MUTUAL FUND SERVICES AGREEMENT
Fund Administration Services
Fund Accounting Services
Transfer Agency Services
between
XXXX FAMILY OF FUNDS
and
UNIFIED FUND SERVICES, INC.
APRIL 1, 2005
Exhibit A - Portfolio Listing
Exhibit B - Fund Administration Services Description
Exhibit C - Fund Accounting Services Description
Exhibit D - Transfer Agency Services Description
Exhibit E - Anti-Money Laundering Services
Exhibit F - Fees and Expenses
CinLibrary/1377230.3
Unified Trust Services, Inc., Rev. 8/03 11/13/2003 Xxxx Family of Trusts - 22
MUTUAL FUND SERVICES AGREEMENT
AGREEMENT (this "Agreement"), dated as of April 1, 2005, between the Xxxx
Family of Funds, an Ohio business trust (the "Fund"), and Unified Fund Services,
Inc., a Delaware corporation ("Unified").
WITNESSTH:
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 wishes to retain Unified to provide certain transfer
agent, Fund accounting and administration services with respect to the Fund, and
Unified is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
Section 1. Appointment. The Fund hereby appoints Unified to provide
transfer agent, Fund accounting and Fund administration services for the Fund,
subject to the supervision of the Board of Trustees of the Fund (the "Board"),
for the period and on the terms set forth in this Agreement. Unified accepts
such appointment and agrees to furnish the services herein set forth in return
for the compensation as provided in Section 6 and Exhibit F to this Agreement.
The Fund will initially consist of the portfolios, Funds and/or classes of
shares (each a "Portfolio"; collectively the "Portfolios") listed on Exhibit A.
The Fund shall notify Unified in writing of each additional Portfolio
established by the Fund. Each new Portfolio shall be subject to the provisions
of this Agreement, except to the extent that the provisions (including those
relating to the compensation and expenses payable by the Fund and its
Portfolios) may be modified with respect to each new Portfolio in writing by the
Fund and Unified at the time of the addition of the new Portfolio.
Section 2. Representations and Warranties of Unified. Unified represents
and warrants to the Fund that:
(a) Unified is a corporation duly organized and existing under the laws of
the State of Delaware;
(b) Unified is empowered under applicable laws and by its Certificate of
Incorporation and By-Laws to enter into and perform this Agreement, and all
requisite corporate proceedings have been taken by Unified to authorize Unified
to enter into and perform this Agreement;
(c) Unified has, and will continue to have, access to the facilities,
personnel and equipment required to fully perform its duties and obligations
hereunder;
(d) no legal or administrative proceedings have been instituted or
threatened against Unified that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) Unified's entrance into this Agreement will not cause a material breach
or be in material conflict with any other agreement or obligation of Unified or
any law or regulation applicable to Unified.
Section 3. Representations and Warranties of the Fund. The Fund represents
and warrants to Unified that:
(a) the Fund is a business trust duly organized and existing under the laws
of the State of Ohio;
(b) the Fund is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement, and the Fund and its
Board have taken all requisite proceedings and actions to authorize the Fund to
enter into and perform this Agreement;
(c) the Fund is an investment company under the 1940 Act and has filed a
registration statement under the Securities Act of 1933, as amended ("1933
Act"), and the 1940 Act on Form N-lA and the registration statement is effective
and will be effective and will remain effective during the term of this
Agreement, and all necessary filings under the laws of the states will have been
made and will be current during the term of this Agreement;
(d) no legal or administrative proceedings have been instituted or
threatened against the Fund that would impair its ability to perform its duties
and obligations under this Agreement; and
(e) the Fund's entrance into this Agreement will 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.
Section 4. Delivery of Documents and Other Materials.
