Exhibit 8(b)
MUTUAL FUND SERVICES AGREEMENT
Fund Accounting Services
Transfer Agency Services
Blue Sky Services
between
THE MATTERHORN GROWTH, INC.
and
UNIFIED FUND SERVICES, INC.
JUNE _____, 2002
Exhibit A - Portfolio Listing
Exhibit B - Fund Accounting Services Description
Exhibit C - Transfer Agency Services Description
Exhibit D - Fees and Expenses
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 1
MUTUAL FUND SERVICES AGREEMENT
AGREEMENT (this "Agreement"), dated as of June _______, 2002, between The
Matterhorn Growth Fund, Inc., a Maryland corporation (the "Fund"), and Unified
Fund Services, Inc., a Texas corporation ("Unified").
WITNESSTH:
WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain Unified to provide certain transfer
agent and fund accounting services with respect to the Fund, and Unified is
willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
SECTION 1. APPOINTMENT. The Fund hereby appoints Unified to provide
transfer agent and fund accounting services for the Fund, subject to the
supervision of the Board of Directors of the Fund (the "Board"), for the period
and on the terms set forth in this Agreement. Unified accepts such appointment
and agrees to furnish the services herein set forth in return for the
compensation as provided in Section 6 and EXHIBIT D to this Agreement. The Fund
will initially consist of the portfolios, funds and/or classes of shares (each a
"Portfolio"; collectively the "Portfolios") listed on EXHIBIT A. The Fund shall
notify Unified in writing of each additional Portfolio established by the Fund.
Each new Portfolio shall be subject to the provisions of this Agreement, except
to the extent that the provisions (including those relating to the compensation
and expenses payable by the Fund and its Portfolios) may be modified with
respect to each new Portfolio in writing by the Fund and Unified at the time of
the addition of the new Portfolio.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF UNIFIED. Unified represents
and warrants to the Fund that:
(a) Unified is a corporation duly organized and existing under the laws of
the State of Texas;
(b) Unified is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement, and all
requisite corporate proceedings have been taken by Unified to authorize Unified
to enter into and perform this Agreement;
(c) Unified has, and will continue to have, access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(d) no legal or administrative proceedings have been instituted or
threatened against Unified that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) Unified's entrance into this Agreement will not cause a material breach
or be in material conflict with any other agreement or obligation of Unified or
any law or regulation applicable to Unified.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund represents
and warrants to Unified that:
(a) the Fund is a corporation duly organized and existing under the laws of
the State of Maryland;
(b) the Fund is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement, and the Fund
has taken all requisite proceedings to authorize the Fund to enter into and
perform this Agreement;
(c) the Fund is an investment company properly registered under the 1940
Act; a registration statement under the Securities Act of 1933, as amended
("1933 Act"), and the 1940 Act on Form N-lA has been filed and will be effective
and will remain effective during the term of this Agreement, and all necessary
filings under the laws of the states will have been made and will be current
during the term of this Agreement;
(d) no legal or administrative proceedings have been instituted or
threatened against the Fund that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) the Fund's entrance into this Agreement will not cause a material
breach or be in material conflict with any other agreement or obligation of the
Fund or any law or regulation applicable to it.
SECTION 4. DELIVERY OF DOCUMENTS. The Fund will promptly furnish to Unified
such copies, properly certified or authenticated, of contracts, documents and
other related information that Unified may request or requires to properly
discharge its duties. Such documents may include, but are not limited to, the
following:
(a) resolutions of the Board authorizing the appointment of Unified to
provide certain transfer agency and fund accounting services to the Fund and
approving this Agreement;
(b) the Fund's Articles of Incorporation;
(c) the Fund's By-Laws;
(d) the Fund's Notification of Registration on Form N-8A under the 1940 Act
as filed with the Securities and Exchange Commission ("SEC");
(e) the Fund's registration statement including exhibits, as amended, on
Form N-1A (the "Registration Statement") under the 1933 Act and the 1940 Act, as
filed with the SEC;
(f) copies of the Management Agreement between the Fund and its investment
adviser (the "Advisory Agreement");
(g) opinions of counsel and auditors reports;
(h) the Fund's Prospectus and Statement of Additional Information relating
to all Portfolios and all amendments and supplements thereto (such Prospectus
and Statement of Additional Information and supplements thereto, as presently in
effect and as from time to time hereafter amended and supplemented, herein
called the "Prospectuses"); and
(i) such other agreements as the Fund may enter into from time to time
including securities lending agreements, futures and commodities account
agreements, brokerage agreements and options agreements.
SECTION 5. SERVICES PROVIDED BY UNIFIED.
(a) Unified will provide the following services subject to the control,
direction and supervision of the Board and in compliance with the objectives,
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 3
policies and limitations set forth in the Fund's Registration Statement,
Articles of Incorporation and By-Laws; applicable laws and regulations; and all
resolutions and policies implemented by the Board:
(i) FUND ACCOUNTING, as described on EXHIBIT B to this Agreement.
(i) TRANSFER AGENCY, as described on EXHIBIT C to this Agreement.
