ADMINISTRATION AGREEMENT
Agreement dated as of , 199 by and between State Street Bank and
Trust Company, a Massachusetts trust company (the "Administrator"), and
Kobrick-HFS Investment Trust (the "Fund").
WHEREAS, the Fund is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund desires to retain the Administrator to furnish
certain administrative services to the Fund, and the Administrator is willing to
furnish such services, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Fund hereby appoints the Administrator to act as administrator
with respect to the Fund for purposes of providing certain administrative
services for the period and on the terms set forth in this Agreement. The
Administrator accepts such appointment and agrees to render the services stated
herein.
The Fund will initially consist of the portfolio(s) and/or class(es)
of shares (each an "Investment Fund") listed in Schedule A to this Agreement. In
the event that the Fund establishes one or more additional Investment Funds with
respect to which it wishes to retain the Administrator to act as administrator
hereunder, the Fund shall notify the Administrator in writing. Upon written
acceptance by the Administrator, such Investment Fund shall become subject to
the provisions of this Agreement to the same extent as the existing Investment
Funds, except to the extent that such provisions (including those relating to
the compensation and expenses payable by the Fund and its Investment Funds) may
be modified with respect to each additional Investment Fund in writing by the
Fund and the Administrator at the time of the addition of the Investment Fund.
2. DELIVERY OF DOCUMENTS
The Fund will promptly deliver to the Administrator copies of each
of the following documents and all future amendments and supplements, if any:
a. The Fund's charter document and by-laws;
b. The Fund's currently effective registration statement under
the Securities Act of 1933, as amended (the "1933 Act"), and
the 1940 Act and the Fund's Prospectus(es) and Statement(s) of
Additional Information relating to all Investment Funds and
all amendments and supplements thereto as in effect from time
to time;
c. Certified copies of the resolutions of the Board of Trustees
of the Fund (the "Board") authorizing (1) the Fund to enter
into this Agreement and (2)
certain individuals on behalf of the Fund to give instructions
to the Administrator pursuant to this Agreement;
d. A copy of the investment advisory agreement between the Fund
and its investment adviser; and
e. Such other certificates, documents or opinions which the
Administrator may, in its reasonable discretion, deem
necessary or appropriate in the proper performance of its
duties.
3. REPRESENTATION AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Fund that:
a. It is a Massachusetts trust company, duly organized, existing
and in good standing under the laws of The Commonwealth of
Massachusetts;
b. It has the corporate power and authority to carry on its
business in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
d. No legal or administrative proceedings have been instituted or
threatened which would impair the Administrator's ability to
perform its duties and obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligation of the Administrator or any law or regulation
applicable to it.
4. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Administrator that:
a. It is a business trust, duly organized and existing and in
good standing under the laws of The Commonwealth of
Massachusetts;
b. It has the corporate power and authority under applicable laws
and by its charter and by-laws to enter into and perform this
Agreement;
c. All requisite proceedings have been taken to authorize it to
enter into and perform this Agreement;
d. It is an investment company properly registered under the 1940
Act;
e. A registration statement under the 1933 Act and the 1940 Act
has been filed and will be effective and remain effective
during the term of this Agreement. The Fund also warrants to
the Administrator that as of the effective date of
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this Agreement, all necessary filings under the securities
laws of the states in which the Fund offers or sells its
shares have been made;
f. No legal or administrative proceedings have been instituted or
threatened which would impair the Fund's ability to perform
its duties and obligations under this Agreement;
g. Its entrance into this Agreement shall not cause a material
breach or be in material conflict with any other agreement or
obligation of the Fund or any law or regulation applicable to
it; and
h. As of the close of business on the date of this Agreement, the
Fund is authorized to issue an unlimited number of shares of
beneficial interest.