(a) The Fund will promptly furnish to Unified such copies, properly
certified or authenticated, of contracts, documents and other related
information that Unified may request or require to properly discharge its
duties. The listing of such documents herein does not relieve Unified of any
responsibility for the preparation of said documents under this Agreement. Such
documents may include, but are not limited to, the following:
(i) resolutions of the Board authorizing the appointment of Unified to
provide certain transfer agency, Fund accounting and administration
services to the Fund and approving this Agreement;
(ii) the Fund's Declaration of Trust;
(iii) the Fund's By-Laws, anti-money laundering policies, and code of
ethics;
(iv) the Fund's Notification of Registration on Form N-8A under the
1940 Act as filed with the Securities and Exchange Commission ("SEC");
(v) the Fund's registration statement including exhibits, as amended,
on Form N-1A (the "Registration Statement") under the 1933 Act and the 1940
Act, as filed with the SEC;
(vi) copies of the Management Agreement between the Fund and its
investment advisor (the "Advisory Agreement"), and advisor or sub-advisor
proxy voting procedures, and copies of the advisor's errors and omissions
and directors' and officers' insurance policies;
(vii) opinions of counsel as to the authorization and the paid and
nonassessable status of shares, consent of counsel, financial statements
and independent auditor's reports thereon, and consent of independent
auditor;
(viii) the Fund's Prospectus and Statement of Additional Information
relating to all Portfolios and all amendments and supplements thereto (such
Prospectus and Statement of Additional Information and supplements thereto,
as presently in effect and as from time to time hereafter amended and
supplemented, herein called the "Prospectuses"); and
(ix) such other agreements as the Fund may enter into from time to
time including securities lending agreements, futures and commodities
account agreements, brokerage agreements and options agreements, and the
Fund's errors and omissions and directors' and officers' insurance
policies.
(b) The Fund shall cause to be turned over to Unified copies of all
records of, and supporting documentation relating to, its accounts
(including account applications and related documents, records of dividend
distributions, NAV calculations, tax reports and returns, and receivables
and payables) for all Portfolios and matters for which Unified is
responsible hereunder, together with such other records relating to such
Portfolios and matters as may be helpful or necessary to Unified's delivery
of services hereunder. Such records and documentation shall be in
electronic format to the extent practicable. The Fund also shall cause to
be delivered to Unified reconciliations (as of the date Unified begins
providing services hereunder) of the Fund's outstanding shares, securities
and cash held by the Fund, checking accounts, outstanding redemption checks
and related accounts, tax payments and backup withholding accounts, and any
other demand deposit accounts or other property held or owned by the Fund.
The parties acknowledge that Unified will rely on these reconciliations
(and other balances provided by Unified's predecessor) as opening balances
for the performance of its services. On an ongoing basis, the Fund shall
cause to be turned over to Unified all trade tickets and other documents
evidencing transactions made on behalf of the Fund as and when made.
Section 5. Services Provided by Unified.
(a) Unified will provide the following services subject to the
direction and supervision of the Fund's Board, in compliance with the
objectives, policies and limitations set forth in (1) the Fund's
Registration Statement, Declaration of Trust and By-Laws; (2) the
applicable laws and regulations; and (3) all resolutions and policies
adopted by the Board, and further subject to Unified's policies and
procedures as in effect from time to time with notice to the Fund:
(i) Fund Administration Services, as generally described on Exhibit B
to this Agreement and as those services are generally understood to be
within the industry.
(ii) Fund Accounting Services, as generally described on Exhibit C to
this Agreement and as those services are generally understood to be within
the industry.
(iii) Transfer Agency Services, as generally described on Exhibit D to
this Agreement and as those services are generally understood to be within
the industry. In connection with such services, Unified is hereby granted
such power and authority as may be necessary to establish one or more bank
accounts for the Fund as may be necessary or appropriate from time to time
in connection with the services performed by Unified. The Fund shall be
deemed to be the customer of such bank or banks for purposes of this
Agreement. To the extent that the performance of such service hereunder
shall require Unified to disburse amounts from such accounts in payment of
dividends, redemption proceeds or for other purposes, the Fund shall
provide such bank or banks with all instructions and authorizations
necessary, if any, for Unified to effect such disbursements. The Fund shall
cause any predecessor banks to provide Unified with such records as may be
helpful or necessary in connection with the services provided by Unified
under this Agreement.
(iv) Unified AML Program Services, as described on Exhibit E to this
Agreement. Unified formulates, maintains and uniformly administers policies
and procedures (as amended from time to time, the "Unified AML Program")
that are reasonably designed to ensure compliance with the USA Patriot Act
of 2002, the Bank Secrecy Act of 1970, the Customer Identification Program
rules jointly adopted by the SEC and U.S. Treasury Department, and other
applicable regulations adopted thereunder (collectively, the "Applicable
AML Laws"). Unified has provided the Fund with a copy of the Unified AML
Program documents, and will provide the Fund with all amendments thereto.
