Investment Company Services Agreement
This
Agreement, dated as of the 27th day of May 2008, by and between Capital
Management Investment Trust (the “Fund”), a business trust operating as a
registered open-end management investment company registered under the
Investment Company Act of 1940, as amended (the “Act”), duly organized and
existing under the laws of the State of Massachusetts and Matrix Capital Group,
Inc. (“Matrix”), a corporation duly organized under the laws of the
State of New York (collectively, the "Parties").
Witnesseth
That:
Whereas,
the Fund is authorized by its Agreement and Declaration of Trust and By-Laws to
issue separate series of shares representing interests in separate investment
portfolios which are identified on Schedule “C” attached hereto (the
“Portfolios”) and which Schedule “C” may be amended from time to time by mutual
agreement of the Fund and Matrix; and
Whereas,
the Parties desire to enter into an agreement whereby Matrix will provide the
services to the Portfolios as specified herein and set forth in particular in
Schedule “A” which is attached hereto and made a part hereof.
Now
Therefore, in consideration of the premises and mutual covenants contained
herein, and in exchange of good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the Parties hereto, intending to be
legally bound, do hereby agree as follows:
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General
Provisions
Section
1. Appointment.
The Fund
hereby appoints Matrix as servicing agent to the Portfolios and Matrix hereby
accepts such appointment. In order that Matrix may perform its duties
under the terms of this Agreement, the Board of Trustees of the Fund shall
direct the officers, investment adviser, legal counsel, independent accountants
and custodian of the Fund to cooperate fully with Matrix and, upon request of
Matrix, to provide such information, documents and advice relating to the Fund
which Matrix requires to execute its responsibilities hereunder. In
connection with its duties, Matrix shall be entitled to rely, and will be held
harmless by the Fund when acting in reasonable reliance, upon any instruction,
advice or document relating to the Fund as provided to Matrix by any of the
aforementioned persons on behalf of the Fund. All fees charged by any
such persons acting on behalf of the Fund would be deemed an expense of the
Fund.
Any
services performed by Matrix under this Agreement will conform to the
requirements of:
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(a)
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the
provisions of the Act and the Securities Act of 1933, as amended, and any
rules or regulations in force
thereunder;
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(b)
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any
other applicable provision of state and federal
law;
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(c)
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the
provisions of the Declaration of Trust and the By-Laws of the Fund as
amended from time to time and delivered to
Matrix;
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(d)
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any
policies and determinations of the Board of Trustees of the Fund which are
communicated to Matrix; and
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(e)
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the
policies of the Fund as reflected in the Fund's registration statement as
filed with the U.S. Securities and Exchange
Commission.
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Nothing
in this Agreement will prevent Matrix or any officer thereof from providing the
same or comparable services for or with any other person, trust, firm or
corporation. While the services supplied to the Fund may be different
than those supplied to other persons, trusts, firms or corporations, Matrix will
provide the Fund equitable treatment in supplying services. The Fund
recognizes that it will not receive preferential treatment from Matrix as
compared with the treatment provided to other Matrix clients.
Section
2. Duties and Obligations of
Matrix.
Subject
to the provisions of this Agreement, Matrix will provide to the Fund the
specific services as set forth in Schedule "A" attached hereto.
Section
3. Definitions. For
purposes of this Agreement:
“Certificate” will
mean any notice, instruction, or other instrument in writing, authorized or
required by this Agreement. To be effective, such Certificate shall
be given to and received by the custodian and shall be signed on behalf of the
Fund by any two of its designated officers, and the term Certificate shall also
include instructions communicated to the custodian by Matrix.
“Custodian” will refer
to that agent which provides safekeeping of the assets of the Fund.
“Instructions” will
mean communications containing instructions transmitted by electronic or
telecommunications media including, but not limited to, Industry Standardization
for Institutional Trade Communications, computer-to-computer interface,
dedicated transmission line, facsimile transmission (which may be signed by an
officer or unsigned) and tested telex.
“Oral Instruction”
will mean an authorization, instruction, approval, item or set of data, or
information of any kind transmitted to Matrix in person or by telephone,
telegram, telecopy or other mechanical or documentary means lacking original signature,
by a person or persons reasonably identified to Matrix to be a person or persons
so authorized by a resolution of the Board of Trustees of the Fund to give Oral
Instructions to Matrix on behalf of the Fund.
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“Shareholders” will
mean the registered owners of the shares of the Fund in accordance with the
share registry records maintained by Matrix for the Fund.
“Shares” will mean the
issued and outstanding shares of the Fund.
“Signature Guarantee”
will mean the guarantee of signatures by an "eligible guarantor institution" as
defined in Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Eligible guarantor institutions include banks,
brokers, dealers, credit unions, and national securities exchanges, registered
securities associations, clearing agencies and savings
associations. Broker-dealers guaranteeing signatures must be members
of a clearing corporation or maintain net capital of at least
$100,000. Signature guarantees will be accepted from any eligible
guarantor institution, which participates in a signature guarantee
program.