(iii) DIVIDEND DISBURSING. Unified will serve as the Fund's dividend
disbursing agent. Unified will prepare and mail checks, place wire
transfers of credit income and capital gain payments to shareholders. The
Fund will advise Unified in advance of the declaration of any dividend or
distribution and the record and payable date thereof. Unified will, on or
before the payment date of any such dividend or distribution, notify the
Fund's Custodian of the estimated amount required to pay any portion of
such dividend or distribution payable in cash, and on or before the payment
date of such distribution, the Fund will instruct its Custodian to make
available to Unified sufficient funds for the cash amount to be paid out.
If a shareholder is entitled to receive additional shares by virtue of any
such distribution or dividend, appropriate credits will be made to each
shareholder's account and/or certificates delivered where requested. A
shareholder not receiving certificates will receive a confirmation from
Unified indicating the number of shares credited to his/her account.
(b) Unified will also:
(i) provide office facilities with respect to the provision of the
services contemplated herein (which may be in the offices of Unified or a
corporate affiliate of Unified);
(ii) provide or otherwise obtain personnel sufficient, in Unified's
sole discretion, for provision of the services contemplated herein;
(iii) furnish equipment and other materials, which Unified, in its
sole discretion, believes are necessary or desirable for provision of the
services contemplated herein; and
(iv) keep records relating to the services provided hereunder in such
form and manner as set forth on EXHIBITS B, C AND D and as Unified may
otherwise deem appropriate or advisable, all in accordance with the 1940
Act. To the extent required by Section 31 of the 1940 Act and the rules
thereunder, Unified agrees that all such records prepared or maintained by
Unified relating to the services provided hereunder are the property of the
Fund and will be preserved for the periods prescribed under Rule 31a-2
under the 1940 Act, maintained at the Fund's expense, and made available to
the SEC for inspection in accordance with such Section and rules. Subject
to the provisions of Section 9 hereof, Unified further agrees to surrender
promptly to the Fund upon its request and cease to retain in its records
and files those records and documents created and maintained by Unified
pursuant to this Agreement.
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SECTION 6. FEES: EXPENSES: EXPENSE REIMBURSEMENT.
(a) As compensation for the services rendered to the Fund pursuant to this
Agreement the Fund shall pay Unified on a monthly basis those fees determined as
set forth on EXHIBIT D to this Agreement. Such fees are to be billed monthly and
shall be due and payable upon receipt of the invoice. Upon any termination of
this Agreement and before the end of any month, the fee for the part of the
month before such termination shall be equal to the fee normally due for the
full monthly period and shall be payable, without setoff, upon the date of
termination of this Agreement.
(b) For the purpose of determining fees calculated as a function of a
Portfolio's net assets, the value of the Portfolio's net assets shall be
computed as required by the Prospectus, generally accepted accounting principles
and resolutions of the Board.
(c) Unified will from time to time employ or associate with such person or
persons as may be appropriate to assist Unified in the performance of this
Agreement. Such person or persons may be officers and employees who are employed
or designated as officers by both Unified and the Fund. Except as otherwise
expressly provided in this Agreement, the compensation of such person or persons
for such employment shall be paid by Unified and no obligation will be incurred
by or on behalf of the Fund in such respect.
(d) Unified will bear all of its own expenses in connection with the
performance of the services under this Agreement, except as otherwise expressly
provided in this Agreement. The Fund agrees to promptly reimburse Unified for
any equipment and supplies specially ordered by or for the Fund through Unified
and for any other expenses not contemplated by this Agreement that Unified may
incur on the Fund's behalf, at the Fund's request or as consented to by the
Fund. Such other expenses to be incurred in the operation of the Fund and to be
borne by the Fund, include, but are not limited to: taxes; interest; brokerage
fees and commissions; salaries and fees of officers and directors who are not
officers, directors, shareholders or employees of Unified or Unified's
affiliates; SEC and state Blue Sky registration and qualification fees, levies,
fines and other charges; advisory fees; charges and expenses of custodians;
insurance premiums including fidelity bond premiums; auditing and legal
expenses; costs of maintenance of corporate existence; expenses of typesetting
and printing of prospectuses and for distribution to current shareholders of the
Fund; expenses of printing and production cost of shareholders' reports and
proxy statements and materials; costs and expense of Fund stationery and forms;
costs and expenses of special telephone and data lines and devices; costs
associated with corporate, shareholder and Board meetings; and any extraordinary
expenses and other customary Fund expenses. In addition, Unified may utilize one
or more independent pricing services, approved from time to time by the Board,
to obtain securities prices and to act as backup to the primary pricing
services, in connection with determining the net asset values of the Fund, and
the Fund will reimburse Unified for the Fund's share of the cost of such
services based upon the actual usage, or a pro-rata estimate of the use, of the
services for the benefit of the Fund.
(e) The Fund may request additional services, additional processing or
special reports. Such requests may be provided by Unified at additional charges.
In this event, the Fund shall submit such requests in writing together with such
specifications as may be reasonably required by Unified, and Unified shall
respond to such requests in the form of a price quotation. The Fund's written
acceptance of the quotation must be received prior to implementation of such
request. Additional services will be charged at Unified's standard rates.
(f) All fees, out-of-pocket expenses or additional charges of Unified shall
be billed on a monthly basis and shall be due and payable upon receipt of the
invoice. No fees, out-of-pocket expenses or other charges set forth in this
Agreement shall be subject to setoff.
Unified will render, after the close of each month in which services have
been furnished, a statement reflecting all of the charges for such month.