The Fund hereby delegates to Unified its obligation to identify and verify
its customers and its obligations to perform those anti-money laundering
and other services set forth in Exhibit E to this Agreement, in each case
with regard to those shareholder accounts maintained by Unified pursuant to
this Agreement. Unified accepts the foregoing delegation and agrees to
perform the duties set forth on Exhibit E in accordance with the Unified
AML Program. The Fund acknowledges and agrees that, notwithstanding such
delegation, the Fund maintains full responsibility for ensuring its
compliance with Applicable AML Laws and, therefore, will monitor the
operation and effectiveness of the Unified AML Program to the extent that
the Fund deems necessary. Unified agrees to provide timely notice to the
Fund's Board of Trustees of any material change in the Unified AML Program.
(v) Dividend Disbursing. Unified will serve as the Fund's dividend
disbursing agent. Unified will prepare and mail checks and place wire
transfers of income and capital gain payments to shareholders. The Fund
will advise Unified in advance of the record and payable date of any
dividend or distribution. Unified will, on or before the payment date of
any such dividend or distribution, notify the Fund's Custodian of the
estimated amount required to pay any portion of such dividend or
distribution payable in cash, and on or before the payment date of such
distribution, the Fund will instruct its Custodian to make available to
Unified sufficient Funds for the cash amount to be paid out. If a
shareholder is entitled to receive additional shares by virtue of any such
distribution or dividend, appropriate credits will be made by Unified to
each shareholder's account and Unified will send a confirmation indicating
the number of shares credited to his/her account.
(b) Unified will also:
(i) provide office facilities with respect to the provision of
the services contemplated herein (which may be in the offices of
Unified or a corporate affiliate of Unified);
(ii) provide or otherwise obtain personnel sufficient, in
Unified's sole discretion, for provision of the services contemplated
herein;
(iii) furnish equipment and other materials, which Unified, in
its sole discretion, believes are necessary or desirable for provision
of the services contemplated herein; and
(iv) keep records relating to the services provided hereunder in
such form and manner as set forth on (or required by policies
described in) Exhibits B, C, D and E and as Unified, in its sole
discretion, may otherwise deem appropriate or advisable, all in
accordance with the 1940 Act, the Applicable AML Laws and any other
applicable laws. To the extent required by Section 31 of the 1940 Act
and the rules thereunder, Unified agrees that all such records
prepared or maintained by Unified relating to the services provided
hereunder are the property of the Fund and will be preserved for the
periods prescribed under Rule 31a-2 under the 1940 Act, maintained at
the Fund's expense, and made available to the SEC for inspection in
accordance with such Section and rules. Subject to the provisions of
Section 9 hereof, Unified further agrees to surrender promptly to the
Fund upon its request those records and documents created and
maintained by Unified pursuant to this Agreement.
Section 6. Fees: Expenses: Expense Reimbursement.
(a) As compensation for the services rendered to the Fund pursuant to this
Agreement, the Fund shall pay Unified, on a monthly basis, fees in accordance
with Exhibit F to this Agreement. The fees set forth on Exhibit F may be
adjusted from time to time by agreement of the parties. Upon any termination of
this Agreement before the end of any month, the fee for the part of the month
before such termination shall be equal to the fee normally due for the full
monthly period and shall be payable, without setoff unless the parties have
previously agreed upon a amount owed to the Fund from Unified, upon the date of
termination of this Agreement.
(b) For the purpose of determining fees calculated as a function of a
Portfolio's net assets, the value of the Portfolio's net assets shall be
computed as required by the Prospectus, generally accepted accounting principles
and resolutions of the Board.
(c) Unified will from time to time employ or associate with such person or
persons as may be appropriate to assist Unified in the performance of this
Agreement. Except as otherwise expressly provided in this Agreement, the
compensation of such person or persons for such employment or association shall
be paid by Unified and no obligation will be incurred by or on behalf of the
Fund. If any such person or persons are employed or designated as officers by
both Unified and the Fund, Unified shall be responsible for the compensation of
such person (including travel and other expenses) in their capacity as an
employee or officer of Unified, and the Fund shall be responsible for the
compensation of such person (including travel and other expenses) in their
capacity as an officer of the Fund. If Unified gives permission to one or more
of its employees or officers to act as an officer or other agent of the Fund,
Unified shall not be responsible for any action or omission of any such
person(s) while such person is acting as an officer or other agent of the Fund.