“Written Instruction”
will mean an authorization, instruction, approval, item or set of data or
information of any kind transmitted to Matrix in an original writing containing an original
signature or a copy of such document transmitted by telecopy including
transmission of such signature reasonably identified to Matrix to be the
signature of a person or persons so authorized by a resolution of the Board of
Trustees of the Fund, or so identified by the Fund to give Written Instructions
to Matrix on behalf of the Fund.
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Concerning Oral and Written
Instructions For all purposes under this Agreement,
Matrix is authorized to act upon receipt of the first of any Written or Oral
Instruction it receives from the Fund or its agents. In cases where
the first instruction is an Oral Instruction that is not in the form of a
document or written record, a confirmatory Written Instruction or Oral
Instruction in the form of a document or written record shall be delivered
promptly. In cases where Matrix receives an Instruction, whether
Written or Oral, to enter a portfolio transaction onto the Fund’s records, the
Fund shall cause the broker/dealer executing such transaction to send a written
confirmation to the Custodian.
Matrix
shall be entitled to rely on the first Instruction received from the Fund or its
authorized agents, whether Oral or otherwise. For any act or omission
undertaken by Matrix in compliance therewith, it shall be free of liability and
fully indemnified and held harmless by the Fund, provided however, that in the
event any Instruction received by Matrix is countermanded by a subsequent
Written or Oral Instruction received prior to acting upon such countermanded
Instruction, Matrix shall act upon such subsequent Written or Oral
Instruction. The sole obligation of Matrix with respect to any
follow-up or confirmatory Written Instruction or Oral Instruction in documentary
or written form shall be to make reasonable efforts to detect any discrepancy
between the original Instruction and such follow-up or confirmatory Written or
Oral Instruction, and to report such discrepancy to the
Fund. The Fund shall be responsible and bear the expense of its
taking any action, including any reprocessing, necessary to correct any
discrepancy or error. To the extent such action requires Matrix to
act; the Fund shall give Matrix specific Written Instruction as to the action
required.
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The Fund
will file with Matrix a certified copy of each resolution of the Fund’s Board of
Trustees authorizing execution of Written Instructions or the transmittal of
Oral Instructions as provided above.
Section
4. Indemnification.
(a) Matrix,
its officers, employees, shareholders, and agents will be liable for any
loss suffered by the Fund resulting from the willful
misfeasance, bad faith, negligence or reckless disregard on the part of Matrix
in the performance of its obligations and duties under this
Agreement.
(b) Any
director, officer, employee, shareholder or agent of Matrix, who may be or
become an officer, director, employee or agent of the Fund, will be deemed, when
rendering services to the Fund, or acting on any business of the Fund (other
than services or business in connection with Matrix’s duties hereunder), to be
rendering such services to or acting solely for the Fund and not as a director,
officer, employee, shareholder or agent of, or under the control or direction of
Matrix even though such person may be receiving compensation from
Matrix.
(c) To
the extent permitted under the Act, the Fund agrees to indemnify and hold Matrix
harmless, together with its officers, employees, shareholders and agents from
and against any and all claims, demands, expenses and liabilities (whether with
or without basis in fact or law) of any and every nature which Matrix may
sustain or incur or which may be asserted against Matrix by any person by reason
of, or as a result of:
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(i)
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any
action taken or omitted to be taken by Matrix except claims, demands,
expenses and liabilities arising in whole or in part from willful
misfeasance, bad faith, negligence or reckless disregard on the part of
Matrix in the performance of its obligations and duties under this
Agreement; or
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(ii)
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any
action taken or omitted to be taken by Matrix in reliance upon any
Certificate, instrument, order or stock certificate or other document
reasonably believed by Matrix to be genuine and signed, countersigned or
executed by any duly authorized person, upon the Oral Instructions or
Written Instructions of an authorized person of the Fund, or upon the
written opinion of legal counsel for the Fund or Matrix;
or
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(iii)
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the
offer or sale of shares of the Fund to any person, natural or otherwise,
which is in violation of any state or federal
law.
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If a
claim is made against Matrix as to which Matrix may seek indemnity under this
Section, Matrix will notify the Fund promptly after receipt of any written
assertion of such claim threatening to institute an action or proceeding with
respect thereto and will notify the Fund promptly of any action commenced
against Matrix within ten (10) days after Matrix has been served with a summons
or other legal process. Failure to notify the Fund will not, however,
relieve the Fund from any liability, which it may have on account of the
indemnity under this Section so long as the Fund has not been prejudiced in any
material respect by such failure.
