EXHIBIT 9(A)
TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
PENN CAPITAL FUNDS, INC.
AND
AMERICAN DATA SERVICES, INC.
INDEX
1. TERMS OF APPOINTMENT; DUTIES OF ADS . . . . . . . . . . . . . . . . . . 1
2. FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. REPRESENTATIONS AND WARRANTIES OF ADS . . . . . . . . . . . . . . . . . 3
4. REPRESENTATIONS AND WARRANTIES OF THE FUND. . . . . . . . . . . . . . . 4
5. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. COVENANTS OF THE FUND AND ADS . . . . . . . . . . . . . . . . . . . . . 6
7. TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . 7
8. ASSIGNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. NEW YORK LAWS TO APPLY. . . . . . . . . . . . . . . . . . . . . . . . . 7
11. MERGER OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
FEE SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(A) ACCOUNT MAINTENANCE CHARGE. . . . . . . . . . . . . . . . . . . . . . . 9
(B) XXX PLAN FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
FEE INCREASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(C) EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(D) SPECIAL REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
(E) SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . . . . . .11
(F) CONVERSION CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . .11
SCHEDULE A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT MADE THE 1ST DAY OF NOVEMBER, 1995, BY AND BETWEEN PENN
CAPITAL FUNDS, INC. HAVING ITS PRINCIPAL OFFICE AND PLACE OF BUSINESS
AT 0000 XXXXXXXXX XXXX, XXXXXXXXXX, XXXXXXXXXXXX 00000 (THE "FUND"),
AND AMERICAN DATA SERVICES, INC., A NEW YORK CORPORATION HAVING ITS
PRINCIPAL OFFICE AND PLACE OF BUSINESS AT 00 XXXX XXXXXX XXXXXX,
XXXXXXXXXX, XXX XXXX 00000 ("ADS").
WHEREAS, THE FUND DESIRES TO APPOINT ADS AS ITS TRANSFER AGENT,
DIVIDEND DISBURSING AGENT AND AGENT IN CONNECTION WITH CERTAIN OTHER
ACTIVITIES, AND ADS DESIRES TO ACCEPT SUCH APPOINTMENT;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS HEREIN
CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. TERMS OF APPOINTMENT; DUTIES OF ADS
1.01 SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS
AGREEMENT, THE FUND HEREBY EMPLOYS AND APPOINTS ADS TO ACT AS, AND ADS
AGREES TO ACT AS ITS TRANSFER AGENT FOR THE FUND'S AUTHORIZED AND
ISSUED SHARES OF ITS COMMON STOCK, ("SHARES"), DIVIDEND DISBURSING
AGENT AND AGENT IN CONNECTION WITH ANY ACCUMULATION, OPEN-ACCOUNT OR
SIMILAR PLANS PROVIDED TO THE SHAREHOLDERS OF THE FUND
("SHAREHOLDERS") SET OUT IN THE CURRENTLY EFFECTIVE PROSPECTUS AND
STATEMENT OF ADDITIONAL INFORMATION ("PROSPECTUS") OF THE FUND.
1.02 ADS AGREES THAT IT WILL PERFORM THE FOLLOWING SERVICES:
(A) IN ACCORDANCE WITH PROCEDURES ESTABLISHED FROM TIME TO
TIME BY AGREEMENT BETWEEN THE FUND AND ADS, ADS SHALL:
(I) RECEIVE FOR ACCEPTANCE, ORDERS FOR THE PURCHASE OF SHARES, AND
PROMPTLY DELIVER PAYMENT AND APPROPRIATE DOCUMENTATION THEREFORE TO
THE CUSTODIAN OF THE FUND AUTHORIZED BY THE BOARD OF DIRECTORS OF THE
FUND (THE "CUSTODIAN");
(II) PURSUANT TO PURCHASE ORDERS, ISSUE THE APPROPRIATE NUMBER OF
SHARES AND HOLD SUCH SHARES IN THE APPROPRIATE SHAREHOLDER ACCOUNT;
(III) RECEIVE FOR ACCEPTANCE REDEMPTION REQUESTS AND REDEMPTION
DIRECTIONS AND DELIVER THE APPROPRIATE DOCUMENTATION THEREFORE TO THE
CUSTODIAN;
(IV) AT THE APPROPRIATE TIME AS AND WHEN IT RECEIVES MONEYS PAID TO IT
BY THE CUSTODIAN WITH RESPECT TO ANY REDEMPTION, PAY OVER OR CAUSE TO
BE PAID OVER IN THE APPROPRIATE MANNER SUCH MONEYS AS INSTRUCTED BY
THE REDEEMING SHAREHOLDERS;
(V) EFFECT TRANSFERS OF SHARES BY THE REGISTERED OWNERS THEREOF UPON
RECEIPT OF APPROPRIATE INSTRUCTIONS;
(VI) PREPARE AND TRANSMIT PAYMENTS FOR DIVIDENDS AND DISTRIBUTIONS
DECLARED BY THE FUND;
(VII) MAINTAIN RECORDS OF ACCOUNT FOR AND ADVISE THE FUND AND ITS
SHAREHOLDERS AS TO THE FOREGOING; AND
(VIII) RECORD THE ISSUANCE OF SHARES OF THE FUND AND MAINTAIN PURSUANT
TO SEC RULE 7AD-10(E) A RECORD OF THE TOTAL NUMBER OF SHARES OF THE
FUND WHICH ARE AUTHORIZED, BASED UPON DATA PROVIDED TO IT BY THE FUND,
AND ISSUED AND OUTSTANDING. ADS SHALL ALSO PROVIDE THE FUND ON A
REGULAR BASIS WITH THE TOTAL NUMBER OF SHARES WHICH ARE AUTHORIZED AND
ISSUED AND OUTSTANDING AND SHALL HAVE NO OBLIGATION, WHEN RECORDING
THE ISSUANCE OF SHARES, TO MONITOR THE ISSUANCE OF SUCH SHARES OR TO
TAKE COGNIZANCE OF ANY LAWS RELATING TO THE ISSUE OR SALE OF SUCH
SHARES, WHICH FUNCTIONS SHALL BE THE SOLE RESPONSIBILITY OF THE FUND.
(B) IN ADDITION TO AND NOT IN LIEU OF THE SERVICES SET
FORTH IN THE ABOVE PARAGRAPH (A), ADS SHALL:
(I) PERFORM ALL OF THE CUSTOMARY SERVICES OF A TRANSFER AGENT,
DIVIDEND DISBURSING AGENT, INCLUDING BUT NOT LIMITED TO: MAINTAINING
ALL SHAREHOLDER ACCOUNTS, PREPARING SHAREHOLDER MEETING LISTS, MAILING
PROXIES, RECEIVING AND TABULATING PROXIES, MAILING SHAREHOLDER REPORTS
AND PROSPECTUSES TO CURRENT SHAREHOLDERS, WITHHOLDING TAXES ON US
RESIDENT AND NON-RESIDENT ALIEN ACCOUNTS, PREPARING AND FILING US
TREASURY DEPARTMENT FORMS 1099 AND OTHER APPROPRIATE FORMS REQUIRED
WITH RESPECT TO DIVIDENDS AND DISTRIBUTIONS BY FEDERAL AUTHORITIES FOR
ALL SHAREHOLDERS, PREPARING AND MAILING CONFIRMATION FORMS AND
STATEMENTS OF ACCOUNT TO SHAREHOLDERS FOR ALL PURCHASES REDEMPTION'S
OF SHARES AND OTHER CONFIRMABLE TRANSACTIONS IN SHAREHOLDER ACCOUNTS,
PREPARING AND MAILING ACTIVITY STATEMENTS FOR SHAREHOLDERS, AND
PROVIDING SHAREHOLDER ACCOUNT INFORMATION AND (II) PROVIDE A SYSTEM
AND REPORTS WHICH WILL ENABLE THE FUND TO MONITOR THE TOTAL NUMBER OF
SHARES SOLD IN EACH STATE.