(d) Unified will bear all of its own expenses incurred by reason of its
performance of the services required under this Agreement, except as otherwise
expressly provided in this Agreement. The Fund agrees to promptly reimburse
Unified for any equipment and supplies specially ordered by or for the Fund
through Unified and for any other expenses not contemplated by this Agreement
that Unified may incur on the Fund's behalf at the Fund's request or as
consented to by the Fund. Such other expenses to be incurred in the operation of
the Fund and to be borne by the Fund, include, but are not limited to: taxes;
interest; brokerage fees and commissions; salaries and fees of officers and
directors who are not officers, directors, shareholders or employees of Unified
or Unified's affiliates; SEC and state Blue Sky registration and qualification
fees, levies, fines and other charges; advisory fees; charges and expenses of
custodians; insurance premiums for which Unified is not a beneficiary including
fidelity bond premiums, errors and omissions and directors and officers
premiums; auditing and legal expenses; costs of maintenance of corporate
existence; expenses of typesetting and printing of prospectuses for distribution
to current shareholders of the Fund; expenses of printing and production costs
of shareholders' reports, proxy statements and materials; costs and expenses of
Fund stationery and forms; costs and expenses of special telephone and data
lines and devices; costs associated with shareholder and Board meetings; and any
extraordinary expenses and other customary Fund expenses. In addition, Unified
may utilize one or more independent pricing services to obtain securities prices
and to act as backup to the primary pricing services, in connection with
determining the net asset values of the Fund, and the Fund will be charged
according to the Fund's share of the cost of such services based upon the actual
usage, or a pro-rata estimate of the usage, of the services. The parties
acknowledge that the Fund may contract with its own pricing service and cause
such information to be timely provided to Unified, and is under no obligation to
avail itself of the service(s) contracted by Unified. The Fund retains sole
responsibility for the pricing of securities that are not actively traded, and
shall similarly be responsible for the valuation of odd lot securities
(including bonds), and to the extent Unified shall render assistance in such
valuation, the Fund shall bear Unified's costs and pay Unified for its
assistance at its normal hourly rate then in effect.
(e) The Fund may request additional services, additional processing or
special reports. Additional services, including third party services, generally
will be charged at Unified's standard rates or at such other rate as agreed by
the parties. The parties acknowledge that the Fund is under no obligation to
avail itself of third party services through Unified, and is free to choose its
own service provider, so long as such choice does not cause additional work on
Unified's part.
(f) All fees, out-of-pocket expenses or additional charges of Unified shall
be billed on a monthly basis and shall be due and payable upon receipt of the
invoice. No fees, out-of-pocket expenses or other charges set forth in this
Agreement shall be subject to setoff, unless the parties have previously agreed
upon a amount owed to the Fund from Unified .
Unified will render, after the close of each month in which services have
been furnished, a statement reflecting the charges for such month. Charges
remaining unpaid after thirty (30) days shall bear interest at the rate of 1.5%
per month (including specific amounts which are contested in good faith by the
Fund as provided in the next paragraph, unless such amounts prove not to be
payable), and all costs and expenses of effecting collection of any such charges
and interest, including reasonable attorney's fees, shall be paid by the Fund to
Unified.
In the event that the Fund is more than sixty (60) days delinquent in its
payments of monthly xxxxxxxx in connection with this Agreement (with the
exception of specific amounts which are contested in good faith by the Fund as
provided below), this Agreement may be terminated upon thirty (30) days' written
notice to the Fund by Unified. The Fund must notify Unified in writing of any
contested amounts within thirty (30) days of receipt of a billing for such
amounts, and the notice shall contain a description of the grounds for the
objection sufficient to permit an investigation and determination of its
accuracy. Amounts contested in good faith in writing within such 30-day period
are not due and payable while they are being investigated; uncontested amounts
remain due and payable.
