CALL CENTER AND COMPLIANCE SERVICES AGREEMENT
COMPLIANCE
SERVICES AGREEMENT
THIS
AGREEMENT is made and entered into as of the 22nd day of January, 2007, by
and
among Fairholme Funds, Inc., a Maryland corporation (the “Corporation”) and FCM
Services, Inc., a Delaware corporation (“FCMS”) and Fairholme Capital
Management, L.L.C., a Delaware limited liability company (the “Adviser”), which
is a party hereto with respect to Section 3 only.
WHEREAS,
the Corporation is registered under the Investment Company Act of 1940, as
amended (the “1940 Act”), as an open-end management investment company, and is
authorized to issue shares of common stock in separate series, with each such
series representing interests in a separate portfolio of securities and other
assets;
WHEREAS,
the Adviser is the investment adviser to the Corporation pursuant to an
investment advisory agreement with the Corporation, and, pursuant to an
operating services agreement with the Corporation, provides or arranges for
other companies to provide certain services to the Corporation (including the
services set forth in this Agreement) and pays such companies for the provision
of the services;
WHEREAS,
FCMS is, in the business of providing outsourced support services to various
parties, including, but not limited to, investment advisers, partnerships,
hedge
funds, and mutual funds (“Parties”), and whereas as part of these services, FCMS
is in the business: (i) of maintaining call centers to respond to information
and transaction requests from clients, partners, members, and shareholders
of
such Parties and (ii) of providing compliance services for the benefit of such
Parties;
WHEREAS,
the Corporation and the Adviser each desire to retain FCMS to provide the call
center and compliance services set forth herein to each series of the
Corporation listed on Schedule A hereto (as amended from time to time)
(each a “Fund” and collectively, the “Funds”).
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1.
Appointment of FCMS
The
Corporation hereby appoints FCMS to provide the services set forth in Section
2
below in accordance with the terms and conditions set forth in this Agreement,
and FCMS hereby accepts such appointment and agrees to perform the services
and
duties set forth in this Agreement. The services and duties of FCMS
shall be confined to those services and duties expressly set forth herein,
and
no implied duties are assumed by or may be asserted against FCMS
hereunder. The parties agree that nothing herein shall require FCMS
to register with the Securities and Exchange Commission or any state regulator
in order to perform the services and duties set forth herein.
2. Services
and Duties of FCMS
FCMS
shall provide the following services to each Fund.
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(a)
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FCMS
shall receive telephone orders for the purchase, exchange, and/or
redemption of shares of the Fund.
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(b)
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Using
(i) the TA2000 System of USBFS, (ii) the AWD Imaging System of USBFS,
(iii) the COLD Statement Retrieval System, and (iv) any other agreed
upon
system (collectively, the systems provided pursuant to (i), (ii),
(iii)
and (iv) are referred to as, “USBFS Systems”), FCMS shall review
shareholder records and communicate orders for the purchase, exchange,
and/or redemption of shares of the Fund to the Fund’s transfer agent for
the transfer agent to process prior to updating the mastersecurityholder
file for the shares.
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(c)
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FCMS
shall (i) make available its personnel maintaining a securities license
with the Fund’s distributor to answer inquiries from prospective investors
and existing shareholders and (ii) ensure that such personnel address
any
inquiry from a prospective investor or existing shareholder of the
type
requiring personnel with a securities license to manage or
address.
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(d)
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In
response to telephone or e-mail inquiries it receives, FCMS shall
mail
shareholder reports, prospectuses and other Fund information to
prospective investors and current shareholders of the
Fund.
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(e)
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FCMS
shall answer correspondence that it receives by e-mail from shareholders,
securities brokers and others relating to its duties
hereunder.
