EXHIBIT (H)(2)
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ACCOUNTING/PRICING AGREEMENT
This Accounting/Pricing Agreement is made as of this 6th day of November,
2002 by and between North Track Funds, Inc., a Maryland corporation (the "Fund")
and X.X. Xxxxxxx and Company, a Wisconsin corporation ("Xxxxxxx").
WHEREAS, a majority of the Directors of the Fund and a majority of the
disinterested Directors of the Fund have approved this Agreement between Xxxxxxx
and the Fund, and in so approving the Agreement made the following findings:
a. the Agreement is in the best interest of the Fund and its
Shareholders;
b. the services to be performed pursuant to the Agreement are
services required for the operation of the Fund;
x. Xxxxxxx can provide services, the nature and quality of which are
at least equal to those provided by others offering the same or similar
services; and
d. the fees for such services are fair and reasonable in light of
the usual and customary charges made by others for services of the same
nature and quality.
WHEREAS, the Fund is authorized to issue shares in separate classes (the
"Portfolios") with each such class representing interests in a separate
portfolio of securities and other assets;
WHEREAS, the Fund desires Xxxxxxx to render the services to the Fund in
the manner and on the terms and conditions hereinafter set forth with respect to
each of the Fund's Portfolios identified on Schedule C attached hereto, as
modified from time to time by the mutual consent of the parties; and
WHEREAS, the Administrative Services Agreement, dated as of August 26,
1988, by and between the Fund and Xxxxxxx, as amended and renamed the
Accounting/Pricing Services Agreement by Amendment No. 1, is terminated and
superseded upon the effectiveness of this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Services. The Fund hereby engages Xxxxxxx, and Xxxxxxx accepts such
engagement, to perform accounting and pricing services for the Fund as described
in more detail on Schedule A, as the same may be modified from time to time by
vote of a majority of the Fund's directors including a majority of those who are
not interested persons of
Xxxxxxx, (the "Services"). The Fund agrees that Xxxxxxx shall have ready access
to the Fund's agents, books, records, financial information, management and
resources, at such times and for such periods as Xxxxxxx deems necessary to
perform the Services.
2. Rate of Payment for the Services.
A. Contract Price. The Fund agrees to pay Xxxxxxx for the Services
at such rate, as may be approved annually by a majority of the Fund's directors,
including a majority of directors who are not parties to this Agreement or
interested persons of Xxxxxxx, (the "Contract Price") as stated in Schedule B.
The Fund shall also pay all expenses, as set forth in paragraph B below,
applicable taxes, duties and charges (including sales, use and excise taxes)
levied or assessed as a result of this Agreement. The Contract Price shall be
payable monthly within ten (10) days of the date of invoice. The Contract Price
shall be adjusted annually by mutual agreement.
B. Reimbursement for Expenses. Subject to the Fund's prior
approvals, Xxxxxxx shall be paid by the Fund for actual expenses and costs
incurred by Xxxxxxx in the performance of the Services, including, but not
limited to, long distance telephone calls, postage, computer time, supplies and
expenses and costs stated in Schedule B hereto.
3. Employees. All personnel assigned by Xxxxxxx to perform the Services
will be employees of Xxxxxxx or its affiliates. Xxxxxxx will be considered for
all purposes, an independent contractor, and it will not, directly or
indirectly, act as an agent, servant or employee of the Fund, or make any
commitments or incur any liabilities on behalf of the Fund without its prior
written consent.
4. Xxxxxxx'x Use of the Services of Others. Xxxxxxx may (at its cost
except as contemplated by Paragraph 2(B) of this Agreement) employ, retain or
otherwise avail itself of the services or facilities of other persons or
organizations for the purpose of providing the Fund with such information or
Services as it may deem necessary, appropriate or convenient for the discharge
of its obligations hereunder or otherwise helpful to the Fund, or in the
discharge of its overall responsibilities with respect to the Services to be
provided to the Fund.
