Exhibit No. 24(b)(1)(i)
AGREEMENT AND DECLARATION OF TRUST
of
KIEWIT INVESTMENT TRUST
a Delaware Business Trust
TABLE OF CONTENTS
Page
ARTICLE I 1
Name and Definitions 1
Section 1. Name 1
Section 2. Definitions 1
(a) Trust 1
(b) Trust Property 1
(c) Trustees 1
(d) Shares 2
(e) Holder 2
(f) Person 2
(g) 1940 Act 2
(h) Commission and Principal
Underwriter 2
(i) Declaration of Trust 2
(j) By-Laws 2
(k) Interested Person 2
(l) Investment Manager 2
(m) Series 2
ARTICLE II 3
Purpose of Trust 3
ARTICLE III 3
Shares 3
Section 1. Division of Beneficial Interest 3
Section 2. Ownership of Shares 4
Section 3. Investments in the Trust 4
Section 4. Status of Shares and Limitation of Personal Liability 4
Section 5. Power of Board of Trustees to Change
Provisions Relating to Shares 4
Section 6. Establishment and Designation of
Shares 5
(a) Assets Held with Respect to a Particular
Series 5
(b) Liabilities Held with Respect to a
Particular Series 6
(c) Dividends, Distributions, Redemptions
and Repurchases 6
(d) Voting 7
(e) Equality 7
(f) Fractions 7
(g) Exchange Privilege 7
(h) Combination of Series 7
(i) Elimination of Series 7
(j) Transferability 7
(k) Termination of a Series 7
(l) Series Established as a Partnership 8
Page
ARTICLE IV 8
The Board of Trustees 8
Section 1. Number, Election and Tenure 8
Section 2. Effect of Death, Resignation, etc. of a
Trustee 9
Section 3. Powers 9
Section 4. Payment of Expenses by the Trust 12
Section 5. Ownership of Assets of the Trust 13
Section 6. Service Contracts 13
ARTICLE V 14
Holders' Voting Powers and Meetings 14
Section 1. Voting Powers 14
Section 2. Voting Power and Meetings 15
Section 3. Quorum and Required Vote 15
Section 4. Action by Written Consent 15
Section 5. Record Dates 15
ARTICLE VI 16
Net Asset Value, Distributions, and Redemptions 16
Section 1. Determination of Net Asset Value, Net
Income, and Distributions 16
Section 2. Redemptions and Repurchases 16
Section 3. Redemptions at the Option of the Trust 17
Section 4. Transfer of Shares 17
ARTICLE VII 17
Compensation and Limitation of Liability 17
Section 1. Compensation of Trustees 17
Section 2. Indemnification and Limitation of
Liability 17
Section 3. Trustee's Good Faith Action, Expert Advice,
No Bond or Surety 18
Section 4. Insurance 18
ARTICLE VIII 18
Miscellaneous 18
Section 1. Liability of Third Persons Dealing with
Trustees 18
Section 2. Termination of Trust or Series 19
Section 3. Merger and Consolidation 19
Section 4. Amendments 19
Section 5. Filing of Copies, References, Headings 20
Section 6. Applicable Law 20
Section 7. Provisions in Conflict with Law or
Regulations 20
Section 8. Business Trust Only 21
Section 9. Use of the Name "Kiewit" 21
AGREEMENT AND DECLARATION OF TRUST
OF
KIEWIT INVESTMENT TRUST
WHEREAS, this AGREEMENT AND DECLARATION OF TRUST is made and
entered into as of the date set forth below by the Trustees named
hereunder for the purpose of forming a Delaware business trust in
accordance with the provisions hereinafter set forth,
NOW, THEREFORE, the Trustees hereby direct that a
Certificate of Trust be filed with the Office of the Secretary of
State of the State of Delaware and do hereby declare that the Trustees
will hold IN TRUST all cash, securities and other assets which the
Trust now possesses or may hereafter acquire from time to time in any
manner and manage and dispose of the same upon the following terms and
conditions for the pro rata benefit of the holders of Shares in this
Trust.
ARTICLE I.
Name and Definitions
Section 1. Name. This trust shall be known as "KIEWIT
INVESTMENT TRUST" and the Trustees shall conduct the business of the
Trust under that name or any other name as they may from time to time
determine.
Section 2. Definitions. Whenever used herein, unless
otherwise required by the context or specifically provided:
(a) The "Trust" refers to the Delaware business trust
established by this Agreement and Declaration of Trust, as amended
from time to time;
(b) The "Trust Property" means any and all property, real
or personal, tangible or intangible, which is owned or held by or for
the account of the Trust;
(c) "Trustees" refers to the persons who have signed this
Agreement and Declaration of Trust, so long as they continue in office
in accordance with the terms hereof, and all other persons who may
from time to time be duly elected or appointed to serve on the Board
of Trustees in accordance with the provisions hereof, and reference
herein to a Trustee or the Trustees shall
refer to such person or persons in their capacity as trustees
hereunder;
(d) "Shares" means the shares of beneficial interest into
which the beneficial interest in the Trust shall be divided from time
to time and includes fractions of Shares as well as whole Shares;
(e) "Holder" means a record owner of outstanding Shares;
(f) "Person" means and includes individuals, corporations,
partnerships, trusts, foundations, plans, associations, joint
ventures, estates and other entities, whether or not legal entities,
and governments and agencies and political subdivisions thereof,
whether domestic or foreign;
(g) The "1940 Act" refers to the Investment Company Act of
1940 and the Rules and Regulations thereunder, all as amended from
time to time. References herein to specific sections of the 1940 Act
shall be deemed to include such Rules and Regulations as are
applicable to such sections as determined by the Trustees or their
designees;
(h) The terms "Commission" and "Principal Underwriter"
shall have the respective meanings given them in Section 2(a)(7) and
Section (2)(a)(29) of the 1940 Act;
(i) "Declaration of Trust" shall mean this Agreement and
Declaration of Trust, as amended or restated from time to time;
(j) "By-Laws" shall mean the By-Laws of the Trust as
amended from time to time;
(k) The term "Interested Person" has the meaning given it
in Section 2(a)(19) of the 1940 Act;
(l) "Investment Manager" or "Manager" means a party
furnishing services to the Trust pursuant to any contract described in
Article IV, Section 7(a) hereof;
(m) "Series" refers to each Series of Shares established
and designated under or in accordance with the provisions of Article
III.
ARTICLE II.
Purpose of Trust
The purpose of the Trust is to conduct, operate and carry on
the business of a management investment company
registered under the 1940 Act through one or more Series investing
primarily in securities.
ARTICLE III.
Shares
Section 1. Division of Beneficial Interest. The beneficial
interest in the Trust shall at all times be divided into an unlimited
number of Shares, with a par value of $ .01 per Share provided that
the Shares of Series that are established by the Trustees to be
taxable as a separate partnership for federal income tax purposes
shall have no par value. The Trustees may authorize the division of
Shares into separate Series and the division of Series into separate
classes of Shares. The different Series shall be established and
designated, and the variations in the relative rights and preferences
as between the different Series shall be fixed and determined, by the
Trustees. If only one Series shall be established, the Shares shall
have the rights and preferences provided for herein and in Article
III, Section 6 hereof to the extent relevant and not otherwise
provided for herein.
Subject to the provisions of Section 6 of this Article III,
each Share shall have voting rights as provided in Article V hereof,
and Holders of the Shares of any Series shall be entitled to receive
dividends and distributions, when, if and as declared with respect
thereto in the manner provided in Article VI, Section 1 hereof. No
Share shall have any priority or preference over any other Share of
the same Series with respect to dividends or distributions of the
Trust or otherwise. All dividends and distributions shall be made
ratably among all Holders of a Series from the assets held with
respect to such Series according to the number of Shares of such
Series held of record by such Holders on the record date for any
dividend or distribution or on the date of termination of the Trust,
as the case may be. Holders shall have no preemptive or other right
to subscribe to any additional Shares or other securities issued by
the Trust or any Series. The Trustees may from time to time divide or
combine the Shares of a Series into a greater or lesser number of
Shares of such Series without thereby materially changing the
proportionate beneficial interest of such Shares in the assets held
with respect to that Series or materially affecting the rights of
Shares of any other Series.
Section 2. Ownership of Shares. The ownership of Shares
shall be recorded on the books of the Trust or a transfer or similar
agent for the Trust, which books shall be maintained separately for
the Shares of each Series. No certificates evidencing the ownership
of Shares shall be issued except as the Board of Trustees may
otherwise determine from time to time. The Trustees may make such
rules as they consider appropriate for the transfer of Shares of each
Series and similar matters and, by resolution, may restrict the
transfer of Shares of a Series. The record books of the Trust as kept
by the Trust or any transfer or similar agent, as the case may be,
shall be conclusive as to the identity of the Holders of each Series
and as to the number of Shares of each Series held from time to time
by each Holder.
Section 3. Investments in the Trust. Investments may be
accepted by the Trust from such Persons, at such times, on such terms,
and for such consideration as the Trustees from time to time may
authorize. Each investment shall be credited to the Holder's account
in the form of full and fractional Shares of the Trust, in such Series
as the purchaser shall select, at the net asset value per Share next
determined for such Series after receipt of the investment; provided,
however, that the Trustees may, in their sole discretion, impose a
reimbursement fee upon investments in the Trust.
Section 4. Status of Shares and Limitation of Personal
Liability. Shares shall be deemed to be personal property giving only
the rights provided in this instrument, the By-Laws of the Trust and
the resolutions of the Board of Trustees. Every Holder by virtue of
having become a Holder shall be held to have expressly assented and
agreed to the terms thereof. The death of a Holder during the
existence of the Trust shall not operate to terminate the Trust, nor
entitle the representative of any deceased Holder to an accounting or
to take any action in court or elsewhere against the Trust or the
Trustees, but shall entitle such representative only to the rights of
said deceased Holder under this Declaration of Trust. Ownership of
Shares shall not entitle a Holder to any title in or to the whole or
any part of the Trust Property or right to call for a partition or
division of the same or for an accounting, nor shall the ownership of
Shares constitute the Holders as partners or joint venturers except as
specifically provided for pursuant to Article III, Section 6 herein or
by resolution of the Board of Trustees. Neither the Trust nor the
Trustees, nor any officer, employee or agent of the Trust shall have
any power to bind personally any Holder, or to call upon any Holder
for the payment of any sum of money or assessment whatsoever other
than such as the Holder may at any time agree to pay.
Section 5. Power of Board of Trustees to Change Provisions
Relating to Shares. Notwithstanding any other provision of this
Declaration of Trust to the contrary, and without limiting the power
of the Board of Trustees to amend the Declaration of Trust as provided
elsewhere herein, the Board of Trustees shall have the power to amend
this Declaration of Trust, at any time and from time to time, in such
manner as the Board of Trustees may determine in their sole
discretion, without the need for action by any Holder, so as to add
to, delete, replace or otherwise modify any provisions relating to the
Shares contained in this Declaration of Trust, provided that before
adopting any such amendment without approval of the Holders the Board
of Trustees shall determine that it is consistent with the fair and
equitable treatment of all Holders or that approval of the Holders is
not required by the 1940 Act or other applicable law. If Shares have
been issued, approval of the Holders shall be required to adopt any
amendments to this Declaration of Trust which would adversely affect
to a material degree the rights and preferences of the Shares of any
Series or to increase or decrease the par value of the Shares of any
Series.
Section 6. Establishment and Designation of Shares. The
establishment and designation of any Series of Shares shall be
effective upon the adoption by a majority of the Trustees of a
resolution which sets forth such establishment and designation and the
relative rights and preferences of Holders of such Series. Each such
resolution shall be incorporated herein by reference (and shall be
deemed a part of Section 6 of Article III of this Declaration of
Trust) upon adoption. Any inconsistencies or conflict between the
terms of any such resolution and this Declaration of Trust shall be
resolved in favor of such resolution.
Shares of each Series established pursuant to this Section
6, unless otherwise provided in the resolution establishing such
Series, shall have the following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All
consideration received by the Trust for the issue or sale of Shares of
a Series, including dividends and distributions paid by, and
reinvested in, such Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings,
profits, and proceeds thereof from whatever source derived, including,
without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds in whatever form the same may be, shall
irrevocably be held with respect to that Series for all purposes,
subject only to the rights of creditors, and shall be so recorded upon
the books of account of the Trust. Such consideration, assets,
income, earnings, profits and proceeds thereof, from whatever source
derived, including, without limitation, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or
payments derived from any reinvestment of such proceeds, in whatever
form the same may be, are herein referred to as "assets held with
respect to" that Series. In the event that there are any assets,
income, earnings, profits and proceeds thereof, funds or payments
which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Trustees shall
allocate such General Assets to, between or among any one or more of
the Series in such manner and on such basis as the Trustees, in their
sole discretion, deem fair and equitable, and any General Asset so
allocated to a particular Series shall be held with respect to that
Series. Each such allocation by the Trustees shall be conclusive and
binding upon the Holders of all Series for all purposes in absence of
manifest error.
(b) Liabilities Held with Respect to a Particular Series.
The assets of the Trust held with respect to each Series shall be
charged with the liabilities of the Trust with respect to such Series
and all expenses, costs, charges and reserves attributable to such
Series, and any general liabilities of the Trust which are not readily
identifiable as being held in respect of a Series shall be allocated
and charged by the Trustees to and among any one or more Series in
such manner and on such basis as the Trustees in their sole discretion
deem fair and equitable. The liabilities, expenses, costs, charges,
and reserves so charged to a Series are herein referred to as
"liabilities held with respect to" that Series. Each allocation of
liabilities, expenses, costs, charges and reserves by the Trustees
shall be conclusive and binding upon the holders of all Series for all
purposes in absence of manifest error. All Persons who have extended
credit which has been allocated to a particular Series, or who have a
claim or contract which has been allocated to a Series, shall look
exclusively to the assets held with respect to such Series for payment
of such credit, claim, or contract. In the absence of an express
agreement so limiting the claims of such creditors, claimants and
contracting parties, each creditor, claimant and contracting party
shall be deemed nevertheless to have agreed to such limitation unless
an express provision to the contrary has been incorporated in the
written contract or other document establishing the contractual
relationship.
(c) Dividends, Distributions, Redemptions, and Repurchases.
No dividend or distribution including, without limitation, any
distribution paid upon termination of the Trust or of any Series with
respect to, or any redemption or repurchase of, the Shares of any
Series shall be effected by the Trust other than from the assets held
with respect to such Series, nor shall any Holder of any Series
otherwise have any right or claim against the assets held with respect
to any other Series except to the extent that such Holder has such a
right or claim hereunder as a Holder of such other Series. The
Trustees shall have full discretion to determine which items shall be
treated as income and which items as capital; and each such
determination and allocation shall be conclusive and binding upon the
Holders in absence of manifest error.
(d) Voting. All Shares of the Trust entitled to vote on a
matter shall vote without differentiation between the separate Series
on a one-vote-per-Share basis; provided however, if a matter to be
voted on affects only the interests of not all Series, then only the
Holders of such affected Series shall be entitled to vote on the
matter.
(e) Equality. All the Shares of each Series shall
represent an equal proportionate undivided interest in the assets held
with respect to such Series (subject to the liabilities of such Series
and such rights and preferences as may have been established and
designated with respect to classes of Shares within such Series), and
each Share of a Series shall be equal to each other Share of such
Series.
(f) Fractions. Any fractional Share of a Series shall have
proportionately all the rights and obligations of a whole share of
such Series, including rights with respect to voting, receipt of
dividends and distributions and redemption of Shares.
(g) Exchange Privilege. The Trustees shall have the
authority to provide that the holders of Shares of any Series shall
have the right to exchange such Shares for Shares of one or more other
Series in accordance with such requirements and procedures as may be
established by the Trustees.
(h) Combination of Series. The Trustees shall have the
authority, without the approval of the Holders of any Series unless
otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series into assets
and liabilities held with respect to a single Series.
(i) Elimination of Series. At any time that there are no
Shares outstanding of a Series, the Trustees may abolish such Series.
(j) Transferability. The Trustees shall have the authority
to provide that the shares of a Series are non-transferable.
(k) Termination of a Series. The Trustees shall have the
authority to provide that upon the bankruptcy or insolvency of a
Holder or in the case of the redemption of the entire interest of a
Holder in a Series, that such Series will be terminated unless a
majority in interest of the remaining Holders in the Series approve
the continuing existence of the Series.
(l) Series Established as a Partnership. The Trustees
shall have the authority to create Series intended to be classified as
a Partnership for federal income tax purposes. Pursuant to such
authority, the Trustees may provide that (i) Book Capital Accounts (as
defined in any resolution establishing and designating such Series)
are to be determined and maintained for each Holder in accordance with
Section 704(b) of the Internal Revenue Code of 1986, as amended (the
"Code") (and any successor provision thereto) and the Treasury
Regulations promulgated thereunder; (ii) upon liquidation of a Series
(or any Holder's interest therein), liquidating distributions shall be
made in accordance with the positive Book Capital Account balances of
the Holders; and, (iii) if any Holder in such Series has a deficit
balance in his Book Capital Account following the liquidation of his
interest in the Series, such Holder is unconditionally required to
restore the amount of such deficit balance to the Series, or in lieu
thereof, the resolution establishing the Series contain a "qualified
income offset" within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(d).
ARTICLE IV.
The Board of Trustees
Section 1. Number, Election and Tenure. The number of
Trustees constituting the Board of Trustees shall be fixed from time
to time by a written instrument signed, or by resolution approved at a
duly constituted meeting, by a majority of the Board of Trustees,
provided, however, that the number of Trustees shall in no event be
less than one (1) nor more than fifteen (15). Subject to the
requirements of Section 16(a) of the 1940 Act, the Board of Trustees,
by action of a majority of the then Trustees at a duly constituted
meeting, may fill vacancies in the Board of Trustees and remove
Trustees with or without cause. Each Trustee shall serve during the
continued lifetime of the Trust until he or she dies, resigns, is
declared bankrupt or incompetent by a court of competent jurisdiction,
or is removed. Any Trustee may resign at any time by written
instrument signed by him and delivered to any officer of the Trust or
to a meeting of the Trustees. Such resignation shall be effective
upon receipt unless specified to be effective at some other time.
Except to the extent expressly provided in a written agreement with
the Trust, no Trustee resigning and no Trustee removed shall have any
right to any compensation for any period following his or her
resignation or removal, or any right to damages or other payment on
account of such removal. Any Trustee may be removed at any meeting of
Holders by a vote of two-thirds of the outstanding Shares of the
Trust. A meeting of Holders for the purpose of electing or removing
one or more Trustees may be called (i) by the Trustees upon their own
vote, or (ii) upon the demand of Holders owning 10% or more of the
Shares of the Trust in the aggregate.
Section 2. Effect of Death, Resignation, etc. of a Trustee.
The death, declination, resignation, retirement, removal, or
incapacity of one or more Trustees, or all of them, shall not operate
to annul the Trust or to revoke any existing agency created pursuant
to the terms of this Declaration of Trust. Whenever a vacancy in the
Board of Trustees shall occur, until such vacancy is filled as
provided in Article IV, Section 1, the Trustees in office, regardless
of their number, shall have all the powers granted to the Trustees and
shall discharge all the duties imposed upon the Trustees by this
Declaration of Trust.
Section 3. Powers. Subject to the provisions of this
Declaration of Trust, the business of the Trust shall be managed by
the Board of Trustees, and such Board shall have all powers necessary
or convenient to carry out that responsibility including the power to
engage in transactions of all kinds on behalf of the Trust. Trustees,
in all instances, shall act as principals and are and shall be free
from the control of the Holders. The Trustees shall have full power
and authority to do any and all acts and to make and execute any and
all contracts, documents and instruments that they may consider
desirable, necessary or appropriate in connection with the
administration of the Trust. Without limiting the foregoing, the
Trustees may: adopt, amend and repeal By-Laws not inconsistent with
this Declaration of Trust providing for the regulation and management
of the affairs of the Trust; elect and remove such officers and
appoint and terminate such agents as they consider appropriate;
appoint from their own number and establish and terminate one or more
committees consisting of two or more Trustees who may exercise the
powers and authority of the Board of Trustees to the extent that the
Trustees determine; employ one or more custodians of the assets of the
Trust and may authorize such custodians to employ subcustodians and to
deposit all or any part of such assets in a system or systems for the
central handling of securities or with a Federal Reserve Bank, retain
a transfer agent or a shareholder servicing agent, or both; provide
for the issuance and distribution of Shares by the Trust directly or
through one or more Principal Underwriters or otherwise; redeem,
repurchase and transfer Shares pursuant to applicable law; set record
dates for the determination of Holders with respect to various
matters; declare and pay dividends and distributions to Holders of
each Series from the assets of such Series; establish from time to
time, in accordance with the provisions of Article III, Section 6
hereof, any Series of Shares, each such Series to operate as a
separate and distinct investment medium and with separately defined
investment objectives and policies and distinct investment purpose;
and in general delegate such authority as they consider desirable to
any officer of the Trust, to any committee of the Trustees and to any
agent or employee of the Trust or to any such custodian, transfer or
servicing agents, Investment Manager or Principal Underwriter. Any
determination as to what is in the interests of the Trust made by the
Trustees in good faith shall be conclusive. In construing the
provisions of this Declaration of Trust, the presumption shall be in
favor of a grant of power to the Trustees and unless otherwise
specified herein or required by the 1940 Act or other applicable law,
any action by the Board of Trustees shall be deemed effective if
approved or taken by a majority of the Trustees then in office or a
majority of any duly constituted committee of Trustees. Any action
required or permitted to be taken at any meeting of the Board of
Trustees, or any committee thereof, may be taken without a meeting if
all members of the Board of Trustees or committee (as the case may be)
consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of the Board of Trustees, or committee,
except as otherwise provided in the 1940 Act.