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(f)
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Subject
to the approval of the Corporation’s board of directors (the “Board”) and
the requirements of Rule 38a-1 under the 1940, including the requirements
applicable to engaging, terminating and compensating a mutual fund’s chief
compliance officer, FCMS shall make available to act as the Corporation’s
chief compliance officer (“CCO”) a qualified person who is competent and
knowledgeable regarding the federal securities laws. With
respect to the Corporation, the CCO
shall:
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(i)
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Report
directly to the Board;
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(ii)
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Review
and administer the Corporation’s compliance program policies and
procedures, including those policies and procedures that provide
for
oversight of compliance by the Adviser and the Corporation’s administrator
(as that term is defined in Rule 0-1 of the 1940 Act), distributor,
transfer agent, custodian and other service providers (collectively,
“Service Providers”), that relate to the
Corporation;
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(iii)
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Conduct
periodic reviews of the Corporation’s compliance program to incorporate
any new or changed regulations, best practice recommendations or
other
guidelines that may be appropriate;
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(iv)
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Review
no less frequently than annually, the adequacy of the policies and
procedures of the Corporation and the Service Providers and the
effectiveness of their
implementation;
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(v)
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Apprise
the Board of significant compliance events at the Corporation or
the
Service Providers;
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(vi)
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Design
testing methods for the Corporation’s compliance program policies and
procedures;
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(vii)
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Perform
and document periodic testing of certain key control procedures (as
appropriate to the circumstances), including reviewing reports,
investigating exceptions, and making inquiries of Corporation management
and Service Providers;
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(viii)
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Conduct
periodic site visits to Service Providers, as
necessary;
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(ix)
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Provide
training and deliver updates to the Corporation or the Service Providers,
as necessary;
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(x)
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Prepare
a written annual report for the Board that, at a minimum, addresses:
(A)
the operation of the Corporation’s and the Service Providers’ policies and
procedures since the last report to the Board; (B) any material changes
to
such policies and procedures since the last report; (C) any
recommendations for material changes to the policies and procedures
as a
result of the periodic or annual reviews referred to in Sections
2(f)(iii)
and (iv) above; and (D) any “material compliance matters” (as defined in
Rule 38a-1) since the date of the last report;
and
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(xi)
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No
less than annually or at such time as requested by the Board, meet
separately with the Corporation’s independent
directors.
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(g)
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With
respect to the Corporation, FCMS
shall:
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(i)
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Provide
compliance support for intermediary agreements that pertain to the
Corporation, such as shareholder service and similar service agreements;
and
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(ii)
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Assist
the Corporation with compliance matters, as
requested.
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3.
Compensation
The
Adviser on behalf of the Corporation shall compensate FCMS for providing the
services set forth in this Agreement in accordance with the fee schedule set
forth on Schedule B hereto (as amended from time to time). In
addition, the Adviser on behalf of the Corporation shall reimburse FCMS for
such
out-of-pocket expenses, including but not limited to, telecommunication charges,
postage and delivery charges, and reproduction charges as are reasonably
incurred by FCMS in performing its duties hereunder. FCMS shall not
invoice the Corporation for that portion of any FCMS employee’s compensation (or
related overhead) attributed to marketing and distribution
services.
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4.
Representations and Warranties
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(a)
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The
Corporation hereby represents and warrants to FCMS, which representations
and warranties shall be deemed to be continuing throughout the term
of
this Agreement, that:
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(i)
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It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(ii)
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This
Agreement has been duly authorized, executed and delivered by the
Corporation in accordance with all requisite action and constitutes
a
valid and legally binding obligation of the Corporation, enforceable
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;
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(iii)
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It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement; and
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(iv)
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A
registration statement under the 1940 Act and the Securities Act
of 1933,
as amended, will be made effective prior to the effective date of
this
Agreement and will remain effective during the term of this Agreement,
and
appropriate state securities law filings will be made prior to the
effective date of this Agreement and will continue to be made during
the
term of this Agreement as necessary to enable the Corporation to
make a
continuous public offering of its
shares.
