CUSTODY, RECORDKEEPING AND ADMINISTRATIVE SERVICES
AGREEMENT
THIS AGREEMENT is made this __ day of December, 1997, by and between UMB
BANK, N.A., a national banking association, having its principal office and
place of business at 0000 Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (the
"Bank"), SUNSTONE INVESTOR SERVICES, LLC., a Wisconsin limited liability
company, having its principal office and place of business at 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000 ("Sunstone"), and MARSICO
INVESTMENT FUND, having its principal office and place of business at 0000 00xx
Xxxxxx, Xxxxxxxx 00000 (the "Fund").
WHEREAS, the Fund offers or intends to offer to its shareholders one or
more retirement or similar plans described in Appendix A hereto and as such is
the sponsor of custodial accounts ("Accounts") pursuant to Custodial Agreements
(the "Account Agreements");
WHEREAS, the Fund wishes to appoint the Bank as the custodian for the
Accounts, and the Bank is willing to accept appointment as custodian for the
Accounts, on the terms and conditions set forth herein; and
WHEREAS, the Fund and the Bank desire Sunstone to perform, in its capacity
as transfer agent for the Fund, certain administrative and recordkeeping duties
relative to the Accounts.
NOW, THEREFORE, the parties to this Agreement agree to the following:
1. The Bank represents to Fund and Sunstone that it is, and as long as
the Accounts and this Agreement are in effect will be, qualified to
act as custodian under all applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code") and all other applicable
rules laws, rules and regulations.
2. The Fund hereby appoints the Bank and the Bank hereby accepts
appointment as Custodian for the Accounts. The Bank agrees to act as
Custodian for the Accounts subject to the terms hereof, and of each of
the Account Agreements.
a. The Bank understands and agrees that from time to time Fund may
propose amendments to the Account Agreements, whether to comply
with then-current provisions of the Code or otherwise, and such
amendments shall take effect subject to the provisions of the
Account Agreements and subject to the Bank's rights thereunder.
The rights of the Fund to propose amendments from time to time
shall not affect the Bank's responsibilities as provided herein
including under Section 4 hereof.
b. The appointment of the Bank as Custodian hereunder is subject to
(i) the terms of the respective Account Agreements; (ii) this
Agreement (which shall govern in case of any inconsistency
between the terms of this Agreement and any of the Account
Agreements or to the extent the respective Account Agreements do
not apply) and the right of Fund hereunder to terminate the
appointment of the Bank as Custodian under the Account Agreements
and to name a successor Custodian at any time and from time to
time on written notice to the Bank; and (iii) the rights of the
Bank and of Fund to terminate such custodianship in accordance
with the terms of the Account Agreements and this Agreement.
3. Sunstone hereby agrees to diligently perform the administrative and
recordkeeping services described in Appendix A with respect to the
Accounts. It is understood that it is not the responsibility of any
party hereunder to perform tests and/or monitor and enforce any
contribution or benefit limitations imposed by the Code, such
responsibility being that of the party adopting the Account Agreement.
4. The responsibilities for preparing and keeping current the documents
related to the Account Agreements shall be as follows:
a. The Fund shall provide Sunstone with approved/authorized forms of
Account Agreements, disclosure statements and similar documents,
and shall keep such documents current by providing timely any
necessary amendments, modifications and supplements thereto
("Account Documents"). The Fund shall bear full responsibility
for the Account Documents and the compliance thereof with all
applicable laws, rules and regulations, as amended from time to
time, and shall fully protect, indemnify and hold harmless the
Bank and Sunstone, as the case may be, against any losses arising
out of its or their reliance thereon.
b. The Fund shall also prepare application forms, transfer forms,
beneficiary designation forms and similar documents ("Related
Documents"). The Fund shall bear full responsibility for the
Related Documents and the compliance thereof with all applicable
laws, rules and regulations, as amended from time to time, and
shall fully protect, indemnify and hold harmless the Fund against
any losses arising out of its or their reliance thereon.
5. Sunstone is hereby authorized to sign any Account Agreement or
application for an account by and on behalf of the Bank as Custodian,
or endorse any check or draft or other item payable to the Bank by and
on behalf of the Bank as Custodian, and to designate an employee or
employees of Sunstone as authorized persons to execute such signatures
and endorsements. The Bank shall promptly transmit, properly
endorsed, to Sunstone any monies, checks or other property received by
the Bank as Custodian for investment for the Accounts.