The Fund
and Matrix will cooperate in the control of the defense of any action, suit or
proceeding in which Matrix is involved and for which indemnity is being provided
by the Fund to Matrix. The Fund may negotiate the settlement of any
action, suit or proceeding subject to Matrix’s approval, which will not be
unreasonably withheld. Matrix reserves the right, but not the
obligation, to participate in the defense or settlement of a claim, action or
proceeding with its own counsel. Reasonable costs or expenses
incurred by Matrix in connection with, or as a result of such participation,
will be borne solely by the Fund if:
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(i)
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Matrix
has received an opinion of counsel from counsel to the Fund stating that
the use of counsel to the Fund by Matrix would present an impermissible
conflict of interest;
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(ii)
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the
defendants in, or targets of, any such action or proceeding include both
Matrix and the Fund, and legal counsel to Matrix has reasonably concluded
that there are legal defenses available to it which are different from or
additional to those available to the Fund or which may be adverse to or
inconsistent with defenses available to the Fund (in which case the Fund
will not have the right to direct the defense of such action on behalf of
Matrix); or
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(iii)
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the
Fund authorizes Matrix to employ separate counsel at the expense of the
Fund; provided, however, that any fees and expenses of such separate
counsel to be paid by the Fund shall be subject to the Fund’s reasonable
approval.
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(d) The
terms of this Section will survive the termination of this
Agreement.
Section
5. Representations and
Warranties.
(a)
Matrix represents and warrants that:
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(i)
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it
is a corporation duly organized and existing and in good standing under
the laws of New York;
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(ii)
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it
is empowered under applicable laws and by its Certificate of Incorporation
and By-Laws to enter into and perform this
Agreement;
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(iii)
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all
requisite corporate proceedings have been taken to authorize Matrix to
enter into and perform this
Agreement;
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(iv)
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it
has and will continue to have access to the facilities, personnel and
equipment required to fully perform its duties and obligations
hereunder;
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(v)
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no
legal or administrative proceedings have been instituted or threatened
which would impair Matrix’s ability to perform its duties and obligations
under this Agreement;
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(vi)
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its
entrance into this Agreement shall not cause a material breach or be in
material conflict with any other agreement or obligation of Matrix or any
law or regulation applicable to it;
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(vii)
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it
is registered as a transfer agent under Section 17A(c) (2) of the Exchange
Act and has adopted compliance policies and procedures reasonably designed
to ensure its compliance with federal securities
laws;
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(viii)
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this
Agreement has been duly authorized by Matrix and, when executed and
delivered, will constitute a valid, legal and binding obligation of
Matrix, enforceable in accordance with its
terms.
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(b) The
Fund represents and warrants that:
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(i)
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it
is a statutory trust duly organized and existing and in good standing
under the laws of the State of
Massachusetts;
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(ii)
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it
is empowered under applicable laws and by its Agreement and Declaration of
Trust and By-Laws to enter into and perform this
Agreement;
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(iii)
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all
requisite proceedings have been taken to authorize the Fund to enter into
and perform this Agreement;
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(iv)
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no
legal or administrative proceedings have been instituted or threatened
which would impair the Fund’s ability to perform its duties and
obligations under this Agreement;
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(v)
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the
Fund’s entrance into this Agreement shall not cause a material breach or
be in material conflict with any other agreement or obligations of the
Fund, or any law or regulation applicable to
either;
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(vi)
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the
Shares are properly registered or otherwise authorized for issuance and
sale;
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(vii)
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this
Agreement has been duly authorized by the Fund and, when executed and
delivered, will constitute a valid, legal and binding obligation of the
Fund, enforceable in accordance with its
terms.
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(c) Delivery
of Documents
The Fund will furnish or cause to be
furnished to Matrix the following documents;
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(i)
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current
Prospectus and Statement of Additional Information for each
Portfolio;
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(ii)
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most
recent Annual Report of each
Portfolio;
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(iii)
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most
recent Semi-Annual Report for of each
Portfolio;
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(iv)
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certified
copies of resolutions of the Fund’s Board of Trusteesauthorizing the
execution of Written Instructions or the transmittal of Oral Instructions
and those persons authorized to give those
Instructions.
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(d) Record
Keeping and Other Information
Matrix
will create and maintain all records required of it pursuant to its duties
hereunder and as set forth in Schedule “A” in accordance with all applicable
laws, rules and regulations, including records required by Section 31(a) of the
Act. All such records will be the property of the Fund and will be available
during regular business hours for inspection, copying and use by the
Fund. Where applicable, such records will be maintained by Matrix for
the periods and in the places required by Rule 31a-2 under the
Act. Upon termination of this Agreement, Matrix will deliver all such
records to the Fund or such person as the Fund may designate.
