Administration Agreement
Exhibit
(H)(4)
NORTH
TRACK FUNDS, INC.
This
ADMINISTRATION
AGREEMENT
is made
this ___ day of _________, 2007, by and between NORTH
TRACK FUNDS, INC.
(“North
Track”), a Maryland corporation registered under the Investment Company Act of
1940, as amended (“1940 Act”), as an open-end diversified management investment
company, and X.X. XXXXXXX AND COMPANY (“Administrator”), a Wisconsin
corporation.
1. Appointment.
North
Track hereby appoints Administrator to furnish certain administrative services
to North Track and each series of its common stock listed in Schedule
A
hereto,
as such schedule may be amended from time to time. Each such series is
hereinafter referred to as a “Fund,” and collectively as the “Funds.”
Administrator accepts such appointment and agrees to perform the services
described herein.
2. Administrative
Services.
Subject
to the terms of this Agreement and the supervision and control of North Track’s
Board of Directors, Administrator shall provide the following
services:
(a) Maintenance
and retention of all North Track charter documents and the filing of all
documents required to maintain North Track’s status as a Maryland corporation
and as a registered open-end investment company;
(b) Arrangement
and preparation and dissemination of all materials for meetings of North Track’s
Board of Directors and committees thereof and review and retention of all
minutes and other records thereof;
(c) Preparation
and, subject to approval of North Track’s Chief Accounting Officer,
dissemination of North Track’s and each Fund’s quarterly financial information
to North Track’s Board of Directors and preparation of such other reports
relating to the business and affairs of North Track and each Fund as the
officers and North Track’s Board of Directors may from time to time reasonably
request;
(d) Administration
of North Track’s Code of Ethics and periodic reporting to North Track’s Board of
Directors concerning compliance therewith by persons who are “Access Persons”
(as that term is defined in said Code of Ethics);
(e) Provision
of internal legal, compliance, audit, and risk management services and periodic
reporting to North Track’s Board of Directors with respect to such
services;
(f) Preparation
or management of the preparation of responses to all inquiries by regulatory
agencies, the press, and the general public concerning the business and affairs
of North Track, including the oversight of all periodic inspections of the
operations of North Track and its agents by regulatory authorities and responses
to subpoenas and tax levies;
2
(g) Handling
and resolution of any complaints registered with North Track by shareholders,
regulatory authorities, and the general public;
(h) Monitoring
or arranging for the monitoring of legal, tax, regulatory, and industry
developments related to the business affairs of North Track and communicating
such developments to North Track’s officers and Board of Directors as they may
reasonably request or as the Administrator believes appropriate;
(i) Administration
of operating policies of North Track and recommendation to North Track’s
officers and Board of Directors of modifications to such policies to facilitate
the protection of the shareholders or market competitiveness of North Track
and
each Fund and to the extent necessary to comply with new legal or regulatory
requirements;
(j) Responding
to surveys conducted by third parties and reporting of each Fund’s performance
and other portfolio information;
(k) Filing
of
claims, monitoring of class actions involving portfolio securities, and handling
administrative matters in connection with the litigation or settlement of such
claims with respect to each Fund;
(l) Facilitating
and assisting communication with beneficial owners of Fund shares by brokers
and
other service providers who own shares in street name;
(m) Maintaining
and paying membership fees associated with the North Track’s membership in the
Investment Company Institute for so long as the Board of Directors deems it
advisable and appropriate to maintain such membership;
(n) Maintaining
the North Track’s books and records, (other than financial or accounting books
and records maintained by any accounting services agent and such records
maintained by the North Track’s custodian or transfer agent);
(o) Overseeing
the North Track’s insurance relationships;
(p) Preparing
for each Fund (or assisting counsel and/or auditors in the preparation of)
all
required tax returns, proxy statements and reports to the Fund’s shareholders
and Directors and reports to and other filings with the Securities and Exchange
Commission and other governmental agency (the Fund agreeing to supply or cause
to be supplied to the Administrator all necessary financial and other
information in connection with the foregoing);
(q) Preparing
such applications and reports as may be necessary to register or maintain the
Funds’ registration and/or the registration of the shares of the Funds under the
securities or “blue sky” laws of the various states selected by the Funds’
Distributor (the Funds agreeing to pay all filing fees or other similar fees
in
connection therewith);
(r) Responding
to all inquiries or other communications of shareholders, if any, which are
directed to the Administrator, or if any such inquiry or communication is more
properly to be responded to by the North Track’s custodian, transfer agent or
accounting services agent, overseeing their response thereto;
3
(s) Overseeing
all relationships between the North Track and its custodian(s), transfer
agent(s) and accounting services agent(s), including the negotiation of
agreements and the supervision of the performance of such agreements; and
(t) Authorizing
and directing any of the Administrator’s directors, officers and employees who
may be elected as Directors or officers of the North Track to serve in the
capacities in which they are elected. All services to be furnished by the
Administrator under this Agreement may be furnished through the medium of any
such Directors, officers or employees of the Administrator.
