MUTUAL FUND SERVICES AGREEMENT
Fund Administration Services
Fund Accounting Services
Transfer Agency Services
between
XXXXXXX FUNDS
and
UNIFIED FUND SERVICES, INC.
November 5, 2001
Exhibit A - Portfolio Listing
Exhibit B - Fund Administration Services Description
Exhibit C - Fund Accounting Services Description
Exhibit D - Transfer Agency Services Description
Exhibit E - Fees and Expenses
MUTUAL FUND SERVICES AGREEMENT
AGREEMENT (this "Agreement"), dated as of November 5, 2001, between the
Xxxxxxx Funds, a Delaware business trust (the "Fund"), and Unified Fund
Services, Inc., a Texas corporation ("Unified").
WITNESSTH:
WHEREAS, the Fund is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain Unified to provide certain transfer
agent, fund accounting and administration services with respect to the Fund, and
Unified is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
Section 1. Appointment. The Fund hereby appoints Unified to provide
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transfer agent, fund accounting and fund administration services for the Fund,
subject to the supervision of the Board of Trustees of the Fund (the "Board"),
for the period and on the terms set forth in this Agreement. Unified accepts
such appointment and agrees to furnish the services herein set forth in return
for the compensation as provided in Section 6 and Exhibit E to this Agreement.
The Fund will initially consist of the portfolios, funds and/or classes of
shares (each a "Portfolio"; collectively the "Portfolios") listed on Exhibit A.
The Fund shall notify Unified in writing of each additional Portfolio
established by the Fund. Each new Portfolio shall be subject to the provisions
of this Agreement, except to the extent that the provisions (including those
relating to the compensation and expenses payable by the Fund and its
Portfolios) may be modified with respect to each new Portfolio in writing by the
Fund and Unified at the time of the addition of the new Portfolio.
Section 2. Representations and Warranties of Unified. Unified
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represents and warrants to the Fund that:
(a) Unified is a corporation duly organized and existing under the
laws of the State of Texas;
(b) Unified is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement, and all
requisite corporate proceedings have been taken by Unified to authorize Unified
to enter into and perform this Agreement;
(c) Unified has, and will continue to have, access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(d) no legal or administrative proceedings have been instituted or
threatened against Unified that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) Unified's entrance into this Agreement will not cause a material
breach or be in material conflict with any other agreement or obligation of
Unified or any law or regulation applicable to Unified.
Section 3. Representations and Warranties of the Fund. The Fund
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represents and warrants to Unified that:
(a) the Fund is a business trust duly organized and existing under
the laws of the State of Delaware;
(b) the Fund is empowered under applicable laws and by its Declaration
of Trust and By-Laws to enter into and perform this Agreement, and the Fund has
taken all requisite proceedings to authorize the Fund to enter into and perform
this Agreement;
(c) the Fund is an investment company properly registered under the
1940 Act; a registration statement under the Securities Act of 1933, as amended
("1933 Act"), and the 1940 Act on Form N-lA has been filed and will be effective
and will remain effective during the term of this Agreement, and all necessary
filings under the laws of the states will have been made and will be current
during the term of this Agreement;
(d) no legal or administrative proceedings have been instituted or
threatened against the Fund that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) the Fund's entrance into this Agreement will not cause a material
breach or be in material conflict with any other agreement or obligation of the
Fund or any law or regulation applicable to it.
Section 4. Delivery of Documents. The Fund will promptly furnish to
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Unified such copies, properly certified or authenticated, of contracts,
documents and other related information that Unified may request or requires to
properly discharge its duties. Such documents may include, but are not limited
to, the following:
(a) resolutions of the Board authorizing the appointment of Unified to
provide certain transfer agency, fund accounting and administration services to
the Fund and approving this Agreement;
(b) the Fund's Declaration of Trust;
(c) the Fund's By-Laws;
(d) the Fund's Notification of Registration on Form N-8A under the 1940
Act as filed with the Securities and Exchange Commission ("SEC");
(e) the Fund's registration statement including exhibits, as amended,
on Form N-1A (the "Registration Statement") under the 1933 Act and the 1940 Act,
as filed with the SEC;
(f) copies of the Management Agreement between the Fund and its
investment adviser (the "Advisory Agreement");
(g) opinions of counsel and auditors reports;
(h) the Fund's Prospectus and Statement of Additional Information
relating to all Portfolios and all amendments and supplements thereto (such
Prospectus and Statement of Additional Information and supplements thereto, as
presently in effect and as from time to time hereafter amended and supplemented,
herein called the "Prospectuses"); and
(i) such other agreements as the Fund may enter into from time to time
including securities lending agreements, futures and commodities account
agreements, brokerage agreements and options agreements.
Section 5. Services Provided by Unified.
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(a) Unified will provide the following services subject to the control,
direction and supervision of the Board and in compliance with the objectives,
policies and limitations set forth in the Fund's Registration Statement,
Declaration of Trust and By-Laws; applicable laws and regulations; and all
resolutions and policies implemented by the Board:
(i) Fund Administration, as described on Exhibit B to this
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Agreement.
(ii) Fund Accounting, as described on Exhibit C to this
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Agreement.
(iii) Transfer Agency, as described on Exhibit D to this
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Agreement.
(iv) Dividend Disbursing. Unified will serve as the Fund's
dividend disbursing agent. Unified will prepare and mail checks, place
wire transfers of credit income and capital gain payments to
shareholders. The Fund will advise Unified in advance of the
declaration of any dividend or distribution and the record and payable
date thereof. Unified will, on or before the payment date of any such
dividend or distribution, notify the Fund's Custodian of the estimated
amount required to pay any portion of such dividend or distribution
payable in cash, and on or before the payment date of such
distribution, the Fund will instruct its Custodian to make available to
Unified sufficient funds for the cash amount to be paid out. If a
shareholder is entitled to receive additional shares by virtue of any
such distribution or dividend, appropriate credits will be made to each
shareholder's account and/or certificates delivered where requested. A
shareholder not receiving certificates will receive a confirmation from
Unified indicating the number of shares credited to his/her account.
