FUND ACCOUNTING SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into this 1st
day of
January, 2006, by and between WEXFORD
TRUST,
a
Massachusetts business trust (the “Trust”) and U.S.
BANCORP FUND SERVICES, LLC,
a
Wisconsin limited liability company (“USBFS”).
WHEREAS,
the Trust 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 beneficial interest in separate series, with
each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS,
USBFS is, among other things, in the business of providing mutual fund
accounting services to investment companies; and
WHEREAS,
the Trust desires to retain USBFS to provide accounting services to each series
of the Trust listed on Exhibit
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 USBFS as Fund
Accountant
|
The
Trust
hereby appoints USBFS as fund accountant of the Trust on the terms and
conditions set forth in this Agreement, and USBFS hereby accepts such
appointment and agrees to perform the services and duties set forth in this
Agreement. The services and duties of USBFS shall be confined to those matters
expressly set forth herein, and no implied duties are assumed by or may be
asserted against USBFS hereunder.
| 2. |
Services
and Duties of USBFS
|
USBFS
shall provide the following accounting services to the Fund:
| A. |
Portfolio
Accounting Services:
|
| (1) |
Maintain
portfolio records on a trade date+1 basis using security trade information
communicated from the Fund’s investment adviser.
|
| (2) |
For
each valuation date, obtain prices from a pricing source approved
by the
board of directors of the Trust (the “Board of Trustees”) and apply those
prices to the portfolio positions. For those securities where market
quotations are not readily available, the Board of Trustees shall
approve,
in good faith, procedures for determining the fair value for such
securities.
|
1
| (3) |
Identify
interest and dividend accrual balances as of each valuation date
and
calculate gross earnings on investments for each accounting period.
|
| (4) |
Determine
gain/loss on security sales and identify them as short-term or long-term;
account for periodic distributions of gains or losses to shareholders
and
maintain undistributed gain or loss balances as of each valuation
date.
|
| (5) |
On
a daily basis, reconcile cash of the Fund with the Fund’s
custodian.
|
| (6) |
Transmit
a copy of the portfolio valuation to the Fund’s investment adviser
daily.
|
| (7) |
Review
the impact of current day’s activity on a per share basis, and review
changes in market value.
|
| B. |
Expense
Accrual and Payment Services:
|
| (1) |
For
each valuation date, calculate the expense accrual amounts as directed
by
the Trust as to methodology, rate or dollar amount.
|
| (2) |
Process
and record payments for Fund expenses upon receipt of written
authorization from the Trust.
|
| (3) |
Account
for Fund expenditures and maintain expense accrual balances at the
level
of accounting detail, as agreed upon by USBFS and the
Trust.
|
| (4) |
Provide
expense accrual and payment reporting.
|
| C. |
Fund
Valuation and Financial Reporting Services:
|
| (1) |
Account
for Fund share purchases, sales, exchanges, transfers, dividend
reinvestments, and other Fund share activity as reported by the Fund’s
transfer agent on a timely basis.
|
| (2) |
Apply
equalization accounting as directed by the
Trust.
|
| (3) |
Determine
net investment income (earnings) for the Fund as of each valuation
date.
Account for periodic distributions of earnings to shareholders and
maintain undistributed net investment income balances as of each
valuation
date.
|
| (4) |
Maintain
a general ledger and other accounts, books, and financial records
for the
Fund in the form as agreed upon.
|
2
| (5) |
Determine
the net asset value of the Fund according to the accounting policies
and
procedures set forth in the Fund's current prospectus.
|
| (6) |
Calculate
per share net asset value, per share net earnings, and other per
share
amounts reflective of Fund operations at such time as required by
the
nature and characteristics of the Fund.
|
| (7) |
Communicate
to the Trust, at an agreed upon time, the per share net asset value
for
each valuation date.
|
| (8) |
Prepare
monthly reports that document the adequacy of accounting detail to
support
month-end ledger balances.
|
| (9) |
Prepare
monthly security transactions
listings.
|
| D. |
Tax
Accounting Services:
|
| (1) |
Maintain
accounting records for the investment portfolio of the Fund to support
the
tax reporting required for “regulated investment companies” under the
Internal Revenue Code of 1986, as amended (the
“Code”).
|
| (2) |
Maintain
tax lot detail for the Fund’s investment portfolio.