Charges remaining unpaid after thirty (30) days shall bear interest in finance
charges equivalent to, in the aggregate, the Prime Rate (as publicly announced
by U.S. Bank, N.A., from time to time) plus 2.00% per year and all costs and
expenses of effecting collection of any such sums, including reasonable
attorney's fees, shall be paid by the Fund to Unified.
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In the event that the Fund is more than sixty (60) days delinquent in its
payments of monthly ▇▇▇▇▇▇▇▇ in connection with this Agreement (with the
exception of specific amounts which may be contested in good faith by the Fund),
this Agreement may be terminated upon thirty (30) days' written notice to the
Fund by Unified. The Fund must notify Unified in writing of any contested
amounts within thirty (30) days of receipt of a billing for such amounts.
Disputed amounts are not due and payable while they are being investigated.
SECTION 7. PROPRIETARY AND CONFIDENTIAL INFORMATION. Unified agrees on
behalf of itself and its employees to treat confidentially and as proprietary
information of the Fund, all records and other information relative to the
Fund's prior, present or potential shareholders, and to not use such records and
information for any purpose other than performance of Unified's responsibilities
and duties hereunder. Unified may seek a waiver of such confidentiality
provisions by furnishing reasonable prior notice to the Fund and obtaining
approval in writing from the Fund, which approval shall not be unreasonably
withheld and may not be withheld where the service agent may be exposed to civil
or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities. Waivers of
confidentiality are automatically effective without further action by Unified
with respect to Internal Revenue Service levies, subpoenas and similar actions,
or with respect to any request by the Fund.
SECTION 8. DUTIES, RESPONSIBILITIES AND LIMITATIONS OF LIABILITY.
(a) In the performance of its duties hereunder, Unified shall be obligated
to exercise due care and diligence, and to act in good faith in performing the
services provided for under this Agreement. In performing its services
hereunder, Unified shall be entitled to rely on any oral or written
instructions, advice, notices or other communications, information, records and
documents (collectively, "Fund Information") from the Fund, its custodian,
officers and Directors, investors, agents, legal counsel, auditor and other
service providers (excluding in each case, Unified and its affiliates) (the
Fund, collectively with such persons other than Unified and its affiliates,
"Fund Representatives") which Unified reasonably believes to be genuine, valid
and authorized. Unified also shall be entitled to consult with and rely on the
advice and opinions of the Fund's auditor and of outside legal counsel retained
by the Fund, as may be reasonably necessary or appropriate in Unified's sole
judgment, as well as all other Fund Representatives, in each case at the expense
of the Fund.
(b) Neither Unified nor its officers, directors, partners, employees,
shareholders or agents (the "Unified Parties") shall be liable for any error of
judgment or mistake of law or for any losses, damages, costs, reasonable
attorneys' fees and expenses, payments, expenses and liabilities of any nature
or kind (collectively, "Damages") suffered by the Fund or its shareholders in
connection with any matter to which this Agreement relates or in connection with
any action (or omission) by any of the Unified Parties in connection with this
Agreement. This complete release from all liability shall not apply to any
action (or omission) of any Unified Party to the extent such action (or
omission) is caused by or results from the negligence or willful misfeasance of
any Unified Party. Any person, even though also an officer, director, partner,
employee or agent of Unified, who may be or become an officer, director,
partner, employee or agent of the Fund, shall be deemed when rendering services
to the Fund or acting on any business of the Fund (other than services or
business in connection with Unified's duties hereunder) to be rendering such
services to or acting solely for the Fund and not as an officer, director,
partner, employee or agent or person under the control or direction of Unified
even though paid by Unified.
(c) The Unified Parties shall not be responsible for, and the Fund shall
indemnify and hold the Unified Parties harmless from and against, any and all
Damages arising out of or in connection with:
(i) any action (or omission) of any Unified Party taken pursuant to
this Agreement, except to the extent (and only to the extent) any such
action (or omission) is caused by or results from the negligence or willful
misfeasance of any Unified Party; PROVIDED, HOWEVER, that every action (or
omission) taken in good faith by any of the Unified Parties in connection
with or in reliance upon matters described in clauses (ii) through (x)
below shall be deemed in its entirety to be an action taken pursuant to
this Agreement that was not caused by and did not result from the
negligence or willful misfeasance of any Unified Party;
(ii) the reliance on or use by the Unified Parties of Fund Information
which is furnished to any of the Unified Parties by or on behalf of any of
the Fund Representatives;
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(iii) any delays, inaccuracies, errors or omissions in or arising out
of or attributable to Fund Information which is furnished to any of the
Unified Parties by or on behalf of any of the Fund Representatives or to
the untimely provision to Unified of such Fund Information;
(iv) the Fund's refusal or failure to comply with the terms of this
Agreement or the Fund's lack of good faith, or its actions (or omissions)
involving negligence or willful misfeasance;
(v) the breach of any representation or warranty of the Fund
hereunder;
(vi) the taping or other form of recording of telephone conversations
or other forms of electronic communications with investors and
shareholders, or reliance by Unified on telephone or other electronic
instructions of any person acting on behalf of a shareholder or shareholder
account for which telephone or other electronic services have been
authorized;
(vii) the reliance on or the carrying out by Unified or its officers
or agents of any proper instructions reasonably believed to be duly
authorized, or requests of the Fund or recognition by Unified of any share
certificates which are reasonably believed to bear the proper signatures of
the officers of the Fund and the proper countersignature of any transfer
agent or registrar of the Fund;
(viii) any delays, inaccuracy, errors or omissions in or arising out
of or attributable to data or information provided to Unified by data and
pricing services;
(ix) the offer or sale of shares by the Fund in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state, or in violation of any stop
order or other determination or ruling by any federal agency or any state
agency with respect to the offer or sale of such shares in such state (1)
resulting from activities, actions or omissions by Fund Representatives, or
(2) existing or arising out of activities, actions or omissions by or on
behalf of the Fund Representatives prior to the earlier of (x) the
effective date of this Agreement and (y) the effective date of an agreement
between the parties hereto with respect to the subject matter hereof that
was in effect immediately prior to the effective date of this Agreement ;
and
(x) the non-compliance by the Fund, its investment adviser and/or its
distributor with applicable securities, tax, commodities and other laws,
rules and regulations.