Without limiting the foregoing, the Trust shall have power
and authority:
(a) To invest and reinvest cash and cash items, to hold
cash uninvested, and to subscribe for, invest in, reinvest in,
purchase or otherwise acquire, own, hold, pledge, sell, assign,
transfer, exchange, distribute, write options on, lend or otherwise
deal in or dispose of contracts for the future acquisition or delivery
of all types of securities,futures contracts and options thereon, and
forward currency contracts of every nature and kind, including,
without limitation, all types of bonds, debentures, stocks, preferred
stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and
other securities of any kind, issued, created, guaranteed, or
sponsored by any and all Persons, including, without limitation,
states, territories, and possessions of the United States and the
District of Columbia and any political subdivision, agency, or
instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality or organization, or by any bank or
savings institution, or by any corporation or organization organized
under the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization organized
under any foreign law, or in "when issued" contracts for any such
securities, futures contracts and options thereon, and forward
currency contracts, to change the investments of the assets of the
Trust; and to exercise any and all rights, powers, and privileges of
ownership or interest in respect of any and all such investments of
every kind and description, including, without limitation, the right
to consent and otherwise act with respect thereto, with power to
designate one or more Persons, to exercise any of said rights, powers,
and privileges in respect of any of said instruments;
(b) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease, or write options with respect to or otherwise deal in any
property rights relating to any or all of the assets of the Trust or
any Series;
(c) To vote or give assent, or exercise any rights of
ownership, with respect to stock or other securities or property; and
to execute and deliver proxies or powers of attorney to such person or
persons as the Trustees shall deem proper, granting to such person or
persons such power and discretion with relation to securities or
property as the Trustees shall deem proper;
(d) To exercise powers and right of subscription or
otherwise which in any manner arise out of ownership of securities;
(e) To hold any security or property in a form not
indicating that it is trust property, whether in bearer, unregistered
or other negotiable form, or in its own name or in the name of a
custodian or subcustodian or a nominee or nominees or otherwise or to
authorize the custodian or a subcustodian or a nominee or nominees to
deposit the same in a securities depository, subject in each case to
the applicable provisions of the 1940 Act;
(f) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer
of any security which is held in the Trust; to consent to any
contract, lease, mortgage, purchase or sale of property by such
corporation or issuer; and to pay calls or subscriptions with respect
to any security held in the Trust;
(g) To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them
such power and authority with relation to any security (whether or not
so deposited or transferred) as the Trustees shall deem proper, and to
agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Trustees
shall deem proper;
(h) To litigate, compromise, arbitrate, settle or otherwise
adjust claims in favor of or against the Trust or a Series, or any
matter in controversy, including but not limited to claims for taxes;
(i) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(j) To borrow funds or other property in the name of the
Trust or Series exclusively for Trust purposes;
(k) To endorse or guarantee the payment of any notes or
other obligations of any Person; to make contracts of guaranty or
suretyship, or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Trust Property
such insurance as the Trustees may deem necessary, desirable or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Trust or
payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Holders, Trustees, officers,
employees, agents, Investment Manager, principal underwriters, or
independent contractors of the Trust, individually against all claims
and liabilities of every nature arising by reason of holding Shares,
holding, being or having held any such office or position, or by
reason of any action alleged to have been taken or omitted by any such
Person as Trustee, officer, employee, agent, Investment Manager,
Principal Underwriter, or independent contractor, including any action
taken or omitted that may be determined to constitute negligence,
whether or not the Trust would have the power to indemnify such Person
against liability; and
(m) To adopt, establish and carry out pension,
profit-sharing, share bonus, share purchase, savings, thrift and other
retirement, incentive and benefit plans, trusts and provisions,
including the purchasing of life insurance and annuity contracts as a
means of providing such retirement and other benefits, for any or all
of the Trustees, officers, employees and agents of the Trust.
The Trust shall not be limited to investing in obligations
maturing before the possible termination of the Trust or one or more
of its Series. The Trust shall not in any way be bound or limited by
any present or future law or custom in regard to investment by
fiduciaries. The Trust shall not be required to obtain any court
order to deal with any assets of the Trust or take any other action
hereunder.
Section 4. Payment of Expenses by the Trust. Subject to
the provisions of Article III, Section 6(b), the Trustees are
authorized to pay or cause to be paid out of the principal or income
of the Trust or Series, or partly out of the principal and partly out
of income, and to charge or allocate the same to, between or among
such one or more of the Series that may be established or designated
pursuant to Article III, Section 6, all expenses, fees, charges, taxes
and liabilities incurred or arising in connection with the Trust or
Series, or in connection with the management thereof, including, but
not limited to, the Trustees' compensation and such expenses and
charges for the services of the Trust's officers, employees,
Investment Manager^, Principal Underwriter, auditors, counsel,
custodian, transfer agent, servicing agents, and such other agents or
independent contractors and such other expenses and charges as the
Trustees may deem necessary or proper to incur.
Section 5. Ownership of Assets of the Trust. Title to all
of the assets of the Trust shall at all times be considered as vested
in the Trust, except that the Trustees shall have power to cause legal
title to any Trust Property to be held by or in the name of one or
more of the Trustees, or in the name of the Trust, or in the name of
any other Person as nominee, on such terms as the Trustees may
determine. Upon the resignation, incompetency, bankruptcy, removal,
or death of a Trustee he or she shall automatically cease to have any
such title in any of the Trust Property, and the title of such Trustee
in the Trust Property shall vest automatically in the remaining
Trustees. Such vesting and cessation of title shall be effective
whether or not conveyancing documents have been executed and
delivered. The Trustees may determine that the Trust or the Trustees,
acting for and on behalf of the Trust, shall be deemed to hold
beneficial ownership of any income earned on the securities owned by
the Trust, whether domestic or foreign.
Section 6. Service Contracts.
(a) The Trustees may, at any time and from time to time,
contract for exclusive or nonexclusive advisory, management and/or
administrative services for the Trust or for any Series with any
Person; and any such contract may contain such other terms as the
Trustees may determine, including without limitation, authority for
the Investment Manager to determine from time to time without prior
consultation with the Trustees what investments shall be purchased,
held, sold or exchanged and what portion, if any, of the assets of the
Trust shall be held uninvested and to make changes in the Trust's
investments, and such other responsibilities as may specifically be
delegated to such Person.
(b) The Trustees may also, at any time and from time to
time, contract with any Persons, appointing such Persons exclusive or
nonexclusive distributor or Principal Underwriter for the Shares of
one or more of the Series or other securities to be issued by the
Trust. Every such contract may contain such other terms as the
Trustees may determine.
(c) The Trustees are also empowered, at any time and from
time to time, to contract with any Persons, appointing such Person(s)
to serve as custodian(s), transfer agent and/or shareholder servicing
agent for the Trust or one or more of its Series. Every such contract
shall comply with such terms as may be required by the Trustees.
(d) The Trustees are further empowered, at any time and
from time to time, to contract with any Persons to provide such other
services to the Trust or one or more of the Series, as the Trustees
determine to be in the best interests of the Trust and the applicable
Series.
(e) The fact that:
(i) any of the Holders, Trustees, or officers of the
Trust is a shareholder, director, officer, partner, trustee,
employee, Manager, adviser, Principal Underwriter,
distributor, or affiliate or agent of or for any Person with
which an advisory, management or administration contract, or
Principal Underwriter's or distributor's contract, or
transfer, shareholder servicing or other type of service
contract may be made, or that
(ii) any Person with which an advisory, management or
administration contract or Principal Underwriter's or
distributor's contract, or transfer, shareholder servicing
or other type of service contract may be made also has an
advisory, management or administration contract, or
principal underwriter's or distributor's contract, or
transfer, shareholder servicing or other service contract,
or has other business or interests with any other Person,
shall not affect the validity of any such contract or disqualify any
Holder, Trustee or officer of the Trust from voting upon or executing
the same, or create any liability or accountability to the Trust or
its Holders, provided approval of each such contract is made pursuant
to the applicable requirements of the 1940 Act.
ARTICLE V.
Holders' Voting Powers and Meetings
Section 1. Voting Powers. Subject to the provisions of
Article III, Sections 5 and 6(d), the Holders shall have right to vote
only (i) for removal of Trustees as provided in Article IV, Section 1,
and (ii) with respect to such additional matters relating to the Trust
as may be required by the applicable provisions of the 1940 Act,
including Section 16(a) thereof, and (iii) on such other matters as
the Trustees may consider necessary or desirable. Each whole Share
shall be entitled to one vote as to any matter on which it is entitled
to vote and each fractional Share shall be entitled to a proportionate
fractional vote. There shall be no cumulative voting in the election
of Trustees. Shares may be voted in person or by proxy. A proxy
purporting to be executed by or on behalf of a Holder shall be deemed
valid unless challenged at or prior to its exercise and the burden of
proving invalidity shall rest on the challenger.
Section 2. Voting Power and Meetings. Meetings of the
Holders may be called by the Trustees for the purposes described in
Section 1 of this Article V. A meeting of Holders may be held at any
place designated by the Trustees. Written notice of any meeting of
Holders shall be given or caused to be given by the Trustees by
delivering personally or mailing such notice at least seven (7) days
before such meeting, postage prepaid, stating the time and place of
the meeting, to each Holder at the Holder's address as it appears on
the records of the Trust. Whenever notice of a meeting is required to
be given to a Holder under this Declaration of Trust, a written waiver
thereof, executed before or after the meeting by such Holder or his or
her attorney thereunto authorized and filed with the records of the
meeting, or actual attendance at the meeting of Holders in person or
by proxy, shall be deemed equivalent to such notice.
Section 3. Quorum and Required Vote. Except when a larger
quorum is required by the applicable provisions of the 1940 Act, forty
percent (40%) of the Shares entitled to vote on a matter shall
constitute a quorum at a meeting of the Holders. Any meeting of
Holders may be adjourned from time to time by a majority of the votes
properly cast upon the question of adjourning a meeting to another
date and time, whether or not a quorum is present, and the meeting may
be held as adjourned within a reasonable time after the date set for
the original meeting without further notice. Subject to the
provisions of Article III, Section 6(d) and the applicable provisions
of the 1940 Act, when a quorum is present at any meeting, a majority
of the Shares voted shall decide any questions except only a plurality
vote shall be necessary to elect Trustees.
Section 4. Action by Written Consent. Any action taken by
Holders may be taken without a meeting if Holders holding a majority
of the Shares entitled to vote on the matter (or such larger
proportion thereof as shall be required by any express provision of
this Declaration of Trust or by the By-Laws) and holding a majority
(or such larger proportion as aforesaid) of the Shares of any Series
(or class) entitled to vote separately on the matter consent to the
action in writing and such written consents are filed with the records
of the meetings of Holders. Such consent shall be treated for all
purposes as a vote taken at a meeting of Holders.
Section 5. Record Dates. For the purpose of determining
the Holders who are entitled to vote or act at any meeting or any
adjournment thereof, the Trustees may fix a time, which shall be not
more than ninety (90) days before the date of any meeting of Holders,
as the record date for determining the Holders having the right to
notice of and to vote at such meeting and any adjournment thereof, and
in such case only Holders of record on such record date shall have
such right, notwithstanding any transfer of shares on the books of the
Trust after the record date. For the purpose of determining the
Holders who are entitled to receive payment of any dividend or of any
other distribution, the Trustees may fix a date, which shall be before
the date for the payment of such dividend or distribution, as the
record date for determining the Holders having the right to receive
such dividend or distribution. Nothing in this Section shall be
construed as precluding the Trustees from setting different record
dates for different Series.
ARTICLE VI.
Net Asset Value, Distributions, and Redemptions
Section 1. Determination of Net Asset Value, Net Income,
and Distributions. Subject to Article III, Section 6 hereof, the
Trustees, in their absolute discretion, may prescribe and shall set
forth in the By-laws or in a duly adopted resolution of the Trustees
such bases and time for determining the per Share net asset value of
the Shares of any Series and the net income attributable to the Shares
of any Series and the declaration and payment of dividends and
distributions on the Shares of any Series, as they may deem necessary
or desirable.
Section 2. Redemptions and Repurchases. The Trust shall
purchase such Shares as are offered by any Holder for redemption, upon
the presentation of a proper instrument of transfer together with a
request directed to the Trust or a Person designated by the Trust that
the Trust redeem such Shares or in accordance with such procedures for
redemption as the Trustees may from time to time authorize; and the
Trust will pay therefor the net asset value thereof, in accordance
with the By-Laws, the applicable provisions of the 1940 Act or as
further provided by resolution of the Trustees. Payment for said
Shares shall be made by the Trust to the Holder within seven days
after the date on which the request for redemption is received in
proper form. The obligation set forth in this Section 2 is subject to
the provision that in the event that any time the New York Stock
Exchange (the "Exchange") is closed for other than weekends or
holidays, or if permitted by the Rules of the Commission during
periods when trading on the Exchange is restricted or during any
emergency which makes it impracticable for the Trust to dispose of the
investments of the applicable Series or to determine fairly the value
of the net assets held with respect to such Series or during any other
period permitted by order of the Commission for the protection of
investors, such obligations may be suspended or postponed by the
Trustees.
The redemption price may in any case or cases be paid in
cash or wholly or partly in kind in accordance with Rule 18f-1 under
the 1940 Act if the Trustees determine that such payment is advisable
in the interest of the remaining Holders of the Series of which the
Shares are being redeemed. Subject to the foregoing, the selection
and quantity of securities or other property so paid or delivered as
all or part of the redemption price shall be determined by or under
authority of the Trustees. In no case shall the Trust be liable for
any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment in
kind.
Section 3. Redemptions at the Option of the Trust. The
Trust shall have the right, at its option, upon 60 days notice to the
affected Holder at any time to redeem Shares of such Holder at the net
asset value thereof as described in Section 1 of this Article VI or as
further provided by resolution of Trustees: (i) if at such time such
Holder owns Shares of any Series having an aggregate net asset value
of less than a minimum value determined from time to time by the
Trustees; or (ii) to the extent that such Holder owns Shares of a
Series equal to or in excess of a maximum percentage of the
outstanding Shares of such Series determined from time to time by the
Trustees; or (iii) to the extent that such Holder owns Shares equal to
or in excess of a maximum percentage, determined from time to time by
the Trustees, of the outstanding Shares of the Trust.
Section 4. Transfer of Shares. Except to the extent that
the Trustees have provided by resolution that the Shares of a Series
are non-transferrable, the Trust shall transfer shares held of record
by any Person to any other Person upon receipt by the Trust or a
Person designated by the Trust of a written request therefore in such
form and pursuant to such procedures as may be approved by the
Trustees.
ARTICLE VII.
Compensation and Limitation of Liability
Section 1. Compensation of Trustees. The Trustees as such
shall be entitled to reasonable compensation from the Trust, and they
may fix the amount of such compensation from time to time. Nothing
herein shall in any way prevent the employment of any Trustee to
provide advisory, management, legal, accounting, investment banking or
other services to the Trust and to be specially compensated for such
services by the Trust.
Section 2. Indemnification and Limitation of Liability.
The Trustees shall not be responsible or liable in any event for any
neglect or wrong-doing of any officer, agent, employee, Manager or
Principal Underwriter of the Trust, nor shall any Trustee be
responsible for the act or omission of any other Trustee, and, subject
to the provisions of the Bylaws, the Trust out of its assets may
indemnify and hold harmless each and every Trustee and officer of the
Trust from and against any and all claims, demands, costs, losses,
expenses, and damages whatsoever arising out of or related to such
Trustee's performance of his or her duties as a Trustee or officer of
the Trust; provided that nothing herein contained shall indemnify,
hold harmless or protect any Trustee or officer from or against any
liability to the Trust or any Holder to which he or she would
otherwise be subject by reason of wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of his or her office.
Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever issued, executed
or done by or on behalf of the Trust or the Trustees or any of them in
connection with the Trust shall be conclusively deemed to have been
issued, executed or done only in or with respect to their or his or
her capacity as Trustees or Trustee, and such Trustees or Trustee
shall not be personally liable thereon.
Section 3. Trustee's Good Faith Action, Expert Advice, No
Bond or Surety. The exercise by the Trustees of their powers
hereunder shall be binding upon everyone interested in or dealing with
the Trust. A Trustee shall be liable to the Trust and to any Holder
solely for his or her own wilful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct
of the office of Trustee, and shall not be liable for errors of
judgment or mistakes of fact or law. The Trustees may take advice of
counsel or other experts with respect to the meaning and operation of
this Declaration of Trust, and shall be under no liability for any act
or omission in accordance with such advice nor for failing to follow
such advice. The Trustees shall not be required to give any bond as
such, nor any surety if a bond is required.
Section 4. Insurance. The Trustees shall be entitled and
empowered to the fullest extent permitted by law to purchase with
Trust assets insurance for liability and for all expenses reasonably
incurred or paid or expected to be paid by a Trustee or officer in
connection with any claim, action, suit or proceeding in which he or
she becomes involved by virtue of his or her capacity or former
capacity with the Trust, whether or not the Trust would have the power
to indemnify him or her against such liability under the provisions of
this Article.
ARTICLE VIII.
Miscellaneous
Section 1. Liability of Third Persons Dealing with
Trustees. No Person dealing with the Trustees shall be bound to make
any inquiry concerning the validity of any transaction made or to be
made by the Trustees or to see to the application of any payments made
or property transferred to the Trust or upon its order.
Section 2. Termination of Trust or Series. Unless
terminated as provided herein, the Trust shall continue without
limitation of time. The Trust may be terminated at any time by the
Trustees upon 60 days prior written notice to the Holders. Any Series
may be terminated at any time by the Trustees upon 60 days prior
written notice to the Holders of that Series.
Upon termination of the Trust (or any Series, as the case
may be), after paying or otherwise providing for all charges, taxes,
expenses and liabilities held, severally, with respect to each Series
(or the applicable Series, as the case may be), whether due or accrued
or anticipated as may be determined by the Trustees, the Trust shall,
in accordance with such procedures as the Trustees consider
appropriate, reduce the remaining assets held, severally, with respect
to each Series (or the applicable Series, as the case may be), to
distributable form in cash or shares or other securities, and any
combination thereof, and distribute the proceeds held with respect to
each Series (or the applicable Series, as the case may be), (i) to the
Holders of a Series not taxable as partnerships for federal income tax
purposes, as a Series, ratably according to the number of Shares of
that Series held by the several Holders on the date of termination
and, (ii) to the Holders of a Series, as a Series, in accordance with
the positive Book Capital Account balances of the Holders.
Section 3. Merger and Consolidation. The Trustees may
cause (i) the Trust or one or more of its Series to the extent
consistent with applicable law to be merged into or consolidated with
another Trust, series or Person, (ii) the Shares of the Trust or any
Series to be converted into beneficial interests in another business
trust (or series thereof), (iii) the Shares to be exchanged for assets
or property under or pursuant to any state or federal statute to the
extent permitted by law or (iv) a sale of assets of the Trust or one
or more of its Series. Such merger or consolidation, Share
conversion, Share exchange or sale of assets must be authorized by
vote as provided in Article V, Section 3 herein; provided that in all
respects not governed by statute or applicable law, the Trustees shall
have power to prescribe the procedure necessary or appropriate to
accomplish a sale of assets, Share exchange, merger or consolidation
including the power to create one or more separate business trusts to
which all or any part of the assets, liabilities, profits or losses of
the Trust may be transferred and to provide for the conversion of
Shares of the Trust or any Series into beneficial interests in such
separate business trust or trusts (or series thereof).
Section 4. Amendments. This Declaration of Trust may be
restated and/or amended at any time by an instrument in writing signed
by a majority of the Trustees then holding office. Any such
restatement and/or amendment hereto shall be effective immediately
upon execution and approval. The Certificate of Trust of the Trust
may be restated and/or amended by a similar procedure, and any such
restatement and/or amendment shall be effective immediately upon
filing with the Office of the Secretary of State of the State of
Delaware or upon such future date as may be stated therein.
Section 5. Filing of Copies, References, Headings. The
original or a copy of this instrument and of each restatement and/or
amendment hereto shall be kept at the office of the Trust where it may
be inspected by any Holder. Anyone dealing with the Trust may rely on
a certificate by an officer of the Trust as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Trust hereunder; and, with the same effect as if
it were the original, may rely on a copy certified by an officer of
the Trust to be a copy of this instrument or of any such restatements
and/or amendments. In this instrument and in any such restatements
and/or amendment, references to this instrument, and all expressions
like "herein," "hereof" and "hereunder," shall be deemed to refer to
this instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference
only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and
the neuter, masculine and feminine genders shall include each other,
as applicable. This instrument may be executed in any number of
counterparts each of which shall be deemed an original.