Section
6. Compensation. The
Fund agrees to pay Matrix compensation for its services, and to reimburse it for
expenses at the rates, times, manner and amounts as set forth in Schedule "B"
attached hereto and incorporated herein by reference and as will be set forth in
any amendments to such Schedule "B" agreed upon in writing by the Parties. Upon
receipt and approval of an invoice therefor, Matrix is authorized to collect
such fees by debiting the Fund’s custody account. The Fund will approve or
contest any invoice sent by Matrix within five (5) business days of receipt.
Disputed amounts shall not be deducted from the Fund's custody account until the
dispute is resolved. In addition, the Fund agrees to reimburse Matrix for any
reasonable and ordinary out-of-pocket expenses paid by Matrix on behalf of the
Fund within five (5) business days of the Fund’s receipt of an invoice
therefor.
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For the
purpose of determining fees payable to Matrix, the value of the Fund’s net
assets will be computed at the times and in the manner specified in the Fund’s
Prospectus and Statement of Additional Information then in effect.
During
the term of this Agreement, should the Fund seek services or functions in
addition to those outlined below or in Schedule “A” attached hereto, a written
amendment to this Agreement specifying the additional services and corresponding
compensation will be executed by the Parties.
In the
event that the Fund is more than thirty (30) days delinquent in its payments of
monthly xxxxxxxx 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
Matrix. In the event of a dispute over a billing amount, the Fund
must notify Matrix in writing of the contested amounts within a reasonable time
of receipt of a billing for such amounts. Disputed amounts are not
due and payable while they are being disputed.
Section
7. Days of
Operation.
Nothing
contained in this Agreement is intended to or will require Matrix, in any
capacity hereunder, to perform any functions or duties on any day on which the
New York Stock Exchange (“NYSE”) is closed. Functions or duties
normally scheduled to be performed on such days will be performed on and as of
the next succeeding business day on which the NYSE is
open. Notwithstanding the foregoing, Matrix will compute the net
asset value of the Fund on each day required pursuant to Rule 22c-1 promulgated
under the Act.
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Section
8. Acts of God,
etc.
Matrix
will not be liable or responsible for delays or errors caused by acts of God or
by reason of circumstances beyond its control including, acts of civil or
military authority, national emergencies, equipment failures, insurrection, war,
riots, or failure or unavailability of transportation, communication or power
supply, fire, flood or other catastrophe.
In the
event of equipment failures beyond Matrix’s control, Matrix will, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions but will have no liability with respect thereto. The
foregoing obligation will not extend to computer terminals located outside of
premises maintained by Matrix. Matrix has entered into and agrees to
maintain in effect agreements making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate equipment are
available.
Section
9. Inspection and Ownership of
Records.
In the
event of a request or demand for the inspection of the records of the Fund,
Matrix will use its best efforts to notify the Fund and to secure instructions
as to permitting or refusing such inspection. Matrix may, however,
after notice to the Fund make such records available for inspection to any
person in any case where it is advised in writing by its counsel that it may be
held liable for failure to do so.
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Matrix
recognizes that the records it maintains for the Fund are the property of the
Fund and will be surrendered to the Fund upon written notice to Matrix as
outlined under Section 10(c) below. Matrix agrees to maintain the
records and all other information of the Fund in a confidential manner and will
not use such information for any purpose other than the performance of Matrix’s
duties under this Agreement.
Section
10. Duration and
Termination.
(a) The
initial term of this Agreement will be for the period of one (1) year commencing
on the date hereinabove first written (the “Effective Date”) and will continue
thereafter subject to termination by either Party as set forth in subsection (c)
below.
(b) The
fee schedules set forth in Schedule "B" attached hereto will be fixed for the
initial term commencing on the Effective Date of this Agreement and will
continue or be revised thereafter subject mutual agreement of the
Parties.
(c) After
the initial term of this Agreement, a Party may give written notice to the other
(the day on which the notice is received by the Party against which the notice
is made shall be the “Notice Date”) of a date on which this Agreement shall be
terminated (“Termination Date”). The Termination Date shall be set on
a day not less than sixty (60) days after the Notice Date. The period
of time between the Notice Date and the Termination Date is hereby identified as
the “Notice Period”. Any time up to, but not later than fifteen (15)
days prior to the Termination Date, the Fund will pay to Matrix such
compensation as may be due as of the Termination Date and will likewise
reimburse Matrix for any out-of-pocket expenses and disbursements reasonably
incurred or expected to by incurred by Matrix up to and including the
Termination Date.
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(d) In
connection with the termination of this Agreement, if the Fund designates, by
written notice to Matrix a successor to any of Matrix’s duties or
responsibilities under this Agreement, Matrix will promptly on the Termination
Date, transfer to the successor all records which belong to the Fund and will
provide appropriate, reasonable and professional cooperation in transferring
such records to the named successor. The Fund shall reimburse Matrix
for its reasonable out-of-pocket expenses incurred in connection with the
transfer of such records in accordance with section 10(c) above.