(d) In any case in which the Fund may be asked to indemnify or hold a
Unified Party harmless, the Unified Party will notify the Fund promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party and shall
keep the Fund advised with respect to all developments concerning such
situation; provided, however, that the failure to do so shall not prevent
recovery by the Unified Party unless such failure causes actual material harm to
the Fund. The Fund shall have the option to defend the Unified Party against any
claim which may be the subject of this indemnification, and, in the event that
the Fund so elects, such defense shall be conducted by counsel chosen by the
Fund and satisfactory to the Unified Party, and thereupon the Fund shall take
over complete defense of the claim and the Unified Party shall sustain no
further legal or other expenses in respect of such claim. The Unified Party will
not confess any claim or make any compromise in any case in which the Fund Party
will be asked to provide indemnification, except with the Fund's prior written
consent.
(e) Each of the Unified Parties, on the one hand, and the Fund, on the
other hand, shall have the duty to mitigate Damages for which the other party
may become responsible. This duty shall include giving such other party every
reasonable opportunity to correct any error or other circumstance that caused,
resulted in or increased such Damages, and every reasonable opportunity to
assist in such mitigation. Notwithstanding any other provision of this
Agreement, as to any matter where any portion of Damages may be, in whole or
part, caused, increased or determined by the manner in which an item or amount
is treated or reported for accounting purposes or the manner in which an item or
amount is treated or reported to any governmental agency or taxing authority, no
recovery for any amount of Damages in connection with such matter shall be had
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 7
by any party to (or beneficiary of) this Agreement if an alternative manner of
treatment or reporting is or was possible and such alternative manner of
treatment or reporting is or was, in the written opinion of any reputable
practitioner of appropriate expertise, more likely than not the correct
treatment (such opinion to be rendered in customary form, subject to customary
assumptions and representations); PROVIDED HOWEVER, that the provisions of this
sentence shall not apply and shall be disregarded in respect of a matter if and
only if (i) the person seeking or who may have sought to recover Damages (the
"Damaged Party") provided the party against whom recovery is or may have been
sought (the "Potentially Responsible Party") written notice bearing the bold
heading "Notice of Potential Claim for Damages," identifying this Agreement, and
describing the nature of the potential claim and the subject matter of the
required opinion, (ii) such notice is sent by certified mail and actually
delivered to the Potentially Responsible Party at least sixty (60) days prior to
the first time such item or amount is to be accounted for or reported, (iii) the
Damaged Party fully and promptly cooperates in the attempts of the Potentially
Responsible Party to obtain such an opinion, and (iv) no such opinion is
obtained prior to such accounting or reporting. If an opinion described in the
preceding sentence is obtained by the Potentially Responsible Party, the Damaged
Party shall bear the cost of such opinion. The parties acknowledge that the
purpose of the preceding two sentences is to preclude the recovery of any and
all Damages in connection with any matter where the proper accounting, tax or
other treatment of such matter is susceptible to differing opinions among
reputable practitioners of appropriate expertise, and that the effect of such
sentences is intended to ensure that such matters are treated and reported in a
legitimate manner that gives rise to the smallest amount of Damages.
(f) THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, UNIFIED DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM
OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES
PROVIDED UNDER THIS AGREEMENT. UNIFIED DISCLAIMS ANY WARRANTY OF TITLE OR
NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT. THE PARTIES
ACKNOWLEDGE THAT THE ALLOCATION OF RISKS (BOTH INSURABLE RISKS AND OTHER RISKS)
UNDER THIS AGREEMENT HAS BEEN TAKEN INTO ACCOUNT IN THE PRICING STRUCTURE OF THE
SERVICES AND GOODS PROVIDED AND IS FAIR TO ALL PARTIES, AND THE PARTIES FURTHER
ACKNOWLEDGE THAT DIFFERENT ALLOCATIONS OF RISK WERE AVAILABLE UNDER DIFFERENT
PRICE STRUCTURES. The RIGHTS AND obligations of the parties (AND INTENDED
BENEFICIARIES) under this Section 8 shall survive the termination of this
Agreement.