|
| (3) |
Calculate
taxable gain/loss on security sales using the tax lot relief method
designated by the Trust.
|
| (4) |
Provide
the necessary financial information to calculate the taxable components
of
income and capital gains distributions to support tax reporting to
the
shareholders.
|
| E. |
Compliance
Control Services:
|
| (1) |
Support
reporting to regulatory bodies and support financial statement preparation
by making the Fund's accounting records available to the Trust, the
Securities and Exchange Commission (the “SEC”), and the independent
accountants.
|
| (2) |
Maintain
accounting records according to the 1940 Act and regulations provided
thereunder.
|
| (3) |
Perform
its duties hereunder in compliance with all applicable laws and
regulations and provide any sub-certifications reasonably requested
by the
Trust in connection with any certification required of the Trust
pursuant
to the Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”) or any rules or
regulations promulgated by the SEC thereunder, provided the same
shall not
be deemed to change USBFS’s standard of care as set forth
herein.
|
3
| (4) |
Cooperate
with the Trust’s independent accountants and take all reasonable action 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 their opinion on the Fund’s financial statements without any
qualification as to the scope of their
examination.
|
| 3. |
License
of Data; Warranty; Termination of Rights; Pricing of
Securities
|
USBFS
has
entered into an agreement with FT Interactive (“FTI”) which obligates USBFS to
include the following provisions in this Agreement.
|
A.
|
FTI
AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO
MERCHANTABILITY, FITNESS OR ANY OTHER
MATTER.
|
|
B.
|
Trust
agrees that FTI and its suppliers shall have no liability to Trust,
or a
third party, for errors, omissions or malfunctions in the services
it
provides to USBFS, other than the obligation of FTI to endeavor upon
receipt of notice from Trust, to correct a malfunction, error or
omission
in any such service. This paragraph shall not have any affect upon
the
standard of care and liability of USBFS has set forth in Section
8 of this
Agreement.
|
|
C.
|
Trust
acknowledges that the services provided by FTI or its suppliers to
USBFS
are intended for use as an aid to institutional investors, registered
brokers or professionals of similar sophistication in making informed
judgments concerning securities. Trust accepts responsibility for,
and
acknowledges it exercises its own independent judgment in, its selection
of the services provided by FTI to USBFS, its selection of the use
or
intended use of such, and any results obtained. Nothing contained
herein
shall be deemed to be a waiver of any rights existing under applicable
law
for the protection of investors.
|
|
D.
|
Trust
shall indemnify exclusively from fund assets FTI and its suppliers
and
hold FTI harmless from any and all losses, damages, liability, costs,
including attorneys’ fees, resulting directly or indirectly from any claim
or demand against FTI or its suppliers by a third party arising out
of or
related to the accuracy or completeness of any services provided
by FTI to
USBFS that are received by Trust, or any data, information, service,
report, analysis or publication derived therefrom. FTI agrees that
it will
not seek satisfaction of any such obligation from the shareholders
or any
individual shareholder of the Trust or from the Trustees or any individual
Trustee or from the Adviser to the Trust. The Trust agrees that neither
FTI nor its suppliers shall be liable for any claim or demand against
Trust by any third party. The immediately preceding sentence shall
not
have any effect upon the standard of care and liability of USBFS
as set
forth in Section 9 of this
Agreement.
|
4
|
E.
|
Notwithstanding
the language provided in Section (3) herein, USBFS is in no way absolved
from any duties and responsibilities set forth in Section two (2)
of this
Agreement, including performing tolerance checks, reviewing the current
day’s activities on a per-share basis and reviewing changes in market
value. For instance, USBFS will review daily exception reports to
examine
securities which exceed set tolerance levels and check those identified
securities against a secondary source to confirm the change is due
to
normal business activity. USBFS shall reimburse Trust for any payments
made by Trust for services contained in this paragraph F herein,
that
USBFS fails to perform.
|
|
F.
|
Neither
Trust, nor FTI, shall be liable for (i) any special, direct or
consequential damages (even if advised of the possibility of such),
(ii)
any delay by reason of circumstances beyond its control, including
acts of
civil or military authority, national emergencies, labor difficulties,
fire, mechanical breakdown, flood or catastrophe, acts of God,
insurrection, war, riots, or failure beyond its control of transportation
or power supply, or (iii) any claim that arose more than one year
prior to
the institution of suit thereof.