(C) IN ADDITION, THE FUND SHALL (I) IDENTIFY TO ADS IN
WRITING THOSE TRANSACTIONS AND SHARES TO BE TREATED AS EXEMPT FROM
BLUE SKY REPORTING FOR EACH STATE AND (II) VERIFY THE ESTABLISHMENT OF
SUCH TRANSACTIONS FOR EACH STATE ON THE SYSTEM PRIOR TO ACTIVATION AND
THEREAFTER MONITOR THE DAILY ACTIVITY FOR EACH STATE AS PROVIDED BY
ADS. THE RESPONSIBILITY OF ADS FOR THE FUND'S BLUE SKY STATE
REGISTRATION STATUS IS SOLELY LIMITED TO THE INITIAL ESTABLISHMENT OF
TRANSACTIONS SUBJECT TO BLUE SKY COMPLIANCE BY THE FUND AND THE
REPORTING OF SUCH TRANSACTIONS TO THE FUND AS PROVIDED ABOVE.
PROCEDURES APPLICABLE TO CERTAIN OF THESE SERVICES MAY BE
ESTABLISHED FROM TIME TO TIME BY AGREEMENT BETWEEN THE FUND AND ADS.
2. FEES AND EXPENSES
2.01 FOR PERFORMANCE BY ADS PURSUANT TO THIS AGREEMENT, THE FUND
AGREES TO PAY ADS AN ANNUAL MAINTENANCE FEE FOR EACH SHAREHOLDER
ACCOUNT AND TRANSACTION FEES FOR EACH PORTFOLIO OR CLASS OF SHARES
SERVICED UNDER THIS AGREEMENT (SEE SCHEDULE A) AS SET OUT IN THE FEE
SCHEDULE ATTACHED HERETO. SUCH FEES AND OUT-OF-POCKET EXPENSES AND
ADVANCES IDENTIFIED UNDER SECTION 2.02 BELOW MAY BE CHANGED FROM TIME
TO TIME SUBJECT TO MUTUAL WRITTEN AGREEMENT BETWEEN THE FUND AND ADS.
2.02 IN ADDITION TO THE FEE PAID UNDER SECTION 2.01 ABOVE, THE
FUND AGREES TO REIMBURSE ADS FOR OUT-OF-POCKET EXPENSES OR ADVANCES
INCURRED BY ADS FOR THE ITEMS SET OUT IN THE FEE SCHEDULE ATTACHED
HERETO. IN ADDITION, ANY OTHER EXPENSES INCURRED BY ADS AT THE
REQUEST OR WITH THE CONSENT OF THE FUND, WILL BE REIMBURSED BY THE
FUND.
2.03 THE FUND AGREES TO PAY ALL FEES AND REIMBURSABLE EXPENSES
WITHIN FIVE DAYS FOLLOWING THE RECEIPT OF THE RESPECTIVE BILLING
NOTICE. POSTAGE FOR MAILING OF DIVIDENDS, PROXIES, FUND REPORTS AND
OTHER MAILINGS TO ALL SHAREHOLDER ACCOUNTS SHALL BE ADVANCED TO ADS BY
THE FUND AT LEAST SEVEN (7) DAYS PRIOR TO THE MAILING DATE OF SUCH
MATERIALS.
3. REPRESENTATIONS AND WARRANTIES OF ADS
ADS REPRESENTS AND WARRANTS TO THE FUND THAT:
3.01 IT IS A CORPORATION DULY ORGANIZED AND EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF NEW YORK.
3.02 IT IS DULY QUALIFIED TO CARRY ON ITS BUSINESS IN THE STATE
OF NEW YORK.
3.03 IT IS EMPOWERED UNDER APPLICABLE LAWS AND BY ITS CHARTER AND
BY-LAWS TO ENTER INTO AND PERFORM THIS AGREEMENT.
3.04 ALL REQUISITE CORPORATE PROCEEDINGS HAVE BEEN TAKEN TO
AUTHORIZE IT TO ENTER INTO AND PERFORM THIS AGREEMENT.
3.05 IT HAS AND WILL CONTINUE TO HAVE ACCESS TO THE NECESSARY
FACILITIES, EQUIPMENT AND PERSONNEL TO PERFORM ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT.
3.06 ADS IS DULY REGISTERED AS A TRANSFER AGENT UNDER THE
SECURITIES ACT OF 1934 AND SHALL CONTINUE TO BE REGISTERED THROUGHOUT
THE REMAINDER OF THIS AGREEMENT.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
THE FUND REPRESENTS AND WARRANTS TO ADS THAT:
4.01 IT IS A CORPORATION DULY ORGANIZED AND EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF PENNSYLVANIA.
4.02 IT IS EMPOWERED UNDER APPLICABLE LAWS AND BY ITS ARTICLES OF
INCORPORATION AND BY-LAWS TO ENTER INTO AND PERFORM THIS AGREEMENT.
4.03 ALL CORPORATE PROCEEDINGS REQUIRED BY SAID ARTICLES OF
INCORPORATION AND BY-LAWS HAVE BEEN TAKEN TO AUTHORIZE IT TO ENTER
INTO AND PERFORM THIS AGREEMENT.
4.04 IT IS AN OPEN-END AND DIVERSIFIED MANAGEMENT INVESTMENT
COMPANY REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940.
4.05 A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 IS
CURRENTLY OR WILL BECOME EFFECTIVE AND WILL REMAIN EFFECTIVE, AND
APPROPRIATE STATE SECURITIES LAW FILINGS AS REQUIRED, HAVE BEEN OR
WILL BE MADE AND WILL CONTINUE TO BE MADE, WITH RESPECT TO ALL SHARES
OF THE FUND BEING OFFERED FOR SALE.
5. INDEMNIFICATION
5.01 ADS SHALL NOT BE RESPONSIBLE FOR, AND THE FUND SHALL
INDEMNIFY AND HOLD ADS HARMLESS FROM AND AGAINST, ANY AND ALL LOSSES,
DAMAGES, COSTS, CHARGES, COUNSEL FEES, PAYMENTS, EXPENSES AND
LIABILITY ARISING OUT OF OR ATTRIBUTABLE TO:
(A) ALL ACTION OF ADS OR ITS AGENTS OR SUBCONTRACTORS REQUIRED TO BE
TAKEN PURSUANT TO THIS AGREEMENT, PROVIDED THAT SUCH ACTIONS ARE TAKEN
IN GOOD FAITH AND WITHOUT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(B) THE FUND'S REFUSAL OR FAILURE TO COMPLY WITH THE TERMS OF THIS
AGREEMENT, OR WHICH ARISE OUT OF THE FUND'S LACK OF GOOD FAITH, GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OR WHICH ARISE OUT OF THE BREACH OF
ANY REPRESENTATION OR WARRANTY OF THE FUND HEREUNDER.