SECTION 9. TERM. This Agreement shall become effective on the date first
herein above written. This Agreement may be modified or amended from time to
time by mutual agreement between the parties hereto. This Agreement shall
continue in effect unless terminated by either party on at least ninety (90)
days' prior written notice. With the sole exception of the 30-day termination
described in Section 6(f), no other event (including any purported or actual
breach) shall result in termination of this Agreement. Upon termination of this
Agreement, the Fund shall pay to Unified all fees, compensation and other
charges as shall be accrued or due under the terms of this Agreement as of the
date of termination or the date that the provision of services ceases, whichever
is sooner.
Should the Fund exercise its right to terminate this Agreement, the Fund
agrees to pay a termination/conversion fee, simultaneous with the transfer of
all Fund records to the successor mutual fund service provider(s), in an amount
equal to the total compensation under this agreement for the 60-day period
immediately preceding the termination notice date. Such fee shall not be subject
to any setoffs of any nature. In addition, the Fund agrees to pay for all
conversion tape set-up fees, test conversion preparation and processing fees and
final conversion fees, none of which shall be subject to any setoff.
Such compensation to Unified shall be for the expenses incurred in
connection with the retrieval, compilation and movement of books, records and
materials relative to the deconversion or conversion of Fund records to the
successor mutual fund service provider as directed by the Fund. Notwithstanding
the foregoing, any amount owed by the Fund to Unified prior to the
termination/conversion shall still be due and payable under the terms of this
Agreement. No such compensation shall be due to Unified if Unified terminates
this Agreement for reasons other than a default by the Fund.
Upon the termination of the Agreement for any reason and payment of the
fees set forth in this Agreement without setoff, Unified agrees to provide the
Fund with the complete transfer agency and fund accounting records in its
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 8
possession and to assist the Fund in the orderly transfer of accounts and
records. Without limiting the generality of the foregoing, subject to the
preceding sentence, Unified agrees upon termination of this Agreement:
(a) to deliver to the successor mutual fund service provider(s), computer
tapes containing the Fund's accounts and records together with such record
layouts and additional information as may be necessary to enable the successor
mutual fund service provider(s) to utilize the information therein;
(b) to cooperate with the successor mutual fund service provider(s) in the
interpretation of the Fund's account and records;
(c) to forward all shareholder calls, mail and correspondence to the new
mutual fund service provider(s) upon de-conversion; and
(d) to act in good faith, to make the conversion as smooth as possible for
the successor mutual fund service provider(s) and the Fund.
SECTION 10. NOTICES. Any notice required or permitted hereunder shall be in
writing and shall be deemed to have been given when delivered in person or by
certified mail, return receipt requested, to the parties at the following
address (or such other address as a party may specify by notice to the other):
(a) If to the Fund, to:
The Matterhorn Growth Fund, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
(b) If to Unified, to:
Unified Fund Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Notice shall be effective upon receipt if by mail, on the date of personal
delivery (by private messenger, courier service or otherwise) or upon confirmed
receipt of telex or facsimile, whichever occurs first.
SECTION 11. ASSIGNABILITY. This Agreement may not be assigned or otherwise
transferred by either party hereto, without the prior written consent of the
other party, which consent shall not be unreasonably withheld; PROVIDED,
HOWEVER, that Unified may, in its sole discretion and upon notice to the Fund,
assign all its right, title and interest in this Agreement to an affiliate,
parent or subsidiary, or to the purchaser of substantially all of its business.
Unified may, in its sole discretion, engage subcontractors to perform any of the
obligations contained in this Agreement to be performed by Unified provided that
Unified shall remain responsible to the Fund for the actions and omissions of
such subcontractors as if Unified had provided such services to the Fund.
SECTION 12. INTENDED BENEFICIARIES. This Agreement shall be binding upon
the Fund, Unified and their respective successors and assigns, and shall inure
to the benefit of the Fund, Unified, the Unified Parties, their respective
heirs, successors and assigns. Nothing herein expressed or implied is intended
to confer upon any person not named or described in the preceding sentence any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 13. ARBITRATION. Notwithstanding any provision of this Agreement to
the contrary, any claim or controversy arising out of or in any manner relating
to this Agreement, or breach hereof, which cannot be resolved between the
parties themselves, shall be settled by arbitration administered by the American
Arbitration Association in Indianapolis, Indiana in accordance with its
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 9
applicable rules. The arbitration panel shall consist of three arbitrators
selected from list(s) of candidates provided by the American Arbitration
Association. One party to the dispute shall be entitled to appoint one
arbitrator and the other party to the dispute shall be entitled to appoint one
arbitrator. The third arbitrator, who shall be an attorney in good standing who
is licensed to practice law in the State of Indiana and devotes more than
one-half of his or her professional time to the practice of securities law,
shall be chosen by the two arbitrators so appointed. If any party fails to
appoint its arbitrator or to notify the other party of such appointment within
thirty (30) days after the institution of arbitration proceedings, such other
party may request the President of the American Arbitration Association to
appoint such arbitrator on behalf of the party who so failed. If the two
arbitrators appointed by (or on behalf of) the parties fail to appoint such
third arbitrator, or fail to notify the parties to such proceedings of such
appointment, within thirty (30) days after the appointment of the later of such
two arbitrators to be appointed by (or on behalf of) the parties, any party may
request such President to appoint such third arbitrator. The President of the
American Arbitration Association shall appoint such arbitrator or such third
arbitrator, as the case may be, within thirty (30) days after the making of such
request. No awards of punitive damages shall be made. The parties hereby agree
that judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction. The parties acknowledge and agree that the
performance of the obligations under this Agreement necessitates the use of
instrumentalities of interstate commerce and, notwithstanding other general
choice of law provisions in this Agreement, the parties agree that the Federal
Arbitration Act shall govern and control with respect to the provisions of this
Section 13.