Section 6. Applicable Law. This Agreement and Declaration
of Trust is created under and is to be governed by and construed and
administered according to the laws of the State of Delaware and the
Delaware Business Trust Act, as amended from time to time (the "Act").
The Trust shall be a Delaware business trust pursuant to such Act, and
without limiting the provisions hereof, the Trust may exercise all
powers which are ordinarily exercised by such a business trust.
Section 7. Provisions in Conflict with Law or Regulations.
(a) The provisions of the Declaration of Trust are
severable, and if the Trustees shall determine, with the advice of
counsel, that any of such provisions is in conflict with the 1940 Act,
the regulated investment company provisions of the Internal Revenue
Code or with other applicable laws and regulations, the conflicting
provision shall be deemed never to have constituted a part of the
Declaration of Trust; provided, however, that such determination shall
not affect any of the remaining provisions of the Declaration of Trust
or render invalid or improper any action taken or omitted prior to
such determination.
(b) If any provision of the Declaration of Trust shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in any
other jurisdiction or any other provision of the Declaration of Trust
in any jurisdiction.
Section 8. Business Trust Only. It is the intention of the
Trustees to create a business trust pursuant to the Act, and thereby
to create only the relationship of trustee and beneficial owners
within the meaning of such Act between the Trustees and each Holder.
Except to the extent provided by resolution of the Trustees
establishing a Series intended to be classified as a partnership for
federal income tax purposes, it is not the intention of the Trustees
to create a general partnership, limited partnership, joint stock
association, corporation, bailment, joint venture, or any form of
legal relationship other than a business trust pursuant to such Act,
and except as so provided in such resolution, nothing in this
Declaration of Trust shall be construed to make the Holders, either by
themselves or with the Trustees, partners or members of a joint stock
association.
Section 9. Use of the Name "KIEWIT". The name "KIEWIT" and
all rights to the use of the name "KIEWIT" belongs to Kiewit
Investment Management ("XXX"), the Manager of the Trust. XXX has
consented to the use by the Trust of the identifying word "KIEWIT" and
has granted to the Trust a non-exclusive license to use the name
"KIEWIT" as part of the name of the Trust and the name of any Series
of Shares. In the event KIEWIT or an affiliate of XXX is not
appointed as Manager or ceases to be the Manager of the Trust or of
any Series using such names, the non-exclusive license granted herein
may be revoked by XXX and the Trust promptly shall cease using the
name "KIEWIT" as part of its name or the name of any Series of Shares,
upon receipt of the written request therefore by XXX or any successor
to its interests in such name.
IN WITNESS WHEREOF, the Trustees named below do hereby make
and enter into this Declaration of Trust of Kiewit Investment Trust as
of this 19th day of February, 1997.
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
/s/ Xxxxxx Xxx Xxxxxx
Xxxxxx Xxx Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
0000 X. Xxxxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Exhibit No. 24(b)(1)(ii)
CERTIFICATE OF TRUST
OF
KIEWIT INVESTMENT TRUST
a Delaware Business Trust
This Certificate of Trust of KIEWIT INVESTMENT TRUST (the
"Trust"), dated as of this 23rd day of January, 1997, is being duly
executed and filed, in order to form a business trust pursuant to the
Delaware Business Trust Act (the "Act"), Del. Code Xxx. tit. 12,
Section 3801-3819.
1. NAME. The name of the business trust formed hereby is
"KIEWIT INVESTMENT TRUST."
2. REGISTERED OFFICE AND REGISTERED AGENT. The Trust will
become, prior to the issuance of shares of beneficial interest, a
registered investment company under the Investment Company Act of
1940, as amended. Therefore, in accordance with section 3807(b) of
the Act, the Trust has and shall maintain in the State of Delaware a
registered office and a registered agent for service of process.
(a) REGISTERED OFFICE. The registered office of the
Trust in Delaware is The Corporation Trust Company, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
(b) REGISTERED AGENT. The registered agent for
service of process on the Trust in Delaware is The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
3. LIMITATION OF LIABILITY. Pursuant to section 3804(a)
of the Act, the debts, liabilities, obligations and expenses incurred,
contracted for or otherwise existing with respect to a particular
series of the Trust, established pursuant to the terms of the
Agreement and Declaration of Trust of the Trust, shall be enforceable
against the assets of such series only, and not against the assets of
the Trust generally.
IN WITNESS WHEREOF, the Trustee named below does hereby
execute this Certificate of Trust as of the date first-above written.
/s/Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
Exhibit No. 24(b)(2)
KIEWIT INVESTMENT TRUST
A Delaware Business Trust
* * * * * * * * *
BY-LAWS
* * * * * * * * *
ARTICLE I
Offices
Section 1. Delaware Office. The registered office of The
Kiewit Investment Trust (the "Trust") in Delaware shall be located at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and the name and
address of its Resident Agent for service of process is The
Corporation Trust Company.
Section 2. Other Offices. The Trust shall also
have a place of business in Omaha, Nebraska, and the Trust shall have
the power to open additional offices for the conduct of its business,
either within or outside the States of Delaware and Nebraska, at such
places as the Board of Trustees may from time to time designate.
ARTICLE II
Meetings of Holders
Section 1. Place of Meeting. Meetings of record owners of
outstanding shares of the Trust ("Holders") shall be held at any place
designated by the Board of Trustees. In the absence of any such
designation, Holders' meetings shall be held at the Trust's office in
Omaha.
Section 2. Call of Meetings. Meetings of the Holders may
be called at any time by the President, or by a majority of the Board
of Trustees. The Board of Trustees shall call a meeting of Holders
for the purpose of voting upon the question of removal of one or more
Trustees upon the written request of the holders of not less than ten
percent of the outstanding shares.
Section 3. Voting. The holders of each share of beneficial
interest of the Trust then issued and outstanding and entitled to
vote, irrespective of the series, shall be voted in the aggregate and
not by series, except: (1) when otherwise expressly provided by the
Agreement and Declaration of Trust; and (2) when required by the
Investment Company Act of 1940, as amended, shares shall be voted by
series.
A holder may cast his vote in person or by proxy, but no
proxy shall be valid after eleven months from its date, unless
otherwise provided in the proxy. At all meetings of Holders, unless
the voting is conducted by inspectors, all questions relating to the
qualification of voters and the validity of proxies and the acceptance
or rejection of votes shall be decided by the Chairman of the meeting.
Section 4. Inspectors. At any election of Trustees, the
Board of Trustees prior thereto may, or, if they have not so acted,
the Chairman of the meeting may, and upon the request of the holders
of ten percent of the shares entitled to vote at such election shall,
appoint two inspectors of election who shall first subscribe an oath
of affirmation to execute faithfully the duties of inspectors at such
election with strict impartiality and according to the best of their
ability, and shall after the election make a certificate of the result
of the vote taken. No candidate for the office of Trustee shall be
appointed such inspector. The Chairman of the meeting may cause a
vote by ballot to be taken upon any election or matter, and such vote
shall be taken upon the request of the Holders of ten percent of the
shares entitled to vote on such election or matter.
ARTICLE III
Trustees
Section 1. Place of Meeting. Meetings of the Board of
Trustees, regular or special, may be held at any place in or out of
the State of Delaware as the Board may from time to time determine.
Section 2. Telephone Meeting. Members of the Board of
Trustees or a committee of the Board of Trustees may participate in a
meeting by means of a conference telephone or similar communications
equipment if all persons participating in the meeting can hear each
other at the same time.
Section 3. Quorum. At all meetings of the Board of
Trustees a majority of the entire Board of Trustees shall constitute a
quorum for the transaction of business and the action of a majority of
the Trustees present at any meeting at which a quorum is present shall
be the action of the Board of Trustees unless the concurrence of a
greater or different proportion is required for such action by the
Investment Company Act of 1940. If a quorum shall not be present at
any meeting of Trustees, the Trustees present thereat may by a
majority vote adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be
present.
Section 4. Regular Meetings. Regular meetings of the Board
of Trustees may be held without notice at such time and place as shall
from time to time be determined by the Board of Trustees.
Section 5. Special Meetings. Special meetings of the Board
of Trustees may be called by the President on one day's notice to each
Trustee; special meetings shall be called by the President or
Secretary in like manner and on like notice on the written request of
two Trustees.
Section 6. Informal Actions. Any action required or
permitted to be taken at any meeting of the Board of Trustees or of
any Committee thereof may be taken without a meeting if a written
consent to such action is signed in one or more counterparts by all
members of the Board or of such Committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the
Board or Committee.
Section 7. Committees. The Board of Trustees may by
resolution passed by a majority of the whole Board appoint from among
its members an executive committee and other committees composed of
two or more Trustees, and may delegate to such committees, in the
intervals between meetings of the Board of Trustees, any or all of the
powers of the Board of Trustees in the management of the business and
affairs of the Trust. In the absence of any member of such committee,
the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint a member of the Board of Trustees to
act in the place of such absent member.
Section 8. Action of Committee. A committee shall report
its actions and recommendations to the Board of Trustees at the Board
meeting next succeeding the committee meeting, and any action by a
committee shall be subject to revision and alteration by the Board of
Trustees, provided that no rights, of third persons shall be affected
by any such revision or alteration.
Section 9. Compensation. Any Trustee, whether or not he is
a salaried officer or employee of the Trust, may be compensated for
his services as Trustee or as a member of a committee of Trustees, or
as Chairman of the Board or Chairman of a committee by fixed periodic
payments or by fees for attendance at meetings or by both, and may be
reimbursed for transportation and other expenses, all in such manner
and amounts as the Board of Trustees may from time to time determine.
ARTICLE IV
Notices
Section 1. Form. Notices to Trustees shall be oral or by
telephone, facsimile, or telegram or in writing delivered personally
or mailed to the Trustees at their addresses appearing on the books of
the Trust. Notice by mail shall be deemed to be given at the time
when the same shall be mailed. Notice to Trustees need not state the
purpose of a regular or special meeting.
Section 2. Waiver. Whenever any notice of the time, place
or purpose of any meeting of the Trustees or committee is required to
be given under the provisions of these By-Laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice and
filed with the records of the meeting, whether before or after the
holding thereof, or actual attendance at the meeting of Trustees or
committee in person, shall be deemed equivalent to the giving of such
notice to such persons.
ARTICLE V
Officers
Section 1. Number. The officers of the Trust shall be
chosen by the Board of Trustees and shall include: a President who
shall be the Chief Executive Officer of the Trust and a Trustee; a
Secretary; and a Treasurer. The Board of Trustees may, from time to
time, elect or appoint a Controller, one or more Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Two or more offices
may be held by the same person but no officer shall execute,
acknowledge or verify any instrument in more than one capacity, if
such instrument is required by law, the Agreement and Declaration of
Trust or these By-Laws to be executed, acknowledged or verified by two
or more officers.
Section 2. Election. The Board of Trustees shall choose a
President, a Secretary and a Treasurer who shall each serve until
their successors are chosen and shall qualify.
Section 3. Other Officers. The Board of Trustees from time
to time may appoint such other officers and agents as it shall deem
advisable, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined
from time to time by the Board. The Board of Trustees from time to
time may delegate to one or more officers or agents the power to
appoint any such subordinate officers or agents and to prescribe the
respective rights, terms of office, authorities and duties.
Section 4. Compensation. The salaries or other
compensation of all officers and agents of the Trust shall be fixed by
the Board of Trustees, except that the Board of Trustees may delegate
to any person or group of persons the power to fix the salary or other
compensation of any subordinate officers or agents appointed pursuant
to Section 3 of this Article V.
Section 5. Tenure. The officers of the Trust shall serve
until their successors are chosen and qualify. Any officer or agent
may be removed by the affirmative vote of a majority of the Board of
Trustees whenever, in its judgment, the best interests of the Trust
will be served thereby. Any vacancy occurring in any office of the
Trust by death, resignation, removal or otherwise shall be filled by
the Board of Trustees.
Section 6. President-Chief Operating Officer. The
President shall be the chief operating officer of the Trust; he shall
see that all orders and resolutions of the Board are carried into
effect. The President shall perform such other duties and have such
other powers as the Board of Trustees may from time to time prescribe.
In the absence or disability of the President, the most senior Vice
President shall perform the duties of the President.
Section 7. Vice-Presidents. The Vice-Presidents, in the
order of their seniority, shall in the absence or disability of the
President, perform the duties and exercise the powers of the President
and shall perform such other duties as the Board of Trustees may from
time to time prescribe.
Section 8. Secretary. The Secretary and/or an Assistant
Secretary shall attend such meetings of the Board of Trustees as the
Trustees shall determine and all meetings of the Holders and record
all the proceedings thereof and shall perform like duties for any
committee when required. The Secretary shall give, or cause to be
given, notice of meetings of the Holders and of the Board of Trustees,
and shall perform such other duties as may be prescribed by the Board
of Trustees or President, under whose supervision the Secretary shall
be.
Section 9. Assistant Secretaries. The Assistant
Secretaries, in order of their seniority, shall in the absence or
disability of the Secretary, perform the duties and exercise the
powers of the Secretary and shall perform such other duties as the
Board of Trustees shall prescribe.
Section 10. Treasurer. The Treasurer, unless another
officer of the Trust has been so designated, shall be the chief
financial officer of the Trust. He shall be responsible for the
maintenance of its accounting records and shall render to the Board of
Trustees, at its regular meetings, or when the Board of Trustees so
requires, an account of all the Trust's financial transactions and a
report of the financial condition of the Trust.
Section 11. Controller. The Board of Trustees may
designate a Controller who shall be under the direct supervision of,
or may be the same person as, the Treasurer. He shall maintain
adequate records of all assets, liabilities and transactions of the
Trust, establish and maintain internal accounting control and, in
cooperation with the independent public accountants selected by the
Board of Trustees shall supervise internal auditing. He shall have
such further powers and duties as may be conferred upon him from time
to time by the President or the Board of Trustees.
Section 12. Assistant Treasurers. The Assistant
Treasurers, in the order of their seniority, shall in the absence or
disability of the Treasurer, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties as the
Board of Trustees may from time to time prescribe.
ARTICLE VI
Net Asset Value
Section 1. Net Asset Value. The net asset value per share
of beneficial interest of each Series of the Trust shall be determined
by dividing the total current market value of the investments and
other assets belonging to each Series, less any liabilities
attributable to such Series, by the total outstanding shares of such
Series. Securities which are listed on a securities exchange for
which market quotations are available shall be valued at the last
quoted sale price of the day or, if there is no such reported sale, at
the mean between the most recent quoted bid and asked prices. Price
information on listed securities will be taken from the exchange where
the security is primarily traded. Unlisted securities for which
market quotations are readily available will be valued at the mean
between the most recent quoted bid and asked prices. The value of
other assets and securities for which no quotations are readily
available (including restricted securities) will be determined in good
faith at fair value using methods determined by the Board of Trustees.
The net asset value per share of each Series shall be
determined as of the close of the New York Stock Exchange on each day
that the Exchange is open for business, except as otherwise described
in the registration statement of the Trust filed under the Investment
Company Act of 1940.
Securities which are traded over-the-counter and on a
stock exchange may be valued according to the broadest and most
representative market for such securities. Securities may be valued
on the basis of prices provided by a pricing service when such prices
are believed to reflect the current market value of such securities.
Section 2. Fair Value. If events which materially affect
the value of the investments of any Series occur subsequent to the
close of any foreign markets, if applicable, on which securities held
by those Series are traded, the investments affected thereby will be
valued at fair value in good faith and in accordance with methods
determined by the Board of Trustees.
ARTICLE VII
Shares of Beneficial Interest
Section 1. Certificates. A certificate or certificates
which shall certify the Series of shares and the number of shares of
beneficial interest of such Series owned by a holder in the Trust will
not be issued except as the Board of Trustees may otherwise determine
from time to time. Any such certificate issued shall be signed by the
President or a Vice-President and counter-signed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant Treasurer.
Section 2. Signature. Where a certificate is signed (1) by
a transfer agent or an assistant transfer agent or (2) by a transfer
clerk acting on behalf of the Trust and a registrar, the signature of
any such President, Vice-President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be a facsimile. In case any
officer who has signed any certificate ceases to be an officer of the
Trust before the certificate is issued, the certificate may
nevertheless be issued by the Trust with the same effect as if the
officer had not ceased to be such officer as of the date of its issue.
Section 3. Recording and Transfer without Certificates. The
Trust shall have full power to participate in any program approved by
the Board of Trustees providing for the recording and transfer of
ownership of shares of the Trust's shares of beneficial interest by
electronic or other means without the issuance of certificates.
Section 4. Lost Certificates. The Board of Trustees may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Trust alleged to
have been stolen, lost or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be
stolen, lost or destroyed, or upon other satisfactory evidence of such
loss or destruction. When authorizing such issuance of a new
certificate or certificates, the Board of Trustees may, in its
discretion and as a condition precedent to the issuance thereof,
require the owner of such stolen, lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in
such manner as it shall require and to give the Trust a bond with
sufficient surety, to the Trust to indemnify it against any loss or
claim that may be made by reason of the issuance of a new certificate.
Section 5. Registered Holders. The Trust shall be entitled
to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such
owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof,
except as otherwise provided by laws of Delaware.
Section 6. Transfer Agents and Registrars. The Board of
Trustees may, from time to time, appoint or remove transfer agents
and/or registrars of transfers of shares of beneficial interest of the
Trust, and it may appoint the same person as both transfer agent and
registrar. Upon any such appointment being made all certificates
representing shares of beneficial interest thereafter issued shall be
countersigned by one of such transfer agents or by one of such
registrars of transfers or by both and shall not be valid unless so
countersigned. If the same person shall be both transfer agent and
registrar, only countersignature by such person shall be required.
Section 7. Share Ledger. The Trust shall maintain an
original share ledger containing the names and addresses of all
Holders and the number and Series of shares held by each holder. Such
share ledger may be in written form or any other form capable of being
converted into written form within a reasonable time for visual
inspection.
Section 8. Transfers of Shares. If the shares of a Series
are transferable, upon surrender to the Trust or the Transfer Agent of
the Trust of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment, or authority to transfer,
it shall be the duty of the Trust to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the
transaction upon its books.
ARTICLE IX
General Provisions
Section 1. Dividends. With respect to dividends (including
"dividends" designated as "short" or "long" term "capital gains"
distributions to satisfy requirements of the Investment Company Act of
1940 or the Internal Revenue Code of 1986, as amended):
(a) All dividends and distributions on shares shall be
automatically reinvested solely in additional shares (or fractions
thereof) of the Series of shares of beneficial interest in respect of
which such dividends were declared at the net asset value on the
reinvestment date; provided however, a holder may elect to receive
dividends and distributions in cash to the extent provided in the
Trust's registration statement filed under the Investment Company Act
of 1940.
(b) Dividends or distributions on shares of beneficial
interest, whether payable in shares of beneficial interest or cash,
shall be paid out of earnings, surplus or other lawfully available
assets; provided that each dividend or distribution may be made wholly
or partly from any source, accompanied by a written statement clearly
indicating what portion of such payment per share is made from the
following sources:
(i) accumulated or undistributed net income, not
including profits or losses from the sale of securities or other
properties;
(ii) accumulated or undistributed net profits from the
sale of securities or other properties;
(iii) net profits from the sale of securities or other
properties during the then current fiscal year; and
(iv) paid-in surplus or other capital source.
(c) Except to the extent that the Trustees have intended
for a Series to be classified as a Partnership for federal income tax
purposes, in declaring dividends and in recognition that the one goal
of the Trust is to qualify as a "regulated investment company" under
the Internal Revenue Code of 1986, as amended, the Board of Trustees
shall be entitled to rely upon estimates made in the last two months
of the fiscal year (with the advice of the Trust's auditors) as to the
amounts of distribution necessary for this purpose; and the Board of
Trustees, acting consistently with good accounting practice and with
the express provisions of these By-Laws, may credit receipts and
charge payments to income or otherwise, as to it may seem proper.
(d) Anything in these By-Laws to the contrary
notwithstanding, the Board of Trustees may at any time declare and
distribute pro rata among the Holders of a record date fixed as above
provided, a "share dividend" out of either authorized but unissued or
treasury shares of a Series or both.
Section 2. Rights in Securities. The Board of Trustees, on
behalf of the Trust, shall have the authority to exercise all of the
rights of the Trust as owner of any securities which might be
exercised by any individual owning such securities in his own right;
including but not limited to, the rights to vote by proxy for any and
all purposes (including the right to authorize any officer or the
investment manager to execute proxies), to consent to the
reorganization, merger or consolidation of any company or to consent
to the sale, lease or mortgage of all or substantially all of the
property and assets of any company; and to exchange any of the shares
of stock of any company for the shares of stock issued therefor upon
any such reorganization, merger, consolidation, sale lease or
mortgage.