(C) THE RELIANCE ON OR USE BY ADS OR ITS AGENTS OR SUBCONTRACTORS OF
INFORMATION, RECORDS AND DOCUMENTS WHICH (I) ARE RECEIVED BY ADS OR
ITS AGENTS OR SUBCONTRACTORS AND FURNISHED TO IT BY OR ON BEHALF OF
THE FUND, AND (II) HAVE BEEN PREPARED AND/OR MAINTAINED BY THE FUND OR
ANY OTHER PERSON OR FIRM ON BEHALF OF THE FUND OTHER THAN BY ADS.
(D) THE RELIANCE ON, OR THE CARRYING OUT BY ADS OR ITS AGENTS OR
SUBCONTRACTORS OF ANY INSTRUCTIONS OR REQUESTS OF THE FUND.
(E) THE OFFER OR SALE OF SHARES IN VIOLATION OF ANY REQUIREMENT UNDER
THE FEDERAL SECURITIES LAWS OR REGULATIONS OR THE SECURITIES LAWS OR
REGULATIONS OF ANY STATE THAT SUCH SHARES BE REGISTERED IN SUCH STATE
OR IN VIOLATION OF ANY STOP ORDER OR OTHER DETERMINATION OR RULING BY
ANY FEDERAL AGENCY OR ANY STATE WITH RESPECT TO THE OFFER OR SALE OF
SUCH SHARES IN SUCH STATE.
5.02 ADS SHALL INDEMNIFY AND HOLD THE FUND HARMLESS FROM AND
AGAINST ANY AND ALL LOSSES, DAMAGES, COSTS, CHARGES, COUNSEL FEES,
PAYMENTS, EXPENSES AND LIABILITY ARISING OUT OF OR ATTRIBUTABLE TO ANY
ACTION OR FAILURE OR OMISSION TO ACT BY ADS AS A RESULT OF ADS'S LACK
OF GOOD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
5.03 AT ANY TIME ADS MAY APPLY TO ANY OFFICER OF THE FUND FOR
INSTRUCTIONS, AND MAY CONSULT WITH LEGAL COUNSEL WITH RESPECT TO ANY
MATTER ARISING IN CONNECTION WITH THE SERVICES TO BE PERFORMED BY ADS
UNDER THIS AGREEMENT, AND ADS AND ITS AGENTS OR SUBCONTRACTORS SHALL
NOT BE LIABLE AND SHALL BE INDEMNIFIED BY THE FUND FOR ANY ACTION
TAKEN OR OMITTED BY IT IN RELIANCE UPON SUCH INSTRUCTIONS OR UPON THE
OPINION OF SUCH COUNSEL. ADS, ITS AGENTS AND SUBCONTRACTORS SHALL BE
PROTECTED AND INDEMNIFIED IN ACTING UPON ANY PAPER OR DOCUMENT
FURNISHED BY OR ON BEHALF OF THE FUND, REASONABLY BELIEVED TO BE
GENUINE AND TO HAVE BEEN SIGNED BY THE PROPER PERSON OR PERSONS, OR
UPON ANY INSTRUCTION, INFORMATION, DATA, RECORDS OR DOCUMENTS PROVIDED
ADS OR ITS AGENTS OR SUBCONTRACTORS BY MACHINE READABLE INPUT, TELEX,
CRT DATA ENTRY OR OTHER SIMILAR MEANS AUTHORIZED BY THE FUND, AND
SHALL NOT BE HELD TO HAVE NOTICE OF ANY CHANGE OR AUTHORITY OF ANY
PERSON, UNTIL RECEIPT OF WRITTEN NOTICE THEREOF FROM THE FUND. ADS,
ITS AGENTS AND SUBCONTRACTORS SHALL ALSO BE PROTECTED AND INDEMNIFIED
IN RECOGNIZING STOCK CERTIFICATES WHICH ARE REASONABLY BELIEVED TO
BEAR THE PROPER MANUAL OR FACSIMILE SIGNATURES OF THE OFFICERS OF THE
FUND, AND THE PROPER COUNTERSIGNATURE OF ANY FORMER TRANSFER AGENT OR
REGISTRAR, OR OF A CO-TRANSFER AGENT OR CO-REGISTRAR.
5.04 IN THE EVENT EITHER PARTY IS UNABLE TO PERFORM ITS
OBLIGATIONS UNDER THE TERMS OF THIS AGREEMENT BECAUSE OF ACTS OF GOD,
STRIKES, EQUIPMENT OR TRANSMISSION FAILURE OR DAMAGE REASONABLY BEYOND
ITS CONTROL, OR OTHER CAUSES REASONABLY BEYOND ITS CONTROL, SUCH PARTY
SHALL NOT BE LIABLE FOR DAMAGES TO THE OTHER FOR DAMAGES RESULTING
FROM SUCH FAILURE TO PERFORM OR OTHERWISE FROM SUCH CAUSES.
5.05 NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER
PARTY FOR CONSEQUENTIAL DAMAGES UNDER ANY PROVISIONS OF THIS AGREEMENT
OR FOR ANY ACT OR FAILURE TO ACT HEREUNDER.
5.06 IN ORDER THAT THE INDEMNIFICATION PROVISIONS CONTAINED IN
THIS ARTICLE 5 SHALL APPLY, UPON THE ASSERTION OF A CLAIM FOR WHICH
EITHER PARTY MAY BE REQUIRED TO INDEMNIFY THE OTHER, THE PARTY OF
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 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.
6. COVENANTS OF THE FUND AND ADS
6.01 THE FUND SHALL PROMPTLY FURNISH TO ADS A CERTIFIED COPY OF
THE RESOLUTION OF THE BOARD OF DIRECTORS OF THE FUND AUTHORIZING THE
APPOINTMENT OF ADS AND THE EXECUTION AND DELIVERY OF THIS AGREEMENT.
6.02 ADS HEREBY AGREES TO ESTABLISH AND MAINTAIN FACILITIES AND
PROCEDURES REASONABLY ACCEPTABLE TO THE FUND FOR SAFEKEEPING OF STOCK
CERTIFICATES, CHECK FORMS AND FACSIMILE SIGNATURE IMPRINTING DEVICES,
IF ANY; AND FOR THE PREPARATION OR USE, AND FOR KEEPING ACCOUNT OF,
SUCH CERTIFICATES, FORMS AND DEVICES.
6.03 ADS SHALL KEEP RECORDS RELATING TO THE SERVICES TO BE
PERFORMED HEREUNDER, IN THE FORM AND MANNER AS IT MAY DEEM ADVISABLE.
TO THE EXTENT REQUIRED BY SECTION 31 OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED, AND THE RULES THEREUNDER, ADS AGREES THAT ALL SUCH
RECORDS PREPARED OR MAINTAINED BY ADS RELATING TO THE SERVICES TO BE
PERFORMED BY ADS HEREUNDER ARE THE PROPERTY OF THE FUND AND WILL BE
PRESERVED, MAINTAINED AND MADE AVAILABLE IN ACCORDANCE WITH SUCH
SECTION AND RULES, AND WILL BE SURRENDERED PROMPTLY TO THE FUND ON AND
IN ACCORDANCE WITH ITS REQUEST.