5. ADMINISTRATION SERVICES
The Administrator shall provide the following services, in each
case, subject to the control, supervision and direction of the Fund and the
review and comment by the Fund's auditors and legal counsel and in accordance
with procedures which may be established from time to time between the Fund and
the Administrator:
a. Oversee the determination and publication of the Fund's net
asset value in accordance with the Fund's policy as adopted
from time to time by the Board;
b. Oversee the maintenance by the Fund's custodian of certain
books and records of the Fund as required under Rule 31a-1(b)
of the 1940 Act;
c. Prepare the Fund's federal, state and local income tax returns
for review by the Fund's independent accountants and filing by
the Fund's treasurer;
d. Review calculation, submit for approval by officers of the
Fund and arrange for payment of the Fund's expenses;
e. Prepare for review and approval by officers of the Fund
financial information for the Fund's semi-annual and annual
reports, proxy statements and other communications required or
otherwise to be sent to Fund shareholders, and arrange for the
printing and dissemination of such reports and communications
to shareholders;
f. Prepare for review by an officer of and legal counsel for the
Fund the Fund's periodic financial reports required to be
filed with the Securities and Exchange Commission ("SEC") on
Form N-SAR and financial information required by Form N-1A and
such other reports, forms or filings as may be mutually agreed
upon;
g. Prepare reports relating to the business and affairs of the
Fund as may be mutually agreed upon and not otherwise prepared
by the Fund's investment adviser, custodian, legal counsel or
independent accountants;
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h. Make such reports and recommendations to the Board concerning
the performance of the independent accountants as the Board
may reasonably request;
i. Make such reports and recommendations to the Board concerning
the performance and fees of the Fund's custodian and transfer
and dividend disbursing agent ("Transfer Agent") as the Board
may reasonably request or deems appropriate;
j. Oversee and review calculations of fees paid to the Fund's
investment adviser, custodian and Transfer Agent;
k. Consult with the Fund's officers, independent accountants,
legal counsel, custodian and Transfer Agent in establishing
the accounting policies of the Fund;
l. Respond to, or refer to the Fund's officers or Transfer Agent,
shareholder inquiries relating to the Fund;
m. Provide periodic testing of portfolios to assist the Fund's
investment adviser in complying with Internal Revenue Code
mandatory qualification requirements, the requirements of the
1940 Act and Fund prospectus limitations as may be mutually
agreed upon;
n. Perform Blue Sky services pursuant to the specific
instructions of the Fund and as detailed in Schedule C to this
Agreement.
The Administrator shall provide the office facilities and the personnel required
by it to perform the services contemplated herein.
6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Administrator shall receive from the Fund such compensation for
the Administrator's services provided pursuant to this Agreement as may be
agreed to from time to time in a written fee schedule approved by the parties
and initially set forth in Schedule B to this Agreement. The fees are accrued
daily and billed monthly and shall be due and payable upon receipt of the
invoice. Upon the termination of this Agreement before the end of any month, the
fee for the part of the month before such termination shall be prorated
according to the proportion which such part bears to the full monthly period and
shall be payable upon the date of termination of this Agreement. In addition,
the Fund shall reimburse the Administrator for its out-of-pocket costs incurred
in connection with this Agreement.
The Fund agrees promptly to reimburse the Administrator for any
equipment and supplies specially ordered by or for the Fund through the
Administrator and for any other expenses not contemplated by this Agreement that
the Administrator may incur on the Fund's behalf at the Fund's request or with
the Fund's consent.
The Fund will bear all expenses that are incurred in its operation
and not specifically assumed by the Administrator. Expenses to be borne by the
Fund, include, but are not limited to: organizational expenses; cost of services
of independent accountants and outside legal and tax counsel
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(including such counsel's review of the Fund's registration statement, proxy
materials, federal and state tax qualification as a regulated investment company
and other reports and materials prepared by the Administrator under this
Agreement); cost of any services contracted for by the Fund directly from
parties other than the Administrator; cost of trading operations and brokerage
fees, commissions and transfer taxes in connection with the purchase and sale of
securities for the Fund; investment advisory fees; taxes, insurance premiums and
other fees and expenses applicable to its operation; costs incidental to any
meetings of shareholders including, but not limited to, legal and accounting
fees, proxy filing fees and the costs of preparation, printing and mailing of
any proxy materials; costs incidental to Board meetings, including fees and
expenses of Board members; the salary and expenses of any officer,
director\trustee or employee of the Fund; costs incidental to the preparation,
printing and distribution of the Fund's registration statements and any
amendments thereto and shareholder reports; cost of typesetting and printing of
prospectuses; cost of preparation and filing of the Fund's tax returns, Form
N-1A and Form N-SAR, and all notices, registrations and amendments associated
with applicable federal and state tax and securities laws; all applicable
registration fees and filing fees required under federal and state securities
laws; fidelity bond and directors' and officers' liability insurance; and cost
of independent pricing services used in computing the Fund's net asset value.