(b) Unified will also:
(i) provide office facilities with respect to the provision of
the services contemplated herein (which may be in the offices of
Unified or a corporate affiliate of Unified);
(ii) provide or otherwise obtain personnel sufficient, in
Unified's sole discretion, for provision of the services contemplated
herein;
(iii) furnish equipment and other materials, which Unified, in
its sole discretion, believes are necessary or desirable for provision
of the services contemplated herein; and
(iv) keep records relating to the services provided hereunder in
such form and manner as set forth on Exhibits B, C and D and as Unified
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may otherwise deem appropriate or advisable, all in accordance with the
1940 Act. To the extent required by Section 31 of the 1940 Act and the
rules thereunder, Unified agrees that all such records prepared or
maintained by Unified relating to the services provided hereunder are
the property of the Fund and will be preserved for the periods
prescribed under Rule 31a-2 under the 1940 Act, maintained at the
Fund's expense, and made available to the SEC for inspection in
accordance with such Section and rules. Subject to the provisions of
Section 9 hereof, Unified further agrees to surrender promptly to the
Fund upon its request and cease to retain in its records and files
those records and documents created and maintained by Unified pursuant
to this Agreement.
Section 6. Fees: Expenses: Expense Reimbursement.
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(a) As compensation for the services rendered to the Fund pursuant to
this Agreement the Fund shall pay Unified on a monthly basis those fees
determined as set forth on Exhibit E to this Agreement. Such fees are to be
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billed monthly and shall be due and payable upon receipt of the invoice. Upon
any termination of this Agreement and before the end of any month, the fee for
the part of the month before such termination shall be equal to the fee normally
due for the full monthly period and shall be payable, without setoff, upon the
date of termination of this Agreement.
(b) For the purpose of determining fees calculated as a function of a
Portfolio's net assets, the value of the Portfolio's net assets shall be
computed as required by the Prospectus, generally accepted accounting principles
and resolutions of the Board.
(c) Unified will from time to time employ or associate with such person
or persons as may be appropriate to assist Unified in the performance of this
Agreement. Such person or persons may be officers and employees who are employed
or designated as officers by both Unified and the Fund. Except as otherwise
expressly provided in this Agreement, the compensation of such person or persons
for such employment shall be paid by Unified and no obligation will be incurred
by or on behalf of the Fund in such respect.
(d) Unified will bear all of its own expenses in connection with the
performance of the services under this Agreement, except as otherwise expressly
provided in this Agreement. The Fund agrees to promptly reimburse Unified for
any equipment and supplies specially ordered by or for the Fund through Unified
and for any other expenses not contemplated by this Agreement that Unified may
incur on the Fund's behalf, at the Fund's request or as consented to by the
Fund. Such other expenses to be incurred in the operation of the Fund and to be
borne by the Fund, include, but are not limited to: taxes; interest; brokerage
fees and commissions; salaries and fees of officers and directors who are not
officers, directors, shareholders or employees of Unified or Unified's
affiliates; SEC and state Blue Sky registration and qualification fees, levies,
fines and other charges; advisory fees; charges and expenses of custodians;
insurance premiums including fidelity bond premiums; auditing and legal
expenses; costs of maintenance of corporate existence; expenses of typesetting
and printing of prospectuses and for distribution to current shareholders of the
Fund; expenses of printing and production cost of shareholders' reports and
proxy statements and materials; costs and expense of Fund stationery and forms;
costs and expenses of special telephone and data lines and devices; costs
associated with corporate, shareholder and Board meetings; and any extraordinary
expenses and other customary Fund expenses. In addition, Unified may utilize one
or more independent pricing services, approved from time to time by the Board,
to obtain securities prices and to act as backup to the primary pricing
services, in connection with determining the net asset values of the Fund, and
the Fund will reimburse Unified for the Fund's share of the cost of such
services based upon the actual usage, or a pro-rata estimate of the use, of the
services for the benefit of the Fund.
(e) The Fund may request additional services, additional processing or
special reports. Such requests may be provided by Unified at additional charges.
In this event, the Fund shall submit such requests in writing together with such
specifications as may be reasonably required by Unified, and Unified shall
respond to such requests in the form of a price quotation. The Fund's written
acceptance of the quotation must be received prior to implementation of such
request. Additional services will be charged at Unified's standard rates.
(f) All fees, out-of-pocket expenses or additional charges of Unified
shall be billed on a monthly basis and shall be due and payable upon receipt of
the invoice. No fees, out-of-pocket expenses or other charges set forth in this
Agreement shall be subject to setoff.
Unified will render, after the close of each month in which services
have been furnished, a statement reflecting all of the charges for such month.
Charges remaining unpaid after thirty (30) days shall bear interest in finance
charges equivalent to, in the aggregate, the Prime Rate (as publicly announced
by Firstar Bank, N.A., from time to time) plus 2.00% per year and all costs and
expenses of effecting collection of any such sums, including reasonable
attorney's fees, shall be paid by the Fund to Unified.
In the event that the Fund is more than sixty (60) 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 Unified. The Fund must notify Unified in writing of any contested
amounts within thirty (30) days of receipt of a billing for such amounts.
Disputed amounts are not due and payable while they are being investigated.
Section 7. Proprietary and Confidential Information. Unified agrees on
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behalf of itself and its employees to treat confidentially and as proprietary
information of the Fund, all records and other information relative to the
Fund's prior, present or potential shareholders, and to not use such records and
information for any purpose other than performance of Unified's responsibilities
and duties hereunder. Unified may seek a waiver of such confidentiality
provisions by furnishing reasonable prior notice to the Fund and obtaining
approval in writing from the Fund, which approval shall not be unreasonably
withheld and may not be withheld where the service agent may be exposed to civil
or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities. Waivers of
confidentiality are automatically effective without further action by Unified
with respect to Internal Revenue Service levies, subpoenas and similar actions,
or with respect to any request by the Fund.