Section 3. Claims Against Series Assets. Each Series of
the Trust shall provide in any loan agreement and any other agreement
to pledge, mortgage or hypothecate any of its assets that such loan
shall be repaid solely by the Series which borrowed funds, that to the
extent such loan may be secured only by the assets of the Series which
obtained the loan, no creditor of such Series shall have any rights to
any assets of the Trust other than the specific assets which secure
such loan.
Section 4. Reports. The Trust shall furnish Holders with
reports of its financial condition as required by Section 30(d) of the
Investment Company Act of 1940 and the rules thereunder.
Section 5. Bonding of Officers and Employees. All officers
and employees of the Trust shall be bonded to such extent, and in such
manner, as may be required by law.
Section 6. Fiscal Year. Unless otherwise provided by
resolution of the Board of Trustees, the fiscal year of the Trust
shall begin July 1 and end on the last day of June.
ARTICLE X
Indemnification of Trustees and Officers
Section 1. Proceedings and Expenses. For the
purpose of this Article, "proceeding" means any threatened,
pending or completed action or proceeding, whether civil,
criminal, administrative or investigative; and "expenses"
includes all expenses and costs reasonably incurred in connection
with such proceeding and any expenses of establishing a right to
indemnification under this Article.
Section 2. Indemnification. The Trust may indemnify
any Trustee or officer of the Trust who was or is a party or is
threatened to be made a party to any proceeding or claim by
reason of the fact that such person is a Trustee or officer of
the Trust, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with
such proceeding, if it is determined that such person acted in
good faith and reasonably believed: (a) that his conduct was in
the Trust's best interests and (b) in the case of a criminal
proceeding, that he had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not of itself create a
presumption that the person did not act in good faith and in a
manner which the person reasonably believed to be in the best
interests of the Trust or that the person had reasonable cause to
believe that his conduct was unlawful.
Section 3. Exclusion of Indemnification. Notwith-
standing any provision to the contrary contained herein, the
Trust shall not indemnify any Trustee or officer for any
liability arising by reason of willful misfeasance, bad faith,
gross negligence, or the reckless disregard of the duties
involved in the conduct of such person's office, or in respect of
any claim or proceeding as to which such person shall have been
adjudged to be liable on the basis that personal benefit was
improperly received by him, whether or not the benefit resulted
from an action taken in the person's official capacity.
Section 4. Successful Defense. Subject to Section 3
of this Article, to the extent that a Trustee or officer has been
successful on the merits in defense of any proceeding referred to
in Section 2 of this Article or in defense of any claim, issue or
matter therein, before the court or other body before whom the
proceeding was brought, such person shall be indemnified against
expenses actually and reasonably incurred by him in connection
therewith.
Section 5. Required Approval. Any indemnification
under this Article may be made by the Trust only if authorized in
the specific case on a determination that indemnification of the
indemnitee is proper hereunder by:
(a) A majority vote of Trustees who are not parties to
the proceeding or subject to the claim or if there
are no such Trustees;
(b) By a written opinion of independent legal counsel.
Section 6. Advance of Expenses. Expenses incurred in
defending any proceeding may be advanced by the Trust before the
final disposition of the proceeding upon (a) receipt of a written
undertaking by or on behalf of an officer or Trustee, such
undertaking being an unlimited general obligation to repay the
amount of the advance if it is ultimately determined that he or
she is not entitled to indemnification hereunder. Authorizations
of payments under this Section must be made in the manner
specified in Section 5 of this Article.
Section 7. Insurance. The Trust may purchase
insurance for any liability that may be incurred by the Trust,
the Trustees, officers and agents of the Trust.
ARTICLE XI
Amendments
Section 1. These By-Laws may be altered or repealed
at any Regular or Special Meeting of the Board of Trustees.
Exhibit 24(b)(5)(i)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Money
Market Series of the Fund (the "Series"), to continuously review,
supervise and administer the Series' investment program, to
determine in its discretion the securities to be purchased or
sold and the portion of the Series' assets to be uninvested, to
provide the Fund with records concerning the Manager's activities
which the Fund is required to maintain, and to render regular
reports to the Fund's officers and the Board of Trustees of the
Fund, all in compliance with the Series' investment objective,
policies and limitations set forth in the Fund's registration
statement and applicable laws and regulations. Subject to
compliance with the requirements of the Investment Company Act of
1940 (the "1940 Act"), the Manager may retain, at the Manager's
own expense, one or more sub-advisers to the Series. The Manager
accepts such employment and agrees to provide, at its own
expense, the office space, furnishings and equipment and the
personnel required by it to perform the services described herein
on the terms and for the compensation provided herein.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series and is directed to use its best efforts
to obtain the best available price and most favorable execution,
except as prescribed herein. It is understood that the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. The
Manager will promptly communicate to the officers and trustees of
the Fund such information relating to transactions for the Series
as they may reasonably request.
3. Compensation of the Manager
For the services to be rendered by the Manager as
provided in Section 1 of this Agreement, the Fund shall pay to
the Manager, at the end of each month, a fee equal to one-twelfth
of .20 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
At the request of the Fund, the Manager, in its
discretion, may make available to the Fund office facilities,
equipment, personnel and other services. Such office facilities,
equipment, personnel and service shall be provided for or
rendered by the Manager and billed to the Fund at the Manager's
cost and, where applicable, the cost thereof shall be apportioned
among the several Series of the Fund proportionate to their
respective utilization thereof.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
The services of the Manager to the Fund or in respect
of the Series, are not to be deemed exclusive, and the Manager
shall be free to render similar services to others as long as its
services to the Fund or in respect of the Series, are not
impaired thereby. The Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Fund in any way or otherwise be deemed an agent of the Fund.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
Subject to and in accordance with the Agreement and
Declaration of Trust of the Fund and the charter of the Manager,
trustees, officers, and shareholders of the Fund are or may be
interested in the Manager (or any successor thereof) as
directors, officers or shareholders, or otherwise; directors,
officers, agents and shareholders of the Manager are or may be
interested in the Fund as trustees, officers, shareholders or
otherwise; and the Manager (or any successor) is or may be
interested in the Fund as a shareholder or otherwise and the
effect of any such interrelationships shall be governed by said
agreement and declaration of trust and charter and the provisions
of the 1940 Act.
9. Duration and Termination
This Agreement shall become effective on the date first
written above and shall continue in effect for a period of two
years from such date, and thereafter only if such continuance is
approved at least annually by a vote of the Fund's Board of
Trustees, including the vote of a majority of the trustees who
are not parties to this Agreement or interested persons of any
such party, cast in person, at a meeting called for the purpose
of voting on such approval. In addition, the question of
continuance of this Agreement may be presented to the
shareholders of the Series; in such event, such continuance shall
be effected only if approved by the affirmative vote of the
holders of a majority of the outstanding voting securities of the
Series.
This Agreement may at any time be terminated without
payment of any penalty either by vote of the Board of Trustees of
the Fund or by vote of the holders of a majority of the
outstanding voting securities of the Series, on sixty days'
written notice to the Manager.
This Agreement shall automatically terminate in the
event of its assignment.
This Agreement may be terminated by the Manager after
ninety days' written notice to the Fund.
Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the
other party at any office of such party.
As used in this Section 9, the terms "assignment,"
"interested persons," and a "vote of the holders of a majority of
the outstanding voting securities" shall have the respective
meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act and Rule l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
KIEWIT INVESTMENT TRUST
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
Exhibit NO. 24(b)(5)(ii)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Short-
Term Government Series of the Fund (the "Series"), to
continuously review, supervise and administer the Series'
investment program, to determine in its discretion the securities
to be purchased or sold and the portion of the Series' assets to
be uninvested, to provide the Fund with records concerning the
Manager's activities which the Fund is required to maintain, and
to render regular reports to the Fund's officers and the Board of
Trustees of the Fund, all in compliance with the Series'
investment objective, policies and limitations set forth in the
Fund's registration statement and applicable laws and
regulations. Subject to compliance with the requirements of the
Investment Company Act of 1940 (the "1940 Act"), the Manager may
retain, at the Manager's own expense, one or more sub-advisers to
the Series. The Manager accepts such employment and agrees to
provide, at its own expense, the office space, furnishings and
equipment and the personnel required by it to perform the
services described herein on the terms and for the compensation
provided herein.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series and is directed to use its best efforts
to obtain the best available price and most favorable execution,
except as prescribed herein. It is understood that the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. The
Manager will promptly communicate to the officers and trustees of
the Fund such information relating to transactions for the Series
as they may reasonably request.
3. Compensation of the Manager
For the services to be rendered by the Manager as
provided in Section 1 of this Agreement, the Fund shall pay to
the Manager, at the end of each month, a fee equal to one-twelfth
of .30 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
At the request of the Fund, the Manager, in its
discretion, may make available to the Fund office facilities,
equipment, personnel and other services. Such office facilities,
equipment, personnel and service shall be provided for or
rendered by the Manager and billed to the Fund at the Manager's
cost and, where applicable, the cost thereof shall be apportioned
among the several Series of the Fund proportionate to their
respective utilization thereof.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
The services of the Manager to the Fund or in respect
of the Series, are not to be deemed exclusive, and the Manager
shall be free to render similar services to others as long as its
services to the Fund or in respect of the Series, are not
impaired thereby. The Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Fund in any way or otherwise be deemed an agent of the Fund.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
Subject to and in accordance with the Agreement and
Declaration of Trust of the Fund and the charter of the Manager,
trustees, officers, and shareholders of the Fund are or may be
interested in the Manager (or any successor thereof) as
directors, officers or shareholders, or otherwise; directors,
officers, agents and shareholders of the Manager are or may be
interested in the Fund as trustees, officers, shareholders or
otherwise; and the Manager (or any successor) is or may be
interested in the Fund as a shareholder or otherwise and the
effect of any such interrelationships shall be governed by said
agreement and declaration of trust and charter and the provisions
of the 1940 Act.
9. Duration and Termination
This Agreement shall become effective on the date first
written above and shall continue in effect for a period of two
years from such date, and thereafter only if such continuance is
approved at least annually by a vote of the Fund's Board of
Trustees, including the vote of a majority of the trustees who
are not parties to this Agreement or interested persons of any
such party, cast in person, at a meeting called for the purpose
of voting on such approval. In addition, the question of
continuance of this Agreement may be presented to the
shareholders of the Series; in such event, such continuance shall
be effected only if approved by the affirmative vote of the
holders of a majority of the outstanding voting securities of the
Series.
This Agreement may at any time be terminated without
payment of any penalty either by vote of the Board of Trustees of
the Fund or by vote of the holders of a majority of the
outstanding voting securities of the Series, on sixty days'
written notice to the Manager.
This Agreement shall automatically terminate in the
event of its assignment.
This Agreement may be terminated by the Manager after
ninety days' written notice to the Fund.
Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the
other party at any office of such party.
As used in this Section 9, the terms "assignment,"
"interested persons," and a "vote of the holders of a majority of
the outstanding voting securities" shall have the respective
meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act and Rule l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
KIEWIT INVESTMENT TRUST
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
Exhibit No. 24(b)(5)(iii)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit
Intermediate-Term Bond Series of the Fund (the "Series"), to
continuously review, supervise and administer the Series'
investment program, to determine in its discretion the securities
to be purchased or sold and the portion of the Series' assets to
be uninvested, to provide the Fund with records concerning the
Manager's activities which the Fund is required to maintain, and
to render regular reports to the Fund's officers and the Board of
Trustees of the Fund, all in compliance with the Series'
investment objective, policies and limitations set forth in the
Fund's registration statement and applicable laws and
regulations. Subject to compliance with the requirements of the
Investment Company Act of 1940 (the "1940 Act"), the Manager may
retain, at the Manager's own expense, one or more sub-advisers to
the Series. The Manager accepts such employment and agrees to
provide, at its own expense, the office space, furnishings and
equipment and the personnel required by it to perform the
services described herein on the terms and for the compensation
provided herein.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series and is directed to use its best efforts
to obtain the best available price and most favorable execution,
except as prescribed herein. It is understood that the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. The
Manager will promptly communicate to the officers and trustees of
the Fund such information relating to transactions for the Series
as they may reasonably request.
3. Compensation of the Manager
For the services to be rendered by the Manager as
provided in Section 1 of this Agreement, the Fund shall pay to
the Manager, at the end of each month, a fee equal to one-twelfth
of .40 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
At the request of the Fund, the Manager, in its
discretion, may make available to the Fund office facilities,
equipment, personnel and other services. Such office facilities,
equipment, personnel and service shall be provided for or
rendered by the Manager and billed to the Fund at the Manager's
cost and, where applicable, the cost thereof shall be apportioned
among the several Series of the Fund proportionate to their
respective utilization thereof.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
The services of the Manager to the Fund or in respect
of the Series, are not to be deemed exclusive, and the Manager
shall be free to render similar services to others as long as its
services to the Fund or in respect of the Series, are not
impaired thereby. The Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Fund in any way or otherwise be deemed an agent of the Fund.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
Subject to and in accordance with the Agreement and
Declaration of Trust of the Fund and the charter of the Manager,
trustees, officers, and shareholders of the Fund are or may be
interested in the Manager (or any successor thereof) as
directors, officers or shareholders, or otherwise; directors,
officers, agents and shareholders of the Manager are or may be
interested in the Fund as trustees, officers, shareholders or
otherwise; and the Manager (or any successor) is or may be
interested in the Fund as a shareholder or otherwise and the
effect of any such interrelationships shall be governed by said
agreement and declaration of trust and charter and the provisions
of the 1940 Act.
9. Duration and Termination
This Agreement shall become effective on the date first
written above and shall continue in effect for a period of two
years from such date, and thereafter only if such continuance is
approved at least annually by a vote of the Fund's Board of
Trustees, including the vote of a majority of the trustees who
are not parties to this Agreement or interested persons of any
such party, cast in person, at a meeting called for the purpose
of voting on such approval. In addition, the question of
continuance of this Agreement may be presented to the
shareholders of the Series; in such event, such continuance shall
be effected only if approved by the affirmative vote of the
holders of a majority of the outstanding voting securities of the
Series.
This Agreement may at any time be terminated without
payment of any penalty either by vote of the Board of Trustees of
the Fund or by vote of the holders of a majority of the
outstanding voting securities of the Series, on sixty days'
written notice to the Manager.
This Agreement shall automatically terminate in the
event of its assignment.
This Agreement may be terminated by the Manager after
ninety days' written notice to the Fund.
Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the
other party at any office of such party.
As used in this Section 9, the terms "assignment,"
"interested persons," and a "vote of the holders of a majority of
the outstanding voting securities" shall have the respective
meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act and Rule l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
KIEWIT INVESTMENT TRUST
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
Exhibit No. 24(b)(5)(iv)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Tax-
Exempt Series of the Fund (the "Series"), to continuously review,
supervise and administer the Series' investment program, to
determine in its discretion the securities to be purchased or
sold and the portion of the Series' assets to be uninvested, to
provide the Fund with records concerning the Manager's activities
which the Fund is required to maintain, and to render regular
reports to the Fund's officers and the Board of Trustees of the
Fund, all in compliance with the Series' investment objective,
policies and limitations set forth in the Fund's registration
statement and applicable laws and regulations. Subject to
compliance with the requirements of the Investment Company Act of
1940 (the "1940 Act"), the Manager may retain, at the Manager's
own expense, one or more sub-advisers to the Series. The Manager
accepts such employment and agrees to provide, at its own
expense, the office space, furnishings and equipment and the
personnel required by it to perform the services described herein
on the terms and for the compensation provided herein.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series and is directed to use its best efforts
to obtain the best available price and most favorable execution,
except as prescribed herein. It is understood that the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. The
Manager will promptly communicate to the officers and trustees of
the Fund such information relating to transactions for the Series
as they may reasonably request.
3. Compensation of the Manager
For the services to be rendered by the Manager as
provided in Section 1 of this Agreement, the Fund shall pay to
the Manager, at the end of each month, a fee equal to one-twelfth
of .40 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
At the request of the Fund, the Manager, in its
discretion, may make available to the Fund office facilities,
equipment, personnel and other services. Such office facilities,
equipment, personnel and service shall be provided for or
rendered by the Manager and billed to the Fund at the Manager's
cost and, where applicable, the cost thereof shall be apportioned
among the several Series of the Fund proportionate to their
respective utilization thereof.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
The services of the Manager to the Fund or in respect
of the Series, are not to be deemed exclusive, and the Manager
shall be free to render similar services to others as long as its
services to the Fund or in respect of the Series, are not
impaired thereby. The Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Fund in any way or otherwise be deemed an agent of the Fund.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
Subject to and in accordance with the Agreement and
Declaration of Trust of the Fund and the charter of the Manager,
trustees, officers, and shareholders of the Fund are or may be
interested in the Manager (or any successor thereof) as
directors, officers or shareholders, or otherwise; directors,
officers, agents and shareholders of the Manager are or may be
interested in the Fund as trustees, officers, shareholders or
otherwise; and the Manager (or any successor) is or may be
interested in the Fund as a shareholder or otherwise and the
effect of any such interrelationships shall be governed by said
agreement and declaration of trust and charter and the provisions
of the 1940 Act.
9. Duration and Termination
This Agreement shall become effective on the date first
written above and shall continue in effect for a period of two
years from such date, and thereafter only if such continuance is
approved at least annually by a vote of the Fund's Board of
Trustees, including the vote of a majority of the trustees who
are not parties to this Agreement or interested persons of any
such party, cast in person, at a meeting called for the purpose
of voting on such approval. In addition, the question of
continuance of this Agreement may be presented to the
shareholders of the Series; in such event, such continuance shall
be effected only if approved by the affirmative vote of the
holders of a majority of the outstanding voting securities of the
Series.
This Agreement may at any time be terminated without
payment of any penalty either by vote of the Board of Trustees of
the Fund or by vote of the holders of a majority of the
outstanding voting securities of the Series, on sixty days'
written notice to the Manager.
This Agreement shall automatically terminate in the
event of its assignment.
This Agreement may be terminated by the Manager after
ninety days' written notice to the Fund.
Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the
other party at any office of such party.
As used in this Section 9, the terms "assignment,"
"interested persons," and a "vote of the holders of a majority of
the outstanding voting securities" shall have the respective
meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act and Rule l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
KIEWIT INVESTMENT TRUST
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
Exhibit No. 24(b)(v)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between XXXXXX MUTUAL FUND, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit Equity
Portfolio of the Fund (the "Portfolio"), to continuously review,
supervise and administer the Portfolio's investment program, to
determine in its discretion the securities to be purchased or
sold and the portion of the Portfolio's assets to be uninvested,
to provide the Fund with records concerning the Manager's
activities which the Fund is required to maintain, and to render
regular reports to the Fund's officers and the Board of Trustees
of the Fund, all in compliance with the Portfolio's investment
objective, policies and limitations set forth in the Fund's
registration statement and applicable laws and regulations.
Subject to compliance with the requirements of the Investment
Company Act of 1940 (the "1940 Act"), the Manager may retain, at
the Manager's own expense, one or more sub-advisers to the
Portfolio. The Manager accepts such employment and agrees to
provide, at its own expense, the office space, furnishings and
equipment and the personnel required by it to perform the
services described herein on the terms and for the compensation
provided herein.
2. Portfolio Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Portfolio and is directed to use its best
efforts to obtain the best available price and most favorable
execution, except as prescribed herein. It is understood that
the Manager will not be deemed to have acted unlawfully, or to
have breached a fiduciary duty to the Fund or in respect of the
Portfolio, or be in breach of any obligation owing to the Fund or
in respect of the Portfolio under this Agreement, or otherwise,
solely by reason of its having caused the Portfolio to pay a
member of a securities exchange, a broker or a dealer a
commission for effecting a securities transaction for the
Portfolio in excess of the amount of commission another member of
an exchange, broker or dealer would have charged if the Manager
determines in good faith that the commission paid was reasonable
in relation to the brokerage or research services provided by
such member, broker or dealer, viewed in terms of that particular
transaction or the Manager's overall responsibilities with
respect to its accounts, including the Fund, as to which it
exercises investment discretion. The Manager will promptly
communicate to the officers and directors of the Fund such
information relating to transactions for the Portfolio as they
may reasonably request.
3. Compensation of the Manager
For the services to be rendered by the Manager as
provided in Section 1 of this Agreement, the Fund shall pay to
the Manager, at the end of each month, a fee equal to one-twelfth
of .70 percent of the daily average net assets of the Portfolio
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
At the request of the Fund, the Manager, in its
discretion, may make available to the Fund office facilities,
equipment, personnel and other services. Such office facilities,
equipment, personnel and service shall be provided for or
rendered by the Manager and billed to the Fund at the Manager's
cost and, where applicable, the cost thereof shall be apportioned
among the several Portfolios of the Fund proportionate to their
respective utilization thereof.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
The services of the Manager to the Fund or in respect
of the Portfolio, are not to be deemed exclusive, and the Manager
shall be free to render similar services to others as long as its
services to the Fund or in respect of the Portfolio, are not
impaired thereby. The Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Fund in any way or otherwise be deemed an agent of the Fund.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
Subject to and in accordance with the agreement and
declaration of trust of the Fund and the charter of the Manager,
trustees, officers, and shareholders of the Fund are or may be
interested in the Manager (or any successor thereof) as
directors, officers or shareholders, or otherwise; directors,
officers, agents and shareholders of the Manager are or may be
interested in the Fund as trustees, officers, shareholders or
otherwise; and the Manager (or any successor) is or may be
interested in the Fund as a shareholder or otherwise and the
effect of any such interrelationships shall be governed by said
agreement and declaration of trust and charter and the provisions
of the 1940 Act.