|
|
G.
|
Trust
acknowledges that FTI’s third party data suppliers may have the right to
cause the termination of USBFS’ provision of FTI’s services to Trust, with
or without notice, and that neither any third party data supplier
nor FTI
shall have any liability in connection therewith. This paragraph
shall not
have any effect upon the standard of care and liability of USBFS
as set
forth in Section 9 of this
Agreement.
|
|
H.
|
For
each valuation date, USBFS shall obtain prices from a pricing source
recommended by USBFS and approved by the Board of Trustees and apply
those
prices to the portfolio positions of the Fund. For those securities
where
market quotations are not readily available, the Board of Trustees
shall
approve, in good faith, procedures for determining the fair value
for such
securities.
|
|
I.
|
In
the event that Trust at any time receives data from FTI containing
evaluations, rather than market quotations, for certain securities
or
certain other data related to such securities, the following provisions
will apply: (i) evaluated securities are typically complicated financial
instruments. There are many methodologies (including computer-based
analytical modeling and individual security evaluations) available
to
generate approximations of the market value of such securities, and
there
is professional disagreement about which is best. No evaluation method,
including those used by FTI, may consistently generate approximations
that
correspond to actual “traded” prices of the instruments; (ii) FTI’s
methodologies used to provide the pricing portion of certain data
may rely
on evaluations; however, Trust acknowledges that there may be errors
or
defects in FTI’s software, databases, or methodologies that may cause
resultant evaluations to be inappropriate for use in certain applications;
and (iii) Trust assumes all responsibility for edit checking, external
verification of evaluations, and ultimately the appropriateness of
the use
of evaluations and other pricing data provided via the services provided
by FTI used in Trust’s applications, regardless of any efforts made by FTI
in this respect. USBFS shall immediately notify Trust that an evaluation
or evaluations have been used rather than market quotations. Trust
shall
indemnify and hold FTI completely harmless in the event that errors,
defects, or inappropriate evaluations are made available via the
services
or data provided by FTI.
|
5
| 4. |
Changes
in Accounting Procedures
|
Any
resolution passed by the Board of Trustees that affects accounting practices
and
procedures under this Agreement shall be effective upon written receipt of
notice and acceptance by USBFS.
| 5. |
Changes
in Equipment, Systems,
Etc.
|
USBFS
reserves the right to make changes from time to time, as it deems advisable,
relating to its systems, programs, rules, operating schedules and equipment,
so
long as such changes do not adversely affect the services provided to the Trust
under this Agreement.
| 6. |
Compensation
|
USBFS
shall be compensated for providing the services set forth in this Agreement
in
accordance with the fee schedule set forth on Exhibit
B
hereto
(as amended from time to time). USBFS shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by USBFS in
performing its duties hereunder. The Trust shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The
Trust
shall notify USBFS in writing within 30 calendar days following receipt of
each
invoice if the Trust is disputing any amounts in good faith. The Trust shall
pay
such disputed amounts within 10 calendar days of the day on which the parties
agree to the amount to be paid. With the exception of any fee or expense the
Trust is disputing in good faith as set forth above, unpaid invoices shall
accrue a finance charge of 1½% per month after the due date. Notwithstanding
anything to the contrary, amounts owed by the Trust to USBFS shall only be
paid
out of the assets and property of the particular Fund involved.
| 7. |
Representations
and Warranties
|
| A. |
The
Trust hereby represents and warrants to USBFS, which representations
and
warranties shall be deemed to be continuing throughout the term of
this
Agreement, that:
|
6
|
(1)
|
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;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by the
Trust in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of the Trust, 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; and
|
|
(3)
|
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.
|
| B. |
USBFS
hereby represents and warrants to the Trust, which representations
and
warranties shall be deemed to be continuing throughout the term of
this
Agreement, that:
|
|
(1)
|
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;
|
|
(2)
|
This
Agreement has been duly authorized, executed and delivered by USBFS
in
accordance with all requisite action and constitutes a valid and
legally
binding obligation of USBFS, 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; and
|
|
(3)
|
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.
|
| 8. |
Standard
of Care; Indemnification; Limitation of
Liability
|
|
A.