(e) Should
the Fund desire to move any of the services outlined in this Agreement to a
successor service provider prior to the Termination Date, Matrix shall make a
good faith effort to facilitate the conversion on such prior date, however,
there can be no guarantee that Matrix will be able to facilitate a conversion of
services prior to the end of the Notice Period. Should services be
converted to a successor service provider prior to the end of the Notice Period,
or if the Fund is liquidated and its assets merged or
purchased or the like with another entity, payment of fees to Matrix shall be
accelerated to the last business day prior to the conversion or
termination of services and calculated as if the services had remained at Matrix
until the expiration of the Notice Period and shall be calculated at the asset
levels on the last business day prior to conversion or termination.
(f)
Notwithstanding any other provisions of Paragraph 10, if the Fund is liquidated
and not merged or purchased, fees shall be paid through the liquidation date; in
the event the Fund deregisters as an Investment Company with the United States
Securities and Exchange Commission ("SEC"), or liquidates a Portfolio this
Agreement may be terminated by the Fund upon thirty (30) days written notice to
Matrix. The Termination Date shall be thirty (30) days after the receipt of such
notice by Matrix. Any time up to, but not later than ten (10) days prior to the
Termination Date, the Fund or applicable Portfolio will pay to Matrix such
compensation as may be due as of the Termination Date and will likewise
reimburse Matrix for any out- of- pocket expenses and disbursements reasonably
incurred or expected to be incurred by Matrix up to and including the
Termination Date.
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(g) Notwithstanding
the foregoing, this Agreement may be terminated at any time by either Party in
the event of a material breach by the other Party involving negligence, willful
misfeasance, bad faith or a reckless disregard of its obligations and duties
under this Agreement provided that such breach shall have remained unremedied
for sixty (60) days or more after receipt of written specification
thereof.
Section
11. Rights of
Ownership.
All
computer programs and procedures developed to perform services required to be
provided by Matrix under this Agreement are the property of
Matrix. All records and other data except such computer programs and
procedures are the exclusive property of the Fund and all such other records and
data will be furnished to the Fund in appropriate form as soon as practicable
after termination of this Agreement for any reason.
Section
12. Amendments to
Documents.
The Fund
will furnish Matrix written copies of any amendments to, or changes in, the
Articles of Incorporation, By-Laws, Prospectus or Statement of Additional
Information in a reasonable time prior to such amendments or changes becoming
effective. In addition, the Fund agrees that no amendments will be
made to the Prospectus or Statement of Additional Information of the Fund which
might have the effect of changing the procedures employed by Matrix in providing
the services agreed to hereunder or which amendment might affect the duties of
Matrix hereunder unless the Fund first obtains Matrix’s approval of such
amendments or changes.
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Section
13. Confidentiality.
Both
Parties hereto agree that any non-public information obtained hereunder
concerning the other Party and/or its clients and shareholders is confidential
and may not be disclosed to any other person without the consent of the other
Party, except as may be required by applicable law or at the request of the U.S.
Securities and Exchange Commission or other governmental agency. Matrix agrees
that it will not use any non-public information for any purpose other than
performance of its duties or obligations hereunder. The obligations
of the Parties under this Section will survive the termination of this
Agreement. The Parties further agree that a breach of this Section
would irreparably damage the other Party and accordingly agree that each of them
is entitled, without bond or other security, to an injunction or injunctions to
prevent breaches of this provision.
Further,
Matrix agrees to adhere to the privacy policies adopted by the Fund pursuant to
the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In
this regard, Matrix 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 and use
of, records and information relating to the Fund and its
shareholders.
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Section
14. Notices.
Except as
otherwise provided in this Agreement, any notice or other communication required
by or permitted to be given in connection with this Agreement will be in writing
and will be deemed to have been given on the dated delivered personally or by
courier service, or three days after sent by registered or certified mail,
postage prepaid, return receipt requested, to the respective parties as
follows:
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If
to the Fund:
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If
to Matrix:
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Matrix
Capital Group
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000
Xxxxxxxx
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000
Xxxxxxxxx Xxxxxxx, Xxxxx 000
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Xxx
Xxxx, XX 00000
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Xxx
Xxxx, XX 00000-0000
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Attention: Xxxxx
X. Xxxxxx
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Attention:
Xxxxxxxxxxx X. Xxxx
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| President |
President
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Section
15. Amendment.
No
provision of this Agreement may be amended or modified in any manner except by a
written agreement properly authorized and executed by the
Parties. This Agreement may be amended from time to time by
supplemental agreement executed by the Parties and the compensation stated in
Schedule "B" attached hereto may be adjusted accordingly as mutually agreed
upon.
Section
16. Authorization.
The
Parties represent and warrant to each other that the execution and delivery of
this Agreement by the undersigned officer of each Party has been duly and
validly authorized; and when duly executed, this Agreement will constitute a
valid and legally binding enforceable obligation of each Party.