9. Duration and Termination
This Agreement shall become effective on the date first
written above and shall continue in effect for a period of two
years from such date, and thereafter only if such continuance is
approved at least annually by a vote of the Fund's Board of
Trustees, including the vote of a majority of the trustees who
are not parties to this Agreement or interested persons of any
such party, cast in person, at a meeting called for the purpose
of voting on such approval. In addition, the question of
continuance of this Agreement may be presented to the
shareholders of the Portfolio; in such event, such continuance
shall be effected only if approved by the affirmative vote of the
holders of a majority of the outstanding voting securities of the
Portfolio.
This Agreement may at any time be terminated without
payment of any penalty either by vote of the Board of Trustees of
the Fund or by vote of the holders of a majority of the
outstanding voting securities of the Portfolio, on sixty days'
written notice to the Manager.
This Agreement shall automatically terminate in the
event of its assignment.
This Agreement may be terminated by the Manager after
ninety days' written notice to the Fund.
Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the
other party at any office of such party.
As used in this Section 9, the terms "assignment,"
"interested persons," and a "vote of the holders of a majority of
the outstanding voting securities" shall have the respective
meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act and Rule l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
XXXXXX MUTUAL FUND
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
Exhibit No. 24(b)(5)(vi)
INVESTMENT MANAGEMENT AGREEMENT
AGREEMENT made this 19th day of February, 1997, by and
between KIEWIT INVESTMENT TRUST, a Delaware business trust (the
"Fund"), and KIEWIT INVESTMENT MANAGEMENT CORP., a Delaware
corporation (the "Manager").
1. Duties of Advisor
The Fund hereby employs the Manager to manage the
investment and reinvestment of the assets of the Kiewit
Government Money Market Series of the Fund (the "Series"), to
continuously review, supervise and administer the Series'
investment program, to determine in its discretion the securities
to be purchased or sold and the portion of the Series' assets to
be uninvested, to provide the Fund with records concerning the
Manager's activities which the Fund is required to maintain, and
to render regular reports to the Fund's officers and the Board of
Trustees of the Fund, all in compliance with the Series'
investment objective, policies and limitations set forth in the
Fund's registration statement and applicable laws and
regulations. Subject to compliance with the requirements of the
Investment Company Act of 1940 (the "1940 Act"), the Manager may
retain, at the Manager's own expense, one or more sub-advisers to
the Series. The Manager accepts such employment and agrees to
provide, at its own expense, the office space, furnishings and
equipment and the personnel required by it to perform the
services described herein on the terms and for the compensation
provided herein.
2. Series Transactions
The Manager is authorized to select the brokers or
dealers that will execute the purchases and sales of portfolio
securities for the Series and is directed to use its best efforts
to obtain the best available price and most favorable execution,
except as prescribed herein. It is understood that the Manager
will not be deemed to have acted unlawfully, or to have breached
a fiduciary duty to the Fund or in respect of the Series, or be
in breach of any obligation owing to the Fund or in respect of
the Series under this Agreement, or otherwise, solely by reason
of its having caused the Series to pay a member of a securities
exchange, a broker or a dealer a commission for effecting a
securities transaction for the Series in excess of the amount of
commission another member of an exchange, broker or dealer would
have charged if the Manager determines in good faith that the
commission paid was reasonable in relation to the brokerage or
research services provided by such member, broker or dealer,
viewed in terms of that particular transaction or the Manager's
overall responsibilities with respect to its accounts, including
the Fund, as to which it exercises investment discretion. The
Manager will promptly communicate to the officers and trustees of
the Fund such information relating to transactions for the Series
as they may reasonably request.
3. Compensation of the Manager
For the services to be rendered by the Manager as
provided in Section 1 of this Agreement, the Fund shall pay to
the Manager, at the end of each month, a fee equal to one-twelfth
of .20 percent of the daily average net assets of the Series
during the month. In the event that this Agreement is terminated
at other than a month-end, the fee for such month shall be
prorated.
4. Other Services
At the request of the Fund, the Manager, in its
discretion, may make available to the Fund office facilities,
equipment, personnel and other services. Such office facilities,
equipment, personnel and service shall be provided for or
rendered by the Manager and billed to the Fund at the Manager's
cost and, where applicable, the cost thereof shall be apportioned
among the several Series of the Fund proportionate to their
respective utilization thereof.
5. Reports
The Fund and the Manager agree to furnish to each other
information with regard to their respective affairs as each may
reasonably request.
6. Status of the Manager
The services of the Manager to the Fund or in respect
of the Series, are not to be deemed exclusive, and the Manager
shall be free to render similar services to others as long as its
services to the Fund or in respect of the Series, are not
impaired thereby. The Manager shall be deemed to be an
independent contractor and shall, unless otherwise expressly
provided or authorized, have no authority to act for or represent
the Fund in any way or otherwise be deemed an agent of the Fund.
7. Liability of Manager
No provision of this Agreement shall be deemed to
protect the Manager against any liability to the Fund or its
shareholders to which it might otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of its duties or the reckless disregard of its
obligations under this Agreement.
8. Permissible Interests
Subject to and in accordance with the Agreement and
Declaration of Trust of the Fund and the charter of the Manager,
trustees, officers, and shareholders of the Fund are or may be
interested in the Manager (or any successor thereof) as
directors, officers or shareholders, or otherwise; directors,
officers, agents and shareholders of the Manager are or may be
interested in the Fund as trustees, officers, shareholders or
otherwise; and the Manager (or any successor) is or may be
interested in the Fund as a shareholder or otherwise and the
effect of any such interrelationships shall be governed by said
agreement and declaration of trust and charter and the provisions
of the 1940 Act.
9. Duration and Termination
This Agreement shall become effective on the date first
written above and shall continue in effect for a period of two
years from such date, and thereafter only if such continuance is
approved at least annually by a vote of the Fund's Board of
Trustees, including the vote of a majority of the trustees who
are not parties to this Agreement or interested persons of any
such party, cast in person, at a meeting called for the purpose
of voting on such approval. In addition, the question of
continuance of this Agreement may be presented to the
shareholders of the Series; in such event, such continuance shall
be effected only if approved by the affirmative vote of the
holders of a majority of the outstanding voting securities of the
Series.
This Agreement may at any time be terminated without
payment of any penalty either by vote of the Board of Trustees of
the Fund or by vote of the holders of a majority of the
outstanding voting securities of the Series, on sixty days'
written notice to the Manager.
This Agreement shall automatically terminate in the
event of its assignment.
This Agreement may be terminated by the Manager after
ninety days' written notice to the Fund.
Any notice under this Agreement shall be given in
writing, addressed and delivered, or mailed postpaid, to the
other party at any office of such party.
As used in this Section 9, the terms "assignment,"
"interested persons," and a "vote of the holders of a majority of
the outstanding voting securities" shall have the respective
meanings set forth in Section 2(a)(4), Section 2(a)(19) and
Section 2(a)(42) of the 1940 Act and Rule l8f-2 thereunder.
10. 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.
IN WITNESS WHEREOF, the parties hereby have caused this
Agreement to be executed as of the day and year first written
above.
KIEWIT INVESTMENT MANAGEMENT CORP.
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
KIEWIT INVESTMENT TRUST
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx
President
Exhibit No. 24(b)(8)
CUSTODY AGREEMENT
This Agreement is made as of the 19th day of February, 1997,
between Kiewit Investment Trust, a business trust organized under
the laws of Delaware (the "Trust"), having its principal place of
business in Wilmington, Delaware, and Wilmington Trust Company, a
Delaware corporation (the "Custodian"), having its principal
place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and has distinct series of shares
of beneficial interest (each series, a "Fund" and collectively,
the "Funds"), which presently include six Funds initially
identified on Schedule A;
WHEREAS, each unit or share of beneficial interest
(collectively, "Shares") of a Fund represents an undivided
interest in the assets of that Fund, subject to the liabilities
of that Fund, as more fully described in the Declaration of Trust
pursuant to which the Trust is created and governed;
WHEREAS, the Trust desires to employ the Custodian to
provide custody services; and
WHEREAS, the Custodian is willing to furnish custody
services to the Trust on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and intending to be legally bound,
the parties agree as follows:
I. Employment of Custodian; Property of the Trust to be Held by
the Custodian
The Trust hereby employs the Custodian as the custodian of
its assets. The Trust agrees to deliver to the Custodian
substantially all securities and cash owned by it on behalf of
the Fund(s) from time to time, and substantially all income,
principal, capital distributions or other payments received by it
with respect to such securities, and the cash consideration
received for the issuance and sale of Shares of the Trust from
time to time. The Custodian will not be responsible for any
property of the Trust not delivered to the Custodian.
II. Duties of the Custodian with Respect to Property of the
Trust Held by the Custodian
A. Holding Securities
The Custodian will hold, earmark and physically segregate
for the account of each Fund all non-cash property, including all
securities owned by the Trust on behalf of the Fund(s), other
than securities maintained pursuant to Article II, Section J
hereof in a clearing agency which acts as a securities depository
or in an authorized book-entry system authorized by the U.S.
Department of the Treasury, collectively referred to herein as a
``Securities System.''
B. Delivery of Securities
The Custodian will deliver securities held by the Custodian
or in a Securities System account only upon receipt of proper
instructions, which may be continuing instructions, and only in
the following cases:
1. Upon sale of such securities for the account of each
Fund and receipt of payment therefor;
2. Upon receipt of payment in connection with any
repurchase agreement related to such securities entered
into by the Trust with respect to any Fund;
3. In the case of a sale effected through a Securities
System, in accordance with the provisions of Article
II, Section J hereof;
4. To the depository agent in connection with tenders or
other similar offers for securities of each Fund;
5. To the issuer thereof, or its agent, when such
securities are called, redeemed, retired or otherwise
become payable; provided that, in any such case, the
cash or other consideration is to be delivered to the
Custodian;
6. To the issuer thereof, or its agent, for registration
or re-registration pursuant to the provisions of
Article II, Section C hereof; or for exchange for a
different number of certificates or other evidence
representing the same aggregate face amount or number
of units; provided that, in any such case, the new
securities are to be delivered to the Custodian;
7. To the broker selling such securities for examination
in accordance with the ``street delivery'' custom;
provided that the Custodian will maintain procedures to
ensure prompt return to the Custodian by the broker in
the event the broker elects not to accept such
securities;
8. For exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization, reorganization
or readjustment of the securities of the issuer or
pursuant to provisions for conversion contained in such
securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and
cash, if any, are to be delivered to the Custodian;
9. In the case of warrants, rights or similar securities,
the surrender thereof in the exercise of such warrants,
rights or similar securities or the surrender of
interim receipts or temporary securities for definitive
securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the
Custodian;
10. For delivery in connection with any loans of securities
made by the Trust on behalf of any Fund, but only
against receipt of adequate collateral, as agreed upon
from time to time by the Custodian and the Trust, which
may be in the form of cash or obligations issued by the
United States government, its agencies or
instrumentalities;
11. For delivery as security in connection with any
borrowing by the Trust on behalf of any Fund requiring
a pledge of assets by the Trust on behalf of that Fund
against receipt of amounts borrowed;
12. Upon receipt of instructions from the transfer agent
for the Trust (the "Transfer Agent") for delivery to
the Transfer Agent or to holders of Shares in
connection with distributions in kind in satisfaction
of requests by holders of Shares for repurchase or
redemption; and
13. For any other proper corporate purposes, but only upon
receipt of, in addition to proper instructions, a
certified copy of a resolution of the Board of Trustees
signed by an officer of the Trust and certified by the
Secretary or an Assistant Secretary, specifying the
securities to be delivered, setting forth the purpose
for which such delivery is to be made, declaring such
purposes to be proper corporate purposes, and naming
the persons to whom delivery of such securities will be
made.
C. Registration of Securities
Securities held by the Custodian (other than bearer
securities) will be registered in the name of the Trust on behalf
of the Fund(s), or in the name of any nominee of the Trust, the
Custodian or any Securities System, or in the name or nominee
name of any agent or sub-custodian appointed pursuant to Article
II, Section I hereof, provided that the Custodian will maintain
a mechanism for identifying all securities belonging to each
Fund, wherever held or registered. All securities accepted by
the Custodian on behalf of the Trust for the Fund(s) hereunder
will be in ``street name'' or other good delivery form.
D. Bank Accounts
If requested by the Trust, the Custodian will open and
maintain a separate bank account or accounts in the name of the
Trust, subject only to draft or order by the Custodian acting
pursuant to the terms of this Agreement, and will hold in such
account or accounts, subject to the provisions hereof, all cash
received by it from or for the account of the Fund(s), other than
cash maintained by the Trust in a bank account established and
used in accordance with Rule 17f-3 under the 1940 Act.
E. Payment for Shares
The Custodian will receive from the distributor of the
Shares of the Fund(s) or from the Transfer Agent and deposit into
each Fund's custody account payments received for Shares of such
Fund issued or sold from time to time by the Trust. The
Custodian will provide timely notification to the Trust and the
Transfer Agent of any receipt by it of cash payments for Shares
of the Fund(s).
F. Collection of Income and Other Payments
The Custodian will collect on a timely basis all income and
other payments with respect to securities held hereunder to which
the Trust and each of the Fund(s) will be entitled by law or
pursuant to custom in the securities business, and will credit
such income and other payments, as collected, to each Fund's
custody account.
G. Payment of Trust Moneys
Upon receipt of proper instructions, which may be continuing
instructions, the Custodian will pay out moneys of the Trust on
behalf of the Fund(s) in the following cases only:
1. Upon the purchase of securities for the account of each
Fund, but only (a) against the delivery of such
securities to the Custodian (or any bank, banking firm
or trust company doing business in the United States or
abroad which is qualified under the 1940 Act to act as
a custodian and has been designated by the Trust or by
the Custodian as its agent for this purpose); (b) in
the case of a purchase effected through a Securities
System, in accordance with the conditions set forth in
Article II, Section J hereof or; (c) in the case of
repurchase agreements entered into between the Trust on
behalf of the Fund and the Custodian, or another bank,
(i) against delivery of securities either in
certificate form or through an entry crediting the
Custodian's account at the Federal Reserve Bank with
such securities and with an indication on the books of
the Custodian that such securities are held for the
benefit of the Fund, and (ii) against delivery of the
receipt evidencing purchase by the Trust on behalf of
the Fund of securities owned by the Custodian or other
bank along with written evidence of the agreement by
the Custodian or other bank to repurchase such
securities from the Trust on behalf of the Fund;
2. In connection with conversion, exchange or surrender of
securities owned by the Trust on behalf of any Fund as
set forth in Article II, Section B hereof;
3. For the redemption or repurchase of Shares as set forth
in Article II, Section H hereof;
4. For the payment of any expense or liability incurred by
the Trust with respect to the Fund(s), including, but
not limited to, the following payments for the account
of the Fund(s): interest, dividend disbursements,
taxes, trade association dues, advisory,
administration, accounting, transfer agent and legal
fees, and operating expenses allocated to the Trust or
the Fund(s) whether or not such expenses are to be in
whole or part capitalized or treated as deferred
expenses;
5. For the payment of any dividend declared on behalf of
the Fund(s) pursuant to the governing documents of the
Trust; and
6. For any other proper corporate purposes, but only upon
receipt of, in addition to proper instructions, a
certified copy of a resolution of the Board of Trustees
of the Trust signed by an officer of the Trust and
certified by its Secretary or an Assistant Secretary,
specifying the amount of such payment, setting forth
the purpose for which such payment is to be made,
declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom such
payment is to be made.
H. Payments for Repurchase or Redemptions of Shares of the
Fund(s)
From such funds as may be available, the Custodian will,
upon receipt of instructions from the Transfer Agent, make funds
available for payment to holders of Shares of the Fund(s) who
have delivered to the Transfer Agent a request for redemption or
repurchase of their Shares. In connection with the redemption or
repurchase of Shares, the Custodian is authorized upon receipt of
instructions from the Transfer Agent to wire funds to a
commercial bank designated by the redeeming shareholders.
I. Appointment of Agents
The Custodian may at any time in its discretion appoint, but
only in accordance with an applicable vote by the Board of
Trustees of the Trust, any bank or trust company, which is
qualified under the 1940 Act to act as a custodian, as its agent
or sub-custodian to carry out such of the provisions of this
Article II as the Custodian may from time to time direct;
provided that the appointment of any such agent or sub-custodian
will not relieve the Custodian of any of its responsibilities or
liabilities hereunder. The Custodian is hereby authorized to
deposit, arrange for deposit and/or maintain foreign securities
owned by the Trust on behalf of the Fund(s) with the Custodian's
agent Bankers Trust Company or with the subcustodians or agents
of the Custodian's agent.
J. Deposit of Trust Assets in Securities Systems
The Custodian may deposit and/or maintain securities owned
by the Trust on behalf of the Fund(s) in a clearing agency
registered with the Securities and Exchange Commission (the
"SEC") under Section 17A of the Securities Exchange Act of 1934,
which acts as a securities depository, or in the book-entry
system authorized by the U.S. Department of the Treasury and
certain federal agencies (collectively referred to herein as a
``Securities System'') in accordance with applicable Federal
Reserve Board and SEC rules and regulations, if any, and subject
to the following provisions:
1. The Custodian may keep securities owned by the Trust on
behalf of the Fund(s) in a Securities System provided
that such securities are represented in an account
("Account") of the Custodian in the Securities System
which will not include any assets of the Custodian
other than assets held as a fiduciary, custodian, or
otherwise for customers;
2. The records of the Custodian with respect to securities
owned by the Trust on behalf of the Fund(s) which are
maintained in a Securities System will identify by
book-entry those securities belonging to the Fund(s);
3. The Custodian will pay for securities purchased for the
account of the Fund(s) upon (i) receipt of advice from
the Securities System that such securities have been
transferred to the Account, and (ii) the making of an
entry on the records of the Custodian to reflect such
payment and transfer for the account of the Fund(s).
The Custodian will transfer securities sold for the
account of the Fund(s) upon (i) receipt of advice from
the Securities System that payment for such securities
has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of
the Fund(s). The Custodian will furnish the Trust a
monthly account statement showing confirmation of each
transfer to or from the account of the Fund(s) and each
day's transactions in the Securities System for the
account of the Fund(s);
4. The book-entry system of the Federal Reserve System
authorized by the U.S. Department of the Treasury and
the Depository Trust Company, a clearing agency
registered with the SEC, each are hereby specifically
approved as a Securities System, provided that any
changes in these arrangements shall be subject to the
approval of the Board of Trustees of the Trust; and
5. The Custodian will be liable to the Trust on behalf of
any Fund for any direct loss or damage to the Trust on
behalf of any Fund resulting from use of the Securities
System to the extent caused by the gross negligence,
misfeasance or misconduct of the Custodian or any of
its agents or of any of its or their employees. In no
event will the Custodian be liable for any indirect,
special, consequential or punitive damages.
K. Segregated Accounts for Futures Commission Merchants
The Custodian may enter into separate custodial agreements
with various Futures Commission Merchants ("FCM's") which the
Trust uses (each an "FCM agreement"), pursuant to which the
Trust's margin deposits made on behalf of the Fund(s) in certain
transactions involving futures contracts and options on futures
contracts will be held by the Custodian in accounts (each an "FCM
account") subject to the disposition by the FCM involved in such
contracts in accordance with the customer contract between FCM
and the Trust ("FCM contract"), SEC rules governing such
segregated accounts, Commodities Futures Trading Commission
("CFTC") rules and the rules of applicable securities or
commodities exchanges. Such custodial agreements will only be
entered into upon receipt of written instructions from the Trust
which state that (a) an agreement between the FCM and the Trust
has been entered into, and (b) the Trust is in compliance with
all the rules and regulations of the CFTC. Transfers of initial
margin will be made into an FCM account only upon written
instructions; transfers of premium and variation margin may be
made into an FCM account pursuant to oral instructions.
Transfers of funds from an FCM account to the FCM for which the
Custodian holds such an account may only occur upon certification
by the FCM to the Custodian that pursuant to the FCM agreement
and the FCM contract, all conditions precedent to its right to
give the Custodian such instructions have been satisfied.
L. Ownership Certificates for Tax Purposes
The Custodian will execute ownership and other certificates
and affidavits for all federal and state tax purposes in
connection with receipt of income or other payments with respect
to securities of the Fund(s) held by it and in connection with
transfers of securities of the Fund(s).
M. Proxies
The Custodian will cause to be promptly executed by the
registered holder of such securities, if the securities are
registered otherwise than in the name of the Trust on behalf of
the Fund(s) or a nominee of the Trust, all proxies, without
indication of the manner in which such proxies are to be voted,
and will promptly deliver to the Trust's investment advisor for
the Fund(s) (the "Advisor") such proxies, all proxy soliciting
materials and all notices relating to such securities.