Section 7. Proprietary and Confidential Information. Unified agrees on
behalf of itself and its employees to treat confidentially and as proprietary
information of the Fund, all records and other information relative to the
Fund's prior, present or potential shareholders, and to not use such records and
information for any purpose other than performance of Unified's
responsibilities, rights and duties hereunder. Unified may seek a waiver of such
confidentiality provisions by furnishing reasonable prior notice to the Fund and
obtaining approval in writing from the Fund, which approval shall not be
unreasonably withheld. Waivers of confidentiality are not necessary (and are
deemed given) for use of such information for any purpose in the course of
performance of Unified's responsibilities, duties and rights hereunder, when
Unified may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, with respect to Internal Revenue Service levies, subpoenas and
similar actions, and with respect to any request by the Fund.
Section 8. Duties, Responsibilities and Limitations of Liability.
(a) The parties agree that this Agreement is a contract for services, and
Unified accepts the duties imposed upon it by this Agreement. Unified shall be
liable to the Fund in accordance with the laws of the State of Indiana for any
breach by Unified of the duties imposed upon it by this Agreement.
(b) Neither Unified nor any of its officers, directors, partners,
employees, shareholders or agents (collectively, the "Unified Parties") shall
have any duty to the Fund to discover or attempt to discover any error or
mistake (including any continuing error) that occurred or began prior to the
date Unified commences performing services hereunder, and Unified is entitled to
rely upon, assume the accuracy of, and maintain, continue and carry forward the
classifications, conventions, treatments, entries, balances, practices and all
other work product and other data of its predecessor service providers;
provided, however, that Unified shall promptly notify the Fund of any errors of
its predecessors that it discovers, and the Fund and Unified shall at that time
determine how to proceed. Unified shall be entitled to receive, and the Fund
shall cause it to receive, the work product of its predecessor service
providers.
(c) In performing its services hereunder, Unified shall be entitled to rely
on any oral or written instructions, advice, notices or other communications,
information, records and documents (collectively, "Fund Information") from the
Fund, its custodian, officers and directors, investors, brokers, investment
advisors, agents, legal counsel, auditor and other service providers, including
predecessor service providers (excluding in each case, the Unified Parties) (the
Fund, collectively with such persons other than the Unified Parties, "Fund
Representatives"), which Unified reasonably believes to be genuine, valid and
authorized. Unified also shall be entitled to consult with and rely on the
advice and opinions of the Fund's auditor and of outside legal counsel retained
by the Fund, as may be reasonably necessary or appropriate, as well as other
Fund Representatives, in each case at the expense of the Fund. For purposes of
this Agreement, any person who is an officer, director, partner, employee or
agent of a Unified Party, and who is also an officer, director, partner,
employee or agent of the Fund, shall be when rendering services to the Fund or
acting on any business of the Fund to be acting solely in such person's capacity
as an officer, director, partner, employee or agent of the Fund, and shall be
deemed when rendering services in fulfillment of Unified's duties hereunder to
be acting solely in such person's capacity as an officer, director, partner,
employee or agent of Unified.
(d) Notwithstanding any other provision of this Agreement, the Fund agrees
to defend, indemnify and hold Unified and the other Unified Parties harmless
from all demands, claims, causes or other actions or proceedings of any nature
or kind whatsoever (collectively, "Claims"), expenses, liabilities, debts,
costs, losses, reasonable attorneys' fees and expenses, payments, and damages of
every nature or kind whatsoever (collectively, "Damages") arising directly or
indirectly out of or in connection with the following, except for instances when
the Damages arise due to Unified's bad faith, gross negligence or willful
misconduct:
(i) the reliance on or use by the Unified Parties of Fund
Information which is furnished to any of the Unified Parties by or on
behalf of any of the Fund Representatives, including the reliance by
Unified upon the historical accounting records and other records of
the Fund;
(ii) any inaccuracies, errors or omissions in, or arising out of
or attributable to, Fund Information which is furnished to any of the
Unified Parties by or on behalf of any of the Fund Representatives or
any delays in furnishing such Fund Information to Unified or the
untimely provision to Unified of such Fund Information;
(iii) the taping or other form of recording of telephone
conversations or other forms of electronic communications with
investment advisors, brokers, investors and shareholders, or reliance
by Unified on telephone or other electronic instructions of any person
acting on behalf of a shareholder or shareholder account for which
telephone or other electronic services have been authorized and that
Unified reasonably believes are authentic;
(iv) the reliance on or the carrying out by Unified or its
officers or agents of any instructions or requests reasonably believed
to be duly authorized instructions or requests of the Fund;
(v) any inaccuracy, errors or omissions in, or arising out of or
attributable to, data or information provided to Unified by data
and/or pricing services or any other third party services or any
delays in furnishing such data or information to Unified, including
but not limited to escheatment and lost account services, and/or the
selection of any service provider, regardless of whether the Fund
hires such services itself or instead chooses to utilize the service
through Unified where Unified reasonably relies on such date or
information;
(vi) the offer or sale of shares by the Fund in violation of any
requirement under the federal securities laws or regulations or the
securities laws or regulations of any state or other instrumentality,
or in violation of any stop order or other determination or ruling by
any federal agency or any state agency with respect to the offer or
sale of such shares in such state or instrumentality (1) resulting
from activities, actions or omissions by Fund Representatives, or (2)
existing or arising out of activities, actions or omissions by or on
behalf of the Fund Representatives prior to the earlier of (x) the
effective date of this Agreement and (y) the effective date of an
agreement between the parties hereto with respect to the subject
matter hereof that was in effect prior to the effective date of this
Agreement; and
(vii) the noncompliance by the Fund, its investment advisor(s)
and/or its distributors with applicable securities, tax, commodities
and other laws, rules and regulations.
