Exhibit 24(b)(9)(iii)
XXXXXX MUTUAL FUND
XXXXXX SQUARE MANAGEMENT CORPORATION
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT made this 19th day of February,
1997, by and between Xxxxxx Mutual Fund, formerly known as Kiewit
Institutional Fund, a Delaware business trust (the "Fund"), and
Xxxxxx Square Management Corporation, a corporation organized
under the laws of the State of Delaware ("Xxxxxx Square"), having
its principal place of business in Wilmington, Delaware.
WHEREAS, the Fund is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and has registered for public sale
under the Securities Act of 1933, as amended (the "1933 Act"),
shares of beneficial interest, par value $0.01 per share
("Shares"), corresponding to one or more separate and distinct
portfolios (individually, a "Portfolio", and collectively, the
"Portfolios");
WHEREAS, each Share of a Portfolio represents an undivided
interest in the assets, subject to the liabilities, allocated to
that Portfolio, and each Portfolio has a separate investment
objective and separate investment policies;
WHEREAS, at the present time, the Fund consists of six
Series, Kiewit Money Market Portfolio, Kiewit Government Money
Market Portfolio; Kiewit Short-Term Government Portfolio, Kiewit
Intermediate-Term Bond Portfolio, Kiewit Tax-Exempt Portfolio and
Kiewit Equity Portfolio
WHEREAS, at the present time, each Portfolio consists of and
plans to issue, pursuant to separate Prospectuses, two classes of
Shares, a "K Class" (subject to no sales or distribution charges)
and a "S Class" (subject to a distribution charge pursuant to
Rule 12b-1 under the 1940 Act, as stipulated in the Fund's S
Class Prospectus);
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained in this Agreement, the Fund and Xxxxxx Square
agree as follows:
1. Appointment. The Fund hereby appoints and employs Xxxxxx
Square as agent to perform those services described in this
Agreement for the Fund. Xxxxxx Square shall act under such
appointment and perform the obligations thereof upon the terms
and conditions hereinafter set forth and in accordance with the
principles of principal and agent as enunciated by the common
law.
2. Documents. The Fund has furnished Xxxxxx Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Fund's Board of Trustees authorizing
the appointment of Xxxxxx Square to provide certain
administration services to the Fund and approving this Agreement;
b. Schedule B identifying and containing the signatures of
the Fund's officers and other persons authorized ("Authorized
Persons") to sign "Written Instructions" (as used in this
Agreement to mean written instructions on behalf of the Fund
signed by two Authorized Persons, delivered by hand, mail,
telegram, cable, telex or facsimile to, and received by, Xxxxxx
Square;
c. The Fund's Certificate of Trust filed with the
Secretary of the State of Delaware on
June 1, 1994 and all amendments thereto and restatements thereof;
d. The Fund's Agreement and Declaration of Trust and all
amendments thereto and restatements thereof;
e. The Fund's By-Laws and all amendments thereto and
restatements thereof (such By-Laws as presently in effect and as
they shall from time to time be amended or restated, are herein
called "By-Laws");
f. The Accounting Services Agreement between the Fund and
Xxxxxx Square dated February 19, 1997;
g. The Custodian Agreement between the Fund and Wilmington
Trust Company (the "Custodian") effective July 1, 1994;
h. The Transfer Agency Agreement between the Fund and
Xxxxxx Square dated February 19, 1997;
i. The Fund's Notification of Registration filed pursuant
to Section 8(a) of the 1940 Act as filed with the Securities and
Exchange Commission ("SEC") on July 19, 1994;
j. The Fund's most recent Registration Statement on Form
N-1A under the 1933 Act (File No. 33-84762) and under the 1940
Act (File No. 811-8648), as filed with the SEC, and all
amendments thereto;
k. The Fund's most current Prospectus(es) ("Prospectus")
and Statement(s) of Additional Information ("SAI") relating to
the Portfolios; and
l. If required, a copy of either (i) a filed notice of
eligibility to claim the exclusion from the definition of
"commodity pool operator" contained in Section 2(a)(1)(A) of the
Commodity Exchange Act ("CEA") that is provided in Rule 4.5 under
the CEA, together with all supplements as are required by the
Commodity Futures Trading Commission ("CFTC"), or (ii) a letter
which has been granted the Fund by the CFTC which states that the
Fund will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii) a letter
which has been granted the Fund by the CFTC which states that
CFTC will not take any enforcement action if the Fund does not
register as a "commodity pool operator."