5. Ownership of Records. All records required to be maintained and
preserved by the Fund pursuant to the provisions of rules or regulations of the
Securities and Exchange Commission under Section 31(a) of the Investment Company
Act of 1940, as amended (the "Act"), and maintained and preserved by Xxxxxxx on
behalf of the Fund are the property of the Fund and will be surrendered by
Xxxxxxx promptly on request by the Fund.
6. Reports to Fund by Xxxxxxx. Xxxxxxx shall provide the Fund, at such
times as the Fund may reasonably require, with reports relating to the Services
provided by Xxxxxxx under this Agreement. Such reports shall be of sufficient
scope and in sufficient detail, as may reasonably be required by the Fund.
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7. Services to Other Clients. Nothing herein contained shall limit the
freedom of Xxxxxxx or any affiliated person of Xxxxxxx to render investment
advice or corporate administrative services to other investment companies, to
act as investment advisor or investment counselor to other persons, firms or
corporations, or to engage in other business activities.
8. Limitation of Liability of Xxxxxxx. Neither Xxxxxxx, nor any of its
officers, directors, or employees, nor any person performing administrative or
other functions for the Fund (at the direction or request of Xxxxxxx) or the
Advisor in connection with Xxxxxxx'x discharge of its obligations undertaken or
reasonably assumed with respect to this Agreement, shall be liable for any error
of judgment or mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates, except for loss resulting from
willful misfeasance, bad faith, or gross negligence in the performance of its or
their duties on behalf of the Fund or from reckless disregard by Xxxxxxx or any
such person of the duties of Xxxxxxx under this Agreement. In no case shall
Xxxxxxx'x or any such person's liability in connection with the matters to which
this contract relates be greater than one year's fee income received by Xxxxxxx
under performance of this contract.
9. Term of Agreement. The term of this Agreement shall begin, with
respect to any Portfolio of the Fund, on the date agreed upon between the
parties. Once effective with respect to any Portfolio, this Agreement will
continue in effect from year to year with respect to such Portfolio, subject to
the termination provisions and all other terms and conditions hereof, so long as
such continuation shall be specifically approved at least annually by the board
of directors of the Fund or by vote of a majority of the outstanding voting
securities of such Portfolio and, concurrently with such approval by the board
of directors or prior to such approval by the holders of the outstanding voting
securities of such Portfolio, as the case may be, by the vote, cast in person at
a meeting called for the purpose of voting on such approval, of a majority of
the directors of the Fund who are not parties to this Agreement or interested
persons of any such party. Xxxxxxx shall furnish to the Fund, promptly upon its
request, such information as may reasonably be necessary to evaluate the terms
of this Agreement or any extension, renewal or amendment hereof.
10. Termination of Agreement. This Agreement may be terminated with
respect to each Portfolio by any party hereto without the payment of any
penalty, upon 60 days prior notice in writing to the other party; provided that,
in the case of termination by the Fund, such action shall have been authorized
by resolutions of a majority of the directors of the Fund who are not parties to
this Agreement or interested persons of any such party, or by vote of a majority
of the outstanding voting securities of each Portfolio affected by such
termination. This Agreement shall automatically and immediately terminate in the
event of its assignment.
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11. Miscellaneous.
A. Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
B. Interpretation. Nothing herein contained shall be deemed to
require the Fund to take any action contrary to its Articles of Incorporation or
By-Laws, or any applicable statutory or regulatory requirement to which it is
subject or by which it is bound, or to relieve or deprive the board of directors
of the Fund of its responsibility for and control of the conduct of the affairs
of the Fund.
C. Definitions. Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived from a
term or provision of the Act shall be resolved by reference to such term or
provision of the Act and to interpretations thereof, if any, by the United
States courts or, in the absence of any controlling decision of any such court,
by rules, regulations or orders of the Securities and Exchange Commission
validly issued pursuant to the Act. In addition, where the effect of a
requirement of the Act reflected in any provision of this Agreement is relaxed
by a rule, regulation or order of the Securities and Exchange Commission,
whether of special or of general application, such provision shall be deemed to
incorporate the effect of such rule, regulation or order.