N. Communications Relating to Securities of the Fund(s)
The Custodian will transmit promptly to the Advisor of that
Fund all written information (including, without limitation,
pendency of calls and maturities of securities and expirations of
rights in connection therewith) received by the Custodian from
issuers of the securities being held for the Fund(s). With
respect to tender or exchange offers, the Custodian will transmit
promptly to the Advisor all written information received by the
Custodian from issuers of the securities whose tender or exchange
is sought and from the party (or its agents) making the tender or
exchange offer. If the Advisor desires to take action with
respect to any tender offer, exchange offer or any other similar
transaction, the Advisor will notify the Custodian at least five
business days prior to the date on which the Custodian is to take
such action.
O. Proper Instructions
``Proper Instructions'' as used herein mean a writing signed
or initialed by one or more person or persons in such manner as
the Board of Trustees will have authorized from time to time.
Each writing will set forth the transaction involved, including a
specific statement of the purpose for which such action is
requested. Oral instructions will be considered proper
instructions if the Custodian reasonably believes them to have
been given by a person authorized to give such instructions with
respect to the transaction involved. The Trust will cause all
oral instructions to be confirmed promptly in writing. Upon
receipt of a certificate of the Secretary or an Assistant
Secretary as to the authorization by the Board of Trustees of the
Trust accompanied by a detailed description of procedures
approved by the Board of Trustees, proper instructions may
include communications effected directly between electro-
mechanical or electronic devices provided that the Board of
Trustees and the Custodian are satisfied that such procedures
afford adequate safeguards for the assets of the Trust.
P. Actions Permitted Without Express Authority
The Custodian may, in its discretion, without express
authority from the Trust:
1. make payments to itself or others for minor expenses of
handling securities or other similar items relating to
its duties under this Agreement, provided that all such
payments will be accounted for to the Trust;
2. surrender securities in temporary form for securities
in definitive form;
3. endorse for collection, in the name of the Trust on
behalf of the Fund(s), checks, drafts and other
negotiable instruments; and
4. in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution,
purchase, transfer and other dealings with the
securities and property of the Trust, except as
otherwise directed by the Trust or the Board of
Trustees of the Trust.
Q. Evidence of Authority
The Custodian will be protected in acting upon any
instruction, notice, request, consent, certificate or other
instrument or paper reasonably believed by it to be genuine and
to have been properly executed by or on behalf of the Trust. The
Custodian may receive and accept a certified copy of a vote of
the Board of Trustees of the Trust as conclusive evidence (a) of
the authority of any person to act in accordance with such vote,
or (b) of any determination or of any action by the Board of
Trustees as described in such vote, and such vote may be
considered as in full force and effect until receipt by the
Custodian of written notice to the contrary.
III. Duties of Custodian with Respect to Books of Account
The Custodian will cooperate with and supply to the entity
or entities appointed to keep the books of account of the Trust
such information in the possession of the Custodian as is
reasonably necessary to the maintenance of the books of account
of the Trust.
IV. Records
The Custodian will create and maintain all records relating
to its activities and obligations under this Agreement in such
manner as will meet the obligations of the Trust under the 1940
Act, including, without limitation, Section 31 thereof and Rules
31a-1 and 31a-2 thereunder. All such records will be property of
the Trust and will at all times during the regular business hours
of the Custodian be open for inspection by duly authorized
officers, employees or agents of the Trust and employees and
agents of the SEC. The Custodian will, upon request, provide the
Trust with a tabulation of securities held by the Custodian on
behalf of the Fund(s), and will, upon request, and for such
compensation as will be agreed upon between the Trust and the
Custodian, include certificate numbers in such tabulations.
V. Opinion of Trust's Independent Accountant
The Custodian will take all reasonable action, as the Trust
may from time to time request, to obtain from year to year
favorable opinions from the Trust's independent accountants with
respect to its activities hereunder in connection with the
preparation of the Trust's Form N-1A, Form N-SAR or other annual
or semiannual reports to the SEC and with respect to any other
requirements of the SEC.
VI. Reports to Trust by Auditors
The Custodian will provide the Trust, at such times as the
Trust may reasonably request, with reports by its internal or
independent auditors on the accounting system, internal
accounting controls and procedures for safeguarding securities,
including reports available on securities deposited and/or
maintained in a Securities System, relating to the services
provided by the Custodian under this Agreement. Such reports
will be of sufficient scope and in sufficient detail as may
reasonably be required by the Trust to provide reasonable
assurance that any material inadequacies would be disclosed, will
state in detail material inadequacies disclosed by such
examination, and if there are no such inadequacies, will so
state.
VII. Compensation of Custodian
For the normal services the Custodian provides under this
Custody Agreement, the Custodian will be entitled to reasonable
compensation as agreed to between the Trust and the Custodian
from time to time. Until agreed otherwise, the compensation will
be as set forth on Schedule A attached hereto and made part
hereof, as such Schedule may be amended from time to time. The
fee set forth in Schedule A hereto is subject to an annual review
and adjustment process. In the event the Custodian provides any
extraordinary services hereunder, it will be entitled to
additional reasonable compensation.
VIII. Responsibility of Custodian/Indemnification
So long as and to the extent that it has exercised
reasonable care, the Custodian will not be responsible for the
title, validity or genuineness of any property or evidence of
title thereto received by it or delivered by it pursuant to this
Agreement and will be held harmless in acting upon any notice,
request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party
or parties.
The Custodian will be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Trust) on all
matters, and will be without liability for any action reasonably
taken or omitted pursuant to such advice.
The Custodian will exercise reasonable care in carrying out
the provisions of this Agreement and shall be without liability
for any action taken or omitted by it in good faith and without
negligence. The Trust will indemnify the Custodian and hold it
harmless from and against all claims, liabilities, and expenses
(including attorneys' fees) which the Custodian may suffer or
incur on account of being Custodian hereunder, except to the
extent such claims, liabilities and expenses are caused by the
Custodian's own gross negligence or bad faith. Notwithstanding
the foregoing, nothing contained in this paragraph is intended to
nor will it be construed to modify the standards of care and
responsibility set forth in Article II, Section I hereof with
respect to sub-custodians and in Article II, Section J(5) hereof
with respect to the Securities System.
If the Trust requires the Custodian to take any action,
which involves the payment of money or which may, in the
reasonable opinion of the Custodian, result in liability or
expense to the Custodian or its nominee, the Trust, as a
prerequisite to requiring the Custodian to take such action, will
provide indemnity to the Custodian in an amount and form
satisfactory to it.
IX. Effective Period; Termination; Amendment
This Agreement will become effective as of the date hereof
and remain effective until terminated as provided herein. This
Agreement may be amended at any time only by written instrument
signed by both parties. This Agreement may be terminated at any
time on ninety (90) days' written notice by either party;
provided that the Trust will not amend or terminate the Agreement
in contravention of any applicable federal or state regulations,
or any provision of the governing documents of the Trust, and
further provided, that the Trust may at any time by action of its
Board of Trustees immediately terminate this Agreement in the
event of the appointment of a conservator or receiver for the
Custodian by the applicable federal regulator or upon the
happening of a like event at the direction of an appropriate
regulatory agency or court of competent jurisdiction. Upon
termination of this Agreement, the Trust will pay to the
Custodian any fees incurred as a result of the termination
transfer of assets, and reimburse the Custodian for all costs,
expenses and disbursements that are due as of the date of such
termination.
X. Successor Custodian
If a successor custodian is appointed by the Board of
Trustees of the Trust, the Custodian will, upon termination,
deliver to such successor custodian at the office of the
Custodian, duly endorsed and in the form for transfer, all
securities and other assets of the Trust then held by it
hereunder. The Custodian will also deliver to such successor
custodian copies of such books and records relating to the Trust
as the Trust and Custodian may mutually agree.
In the event that no written order designating a successor
custodian or certified copy of a vote of the Board of Trustees
will have been delivered to the Custodian on or before the date
when such termination will become effective, then the Custodian
will have the right to deliver to a bank or trust company of its
own selection, doing business in the state in which either the
principal place of business of the Trust or the Custodian is
located and having an aggregate capital, surplus, and undivided
profits of not less than $25,000,000, all securities, funds and
other properties held by the Custodian under this Agreement.
Thereafter, such bank or trust company will be the successor of
the Custodian under this Agreement.
In the event that securities, funds and other properties
remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Trust to procure the
certified copy of vote referred to, or of the Board of Trustees
to appoint a successor custodian, the Custodian will be entitled
to fair compensation for its services during such period as the
Custodian and retain possession of such securities, funds and
other properties and the provisions of this Agreement relating to
the duties and obligations of the Custodian will remain in full
force and effect.
XI. Interpretive and Additional Provisions
In connection with the operation of this Agreement, the
Custodian and the Trust may from time to time agree on such
provisions interpretive of, or in addition to, the provisions of
this Agreement as may in their joint opinion be consistent with
the general tenor of this Agreement. Any such interpretive or
additional provisions will be in writing signed by both parties,
provided that no such interpretive or additional provisions will
contravene any applicable federal or state regulations or any
provision of the governing documents of the Trust. No
interpretive or additional provisions made as provided in the
preceding sentence will be deemed to be an amendment of this
Agreement.
XII. Delaware Law to Apply
This Agreement will be deemed to be a contract made in
Delaware and governed by the internal laws of the State of
Delaware without giving effect to the principles of conflicts of
law thereof. If any provision of this Agreement will be held or
made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement will not be affected thereby. This
Agreement will be binding and will inure to the benefit of the
parties hereto and their respective successors.
IN WITNESS WHEREOF, each of the parties has caused this
instrument to be executed in its name and on behalf by its duly
authorized representative and its seal to be hereunder affixed as
of the date first written above.
[SEAL] KIEWIT INVESTMENT TRUST
By:/s/ Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx, President
[SEAL] WILMINGTON TRUST COMPANY
By: ____________________________
(___________), Vice President
SCHEDULE A
KIEWIT INVESTMENT TRUST
FEE SCHEDULE
For the services Custodian provides under this Custody
Agreement, the Trust, on behalf of the Fund(s) listed below,
agrees to pay to the Custodian a fee, payable monthly, expressed
as follows:
Name of Fund(s) FEE SCHEDULE
Kiewit Money Market Series An annual fee based upon the
average daily net asset value
as follows:
.009% on the first $200
million per portfolio;
Kiewit Rated Money Market
Series plus .0075% on the assets over
$200 million per portfolio,
Kiewit Short-Term Government
Series subject to a minimum fee of
$500 per month per portfolio,
Kiewit Intermediate-Term Bond
Series
Kiewit Tax Exempt Series
Kiewit Equity Series plus, $12 per purchase, sale
or maturity of a portfolio
security, except those
requiring physical delivery,
which will be charged at $50
per purchase, sale or
maturity,
plus, $7 for each incoming
wire of funds and $12 for each
outgoing wire of funds,
plus any out-of-pocket
expenses.
Exhibit 24(b)(9)(i)
KIEWIT INVESTMENT TRUST
XXXXXX SQUARE MANAGEMENT CORPORATION
TRANSFER AGENCY AGREEMENT
THIS TRANSFER AGENCY AGREEMENT made this 19th day February,
1997, by and between Kiewit Investment Trust, a Delaware business
trust (the "Trust"), 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 Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company and issues shares of beneficial
interest, par value $0.01 per share ("Shares"), corresponding to
one or more separate and distinct series (individually, a
"Series", and collectively, the "Series");
WHEREAS, each share of a Series represents an undivided
interest in the assets, subject to the liabilities, allocated to
that Series, and each Series has a separate investment objective
and separate investment policies;
WHEREAS, at the present time, the Trust has six Series,
Kiewit Money Market Series, Kiewit Government Money Market
Series, Kiewit Short-Term Government Series, Kiewit
Intermediate-Term Bond Series, Kiewit Tax-Exempt Series and
Kiewit Equity Series.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the Trust and Xxxxxx Square agree as
follows:
1. Appointments. The Trust hereby appoints Xxxxxx Square
as transfer agent, registrar and disbursing agent in connection
with any distributions; for each Series of Shares of the Trust,
each such appointment to take and remain in effect as hereinafter
provided. Xxxxxx Square shall act as such and perform its
obligations thereof upon the terms and conditions hereafter set
forth, and in accordance with the principles of principal and
agent as enunciated by the common law.
2. Documents. The Trust has furnished Xxxxxx Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Trust's Board of Trustees
authorizing the appointment of Xxxxxx Square to provide certain
transfer agent services to the Trust and approving this
Agreement;
b. Schedule B identifying and containing the signatures of
the Trust's officers and other persons authorized ("Authorized
Persons") to sign "Written Instructions" (as hereinafter defined)
on behalf of the Trust;
c. The Trust's Certificate of Trust filed with the
Secretary of the State of Delaware on January 23, 1997 and all
amendments thereto and restatements thereof;
d. The Trust's Agreement and Declaration of Trust and all
amendments thereto and restatements thereof;
e. The Trust'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 Trust and
Xxxxxx Square dated February 19, 1997;
g. The Custodian Agreement between the Trust and
Wilmington Trust Company (the "Custodian") dated February 19,
1997;
h. The Administration Agreement between the Trust and
Xxxxxx Square dated February 19, 1997;
i. The Trust's Notification of Registration filed pursuant
to Section 8(a) of the 1940 Act filed with the Securities and
Exchange Commission ("SEC") on July 25, 1994;
j. The Trust's Registration Statement on Form N-1A under
the 1940 Act, as filed with the SEC, and all amendments thereto;
and
k. 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 Trust by the CFTC which states that
the Trust 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 Trust by the CFTC which states that
CFTC will not take any enforcement action if the Trust does not
register as a "commodity pool operator."
The Trust 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. Definitions.
a. Authorized Person. As used in this Agreement, the
term "Authorized Person" means any officer of the Trust and any
other person, whether or not any such person is an officer of the
Trust, duly authorized by the Trustees of the Trust to give Oral
and Written Instructions on behalf of the Series and certified by
the Secretary or an Assistant Secretary of the Trust or any
amendment thereto as may be received by Xxxxxx Square from time
to time.
b. Oral Instructions. As used in this Agreement, the
term "Oral Instructions" means oral instructions actually
received by Xxxxxx Square from an Authorized Person or from a
person reasonably believed by Xxxxxx Square to be an Authorized
Person. The Trust agrees to deliver to Xxxxxx Square, at the
time and in the manner specified in Section 4(b) of this
Agreement, Written Instructions confirming Oral Instructions
signed by two Authorized Persons and received by Xxxxxx Square.
c. Written Instructions. As used in this Agreement,
the term "Written Instructions" means written instructions on
behalf of the Trust signed by two Authorized Persons, delivered
by hand, mail, telegram, cable, telex or facsimile to, and
received by, Xxxxxx Square.
4. Instructions Consistent with Declaration of Trust,
etc..
a. Unless otherwise provided in this Agreement,
Xxxxxx Square shall act only upon Oral or Written Instructions.
Xxxxxx Square, in its capacity under this Agreement, may assume
that any Oral or Written Instructions received hereunder are not
in any way inconsistent with any provisions of this Agreement,
the Trust's Declaration of Trust or By-Laws, or any vote,
resolution or proceeding of the Trust's shareholders, or of the
Trust's Board of Trustees, or of any committee thereof.
b. Rodney Square shall be entitled to rely upon any
Oral Instructions and any Written Instructions actually received
by Xxxxxx Square pursuant to this Agreement. The Trust agrees to
forward to Xxxxxx Square Written Instructions confirming Oral
Instructions in such manner that the Written Instructions are
received by Xxxxxx Square by the close of business of the same
day that such Oral Instructions are given to Xxxxxx Square. The
Trust agrees that the fact that confirming Written Instructions
are not received by Xxxxxx Square shall in no way affect the
validity or enforceability of the transactions authorized by Oral
Instructions. The Trust agrees that Xxxxxx Square shall incur no
liability to the Trust in acting upon Oral Instructions, provided
such instructions reasonably appear to have been received from an
Authorized Person.
5. Transactions Not Requiring Instructions. In the
absence of contrary Written Instructions, Xxxxxx Square is
authorized to take the following actions:
a. Issuance of Shares. Upon receipt of a purchase
order from a prospective shareholder for the purchase of Shares
and sufficient information to enable Xxxxxx Square to establish a
shareholder account or to issue Shares to an existing shareholder
account, and after confirmation of receipt or crediting of
Federal funds for such order from Xxxxxx Square's designated
bank, Xxxxxx Square shall issue and credit the account of the
investor or other record holder with Shares based on the current
net asset value of such Shares as described in the Trust's
Registration Statement.
b. Transfer of Shares; Uncertificated Securities.
Where a shareholder does not hold a certificate representing the
number of Shares in its account and does provide Xxxxxx Square
with instructions for the transfer of such Shares which include
appropriate documentation to permit a transfer, then Xxxxxx
Square shall register such Shares and shall deliver them pursuant
to instructions received from the transferor, pursuant to the
rules and regulations of the SEC, and the laws of the State of
Delaware relating to the transfer of shares of beneficial
interest
c. Share Certificates. If at any time the Trust
issues Share stock certificates, the following provisions will
apply:
(1) The Trust will supply Xxxxxx Square with a
sufficient supply of stock certificates representing
Shares, in the form approved from time to time by the
Trustees of the Trust, and, from time to time, shall
replenish such supply upon request of Xxxxxx Square.
Such stock certificates shall be properly signed,
manually or by facsimile signature, by the duly
authorized officers of the Trust, and shall bear the
corporate seal or facsimile thereof of the Trust, and
notwithstanding the death, resignation or removal of
any officer of the Trust, such executed certificates
bearing the manual or facsimile signature of such
officer shall remain valid and may be issued to
shareholders until Xxxxxx Square is otherwise directed
by Written Instructions.
(2) In the case of the loss or destruction of any
certificate representing Shares, no new certificate
shall be issued in lieu thereof, unless there shall
first have been furnished an appropriate bond of
indemnity issued by a surety company approved by Xxxxxx
Square.
(3) Upon receipt of signed Share stock certificates,
which shall be in proper form for transfer, and upon
cancellation or destruction thereof, Xxxxxx Square
shall countersign, register and issue new certificates
for the same number of Shares and shall deliver them
pursuant to instructions received from the transferor,
the rules and regulations of the SEC, and the laws of
the State of Delaware relating to the transfer of
shares of beneficial interest.
(4) Upon receipt of Share stock certificates, which
shall be in proper form for transfer, together with the
shareholder's instructions to hold such Share
certificates for safekeeping, Xxxxxx Square shall
reduce such Shares to uncertificated status, while
retaining the appropriate registration in the name of
the shareholder upon the transfer books.
(5) Upon receipt of written instructions from a
shareholder of uncertificated securities for a
certificate in the number of Shares in its account,
Xxxxxx Square will issue such Share stock certificates
and deliver them to the shareholder.
d. Redemption of Shares. Upon receipt of a
redemption order from a shareholder that is an open-end
investment company and/or in accordance with Written
Instructions, Xxxxxx Square shall redeem the number of Shares
indicated thereon from the redeeming shareholder's account and
receive from the Trust's Custodian and disburse pursuant to the
instructions of a redeeming shareholder or his or her agent the
redemption proceeds therefor, or arrange for direct payment of
redemption proceeds by the Custodian to the redeeming shareholder
or as instructed by the shareholder or his or her agent, in
accordance with such procedures and controls as are mutually
agreed upon from time to time by and among the Trust, Xxxxxx
Square and the Trust's Custodian.
6. Shares. The Trust and the Series have an unlimited
number of authorized Shares. The Transfer Agent shall record
issues of all Shares.
7. Distributions. The Trust shall xxxxxxx Xxxxxx Square
with appropriate evidence of action by the Trust's Trustees
authorizing the declaration and payment of any distributions as
described in the Trust's Registration Statement. After deducting
any amount required to be withheld by any applicable tax laws,
rules and regulations or other applicable laws, rules and
regulations, Xxxxxx Square shall, in accordance with instructions
in proper form from a shareholder and the provisions of the
Trust's Agreement and Declaration of Trust and Registration
Statement, issue and credit the account of the shareholder with
Shares, or, if the shareholder so elects, pay such distributions
in cash to the shareholder in the manner described in the
Registration Statement. In lieu of receiving distribution
proceeds from the Trust's Custodian and paying distributions to
shareholders, Xxxxxx Square may arrange for the direct payment of
distributions to shareholders by the Custodian, in accordance
with such procedures and controls as are mutually agreed upon
from time to time by and among the Trust, Xxxxxx Square and the
Trust's Custodian.
Xxxxxx Square shall prepare, file with the Internal Revenue
Service and other appropriate taxing authorities, and address and
mail to shareholders such returns and information relating to
distributions paid by the Trust as are required to be so
prepared, filed and mailed by applicable laws, rules and
regulations, or such substitute form of notice as may from time
to time be permitted or required by the Internal Revenue Service.
On behalf of the Trust, Xxxxxx Square shall mail certain requests
for shareholders' certifications under penalties of perjury and
pay on a timely basis to the appropriate Federal authorities any
taxes to be withheld on distributions paid by the Trust, all as
required by applicable Federal tax laws and regulation.