The Fund will xxxxxxx Xxxxxx Square from time to time
with copies, properly certified or authenticated, of all
additions, amendments or supplements to the foregoing, if any.
3. Portfolio Administration. Subject to the direction and
control of the Board of Trustees (the "Trustees") of the Fund and
to the extent not otherwise the responsibility of, or provided
by, the Fund or other supply agents of the Fund, Xxxxxx Square
shall provide the following administrative services:
a. (i) office facilities (which may be in Xxxxxx
Square's or its affiliates' own offices);
(ii) non-investment related statistical and
research data;
(iii) executive and administrative services;
(iv) stationery and office supplies at Fund
expense;
(v) corporate secretarial services, such as the
preparation and distribution of materials
at Fund expense for meetings of the Trustees; and
(vi) Distribution of Trustees' and Officers'
questionnaires.
b. Prepare and file, if necessary, reports to shareholders
of the Fund and reports with the SEC, state securities
commissions and Blue Sky authorities, including preliminary and
definitive proxy materials, post-effective amendments to the
Fund's registration statement, Rule 24f-2 Notices, Form
N-SAR filings, and prospectus supplements;
c. Monitor the Fund's compliance with the investment
restrictions and limitations imposed by the 1940 Act, and
applicable regulations thereunder, the fundamental and
non-fundamental investment policies and limitations set forth in
the Prospectus and SAI, 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 (the "Code") or any
successor statute;
d. Monitor sales of the Fund's shares and ensure that such
shares are properly registered as required with the SEC and
applicable state authorities;
e. Prepare and distribute to appropriate parties notices
announcing the declaration of dividends and other distributions
to shareholders;
f. Prepare financial statements and footnotes and other
financial information with such frequency and in such format as
required to be included in reports to shareholders and the SEC;
g. Review sales literature and file such with regulatory
authorities, as necessary;
h. Provide information regarding material developments in
state securities regulation; and
i. Provide personnel to serve as officers of the Fund if
so elected by the Trustees.
4. Expenses of the Fund. The Fund agrees that it will pay
all its expenses other than those expressly stated to be payable
by Xxxxxx Square hereunder, which expenses payable by the Fund
shall include, without limitation:
a. Fees payable for services provided by the Fund's
independent public accountants;
b. Fees payable for accounting services;
c. Taxes levied against the Fund or any Portfolio;
d. Costs and/or fees incident to holding meetings of the
Trustees and shareholders, preparation (including typesetting and
printing charges) and mailing of prospectuses, reports and proxy
materials to the existing shareholders of the Fund, filing of
reports with regulatory bodies, maintenance of the Fund's
corporate existence, and registration of shares with federal and
state securities authorities;
e. Legal fees and expenses;
f. Costs of printing stock certificates representing
shares of the Fund;
g. Fees payable to, and expenses of, members of the
Trustees who are not "interested persons" of the Fund;
h. Out-of-pocket expenses incurred in connection with the
provision of administration and custodial agency services;
i. Premiums payable on insurance policies related to the
Fund's business;
j. Distribution fees, if any;
k. Service fees, if any, payable by each Portfolio to the
Distributor for providing personal services to the shareholders
of each Portfolio and for maintaining shareholder accounts for
those shareholders;
l. Fees, voluntary assessments and other expenses incurred
in connection with the Fund's membership in investment company
organizations; and
m. Such non-recurring expenses as may arise, including
actions, suits or proceedings to which the Fund is a party and
the legal obligation which the Fund may have to indemnify its
Trustees and officers with respect thereto.
Except as otherwise agreed by Xxxxxx Square, Xxxxxx Square
will not reimburse the Fund for (or have deducted from its fees
payable under this Agreement) any Fund expenses in excess of any
expense limitations imposed by state securities commissions
having jurisdiction over the sale of Portfolio shares.
5. Recordkeeping and Other Information. Xxxxxx Square shall
create and maintain all necessary records in accordance with all
applicable laws, rules and regulations, including, but not
limited to, records required by Section 31(a) of the 1940 Act and
the rules thereunder, as the same may be amended from time to
time, pertaining to the various functions (described above)
performed by it and not otherwise created and maintained by
another party pursuant to contract with the Fund. All records
shall be the property of the Fund at all times and shall be
available for inspection and use by the Fund. Where applicable,
such records shall be maintained by Xxxxxx Square for the periods
and in the places required by Rule 31a-2 under the 1940 Act.