Section 8. Duties, Responsibilities and Limitations of Liability.
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(a) In the performance of its duties hereunder, Unified shall be
obligated to exercise due care and diligence, and to act in good faith in
performing the services provided for under this Agreement. In performing its
services hereunder, Unified shall be entitled to rely on any oral or written
instructions, advice, notices or other communications, information, records and
documents (collectively, "Fund Information") from the Fund, its custodian,
officers and trustees, investors, agents, legal counsel, auditor and other
service providers (excluding in each case, Unified and its affiliates) (the
Fund, collectively with such persons other than Unified and its affiliates,
"Fund Representatives") which Unified reasonably believes to be genuine, valid
and authorized. Unified also shall be entitled to consult with and rely on the
advice and opinions of the Fund's auditor and of outside legal counsel retained
by the Fund, as may be reasonably necessary or appropriate in Unified's sole
judgment, as well as all other Fund Representatives, in each case at the expense
of the Fund.
(b) Neither Unified nor its officers, directors, partners, employees,
shareholders or agents (the "Unified Parties") shall be liable for any error of
judgment or mistake of law or for any losses, damages, costs, reasonable
attorneys' fees and expenses, payments, expenses and liabilities of any nature
or kind (collectively, "Damages") suffered by the Fund or its shareholders in
connection with any matter to which this Agreement relates or in connection with
any action (or omission) by any of the Unified Parties in connection with this
Agreement. This complete release from all liability shall not apply to any
action (or omission) of any Unified Party to the extent such action (or
omission) is caused by or results from the negligence or willful misfeasance of
any Unified Party. Any person, even though also an officer, director, partner,
employee or agent of Unified, who may be or become an officer, director,
partner, employee or agent of the Fund, shall be deemed when rendering services
to the Fund or acting on any business of the Fund (other than services or
business in connection with Unified's duties hereunder) to be rendering such
services to or acting solely for the Fund and not as an officer, director,
partner, employee or agent or person under the control or direction of Unified
even though paid by Unified.
(c) The Unified Parties shall not be responsible for, and the Fund
shall indemnify and hold the Unified Parties harmless from and against, any and
all Damages arising out of or in connection with:
(i) any action (or omission) of any Unified Party taken pursuant
to this Agreement, except to the extent (and only to the extent) any
such action (or omission) is caused by or results from the negligence
or willful misfeasance of any Unified Party; provided, however, that
every action (or omission) taken in good faith by any of the Unified
Parties in connection with or in reliance upon matters described in
clauses (ii) through (x) below shall be deemed in its entirety to be an
action taken pursuant to this Agreement that was not caused by and did
not result from the negligence or willful misfeasance of any Unified
Party;
(ii) the reliance on or use by the Unified Parties of Fund
Information which is furnished to any of the Unified Parties by or on
behalf of any of the Fund Representatives;
(iii) any delays, inaccuracies, errors or omissions in or
arising out of or attributable to Fund Information which is furnished
to any of the Unified Parties by or on behalf of any of the Fund
Representatives or to the untimely provision to Unified of such Fund
Information;
(iv) the Fund's refusal or failure to comply with the terms of
this Agreement or the Fund's lack of good faith, or its actions (or
omissions) involving negligence or willful misfeasance;
(v) the breach of any representation or warranty of the Fund
hereunder;
(vi) the taping or other form of recording of telephone
conversations or other forms of electronic communications with
investors and shareholders, or reliance by Unified on telephone or
other electronic instructions of any person acting on behalf of a
shareholder or shareholder account for which telephone or other
electronic services have been authorized;
(vii) the reliance on or the carrying out by Unified or its
officers or agents of any proper instructions reasonably believed to be
duly authorized, or requests of the Fund or recognition by Unified of
any share certificates which are reasonably believed to bear the proper
signatures of the officers of the Fund and the proper countersignature
of any transfer agent or registrar of the Fund;
(viii) any delays, inaccuracy, errors or omissions in or
arising out of or attributable to data or information provided to
Unified by data and pricing services;
(ix) the offer or sale of shares by the Fund in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state, or in violation of any
stop order or other determination or ruling by any federal agency or
any state agency with respect to the offer or sale of such shares in
such state (1) resulting from activities, actions or omissions by Fund
Representatives, or (2) existing or arising out of activities, actions
or omissions by or on behalf of the Fund Representatives prior to the
earlier of (x) the effective date of this Agreement and (y) the
effective date of an agreement between the parties hereto with respect
to the subject matter hereof that was in effect immediately prior to
the effective date of this Agreement ; and
(x) the non-compliance by the Fund, its investment adviser
and/or its distributor with applicable securities, tax, commodities and
other laws, rules and regulations.
(d) In any case in which the Fund may be asked to indemnify or hold a
Unified Party harmless, the Unified Party will notify the Fund promptly after
identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party and shall
keep the Fund advised with respect to all developments concerning such
situation; provided, however, that the failure to do so shall not prevent
recovery by the Unified Party unless such failure causes actual material harm to
the Fund. The Fund shall have the option to defend the Unified Party against any
claim which may be the subject of this indemnification, and, in the event that
the Fund so elects, such defense shall be conducted by counsel chosen by the
Fund and satisfactory to the Unified Party, and thereupon the Fund shall take
over complete defense of the claim and the Unified Party shall sustain no
further legal or other expenses in respect of such claim. The Unified Party will
not confess any claim or make any compromise in any case in which the Fund Party
will be asked to provide indemnification, except with the Fund's prior written
consent.
