EXHIBIT (H)(24)
SERVICES AGREEMENT
This Services Agreement is made and entered into as of December 09,
2002, by and among Wachovia Bank, National Association, a national banking
association chartered by The Office of the Comptroller of the Currency under the
laws of the United States ("Wachovia"), U.S. Bancorp Fund Services, LLC, a
limited liability company (the "Alliance Partner"), and Xxxxxxxx Xxxxx &
Associates, Inc. (the "Advisor").
WHEREAS, the Alliance Partner is the transfer agent for certain
investment companies listed on Schedule A (the "Funds") that are registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Advisor is registered under the Investment Advisors Act of
1940 and is the sponsor of the Funds listed on the attached Schedule A; and
WHEREAS, Wachovia acts as trustee or custodian to certain employee
benefit plans (the "Plans") and provides certain administrative and
recordkeeping services to the Plans and. their participants; and
WHEREAS, Wachovia, and the Alliance Partner desire to facilitate the
purchase and redemption of shares (the "Shares") of the Funds on behalf of the
Plans and their participants ("Plan Participants") through one or more accounts
("Accounts") subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto agree as follows:
1. Performance of Services. Wachovia shall perform, or arrange for the
performance of, any one or more of the following services (collectively,
"Administrative Services"):
(a) establish and maintain omnibus accounts with the Funds. Each
Fund shall recognize all Plans as a single shareholder and will not maintain
separate Accounts for the Plans or the Plan Participants;
(b) aggregate orders given by Plan sponsors or their authorized
representatives, or Plan Participants for the purchase of Shares, submit such
orders to Alliance Partner and promptly deliver payment and appropriate
documentation to Alliance Partner. The record holder for Shares so ordered shall
be Wachovia Bank, National Association. Shares so held are referred to as "Plan
Shares;"
(c) aggregate exchange and redemption orders given by Plan
Participants and Plan sponsors, submit such exchange and redemption orders to
Alliance Partner and receive the proceeds of redemptions for allocation to the
Plan Participant's subaccounts;
(d) receive in the aggregate and allocate to the Plan
sub-accounts dividends and distributions with respect to Plan Shares;
(e) provide record-keeping services relating to the foregoing
purchase and redemption transactions; and
(f) provide such information and services relating to the
foregoing as Alliance Partner reasonably requests, to the extent Wachovia is
permitted by applicable law to provide such information or service.
2. Orders and Settlement.
(a) Alliance Partner hereby appoints Wachovia as its agent for
the sole and limited purpose of accepting purchase, exchange and redemption
orders for Shares purchased, exchanged or redeemed by the Plans ("Orders").
Wachovia hereby accepts its appointment on the terms and conditions set forth
herein. Notwithstanding anything in this Agreement to the contrary, Wachovia
shall not be acting as agent for Alliance Partner in any manner whatsoever,
except in accepting such Orders.
(b) Wachovia, as agent of Alliance Partner, shall be permitted to
accept from the Plans, orders for the purchase, exchange or redemption of Shares
of the Funds on each business day that the New York Stock Exchange is open for
business and a Fund's net asset value is determined ("Business Day'). Wachovia
shall not be required to accept Orders on any Business Day on which it is not
open for business. If Orders are accepted by Wachovia prior to the latest time
at which a Fund's net asset value is calculated as specified in such Fund's
prospectus ("Close of Trading") on a Business Day, they shall be treated as
having been received by Alliance Partner on such Business Day. If such Orders
are received after Close of Trading on a Business Day, they shall not be treated
as having been accepted by Wachovia or Alliance Partner on such Business Day.
(c) Instructions from Wachovia or its designee for the purchase,
exchange or redemption of Shares of the Funds pursuant to Orders shall be
processed and transmitted by electronic data transmission to Alliance Partner or
its designee. If such means of transmittal become unavailable, then Orders may
be processed and transmitted by telephone, fax, or any other mutually acceptable
means. Wachovia or its designee shall only transmit instructions which are
pursuant to Orders authorized by the Plans. Such instructions shall specify: (i)
either the number of Shares or the dollar amount of any such purchase, exchange
or redemption; (ii) the applicable Fund(s); and (iii) the Business Day on which
the Order was accepted by Wachovia.
(d) Instructions for the purchase, exchange or redemption of
Shares of the Funds pursuant to Orders shall be properly communicated to and
received by Alliance Partner by 9:00 a.m. Eastern Time of the Business Day next
following the Business Day on which the Order was accepted by Wachovia. Such
instructions shall be effected at the public offering price of the Shares of the
respective Fund (giving effect to any applicable load waiver or reduction in
offering price as described in the prospectus of the Fund) calculated as of the
Close of Trading on the Business Day on which the Order was accepted by
Wachovia. If such instructions for the purchase, exchange or redemption of
Shares of the Funds are received by Alliance Partner after 9:00 a.m. Eastern
Time of the Business Day next following the Business Day on which the Order was
accepted by Wachovia, Wachovia shall be responsible for any claim, demand, loss,
expense or cause of action suffered by Alliance Partner or the Funds, or
affiliates of either, as a result of such delay.