6. Audit, Inspection and Visitation. Xxxxxx Square shall
make available during regular business hours all records and
other data created and maintained pursuant to the foregoing
provisions of this Agreement for reasonable audit and inspection
by the Fund, any person retained by the Fund or any regulatory
agency having authority over the Fund.
7. Compliance with Governmental Rules and Regulations.
Except as otherwise provided herein, the Fund assumes full
responsibility for ensuring that the Fund complies with all
applicable requirements of the 1933 Act, the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the 1940 Act, the CEA
and any laws, rules and regulations of governmental authorities
having jurisdiction.
8. Compensation. For the performance of its obligations
under this Agreement, the Fund shall pay Xxxxxx Square an
administrative fee with respect to each Portfolio in accordance
with the fee arrangements described in Schedule A attached
hereto, as such schedule may be amended from time to time.
9. Appointment of Agents. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Xxxxxx Square
without the written consent of the Fund. Xxxxxx Square may at
any time or times in its discretion appoint (and may at any time
remove) other parties as its agent to carry out such of the
provisions of this Agreement as Xxxxxx Square may from time to
time direct; provided, however, that the appointment of any such
agent shall not relieve Xxxxxx Square of any of its
responsibilities or liabilities hereunder.
10. Delegation. On thirty (30) days' prior written notice to
the Fund, Xxxxxx Square may assign any part or all its rights and
delegate its duties hereunder to any affiliate, provided that (i)
the delegate agrees with Xxxxxx Square to comply with all
relevant provisions of the Investment Company Act and applicable
rules and regulations; (ii) Xxxxxx Square shall remain
responsible for the performance of all of its duties under this
Agreement; (iii) Xxxxxx Square and such delegate shall promptly
provide such information as the Fund may request; and (iv) Xxxxxx
Square shall respond to such questions as the Fund may ask,
relative to the delegation, including (without limitation) the
capabilities of the delegate.
11. Use of Xxxxxx Square's Name. The Fund shall not use the
name of Xxxxxx Square or any of its affiliates in any Prospectus,
SAI, or other material relating to the Fund in a manner not
approved prior thereto in writing by Xxxxxx Square; provided,
however, that Xxxxxx Square shall approve all uses of its and its
affiliates' names that merely refer in accurate terms to their
appointments hereunder or that are required by the SEC or a state
securities commission; and further provided, that in no event
shall such approval be unreasonably withheld.
12. Use of Fund's Name. Neither Xxxxxx Square nor any of its
affiliates shall use the name of the Fund or material relating to
the Fund on any forms (including any checks, bank drafts or bank
statements) for other than internal use in a manner not approved
prior thereto by the Fund; provided, however, that the Fund shall
approve all uses of its name that merely refer in accurate terms
to the appointment of Xxxxxx Square hereunder or that are
required by the SEC or a state securities commission; and further
provided, that in no event shall such approval be unreasonably
withheld.
13. Liability of Xxxxxx Square or Affiliates. Xxxxxx Square
and its affiliates shall not be liable for any error of judgment
or mistake of law or for any loss suffered by the Fund in
connection with the matters to which this Agreement relates,
except to the extent of a loss resulting from willful
misfeasance, bad faith, negligence or reckless disregard of their
obligations and duties under this Agreement. Any person, even
though also an officer, director, employee, agent or
representative of Xxxxxx Square or any of its affiliates who may
be or become an officer or director of the Fund, shall be deemed,
when rendering services to the Fund as such officer or acting on
any business of the Fund in such capacity (other than services or
business in connection with Xxxxxx Square's duties under this
Agreement), to be rendering such services to or acting solely for
the Fund and not as an officer, director, employee, agent or
representative, or one under the control or direction of Xxxxxx
Square or any of its affiliates, even though paid by one of those
entities.
14. Indemnification.
a. The Fund agrees to indemnify and hold harmless Xxxxxx
Square, its directors, officers, employees, agents and
representatives (collectively "Representatives") from all taxes,
charges, expenses, assessments, claims and liabilities including,
without limitation, liabilities arising under the 1933 Act, the
1934 Act, the 1940 Act, and any applicable state and/or foreign
securities laws, or amendments thereto (the "Securities Laws"),
and expenses, including without limitation reasonable attorneys'
fees and disbursements, arising directly or indirectly from any
action or omission to act which Xxxxxx Square takes (i) at the
request of or on the direction of or in reliance on the advice of
the Fund or (ii) upon oral or written instructions. Neither
Xxxxxx Square nor any of its Representatives shall be indemnified
against any liability (or any expenses incident to such
liability) arising out of Xxxxxx Square's or its Representatives'
own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold harmless the
Fund from all taxes, charges, expenses, assessments, claims and
liabilities arising from Xxxxxx Square's obligations pursuant to
this Agreement (including, without limitation, liabilities
arising under the Securities Laws) and expenses, including
(without limitation) reasonable attorneys' fees and disbursements
arising directly or indirectly out of Xxxxxx Square's or its
Representatives' own willful misfeasance, bad faith, negligence
or reckless disregard of its duties and obligations under this
Agreement.