(e) Each of the Unified Parties, on the one hand, and the Fund, on the
other hand, shall have the duty to mitigate Damages for which the other party
may become responsible. This duty shall include giving such other party every
reasonable opportunity to correct any error or other circumstance that caused,
resulted in or increased such Damages, and every reasonable opportunity to
assist in such mitigation. Notwithstanding any other provision of this
Agreement, as to any matter where any portion of Damages may be, in whole or
part, caused, increased or determined by the manner in which an item or amount
is treated or reported for accounting purposes or the manner in which an item or
amount is treated or reported to any governmental agency or taxing authority, no
recovery for any amount of Damages in connection with such matter shall be had
by any party to (or beneficiary of) this Agreement if an alternative manner of
treatment or reporting is or was possible and such alternative manner of
treatment or reporting is or was, in the written opinion of any reputable
practitioner of appropriate expertise, more likely than not the correct
treatment (such opinion to be rendered in customary form, subject to customary
assumptions and representations); provided however, that the provisions of this
sentence shall not apply and shall be disregarded in respect of a matter if and
only if (i) the person seeking or who may have sought to recover Damages (the
"Damaged Party") provided the party against whom recovery is or may have been
sought (the "Potentially Responsible Party") written notice bearing the bold
heading "Notice of Potential Claim for Damages," identifying this Agreement, and
describing the nature of the potential claim and the subject matter of the
required opinion, (ii) such notice is sent by certified mail and actually
delivered to the Potentially Responsible Party at least sixty (60) days prior to
the first time such item or amount is to be accounted for or reported, (iii) the
Damaged Party fully and promptly cooperates in the attempts of the Potentially
Responsible Party to obtain such an opinion, and (iv) no such opinion is
obtained prior to such accounting or reporting. If an opinion described in the
preceding sentence is obtained by the Potentially Responsible Party, the Damaged
Party shall bear the cost of such opinion. The parties acknowledge that the
purpose of the preceding two sentences is to preclude the recovery of any and
all Damages in connection with any matter where the proper accounting, tax or
other treatment of such matter is susceptible to differing opinions among
reputable practitioners of appropriate expertise, and that the effect of such
sentences is intended to ensure that such matters are treated and reported in a
legitimate manner that gives rise to the smallest amount of Damages.
(f) THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, UNIFIED DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM
OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES
PROVIDED UNDER THIS AGREEMENT. UNIFIED DISCLAIMS ANY WARRANTY OF TITLE OR
NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT. THE PARTIES
ACKNOWLEDGE THAT THE ALLOCATION OF RISKS (BOTH INSURABLE RISKS AND OTHER RISKS)
UNDER THIS AGREEMENT HAS BEEN TAKEN INTO ACCOUNT IN THE PRICING STRUCTURE OF THE
SERVICES AND GOODS PROVIDED AND IS FAIR TO ALL PARTIES, AND THE PARTIES FURTHER
ACKNOWLEDGE THAT DIFFERENT ALLOCATIONS OF RISK WERE AVAILABLE UNDER DIFFERENT
PRICE STRUCTURES. The RIGHTS AND obligations of the parties (AND INTENDED
BENEFICIARIES) under this Section 8 shall survive the termination of this
Agreement.
Section 9. Term. This Agreement shall become effective on the date
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first herein above written. This Agreement may be modified or amended from time
to time by mutual agreement between the parties hereto. This Agreement shall
continue in effect unless terminated by either party on at least ninety (90)
days' prior written notice. With the sole exception of the 30-day termination
described in Section 6(f), no other event (including any purported or actual
breach) shall result in termination of this Agreement. Upon termination of this
Agreement, the Fund shall pay to Unified all fees, compensation and other
charges as shall be accrued or due under the terms of this Agreement as of the
date of termination or the date that the provision of services ceases, whichever
is sooner.
Should the Fund exercise its right to terminate this Agreement, the
Fund agrees to pay a termination/conversion fee, simultaneous with the transfer
of all Fund records to the successor mutual fund service provider(s), in an
amount equal to the total compensation under this agreement for the 90-day
period immediately preceding the termination notice date. Such fee shall not be
subject to any setoffs of any nature. In addition, the Fund agrees to pay for
all conversion tape set-up fees, test conversion preparation and processing fees
and final conversion fees, none of which shall be subject to any setoff.
Such compensation to Unified shall be for the expenses incurred in
connection with the retrieval, compilation and movement of books, records and
materials relative to the deconversion or conversion of Fund records to the
successor mutual fund service provider as directed by the Fund. Notwithstanding
the foregoing, any amount owed by the Fund to Unified prior to the
termination/conversion shall still be due and payable under the terms of this
Agreement. No such compensation shall be due to Unified if Unified terminates
this Agreement for reasons other than a default by the Fund.
Upon the termination of the Agreement for any reason and payment of the
fees set forth in this Agreement without setoff, Unified agrees to provide the
Fund with the complete transfer agency, fund accounting and administration
records in its possession and to assist the Fund in the orderly transfer of
accounts and records. Without limiting the generality of the foregoing, subject
to the preceding sentence, Unified agrees upon termination of this Agreement:
(a) to deliver to the successor mutual fund service provider(s),
computer tapes containing the Fund's accounts and records together with such
record layouts and additional information as may be necessary to enable the
successor mutual fund service provider(s) to utilize the information therein;
(b) to cooperate with the successor mutual fund service provider(s) in
the interpretation of the Fund's account and records;
(c) to forward all shareholder calls, mail and correspondence to the
new mutual fund service provider(s) upon de-conversion; and
(d) to act in good faith, to make the conversion as smooth as possible
for the successor mutual fund service provider(s) and the Fund.