SECTION 14. WAIVER. The failure of a party to insist upon strict adherence
to any term of this Agreement on any occasion shall not be considered a waiver
nor shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
SECTION 15. FORCE MAJEURE. Unified 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
control, including without limitation, acts of God, earthquake, fires, floods,
wars, acts of civil or military authorities, governmental actions,
nonperformance by a third party or any similar cause beyond the reasonable
control of Unified, failures or fluctuations in telecommunications or other
equipment, nor shall any such failure or delay give the Fund the right to
terminate this Agreement.
SECTION 16. USE OF NAME. The Fund and Unified agree not to use the other's
name nor the names of such other's affiliates, designees, or assignees in any
prospectus, sales literature, or other printed material written in a manner not
previously, expressly approved in writing by the other or such other's
affiliates, designees, or assignees except where required by the SEC or any
state agency responsible for securities regulation.
SECTION 17. AMENDMENTS. This Agreement may be modified or amended from time
to time by mutual written agreement between the parties. No provision of this
Agreement may be changed, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
SECTION 18. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law to any person or circumstance, such provision
shall be ineffective only to the extent of such prohibition or invalidity. In
the event that any one or more of the provisions contained in this Agreement or
any application thereof shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions of
this Agreement and any other application thereof shall not in any way be
affected or impaired thereby.
SECTION 19. HEADINGS; PRONOUNS; CERTAIN PHRASES. The headings in the
sections and subsections of this Agreement are inserted for convenience only and
in no way alter, amend, modify, limit or restrict the contractual obligations of
the parties. Wherever used in this Agreement, masculine, feminine and neuter
pronouns shall be deemed to include the other genders. Singular pronouns and
nouns (including defined terms) shall be deemed to include the plural (and vice
versa) as the context may require, but shall have no effect upon the nature of a
party's liability as joint or several. Wherever used in this Agreement, the
phrase "in connection with" shall be given the broadest possible interpretation,
and shall include matters (without limitation) that are in whole or part caused
by, relate to, arise out of, are attributable to, or result from, the referent
or object of such phrase.
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 10
SECTION 20. NO STRICT CONSTRUCTION. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
SECTION 21. ENTIRE AGREEMENT; SURVIVAL; GOVERNING LAW. This Agreement
embodies the entire understanding between the parties with respect to the
subject matter hereof, and supersedes all prior negotiations and agreements
between the parties relating to the subject matter hereof; PROVIDED, HOWEVER,
that if an agreement between the parties hereto with respect to the subject
matter hereof was in effect immediately prior to the effective date of this
Agreement (the "Predecessor Agreement"), then the provisions contained in
Section 8 of the Predecessor Agreement (relating to indemnification and other
risk allocation matters) shall, in respect of all periods prior to the effective
date of this Agreement ("Prior Periods"), survive and remain in effect to the
same extent and in the same manner as such provisions would have applied in
respect of Prior Periods had the Predecessor Agreement not been superseded by
this Agreement or otherwise terminated or amended or modified in any manner at
any time. The provisions of Section 6 through 9 and Sections 13 through 21,
inclusive, shall survive any termination of this Agreement. This Agreement shall
be governed by and construed and interpreted according to the internal laws of
the State of Indiana, without reference to conflict of law principles.
[Signature Page Follows]
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 11
IN WITNESS WHEREOF, the parties hereto have caused this Mutual Fund
Services Agreement to be signed by their respective duly authorized officers as
of the day and year first above written.
THE MATTERHORN GROWTH FUND, INC.
By: ________________________________________ Date ____________________
Print Name: ________________________________
Title: _____________________________________
Attest: ____________________________________
UNIFIED FUND SERVICES, INC.
By: ________________________________________ Date ____________________
Print Name: ________________________________
Title: _____________________________________
Attest: ____________________________________
By: ________________________________________ Date ____________________
Print Name: ________________________________
Title: _____________________________________
Attest: ____________________________________
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 12
EXHIBIT A
to
Mutual Fund Services Agreement
LIST OF PORTFOLIOS
The Matterhorn Growth Fund, Inc.
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 13
EXHIBIT B
to
Mutual Fund Services Agreement
GENERAL DESCRIPTION OF FUND ACCOUNTING SERVICES
I. GENERAL DESCRIPTION
Unified shall provide the following accounting services to the fund:
A. Maintain the books and records and accounting controls for the fund's
assets, including records of all securities transactions and payments of
fund expenses.
B. Calculate each Portfolio's net asset value in accordance with the
Prospectus and (once the Portfolio meets eligibility requirements) transmit
to NASDAQ and to such other entities as directed by the fund.
C. Provide the Administrator with the requested reports and information deemed
necessary to calculate dividend and capital gain distributions in
accordance with distribution policies detailed in the fund's prospectus.
Assist, if requested, the fund management in making final determinations of
distribution amounts.