6. Sunstone shall collect all fees charged to the Accounts. Sunstone
shall remit to the Bank a portion (as specified in Appendix B hereto)
of the fees described in Appendix
B hereto which are collected by Sunstone as compensation for its
services hereunder. Sunstone shall retain the balance as compensation
for its services performed under this Agreement. Sunstone may from
time to time, after receipt of approval from the Fund, change such fee
schedule; provided, however, no such revision may reduce the
compensation to be remitted to the Bank without the Bank's prior
approval. The Bank authorizes the distribution on its behalf of any
revised fee schedule to existing and prospective Account holders. In
the event the Fund determines to waive all or a portion of any related
Account fees, the Fund shall continue to be responsible for arranging
for payment of all Account related fees to Sunstone and the Bank.
7. Sunstone shall furnish to the Bank a quarterly report consisting of
the number of Accounts and their aggregate market value as of the end
of each quarter. Sunstone shall also provide Bank with a shareholder
list from time to time as Bank may reasonably request and the Fund
hereby authorizes Sunstone to furnish such reports.
8. Bank and Sunstone acknowledge the proprietary and confidential nature
of Fund's list of shareholders, and hereby agree not to disclose to
any other person the names of such shareholders without prior written
permission from Fund, except where such disclosure is required by the
Code or other law or where the Bank or Sunstone may be exposed to
civil or criminal proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when
subject to governmental or regulatory audit or investigation.
.
9. Sunstone and Fund agree to fully protect the Bank in relying upon the
respective duties and responsibilities of Sunstone and Fund under the
Account Agreements and this Agreement, and agree that each will fully
indemnify the Bank and save and hold the Bank harmless from and
against any and all claims, damages (including reasonable attorneys'
fees), costs, expenses, losses, judgments, taxes (including penalties
and interest thereon), or liabilities of any nature whatsoever
resulting from or arising out of their respective duties and
responsibilities under the Account Agreements and this Agreement;
provided however, neither Sunstone nor the Fund is required to
protect, indemnify or hold the Bank harmless for any claims, damages,
costs, expenses, losses, judgments, taxes or liabilities arising out
of, resulting from, or in connection with the negligence, bad faith or
willful misconduct of the Bank. The Bank may reasonably rely on
actions or inactions of Sunstone or the Fund in their performing
duties under this Agreement and such reasonable reliance shall not be
deemed negligent on part of Bank.
10. The Bank agrees to fully protect Fund and Sunstone in relying upon the
Bank's duties and responsibilities with respect to the Account
Agreements and this Agreement, and agrees that it will fully indemnify
the Fund and Sunstone and save and hold each harmless from and against
any and all claims, damages (including reasonable attorneys' fees),
costs, expenses, losses, judgments, taxes (including penalties and
interest thereon), or liabilities of any nature whatsoever resulting
from or arising out of its duties and responsibilities under the
Account Agreements and this Agreement;
provided however, the Bank is not required to protect, indemnify or
hold the Fund or Sunstone harmless for any claims, damages, costs,
expenses, losses, judgments, taxes or liabilities arising out of,
resulting from, or in connection with (i) the respective negligence,
bad faith or willful misconduct of the Fund or Sunstone, or (ii) the
preparation and keeping current of the Related Documents. Fund and
Sunstone may reasonably rely on actions or inactions of the Bank in
its performing duties under this Agreement and such reasonable
reliance shall not be deemed negligent on part of the Fund and
Sunstone.
11. No provision of this Agreement shall modify or supersede any provision
of the Transfer Agency Agreement executed by Sunstone and Fund.
12. This Agreement may be terminated at any time by mutual consent of the
Bank, Sunstone, and Fund, or upon sixty (60) days' written notice to
each of the other parties by any party. Upon termination, the Bank
and Sunstone shall transfer the records of the Account as directed by
Fund. In the absence of such designation by the Fund, the Fund shall
upon the date specified in the notice of termination of this Agreement
and delivery of the records maintained hereunder, assume full
responsibility hereunder and Sunstone and Bank shall thereby be
relieved of all duties and responsibilities pursuant to this
Agreement. Anything herein to the contrary notwithstanding, the
protective covenants and indemnities provided by this Agreement shall
survive the termination of the Agreement and shall continue in effect
with respect to any and all matters arising (or alleged by any third
party to have occurred, whether by way of act or default) during the
existence of the Agreement.