The Administrator is authorized to and may employ or associate with such
person or persons as the Administrator may deem desirable to assist it in
performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator shall be as fully responsible to the Fund for the acts
and omissions of any such person or persons as it is for its own acts and
omissions.
7. INSTRUCTIONS AND ADVICE
At any time, the Administrator may apply to any officer of the Fund
for instructions and may consult with its own legal counsel or outside counsel
for the Fund or the independent accountants for the Fund at the expense of the
Fund, with respect to any matter arising in connection with the services to be
performed by the Administrator under this Agreement. The Administrator shall not
be liable, and shall be indemnified by the Fund, for any action taken or omitted
by it in good faith in reliance upon any such instructions or advice or upon any
paper or document believed by it to be genuine and to have been signed by the
proper person or persons. The Administrator shall not be held to have notice of
any change of authority of any person until receipt of written notice thereof
from the Fund. Nothing in this paragraph shall be construed as imposing upon the
Administrator any obligation to seek such instructions or advice, or to act in
accordance with such advice when received.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Administrator shall be responsible for the performance of only
such duties as are set forth in this Agreement and, except as otherwise provided
under Section 6, shall have no responsibility for the actions or activities of
any other party, including other service providers. The Administrator shall have
no liability for any error of judgment or mistake of law or for any loss or
damage resulting from the performance or nonperformance of its duties hereunder
unless solely caused by or resulting from the gross negligence or willful
misconduct of the Administrator, its officers or employees. The Administrator
shall not be liable for any special, indirect, incidental, or consequential
damages of any kind whatsoever (including, without limitation, attorneys' fees)
under any provision of this Agreement or for any such damages arising out of any
act or failure to act
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hereunder. In any event, the Administrator's liability under this Agreement
shall be limited to its total annual compensation earned and fees paid hereunder
during the preceding twelve months for any liability or loss suffered by the
Fund including, but not limited to, any liability relating to qualification of
the Fund as a regulated investment company or any liability relating to the
Fund's compliance with any federal or state tax or securities statute,
regulation or ruling.
The Administrator shall not be responsible or liable for any failure
or delay in performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, work stoppage, power or other mechanical failure,
computer virus, natural disaster, governmental action or communication
disruption, nor shall any such failure or delay give the Fund the right to
terminate this Agreement.
The Fund shall indemnify and hold the Administrator harmless from
all loss, cost, damage and expense, including reasonable fees and expenses for
counsel, incurred by the Administrator resulting from any claim, demand, action
or suit in connection with the Administrator's acceptance of this Agreement, any
action or omission by it in the performance of its duties hereunder, or as a
result of acting upon any instructions reasonably believed by it to have been
duly authorized by the Fund, provided that this indemnification shall not apply
to actions or omissions of the Administrator, its officers or employees in cases
of its or their own gross negligence or willful misconduct.
The indemnification contained herein shall survive the termination
of this Agreement.
9. CONFIDENTIALITY
The Administrator agrees that, except as otherwise required by law
or in connection with any required disclosure to a banking or other regulatory
authority, it will keep confidential all records and information in its
possession relating to the Fund or its shareholders or shareholder accounts and
will not disclose the same to any person except at the request or with the
written consent of the Fund.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Fund assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it.
In compliance with the requirements of Rule 31a-3 under the 1940
Act, the Administrator agrees that all records which it maintains for the Fund
shall at all times remain the property of the Fund, shall be readily accessible
during normal business hours, and shall be promptly surrendered upon the
termination of the Agreement or otherwise on written request. The Administrator
further agrees that all records which it maintains for the Fund pursuant to Rule
31a-1 under the 1940 Act will be preserved for the periods prescribed by Rule
31a-2 under the 1940 Act unless any such records are earlier surrendered as
provided above. Records shall be surrendered in usable machine-readable form.