In accordance with the procedures set forth in the Trust's
Registration Statement or Written Instructions amending such
procedures, resolutions of the Trust's Trustees that are not
inconsistent with this Agreement and are provided to Xxxxxx
Square from time to time, and such procedures and controls as are
mutually agreed upon from time to time by and among the Trust,
Xxxxxx Square and the Trust's Custodian, Xxxxxx Square shall
arrange for issuance of Shares obtained through (a) transfers of
funds from shareholders' accounts at financial institutions; and
(b) the exchange of Trust Shares for eligible portfolio
securities.
8. Communications with Shareholders.
a. Communications to Shareholders. Xxxxxx Square
will address and mail all communications by the Trust to its
shareholders, including reports to shareholders, confirmations of
purchases and sales of Shares, monthly statements, distribution
notices and proxy material for its meetings of shareholders.
Xxxxxx Square will receive and tabulate the proxy cards for
shareholder meetings.
b. Correspondence. Xxxxxx Square will answer such
correspondence from shareholders, securities brokers and others
relating to its duties hereunder and such other correspondence as
may from time to time be mutually agreed upon between Xxxxxx
Square and the Trust.
9. Services to be Performed. Xxxxxx Square shall be
responsible for administering and/or performing transfer agent
functions, in connection with the issuance, transfer and
redemption or repurchase (including coordination with the Trust's
Custodian bank in connection with shareholder redemption by
check) of the Trust's Shares. The details of the operating
standards and procedures to be followed shall be determined from
time to time by agreement between Xxxxxx Square and the Trust.
The Transfer Agent will perform the following functions on
an ongoing basis:
a. provide the Trust with duplicate confirmations of
shareholder activity, whether executed through a dealer or
directly with the Transfer Agent;
b. provide shareholder lists and statistical
information concerning accounts to the Trust; and
c. provide timely notification of Trust activity and
such other information as may be agreed upon from time to time
between the Transfer Agent and the Trust's custodians, to the
Trust or the custodians and such reports to the Trust.
10. Record Keeping and Other Information.
a. Rodney Square shall maintain records of the
accounts for each shareholder showing the items listed in
Schedule X.
x. 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 and any
applicable regulations of the Federal Deposit Insurance
Corporation ("FDIC") or any successor regulatory authority, as
the same may be amended from time to time, and those records
pertaining to the various functions performed by it hereunder.
All records shall be the property of the Trust at all times and
shall be available for inspection and use by the Trust. 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 and any applicable regulations of the FDIC or any
successor regulatory authority.
11. 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 Trust or any person
retained by the Trust. Upon reasonable notice by the Trust,
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
Trust, or any person retained by the Trust.
12. Compensation. As compensation for the services
rendered by Xxxxxx Square during the term of this Agreement, the
Trust will pay to Xxxxxx Square an annual fee calculated daily
and payable monthly, as may be agreed to in writing from time to
time by the Trust and Xxxxxx Square.
The Trust shall reimburse Xxxxxx Square for all reasonable
out-of-pocket expenses incurred by Xxxxxx Square or its agents in
the performance of its obligations hereunder. Such reimbursement
for expenses incurred in any calendar month shall be made on or
before the tenth day of the next succeeding month
The term "out-of-pocket expenses" shall include, but not be
limited to, the following expenses incurred by Xxxxxx Square in
the performance of its obligations hereunder: the cost of
stationery and forms (including but not limited to checks, proxy
cards, and envelopes), the cost of postage, the cost of insertion
of non-standard size materials in mailing envelopes and other
special mailing preparation by outside firms, the cost of
first-class mailing insurance, the cost of external electronic
communications as approved by the Trustees (to include telephone
and telegraph equipment and an allocable portion of the cost of
personnel responsible for the maintenance of such equipment),
toll charges, data communications equipment and line charges and
the cost of microfilming of shareholder records (including both
the cost of storage as well as charges for access to such
records). If Xxxxxx Square shall undertake the responsibility
for microfilming shareholder records, it may be separately
compensated therefor in an amount agreed upon by the principal
financial officer of the Trust and Xxxxxx Square, such amount not
to exceed the amount which would be paid to an outside firm for
providing such microfilming services.
13. Use of Xxxxxx Square's Name. The Trust shall not use
the name of Xxxxxx Square in any Registration Statement, sales
literature or other material relating to the Trust in a manner
not approved prior thereto, provided, however, that Xxxxxx Square
shall approve all uses of its name which merely refer in accurate
terms to its appointments hereunder or which are required by the
SEC or a state securities commission and, provided further, that
in no event shall such approval be unreasonably withheld.
14. Use of Trust's Name. Xxxxxx Square shall not use the
name of the Trust or the Series of the Trust or material relating
to the Trust or the Series on any checks, bank drafts, bank
statements or forms for other than internal use in a manner not
approved prior thereto, provided, however, that the Trust shall
approve all uses of its name which merely refer in accurate terms
to the appointment of Xxxxxx Square hereunder or which are
required by the FDIC, the SEC or a state securities commission,
and, provided, further, that in no event shall such approval be
unreasonably withheld.
15. Security. Xxxxxx Square represents and warrants that
the various procedures and systems which Xxxxxx Square has
implemented with regard to safeguarding from loss or damage
attributable to fire, theft or any other cause (including
provision for twenty-four hours a day restricted access) the
Trust's blank checks, records and other data and Xxxxxx Square's
records, data, equipment, facilities and other property used in
the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as in
its judgment are required for the secure performance of its
obligations hereunder. The parties shall review such systems and
procedures on a periodic basis.
16. Insurance. Upon request, Xxxxxx Square shall provide
the Trust with details regarding its insurance coverage, and
Xxxxxx Square shall notify the Trust should any of its insurance
coverage be materially changed. Such notification shall include
the date of change and the reason or reasons therefor. Xxxxxx
Square shall notify the Trust of any material claims against it,
whether or not they may be covered by insurance and shall notify
the Trust from time to time as may be appropriate of the total
outstanding claims made by Xxxxxx Square under its insurance
coverage.
17. Appointment of Agents. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Xxxxxx Square
without the written consent of the Trust. Xxxxxx Square may,
however, at any time or times in its discretion appoint (and may
at any time remove) any other bank or trust company, which is
itself qualified under the Securities Exchange Act of 1934 (the
"1934 Act") to act as a transfer agent, as its agent to carry out
such of the services to be performed under this agreement as
Xxxxxx Square may from time to time direct; provided, however,
that the appointment of any agent shall not relieve Xxxxxx Square
of any of its responsibilities or liabilities hereunder.
18. Delegation. On thirty (30) days' prior written notice
to the Trust, 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 1940 Act and applicable rules and
regulations thereunder; (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 Trust may request; and (iv)
Xxxxxx Square shall respond to such questions as the Trust may
ask, relative to the delegation, including (without limitation)
the capabilities of the delegate.
19. Indemnification.
a. The Trust 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 Trust 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 Trust 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 19 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.
20. Responsibility of Xxxxxx Square. Xxxxxx Square shall
be under no duty to take any action on behalf of the Trust except
as specifically set forth herein or as may be specifically agreed
to by Xxxxxx Square in writing. Xxxxxx Square shall be obligated
to exercise due care and diligence in the performance of its
duties hereunder, to act in good faith and to use its best
efforts in performing the services provided for under this
Agreement. Xxxxxx Square shall be liable for any damages arising
out of or in connection with Xxxxxx Square's performance of or
omission or failure to perform its duties under this Agreement to
the extent such damages arise out of Xxxxxx Square's negligence,
reckless disregard of its duties, bad faith or willful
misfeasance.
Without limiting the generality of the foregoing or of any
other provision of this Agreement, Xxxxxx Square, in connection
with its duties under this Agreement, shall not be under any duty
or obligation to inquire into and shall not be liable for (i) the
validity or invalidity or authority or lack thereof of any Oral
or Written Instruction, notice or other instrument which conforms
to the applicable requirements of this Agreement, and which
Xxxxxx Square reasonably believes to be genuine; or (ii) subject
to the provisions of Section 21 hereof, delays or errors or loss
of data occurring by reason of circumstances beyond Xxxxxx
Square's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, flood or
catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply.
21. Acts of God, etc. Xxxxxx Square shall not be liable
for delays or errors occurring by reason of circumstances beyond
its control, including but not limited to acts of civil or
military authority, national emergencies, labor difficulties,
fire, flood or catastrophe, acts of God, insurrection, war,
riots, or failure of the mails, transportation, communication or
power supply. In the event of equipment breakdowns beyond its
control, Xxxxxx Square shall, at no additional expense to the
Trust, take reasonable steps to minimize service interruptions,
but shall have no liability with respect thereto. Xxxxxx Square
shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provision for
emergency use of electronic data processing equipment to the
extent appropriate equipment is available.
22. Amendments. Xxxxxx Square and the Trust shall
regularly consult with each other regarding Xxxxxx Square's
performance of its obligations and its compensation hereunder.
In connection therewith, the Trust shall submit to Xxxxxx Square,
at a reasonable time in advance of filing with the SEC, copies of
any amended or supplemented Registration Statements (including
exhibits) under 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 Trust.
Any change in such material which would require any material
change in Xxxxxx Square's obligations hereunder shall be subject
to Xxxxxx Square's approval, which shall not be unreasonably
withheld. In the event that such change materially increases the
cost to Xxxxxx Square of performing its obligations hereunder,
Xxxxxx Square shall be entitled to receive reasonable
compensation therefor.
23. Duration, Termination, etc. Neither this Agreement nor
any provisions hereof may be changed, waived or discharged
orally, but only by written instrument which shall make specific
reference to this Agreement and which 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 immediately hereinafter provided, shall continue in effect for
three (3) years from the date of its execution and thereafter
from year to year, provided continuance after the three (3) year
period is approved at least annually by (i) the vote of a
majority of the Trustees of the Trust and (ii) the vote of a
majority of those Trustees of the Trust who are not interested
persons of the Trust, and who are not parties to this Agreement
or interested persons of any party, cast at a meeting called for
the purpose of voting on the approval.
This Agreement may be terminated by a vote of the Board of
Trustees of the Trust, or by a vote of a majority of the
outstanding voting securities of any one or more of the Trust's
Series, 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 Trust
to, and received by, Xxxxxx Square. However, in the event of a
material breach resulting from willful misconduct, reckless
disregard or intentional misconduct by Xxxxxx Square or its
employees, the Agreement may be terminated by the Board of
Trustees upon thirty (30) days written notice to Xxxxxx Square.
This Agreement may also be terminated by Xxxxxx Square, upon
written notice to the Trust, in the event of a material breach
remaining uncured for sixty (60) days after due written
notification of such breach has been issued by Xxxxxx Square to,
and received by, the Trust.
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 hereof, the Trust shall reimburse
Xxxxxx Square any fees incurred as a result of the termination
conversion for any out-of-pocket expenses reasonably incurred by
Xxxxxx Square including or during the period prior to the date of
such termination. In the event that the Trust designates a
successor to any of Xxxxxx Square's obligations hereunder, Xxxxxx
Square shall, at the expense and direction of the Trust, transfer
to such successor a certified list of the shareholders of the
Trust (with name, address, and, if provided, tax identification
or Social Security number), a complete record of the account of
each shareholder, and all other relevant books, records and other
data established or maintained by Xxxxxx Square hereunder.
Xxxxxx Square shall be liable for any losses sustained by the
Trust as a result of Xxxxxx Square's failure to accurately and
promptly provide these materials.
24. Registration as a Transfer Agent. Xxxxxx Square
represents that it is currently registered with the appropriate
Federal agency for the registration of transfer agents, and that
it will remain so registered for the duration of this Agreement.
Xxxxxx Square agrees that it will promptly notify the Trust in
the event of any material change in its status as a registered
transfer agent. Should Xxxxxx Square fail to be registered with
the Federal Deposit Insurance Company or any successor regulatory
authority as a transfer agent at any time during this Agreement,
the Trust may, on written notice to Xxxxxx Square, immediately
terminate this Agreement.
25. 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.
26. 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.
27. 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 governed and construed
according to the laws (without regard, however, to laws as to
conflicts of law) of the State of Delaware.
28. Shareholder Liability. Xxxxxx Square acknowledges that
it has received notice of and accepts the limitations of
liability set forth in the Trust's Agreement and Declaration of
Trust. Xxxxxx Square agrees that the Trust's obligations
hereunder shall be limited to the Trust, and that Xxxxxx Square
shall have recourse solely against the assets of the Series with
respect to which the Trust's obligations hereunder relate and
shall have no recourse against the assets of any other Series or
against any shareholder, Trustee, officer, employee, or agent of
the Trust.
29. Miscellaneous. Both parties agree 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 simultaneously 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.
KIEWIT INVESTMENT TRUST
By:
_____________________________
Xxx XxXxxxxxx,
President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By:
_____________________________
Xxxxxx X. Xxxxxxxx,
President
TRANSFER AGENCY AGREEMENT
SCHEDULE A
KIEWIT INVESTMENT TRUST
Trust Listing
Kiewit Money Market Series
Kiewit Government Money Market Series
Kiewit Short-Term Government Series
Kiewit Intermediate-Term Bond Series
Kiewit Tax-Exempt Series
Kiewit Equity Series
TRANSFER AGENCY AGREEMENT
SCHEDULE B
KIEWIT INVESTMENT TRUST
Shareholder Records
Xxxxxx Square shall maintain records of the accounts for each
shareholder showing the following information:
a. name, address and United States Tax Identification or
Social Security number;
b. number and Series of Shares held and number and Series
of Shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
c. historical information regarding the account of each
shareholder, including distributions paid and the date and
price for all transactions on a shareholder's account;
d. any stop or restraining order placed against a
shareholder's account;
e. any correspondence relating to the current maintenance
of a shareholder's account;
f. information with respect to withholding; and,
g. any information required in order for Xxxxxx Square to
perform any calculations contemplated or required by this
Agreement.
Exhibit No. 24(b)(9)(ii)
KIEWIT INVESTMENT TRUST
XXXXXX SQUARE MANAGEMENT CORPORATION
ACCOUNTING SERVICES AGREEMENT
THIS ACCOUNTING SERVICES AGREEMENT made this 19th day of
February, 1997, by and between Kiewit Investment Trust, a
Delaware business trust (hereinafter called the "Trust"), and
Xxxxxx Square Management Corporation, a corporation organized
under the laws of the State of Delaware (hereinafter called
"Xxxxxx Square"), having its principal place of business in
Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company;
WHEREAS, at the present time, the Trust consists of six
separate and distinct Series, Kiewit Money Market Series, Kiewit
Government Money Market Series, Kiewit Short-Term Government
Series, Kiewit Intermediate-Term Bond Series, Kiewit Tax-Exempt
Series and Kiewit Equity Series (individually, a "Series", and
collectively, "the Series");
NOW THEREFORE, in consideration of the premises and mutual
covenants contained in this Agreement, the Trust and Xxxxxx
Square agree as follows:
1. Appointment. The Trust hereby appoints Xxxxxx Square to
provide certain accounting services to the Trust for the period
and on the terms set forth in this Agreement. Xxxxxx Square
accepts such appointment and agrees to furnish the services
herein set forth in return for the compensation provided for in
Section 11 of this Agreement. Xxxxxx Square agrees to comply with
all relevant provisions of the 1940 Act and applicable rules and
regulations thereunder, and to remain open for business on any
day which a Series considers a business day. The Trust may from
time to time issue separate series or classes or classify and
reclassify shares of such series or class. Xxxxxx Square shall
identify to each such series or class property belonging to such
series or class, and in such reports, confirmations and notices
to the Trust called for under this Agreement, shall identify the
series or class to which such report, confirmation or notice
pertains.
2. Documents. The Trust has furnished Xxxxxx Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Trust's Board of Trustees
authorizing the appointment of Xxxxxx Square to provide certain
accounting services to the Trust and approving this Agreement;
b. Schedule B identifying and containing the
signatures of the Trust's officers and other persons authorized
("Authorized Persons") to sign "Written Instructions" (as
hereinafter defined);
c. The Trust's Certificate of Trust filed with the
Secretary of the State of Delaware on January 23, 1997 and all
amendments thereto and restatements thereof;
d. The Trust's Agreement and Declaration of Trust and
all amendments thereto and restatements thereof;
e. The Trust'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 Investment Management Agreement between the
Trust and Kiewit Investment Management (the "Manager") with
respect to each Series dated February 19, 1997;
g. The Administration Agreement between the Trust and
Xxxxxx Square dated February 19, 1997;
h. The Custodian Agreement between the Trust and WTC
(the "Custodian") dated February 19, 1997;
i. The Trust's Notification of Registration filed
pursuant to Section 8(a) of the 1940 Act filed with the
Securities and Exchange Commission ("SEC") on _______________;
j. The Trust's Registration Statement on Form N-1A
under the 1940 Act (File No. 811-______), as filed with the SEC,
and all amendments thereto;
k. 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 Trust by the CFTC which states that
the Trust 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 Trust by the CFTC which states that
CFTC will not take any enforcement action if the Trust does not
register as a "commodity pool operator."
The Trust 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. Instructions Consistent with Declaration of Trust, etc.
a. Unless otherwise provided in this Agreement,
Xxxxxx Square shall act only upon Oral and Written Instructions.
("Oral Instructions", as used in this Agreement, means oral
instructions actually received by Xxxxxx Square from an
Authorized Person or from a person reasonably believed by Xxxxxx
Square to be an Authorized Person. "Written Instructions", as
used in this Agreement, means written instructions on behalf of
the Trust signed by two Authorized Persons, delivered by hand,
mail, telegram, cable, telex or facsimile, and received by Xxxxxx
Square. "Authorized Person", as used in this Agreement, means
any officer of the Trust and any other person, whether or not any
such person is an officer of the Trust, duly authorized by the
Trustees of the Trust to give Oral and Written Instructions on
behalf of the Series(s) and certified by the Secretary or an
Assistant Secretary of the Trust or any amendment thereto as may
be received by Xxxxxx Square from time to time. Xxxxxx Square in
its capacity under this Agreement may assume that any Oral or
Written Instructions received hereunder are not in any way
inconsistent with any provisions of the Trust's Declaration of
Trust or Bylaws, or with any vote, resolution or proceeding of
the Trust's shareholders, or of the Trust's Board of Trustees, or
of any committee thereof.
b. Rodney Square shall be entitled to rely upon any
Oral Instructions and any Written Instructions actually received
by Xxxxxx Square pursuant to this Agreement. The Trust agrees to
forward to Xxxxxx Square Written Instructions confirming Oral
Instructions in such manner that the Written Instructions are
received by Xxxxxx Square by the close of business of the same
day that such Oral Instructions are given to Xxxxxx Square. The
Trust agrees that the fact that confirming Written Instructions
are not received by Xxxxxx Square shall in no way affect the
validity or enforceability of the transactions authorized by Oral
Instructions. The Trust agrees that Xxxxxx Square shall incur no
liability to the Trust in acting upon Oral Instructions, provided
that such instructions reasonably appear to have been received by
Xxxxxx Square from an Authorized Person.
4. Series Accounting.
a. Rodney Square shall provide the following
accounting functions on a daily basis:
(1) Journalize each Series'
investment, income and expense
activities;
(2) Verify investment buy/sell
trade tickets when received
from the Manager and transmit
trades to the Trust's Custodian
for proper settlement;
(3) Maintain individual ledgers for investment
securities;
(4) Maintain historical tax lots for each
security;
(5) Reconcile cash and investment balances of each
Series with the Custodian, and provide the
Manager with the beginning cash balance
available for investment purposes;
(6) Update the cash availability throughout the
day as required by the Manager;
(7) Post to and prepare each Series' Statement of
Assets and Liabilities and Statement of
Operations;
(8) Calculate expenses payable pursuant to the
Trust's various contractual obligations;
(9) Control all disbursements from the Trust on
behalf of each Series and authorize such
disbursements upon Written Instructions;
(10) Calculate capital gains and losses;
(11) Determine each Series' net income;
(12) Obtain the Series' expense, security market
prices or, if such market prices
are not readily available, then
obtain such prices from services
approved by the Manager, and in
either case calculate the market
or fair value of each Series'
investments;
(13) In the case of debt instruments with remaining
maturities of sixty (60) days or less,
calculate the amortized cost value of those
instruments;
(14) Transmit or mail a copy of the Series
valuations to the Manager;
(15) Compute the net assets of each Series;
(16) Prepare and monitor the expense accruals and
notify Trust management of any proposed
adjustments.
b. In addition, Xxxxxx Square will:
(1) Prepare monthly financial
statements, which will include,
without limitation, each
Series' Schedule of
Investments, Statement of
Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net
Assets, Cash Statement, and
Schedule of Capital Gains and
Losses;
(2) Prepare monthly security transactions
listings;
(3) Prepare monthly broker security transactions
summaries;
(4) Assist in the preparation of support schedules
necessary for completion of Federal and state
tax returns;
Assist in the preparation and filing of the
Trust's annual and semiannual reports with the
SEC on Form N-SAR;
Assist with the preparation of amendments to the
Trust's registration statements on Form N-1A.