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Section
17. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which when so
executed will be deemed to be an original, but such counterparts will together
constitute but one and the same instrument.
Section
18. Assignment.
This
Agreement will extend to and be binding upon the Parties hereto and their
respective successors and assigns; provided, however, that this Agreement will
not be assignable by the Fund without the written consent of Matrix or by Matrix
without the written consent of the Fund which consent must be authorized or
approved by a resolution by its Board of Trustees prior to such
assignment.
Section
19. Governing
Law.
The laws
of the State of New York will govern this Agreement and the exclusive venue of
any action arising under this Agreement will be New York.
Section
20. Severability.
If any
part, term or provision of this Agreement is held by any court to be illegal, in
conflict with any law or otherwise invalid, the remaining portion or portions
will be considered severable and not be affected and the rights and obligations
of the parties will be construed and enforced as if the Agreement did not
contain the particular part, term or provision held to be illegal or invalid,
provided that the basic agreement is not thereby materially
impaired.
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Section
21. Limitation of Liability of
the Trustees and Shareholders
It is
expressly agreed that the obligations of the Fund hereunder shall not be binding
upon any of the Trustees, shareholders, nominees, officers, agents or employees
of the Fund personally, but shall bind only the trust property of the Fund as
provided in the Fund’s Agreement and Declaration of Trust. The
execution and delivery of this Agreement have been authorized by the Trustees
and this Agreement has been signed and delivered by an authorized officer of the
Fund, acting as such, and neither such authorization by the Trustees nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, bust
shall bind only the trust property of the Fund as provided in the Fund’s
Agreement and Declaration of Trust.
Section
22. Anti-Money
Laundering
Each of
Matrix and the Fund acknowledge that it is a financial institution subject to
the USA Patriot Act of 2001 (the “AML Act”), which requires among other things,
that financial institutions adopt compliance programs to guard against money
laundering. Each represents and warrants to the other that it is in
compliance with and will continue to comply with the AML Act and applicable
regulations in all relevant respects. In that connection, the parties
further agree as follows:
(a)
Matrix
shall include specific contractual provisions regarding
anti-money laundering
compliance obligations in all future agreements entered into by Matrix with any
financial intermediary that would be authorized to effect transactions in shares
of the Fund.
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(b) Each
of Matrix and the Fund agrees that it will take such further steps, and
cooperate with the others as may be reasonably necessary, to facilitate
compliance with the AML Act, including but not limited to the provision of
copies of its written procedures, policies and controls related thereto (“AML
Operations”). Matrix undertakes that it will grant to the Fund, the
Fund’s anti-money laundering compliance officer and regulatory agencies,
reasonable access to copies of Matrix’s AML Operations, books and records
pertaining to the Fund only.
Section
23. Entire
Agreement
This
Agreement (including the Exhibits attached hereto) contains the entire agreement
and understanding
of the parties with respect to the subject matter hereof and supersedes all
prior written
or oral agreements and understandings with respect thereto.
In
Witness Whereof, the Parties hereto have caused this Agreement to be signed by
their duly authorized officers as of the day and year first above
written.
|
Matrix
Capital Group
|
|
|
By: Xxxxx
X. Xxxxxx
|
By: Xxxxxxxxxxx
X. Xxxx
|
|
President
|
President
|
21
SCHEDULE
A
Accounting
Services Provided by Matrix Capital Group
|
t
|
Journalize
each Portfolio's investment, capital share and income and expense
activities.
|
|
t
|
Post
and verify investment buy/sell trade tickets when received from the
advisor or portfolio manager.
|
|
t
|
Maintain
individual ledgers for investment
securities.
|
|
t
|
Maintain
historical tax lots for each
security.
|
|
t
|
Reconcile
cash and investment balances of each Portfolio with the custodian, and
provide the advisor with the beginning cash balance available for
investment purposes.
|
|
t
|
Update
the cash availability throughout the day as required by the
advisor.
|
|
t
|
Post
to and prepare each Portfolio's Statement of Assets and Liabilities and
Statement of Operations.
|
|
t
|
Calculate
expenses payable pursuant to the Fund's various contractual
obligations.
|
|
t
|
Control
all disbursements from the Fund on behalf of each Portfolio and authorize
such disbursements upon instructions of the
Fund.
|
|
t
|
Calculate
capital gains and losses.
|
|
t
|
Determine
each Portfolio's net income.
|
|
t
|
At
the Portfolio's expense, obtain security market prices or if such market
prices are not readily available, then obtain such prices from services
approved by the advisor, and in either case calculate the market or fair
value of each Portfolio's
investments.
|
|
t
|
Where
applicable, calculate the amortized cost value of debt
instruments.
|
|
t
|
Transmit
or mail a copy of the portfolio valuations to the
advisor.