13. No modification or amendment of this Agreement shall be valid or
binding on the parties unless made in writing and signed on behalf of
each of the parties by their respective duly authorized officers or
representatives.
14. Notices shall be communicated by first class mail, or by such other
means as the parties may agree, to the persons and addresses specified
below or to such other persons and addresses as the parties may
specify in writing.
If to Bank: UMB Bank, N.A.
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
If to Sunstone: Sunstone Investor Services, LLC
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
If to Fund: Marsico Investment Fund
0000 00xx Xxxxxx
Xxxxxx Xxxxxxxx 00000
15. This Agreement shall be governed by the laws of the State of
Wisconsin.
16. This Agreement may be executed in any number of counterparts, and by
the parties hereto on separate counterparts, each of which when so
executed shall be deemed an original and all of which when taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers under authority of their respective
Boards as of the day and year first above written.
UMB BANK, N.A.,
By:
- -------------------------------
Title:
-----------------------------
Attest:
----------------------------
Secretary
SUNSTONE INVESTOR SERVICES, LLC.
By:
- -------------------------------
Title:
-----------------------------
Attest:
----------------------------
Secretary
XXXXXXX INVESTMENT FUND
By:
- -------------------------------
Title:
-----------------------------
Attest:
----------------------------
Secretary
APPENDIX A
PLANS AND SERVICES
1. Individual Retirement Accounts established under the provisions of Section
408 of the Code, and the regulations promulgated thereunder, simplified employee
pension plans, Xxxx IRAs, Education IRAs, SIMPLE XXX plans and Section 403(b)
accounts:
a. Receive, allocate to the appropriate Account, and invest pursuant
to the governing Account Agreement, all contributions made
thereunder, in accordance with the written instructions of the
duly authorized directing authority;
b. Reinvest for each Account all dividends and capital gains or
other distributions payable on the shares credited thereto;
c. Maintain and reconcile Account records and investment transaction
records;
d. Furnish to each Account grantor (with respect to each grantor's
individual Account), promptly after the end of each calendar
year, a statement of such grantor's account showing:
i. The net asset value of all full and fractional shares as of
the first and last business days of the calendar year,
ii. Contributions to and distributions from the account during
the calendar year, and
iii. Earnings reinvested in the account during the calendar year.
e. Furnish to each Account grantor (with respect to each grantor's
individual Account) a confirmation of each transaction in
accordance with the terms of the Fund's then current prospectus;
f. Make distributions from Accounts, including withholding and
remittance of federal tax, in accordance with the provisions of
the Account Agreements and relevant provisions of the Code;
g. Furnish informational returns and reports to each Account grantor
(with respect to each grantor's individual Account) and to the
Internal Revenue Service as may be required by the Code; and
h. Other such functions as all of the parties may agree to from time
to time.
APPENDIX B
FEES
1. Individual Retirement Accounts established under the provisions of Section
408 of the Code, and the regulations promulgated thereunder, simplified employee
pension plans, Xxxx IRAs, Education IRAs, SIMPLE XXX plans and Section 403(b)
Accounts:
FEES: Annual maintenance fee: _____ per shareholder. The annual
maintenance fee will be deducted from shareholder accounts unless
otherwise paid by the shareholder typically during the fourth
quarter of each calendar year.
PERCENTAGE TO BANK: 25% of the foregoing fees collected by Sunstone.
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this ___ day of December, 1997, by and between
The Xxxxxxx Investment Fund, a Delaware business trust (the "Trust"), and
Sunstone Financial Group, Inc., a Wisconsin corporation (the "Administrator").
WHEREAS, the Trust is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "Act") and is authorized to
issue shares of beneficial interests (the "Shares") in separate series with each
such series representing interests in a separate portfolio of securities and
other assets; and
WHEREAS, the Trust and the Administrator desire to enter into an agreement
pursuant to which the Administrator shall provide certain administration
services to such investment portfolios of the Trust as are listed on Schedule A
hereto and any additional investment portfolios the Trust and Administrator may
agree upon and include on Schedule A as such Schedule may be amended from time
to time (such investment portfolios and any additional investment portfolios are
individually referred to as a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. APPOINTMENT
The Trust hereby appoints the Administrator as administrator of the Funds
for the period and on the terms set forth in this Agreement. The Administrator
accepts such appointment and agrees to render the services herein set forth, for
the compensation herein provided.