11. SERVICES NOT EXCLUSIVE
The services of the Administrator to the Fund are not to be deemed
exclusive, and the Administrator shall be free to render similar services to
others. The Administrator shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized
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by the Fund from time to time, have no authority to act or represent the Fund in
any way or otherwise be deemed an agent of the Fund.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective on the date the Fund first
accepts money for investment and shall remain in full force and effect for an
initial term of three years. This Agreement shall automatically continue in full
force and effect after such initial term unless either party terminates this
Agreement by written notice to the other party at least sixty (60) days prior to
the expiration of the initial term. Either party may terminate this Agreement at
any time after the initial term upon at least sixty (60) days' prior written
notice to the other party. Termination of this Agreement with respect to any
given Investment Fund shall in no way affect the continued validity of this
Agreement with respect to any other Investment Fund. Upon termination of this
Agreement, the Fund shall pay to the Administrator such compensation and any
reimbursable expenses as may be due under the terms hereof as of the date of
such termination, including reasonable out-of-pocket expenses associated with
such termination. Upon termination of this Agreement by the Fund prior to the
expiration of the initial three-year term, the Fund shall reimburse the
Administrator for any fees waived by the administrator. This Agreement may be
modified or amended from time to time by mutual written agreement of the parties
hereto.
13. NOTICES
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Fund: Kobrick-HFS Investment Trust, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attn: Xxxxxxx Xxxxxxx, fax: ; if to the Administrator: State Street Bank
and Trust Company, 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, Attn:
Fund Administration Legal Department.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by either party hereto without
the prior consent in writing of the other party, except that the Administrator
may assign this Agreement to a successor of all or a substantial portion of its
business, or to a party controlling, controlled by or under common control with
the Administrator.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the benefit of
the Fund and the Administrator and their respective successors and permitted
assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all previous
representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. WAIVER
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The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver nor shall it
deprive such party of the right thereafter to insist upon strict adherence to
that term or any term of this Agreement. Any waiver must be in writing signed by
the waiving party.
18. SEVERABILITY
If any provision of this Agreement is invalid or unenforceable, the
balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
19. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
20. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
KOBRICK-HFS INVESTMENT TRUST
By:
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
By:
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Vice President
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ADMINISTRATION AGREEMENT
KOBRICK-HFS INVESTMENT TRUST
SCHEDULE A
Listing of Investment Funds and Authorized Shares
Investment Fund Authorized Shares
Kobrick-HFS Capital Fund
Kobrick-HFS Emerging Growth Fund
9
ADMINISTRATION AGREEMENT
KOBRICK-HFS INVESTMENT TRUST
SCHEDULE B
Fees and Expenses
10
ADMINISTRATION AGREEMENT
KOBRICK-HFS INVESTMENT TRUST
SCHEDULE C
Notice Filing with
State Securities Administrators
At the specific direction of the Fund, the Administrator will prepare required
documentation and make Notice Filings in accordance with the securities laws of
each jurisdiction in which Fund shares are to be offered or sold pursuant to
instructions given to the Administrator by the Fund.
The Fund shall be solely responsible for the determination (i) of those
jurisdictions in which Notice Filings are to be submitted and (ii) the number of
Fund shares to be permitted to be sold in each such jurisdiction. In the event
that the Administrator becomes aware of (a) the sale of Fund shares in a
jurisdiction in which no Notice Filing has been made or (b) the sale of Fund
shares in excess of the number of Fund shares permitted to be sold in such
jurisdiction, the Administrator shall report such information to the Fund, and
it shall be the Fund's responsibility to determine appropriate corrective action
and instruct the Administrator with respect thereto.
The Blue Sky services shall consist of the following:
1. Filing of Fund's Initial Notice Filings, as directed by the
Fund;
2. Filing of Fund's renewals and amendments as required;
3. Filing of amendments to the Fund's registration statement
where required;
4. Filing Fund sales reports where required;
5. Payment at the expense of the Fund of all Fund Notice
Filing fees;
6. Filing the Prospectuses and Statements of Additional
Information and any amendments or supplements thereto where
required;
7. Filing of annual reports and proxy statements where
required; and
8. The performance of such additional services as the
Administrator and the Fund may agree upon in writing.
Unless otherwise specified in writing by the Administrator, Blue Sky services by
the Administrator shall not include determining the availability of exemptions
under a jurisdiction's blue sky law. Any such determination shall be made by the
Fund or its legal counsel. In connection with the services described herein, the
Fund shall issue in favor of the Administrator a power of attorney to submit
Notice Filings on behalf of the Fund, which power of attorney shall be
substantially in the form of Exhibit I attached hereto.