6.04 ADS AND THE FUND AGREE THAT ALL BOOKS, RECORDS, INFORMATION
AND DATA PERTAINING TO THE BUSINESS OF THE OTHER PARTY WHICH ARE
EXCHANGED OR RECEIVED PURSUANT TO THE NEGOTIATION OR THE CARRYING OUT
OF THIS AGREEMENT SHALL REMAIN CONFIDENTIAL, AND SHALL NOT BE
VOLUNTARILY DISCLOSED TO ANY OTHER PERSON, EXCEPT AS MAY BE REQUIRED
BY LAW.
6.05 IN CASE OF ANY REQUESTS OR DEMANDS FOR THE INSPECTION OF THE
SHAREHOLDER RECORDS OF THE FUND, ADS WILL ENDEAVOR TO NOTIFY THE FUND
AND TO SECURE INSTRUCTIONS FROM AN AUTHORIZED OFFICER OF THE FUND AS
TO SUCH INSPECTION. ADS RESERVES THE RIGHT, HOWEVER, TO EXHIBIT THE
SHAREHOLDER RECORDS TO ANY PERSON WHENEVER IT IS ADVISED BY ITS
COUNSEL THAT IT MAY BE HELD LIABLE FOR THE FAILURE TO EXHIBIT THE
SHAREHOLDER RECORDS TO SUCH PERSON, AND SHALL PROMPTLY NOTIFY THE FUND
OF ANY UNUSUAL REQUEST TO INSPECT OR COPY THE SHAREHOLDER RECORDS OF
THE FUND OR THE RECEIPT OF ANY OTHER UNUSUAL REQUEST TO INSPECT, COPY
OR PRODUCE THE RECORDS OF THE FUND.
7. TERMINATION OF AGREEMENT
7.01 THIS AGREEMENT SHALL BECOME EFFECTIVE AS OF THE DATE HEREOF
AND SHALL REMAIN IN FORCE FOR A PERIOD OF THREE (3) YEARS, PROVIDED,
HOWEVER, THAT BOTH PARTIES TO THIS AGREEMENT HAVE THE OPTION TO
TERMINATE THE AGREEMENT, WITHOUT PENALTY, UPON NINETY (90) DAYS PRIOR
WRITTEN NOTICE.
7.02 SHOULD THE FUND EXERCISE ITS RIGHT TO TERMINATE, ALL OUT-OF-
POCKET EXPENSES ASSOCIATED WITH THE MOVEMENT OF RECORD AND MATERIAL
WILL BE BORNE BY THE FUND. ADDITIONALLY, ADS RESERVES THE RIGHT TO
CHARGE FOR ANY OTHER REASONABLE EXPENSES ASSOCIATED WITH SUCH
TERMINATION.
8. ASSIGNMENT
8.01 NEITHER THIS AGREEMENT NOR ANY RIGHTS OR OBLIGATIONS
HEREUNDER MAY BE ASSIGNED BY EITHER PARTY WITHOUT THE WRITTEN CONSENT
OF THE OTHER PARTY.
8.02 THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE BINDING
UPON THE PARTIES AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS.
9. AMENDMENT
9.01 THIS AGREEMENT MAY BE AMENDED OR MODIFIED BY A WRITTEN
AGREEMENT EXECUTED BY BOTH PARTIES AND AUTHORIZED OR APPROVED BY A
RESOLUTION OF THE BOARD OF DIRECTORS OF THE FUND.
10. NEW YORK LAWS TO APPLY
10.01 THE PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS AT
THE TIME IN EFFECT AND THE APPLICABLE PROVISIONS OF THE 1940 ACT. TO
THE EXTENT THAT THE APPLICABLE LAW OF THE STATE OF NEW YORK, OR ANY OF
THE PROVISIONS HEREIN, CONFLICT WITH THE APPLICABLE PROVISIONS OF THE
1940 ACT, THE LATTER SHALL CONTROL.
11. MERGER OF AGREEMENT
11.01 THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE
PARTIES HERETO AND SUPERSEDES ANY PRIOR AGREEMENT WITH RESPECT TO THE
SUBJECT MATTER HEREOF WHETHER ORAL OR WRITTEN.
12. NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL BE IN
WRITING, SHALL BE DEEMED TO HAVE BEEN GIVEN WHEN RECEIVED OR WHEN SENT
BY TELEX OR FACSIMILE, AND SHALL BE GIVEN TO THE FOLLOWING ADDRESSES
(OR SUCH OTHER ADDRESSES AS TO WHICH NOTICE IS GIVEN):
TO THE FUND: TO THE ADMINISTRATOR:
XXXXXXXXXXX XXXXXX XXXXXXX XXXXX
SECRETARY-TREASURER PRESIDENT
PENN CAPITAL FUNDS, INC. AMERICAN DATA SERVICES, INC.
0000 XXXXXXXXX XXXX 00 XXXX XXXXXX XXXXXX
XXXXXXXXXX, XX 00000 XXXXXXXXXX, XX 00000
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS
AGREEMENT AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
PENN CAPITAL FUNDS, INC. AMERICAN DATA SERVICES, INC.
BY: /S/ XXXXXX XXXXXX BY:_/S/ XXXXXXX XXXXX
XXXXXXX XXXXX, PRESIDENT
FEE SCHEDULE
FOR THE SERVICES RENDERED BY ADS IN ITS CAPACITY AS TRANSFER
AGENT, THE FUND SHALL PAY ADS, WITHIN TEN (10) DAYS AFTER RECEIPT OF
AN INVOICE FROM ADS AT THE BEGINNING OF EACH MONTH, A FEE, CALCULATED
AS A COMBINATION OF ACCOUNT MAINTENANCE CHARGES AND TRANSACTION
CHARGES AS FOLLOWS:
(A) ACCOUNT MAINTENANCE CHARGE:
THE GREATER OF:
(1) MINIMUM MAINTENANCE CHARGE PER FUND - $200.00/MONTH (NO PRORATING
PARTIAL MONTHS);
OR
(2) BASED UPON THE TOTAL OF ALL OPEN/CLOSED ACCOUNTS IN THE FUND
GROUP UPON THE FOLLOWING ANNUAL RATES (BILLED MONTHLY):**
EQUITY FUND . . . . . . . . . .$10.00 PER ACCOUNT
FIXED INCOME FUND . . . . . . .$12.00 PER ACCOUNT
MONEY MARKET FUND . . . . . . .$16.00 PER ACCOUNT
CLOSED ACCOUNTS . . . . . . . .$ 2.00 PER ACCOUNT***
** ALL ACCOUNTS CLOSED DURING A CALENDAR YEAR WILL BE CONSIDERED AS
OPEN ACCOUNTS FOR BILLING PURPOSES UNTIL THE END OF THAT CALENDAR
YEAR.
*** CLOSED ACCOUNTS WILL REMAIN IN THE SHAREHOLDER FILES UNTIL ALL
1099'S AND 5498'S HAVE BEEN SENT TO SHAREHOLDERS AND REPORTED (VIA MAG
MEDIA) TO THE IRS.