D. Governing Law. This Agreement shall be construed and governed by
the laws of the state of Wisconsin.
E. Amendment. This Agreement, including the Schedules hereto, may be
amended only by an instrument in writing executed by the parties.
F. Notices. All communications or notices required or permitted by
this Agreement shall be in writing and shall be deemed to have been given at the
earlier of the date when actually delivered to an officer of a party or when
deposited in the United States Mail, certified or registered mail, postage
prepaid, return receipt requested, and addressed to the principal place of
business of such party, unless and until any of such parties notifies the
parties in accordance with this section of a change of address.
G. Entire Agreement. This Agreement together with the Schedules
hereto constitutes the entire agreement between the Fund and Xxxxxxx with
respect to the subject matter hereof. There are no restrictions, promises,
warranties, covenants or undertakings other than those expressly set forth
herein and therein. This Agreement supersedes all prior negotiations, agreements
and undertakings between the parties with respect to such subject matter.
H. Enforceability. The invalidity or unenforceability of any
provision hereof shall not affect or impair any other provisions.
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I. Scope of Agreement. If the scope of any of the provisions of this
Agreement is too broad in any respect whatsoever, to prevent enforcement to its
full extent, then such provisions shall be enforced to the maximum extent
permitted by law, and the parties hereto consent and agree that such scope may
be judicially modified accordingly and that the whole of such provisions of this
Agreement shall not hereby fail, but that the scope of such provisions shall be
curtailed only to the extent necessary to conform to the law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the day and
year first above written.
NORTH TRACK FUNDS, INC.
By: /S/ XXXXXX X. XXXXXXXXX
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Xxxxxx X. Xxxxxxxxx, President
X.X. XXXXXXX AND COMPANY
By: /S/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, President
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SCHEDULE A
Services to be performed by Xxxxxxx:
1. Calculate daily net asset value per share.
2. Maintain original entry documents and books of record and general
ledgers.
3. Post cash receipts and disbursements.
4. Reconcile bank account balances monthly.
5. Record purchases and sales based upon portfolio manager communications.
6. Prepare monthly and annual summaries to assist in the preparation of
financial statements of, and regulatory reports for, the Fund.
SCHEDULE B
X.X. XXXXXXX ACCOUNTING/PRICING
FEE SCHEDULE
FOR: NORTH TRACK FUNDS, INC.
All Funds, Except for Cash Reserve Fund
Minimum - $19,000 Annually per Fund
Asset Charge - Assets of $30 million but less than $100 million
- .03 of 1% Assets of $100 million but less than $250
million - .02 of 1% Assets of $250 million or more - .01
of 1%
Plus: Out of Pocket Expenses
Pricing valuations - by outside pricing sources
Paper, phone and other miscellaneous expenses
Fees will be billed monthly
Cash Reserve Fund
Minimum - $15,000 Annually
Maximum - $125,000 Annually
Asset Charge - Average Daily Net Assets of $50 million but less
than $100 million - 0.04 of 1%
Average Daily Net Assets of $100 million but less
than $200 million - 0.03 of 1%
Average Daily Net Assets of $200 million or more - 0.01 of
1%
Plus: Out of Pocket Expenses - Pricing valuations (by outside
pricing sources), paper, phone and other
miscellaneous expenses
SCHEDULE C
STAND ALONE FUNDS
1. Tax-exempt Fund (Effective 5/1/93)
2. Government Fund (Effective 5/1/93)
3. S&P 100 Plus Fund (Effective 5/1/93)
4. PSE Tech 100 Index Fund (Effective 6/10/96)
5. Managed Growth Fund (Effective 1/1/99)
6. Wisconsin Tax-Exempt Fund (Effective 6/13/94)
7. Cash Reserve Fund, including Class X (Retail Class) and Class Y
(Institutional Class) (Effective 1/1/96)
8. Dow Xxxxx U.S. Health Care 100 Plus Fund (Effective 4/17/01)
9. Dow Xxxxx U.S. Financial 100 Plus Fund (Effective 4/17/01)