D. Assist the fund's public accountants or other professionals in the
preparation and filing of the fund's Federal tax return on Form 1120-RIC
along with all state and local tax returns where applicable. Assist in the
preparation and filing of the Federal Excise Tax Return (Form 8613).
E. Account for dividends, interest and corporate actions received by the fund.
F. Assist the Administrator in the preparation of Fund expense projections and
establishing accruals.
G. Produce transaction data, financial reports and such other periodic and
special reports as the Board may reasonably request.
H. Liaison with the fund's independent auditors.
I. Monitor and administer arrangements with the fund's custodian and
depository banks.
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 14
EXHIBIT C
to
Mutual Fund Services Agreement
GENERAL DESCRIPTION OF TRANSFER AGENCY SERVICES
The following is a general description of the transfer agency services Unified
provides or makes available to the fund:
SYSTEMS: Utilizing PowerAgent by Envision Financial Systems, Windows NT Servers
and Microsoft SQL Databases, we offer a robust yet open architecture for
shareholder data.
INTERACTIVE VOICE RESPONSE: Provides fund shareholders 24 hour, 7 day a week
access to their account information, accessing the system either via telephone
or computer.
SHAREHOLDER SERVICES: Shareholder telephone calls will be answered by Unified's
shareholder services department through toll-free numbers that are unique to
each fund family, during Unified's normal business hours. Phone volumes and
response times are continually monitored for quality assurance.
SHAREHOLDER RECORDKEEPING: Maintains complete shareholder records for each fund
including the following: (i) name, address and tax identification number; (ii)
number of shares held; (iii) historical information including dividends paid and
individual purchases and redemptions; and (iv) any systematic purchase or
redemption instructions and correspondence relating to the current maintenance
of the account.
PURCHASE AND REDEMPTION ORDERS: Unified will process all purchase and redemption
orders of a fund's shareholders in accordance with the fund's current
prospectus. Confirmation statements are produced for each transaction and
promptly mailed to shareholders. Daily transaction reports and share proofs are
made available to all necessary parties via electronic medium.
TELEPHONE ORDERS: Process redemption, exchange and transfer requests upon
telephone instructions from qualified shareholders. Unified will redeem and/or
transfer fund shares from any account for which such services have been properly
authorized.
SHAREHOLDER COMMUNICATIONS AND MEETINGS: Mail all necessary communications by a
fund to its shareholders. For proxies, Unified will handle mailing of proxy
materials, tabulation of proxy cards, and provide periodic reports to the fund
on the progress of the tabulation.
SHAREHOLDER CORRESPONDENCE: Acknowledge all correspondence from shareholders
relating to their share accounts and undertake such other shareholder
correspondence as may from time to time be mutually agreed upon.
ASSET ALLOCATION PROGRAM SUPPORT: Provide rebalancing, asset allocation models
and performance measurement as an optional and additional transfer agency
service, for certain types of asset allocation and/or wrap programs.
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 15
EXHIBIT D
to
Mutual Fund Services Agreement
TRANSFER AGENCY FEE SCHEDULE
The prices contained herein are effective for thirty-six (36) months from
the execution date of the Transfer Agency contract.
I. CONVERSION FEE: Manual conversion/new fund establishment - fee not to
exceed $1,500 per portfolio. Electronic conversions - $1.50 per shareholder
account with a $4,000 minimum fee.
II. STANDARD BASE FEE FOR STANDARD BASE SERVICES
The Base Fee1 is $18.00 for money market funds and $15.002 for equity/bond
funds per active Shareholder Account with a minimum fee of $15,0002 per
initial portfolio and/or share class plus $9,000 per year for each
additional share class. An Active Shareholder Account is any Shareholder
Account existing on Transfer Agent's computerized files with a non-zero
Share balance. There is a $.50 per account charge for any account with a
zero share balance for the current month, as determined on the last day of
each month. The base fee will be billed on a monthly basis.
(1) The Base Fee does not include: forms design and printing, statement
production, envelope design and printing, postage and handling,
shipping, statement microfiche copies and 800 number access to
Unified's shareholder services group.
(2) Base Fee Reduced to:
Months 1-12 $12.00 per shareholder account; $12,000 minimum
Months 13-24 $13.50 per shareholder account; $13,500 minimum
Thereafter $15.00 per shareholder account; $15,000 minimum
Unified will provide lost account search services in connection of SEC
Rules 17Ad-17 and 17a-24 at a cost of $2.50 per account searched. These
"Electronic Data Search Services" will be performed on a semi-annual basis.
This service will apply to only Active Shareholder Accounts maintained on
the transfer agency system coded as RPO accounts.
In addition to the above fees, there will be a $200.00 per day minimum
fee/rerun charge when the nightly processing has to be repeated due to
incorrect NAV or dividend information received from the Portfolio Pricing
Agent due to incorrect or untimely information provided by an Advisor or
its Agent.
III. STANDARD SERVICES PROVIDED
- Open new accounts
- Maintain Shareholder accounts
INCLUDING:
- Maintain certificate records
- Change addresses
- Prepare daily reports on number of Shares, accounts
- Prepare Shareholder federal tax information
- Withhold taxes on U.S. resident and non-resident alien accounts
- Reply to Shareholder calls and correspondence other than that for
Fund information and related inquiries
- Process purchase of Shares
- Issue/Cancel certificates (Excessive use may be subject to additional
charges)
- Process partial and complete redemptions
- Process regular and legal transfer of accounts
- Mail semi-annual and annual reports
- Process dividends and distributions
- Prepare Shareholder meeting lists
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 16
- Process one proxy per year per fund. Tabulation is limited to three.