|
USBFS
shall exercise reasonable care in the performance of its duties under
this
Agreement. USBFS shall not be liable for any error of judgment or
mistake
of law or for any loss suffered by the Trust in connection with its
duties
under this Agreement, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies beyond
USBFS’s control, except a loss arising out of or relating to USBFS’s
refusal or failure to comply with the terms of this Agreement or
from its
bad faith, negligence, or willful misconduct in the performance of
its
duties under this Agreement. Notwithstanding any other provision
of this
Agreement, if USBFS has exercised reasonable care in the performance
of
its duties under this Agreement, the Trust shall indemnify and hold
harmless USBFS from and against any and all claims, demands, losses,
expenses, and liabilities of any and every nature (including reasonable
attorneys' fees) that USBFS may sustain or incur or that may be asserted
against USBFS by any person arising out of any action taken or omitted
to
be taken by it in performing the services hereunder (i) in accordance
with
the foregoing standards, or (ii) in reliance upon any written or
oral
instruction provided to USBFS by any duly authorized officer of the
Trust,
as approved by the Board of Trustees of the Trust (the “Board of
Trustees”), except for any and all claims, demands, losses, expenses, and
liabilities arising out of or relating to USBFS’s refusal or failure to
comply with the terms of this Agreement or from its bad faith, negligence
or willful misconduct in the performance of its duties under this
Agreement. This indemnity shall be a continuing obligation of the
Trust,
its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term “USBFS” shall include
USBFS’s directors, officers and
employees.
|
7
USBFS
shall indemnify and hold the Trust harmless from and against any and all claims,
demands, losses, expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) that the Trust may sustain or incur or that may
be
asserted against the Trust by any person arising out of any action taken or
omitted to be taken by USBFS as a result of USBFS’s refusal or failure to comply
with the terms of this Agreement, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this Agreement. This indemnity
shall be a continuing obligation of USBFS, its successors and assigns,
notwithstanding the termination of this Agreement. As used in this paragraph,
the term “Trust” shall include the Trust’s directors, officers and
employees.
Neither
party to this Agreement shall be liable to the other party for consequential,
special or punitive damages under any provision of this Agreement.
In
the
event of a mechanical breakdown or failure of communication or power supplies
beyond its control, USBFS shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues. USBFS 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 USBFS. USBFS 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 Trust shall be entitled to inspect USBFS’s premises and
operating capabilities at any time during regular business hours of USBFS,
upon
reasonable notice to USBFS. Moreover, USBFS shall provide the Trust, at such
times as the Trust may reasonably require, copies of reports rendered by
independent accountants on the internal controls and procedures of USBFS
relating to the services provided by USBFS under this Agreement.
8
Notwithstanding
the above, USBFS reserves the right to reprocess and correct administrative
errors at its own expense.
|
B.
|
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.
|
|
C.
|
The
indemnity and defense provisions set forth in this Section 6 shall
indefinitely survive the termination and/or assignment of this
Agreement.
|
|
D.
|
If
USBFS is acting in another capacity for the Trust pursuant to a separate
agreement, nothing herein shall be deemed to relieve USBFS of any
of its
obligations in such other capacity.
|
| 9. |
Notification
of Error
|
The
Trust
will notify USBFS of any discrepancy between USBFS and the Trust, including,
but
not limited to, failing to account for a security position in the Fund’s
portfolio, upon the later to occur of: (i) three business days after receipt
of
any reports rendered by USBFS to the Trust; (ii) three business days after
discovery of any error or omission not covered in the balancing or control
procedure; or (iii) three business days after receiving notice from any
shareholder regarding any such discrepancy.
| 10. |
Data
Necessary to Perform
Services
|
9
The
Trust
or its agent shall furnish to USBFS the data necessary to perform the services
described herein at such times and in such form as mutually agreed
upon.
| 11. |
Proprietary
and Confidential
Information
|
| A. |
USBFS
agrees on behalf of itself and its directors, officers, and employees
to
treat confidentially and as proprietary information of the Trust,
all
records and other information relative to the Trust and prior, present,
or
potential shareholders of the Trust (and clients of said shareholders),
and not to use such records and information for any purpose other
than the
performance of its responsibilities and duties hereunder, except
(i) after
prior notification to and approval in writing by the Trust, which
approval
shall not be unreasonably withheld and may not be withheld where
USBFS may
be exposed to civil or criminal contempt proceedings for failure
to
comply, (ii) when requested to divulge such information by duly
constituted authorities, or (iii) when so requested by the Trust.