3.
Use
of
Affiliated Companies and Subcontractors.
In
connection with the services to be provided by Administrator under this
Agreement, Administrator may, to the extent it deems appropriate, and subject
to
compliance with the requirements of applicable laws and regulations and upon
receipt of approval of North Track’s Board of Directors, make use of (i) its
affiliated companies, if any, and their directors, officers, and employees
and
(ii) subcontractors selected by Administrator, provided that Administrator
shall
supervise and remain fully responsible for the services of all such third
parties in accordance with and to the extent provided by this Agreement. All
costs and expenses associated with services provided by any such third parties
shall be borne by Administrator or such parties.
4.
Instructions,
Opinions of Counsel, and Signatures.
At any
time Administrator may request instructions regarding North Track from any
duly
authorized agent of North Track, and may consult counsel for North Track or
its
own counsel, in respect of any matter arising in connection with this Agreement,
and it shall not be liable for any action taken or omitted by it in good faith
in accordance with such instructions or with the advice or opinion of such
counsel. Administrator shall be protected in acting upon any such instruction,
advice, or opinion and upon any other paper or document delivered by North
Track
or such counsel believed by Administrator to be genuine and to have been signed
by the proper person or persons, and shall not be held to have notice of any
change of authority of any officer or agent of North Track, unless such change
was authorized by a duly authorized employee of Administrator or Administrator
shall have received written notice thereof from North Track.
5.
Expenses
Borne by North Track.
Except
to the extent expressly assumed by Administrator herein or under a separate
agreement between North Track and Administrator and except to the extent
required by law to be paid by Administrator, North Track shall pay all costs
and
expenses incidental to the organization, operations, and business of North
Track
and each Fund. Without limitation, such costs and expenses shall include, but
not be limited to:
(a) All
charges of depositories, custodians, and other agencies for the safekeeping
and
servicing of its cash, securities, and other property;
(b) All
charges for equipment or services used for obtaining price quotations or for
communication between Administrator or North Track and the custodian, transfer
agent, or any other agent selected by North Track;
4
(c) All
charges for investment advisory, portfolio management, and fund accounting
and
pricing services provided to North Track by the Administrator, or any other
provider of such services;
(d) All
charges for services of North Track’s independent auditors and for services to
North Track by legal counsel;
(e) All
compensation of directors and officers, other than those employed by
Administrator or its affiliates, all expenses of North Track’s officers and
directors incurred in connection with their services to North Track, and all
expenses of meetings of the directors or committees thereof;
(f) All
expenses incidental to holding meetings of shareholders, including expenses
of
printing and supplying to each record-date shareholder notice and proxy
solicitation material, and all other proxy solicitation expenses;
(g) All
expenses of printing of annual or more frequent revisions of North Track
prospectus(es) and of supplying each existing shareholder with a copy of a
revised prospectus; provided, however, that any such expenses with respect
to
copies for persons other than existing shareholders or regulatory agencies
shall
be paid by North Track’s distributor;
(h) All
expenses incurred in connection with the sale, marketing and distribution of
the
Funds’ shares;
(i) All
charges of transfer agents with respect to the Funds’ shares;
(j) All
expenses related to preparing and transmitting certificates representing the
Funds’ shares, if any;
(k) All