(e) The Funds shall not impose a minimum account balance or
minimum order requirement, or if the Funds require such minimums, they will be
waived under this Agreement.
(f) Settlement for purchases and redemptions shall be conducted
in accordance with the terms of Schedule B.
3. Pricing Information. Alliance Partner or its designee will furnish
Wachovia on each Business Day with: (i) net asset value information calculated
as of the Close of Trading or as of such earlier times at which the Fund's net
asset value is calculated as specified in such Fund's prospectus, (ii) dividend
and capital gains information as such becomes available, and (iii) in the case
of income Funds, the daily accrual for interest rate factor. Alliance Partner or
its designee will make a best faith effort to provide such information by 6:30
p.m. Eastern Time on the same Business Day, however, in no event will such
information be provided later than 7:00 p.m. Eastern Time on the same Business
Day.
4. Account Information.
(a) Alliance Partner or its agent will provide or make available
to Wachovia (i) daily confirmations of Account activity on the Business Day
following the Business Day on which an Order is accepted by Wachovia, (ii) if
requested by Wachovia, monthly statements detailing activity in each account
within five (5) Business Days after the end of each month, and (iii) such other
reports as reasonably requested by Wachovia.
(b) Wachovia shall be permitted to use, discuss with, and provide
to Plans and Plan Participants information, including Fund return information,
which is publicly and/or widely available, including but not limited to,
information from Morningstar and Lipper.
5. Reports and Proxies. The Advisor will provide Wachovia, without
expense, with the number of prospectuses, proxy statements and periodic
shareholder reports and such other information with respect to the Funds as
Wachovia may reasonably request. The Advisor will notify Wachovia regarding
planned shareholder meetings and proxy votes, a soon as practicable, but in no
event less than 10 business days before the record date, in order to provide
Wachovia adequate time to obtain necessary voting directions from the Plans.
6. Fund Expenses. Wachovia shall bear none: of the expenses for the
cost of registration of the Shares, preparation of the Funds' prospectuses,
proxy materials and reports, and preparation of other related statements and
notices required by law. No party shall charge any other party a fee for wiring
funds or for execution of purchases and sales
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under this Agreement. The Funds will not impose transaction fees and will not
impose sales load charges for purchases or redemptions, or if there are such
charges, they will be waived for any shareholder under this Agreement.
7. Fees. In consideration of the administrative savings resulting from
such an arrangement and the other provisions of this Agreement, the Advisor
agrees to pay Wachovia the fees described in the attached Schedule A
("Administrative Fees"). The parties agree that the Administrative Fees are for
the Administrative Services only and do not constitute payment in any manner for
investment advisory or distribution services. The Advisor or its designee will
calculate the Administrative Fees based on the actual daily balance of Accounts
maintained in each Fund and make payment to Wachovia within ten (10) days after
each month-end for the preceding month. The Advisor or its designee will send
Wachovia a fee summary each month. Such summary will be accompanied by
statements showing the calculation of the Administrative Fees.
8. Representations of Wachovia. Wachovia represents and warrants that
the following are true and shall remain true through the term of this Agreement:
(a) Wachovia is a national banking association chartered by The
Office of the Comptroller of the Currency under the laws of the United States.
(b) Wachovia is authorized to enter into and perform this
Agreement.
(c) To the best of its knowledge, it is in material conformity
with all applicable federal and state laws and related regulations.
9. Representations of the Advisor. The Advisor represents and warrants
that the following are true and shall remain true through the term of this
Agreement:
(a) The Advisor is a corporation duly organized and existing in
good standing under the laws of the state where it is incorporated.
(b) The Advisor is authorized to enter into and perform this
Agreement on behalf of the Funds, and the performance of its obligations
hereunder does not and will not violate or conflict with any governing documents
or agreements with respect to the Funds.
(c) The Shares shall be registered under the Securities Act of
1933, as amended (the "1933 Act"), and shall be duly authorized for issuance and
sold in compliance with the 1933 Act and all other applicable federal and state
securities laws.
(d) The Funds are registered under the 1940 Act.
(e) It is an adviser registered under the Investment Advisers Act
of 1940, as amended.