c. In order that the indemnification provisions contained
in this Section 14 shall apply, upon the assertion of a claim for
which either party may be required to indemnify the other, the
party seeking indemnification shall promptly notify the other
party of such assertion, and shall keep the other party advised
with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option to
participate with the party seeking indemnification in the defense
of such claim. The party seeking indemnification shall in no
case confess any claim or make any compromise in any case in
which the other party may be required to indemnify it except with
the other party's prior written consent.
15. Amendments. Xxxxxx Square and the Fund shall
regularly consult with each other regarding Xxxxxx Square's
performance of its obligations and its compensation under the
foregoing provisions. In connection therewith, the Fund
shall submit to Xxxxxx Square at a reasonable time in advance
of filing with the SEC copies of any amended or supplemented
registration statement of the Fund (including exhibits) under
the 1933 Act, and the 1940 Act, and, a reasonable time in
advance of their proposed use, copies of any amended or
supplemented forms relating to any plan, program or service
offered by the Fund. Any change in such materials that would
require any change in Xxxxxx Square's obligations under the
foregoing provisions shall be subject to the burdened party's
approval, which shall not be unreasonably withheld. In the
event that a change in such documents or in the procedures
contained therein increases the cost to Xxxxxx Square of
performing its obligations hereunder by more than an
insubstantial amount, Xxxxxx Square shall be entitled to
receive reasonable compensation therefor.
16. Duration, Termination, etc. The provisions of this
Agreement may not be changed, waived or discharged orally, but
only by written instrument that shall make specific reference to
this Agreement and that shall be signed by the party against
which enforcement of such change, waiver or discharge is sought.
This Agreement shall become effective as of the close of
business on the date first written above, and unless terminated
as hereinafter provided, shall continue in force for two (2)
years from the date of its execution and thereafter from year to
year.
This Agreement may be terminated by a vote of the Board
of Trustees of the Fund, or by a vote of a majority of the
outstanding voting securities of any one or more of the Fund's
Portfolios, upon written notice to Xxxxxx Square, in the event of
a material breach remaining uncured for thirty (30) days after
due written notification of such breach has been issued by the
Fund to, and received by, Xxxxxx Square. "Material breach"
includes gross negligence in the performance of the duties of
Xxxxxx Square, as well as a material breach of a provision of
this Agreement. However, in the event of a material breach
resulting from willful misconduct or reckless disregard of the
duties of Xxxxxx Square or its employees, this Agreement may be
terminated thirty (30) days after written notification of such
breach has been issued by the Fund to, and received by, Xxxxxx
Square.
Furthermore, this Agreement may be terminated by the Fund
if a majority of the Board of Trustees votes to approve such a
termination, for any of the following reasons: (a) the Fund
ceases doing business, liquidates, and distributes all remaining
assets to its shareholders; (b) the merger of the Fund with
another registered investment company, substantially all of the
assets of which are owned by shareholders not presently
affiliated with or related to the shareholders of the Fund or
Kiewit Investment Trust; (c) the merger with or sale of
substantially all of the assets of Xxxxxx Investment Management
Corporation to a person not presently affiliated with or related
to the shareholders of the Fund or Kiewit Investment Trust; or
(d) any other event of similar kind, which results in a
fundamental change in the nature of the mutual fund business of
the Fund or Kiewit Investment Trust. The reasons set forth in
this paragraph may be applied to terminate this Agreement with
respect to one or more Portfolios, as well as to the Fund itself.
Termination shall occur at the time of the relevant event, but
not earlier than six (6) months after written notification issued
by the Fund to, and received by, Xxxxxx Square.
This Agreement may also be terminated by Xxxxxx Square,
upon written notice to the Fund, in the event of a material
breach remaining uncured for sixty (60) days after the written
notification of such breach has been issued by Xxxxxx Square to,
and received by, the Fund.
Termination shall not relieve the parties of duties and
obligations accrued prior to termination (including the duty to
pay accrued fees and expenses), nor those duties which by their
nature survive termination (such as the duty to maintain the
confidentiality of information, and the duty to transfer assets
and records to successors in an orderly and cooperative manner).