PLUS
TRANSACTION FEES:
TRADE ENTRY (PURCHASE/LIQUIDATION) AND
MAINTENANCE TRANSACTIONS . . . . . . . . . . . . . . . . . . . . .$1.35 EACH
NEW ACCOUNT SET-UP . . . . . . . . . . . . . . . . . . . . . . . . .$2.50 EACH
CUSTOMER SERVICE CALLS . . . . . . . . . . . . . . . . . . . . . . .$1.00 EACH
CORRESPONDENCE/INFORMATION REQUESTS. . . . . . . . . . . . . . . . .$1.25 EACH
CHECK PREPARATION. . . . . . . . . . . . . . . . . . . . . . . . . .$ .50 EACH
LIQUIDATION'S PAID BY WIRE TRANSFER. . . . . . . . . . . . . . . . .$3.00 EACH
OMNIBUS ACCOUNTS . . . . . . . . . . . . . . . .( PER TRANSACTION)* $1.25
ACH CHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ .30 EACH
SWP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . *$1.25 EACH
*NOT INCLUDED AS A TRADE ENTRY
(B) XXX PLAN FEES:
THE FOLLOWING FEES WILL BE CHARGED DIRECTLY TO THE SHAREHOLDER
ACCOUNT:
ANNUAL MAINTENANCE FEE . . . . . . . . . . . . . . . . $15.00/ACCOUNT*
INCOMING TRANSFER FROM PRIOR CUSTODIAN . . . . . . . . $12.00
DISTRIBUTION TO A PARTICIPANT. . . . . . . . . . . . . $15.00
REFUND OF EXCESS CONTRIBUTION. . . . . . . . . . . . . $15.00
TRANSFER TO SUCCESSOR CUSTODIAN. . . . . . . . . . . . $15.00
AUTOMATIC PERIODIC DISTRIBUTIONS $15.00/YEAR PER ACCOUNT
*INCLUDES STAR BANK N.A. $8.00 CUSTODY FEE.
FEE INCREASES
ON EACH ANNUAL ANNIVERSARY DATE OF THIS AGREEMENT, THE FEES ENUMERATED
ABOVE WILL BE INCREASED BY THE CHANGE IN THE CUSTOMER PRICE INDEX FOR
THE NORTHEAST REGION (CPI) FOR THE TWELVE MONTH PERIOD ENDING WITH THE
MONTH PRECEDING SUCH ANNUAL ANNIVERSARY DATE.
(C) EXPENSES:
THE FUND SHALL REIMBURSE ADS FOR ANY OUT-OF-POCKET EXPENSES,
EXCLUSIVE OF SALARIES, ADVANCED BY ADS IN CONNECTION WITH BUT NOT
LIMITED TO THE PRINTING OF CONFIRMATION FORMS AND STATEMENTS, PROXY
EXPENSES, TRAVEL REQUESTED BY THE FUND, TELEPHONE, FACSIMILE
TRANSMISSIONS, STATIONERY AND SUPPLIES (RELATED TO FUND RECORDS),
RECORD STORAGE, POSTAGE (PLUS A $.015 SERVICE CHARGE FOR ALL MAILINGS,
PRO-RATA PORTION OF ANNUAL 17AD-13 AUDIT LETTER, TELEX AND COURIER
CHARGES INCURRED IN CONNECTION WITH THE PERFORMANCE OF ITS DUTIES
HEREUNDER. ADS SHALL PROVIDE THE FUND WITH A MONTHLY INVOICE OF SUCH
EXPENSES AND THE FUND SHALL REIMBURSE ADS WITHIN FIFTEEN (15) DAYS
AFTER RECEIPT THEREOF.
(D) SPECIAL REPORTS:
ALL REPORTS AND/OR ANALYSES REQUESTED BY THE FUND THAT ARE NOT
INCLUDED IN THE FEE SCHEDULE, SHALL BE SUBJECT TO AN ADDITIONAL
CHARGE, AGREED UPON IN ADVANCE, BASED UPON THE FOLLOWING RATES:
LABOR:
SENIOR STAFF - $100.00/HR.
JUNIOR STAFF - $ 50.00/HR.
COMPUTER TIME - $ 45.00/HR.
(E) SECURITY DEPOSIT:
THE FUND WILL REMIT TO ADS UPON EXECUTION OF THIS AGREEMENT A
SECURITY DEPOSIT OF EQUAL TO TWO (2) MONTH'S SHAREHOLDER SERVICE FEE.
THE SECURITY DEPOSIT COMPUTATION WILL BE BASED EITHER ON THE TOTAL
NUMBER OF SHAREHOLDER ACCOUNTS (OPEN AND CLOSED) OF THE FUND OR THE
MINIMUM FEE, WHICHEVER IS GREATER ON THE DATE ABOVE WRITTEN. THE FUND
WILL HAVE THE OPTION TO HAVE THE SECURITY DEPOSIT APPLIED TO THE LAST
MONTH'S SERVICE FEE, OR APPLIED TO ANY NEW CONTRACT BETWEEN THE FUND
AND ADS.
(F) CONVERSION CHARGE:
NOTE: FOR EXISTING FUNDS ONLY (NEW FUNDS PLEASE IGNORE):
THERE WILL BE A CHARGE TO CONVERT THE FUND'S SHAREHOLDER
ACCOUNTING RECORDS ON TO THE ADS STOCK TRANSFER SYSTEM (ADSHARE). IN
ADDITION, ADS WILL BE REIMBURSED FOR ALL OUT-OF-POCKET EXPENSES,
ENUMERATED IN PARAGRAPH (B) ABOVE AND DATA MEDIA CONVERSION COSTS,
INCURRED DURING THE CONVERSION PROCESS.
THE MINIMUM CONVERSION CHARGE WILL BE ESTIMATED AND AGREED
UPON IN ADVANCE BY THE FUND AND ADS. THE CHARGE WILL BE BASED UPON
THE QUANTITY OF RECORDS TO BE CONVERTED AND THE CONDITION OF THE
PREVIOUS SERVICE AGENTS RECORDS.
SCHEDULE A
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
ASSET ALLOCATION FUND
AGGRESSIVE GROWTH FUND
EXHIBIT 9(B)
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT MADE THE 1ST DAY OF FEBRUARY, 1996, BY AND BETWEEN PENN
CAPITAL FUNDS, INC. (THE "FUND") AND XXXXX XXXXXX (THE
"ADMINISTRATOR").
BACKGROUND
WHEREAS, THE FUND IS A DIVERSIFIED OPEN-END MANAGEMENT INVESTMENT
COMPANY REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE
"1940 ACT"); AND
WHEREAS, THE ADMINISTRATOR IS AN INDIVIDUAL EXPERIENCED IN
PROVIDING ADMINISTRATIVE SERVICES TO MUTUAL FUNDS AND HAS ACCESS TO
FACILITIES SUFFICIENT TO PROVIDE SUCH SERVICES; AND
WHEREAS, THE FUND DESIRES TO AVAIL ITSELF OF THE EXPERIENCE,
ASSISTANCE AND FACILITIES OF THE ADMINISTRATOR AND TO HAVE THE
ADMINISTRATOR PERFORM FOR THE FUND CERTAIN SERVICES APPROPRIATE TO THE
OPERATIONS OF THE FUND AND THE ADMINISTRATOR IS WILLING TO FURNISH
SUCH SERVICES IN ACCORDANCE WITH THE TERMS HEREINAFTER SET FORTH.