Section 10. Notices. Any notice required or permitted hereunder shall
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be in writing and shall be deemed to have been given when delivered in person or
by certified mail, return receipt requested, to the parties at the following
address (or such other address as a party may specify by notice to the other):
(a) If to the Fund, to:
Xxxxxxx Funds
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxx 00000
Attention: President
(b) If to Unified, to:
Unified Fund Services, Inc.
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
Notice shall be effective upon receipt if by mail, on the date of
personal delivery (by private messenger, courier service or otherwise) or upon
confirmed receipt of telex or facsimile, whichever occurs first.
Section 11. Assignability. This Agreement may not be assigned or
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otherwise transferred by either party hereto, without the prior written consent
of the other party, which consent shall not be unreasonably withheld; provided,
however, that Unified may, in its sole discretion and upon notice to the Fund,
assign all its right, title and interest in this Agreement to an affiliate,
parent or subsidiary, or to the purchaser of substantially all of its business.
Unified may, in its sole discretion, engage subcontractors to perform any of the
obligations contained in this Agreement to be performed by Unified provided that
Unified shall remain responsible to the Fund for the actions and omissions of
such subcontractors as if Unified had provided such services to the Fund.
Section 12. Intended Beneficiaries. This Agreement shall be binding
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upon the Fund, Unified and their respective successors and assigns, and shall
inure to the benefit of the Fund, Unified, the Unified Parties, their respective
heirs, successors and assigns. Nothing herein expressed or implied is intended
to confer upon any person not named or described in the preceding sentence any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Section 13. Arbitration. Notwithstanding any provision of this
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Agreement to the contrary, any claim or controversy arising out of or in any
manner relating to this Agreement, or breach hereof, which cannot be resolved
between the parties themselves, shall be settled by arbitration administered by
the American Arbitration Association in Indianapolis, Indiana in accordance with
its applicable rules. The arbitration panel shall consist of three arbitrators
selected from list(s) of candidates provided by the American Arbitration
Association. One party to the dispute shall be entitled to appoint one
arbitrator and the other party to the dispute shall be entitled to appoint one
arbitrator. The third arbitrator, who shall be an attorney in good standing who
is licensed to practice law in the State of Indiana and devotes more than
one-half of his or her professional time to the practice of securities law,
shall be chosen by the two arbitrators so appointed. If any party fails to
appoint its arbitrator or to notify the other party of such appointment within
thirty (30) days after the institution of arbitration proceedings, such other
party may request the President of the American Arbitration Association to
appoint such arbitrator on behalf of the party who so failed. If the two
arbitrators appointed by (or on behalf of) the parties fail to appoint such
third arbitrator, or fail to notify the parties to such proceedings of such
appointment, within thirty (30) days after the appointment of the later of such
two arbitrators to be appointed by (or on behalf of) the parties, any party may
request such President to appoint such third arbitrator. The President of the
American Arbitration Association shall appoint such arbitrator or such third
arbitrator, as the case may be, within thirty (30) days after the making of such
request. No awards of punitive damages shall be made. The parties hereby agree
that judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction. The parties acknowledge and agree that the
performance of the obligations under this Agreement necessitates the use of
instrumentalities of interstate commerce and, notwithstanding other general
choice of law provisions in this Agreement, the parties agree that the Federal
Arbitration Act shall govern and control with respect to the provisions of this
Section 13.
Section 14. Waiver. The failure of a party to insist upon strict
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adherence to any term of this Agreement on any occasion shall not be considered
a waiver nor shall it deprive such party of the right thereafter to insist upon
strict adherence to that term or any term of this Agreement. Any waiver must be
in writing signed by the waiving party.
Section 15. Force Majeure. Unified shall not be responsible or liable
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for any failure or delay in performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by circumstances beyond its
control, including without limitation, acts of God, earthquake, fires, floods,
wars, acts of civil or military authorities, governmental actions,
nonperformance by a third party or any similar cause beyond the reasonable
control of Unified, failures or fluctuations in telecommunications or other
equipment, nor shall any such failure or delay give the Fund the right to
terminate this Agreement.
Section 16. Use of Name. The Fund and Unified agree not to use the
------------
other's name nor the names of such other's affiliates, designees, or assignees
in any prospectus, sales literature, or other printed material written in a
manner not previously, expressly approved in writing by the other or such
other's affiliates, designees, or assignees except where required by the SEC or
any state agency responsible for securities regulation.
Section 17. Amendments. This Agreement may be modified or amended from
----------
time to time by mutual written agreement between the parties. No provision of
this Agreement may be changed, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
Section 18. Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law to any person or circumstance, such provision
shall be ineffective only to the extent of such prohibition or invalidity. In
the event that any one or more of the provisions contained in this Agreement or
any application thereof shall be invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining provisions of
this Agreement and any other application thereof shall not in any way be
affected or impaired thereby.
Section 19. Headings; Pronouns; Certain Phrases. The headings in the
-----------------------------------
sections and subsections of this Agreement are inserted for convenience only and
in no way alter, amend, modify, limit or restrict the contractual obligations of
the parties. Wherever used in this Agreement, masculine, feminine and neuter
pronouns shall be deemed to include the other genders. Singular pronouns and
nouns (including defined terms) shall be deemed to include the plural (and vice
versa) as the context may require, but shall have no effect upon the nature of a
party's liability as joint or several. Wherever used in this Agreement, the
phrase "in connection with" shall be given the broadest possible interpretation,
and shall include matters (without limitation) that are in whole or part caused
by, relate to, arise out of, are attributable to, or result from, the referent
or object of such phrase.