Upon the termination of this Agreement, the Fund shall
pay to Xxxxxx Square such compensation as may be payable for the
period prior to the effective date of such termination, including
reimbursement for any out-of-pocket expenses reasonably incurred
by Xxxxxx Square to such date. In the event that the Fund
designates a successor to any of Xxxxxx Square's obligations
hereunder, Xxxxxx Square shall, at the expense and direction of
the Fund, transfer to such successor all relevant books, records
and other data established or maintained by Xxxxxx Square under
the foregoing provisions.
17. Audit, Inspection and Visitation. Xxxxxx Square shall
make available during regular business hours all records and
other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Fund or any person
retained by the Fund. Upon reasonable notice by the Fund, Xxxxxx
Square shall make available during regular business hours its
facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the
Fund, or any person retained by the Fund.
18. Notice. Any notice under this Agreement shall be given
in writing addressed and delivered or mailed, postage prepaid, to
the other party to this Agreement at its principal place of
business.
19. Severability. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected
thereby.
20. Governing Law. To the extent that state law has not been
preempted by the provisions of any law of the United States
heretofore or hereafter enacted, as the same may be amended from
time to time, this Agreement shall be administered, construed and
enforced according to the laws (without regard, however, to laws
as to conflicts of law) of the State of Delaware.
21. Shareholder Liability. Xxxxxx Square acknowledges that
it has received notice of and accepts the limitations of
liability set forth in the Fund's Agreement and Declaration of
Trust and By-Laws. Xxxxxx Square agrees that the Fund's
obligations hereunder shall be limited to the Fund, and that
Xxxxxx Square shall have recourse solely against the assets of
the Portfolio with respect to which the Fund's obligations
hereunder relate and shall have no recourse against the assets of
any other Portfolio or against any shareholder, Trustee, officer,
employee, or agent of the Fund.
22. Miscellaneous. Each party agrees to perform such further
acts and execute such further documents as are necessary to
effectuate the purposes hereof. The captions in this Agreement
are included for convenience of reference only and in no way
define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be
executed in two counterparts, each of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
XXXXXX MUTUAL FUND
By: /s/ Xxx XxXxxxxxx
Xxx XxXxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx,
President
ADMINISTRATION AGREEMENT
SCHEDULE A
XXXXXX MUTUAL FUND
FEE SCHEDULE
For the services Xxxxxx Square provides under the Administration
Agreement attached hereto, Xxxxxx Mutual Fund (the "Fund") agrees
to pay Xxxxxx Square, on behalf of each Fund Portfolio (as listed
below), an annual administrative services fee equal to the higher
of (a) a minimum fee of $12,000 per Portfolio, or (b) 0.02% of
the Portfolio's assets, raised in consideration of sale of S
Class Shares. The fee shall be payable only as if and when sales
of S Class Shares commence, and then monthly, in arrears, as soon
as practicable after the last day of each month, based on the
higher of one-twelfth of (a) the minimum annual fee, or (b) the
0.02% asset-based fee, calculated according to the average of the
daily total assets of each Fund Portfolio, as determined at the
close of business on each day throughout the month.
Kiewit Money Market Portfolio
Kiewit Government Money Market Portfolio
Kiewit Short-Term Government Portfolio
Kiewit Intermediate-Term Bond Portfolio
Kiewit Tax-Exempt Portfolio
Kiewit Equity Portfolio
In the event of the addition, by any one or more of the above
listed Portfolios, of a third (or further) class of Shares, the
Fund hereby agrees to pay Xxxxxx Square, for services to be
rendered pursuant to and for the remaining duration of the
attached Agreement, a further annual administration services fee,
payable as stipulated above, equal to the greater of (a) $12,000,
or (b) 0.02% of the assets raised in consideration of sale of the
new Class Shares.
Irrespective of the number of classes of Fund Shares, the Fund
shall either pay and advance, or promptly reimburse (upon
billing), Xxxxxx Square its reasonable out-of-pocket expenses
incurred in the performance of its responsibilities pursuant to
the attached Agreement.
SCHEDULE B
XXXXXX MUTUAL FUND
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board
of Trustees to give Oral and Written Instructions on behalf of
the Fund:
Xxx XxXxxxxxx ___________________________
Xxxxxxx Xxxxxxx ___________________________
Xxxxx Xxxxxxxx ___________________________
Xxxxx Xxxxxx ___________________________