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(b)
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FCMS
hereby represents and warrants to the Corporation, which representations
and warranties shall be deemed to be continuing throughout the term
of
this Agreement, that:
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(i)
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It
is duly organized and existing under the laws of the jurisdiction
of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(ii)
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This
Agreement has been duly authorized, executed and delivered by FCMS
in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of FCMS, enforceable 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;
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(iii)
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It
is conducting its business in compliance in all material respects
with all
applicable laws and regulations, both state and federal, and has
obtained
all regulatory approvals necessary to carry on its business as now
conducted; there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution
or
performance of this Agreement;
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(iv)
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To
the extent it has access to the Fund’s portfolio holdings prior to their
public dissemination, FCMS will comply with the Fund’s portfolio holdings
disclosure policy; and
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(v)
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It
will maintain a disaster recovery and business continuity plan and
adequate and reliable computer and other telecommunications equipment
as
are necessary and appropriate for FCMS to carry out its obligations
under
this Agreement and, upon the Corporation’s reasonable request, will
provide supplemental information concerning the aspects of FCMS’ disaster
recovery and business continuity plan that are relevant to the services
provided by FCMS hereunder.
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5. Standard
of Care; Indemnification; Limitation of Liability
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(a)
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FCMS
shall exercise reasonable care in the performance of its duties under
this
Agreement. FCMS shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Corporation in
connection with FCMS’ services or duties under this Agreement, including
losses resulting from mechanical breakdowns or the failure of
communication or power supplies beyond FCMS’ control, except a loss
arising out of or relating to FCMS’ refusal or failure to comply with the
terms of this Agreement or from FCMS’ bad faith, negligence, or willful
misconduct in the performance of its services or duties under this
Agreement. Notwithstanding the previous sentence, FCMS shall
not be liable for any error of judgment or mistake of law or for
any loss
suffered by the Corporation in connection with the services provided
pursuant to Section 2(f) of this Agreement, including losses resulting
from mechanical breakdowns or the failure of communication or power
supplies beyond FCMS’ control, except a loss arising out of or relating to
FCMS’ refusal or failure to comply with the terms of this Agreement or
from FCMS’ bad faith, gross negligence, or willful misconduct in the
performance of
such services.
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(b)
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The
Corporation shall indemnify and hold harmless FCMS from and against
any
and all claims, demands, losses, expenses, and liabilities of any
and
every nature (including reasonable attorneys’ fees) that FCMS may sustain
or incur or that may be asserted against FCMS by any person arising
out of
any action taken or omitted to be taken by it in performing the services
hereunder in accordance with the foregoing standards, except for
any and
all claims, demands, losses, expenses, and liabilities arising out of or
relating to FCMS’ refusal or failure to comply with the terms of this
Agreement or from its bad faith, negligence (or, with respect to
Section
2(f), gross negligence) or willful misconduct in the performance
of its
duties under this Agreement. This indemnity shall be a
continuing obligation of the Corporation, its successors and assigns,
notwithstanding the termination of this Agreement. As used in
this paragraph, the term “FCMS” shall include FCMS’ directors, officers
and employees.
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(c)
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FCMS
shall indemnify and hold the Corporation harmless from and against
any and
all claims, demands, losses, expenses, and liabilities of any and
every
nature (including reasonable attorneys’ fees) that the Corporation may
sustain or incur or that may be asserted against the Corporation
by any
person arising out of any action taken or omitted to be taken by
FCMS as a
result of FCMS’ refusal or failure to comply with the terms of this
Agreement, or from its bad faith, negligence (or, with respect to
Section
2(f), gross negligence), or willful misconduct in the performance
of its
duties under this Agreement. This indemnity shall be a
continuing obligation of FCMS, its successors and assigns, notwithstanding
the termination of this Agreement. As used in this paragraph,
the term “Corporation” shall include the Corporation’s directors, officers
and employees.
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(d)
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NEITHER
PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER PARTY FOR
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES UNDER ANY PROVISION OF
THIS
AGREEMENT.
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(e)
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In
the event of a mechanical breakdown or failure of communication or
power
supplies beyond its control, FCMS shall take all reasonable steps
to
minimize service interruptions for any period that such interruption
continues. FCMS will make every reasonable effort to restore
any lost or damaged data and correct any errors resulting from such
a
breakdown at the expense of FCMS. FCMS agrees that it shall, at
all times, have reasonable contingency plans with appropriate parties,
making reasonable provision for emergency use of electrical data
processing equipment to the extent appropriate equipment is
available. Representatives of the Corporation shall be entitled
to inspect FCMS’ premises and operating capabilities at any time during
regular business hours of FCMS, upon reasonable notice to
FCMS. Moreover, FCMS shall provide the Corporation, at such
times as the Corporation may reasonably require, copies of reports
rendered by independent accountants on the internal controls and
procedures of FCMS relating to the services provided by FCMS under
this
Agreement.
