sixty
(60) days from the giving of such notice. Such termination shall be without
penalty.
Section 11. This Agreement may be executed in two or more
counterparts, each of which, when so executed, shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
Section 12. 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 LFR without the approval
of each Fund by a resolution of its Board of Directors.
Section 13. This Agreement shall be governed by the laws of the
State of Hawaii.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers as of the day and year first above
written.
XXX FINANCIAL RECORDKEEPING, INC.
By: ______________________________________
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: ___________________________________
Xxxxxx Xxxx Xxx, Secretary
FIRST PACIFIC MUTUAL FUND, INC.
By: ______________________________________
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: ___________________________________
Xxxxxx Xxxx Xxx, Secretary