TERMS
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND MUTUAL
COVENANTS HEREINAFTER CONTAINED, THE FUND AND THE ADMINISTRATOR HEREBY
AGREE TO THE FOLLOWING:
1. DUTIES OF THE ADMINISTRATOR. THE ADMINISTRATOR WILL PROVIDE
THE FUND WITH THE NECESSARY OFFICE SPACE, COMMUNICATION FACILITIES AND
PERSONNEL TO PERFORM THE FOLLOWING SERVICES FOR THE FUND:
(A) MONITOR ALL REGULATORY (1940 ACT AND IRS) AND
PROSPECTUS RESTRICTIONS FOR COMPLIANCE;
(B) PREPARE AND COORDINATE THE PRINTING OF SEMI-ANNUAL
AND ANNUAL FINANCIAL STATEMENTS;
(C) PREPARE SELECTED MANAGEMENT REPORTS FOR
PERFORMANCE AND COMPLIANCE ANALYSES AS AGREED UPON BY THE
FUND AND ADMINISTRATOR FROM TIME TO TIME;
(D) PREPARE SELECTED FINANCIAL DATA REQUIRED FOR
DIRECTORS' MEETINGS AS AGREED UPON BY THE FUND AND THE
ADMINISTRATOR FROM TIME TO TIME AND COORDINATE DIRECTORS
MEETING AGENDAS WITH OUTSIDE LEGAL COUNSEL TO THE FUND;
(E) DETERMINE INCOME AND CAPITAL GAINS AVAILABLE FOR
DISTRIBUTION AND CALCULATE DISTRIBUTIONS REQUIRED TO MEET
REGULATORY, INCOME, AND EXCISE TAX REQUIREMENTS, TO BE
REVIEWED BY THE FUND'S INDEPENDENT PUBLIC ACCOUNTANTS;
(F) PREPARE THE FUND'S FEDERAL, STATE, AND LOCAL TAX
RETURNS TO BE REVIEWED BY THE FUND'S INDEPENDENT PUBLIC
ACCOUNTANTS;
(G) PREPARE AND MAINTAIN THE FUND'S OPERATING EXPENSE
BUDGET TO DETERMINE PROPER EXPENSE ACCRUALS TO BE CHARGED TO
THE FUND IN ORDER TO CALCULATE ITS DAILY NET ASSET VALUE;
(H) 1940 ACT FILINGS -
IN CONJUNCTION WITH THE FUND'S OUTSIDE LEGAL COUNSEL
THE ADMINISTRATOR WILL:
* PREPARE THE FUND'S FORM N-SAR REPORTS;
* UPDATE ALL FINANCIAL SECTIONS OF THE FUND'S STATEMENT
OF ADDITIONAL INFORMATION AND COORDINATE ITS
COMPLETION;
* UPDATE ALL FINANCIAL SECTIONS OF THE FUND'S PROSPECTUS
AND COORDINATE ITS COMPLETION;
* UPDATE ALL FINANCIAL SECTIONS OF THE FUND'S PROXY
STATEMENT AND COORDINATE ITS COMPLETION;
* PREPARE AN ANNUAL UPDATE TO FUND'S 24F-2 FILING (IF
APPLICABLE);
(I) MONITOR SERVICES PROVIDED BY THE FUND'S CUSTODIAN
BANK AS WELL AS ANY OTHER SERVICE PROVIDERS TO THE FUND;
(J) PROVIDE APPROPRIATE FINANCIAL SCHEDULES (AS
REQUESTED BY THE FUND'S INDEPENDENT PUBLIC ACCOUNTANTS OR
SEC EXAMINERS), COORDINATE THE FUND'S ANNUAL OR SEC AUDIT,
AND PROVIDE OFFICE FACILITIES AS MAY BE REQUIRED;
(K) ATTEND MANAGEMENT AND BOARD OF DIRECTORS MEETINGS
AS REQUESTED;
(L) THE PREPARATION AND FILING (FILING FEE TO BE PAID
BY THE FUND) OF APPLICATIONS AND REPORTS AS NECESSARY TO
REGISTER OR MAINTAIN THE FUNDS REGISTRATION UNDER THE
SECURITIES OF "BLUE SKY" LAWS OF THE VARIOUS STATES SELECTED
BY THE FUND'S DISTRIBUTOR.
THE ADMINISTRATOR SHALL, FOR ALL PURPOSES HEREIN, 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.
2. COMPENSATION OF THE ADMINISTRATOR. IN CONSIDERATION OF THE
SERVICES TO BE PERFORMED BY THE ADMINISTRATOR AS SET FORTH HEREIN FOR
EACH PORTFOLIO LISTED IN SCHEDULE B, THE ADMINISTRATOR SHALL BE
ENTITLED TO RECEIVE COMPENSATION AND REIMBURSEMENT FOR ALL REASONABLE
OUT-OF-POCKET EXPENSES. THE FUND AGREES TO PAY THE ADMINISTRATOR THE
FEES AND REIMBURSEMENT OF OUT-OF-POCKET EXPENSES AS SET FORTH IN THE
FEE SCHEDULE ATTACHED HERETO AS SCHEDULE A.
3. RESPONSIBILITY AND INDEMNIFICATION. (A) THE ADMINISTRATOR
SHALL BE HELD TO THE EXERCISE OF REASONABLE CARE IN CARRYING OUT THE
PROVISIONS OF THE AGREEMENT, BUT SHALL BE WITHOUT LIABILITY TO THE
FUND FOR ANY ACTION TAKEN OR OMITTED BY HIM IN GOOD FAITH WITHOUT
GROSS NEGLIGENCE, BAD FAITH, WILLFUL MISCONDUCT OR RECKLESS DISREGARD
OF HIS DUTIES HEREUNDER. HE SHALL BE ENTITLED TO RELY UPON AND MAY
ACT UPON THE ACCOUNTING RECORDS AND REPORTS GENERATED BY THE FUND,
ADVICE OF THE FUND, OR OF COUNSEL FOR THE FUND AND UPON STATEMENTS OF
THE FUND'S INDEPENDENT ACCOUNTANTS, AND SHALL BE WITHOUT LIABILITY FOR
ANY ACTION REASONABLY TAKEN OR OMITTED PURSUANT TO SUCH RECORDS AND
REPORTS OR ADVICE, PROVIDED THAT SUCH ACTION IS NOT, TO THE KNOWLEDGE
OF THE ADMINISTRATOR, IN VIOLATION OF APPLICABLE FEDERAL OR STATE LAWS
OR REGULATIONS, AND PROVIDED FURTHER THAT SUCH ACTION IS TAKEN WITHOUT
GROSS NEGLIGENCE, BAD FAITH, WILLFUL MISCONDUCT OR RECKLESS DISREGARD
OF HIS DUTIES.
(B) THE ADMINISTRATOR SHALL NOT BE LIABLE TO THE FUND FOR ANY
ERROR OF JUDGMENT OR MISTAKE OF LAW OR FOR ANY LOSS ARISING OUT OF ANY
ACT OR OMISSION BY THE ADMINISTRATOR IN THE PERFORMANCE OF HIS DUTIES
HEREUNDER EXCEPT AS HEREINAFTER SET FORTH. NOTHING HEREIN CONTAINED
SHALL BE CONSTRUED TO PROTECT THE ADMINISTRATOR AGAINST ANY LIABILITY
TO THE FUND OR HIS SECURITY HOLDERS TO WHICH THE ADMINISTRATOR SHALL
OTHERWISE BE SUBJECT BY REASON OF WILLFUL MISFEASANCE, BAD FAITH,
GROSS NEGLIGENCE IN THE PERFORMANCE OF HIS DUTIES ON BEHALF OF THE
FUND, RECKLESS DISREGARD OF THE ADMINISTRATOR'S OBLIGATIONS AND DUTIES
UNDER THIS AGREEMENT OR THE WILLFUL VIOLATION OF ANY APPLICABLE LAW.