expenses of bond and insurance coverage required by law or deemed advisable
by
North Track’s Board of Directors;
(l) All
brokers’ commissions and other normal charges incident to the purchase, sale, or
lending of the Funds’ securities;
(m) All
license fees assessed by any securities exchange or other party for the use
by a
Fund of any trade name or other proprietary information or intellectual property
of such exchange or party;
(n) All
taxes
and governmental fees payable to federal, state, or other governmental agencies,
domestic or foreign, including all stamp or other transfer taxes;
(o) All
expenses of registering and maintaining the registration of North Track under
the 1940 Act and, to the extent no exemption is available, expenses of
registering North Track shares under the 1933 Act, of qualifying and maintaining
qualification of North Track and of Fund shares for sale under the securities
laws of various states or other jurisdictions and of registration and
qualification of North Track under all other laws applicable to North Track
or
its business activities; and
5
(p) All
interest on indebtedness or commitment fees for letters of credit, if any,
incurred by North Track or a Fund.
6. Allocation
of Expenses Borne by North Track.
Any
expenses borne by North Track that are attributable solely to the organization,
operation, or business of a Fund shall be paid solely out of such Fund’s assets.
Any expense borne by North Track which is not solely attributable to a Fund,
nor
solely to any other series of shares of North Track, shall be apportioned in
such manner as Administrator determines is fair and appropriate, or as otherwise
specified by North Track’s Board of Directors.
7.
Expenses
Borne by Administrator.
(a) Administrator
at its own expense shall furnish all executive and other personnel, office
space, and office facilities required to render the services set forth in this
Agreement. However, Administrator shall not be required to pay or provide any
credit for services provided by North Track’s custodian, transfer agent, or
other agents without additional cost to North Track.
(b) In
the
event that Administrator pays or assumes any expenses of North Track or a Fund
not required to be paid or assumed by Administrator under this Agreement,
Administrator shall not be obligated hereby to pay or assume the same or similar
expense in the future.
8.
Administration
Fee.
For the
services rendered and charges assumed and paid by Administrator hereunder,
North
Track shall pay an administrative fee to Administrator out of the assets of
each
Fund at the annual rate for such Fund as set forth in Schedule
A
to this
Agreement. For each Fund, the administrative fee shall accrue on each calendar
day, and shall be payable monthly on the first business day of the next
succeeding calendar month. The daily fee accrual shall be computed by
multiplying the fraction of one divided by the number of days in the calendar
year by the applicable annual rate of fee, and multiplying this product by
the
net assets of each Fund, determined in the manner established by the Board
of
Directors, as of the close of business on the last preceding business day on
which the applicable Fund’s net asset value was determined.
9.
Reduction
of Compensation and Reimbursement of Expenses.
Administrator may voluntarily reduce any portion of the compensation or
reimbursement of expenses due to it pursuant to this Agreement and may agree
to
make payments to limit the expenses which are the responsibility of a Fund
under
this Agreement. Any such reduction or payment shall be applicable only to such
specific reduction or payment and shall not constitute an agreement to reduce
any future compensation due to Administrator or make any future payment to
limit
expenses of a Fund hereunder. Any such reduction or payment will be agreed
upon
prior to accrual of the related expense or fee and will be estimated
daily.
10.
Nonexclusivity.
The
services of Administrator to North Track hereunder are not to be deemed
exclusive, and Administrator shall be free to render similar services to
others.
11.
Standard
of Care.