2. SERVICES AS ADMINISTRATOR
(a) Subject to the direction and control of the Trust's Board of Trustees
and utilizing information provided by the Trust and its agents, the
Administrator will: (1) provide office space, facilities, equipment and
personnel to carry out its services hereunder; (2) compile data for and prepare
with respect to the Funds timely Notices to the Securities and Exchange
Commission (the "Commission") required pursuant to Rule 24f-2 under the Act and
Semi-Annual Reports on Form N-SAR; (3) assist in the preparation for execution
by the Trust and file all federal income and excise tax returns and state income
tax returns (and such other required tax filings as may be agreed to by the
parties) other than those required to be made by the Trust's custodian or
transfer agent, subject to review and approval of the Trust and the Trust's
independent accountants; (4) prepare the financial statements for the Annual and
Semi-Annual Reports required pursuant to Section 30(d) under the Act; (5) review
the Registration Statement for the Trust (on Form N-1A or any replacement
therefor) and any amendments thereto; (6)
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determine and periodically monitor each Fund's expense accruals and cause all
appropriate expenses to be paid from Trust assets on proper authorization from
the Trust; (7) assist in the acquisition of the Trust's fidelity bond required
by the Act, monitor the amount of the bond and make the necessary Commission
filings related thereto; (8) from time to time as the Administrator deems
appropriate, check each Fund's compliance with the policies and limitations of
each Fund relating to the portfolio investments as set forth in the Prospectus
and Statement of Additional Information and monitor each Fund's status as a
regulated investment company under Subchapter M of the Internal Revenue Code of
1986, as amended (but these functions shall not relieve the Trust's investment
adviser and sub-advisers, if any, of their primary day-to-day responsibility for
assuring such compliance); (9) maintain, and/or coordinate with the other
service providers the maintenance of, the accounts, books and other documents
required pursuant to Rule 31a-1(a) and (b) under the Act; (10) prepare and/or
file the documents to be filed with the states identified by the Trust to
maintain the Fund's securities registration; (11) develop with legal counsel and
the Trust an agenda for each board meeting and, if requested by the Trustees,
attend board meetings and prepare minutes; (12) coordinate preparation of other
matters required to be reported to the board; (13) prepare Form 1099s for
directors and other fund vendors; (14) calculate dividend and capital gains
distributions subject to review and approval by the Trust and its independent
accountants; and (15) generally assist in the Trust's administrative operations
as mutually agreed to by the parties. The duties of the Administrator shall be
confined to those expressly set forth herein, and no implied duties are assumed
by or may be asserted against the Administrator hereunder.
(b) The Trustees of the Trust shall cause the officers, adviser,
distributor, legal counsel, independent accountants, custodian and transfer
agent for the Funds to cooperate with the Administrator and to provide the
Administrator, upon request, with such information, documents and advice
relating to the Funds and the Trust as is within the possession or knowledge of
such persons, in order to enable the Administrator to perform its duties
hereunder. In connection with its duties hereunder, the Administrator shall be
entitled to rely, and shall be held harmless by the Trust when acting in
reliance, upon the instruction, advice, information or any documents relating to
the Funds provided to the Administrator by an officer or representative of the
Funds or by any of the aforementioned persons. The Administrator shall be
entitled to rely on any document which it reasonably believes to be genuine and
to have been signed or presented by the proper party. Fees charged by such
persons shall be an expense of the Trust. The Administrator shall be entitled
to rely on any document which it reasonably believes to be genuine and to have
been signed or presented by the proper party. The Administrator shall not be
held to have notice of any change of authority of any officer, agent,
representative or employee of the Trust until receipt of written notice thereof
from the Trust.
(c) In compliance with the requirements of Rule 31a-3 under the Act, the
Administrator hereby agrees that all records which it maintains for the Trust
are the property of the Trust and further agrees to surrender promptly to the
Trust any of such records upon the Trust's request. Subject to the terms of
Section 6, the Administrator further agrees to preserve for the periods
prescribed by Rule 31a-2 under the Act the records described in (a) above which
are maintained by the Administrator for the Trust.
(e) The Trust's Board of Trustees and the Funds' investment adviser have
and retain primary responsibility for all compliance matters relating to the
Funds including but not limited to compliance with the Investment Company Act of
1940, as amended, the Internal Revenue Code of 1986, as amended, and the
policies and limitations of each Fund relating to the portfolio investments as
set forth
2
in the Prospectus and Statement of Additional Information. Sunstone's monitoring
and other functions hereunder shall not relieve the Board and the investment
adviser of their primary day-to-day responsibility for assuring such compliance.