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EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of , 199 that the
undersigned KOBRICK-HFS INVESTMENT TRUST with principal offices at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (individually the "Fund") makes, constitutes, and
appoints STATE STREET BANK AND TRUST COMPANY (the "Administrator") with
principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx its lawful
attorney-in-fact for it to do as if it were itself acting, the following:
1. REGISTRATION OF FUND SHARES. The power to register shares of the Fund in
each jurisdiction in which Fund shares are offered or sold and in
connection therewith the power to prepare, execute, and deliver and file
any and all Fund applications, including without limitation, applications
to register shares, consents, including consents to service of process,
reports, including without limitation, all periodic reports, claims for
exemption, or other documents and instruments now or hereafter required or
appropriate in the judgment of the Administrator in connection with the
registration of Fund shares.
2. AUTHORIZED SIGNERS. Pursuant to this Limited Power of Attorney,
individuals holding the titles of Officer, Blue Sky Manager, or Senior
Blue Sky Administrator at the Administrator shall have authority to act on
behalf of the Fund with respect to item 1 above.
The execution of this limited power of attorney shall be deemed coupled with an
interest and shall be revocable only upon receipt by the Administrator of such
termination of authority. Nothing herein shall be construed to constitute the
appointment of the Administrator as or otherwise authorize the Administrator to
act as an officer, director or employee of the Fund.
IN WITNESS WHEREOF, the Fund has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
KOBRICK-HFS INVESTMENT TRUST
By:
---------------------
Name:
---------------------
Title:
---------------------
00
XXXXX XXXXXX XXXX AND TRUST COMPANY
Fund Administration Fee Schedule
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KOBRICK - HFS INVESTMENT TRUST
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I. FUND ADMINISTRATION SERVICES
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Annual Fee
Average Assets Expressed in Basis Points: 1/100 of 1%
Administration
First $200 million 8
Next $200 million 6
Thereafter 4
Minimum/Fund $85,000
The basis points will be applied on a total complex basis.
The minimum per fund will be applied at the rate of 1/12 in month one
($590/fund), 2/12 in month two increasing incrementally per month until
the full minimum is in effect in month twelve.
Administration services include Treasurer's office support, financial
reporting, monthly compliance, tax reporting, and Blue Sky compliance
support.
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II. MULTIPLE CLASSES OF SHARES
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An additional $10,000 annual fee will be applied for each class of shares,
excluding the initial class of shares, if more than one class of shares is
operational in a fund.
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III. BLUE SKY ADMINISTRATION SERVICES
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The base blue sky fee is included. An additional fee of $2,500 will be
applied for each additional class of shares, excluding the initial class
of shares, if more than one class of shares is operational in a fund.
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IV. LEVERAGE
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An additional $10,000 annual fee will be applied if a fund engages in
leverage transactions other than temporary borrowing.
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V. OUT-OF-POCKET EXPENSES - INCLUDE, BUT MAY NOT BE LIMITED TO:
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o Printing for shareholder reports and SEC filings
o Legal fees, audit fees and other professional fees
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o Postage, telephone, fax, and photocopying
o Supplies related to Fund records
o Travel and lodging for Board and Operations meetings
o Preparation of financials other than Annual, Semi-Annual and
Quarterly Board Reporting - $3,000 per financial report.
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VI. SPECIAL ARRANGEMENTS
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Fees for activities of a non-recurring nature such as fund consolidations
or reorganizations, and/or preparation of special reports will be subject
to negotiation.
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VII. TERM OF THE CONTRACT
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The parties agree that this fee schedule shall remain in effect for an
initial period of three years from the date on which the funds commence
operations. If the agreement is terminated for any reason before the end
of its term, the fund and/or the adviser agree to reimburse State Street
for any waived fees. After the initial term, the agreement will continue
from year to year until it is revised as a result of negotiations
initiated by either party.
KOBRICK - HFS INVESTMENT TRUST STATE STREET BANK AND TRUST CO.
By: By:
------------------------------ ----------------------------
Title: Title:
------------------------------ ----------------------------
Date: Date:
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