(f) It is a member of the National Securities Clearing
Corporation (the "NSCC"), has executed the NSCC Trust Networking Agreement and
Trust Fund/SERV
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Agreement and related Addendums (the "NSCC Agreements"), and that each of the
Funds may be traded and such trades settled pursuant to the NSCC Agreements.
(g) To the best of its knowledge, it is in material conformity
with all applicable federal and state laws and related regulations.
10. Representations of the Alliance Partner
(a) The Alliance Partner is a corporation duly organized and
existing in good standing under the laws of the state where it is incorporated.
(b) The Alliance Partner is authorized to enter into and perform
this Agreement on behalf of the Funds, and the performance of its obligations
hereunder does not and will not violate or conflict with any governing documents
or agreements with respect to the Funds.
(c) To the best of its knowledge, it is in material conformity
with all applicable federal and state laws and related regulations.
11. Indemnification. Each of the three parties hereto agrees to
indemnify and hold harmless (the "Indemnitor") each of the others, including
their respective affiliates, and each of their directors, trustees, officers,
and employees (the "Indemnitees"), against any losses, claims, damages,
liabilities or expenses to which the Indemnitees may become subject insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) directly arise out of or are directly based upon any breach by the
Indemnitor of any material provision of this Agreement or of a representation,
warranty, or covenant in this Agreement, provided that such breach resulted from
a negligent act or omission to act, bad faith, willful misfeasance or reckless
disregard by the Indemnitor. The Indemnitor will reimburse the Indemnitees for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim or action. This indemnity
agreement will be in addition to any other remedies which the Indemnitees may
otherwise have and shall survive the termination of this Agreement. Where the
Indemnitees receives notice of a claim for which the Indemnitor may be required
to indemnify the Indemnitees, the Indemnitees shall promptly give notice thereof
to the Indemnitor; provided, however, that the obligation shall not be reduced
on account of the failure or delay of the Indemnitees to give such notice. The
terms of this section shall survive termination of this Agreement.
12. Relationship of Parties. Except as expressly provided herein,
nothing contained in this Agreement shall be deemed or construed to constitute
or create a partnership, association, or joint venture or, agency relationship
among Wachovia, the Advisor, the Alliance Partner or the Funds.
13. Confidentiality. Wachovia, the Advisor and Alliance Partner agree
that all non-public records, information, and data relating to the business of
any other (including customer names and information) that are exchanged or
negotiated pursuant to this Agreement or in carrying out this Agreement shall
remain confidential, and shall not be voluntarily disclosed by any other party
without the prior written consent of reach party,
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except as may be required by law or by such party to carry out this Agreement or
an order of an court, governmental agency or regulatory body.
14. Nonexclusivity. Nothing in this Agreement shall be construed or is
intended to prohibit Alliance Partner, the Advisor or the Funds from
establishing a retirement plan administration or record keeping program or from
entering into similar arrangements with other administrative or record keeping
service providers. Nothing in this Agreement shall be construed or is intended
to prohibit Wachovia from entering into similar arrangements with any other
person or entity regarding other mutual funds or any other type of investment.
15. Termination. Any party may terminate this Agreement by providing
sixty (60) days written notice to the other party. Notwithstanding the
foregoing, any party may terminate this Agreement at any time by giving thirty
(30) days written notice to the other parties in the event of a material breach
of this Agreement by any party that is not cured during such thirty (30) day
period.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with he internal laws of the State of North Carolina applicable to
agreements fully executed and to be performed therein.
17. Assignment. This Agreement shall not be assigned by a party hereto,
without the prior written consent of the other parties hereto. If a party
assigns this Agreement to an affiliate, the party assigning the Agreement shall
notify the other parties within 30 days. This Agreement shall inure to the
benefit of and be binding upon the parties and their permitted successors and
assigns.
18. Controlling Agreement. The terms of this Services Agreement shall
supercede and take precedence over any other agreements between the parties to
the. Services Agreement to the extent that such other agreement(s) conflict(s)
with the terms of the Services Agreement with respect to assets invested by
Plans through Wachovia.
19. Time of the Essence. All times specified in this Agreement for the
performance of the obligations of the parties shall be deemed to be of the
essence. The acceptance of a late performance, with or without objection or
reservation, shall not waive the right of any party to claim damages or avail
itself of any other remedy for such breach, nor constitute a waiver of this
requirement of timely performance of any obligation under this Agreement.
20. Written Notice. Except as otherwise provided herein, any notice
required or permitted to be given hereunder shall be given in writing and shall
be addressed and delivered to the parties at the address set forth below, or
such other address as may be designated by either party by notice pursuant to
the terms hereof. Any such notice will be deemed given on the next Business Day
if sent: by a nationally recognized overnight courier service that provides
evidence of receipt or the same Business Day if sent by 3:00 p.m. (receiving
party's time) by facsimile transmission and confirmed by a telephone call,
otherwise, the next Business Day.