3. FEES; DELEGATION; EXPENSES
(a) In consideration of the services rendered pursuant to this Agreement,
the Trust will pay the Administrator a fee, computed daily and payable monthly,
as provided in Schedule B hereto, plus out-of-pocket expenses. The Trust shall
also pay the Administrator for organizational start-up services provided on
behalf of the Funds as specified in Schedule B. Out-of-pocket expenses include,
but are not limited to, travel, lodging and meals in connection with travel on
behalf of the Trust, programming and related expenses (previously incurred or to
be incurred by Administrator) in connection with providing electronic
transmission of data between the Administrator and the Funds' other service
providers, brokers, dealers and depositories, fees and expenses of pricing
services, and photocopying, postage and overnight delivery expenses. Fees shall
be paid by each Fund at a rate that would aggregate at least the applicable
minimum fee for each Fund.
(b) For the purpose of determining fees payable to the Administrator, net
asset value shall be computed in accordance with the Trust's Prospectuses and
resolutions of the Trust's Board of Trustees. The fee for the period from the
day of the month this Agreement is entered into until the end of that month
shall be pro-rated according to the proportion which such period bears to the
full monthly period. Upon any termination of this Agreement before the end of
any month, the fee for such part of a month shall be pro-rated according to the
proportion which such period bears to the full monthly period and shall be
payable upon the date of termination of this Agreement. Should the Trust be
liquidated, merged with or acquired by another fund or investment company, any
accrued fees shall be immediately payable. Such fee as is attributable to each
Fund shall be a separate charge to each Fund and shall be the several (and not
joint or joint and several) obligation of each such Fund.
(c) The Administrator will bear all expenses in connection with the
performance of its services under this Agreement except as otherwise provided
herein. Other costs and expenses to be incurred in the operation of the Funds,
including, but not limited to: taxes; interest; brokerage fees and commissions,
if any; salaries, fees and expenses of officers and Trustees; Commission fees
and state Blue Sky fees; advisory fees; charges of custodians, transfer agents,
dividend disbursing and accounting services agents; security pricing services;
insurance premiums; outside auditing and legal expenses; costs of organization
and maintenance of corporate existence; typesetting, printing, proofing and
mailing of prospectuses, statements of additional information, supplements,
notices and proxy materials for regulatory purposes and for distribution to
current shareholders; typesetting, printing, proofing and mailing and other
costs of shareholder reports; expenses incidental to holding meetings of the
Fund's shareholders and Trustees; and any extraordinary expenses; will be borne
by the Funds or their investment adviser. Expenses incurred for distribution of
fund shares, including the typesetting, printing, proofing and mailing of
prospectuses for persons who are not shareholders of the Trust, will be borne by
the Trust or its investment adviser, except for such expenses permitted to be
paid by the Trust under a distribution plan adopted in accordance with
applicable laws.
3
4. PROPRIETARY AND CONFIDENTIAL INFORMATION
The Administrator agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records relative
to the Funds and prior, present or potential shareholders of the Trust (and
clients of said shareholders), 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 the
Administrator may be exposed to civil or criminal proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, when subject to governmental or regulatory audit or investigation,
or when so requested by the Trust. Records and information which have become
known to the public through no wrongful act of the Administrator or any of its
employees, agents or representatives shall not be subject to this paragraph.
5. LIMITATION OF LIABILITY
(a) The Administrator shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Funds in connection with the
matters to which this Agreement relates, except for a loss resulting from
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Furthermore, the Administrator shall not be
liable for any action taken or omitted to be taken in accordance with
instructions received by the Administrator from an officer or representative of
the Trust.
(b) The Administrator assumes no responsibility hereunder, and shall not
be liable, for any damage, loss of data, errors, delay or any other loss
whatsoever caused by events beyond its reasonable control. The Administrator
will, however, take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond the Administrator's control.
6. TERM
(a) This Agreement shall become effective with respect to each Fund listed
on Schedule A hereof as of the date hereof and, with respect to each Fund not in
existence on that date, on the date an amendment to Schedule A to this Agreement
relating to that Fund is executed. This Agreement shall continue in effect with
respect to each Fund until December__, 1999 (the "Initial Term"). Thereafter,
if not terminated as provided herein, this Agreement shall continue
automatically in effect as to each Fund for successive annual periods.