Records
and other information which have become known to the public through
no
wrongful act of USBFS or any of its employees, agents or representatives,
and information that was already in the possession of USBFS prior
to
receipt thereof from the Trust or its agent, shall not be subject
to this
paragraph.
|
Further,
USBFS will adhere to the privacy policies adopted by the Trust pursuant to
Title
V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In this
regard, USBFS 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 Trust and its shareholders.
| B. |
The
Trust, on behalf of itself and its directors, officers, and employees,
will maintain the confidential and proprietary nature of the Data
and
agrees to protect it using the same efforts, but in no case less
than
reasonable efforts, that it uses to protect its own proprietary and
confidential information.
|
| 12. |
Records
|
USBFS
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 Trust, but not inconsistent with the rules and regulations of appropriate
government authorities, in particular, Section 31 of the 1940 Act and the rules
thereunder. USBFS agrees that all such records prepared or maintained by USBFS
relating to the services to be performed by USBFS hereunder are the property
of
the Trust 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 Trust or its designee on and in accordance with its
request.
| 13. |
Compliance
with Laws
|
10
The
Trust
has and retains primary responsibility for all compliance matters relating
to
the Fund, including but not limited to compliance with the 1940 Act, the Code,
the SOX Act, the USA Patriot Act of 2002 and the policies and limitations of
the
Fund relating to its portfolio investments as set forth in its current
prospectus and statement of additional information. USBFS’s services hereunder
shall not relieve the Trust of its responsibilities for assuring such compliance
or the Board of Director’s oversight responsibility with respect
thereto.
| 14. |
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 one year. Thereafter, if not terminated,
this
Agreement shall continue in effect automatically as to each Fund for successive
one-year periods, provided such continuance is specifically approved at least
annually by the Trust’s
Board.
Thereafter, if not terminated, this Agreement shall continue in effect
automatically as to each Fund for successive one-year periods, provided such
continuance is specifically approved at least annually by the Trust’s
Board.
Subsequent to the initial one-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 USBFS and the Trust,
and
authorized or approved by the Board of Trustees.
| 15. |
Duties
in the Event of
Termination
|
In
the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by the Trust by written notice
to
USBFS, USBFS will promptly, upon such termination and at the expense of the
Trust, transfer to such successor all relevant books, records, correspondence
and other data established or maintained by USBFS under this Agreement in a
form
reasonably acceptable to the Trust (if such form differs from the form in which
USBFS has maintained the same, the Trust shall pay any expenses associated
with
transferring the data to such form), and will cooperate in the transfer of
such
duties and responsibilities, including provision for assistance from USBFS’s
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 Trust.
| 16. |
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 Trust without the written consent of USBFS, or by
USBFS
without the written consent of the Trust accompanied by the authorization or
approval of the Trust’s Board of Trustees.
11
| 17. |
Governing
Law
|
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that
the
applicable laws of the State of Wisconsin, 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 SEC thereunder.
| 18. |
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.
| 19. |
Services
Not Exclusive
|
Nothing
in this Agreement shall limit or restrict USBFS from providing services to
other
parties that are similar or identical to some or all of the services provided
hereunder.
| 20. |
Invalidity
|
Any
provision of this Agreement which 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.
| 21. |
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:
Notice
to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Fax:
(000) 000-0000
12
and
notice to the Trust shall be sent to:
Xxxxxxxxxx
& Company, Inc.
0000
Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000-0000
| 22. |
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.
13
IN
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.
| WEXFORD TRUST | U.S. BANCORP FUND SERVICES, LLC |
| By:/s/ Xxxxxx X. Xxxxxxxxxx | By:/s/ Xxxxxxx X. XxXxx |
| Name: Xxxxxx X. Xxxxxxxxxx | Name: Xxxxxxx X. XxXxx |
| Title: President | Title: Sr. Vice President |
14
Exhibit
A
to
the
Fund
Names
Xxxxxxxxxx
Fund - A Series of the Wexford Trust
Name
Xxxxxxxxxx
Fund
B-1