|
|
t
|
Compute
the net asset value of each Portfolio and each share class on a daily
basis each day or partial day that the New York Stock Exchange is open for
business o as otherwise required under the Fund’s prospectus or the 1940
Act.
|
22
|
t
|
Report
applicable net asset value and performance data to performance tracking
organizations.
|
|
t
|
Compute
each Portfolio's and each share class’ yields, total return, before and
after taxes and adjusted for sales load, expense ratios and
portfolio turnover rate.
|
|
t
|
Prepare
and monitor the expense accruals and notify Fund management of any
proposed adjustments.
|
|
t
|
Prepare
monthly security transactions
listings.
|
|
t
|
Prepare
monthly broker security transactions
summaries.
|
|
t
|
Supply
various Fund and Portfolio statistical data to the Fund and its investment
adviser as requested on an ongoing
basis.
|
|
t
|
Assist
in the preparation of support schedules necessary for completion of
Federal and state tax returns.
|
|
t
|
Assist
in the preparation and filing of the Fund's annual, semiannual or
quarterly reports with the SEC on Form N-SAR, N-CSR and form
N-Q.
|
|
t
|
Assist
in the preparation and filing of the Fund's annual and semiannual reports
to shareholders and proxy
statements.
|
|
t
|
Assist
with the preparation of amendments to the Fund's Registration Statements
on Form N-1A and other filings relating to the registration of
shares.
|
|
t
|
Monitor
each Portfolio's status as a regulated investment company under Subchapter
M of the Internal Revenue Code of 1986, as amended from time to time
("Code").
|
|
t
|
Determine
the amount of dividends and other distributions payable to shareholders as
necessary to, among other things; maintain the qualification as a
regulated investment company of each Portfolio of the Fund under the
Code.
|
|
t
|
Provide
other accounting services as may be agreed upon from time to time in
writing by the Fund and Matrix.
|
|
t
|
Monitor
portfolio transactions for compliance with portfolio restrictions of the
’40 Act and the Fund’s registration statement; and immediately notify the
Adviser of any violations.
|
23
Administrative
Services Provided by Matrix Capital Group
|
t
|
Provide
overall day-to-day Fund administrative management, including coordination
of investment advisor, custodian, auditor transfer agency, distribution
and pricing, printing and accounting
services.
|
|
t
|
Assist
in the preparation of filing of all Federal and State reports
including:
|
· Fund's
post-effective amendments under the Securities Act of 1933 and theInvestment
Company Act of 1940.
· Form
N-SAR - Semi-Annual Report for Registered Investment Companies.
· Form
N-CSR – Certified Shareholder Report.
· Form
N-Q – Quarterly Schedule of Portfolio Holdings
· Rule
17g-1 filing with the SEC regarding Fidelity Bond coverage.
· Form
24F-2 - Annual notice of securities sold pursuant to Rule 24f-2.
· Form
N-PX – Proxy Voting Report.
|
|
·
|
Ongoing
monitoring of State Blue Sky registrations and filings with applicable
states.
|
|
t
|
Prepare
and file such reports, applications and documents as may be necessary or
desirable to register the Fund's shares with the Federal and state
securities authorities, and monitor the sale of Fund shares for compliance
with Federal and state securities
laws.
|
|
t
|
Prepare
and file reports to shareholders, including the annual and semi-annual
report to shareholders; and coordinate mailing Prospectuses, notices,
proxy statements, proxies and other reports to
shareholders.
|
|
t
|
Assist
with layout and printing of shareholder communications, including
Prospectuses and reports to
shareholders.
|
|
t
|
Administer
contracts on behalf of the Fund with, among others, the Fund's investment
advisor, custodian, transfer agent/shareholder servicing agent,
distributor, and accounting services
agent.
|
24
|
t
|
Assist
fund’s legal counsel in the preparation for trustees/management meetings
including, coordinating the agenda, distribution of minutes, attendance
records and minute books.
|
|
t
|
Coordinate
shareholder meetings, including assisting Fund counsel in preparation of
proxy materials, preparation of minutes and tabulation of
results.
|
|
t
|
Monitor
and pay Fund bills, maintain Fund budget and report budget expenses and
variances to Fund management.
|
|
t
|
Monitor
the Fund's compliance with the investment restrictions and limitations
imposed by the 1940 Act and state Blue Sky laws and applicable regulations
thereunder, the fundamental and non-fundamental investment policies and
limitations set forth in the Fund's Prospectuses and Statement of
Additional Information, and the investment restrictions and limitations
necessary for each Portfolio of the Fund to qualify as a regulated
investment company under Subchapter M of the Internal Revenue Code of
1986, as amended, or any successor
statute.
|
|
t
|
Prepare
and distribute to appropriate parties notices announcing dividends and
other distributions to
shareholders.
|
|
t
|
Provide
other administrative services as may be agreed from time to time in
writing by the Fund or
Administrator.