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(f)
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Notwithstanding
the above, FCMS reserves the right to reprocess and correct administrative
errors at its own expense.
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(g)
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In
order that the indemnification provisions contained in this Section
shall
apply, it is understood that if in any case the indemnitor may be
asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be
fully
and promptly advised of all pertinent facts concerning the situation
in
question, and it is further understood that the indemnitee will use
all
reasonable care to notify the indemnitor promptly concerning any
situation
that presents or appears likely to present the probability of a claim
for
indemnification. The indemnitor shall have the option to defend
the indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it
will so notify the indemnitee and thereupon the indemnitor shall
take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this Section. The indemnitee shall in no
case confess any claim or make any compromise in any case in which
the
indemnitor will be asked to indemnify the indemnitee except with
the
indemnitor’s prior written consent.
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(h)
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The
indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement.
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6.
Data Necessary to Perform
Services
The Corporation or its agent shall furnish to FCMS the data necessary to perform
the services described herein at such times and in such form as mutually agreed
upon.
7.
Proprietary and Confidential Information
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(a)
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FCMS
agrees on behalf of itself and its directors, officers, and employees
to
treat confidentially and as proprietary information of the Corporation,
all records and other information relative to the Corporation and
prior,
present, or potential shareholders of the Corporation (and clients
of said
shareholders), and not to use such records and information for any
purpose
other than the performance of its services and duties hereunder,
except
(i) after prior notification to and approval in writing by the
Corporation, (ii) when requested to divulge such information by duly
constituted authorities with jurisdiction over FCMS or the Corporation;
provided that the Corporation receives notice from FCMS of its
obligation to divulge such information if it is permitted to do so
by such
authority, or (iii) when so requested by the
Corporation. Records and other information which have become
known to the public through no wrongful act of FCMS or any of its
employees, agents or representatives and information that was already
in
the possession of FCMS prior to receipt thereof from the Corporation
or
its agent shall not be subject to this
paragraph.
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(b)
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FCMS
will adhere to the privacy policies adopted by the Corporation pursuant
to
Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time
to
time. In this regard, FCMS shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed
to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of, records and information relating
to the
Corporation and its shareholders.
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8.
Records
FCMS
shall keep records relating to the services to be performed hereunder in the
form and manner, and for such period, as it may deem advisable and is agreeable
to the Corporation, but not inconsistent with the rules and regulations of
appropriate government authorities, in particular, Section 31 of the 1940 Act
and the rules thereunder. FCMS agrees that all such records prepared
or maintained by FCMS relating to the services to be performed by it hereunder
are the property of the Corporation and will be preserved, maintained, and
made
available in accordance with such applicable sections and rules of the 1940
Act
and will be promptly surrendered to the Corporation or its designee on and
in
accordance with its request. FCMS shall provide the Corporation and
Adviser reasonable access to all records prepared or maintained by FCMS relating
to the services to be performed hereunder.
9.
Term of Agreement; Amendment
This
Agreement shall become effective as of the date first written above and will
continue in effect for a period of two (2) years. Subsequent to the
end of the initial two-year term, this Agreement may be terminated by either
party upon giving 90 days’ prior written notice to the other party or such
shorter period as is mutually agreed upon by the
parties. Notwithstanding the foregoing, this Agreement may be
terminated by any party upon the breach of the other party of any material
term
of this Agreement if such breach is not cured within 15 days of notice of such
breach to the breaching party. This Agreement may not be amended or
modified in any manner except by written agreement executed by FCMS and the
Corporation and authorized or approved by the Board of
Directors. Notwithstanding the foregoing, the agreement may be
modified without approval by FCMS to correct or clarify any ambiguities so
long
as such corrections or clarifications do not materially affect any of the rights
of the Company under this agreement, and the Company shall be notified promptly
of any such changes.