Section 20. No Strict Construction. The language used in this Agreement
----------------------
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
Section 21. Entire Agreement; Survival; Governing Law. This Agreement
-----------------------------------------
embodies the entire understanding between the parties with respect to the
subject matter hereof, and supersedes all prior negotiations and agreements
between the parties relating to the subject matter hereof; provided, however,
that if an agreement between the parties hereto with respect to the subject
matter hereof was in effect immediately prior to the effective date of this
Agreement (the "Predecessor Agreement"), then the provisions contained in
Section 8 of the Predecessor Agreement (relating to indemnification and other
risk allocation matters) shall, in respect of all periods prior to the effective
date of this Agreement ("Prior Periods"), survive and remain in effect to the
same extent and in the same manner as such provisions would have applied in
respect of Prior Periods had the Predecessor Agreement not been superseded by
this Agreement or otherwise terminated or amended or modified in any manner at
any time. The provisions of Section 6 through 9 and Sections 13 through 21,
inclusive, shall survive any termination of this Agreement. This Agreement shall
be governed by and construed and interpreted according to the internal laws of
the State of Indiana, without reference to conflict of law principles.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Mutual Fund
Services Agreement to be signed by their respective duly authorized officers as
of the day and year first above written.
XXXXXXX FUNDS
By:______/s/______________________ Date ______11/14/01________
Print Name: __Theodore Toso________
Title: ____President_______________
Attest: ___/s/_____________________
UNIFIED FUND SERVICES, INC.
By: ____/s/_________________________ Date___11/14/01___________
Print Name: __David A. Bogaert______
Title: __Managing Director & C.E.O._____
By: __/s/_______________________________ Date ___11/14/01__________
Print Name:__Linda A. Lawson____________
Title: ___Sr. Vice President, C.O.O.____
Attest: _________/s/____________________
EXHIBIT A
to
Mutual Fund Services Agreement
List of Portfolios
------------------
Xxxxxxx Growth Fund
EXHIBIT B
to
Mutual Fund Services Agreement
General Description of Fund Administration Services
---------------------------------------------------
I. Financial and Tax Reporting
A. Prepare agreed upon management reports and Board of Trustees materials
such as unaudited financial statements, distribution summaries, and
deviations of xxxx-to-market valuation and the amortized cost for
money market funds.
B. Calculate and Report Fund performance to outside services as directed
by fund management.
C. Prepare and file Fund's Form N-SAR with the SEC.
D. Prepare and coordinate the printing of fund's Semiannual and Annual
Reports to Shareholders.
E. In conjunction with transfer agent, notify shareholders as to what
portion, if any, of the distributions made by the Fund's during the
prior fiscal year were exempt-interest dividends under Section
852(b)(5)(A) of the Code.
F. Provide financial information for Fund proxy statements and
Prospectuses.
II. Portfolio Compliance
A. Assist with monitoring each portfolio's compliance with investment
restrictions (e.g., issuer or industry diversification, etc.) listed in
the current Prospectus and Statement of Additional Information.
B. Assist with monitoring each portfolio's compliance with the
requirements of Section 851 of the Code for qualification as a RIC
(i.e., 90% Income, and Diversification Tests).
C. Assist with monitoring investment manager's compliance with Board
directives such as "Approved Issuers Listings for Repurchase
Agreements", Rule 17a-7, and Rule 12d-3 procedures.
D. Administer compliance by the fund's trustees, officers and "access
persons" under the terms of the fund's Code of Ethics and SEC
regulations.
III. Regulatory Affairs and Corporate Governance
A. Assist fund counsel in the preparation and filing of post-effective
amendments to the fund's registration statement on Form N-lA and
supplements as needed.
B. Administer shareholder meetings, and assist fund counsel in the
preparation and filing of proxy materials.
C. Prepare and file Rule 24f-2 notices.
D. Prepare and file all state notifications of intent to sell the fund's
securities including annual renewals, adding new portfolios, preparing
and filing sales reports, filing copies of the registration statement
and final prospectus and statement of additional information, and
increasing registered amounts of securities in individual states.
E. Prepare Board materials for all Board meetings.
F. Assist with the review and monitoring of fidelity bond and errors and
omissions insurance coverage and make any related regulatory filings.
G. Prepare and update documents such as charter document, By-Laws, foreign
qualification filings.
H. Assist in identifying and monitoring pertinent regulatory and
legislative developments which may affect the fund and, in response to
the results of such monitoring, coordinate and provide support to the
fund and the fund's investment adviser with respect to those
developments and results, including support with respect to routine
regulatory examinations or investigations of the fund, and with
respect to such matters, to work in conjunction with outside counsel,
auditors and other professional organizations engaged by the fund.
I. File copies of financial reports to shareholders with the SEC under
Rule 30b2-1.
IV. General Administration
A. Obtain and maintain Employer Identification Number, CUSIP numbers and
Tickers.
B. Coordinate all communications and data collection with regard to any
regulatory examinations and yearly audits by independent accountants.
C. Establish and monitor expense budgets and accruals.
EXHIBIT C
to
Mutual Fund Services Agreement
General Description of Fund Accounting Services
-----------------------------------------------
I. General Description
Unified shall provide the following accounting services to the fund:
A. Maintain the books and records and accounting controls for the fund's
assets, including records of all securities transactions and payments
of fund expenses.
B. Calculate each Portfolio's net asset value in accordance with the
Prospectus and (once the Portfolio meets eligibility requirements)
transmit to NASDAQ and to such other entities as directed by the fund.
C. Provide the Administrator with the requested reports and information
deemed necessary to calculate dividend and capital gain distributions
in accordance with distribution policies detailed in the fund's
prospectus. Assist, if requested, the fund management in making final
determinations of distribution amounts.
D. Assist the fund's public accountants or other professionals in the
preparation and filing of the fund's Federal tax return on Form
1120-RIC along with all state and local tax returns where applicable.
Assist in the preparation and filing of the Federal Excise Tax Return
(Form 8613).
E. Account for dividends, interest and corporate actions received by the
fund.
F. Assist the Administrator in the preparation of Fund expense projections
and establishing accruals.