(7) Determine each Trust partner's allocable share
of income, expense, and realized and
unrealized gain and loss, as necessary to,
among other things, maintain the partner's
qualification, if necessary, as a "regulated
investment company" under the Internal Revenue
Code of 1986, as amended from time to time.
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 Trust. All records
shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust or the Trust's
authorized representatives. Upon reasonable request by the Trust,
copies of such records shall be provided by Xxxxxx Square to the
Trust or the Trust's authorized representatives at the Trust's
expense. 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. Liaison With Accountants. Xxxxxx Square shall act as
liaison with the Trust's independent public accountants and shall
provide account analysis, fiscal year summaries and other audit
related schedules. Xxxxxx Square shall take all reasonable action
in the performance of its obligations under this Agreement to
assure that the necessary information is made available to such
accountants for the expression of their opinion, as such may be
required by the Trust from time to time.
7. Confidentiality. Xxxxxx Square agrees on behalf of
itself and its employees to treat confidentially and as
proprietary information of the Trust all records and other
information relative to the Trust and its prior, present or
potential partners, and not to use such records and information
for any purpose other than performance of its responsibilities
and duties hereunder, except, after prior notification to and
approval in writing by the Trust, which approval shall not be
unreasonably withheld and may not be withheld where Xxxxxx Square
may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Trust.
8. Equipment Failure. In the event of equipment failures
beyond Xxxxxx Square's control, Xxxxxx Square shall, at no
additional expense to the Trust, take reasonable steps to
minimize service interruptions, but shall have no liability with
respect thereto. Xxxxxx Square shall enter into and shall
maintain in effect with appropriate parties one or more
agreements making reasonable provision of emergency use of
electronic data processing equipment to the extent appropriate
equipment is available.
9. Right to Receive Advice.
a. Advice of Trust. If Xxxxxx Square shall be in
doubt as to any action to be taken or omitted by it, it may
request, and shall receive, from the Trust directions or advice,
including Oral or Written Instructions where appropriate.
b. Advice of Counsel. If Xxxxxx Square shall be in
doubt as to any question of law involved in any action to be
taken or omitted by Xxxxxx Square, it may request advice at its
own cost from counsel of its own choosing (who may be the
regularly retained counsel for the Trust or Xxxxxx Square or the
in-house counsel for Xxxxxx Square, at the option of Xxxxxx
Square).
c. Conflicting Advice. In case of conflict between
directions, advice or Oral or Written Instructions received by
Xxxxxx Square pursuant to subsection (a) of this Section and
advice received by Xxxxxx Square pursuant to subsection (b) of
this Section, Xxxxxx Square shall be entitled to rely on and
follow the advice received pursuant to the latter provision
alone.
d. Protection of Xxxxxx Square. Xxxxxx Square shall
be protected in any action or inaction which it takes in reliance
on any directions, advice or Oral or Written Instructions
received pursuant to subsections (a) or (b) of this Section which
Xxxxxx Square, after receipt of any such directions, advice or
Oral or Written Instructions, in good faith believes to be
consistent with such directions, advice or Oral or Written
Instructions, as the case may be. However, nothing in this
Section shall be construed as imposing upon Xxxxxx Square any
obligation (i) to seek such direction, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions,
advice or Oral or Written Instructions when received, unless,
under the terms of another provision of this Agreement, the same
is a condition to Xxxxxx Square's properly taking or omitting to
take such action. Nothing in this subsection shall excuse Xxxxxx
Square when an action or omission on the part of Xxxxxx Square
constitutes willful misfeasance, bad faith, negligence or
reckless disregard by Xxxxxx Square of its duties under this
Agreement.
10. Compliance with Governmental Rules and Regulations.
Except as otherwise provided herein in Sections 4 and 5, the
Trust assumes full responsibility for ensuring that the Trust
complies with all applicable requirements of the 1933 Act, the
1934 Act, the 1940 Act, the CEA and any laws, rules and
regulations of governmental authorities having jurisdiction over
the Trust.
11. Compensation. For the performance of its obligations
under this Agreement, the Trust on behalf of each Series shall
pay Xxxxxx Square in accordance with the fee arrangements
described in Schedule A attached hereto, as such schedule may be
amended from time to time.
12. Indemnification.
a. The Trust 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 Trust 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 Trust 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 12 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.
13. Responsibility of Xxxxxx Square. Xxxxxx Square shall be
under no duty to take any action on behalf of the Trust except as
specifically set forth herein or as may be specifically agreed to
by Xxxxxx Square in writing. In the performance of its duties
hereunder, Xxxxxx Square shall be obligated to exercise due care
and diligence and to act in good faith and to use its best
efforts within reasonable limits in performing services provided
for under this Agreement. Xxxxxx Square shall be responsible for
its own negligent failure to perform its duties under this
Agreement, but to the extent that duties, obligations and
responsibilities are not expressly set forth in this Agreement,
Xxxxxx Square shall not be liable for any act or omission which
does not constitute willful misfeasance, bad faith or negligence
on the part of Xxxxxx Square or reckless disregard by Xxxxxx
Square of such duties, obligations and responsibilities. Without
limiting the generality of the foregoing or of any other
provision of this Agreement, Xxxxxx Square in connection with its
duties under this Agreement shall not be under any duty or
obligation to inquire into and shall not be liable for or in
respect of (i) the validity or invalidity or authority or lack
thereof of any Oral or Written Instruction, notice or other
instrument which reasonably conforms to the applicable
requirements of this Agreement, and which Xxxxxx Square
reasonably believes to be genuine; or (ii) delays or errors or
loss of data occurring by reason of circumstances beyond Xxxxxx
Square's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, mechanical
breakdown (except as provided in Section 8), flood or
catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply, in
which circumstances Xxxxxx Square shall take minimal actions to
minimize loss of data therefor.
14. 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 immediately hereinafter provided, shall continue in force for
three (3) years from the date of its execution and thereafter
from year to year, provided continuance after the three (3) year
period is approved at least annually by (i) the vote of a
majority of the Trustees of the Trust and (ii) the vote of a
majority of those Trustees of the Trust who are not interested
persons of the Trust, and who are not parties to this Agreement
or interested persons of any party, cast in person at a meeting
called for the purpose of voting on the approval.
This Agreement may be terminated by a vote of the Board of
Trustees of the Trust or by a vote of a majority of the
outstanding voting securities of any one or more of the Trust's
Series, 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 Trust
to, and received by, Xxxxxx Square.
This Agreement may also be terminated by Xxxxxx Square, upon
written notice to the Trust, in the event of a material breach
remaining uncured for sixty (60) days after due written
notification of such breach has been issued by Xxxxxx Square to,
and received by, the Trust.
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 Trust 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 Trust
designates a successor to any of Xxxxxx Square's obligations
hereunder, Xxxxxx Square shall, at the expense and direction of
the Trust, transfer to such successor all relevant books, records
and other data established or maintained by Xxxxxx Square under
the foregoing provisions.
15. 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 Trust or any person
retained by the Trust. Upon reasonable notice by the Trust,
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
Trust, or any person retained by the Trust.
16. Notices. 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.
17.. Further Actions. Each Party agrees to perform such
further acts and execute such further documents as are necessary
to effectuate the purposes hereof.
18. Amendments. This Agreement or any part hereof may be
changed or waived only by an instrument in writing signed by the
party against which enforcement of such change or waiver is
sought.
19. Delegation. On thirty (30) days' prior written notice
to the Trust, Xxxxxx Square may assign any part or all its rights
and delegate its duties hereunder to any wholly-owned direct or
indirect subsidiary of Wilmington Trust Company, provided that
(i) the delegate agrees with Xxxxxx Square to comply with all
relevant provisions of the 1940 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 Trust may request; and (iv) Xxxxxx Square
shall respond to such questions as the Trust may ask, relative to
the delegation, including (without limitation) the capabilities
for the delegate.
20. Appointment of Agents. Neither this Agreement nor any
rights or obligations hereunder may be assigned by Xxxxxx Square
without the written consent to the Trust. Xxxxxx Square may
however, 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.
21. Miscellaneous.
a. Rodney Square acknowledges that it has received
notice of and accepts the limitations of liability set forth in
the Trust's Declaration of Trust. Xxxxxx Square agrees that the
Trust's obligations hereunder shall be limited to the Trust, and
that Xxxxxx Square shall have recourse solely against the assets
of the Series with respect to which the Trust's obligations
hereunder relate and shall have no recourse against the assets of
any other Series or against any shareholder, Trustee, officer,
employee, or agent of the Trust.
b. This Agreement embodies the entire agreement and
understanding between the parties thereto, and supersedes all
matters hereof, provided that the parties hereto may embody in
one or more separate documents their agreement, if any, with
respect to Written and/or Oral Instructions. 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
shall be deemed to be a contract made in Delaware and shall be
governed and construed according to the laws (without regard,
however, to laws as to conflicts of law) of the state of
Delaware. 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. This
Agreement shall be binding and shall inure to the benefits of the
parties hereto and their respective successors.
IN WITNESS WHEREOF the parties have caused this instrument
to be signed on their behalf by their respective officers
thereunto duly authorized all as of the date first written above.
KIEWIT INVESTMENT TRUST
By:
Xxx XxXxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By:
Xxxxxx X. Xxxxxxxx,
President
ACCOUNTING SERVICES AGREEMENT
SCHEDULE A
KIEWIT INVESTMENT TRUST
FEE SCHEDULE
For the services Xxxxxx Square provides under the Accounting
Services Agreement attached hereto, Kiewit Investment Trust (the
"Trust") agrees to pay Xxxxxx Square, on behalf of each Series of
the Trust listed below, an annual minimum fee of $40,000, plus an
annual accounting services charge of 0.015% of the Series' total
assets in excess of $100 million.
Kiewit Money Market Series
Kiewit Government Money Market Series
Kiewit Short-Term Government Series
Kiewit Intermediate-Term Bond Series
Kiewit Tax-Exempt Series
Kiewit Equity Series
The foregoing annual accounting services charge shall be payable
monthly, in arrears, as soon as practicable after the last day of
each month, based on the average of the daily total assets of
each Series, as determined at the close of business on each day
throughout the month. The annual minimum fee will be payable at
the same time, but in twelve (12) equal monthly installments,
also in arrears.
In addition to the foregoing annual accounting services charge
and fee, the Trust 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
KIEWIT INVESTMENT TRUST
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board
of Trustees to give Oral and Written Instructions on behalf of
the Trust:
Xxx XxXxxxxxx __________________________
Xxxxxxx Xxxxxxx __________________________
Xxxxx Xxxxxxxx __________________________
Xxxxx Xxxxxx __________________________
Exhibit No. 24(b)(9)(iii)
KIEWIT INVESTMENT TRUST
XXXXXX SQUARE MANAGEMENT CORPORATION
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT made this 19th day of February,
1997, by and between Kiewit Investment Trust, a Delaware business
trust (the "Trust"), 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 Trust is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end
management investment company;
WHEREAS, at the present time, the Trust consists of six
separate and distinct Series, Kiewit Money Market Series, Kiewit
Government Money Market Series; Kiewit Short-Term Government
Series, Kiewit Intermediate-Term Bond Series, Kiewit Tax-Exempt
Series and Kiewit Equity Series (individually, a "Series", and
collectively, the "Series");
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained in this Agreement, the Trust and Xxxxxx
Square agree as follows:
1. Appointment. The Trust hereby appoints and employs
Xxxxxx Square as agent to perform those services described in
this Agreement for the Trust. 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 agents enunciated by the common law.
2. Documents. The Trust has furnished Xxxxxx Square with
copies properly certified or authenticated of each of the
following:
a. Resolutions of the Trust's Board of Trustees
authorizing the appointment of Xxxxxx Square to provide certain
administration services to the Trust and approving this
Agreement;
b. Schedule B identifying and containing the signatures of
the Trust's officers and other persons authorized ("Authorized
Persons") to sign "Written Instructions" (as used in this
Agreement to mean written instructions delivered by hand, mail,
telegram, cable, telex or facsimile sending device and received
by Xxxxxx Square, signed by two Authorized Persons) on behalf of
the Trust;
c. The Trust's Certificate of Trust filed with the
Secretary of the State of Delaware on January 23, 1997 and all
amendments thereto and restatements thereof;
d. The Trust's Agreement and Declaration of Trust and all
amendments thereto and restatements thereof;
e. The Trust'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 Investment Management Agreement between the Trust
and Kiewit Investment Management Corp. (the "Manager") with
respect to each Series, effective February 19, 1997;
g. The Accounting Services Agreement between the Trust and
Xxxxxx Square dated February 19, 1997;
h. The Custodian Agreement between the Trust and
Wilmington Trust Company (the "Custodian") dated February 19,
1997;
i. The Trust's Notification of Registration filed pursuant
to Section 8(a) of the 1940 Act filed with the Securities and
Exchange Commission ("SEC") on ______________;
j. The Trust's Registration Statement on Form N-1A under
the 1940 Act (File No. ____________), as filed with the SEC, and
all amendments thereto;
k. 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 Trust by the CFTC which states that
the Trust 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 Trust by the CFTC which states that
CFTC will not take any enforcement action if the Trust does not
register as a "commodity pool operator."
The Trust 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. Series Administration. Subject to the direction and
control of the Board of Trustees (the "Trustees") of the Trust
and to the extent not otherwise the responsibility of, or
provided by, the Trust or other supply agents of the Trust,
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 Trust expense;
(v) corporate secretarial services, such as the
preparation and distribution of materials
at Trust expense for meetings of the Trust's Board of
Trustees; and
(vi) Distribution of Trustees' and Officers'
questionnaires.
b. Prepare and file, if necessary, reports to partners of
the Trust and reports to the SEC, including post-effective
amendments to the Trust's registration statement, and Form N-SAR
filings;
c. Monitor the Trust's compliance with investment
restrictions and limitations imposed by the 1940 Act, and
regulations thereunder, and the fundamental and non-fundamental
investment policies and limitations set forth in the Prospectus
and SAI;
d. Prepare and distribute to appropriate parties notices
announcing distributions to Trust partners;
e. Prepare financial statements and footnotes and other
financial information with such frequency and in such format as
required to be included in reports to Trust partners and the SEC;
f. Provide personnel to serve as officers of the Trust if
so elected by the Trustees.
4. Expenses of the Trust. The Trust 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 Trust
shall include, without limitation:
a. Fees payable for investment advisory services provided
by the Trust's investment adviser;
b. Fees payable for services provided by the Trust's
independent public accountants;
c. Fees payable for accounting services;
d. The cost of obtaining quotations for calculating the
value of the assets of each Series;
e. Taxes levied against the Trust or any Series;
f. Brokerage fees, xxxx-ups and commissions in connection
with the purchase and sale of portfolio securities;
g. Costs, including the interest expense, of borrowing
money;
h. Costs and/or fees incident to holding meetings of the
Trust's Board of Trustees, filing of reports with regulatory
bodies, and maintenance of the Trust's corporate existence;
i. Legal fees and expenses;
j. Fees payable to, and expenses of, members of the
Trustees who are not "interested persons" of the Trust;
k Out-of-pocket expenses incurred in connection with the
provision of administration and custodial services;
l. Premiums payable on the fidelity bond required by
Section 17(g) of the 1940 Act, and any other premiums payable on
insurance policies related to the Trust's business and the
investment activities of its Series;
m. Fees, voluntary assessments and other expenses incurred
in connection with the Trust's membership in investment company
organizations; and
n. Such non-recurring expenses as may arise, including
actions, suits or proceedings to which the Trust is a party and
the legal obligation which the Trust may have to indemnify its
Trustees and officers with respect thereto.
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 Trust. All records
shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust. 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 Trust, any person retained by the Trust or any regulatory
agency having authority over the Trust. Upon reasonable notice
by the Trust, Xxxxxx Square will make available during regular
business hours its facilities and premises employed in connection
with its performance of this Agreement for reasonable visitation
by the Trust, or any person retained by the Trust.
7. Compliance with Governmental Rules and Regulations.
Except as otherwise provided herein, the Trust assumes full
responsibility for ensuring that the Trust 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 Trust shall pay Xxxxxx Square an
administrative fee with respect to each Series 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 Trust. 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 Trust, 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 1940 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 Trust may request; and (iv) Xxxxxx Square
shall respond to such questions as the Trust may ask, relative to
the delegation, including (without limitation) the capabilities
of the delegate.
11. Use of Xxxxxx Square's Name. The Trust shall not use the
name of Xxxxxx Square or any of its affiliates in any Prospectus,
SAI, or other material relating to the Trust 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 Trust's Name. Neither Xxxxxx Square nor any of
its affiliates shall use the name of the Trust or material
relating to the Trust 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 Trust; provided,
however, that the Trust 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 Trust 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 Trust, shall be
deemed, when rendering services to the Trust as such officer or
acting on any business of the Trust 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 Trust 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 Trust 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 Trust 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
Trust 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 Trust 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 Trust 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 Trust (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 Trust. Any change in
such materials that would require any material 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 immediately hereinafter provided, shall continue in force for
three (3) years from the date of its execution and thereafter
from year to year, provided continuance after the three (3) year
period is approved at least annually by (i) the vote of a
majority of the Trustees of the Trust and (ii) the vote of a
majority of those Trustees of the Trust who are not interested
persons of the Trust, and who are not parties to this Agreement
or interested persons of any party, cast at a meeting called for
the purpose of voting on the approval.
This Agreement may be terminated by a vote of the Board
of Trustees of the Trust, or by a vote of a majority of the
outstanding voting securities of any one or more of the Trust's
Series, upon written notice to Xxxxxx Square, in the event of a
breach remaining uncured for thirty (30) days after written
notification of such breach has been issued by the Trust to, and
received by, Xxxxxx Square.
This Agreement may also be terminated by Xxxxxx Square,
upon written notice to the Trust, in the event of a 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 Trust.
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 Trust 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 Trust
designates a successor to any of Xxxxxx Square's obligations
hereunder, Xxxxxx Square shall, at the expense and direction of
the Trust, 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 Trust or any person
retained by the Trust. Upon reasonable notice by the Trust,
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
Trust, or any person retained by the Trust.
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 Trust's Agreement and Declaration of
Trust and By-Laws. Xxxxxx Square agrees that the Trust's
obligations hereunder shall be limited to the Trust, and that
Xxxxxx Square shall have recourse solely against the assets of
the Series with respect to which the Trust's obligations
hereunder relate and shall have no recourse against the assets of
any other Series or against any shareholder, Trustee, officer,
employee, or agent of the Trust.
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.
KIEWIT INVESTMENT TRUST
By:
_____________________________
Xxx XxXxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By:
_____________________________
Xxxxxx X. Xxxxxxxx,
President
ADMINISTRATION AGREEMENT
SCHEDULE A
KIEWIT INVESTMENT TRUST
FEE SCHEDULE
For the services Xxxxxx Square provides under the Administration
Agreement attached hereto, Kiewit Investment Trust (the "Trust")
agrees to pay Xxxxxx Square, on behalf of each Series of the
Trust listed below, an annual minimum fee of $50,000, plus an
annual administration services charge of 0.015% of the Series'
total assets in excess of $125 million.
Kiewit Money Market Series
Kiewit Government Money Market Series
Kiewit Short-Term Government Series
Kiewit Intermediate-Term Bond Series
Kiewit Tax-Exempt Series
Kiewit Equity Series
The foregoing annual administration services charge shall be
payable monthly, in arrears, as soon as practicable after the
last day of each month, based on the average of the daily total
assets of each Series, as determined at the close of business on
each day throughout the month. The annual minimum fee will be
payable at the same time, but in twelve (12) equal monthly
installments, also in arrears.
In addition to the foregoing annual administration services
charge and fee, the Trust 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
KIEWIT INVESTMENT TRUST
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board
of Trustees to give Oral and Written Instructions on behalf of
the Trust:
Xxx XxXxxxxxx __________________________
Xxxxxxx Xxxxxxx __________________________
Xxxxx Xxxxxxxx __________________________
Xxxxx Xxxxxx
__________________________
Exhibit No. 24(b)(13)
SUBSCRIPTION AGREEMENT
February 19, 1997
Kiewit Investment Trust
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
Gentlemen:
Kiewit Investment Management Corp. hereby agrees to purchase
6,000 shares of beneficial interest (the "Shares") of KIEWIT
INVESTMENT TRUST (the "Trust") at $1 per share for an aggregate
of $6,000. Such purchase is allocated among the Trust's six
series of shares as follows: 1,000 shares of each of the Kiewit
Money Market Series, Kiewit Government Money Market Series,
Kiewit Short-Term Government Series, Kiewit Intermediate-Term
Bond Series, Kiewit Tax-Exempt Series and Kiewit Equity Series.
The Trust, by its acknowledgement below, acknowledges receipt of
funds in the amount of $6,000 in full payment of the Shares.
I further advise that in making this purchase, which
represents the initial capital of KIEWIT INVESTMENT TRUST, such
purchase is for investment purposes only and without any present
intention of further distributing such shares or presenting them
for redemption or repurchase.
Kiewit Investment Management Corp.
BY:
Attest: KIEWIT INVESTMENT TRUST
BY:/s/Xxx X. XxXxxxxxx
Xxx X. XxXxxxxxx, President and
Chairman of the Board of Trustees
/s/Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