(C) EXCEPT AS MAY OTHERWISE BE PROVIDED BY APPLICABLE LAW,
NEITHER THE ADMINISTRATOR NOR HIS STOCKHOLDERS, OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS SHALL BE SUBJECT TO, AND THE FUND SHALL INDEMNIFY
AND HOLD SUCH PERSONS HARMLESS FROM AND AGAINST, ANY LIABILITY FOR ANY
DAMAGES, EXPENSES OR LOSSES INCURRED BY REASON OF THE INACCURACY OF
INFORMATION FURNISHED TO THE ADMINISTRATOR BY THE FUND OR HIS
AUTHORIZED AGENTS OR IN CONNECTION WITH ANY ERROR IN JUDGMENT OR
MISTAKE OF LAW OR ANY ACT OR OMISSION IN THE COURSE OF, CONNECTED WITH
OR ARISING OUT OF ANY SERVICES TO BE RENDERED HEREUNDER, EXCEPT BY
REASON OF WILLFUL MISFEASANCE, BAD FAITH OR GROSS NEGLIGENCE IN THE
PERFORMANCE OF HIS DUTIES, BY REASON OF RECKLESS DISREGARD OF THE
ADMINISTRATOR'S OBLIGATIONS AND DUTIES UNDER THIS AGREEMENT OR THE
WILLFUL VIOLATION OF ANY APPLICABLE LAW.
4. REPORTS. (A) THE FUND SHALL PROVIDE TO THE ADMINISTRATOR
ON A QUARTERLY BASIS A REPORT OF A DULY AUTHORIZED OFFICER OF THE FUND
REPRESENTING THAT ALL INFORMATION FURNISHED TO THE ADMINISTRATOR
DURING THE PRECEDING QUARTER WAS TRUE, COMPLETE AND CORRECT TO THE
BEST OF HIS KNOWLEDGE. THE ADMINISTRATOR SHALL NOT BE RESPONSIBLE FOR
THE ACCURACY OF ANY INFORMATION FURNISHED TO IT BY THE FUND, AND THE
FUND SHALL HOLD THE ADMINISTRATOR HARMLESS IN REGARD TO ANY LIABILITY
INCURRED BY REASON OF THE INACCURACY OF SUCH INFORMATION.
(B) THE ADMINISTRATOR SHALL PROVIDE TO THE BOARD OF DIRECTORS OF
THE FUND, ON A QUARTERLY BASIS, A REPORT, IN SUCH A FORM AS THE
ADMINISTRATOR AND THE FUND SHALL FROM TIME TO TIME AGREE, REPRESENTING
THAT, TO HIS KNOWLEDGE, THE FUND WAS IN COMPLIANCE WITH ALL
REQUIREMENTS OF APPLICABLE FEDERAL AND STATE LAW, INCLUDING WITHOUT
LIMITATION, THE ROLES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION AND THE INTERNAL REVENUE SERVICE, OR SPECIFYING ANY
INSTANCES IN WHICH THE FUND WAS NOT SO IN COMPLIANCE. WHENEVER, IN
THE COURSE OF PERFORMING HIS DUTIES UNDER THIS AGREEMENT, THE
ADMINISTRATOR DETERMINES, ON THE BASIS OF INFORMATION SUPPLIED TO THE
ADMINISTRATOR BY THE FUND, THAT A VIOLATION OF APPLICABLE LAW HAS
OCCURRED, OR THAT, TO HIS KNOWLEDGE, A POSSIBLE VIOLATION OF
APPLICABLE LAW MAY HAVE OCCURRED OR, WITH THE PASSAGE OF TIME, COULD
OCCUR, THE ADMINISTRATOR SHALL PROMPTLY NOTIFY THE FUND AND HIS
COUNSEL OF SUCH VIOLATION.
5. ACTIVITIES OF THE ADMINISTRATOR. THE ADMINISTRATOR SHALL BE
FREE TO RENDER SIMILAR SERVICES TO OTHERS SO LONG AS HIS SERVICES
HEREINUNDER ARE NOT IMPAIRED THEREBY.
6. RECORDS. THE RECORDS MAINTAINED BY THE ADMINISTRATOR SHALL
BE THE PROPERTY OF THE FUND, AND SHALL BE MADE AVAILABLE TO THE FUND
PROMPTLY UPON REQUEST BY THE FUND IN THE FORM IN WHICH SUCH RECORDS
HAVE BEEN MAINTAINED OR PRESERVED. THE ADMINISTRATOR SHALL UPON
APPROVAL OF THE FUND ASSIST THE FUND'S INDEPENDENT AUDITORS, OR, ANY
REGULATORY BODY, IN ANY REQUESTED REVIEW OF THE FUND'S ACCOUNTS AND
RECORDS. THE ADMINISTRATOR SHALL PRESERVE THE RECORDS IN HIS
POSSESSION (AT THE EXPENSE OF THE FUND) AS REQUIRED BY RULE 31A-1 OF
THE 1940 ACT.
7. CONFIDENTIALITY. THE ADMINISTRATOR AGREES THAT IT WILL, ON
BEHALF OF HIMSELF AND HIS OFFICERS AND EMPLOYEES, TREAT ALL
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND ALL OTHER INFORMATION
GERMANE THERETO, AS CONFIDENTIAL AND SUCH INFORMATION SHALL NOT BE
DISCLOSED TO ANY PERSON EXCEPT AS MAY BE AUTHORIZED BY THE FUND.
8. DURATION AND TERMINATION OF THE AGREEMENT. THIS AGREEMENT
SHALL BECOME EFFECTIVE AS OF THE DATE HEREOF AND SHALL REMAIN IN FORCE
FOR A PERIOD OF THREE (3) YEARS, PROVIDED, HOWEVER, THAT BOTH PARTIES
TO THIS AGREEMENT HAVE THE OPTION TO TERMINATE THE AGREEMENT, WITHOUT
PENALTY, UPON NINETY (90) DAYS PRIOR WRITTEN NOTICE.
SHOULD THE FUND EXERCISE ITS RIGHT TO TERMINATE, ALL OUT-OF-
POCKET EXPENSES ASSOCIATED WITH THE MOVEMENT OF RECORDS AND MATERIAL
WILL BE BORNE BY THE FUND. ADDITIONALLY, THE ADMINISTRATOR RESERVES
THE RIGHT TO CHARGE FOR ANY OTHER REASONABLE EXPENSES ASSOCIATED WITH
SUCH TERMINATION.
9. ASSIGNMENT. THIS AGREEMENT SHALL EXTEND TO AND SHALL BE
BINDING UPON THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS; PROVIDED, HOWEVER, THAT THIS AGREEMENT SHALL NOT BE
ASSIGNABLE BY THE FUND WITHOUT THE PRIOR WRITTEN CONSENT OF THE
ADMINISTRATOR, OR BY THE ADMINISTRATOR WITHOUT THE PRIOR WRITTEN
CONSENT OF THE FUND. HOWEVER, THE ADMINISTRATOR RESERVES THE RIGHT TO
SUB-CONTRACT THE PERFORMANCE OF PARAGRAPH 1 ENTITLED DUTIES OF THE
ADMINISTRATOR TO AMERICAN DATA SERVICES, INC., A NEW YORK CORPORATION,
LOCATED AT 00 XXXX XXXXXX XXXXXX, XXXXXXXXXX, XXX XXXX 00000, AND SUCH
SUB-CONTRACT WILL NOT BE CONSIDERED AN ASSIGNMENT OF THIS AGREEMENT.