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To: Wachovia Bank, National Association
If via U.S. Mail:
Wachovia Bank, National Association
Benefit Services Group - Risk Management
0000 Xxxx X.X. Xxxxxx Xxxxxxxxx, 0X0
Xxxxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Risk Management - Xxxxx Xxxxxxxx
If via any other means:
Wachovia Bank, National Association
Benefit Services Group - Risk Management
0000 Xxxx X.X. Xxxxxx Xxxxxxxxx, 0X0
Xxxxxxxxx, XX 00000
Attention: Risk Management - Xxxxx Xxxxxxxx, NC-1176
With a copy to:
Wachovia Bank, National Association
0000 Xxxx X.X. Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Mutual Funds, NC-1151
To: The Alliance Partner
U.S. Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Compliance Department - Xxxx XxXxx
To: The Advisor
Xxxxxxxx Plumb and Associates, Inc.
1200 Xxxx X. Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxx
21. Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, such provision shall be fully severable, and this
Agreement shall be enforced and construed as if such provision had never
comprised a part of this Agreement. To the extent required, any provision of
this Agreement may be modified by a court of competent jurisdiction to preserve
its validity.
22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
23. Headings. The headings used herein are for convenience only and
shall not be used in construing or interpreting the provisions of this
Agreement.
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IN WITNESS THEREOF, the undersigned has executed this Agreement by
their duly authorized officers.
WACHOVIA BANK, NA U.S. BANCORP FUND SERVICES, LLC
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. XxXxx
----------------------------- ---------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxxx X. XxXxx
-------------------------- -------------------------
Title: Vice President Title: Senior Vice President
------------------------- ------------------------
XXXXXXXX XXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
---------------------------
Title: Vice President
--------------------------
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SCHEDULE A
Funds Covered by the Agreement Class of Shares Annual Fee
------------------------------ --------------- ----------
Xxxxxxxx Plumb Growth Fund .40% (40 basis points)
Xxxxxxxx Xxxxx Select Fund .40% (40 basis points)
Xxxxxxxx Plumb Blue Chip Fund .40% (40 basis points)
Xxxxxxxx Xxxxx Balanced Fund .40% (40 basis points)
Xxxxxxxx Plumb Bond Fund .40% (40 basis points)
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SCHEDULE B
SETTLEMENT PROVISIONS
1. Settlement (NSCC). If both Wachovia and Alliance Partner are members
of the National Securities Clearing Corporation (the "NSCC"), and have executed
the NSCC Trust Networking Agreement and Trust Fund/SERV Agreement and related
Addendums (the "NSCC Agreements"), settlement of purchases and redemptions will
be processed pursuant to the NSCC Agreements.
2. Settlement (non-NSCC). If either Wachovia or Alliance Partner is not
a member of the NSCC and/or has not executed the NSCC Agreements, then
settlement of the purchases and redemptions will be processed pursuant to the
following:
(a) For purchases, Wachovia shall make payment to Alliance Partner in
federal funds no later than the close of the Fedwire system on the Business Day
following the day on which purchase instructions are treated as having been
received by Alliance Partner pursuant to the Services Agreement. Payment shall
be made by wire transfer to an account designated in writing by Alliance Partner
or its designee. If the payment is not received by Alliance Partner by such
time, Alliance Partner or any of its affiliates shall have the right, without
notice, to cancel the sale, or, at Alliance Partner's option, to sell the Shares
ordered back to the issuing Fund, and Alliance Partner may hold Wachovia
responsible for any claim, demand, loss, expense or cause of action suffered by
Alliance Partner or the Funds, or affiliates of either, as a result of
Wachovia's failure to make such payment. Without limiting the foregoing, in the
event Alliance Partner, in its sole discretion, accepts any wire payment
received after such time, Alliance Partner shall be entitled to compensation
from Wachovia for the amount of reasonable interest plus associated bank
penalties.
(b) For redemptions, Alliance Partner shall make payment in federal
funds no later than the close of the Fedwire system on the Business Day
following the day on which redemption instructions are treated as having been
received by Alliance Partner pursuant to the Services Agreement, subject to the
right of a Fund to delay payment for redemptions in accordance with the terms of
its current prospectus. Payment shall be made by wire transfer to an account
designated in writing by Wachovia or its designee. If the payment is not
received in good order by such time, Wachovia shall notify Alliance Partner. If
it is determined that Alliance Partner was negligent in initiating the payment
causing the delay or non-receipt of any such payment, then Alliance Partner will
compensate Wachovia for the amount of reasonable interest plus associated bank
penalties.
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