Neither
Administrator, nor any of its directors, officers, shareholders, agents or
employees shall be liable to North Track, any Fund, or shareholders of either
for any action taken or thing done by it, or its subcontractors or agents,
on
behalf of North Track or any Fund in carrying out the terms and provisions
of
this Agreement if done in good faith and without negligence or misconduct on
the
part of Administrator, its subcontractors, or agents. Nothing in this Agreement
shall be construed to protect any officer of Administrator from liability for
violation of Section 17(h) or (i) of the 1940 Act.
6
12.
Liability
and Indemnification.
(a) North
Track shall indemnify and hold Administrator and its controlling persons, if
any, harmless from any and all claims, actions, suits, losses, costs, damages,
and expenses, including reasonable expenses for counsel, incurred by it in
connection with its acceptance of this Agreement, in connection with any action
or omission by it or its employees, agents, or subcontractors in the performance
of its duties hereunder to North Track, or as a result of acting upon any
instruction believed by it to have been executed by a duly authorized agent
of
North Track or as a result of acting upon information provided by North Track
in
form and under policies agreed to by Administrator and North Track; provided,
however, that (i) to the extent such claims, actions, suits, losses, costs,
damages, or expenses relate solely to one or more Funds, such indemnification
shall be only out of the assets of that Fund or group of Funds; (ii) this
indemnification shall not apply to actions or omissions constituting negligence
or misconduct on the part of Administrator or its employees, agents, or
subcontractors, including, but not limited to, willful misfeasance, bad faith,
or negligence in the performance of their duties, or reckless disregard of
their
obligations and duties under this Agreement; and (iii) Administrator shall
give
North Track prompt notice and reasonable opportunity to defend against any
such
claim or action in its own name or in the name of Administrator. In any event,
North Track shall not be responsible for any claim settled or compromised,
or
for any confession of judgment, without its prior written consent, which consent
shall not be unreasonably withheld.
(b) Administrator
shall indemnify and hold harmless North Track from and against any and all
claims, demands, expenses, and liabilities which North Track may sustain or
incur arising out of, or incurred because of, the negligence or misconduct
of
Administrator, or its agents or contractors, or the breach by Administrator
of
its obligations under this Agreement, provided, however, that (i) this
indemnification shall not apply to actions or omissions constituting negligence
or misconduct on the part of North Track, or its other agents or contractors,
and (ii) North Track shall give Administrator prompt notice and reasonable
opportunity to defend against any such claim or action in its own name or in
the
name of North Track In any event, Administrator shall not be responsible for
any
claim settled or compromised, or for any confession of judgment, without its
prior written consent, which consent shall not be unreasonably
withheld.
13.
Effective
Date, Amendment, and Termination.
(a) This
Agreement shall become effective as to each Fund as of the effective date for
that Fund specified in Schedule A
hereto
and, unless terminated as hereinafter provided, shall remain in effect with
respect to such Fund thereafter from year to year so long as such continuance
is
specifically approved with respect to that Fund at least annually by a majority
of the directors who are not interested persons of North Track or
Administrator.
7
(b) As
to
North Track or any Fund, this Agreement may be modified or amended from time
to
time by mutual agreement between Administrator and North Track, and may be
terminated by Administrator or North Track on at least sixty (60) days’ written
notice given by the terminating party to the other party. Upon termination
as to
any Fund, North Track shall pay to Administrator such compensation as may be
due
under this Agreement as of the date of such termination and shall reimburse
Administrator for its costs, expenses, and disbursements payable under this
Agreement to such date. In the event that, in connection with a termination,
a
successor to any of the duties or responsibilities of Administrator hereunder
is
designated by North Track by written notice to Administrator, upon such
termination Administrator shall promptly, and at the expense of North Track
or
the Fund with respect to which this Agreement is terminated, transfer to such
successor all relevant books, records, and data established or maintained by
Administrator under this Agreement and shall cooperate in the transfer of such
duties and responsibilities, including provision, at the expense of such Fund,
for assistance from personnel of Administrator in the establishment of books,
records, and other data by such successor.
14.
Assignment.