- Receive and tabulate proxies
- Confirm all transactions as provided by the terms of each Shareholder's
account
- Provide a system which will enable Fund to monitor the total number of
Shares sold in each state. System has capability to halt sales and warn
of potential oversell. (Blue Sky Reports)
- Determine/Identify lost Shareholder accounts
IV. STANDARD REPORTS AVAILABLE
- 12b-1 Disbursement Report - Holdings by Account Type
- 12b-1 Disbursement Summary - Posting Details
- Dealer Commission Report - Posting Summary
- Dealer Commission Summary Report - Settlement Summary
- Exchange Activity Report - Tax Register
- Fees Paid Summary Report - Transactions Journal
- Fund Accrual Details
V. NSCC INTERFACES
- Fund/Serv and/or Networking set-up $1,000
- Fund/Serv processing $250 per month
- Networking processing $250 per month
- Fund/Serv transactions $0.35 per trade
- Direct Networking expenses
Per item $0.025 Monthly dividend fund
Per item $0.015 Non-monthly dividend
fund
VI. ADDITIONAL FEES FOR SERVICES OUTSIDE THE STANDARD BASE
- Interactive Voice Response System Set-up Pass through
- Archiving of old records/storage of
aged records Pass through
- Off-line Shareholder research $25/hour (Billed to customer
account)
- Check copies $3/each (Billed to customer
account)
- Statement copies $5/each (Billed to customer
account)
- Mutual Fund fulfillment/prospect
file maintenance $1.00/item
- Shareholder communications
charges (Faxes) Pass through
- Leased line/equipment on TA's
computer system Pass through
- Dial-up access to TA's computer system Pass through
- Labels $.05 ea/$100 minimum
- AD-HOC REPORTWRITER Report Generation $50.00 per report
- Bank Reconciliation Service $50.00 monthly maintenance fee
per bank account
$1.50 per bank item
- Systems Programming Labor Charges:
Programmers or Consultants $125.00/hour
Officers $150.00/hour
- Additional Proxy Processing:
Each processing $225.00 fixed charge per
processing
Preparation and Tabulation $0.145/proxy issued
(includes 3 tabulations, sixteen
propositions)
Each Extra Tabulation $25.00 fixed charge per
processing
$0.02 per proxy tabulated
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 17
FUND ACCOUNTING FEE SCHEDULE
STANDARD FEE*
0.05% for the first $50 million in average net assets per portfolio and/or
share class per year;
0.04% from $50 million to $100 million in average net assets per portfolio
and/or share class per year;
0.03% over $100 million in average net assets per portfolio and/or share
class per year.
Out of Pocket Fees: Fees charged for outside pricing services and all
accompanying administrative expenditures.
*Subject to a $16,0001 minimum per portfolio (one share class) plus $7,5001
per additional share class for Domestic Funds and a $25,0001 minimum per
portfolio (one share class) plus $7,5001 per additional share class for
International/Global Funds for the first 12 months of the Agreement. After
the first 12 months of the Agreement, the minimum fees will be increased to
$20,0001 minimum per portfolio (one share class) plus $7,5001 per
additional share class for Domestic Funds and a $30,0001 minimum per
portfolio (one share class) plus $7,5001 per additional share class for
International/Global Funds. Fees are billed on a monthly basis.
(1) Discount based on average net assets per portfolio and/or share
class per month:
$0 - 2 Million 30%
$2 - 5 Million 20%
$5 Million Plus 0%
OPTIONAL SERVICES AVAILABLE - INITIAL (FOR DESIRED SERVICES)
_____ - Additional portfolio sub-adviser fee $10,000/portfolio
_____ - Multiple custodian fee $5,000/fund group
_____ - GNMA securities fee $2,500/portfolio
_____ - S.E.C. audit requirements Pass through
_____ - Processing of backup withholding $1,500/portfolio
SPECIAL REPORT GENERATION FEES
AD-HOC Report Generation $75.00 per report
Reruns $75.00 per run
Extract Tapes $110.00 plus
SYSTEMS PROGRAMMING LABOR CHARGES
System Support Representatives $100.00/hour
Programmers, Consultants or
Department Heads $125.00/hour
Officers $150.00/hour
REPRICING CHARGES
For incorrect or untimely information provided by an Advisor or its Agent,
Unified will charge $200.00 per day for each day that a portfolio is
repriced.
DE-CONVERSION FEES
De-Conversion fees will be subject to additional charges commensurate with
particular circumstances and dependent upon scope of problems.
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 18
BLUE SKY SERVICES FEE SCHEDULE
Unified will prepare and file all state notifications of intent to sell the
fund's securities including annual renewals, adding new portfolios,
preparing and filing sales reports, filing copies of the registration
statement and final prospectus and statement of additional information for
limited states, and increasing registered amounts of securities in
individual states.
The cost of this service is: $25.00 per state filing.
United Fund Services, Inc Matterhorn Growth Fund, Inc. - 19
