EXHIBIT 9
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT
This amended and restated Agreement dated February 10, 1997 amends and
restates the Agreement dated October 12, 1993 between XXXXX PARTNERS, INC., a
Nebraska corporation, having its principal office and place of business at
Omaha, Nebraska (the "Fund"), and XXXXXXX X. XXXXX & COMPANY, a Nebraska
corporation, having its principal office and place of business at Omaha,
Nebraska (the "Administrator"),
WHEREAS, the Fund desires to engage the Administrator to provide transfer
agent, dividend disbursing agent and fund accounting and related administrator
services.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Section 1. TERMS OF APPOINTMENT.
1.01 Subject to the conditions set forth in this Agreement, the Fund hereby
employs and appoints Administrator as the Fund's Administrator, Transfer Agent
and Dividend Disbursing Agent.
1.02 Administrator hereby accepts such employment and appointment and
agrees that on and after the effective date of its appointment it will act as
the Fund's Administrator, Transfer Agent and Dividend Disbursing Agent.
Administrator agrees that it will also act as agent in connection with any
periodic investment plan, periodic withdrawal program or other accumulation,
open-account or similar plans provided to the Fund's shareholders and set out in
the Fund's prospectus.
1.03 Administrator agrees to provide the necessary facilities, equipment
and personnel to perform its duties and obligations hereunder in accordance with
industry practice.
1.04 Administrator agrees that it will perform all of the usual and
ordinary services as Transfer Administrator and Dividend Disbursing
Administrator and as agent for the various shareholder accounts including but
not limited to: issuing, transferring and cancelling stock
certificates, maintaining all shareholder accounts, preparing annual shareholder
meeting lists, mailing proxies, receiving and tabulating proxies, mailing
shareholder reports and prospectuses, withholding taxes on non-resident alien
accounts, disbursing income dividends and capital gains distributions, preparing
and filing U.S. Treasury Department Form 1099 for all shareholders, preparing
and mailing confirmation forms to shareholders for all purchases and
liquidations of Fund shares and other confirmable transactions in shareholders'
accounts, recording reinvestment of dividends and distributions in Fund shares,
causing liquidation of shares and causing disbursements to be made to withdrawal
plan holders.
1.05 Administrator agrees that it will furnish the Fund with office
facilities, including such space, furniture, equipment and supplies as well as
personnel sufficient to carry out the necessary administrative, clerical and
bookkeeping functions of the Fund. In connection therewith, the Administrator
shall maintain all records required to be maintained for the Fund under the
Investment Company Act of 1940. Additionally, the Administrator shall provide
the following services to the Fund:
i. Daily pricing;
ii. Computation of daily net asset value and reporting to Fund management,
and others as requested;
iii. Prepare daily cash availability reports for Portfolio managers;
iv. Post daily all fund activity and prepare all applicable daily reports;
v. Accrue expenses daily;
vi. Calculate daily reconciliations of cash, receivables, payable accounts
and shares outstanding;
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vii. Compute daily dividend rate for appropriate funds;
viii. Compute yields pursuant to S.E.C. formulas;
ix. Provide monthly analysis and reconciliation of all general ledger
accounts;
x. Generate and maintain monthly broker ledgers, commission ledgers and
net trade reports;
xi. Verify accuracy and propriety of bills and invoices, maintain
expenses files and coordinate payment of bills and invoices in a timely manner;
xii. Prepare report on expense limitations as needed;
xiii. Maintain and verify portfolio trade tickets with broker confirmation;
xiv. Determine income availability for monthly, quarterly and/or annual
dividend/distributions;
xv. Maintain historical record of all Fund net asset values and
dividend/distributions;
xvi. Coordinate audit examination of outside auditors, including
preparation of audit work paper package if required; and
xvii. Produce documents and respond to inquiries during S.E.C. audits.
Section 2. FEES AND EXPENSES.
2.01 For the services to be rendered by Administrator pursuant to
paragraph 1.04 and 1.05, the Fund agrees to pay Administrator a monthly fee
based upon the costs to the Administrator of providing services to the Fund
in accordance with the Administrator's reasonable allocation of expenses, but
not to exceed .25% of the average daily net assets of the Fund. The cap of
.25% of the average daily net assets of the Fund may be decreased from time
to time with the agreement of the Administrator and the President of the Fund
and increased only upon the approval of the Board of
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Directors of the Fund. Fees shall be billed monthly by Administrator and shall
be paid monthly by Fund within fifteen (15) days of the end of each month.
2.02 The Fund also agrees promptly to reimburse Administrator for all
reasonable out-of-pocket expenses or advances incurred by Administrator in
connection with the performance of services under this Agreement including, but
not limited to, expenditures for counsel fees, postage, envelopes, checks,
drafts, continuous forms, reports and statements, telephone, telegraph,
stationery, supplies, costs of outside mailing firms, record storage costs and
media for storage of records (e.g. microfilm, computer tapes or disks). In
addition, any other expenses incurred by Administrator at the request or with
the consent of the Fund will be promptly reimbursed by the Fund.