Any
interest of Administrator under this Agreement shall not be assigned either
voluntarily or involuntarily, by operation of law or otherwise, without the
prior written consent of North Track.
15. Books
and Records.
(a) Administrator
shall maintain, or oversee the maintenance by such other persons as may from
time to time be approved by the Board of Directors to maintain, the books,
documents, records, and data required to be kept by North Track under the 1940
Act, the laws of the State of Maryland, or such other authorities having
jurisdiction over North Track, or as may otherwise be required for the proper
operation of the business and affairs of North Track
(b) Administrator
will periodically send to North Track all books, documents, records, and data
of
North Track and each of its Funds listed in Schedule
A
that are
no longer needed for current purposes or required to be retained as set forth
herein. Administrator shall have no liability for loss or destruction of such
books, documents, records, or data after they are returned to North
Track.
(c) Except
as
the parties otherwise agree, Administrator agrees that all such books,
documents, records, and data which it maintains shall be maintained in
accordance with Rule 31a-3 of the 1940 Act and that any such items maintained
by
it shall be the property of North Track. Administrator further agrees to
surrender promptly to North Track any such items it maintains upon request;
provided, however, that Administrator shall be permitted to retain a copy of
all
such items. Administrator agrees to preserve all such items maintained under
Rule 31a-1 for the period prescribed under Rule 31a-2 of the 1940
Act.
(d) North
Track shall furnish or otherwise make available to Administrator such copies
of
the financial statements, proxy statements, reports, and other information
relating to the business and affairs of each Fund or of North Track as
Administrator may, at any time or from time to time, reasonably require in
order
to discharge its obligations under this agreement.
8
16.
Notice.
Any
notice under this Agreement shall be in writing, addressed and personally
delivered, telecopied (and confirmed by mail) or sent by certified mail, postage
prepaid, to the other party at such address or telecopy number as such other
party may designate for the receipt of such notices. Such notice shall be deemed
given upon the earlier of actual receipt by the party to be notified or two
business days after mailing in the manner described in the preceding sentence.
Until further notice, it is agreed that the address of both North Track and
Administrator is 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: President. With respect to any notice given hereunder to North Track,
a copy shall be delivered to Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxx, Esq.,
and with respect to any notice given hereunder to Administrator, a copy shall
be
delivered to X.X. Xxxxxxx and Company, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: General Counsel.
17.
Headings.
Headings are placed herein for convenience of reference only and shall not
be
taken as part hereof or control or affect the meaning, construction, or effect
of this Agreement.
18.
Governing
Law.
This
Agreement shall be governed by the laws of the State of Wisconsin.
IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
by
its duly authorized officer as of the date and year written above.
NORTH
TRACK FUNDS, INC.
By:
[Name],
[Title]
XXXXXXX
CAPITAL MANAGEMENT, LLC
By:
[Name],
[Title]
9
SCHEDULE
A
NORTH
TRACK FUNDS, INC.
ADMINISTRATIVE
FEES
|
Fund
|
Effective
Date
|
Rate
of Fee*
|
|
S&P
100 Plus Fund
|
________,
2007
|
0.10%
|
|
NYSE
Arca Tech 100 Index Fund
|
________,
2007
|
0.10%
|
|
Equity
Income Fund
|
________,
2007
|
0.10%
|
|
Dow
Xxxxx U.S. Health Care 100 Plus Fund
|
________,
2007
|
0.10%
|
|
Dow
Xxxxx U.S. Financial 100 Plus Fund
|
________,
2007
|
0.10%
|
|
Strategic
Allocation Fund
|
________,
2007
|
0.10%
|
|
Geneva
Growth Fund
|
________,
2007
|
0.10%
|
|
Wisconsin
Tax-Exempt Fund
|
________,
2007
|
0.10%
|
|
Cash
Reserve Fund
|
________,
2007
|
0.10%
|
|
Large
Cap Equity Fund
|
________,
2007
|
0.10%
|
____________________________
|
*
|
Fee
is based on average daily net assets of the applicable
Fund.
|
10