(b) This Agreement may be terminated with respect to any one or more
particular Funds without penalty after the Initial Term (i) upon mutual consent
of the parties, or (ii) by either party upon not less than ninety (90) days'
written notice to the other party (which notice may be waived by the party
entitled to the notice). The terms of this Agreement shall not be waived,
altered, modified, amended or supplemented in any manner whatsoever except by a
written instrument signed by the Administrator and the Trust.
4
(c) Notwithstanding anything herein to the contrary, upon the termination
of this Agreement or the liquidation of a Fund or the Trust, the Administrator
shall deliver the records of the Fund(s) and/or Trust as the case may be to the
Trust or person(s) designated by the Trust and thereafter the Trust or its
designee shall be solely responsible for preserving the records for the periods
required by all applicable laws, rules and regulations. In addition, in the
event of termination of this Agreement, or the proposed liquidation or merger of
the Trust or a Fund(s), and the Trust requests the Administrator to provide
services in connection therewith, the Administrator shall provide such services
and be entitled to such compensation as the parties may mutually agree.
7. NON-EXCLUSIVITY
The services of the Administrator rendered to the Trust are not deemed to
be exclusive. The Administrator may render such services and any other services
to others, including other investment companies. The Trust recognizes that from
time to time directors, officers and employees of the Administrator may serve as
trustees, directors, officers and employees of other entities (including other
investment companies), that such other entities may include the name of the
Administrator as part of their name and that the Administrator or its affiliates
may enter into investment advisory or other agreements with such other entities.
8. GOVERNING LAW; INVALIDITY
This Agreement shall be governed by Wisconsin law (except as to Section 9
hereof which shall be construed in accordance with Delaware law). To the extent
that the applicable laws of the State of Wisconsin, or any of the provisions
herein, conflict with the applicable provisions of the Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with the
Act or any rule or order of the Commission thereunder. Any provision of this
Agreement which may be determined by competent authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
9. MISCELLANEOUS
This Agreement is executed by or on behalf of the Trust with respect to
each of the Funds and the obligations hereunder are not binding upon any of the
Trustees, officers or shareholders of the Trust individually but are binding
only upon the Funds to which such obligations pertain and the assets and
property of such Funds. The Trust's Certificate of Trust is on file with the
Secretary of State of Delaware.
5
10. NOTICES
Any notice required or to be permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given when sent by
registered or certified mail, postage prepaid, return receipt requested, as
follows: Notice to the Administrator shall be sent to Sunstone Financial Group,
Inc., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000, Attention:
Xxxxxx X. Xxxxxxx, and notice to the Trust shall be sent to The Xxxxxxx
Investment Fund, 0000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxx.
11. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original agreement but such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer as of the day and year first above
written.
THE XXXXXXX INVESTMENT TRUST
(the "Trust")
By:
------------------------------------
President
SUNSTONE FINANCIAL GROUP, INC.
("Administrator")
By:
------------------------------------
President
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SCHEDULE A
TO THE
ADMINISTRATION AGREEMENT
BY AND BETWEEN
THE XXXXXXX INVESTMENT TRUST
AND
SUNSTONE FINANCIAL GROUP, INC.
NAME OF FUNDS
The Xxxxxxx Focus Fund
The Xxxxxxx Growth & Income Fund
7
SCHEDULE B
TO THE
ADMINISTRATION AGREEMENT
BY AND BETWEEN
THE XXXXXXX INVESTMENT TRUST
AND
SUNSTONE FINANCIAL GROUP, INC.
MINIMUM
NAME OF FUND AVERAGE NET ASSETS ANNUAL FEES ANNUAL FEE
------------ ------------------ ----------- ----------
-------------------------------------------------------------------------------------------
Focus Fund Up to $50 Million 14.0 basis points $62,500
$50 Million to $100 Million 10.0 basis points
$100 Million to $350 Million 4.0 basis points
Over $350 Million 1.0 basis point
-------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Growth & Income Fund Up to $50 Million 14.0 basis points $62,500
$50 Million to $100 Million 10.0 basis points
$100 Million to $350 Million 4.0 basis points
Over $350 Million 1.0 basis point
-------------------------------------------------------------------------------------------
The Trust shall pay the Administrator $_______ for its initial start-up services
for the Fund. The Trust shall also pay/reimburse the Administrator's
out-of-pocket expenses as described in the Agreement. The foregoing fee schedule
assumes a single class of shares for each Fund.
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