10. LAWS TO APPLY. THE PROVISIONS OF THIS AGREEMENT SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA AS AT THE TIME IN EFFECT AND THE
APPLICABLE PROVISIONS OF THE 1940 ACT. TO THE EXTENT THAT THE
APPLICABLE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, OR ANY OF THE
PROVISIONS HEREIN, CONFLICT WITH THE APPLICABLE PROVISIONS OF THE 1940
ACT, THE LATTER SHALL CONTROL.
11. AMENDMENTS TO THIS AGREEMENT. THIS AGREEMENT MAY BE AMENDED
BY THE PARTIES HERETO ONLY IF SUCH AMENDMENT IS IN WRITING AND SIGNED
BY BOTH PARTIES.
12. MERGER OF AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES HERETO AND SUPERSEDES ANY PRIOR
AGREEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF WHETHER ORAL OR
WRITTEN.
13. NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER
SHALL BE IN WRITING, SHALL BE DEEMED TO HAVE BEEN GIVEN WHEN DELIVERED
IN PERSON OR BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND SHALL BE
GIVEN TO THE FOLLOWING ADDRESSES (OR SUCH OTHER ADDRESSES AS TO WHICH
NOTICE IS GIVEN):
TO THE FUND: TO THE ADMINISTRATOR:
216 BOULEVARD OF THE ALLIES C/O JMB HOLDINGS, INC.
6TH FLOOR 000 XXXXXXXXX XX XXX XXXXXX
XXXXXXXXXX, XX 00000 0XX XXXXX
XXXXXXXXXX, XX 00000
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS
AGREEMENT AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
PENN CAPITAL FUNDS, INC. XXXXX XXXXXX
BY:/S/ XXXX X. XXXXXX BY: /S/ XXXXX XXXXXX
NAME:_________________________ NAME:_________________________
TITLE:________________________ TITLE:________________________
SCHEDULE A
(A) ADMINISTRATIVE SERVICE FEE:
FOR THE SERVICES RENDERED BY THE ADMINISTRATOR IN HIS CAPACITY AS
ADMINISTRATOR, AS SPECIFIED IN PARAGRAPH 1 DUTIES OF THE
ADMINISTRATOR, THE FUND SHALL PAY THE ADMINISTRATOR WITHIN TEN (10)
DAYS AFTER RECEIPT OF AN INVOICE FROM THE ADMINISTRATOR AT THE
BEGINNING OF EACH MONTH, A FEE EQUAL TO THE GREATER OF:
NOTE: THE FOLLOWING MINIMUM FEES ARE PER PORTFOLIO SERVICED.
MINIMUM FEE:
CALCULATED FEE WILL BE BASED UPON
PRIOR MONTH AVERAGE NET ASSETS:
(NO PRORATING PARTIAL MONTHS)
$5,000 PER MONTH
OR,
NET ASSET CHARGE:
1/12TH OF 0.50% (50 BASIS POINTS) OF COMBINED
AVERAGE NET ASSETS OF FUND GROUP (IF APPLICABLE) FOR MONTH.
FEE INCREASES
ON EACH ANNUAL ANNIVERSARY DATE OF THIS AGREEMENT, THE FEES ENUMERATED
ABOVE WILL BE INCREASED BY THE CHANGE IN THE CONSUMER PRICE INDEX FOR
THE NORTHEAST REGION (CPI) FOR THE TWELVE MONTH PERIOD ENDING WITH THE
MONTH PRECEDING SUCH ANNUAL ANNIVERSARY DATE.
(B) EXPENSES:
THE FUND SHALL REIMBURSE THE ADMINISTRATOR FOR ANY OUT-OF-POCKET
EXPENSES, EXCLUSIVE OF SALARIES, ADVANCED BY THE ADMINISTRATOR IN
CONNECTION WITH BUT NOT LIMITED TO THE PRINTINGS OR FILINGS OF
DOCUMENTS FOR THE FUND, TRAVEL, TELEPHONE, QUOTATION SERVICES,
FACSIMILE TRANSMISSIONS, STATIONERY AND SUPPLIES, RECORD STORAGE,
POSTAGE, TELEX, AND COURIER CHARGES, INCURRED IN CONNECTION WITH THE
PERFORMANCE OF HIS DUTIES HEREUNDER. THE ADMINISTRATOR SHALL PROVIDE
THE FUND WITH A MONTHLY INVOICE OF SUCH EXPENSES AND THE FUND SHALL
REIMBURSE THE ADMINISTRATOR WITHIN FIFTEEN (15) DAYS AFTER RECEIPT
THEREOF.
(C) STATE REGISTRATION (BLUE SKY) SURCHARGE:
THE FEES ENUMERATED IN PARAGRAPH (A) ABOVE INCLUDE THE INITIAL
STATE REGISTRATION, RENEWAL AND MAINTENANCE OF REGISTRATIONS (AS
DETAILED IN PARAGRAPH 1 (DUTIES OF THE ADMINISTRATOR) FOR THREE
STATES. EACH ADDITIONAL STATE REGISTRATION REQUESTED WILL BE SUBJECT
TO THE FOLLOWING FEES:
INITIAL REGISTRATION $275.00
REGISTRATION RENEWAL $100.00
SALES REPORTS (IF REQUIRED) $ 25.00
(D) SPECIAL REPORTS.
ALL REPORTS AND/OR ANALYSES REQUESTED BY THE FUND, ITS AUDITORS,
LEGAL COUNSEL, PORTFOLIO MANAGER, OR ANY REGULATORY AGENCY HAVING
JURISDICTION OVER THE FUND, THAT ARE NOT IN THE NORMAL COURSE OF FUND
ADMINISTRATIVE ACTIVITIES AS SPECIFIED IN SECTION 1 OF THIS AGREEMENT
SHALL BE SUBJECT TO AN ADDITIONAL CHARGE, AGREED UPON IN ADVANCE,
BASED UPON THE FOLLOWING RATES:
LABOR:
SENIOR STAFF $100.00/HR.
JUNIOR STAFF $ 50.00/HR.
COMPUTER TIME $ 45.00/HR.
(E) SECURITY DEPOSIT.
THE FUND WILL REMIT TO THE ADMINISTRATOR UPON EXECUTION OF THIS
AGREEMENT A SECURITY DEPOSIT EQUAL TO ONE (1) MONTH'S MINIMUM FEE
UNDER THIS AGREEMENT, COMPUTED IN ACCORDANCE WITH THE NUMBER OF
PORTFOLIOS LISTED IN SCHEDULE B OF THIS AGREEMENT WITHOUT GIVING
EFFECT TO ANY FEE WAIVERS THAT MAY BE IN EFFECT. THE FUND WILL HAVE
THE OPTION TO HAVE THE SECURITY DEPOSIT APPLIED TO THE LAST MONTH'S
SERVICE FEE, OR APPLIED TO ANY NEW CONTRACT BETWEEN THE FUND AND THE
ADMINISTRATOR.
SCHEDULE B
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
ASSET ALLOCATION FUND
AGGRESSIVE GROWTH FUND (WHEN ORGANIZED)