G. Produce transaction data, financial reports and such other periodic and
special reports as the Board may reasonably request.
H. Liaison with the fund's independent auditors.
I. Monitor and administer arrangements with the fund's custodian and
depository banks.
EXHIBIT D
to
Mutual Fund Services Agreement
General Description of Transfer Agency Services
-----------------------------------------------
The following is a general description of the transfer agency services Unified
shall provide to a mutual fund.
Systems: Utilizing PowerAgent by Envision Financial Systems, Windows NT Servers
-------
and Microsoft SQL Databases, we offer a robust yet open architecture for
shareholder data.
Interactive Voice Response: Provides funds with the opportunity to offer their
--------------------------
shareholders 24 hour, 7 day a week access to their account information,
accessing the system either via telephone or computer.
Shareholder Services: Shareholder telephone calls can be answered by Unified's
--------------------
shareholder services department through 800 numbers that are unique to each fund
family. Phone volumes and response times are continually monitored for quality
assurance.
Shareholder Recordkeeping: Maintains complete shareholder records for each fund
-------------------------
including the following: (i) name, address and tax identification number; (ii)
number of shares held; (iii) historical information including dividends paid and
individual purchases and redemptions; and (iv) any systematic purchase or
redemption instructions and correspondence relating to the current maintenance
of the account.
Purchase and Redemption Orders: Unified will process all purchase and redemption
------------------------------
orders of a fund's shareholders in accordance with the fund's current
prospectus. Confirmation statements are produced for each transaction and
promptly mailed to shareholders. Daily transaction reports and share proofs are
made available to all necessary parties via electronic medium.
Telephone Orders: Process redemption, exchange and transfer requests upon
----------------
telephone instructions from qualified shareholders. Unified will redeem and/or
transfer fund shares from any account for which such services have been properly
authorized.
Shareholder Communications and Meetings: Mail all necessary communications by a
---------------------------------------
fund to its shareholders. For proxies, Unified will handle mailing of proxy
materials, tabulation of proxy cards, and provide periodic reports to the fund
on the progress of the tabulation.
Shareholder Correspondence: Acknowledge all correspondence from shareholders
--------------------------
relating to their share accounts and undertake such other shareholder
correspondence as may from time to time be mutually agreed upon.
Asset Allocation Program Support: Provide rebalancing, asset allocation models
--------------------------------
and performance measurement as an optional and additional transfer agency
service, for certain types of asset allocation and/or wrap programs.
EXHIBIT E
to
Mutual Fund Services Agreement
TRANSFER AGENCY FEE SCHEDULE
The prices contained herein are effective for twelve months from the
execution date of the Transfer Agency contract.
I Conversion Fee: Manual conversion/new fund establishment-fee not to exceed
------------------ $1,500 per portfolio. Electronic conversions - $1.50 per
shareholder account with a $4,000 minimum fee.
II Standard Base Fee for Standard Base Services
------------------------------------------------
The Base Fee(1) is $18.00 for money market funds and $15.00 for equity/bond
funds per active Shareholder Account per year with a minimum fee of
$15,0002 per initial portfolio and/or share class per year plus $9,0002 per
year for each additional share class. An Active Shareholder Account is any
Shareholder Account existing on Transfer Agent's computerized files with a
non-zero Share balance. There is a $.50 per account charge for any account
with a zero share balance for the current month, as determined on the last
day of each month. The base fee will be billed on a monthly basis.
1The Base Fee does not include: forms design and printing, statement
production, envelope design and printing, postage and handling,
shipping, statement microfiche copies and 800 number access to Unified's
shareholder services group.
2 Discount based on average net assets per portfolio and/or share class
per month:
$0 - 2 Million 30%
$2 - 5 Million 20%
$5 Plus Million 0%
Unified will provide lost account search services in connection of SEC
Rules 17Ad-17 and 17a-24 at a cost of $2.50 per account searched. These
"Electronic Data Search Services" will be performed on a semi-annual basis.
This service will apply to only Active Shareholder Accounts maintained on
the transfer agency system coded as RPO accounts.
In addition to the above fees, there will be a $200.00 per day minimum
fee/rerun charge when the nightly processing has to be repeated due to
incorrect NAV or dividend information received from the Portfolio Pricing
Agent due to incorrect or untimely information provided by an Advisor or
its Agent.
III Standard Services Provided
-------------------------------
-Open new accounts
-Maintain Shareholder accounts
Including:
-Maintain certificate records
-Change addresses
-Prepare daily reports on number of Shares, accounts
-Prepare Shareholder federal tax information
-Withhold taxes on U.S. resident and non-resident alien accounts
-Reply to Shareholder calls and correspondence other than that for Fund
information and related inquiries
-Process purchase of Shares
-Issue/Cancel certificates (Excessive use may be subject to additional
charges)
-Process partial and complete redemptions
-Process regular and legal transfer of accounts
-Mail semi-annual and annual reports
-Process dividends and distributions
-Prepare Shareholder meeting lists
-Process one proxy per year per fund. Tabulation is limited to three.