|
25
Transfer
Agent, Shareholder Servicing Agent and Dividend Disbursing Agent Services
provided by Matrix Capital Group
|
t
|
Examine
and process new accounts, subsequent payments, liquidations, exchanges,
transfers, telephone transactions, check redemptions automatic
withdrawals, and wire order trades.
|
|
t
|
Reinvest
or pay dividends and make other
distributions.
|
|
t
|
Answer
investor and dealer telephone and/or written inquiries, except as
otherwise agreed by the Transfer Agent and the
Fund.
|
|
t
|
Process
and confirm address changes.
|
|
t
|
Process
standard account record changes as required, i.e. Dividend Codes,
etc.
|
|
t
|
Microfilm
and/or store source documents for transactions, such as account
applications and correspondence.
|
|
t
|
Perform
backup withholding for those accounts in accordance with Federal
regulations.
|
|
t
|
Solicit
missing taxpayer identification
numbers.
|
|
t
|
Provide
remote access inquiry to Fund records via Fund supplied hardware (fund
responsible for connection line and monthly
fee).
|
|
t
|
Maintain
the following shareholder information as required under federal securities
laws in such a manner as the Transfer Agent shall
determine:
|
· Name
and address, including zip code.
· Balance
of Shares.
· Number
of Shares, issuance date of each share outstanding and cancellation date of
each share no longer outstanding, if issued.
· Balance
of dollars available for redemption.
· Dividend
code (daily accrual, monthly reinvest, monthly cash or quarterly
cash).
· Type
of account code.
· Establishment
date indicating the date an account was opened, carrying forward
pre-conversion data as available.
· Original
establishment date for accounts opened by exchange.
· W-9
withholding status and periodic reporting.
26
· State
of residence code.
· Social
security or taxpayer identification number, and indication
of certification.
· Historical
transactions on the account for the most recent 18 months, or other period
as mutually agreed to from time to time.
· Indication
as to whether phone transaction can be accepted for this account.
Beneficial owner code, i.e. male, female, joint tenant, etc.
|
t
|
Provide
the following reports and
statements:
|
|
|
·
|
Prepare
daily journals for Fund reflecting all shares and dollar activity for the
previous day.
|
· Supply
information monthly for Fund's preparation of Blue
Sky reporting.
· Supply
monthly purchase, redemption and liquidation information foruse in Fund's N-SAR
report.
· Provide
monthly average daily balance reports for the Fund.
· Prepare
and mail copies of summary statements to dealers and investment
advisors.
· Mail
transaction confirmation statements daily to investors.
· Address
and mail four periodic financial reports (material must be adaptable to
Transfer Agent's mechanical equipment as reasonably specified by the
Transfer Agent).
· Mail
periodic statement to investors.
· Compute,
prepare and furnish all necessary reports to governmental authorities:
Forms 1099R, 1099DIV, 1099B, 1042 and 1042S.
· Enclose
various marketing material as designated by the Fund in statement mailings,
i.e. monthly and quarterly statements (materialmust be adaptable to mechanical
equipment as reasonably specified by the Transfer Agent).
|
t
|
Prepare
and mail confirmation statements to dealers
daily.
|
|
t
|
Prepare
certified list of stockholders for proxy
mailing.
|
|
t
|
Ensure
compliance with USA Patriot Act and Privacy
Regulations
|
|
t
|
On
going monitoring of Lost Shareholders and RPO
tracking
|
|
t
|
Provide
daily report of sales/redemption
activity
|
27
SCHEDULE B
Compensation
Schedule for Services Provided by Matrix Capital Group, Inc.
Fund Administration, Fund Accounting, and Transfer Agent
Services
|
Annual
Fee Per Fund
|
$15,000
PLUS an asset based fee that declines as the aggregate assets of the Fund
increase:
|
0.20%
of the Fund’s assets from $0 to $50,000,000
|
|
0.15%
of the Fund’s assets from $50,000,000 to $100,000,000
|
|
0.10%
of the Fund’s assets from $100,000,000 to
$200,000,000
|
0.05% of
the Fund’s assets from $200,000,000 and above
|
Compliance
Support Services
|
No charge for limited support services |
Plus
out-of-pocket expenses to include, but not limited to:
Wire
fees, bank service charges, printing, copying, postage, courier, account
statement/confirmations (including programming costs for specialized statements
and/or confirmation) Fund/SERV fee, price quotation service, record retention
fees, blue sky registration filing fees, shareholder web access fees,
registration fees, travel and other standard miscellaneous items, subject to a
schedule of such charges agreed to by the parties.
Current
schedule of out-of-pocket expenses is attached
28
SCHEDULE
C
Portfolios covered by this
Agreement:
Capital
Management Mid-Cap Fund
Capital
Management Small-Cap Fund
29