Section 3. REPRESENTATIONS AND WARRANTIES OF ADMINISTRATOR. Administrator
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 Nebraska;
3.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-laws to enter into and perform the services contemplated in
this Agreement;
3.03 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement; and
3.04 It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund
represents and warrants to Administrator that:
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4.01 It is a corporation duly organized and existing and in good standing
under the laws of the State of Nebraska;
4.02 It is, or prior to the public offering of its shares, will become an
open-end management investment company registered under the Investment Company
Act of 1940;
4.03 A registration statement under the Securities Act of 1933 is
currently, or prior to the public offering of its shares, will become effective
and will remain effective, and appropriate state securities laws filings have
been or will be made and will continue to be made, with respect to all shares of
the Fund being offered for sale;
4.04 The Fund is empowered under applicable laws and regulations and by its
charter and By-laws to enter into and perform this Agreement; and all requisite
corporate proceedings have been taken to authorize it to enter into and perform
under this Agreement.
Section 5. INDEMNIFICATION.
5.01 Administrator shall not be responsible and the Fund shall indemnify
and hold Administrator harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability which may be
asserted against Administrator or for which it may be held to be liable, arising
out of or in any way attributable to:
(a) All actions of Administrator required to be taken by
Administrator pursuant to this Agreement provided that Administrator has
acted in good faith and with due diligence.
(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's negligence or willful
misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
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(c) The reliance on, or the carrying out of, any instructions or
requests of the Fund.
(d) Defaults by dealers with respect to payment for share orders
previously entered.
(e) The reliance on, or the carrying out of, any instructions or
requests of the Fund.
(f) The offer or sale of the Fund's shares in violation of any
requirement under federal securities laws or regulations or the securities
laws or regulations of any state or in violation of any stop order or other
determination or ruling by any federal agency or state with respect to the
offer or sale of such shares in such state (unless such violation results
from Administrator's failure to comply with written instructions of the
Fund or of any officer of the Fund that no offers or sales be made in or to
residents of such state).
5.02 Administrator 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 Administrator's willful failure to comply
with the terms of this Agreement or which arise out of Administrator's gross
negligence or willful misconduct.
5.03 At any time Administrator may apply to any officer of the Fund for
instructions, and may consult with legal counsel for the Fund or its own legal
counsel, at the expense of the Fund, with respect to any matter arising in
connection with the services to be performed by Administrator under this
Agreement and 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 such
instructions or upon the opinion of such counsel. Administrator shall be
protected and indemnified in acting upon any paper or
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document believed by it to be genuine and to have been signed by the proper
person or persons and shall not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from the Fund.
Administrator shall also be protected and indemnified in recognizing stock
certificates which Administrator reasonably believes to bear the proper manual
or facsimile signatures of the officers of the Fund, and the proper counter-
signature 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, or other causes reasonably beyond its control,
such party shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such causes.
5.05 In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential damages under any
provision of this Agreement or for any act or failure to act hereunder.
Section 6. COVENANTS OF ADMINISTRATOR AND THE FUND.
6.01 The Fund shall promptly furnish to Administrator the following:
(a) A certified copy of the resolution of the Board of Directors of
the Fund authorizing the appointment of Administrator and the execution and
delivery of this Agreement.
(b) Certified copy of the Articles of Incorporation and By-laws of
the Fund and all amendments thereto.
(c) Specimens of stock certificates, if any, in the form approved by
the Fund's Board of Directors with a certificate of the Secretary of the
Fund as to such approval.
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6.02 Administrator 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 To the extent required by Section 31 of the Investment Company Act of
1940 and Rules thereunder, Administrator agrees that all records maintained by
Administrator relating to the services to be performed by Administrator under
this Agreement are the property of the Fund and will be preserved and will be
surrendered promptly to the Fund on request.
6.04 Administrator 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 of and the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any other
person.
Section 7. TERMINATION OF AGREEMENT.
7.01 This Agreement may be terminated by either party by 90 days written
notice.
Section 8. MISCELLANEOUS.
8.01 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other.
8.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective successors and assigns.
8.03 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, and this Agreement may not be modified except
by written instrument executed by both parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their duly authorized officers, as of the day and year
first above written.
XXXXX PARTNERS, INC.
ATTEST: By /s/Xxxxxxx X. Xxxxx
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President
/s/Xxxx X. Xxxxxxxx
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Secretary
XXXXXXX X. XXXXX & COMPANY
By /s/Xxxxxxx X. Xxxxx
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ATTEST: President
/s/Xxxx X. Xxxxxxxx
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Asst. Secretary
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