-Receive and tabulate proxies
-Confirm all transactions as provided by the terms of each Shareholder's
account
-Provide a system which will enable Fund to monitor the total number of
Shares sold in each state. System has capability to halt sales and warn
of potential oversell. (Blue Sky Reports)
-Determine/Identify lost Shareholder accounts
IV Standard Reports Available
------------------------------
-12b-1 Disbursement Report -Holdings by Account Type
-12b-1 Disbursement Summary -Posting Details
-Dealer Commission Report -Posting Summary
-Dealer Commission Summary Report -Settlement Summary
-Exchange Activity Report -Tax Register
-Fees Paid Summary Report -Transactions Journal
-Fund Accrual Details
V NSCC Interfaces
------------------
-Fund/Serv and/or Networking set-up $1,000
-Fund/Serv processing $250 per month
-Networking processing $250 per month
-Fund/Serv transactions $0.35 per trade
-Direct Networking expenses
Per item $0.025 Monthly dividend fund
Per item $0.015 Non-monthly dividend fund
VI Additional Fees for Services Outside the Standard Base
----------------------------------------------------------
-Interactive Voice Response System Set-up Pass through
-Archiving of old records/storage of aged records Pass through
-Off-line Shareholder research $25/hour (Billed to customer account)
-Check copies $3/each (Billed to customer account)
-Statement copies $5/each (Billed to customer account)
-Mutual Fund fulfillment/prospect file maintenance $1.00/item
-Shareholder communications charges (Faxes) Pass through
-Leased line/equipment on TA's computer system Pass through
-Dial-up access to TA's computer system Pass through
-Labels $.05 ea/$100 minimum
-AD-HOC REPORTWRITER Report Generation $50.00 per report
-Bank Reconciliation Service $50.00 monthly maintenance fee per bank account
$1.50 per bank item
-Systems Programming Labor Charges:
Programmers or Consultants $125.00/hour
Officers $150.00/hour
-Additional Proxy Processing:
Each processing $225.00 fixed charge per processing
Preparation and Tabulation $0.145/proxy issued
(includes 3 tabulations, sixteen
propositions)
Each Extra Tabulation $25.00 fixed charge per processing
$0.02 per proxy tabulated
FUND ACCOUNTING FEE SCHEDULE
Standard Fee*
-------------
0.05% for the first $50 million in average net assets per portfolio
and/or share class per year; 0.04% from $50 million to $100 million in
average net assets per portfolio and/or share class per year; 0.03%
over $100 million in average net assets per portfolio and/or share
class per year.
Out of Pocket Fees: Fees charged for outside pricing services and all
accompanying administrative expenditures.
*Subject to a $20,000(1) annual minimum per portfolio (one share class)
plus $7,5001 per additional share class for Domestic Funds and a
$30,0001 annual minimum per portfolio (one share class) plus $7,5001
per additional share class for International/Global Funds. Fees are
billed on a monthly basis.
1 Discount based on average net assets per portfolio and/or
share class per month:
$0 - 2 Million 30%
$2 - 5 Million 20%
$5 Million Plus 0%
Standard Reports Available
--------------------------
Daily Reports
-------------
A. General Ledger Reports 1. Accounts Receivable for Investments Reports
1. Trial Balance Report 2. Accounts Payable for Investments Reports
2. General Ledger Activity Report 3. Interest Accrual Report
4. Dividend Accrual Reports
B. Portfolio Reports
1. Portfolio Report E. Other Reports
2. Tax Lot Report 1. Dividend Computation Report
3. Purchase Journal 2. Cash Availability Report
4. Sell/Maturity Journal 3. Settlement Journal
5. Amortization/Accretion Report
6. Maturity Projection Report Monthly Reports
---------------
C. Pricing Reports
1. Pricing Report Standard Reports
2. Pricing Report by Market Value 1. Cost Proof Report
3. Pricing Variance by % Change 2. Transaction History Report
4. NAV Report 3. Realized Gain/Loss Report
5. NAV Proof Report 4. Interest Record Report
6. Money Market Pricing Report 5. Dividend Record Report
6. Broker Commission Totals
7. Broker Principal Trades
D. Accounts Receivable/Payable Reports 8. Shareholder Activity Report
9. SEC Yield Calculation Work Sheet (fixed-income funds only)
Optional Services Available - Initial (for desired services)
------------------------------------------------------------
_______________ -Additional portfolio sub-adviser fee $10,000/portfolio
_______________ -Multiple custodian fee $5,000/fund group
_______________ -GNMA securities fee $2,500/portfolio
_______________ -S.E.C. audit requirements Pass through
Special Report Generation Fees
-----------------------------
AD-HOC Report Generation $75.00 per report
Reruns $75.00 per run
Extract Tapes $110.00 plus
Systems Programming Labor Charges
---------------------------------
System Support Representatives $100.00/hour
Programmers, Consultants or
Department Heads $125.00/hour
Officers $150.00/hour
Repricing Charges
-----------------
For incorrect or untimely information provided by an Advisor or its Agent,
Unified will charge $200.00 per day for each day that a portfolio is
repriced.
De-Conversion Fees
------------------
De-Conversion fees will be subject to additional charges commensurate with
particular circumstances and dependent upon scope of problems.
FUND ADMINISTRATION SERVICES FEE SCHEDULE
Standard Fee
------------
0.10% for the first $50 million in average net assets per portfolio
and/or share class per year; 0.07% from $50 million to $100 million in
average net assets per portfolio and/or share class per year; 0.05%
over $100 million in average net assets per portfolio and/or share
class per year;
Subject to a $25,000(1) annual minimum per portfolio (one share class)
plus $7,500(1) per additional share class. Fees are billed on a monthly
basis.
1 Discount based on net assets per portfolio and/or share class
per month:
$0 - 2 Million 30%
$2 - 5 Million 20%
$5 Million Plus 0%
Additional Services and Fees
----------------------------
1. Assistance in preparation and filing for an exemptive order
or no action letter from the Securities and Exchange Commission $1,500 minimum
2. Assist in the preparation and filing of additional Fund's
Registration Statement on Form N1-A or any replacement thereof $500 minimum
3. Assistance in preparation, filing and vote compilation of
Proxy Statement for Special Shareholders Meeting. $5,000 minimum per Special Meeting
4. Assistance in Dissolution and Deregistration of the Fund
(including related Proxy Statement) $15,000 minimum
5. Reorganization/Merger of the Fund or portfolios (including
proxy statement and excluding tax opinion) $15,000 minimum
6. Blue-Sky Filing Fees $25.00 per permit
7. Such other duties related to the administration of the
Fund as agreed to by Unified Negotiable