10. Duties
in the Event of Termination
In
the
event that, in connection with termination, a successor to any of FCMS’ duties
or responsibilities hereunder is designated by the Corporation by written notice
to FCMS, FCMS will promptly, upon such termination and at the expense of the
Corporation, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by FCMS under this
Agreement in a form reasonably acceptable to the Corporation (if such form
differs from the form in which FCMS has maintained the same, the Corporation
shall pay any expenses associated with transferring the data to such form),
and
further the Corporation agrees to be responsible for all expenses incurred
by
FCMS on behalf of the Corporation through the date of transfer of all records
to
any other service provider, including, but not limited to, operating and capital
expenses incurred in furtherance of the business of the Corporation and will
cooperate in the transfer of such duties and responsibilities, including
provision for assistance from FCMS’ personnel in the establishment of books,
records, and other data by such successor. If no such successor is
designated, then such books, records and other data shall be returned to the
Corporation.
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11. Assignment
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Corporation without the written consent
of FCMS, or by FCMS without the written consent of the Corporation, accompanied
by the authorization or approval of the Corporation’s Board
of Directors.
12. Governing
Law
This
Agreement shall be construed in accordance with the laws of the State of New
Jersey, without regard to conflicts of law principles. To the extent
that the applicable laws of the State of New Jersey, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control, and nothing herein shall be construed in a manner inconsistent
with the 1940 Act or any rule or order of the Securities and Exchange Commission
thereunder.
13. No
Agency Relationship
Nothing
herein contained shall be deemed to authorize or empower either party to act
as
agent for the other party to this Agreement, or to conduct business in the
name,
or for the account, of the other party to this Agreement.
14. Services
Not Exclusive
Nothing
in this Agreement shall limit or restrict FCMS from providing services to other
parties that are similar or identical to some or all of the services provided
hereunder.
15. Invalidity
Any
provision of this Agreement that may be determined by competent authority to
be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties.
16. Notices
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party’s address
set forth below:
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(a)
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Notice
to FCMS shall be sent to:
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FCM
Services, Inc.
00
Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxxx,
XX 00000
Phone:
(000) 000-0000
Fax: (000)
000-0000
xxxxxx@xxxxxxxxxxx.xxx
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(b)
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Notice
(via mail, e-mail & fax) to the Corporation shall be sent
to:
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Fairholme
Funds, Inc.
0000
Xxxxxxxx Xxx Xxxxx
Xxxxx
0000
Xxxxx,
XX
00000
Phone:
(000) 000-0000
Fax: (000)
000-0000
xxxxxx@xxxxxxxxxxxxxx.xxx
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(c)
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Notice
(via mail, e-mail & fax) to the Adviser shall be sent
to:
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Fairholme
Capital Management, LLC
0000
Xxxxxxxx Xxx Xxxxx
Xxxxx
0000
Xxxxx,
XX 00000
Phone:
(000) 000-0000
Fax: (000)
000-0000
xxxxxx@xxxxxxxxx.xxx
17. Multiple
Originals
This
Agreement may be executed on 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.
18. Entire
Agreement
This
Agreement, together with any schedules expressly referenced herein, sets forth
the sole and complete understanding of the parties with respect to the subject
matter hereof and supersedes all prior agreements relating thereto, whether
written or oral, between the parties.
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[REMAINDER
OF THE PAGE INTENTIONALLY LEFT BLANK]
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WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed by a
duly
authorized officer on one or more counterparts as of the date first above
written.
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FAIRHOLME
FUNDS, INC.
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FCM
SERVICES, INC.
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By:
/s/Xxxxx X. Xxxxxxx
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By:
/s/Xxxxx Xxxxxxxxx
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Name:
Xxxxx X. Xxxxxxx
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Name:
Xxxxx Xxxxxxxxx
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Title:
Secretary/Treasurer
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Title:
President
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FAIRHOLME
CAPITAL MANAGEMENT, L.L.C.
(with
respect to Section 3 only)
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By:
/s/Xxxxx Xxxxxxxxx
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Name:
Xxxxx Xxxxxxxxx
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Title:
Managing Member
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Schedule
A
List
of Funds
The
Xxxxxxxxx Xxxx
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