(e) In any case in which the Fund may be asked to indemnify or hold any
Unified Party harmless in accordance with this Agreement, the Unified Party will
notify the Fund promptly after identifying any circumstance that it believes
presents or appears likely to present a demand for indemnification against the
Fund and shall keep the Fund advised with respect to all material developments
concerning such Claim; provided, however, that the failure to do so shall not
prevent recovery by the Unified Party unless such failure causes actual material
harm to the Fund. The Unified Party will not confess, compromise or settle any
Claim as to which the Fund Party will be asked to provide indemnification,
except with the Fund's prior written consent, which consent shall not be
unreasonably withheld; provided, however, that the Unified Party shall be
entitled to confess, compromise or settle any such Claim in connection with
which indemnification payments due under this subparagraph have not been made to
such Unified Party when due.
(f) Each of the Unified Parties, on the one hand, and the Fund, on the
other hand, shall have the duty to mitigate Damages for which the other party
may become responsible at law and/or in connection with this Agreement. This
duty shall include giving such other party every reasonable opportunity to
correct or ameliorate any error or other circumstance that caused, resulted in
or increased such Damages, and every reasonable opportunity to assist in such
mitigation. The parties acknowledge that the proper accounting, tax or other
treatment of an event or matter can be susceptible to differing opinions among
reputable practitioners of appropriate expertise, both as to events and
transactions that are complete and as to the most efficient remediation of
events and transactions that have resulted or may result in Damages. It is the
intention of the parties that events and transactions be treated and reported in
a legitimate manner that gives rise to the smallest amount of Damages, and that
any remediation or corrective action selected be that which gives rise to the
smallest amount of Damages. Accordingly and notwithstanding any other provision
of this Agreement, as to any matter where any portion of Damages arises in
connection with (or is determined by reference to, or caused or increased by)
the accounting or tax treatment of such matter, no recovery for any amount of
Damages in connection with such matter shall be had by any party to (or
beneficiary of) this Agreement if an alternative characterization, manner of
treatment, reporting or remediation of such item or amount (that tends to
mitigate such Damages) is or was possible and such alternative is or was, in the
written opinion of any reputable practitioner of appropriate expertise, more
likely than not a proper alternative (such opinion to be rendered in customary
form, subject to customary assumptions and representations); provided however,
that the provisions of this sentence shall not apply and recovery of such
Damages will not be precluded if and only if (i) the person seeking or who may
have sought to recover Damages (the "Damaged Party") provided the party against
whom recovery is or may have been sought (the "Potentially Responsible Party")
written notice bearing the bold heading "Notice of Potential Claim for Damages,"
identifying this Agreement, and describing the nature of the potential Claim and
the subject matter of the required opinion, (ii) such notice is sent by
certified mail and actually delivered to the Potentially Responsible Party
within fourteen (14) days after the Damaged Party first discovers the alleged
error, (iii) the Damaged Party fully and promptly cooperates in the attempts of
the Potentially Responsible Party to obtain such an opinion, and (iv) no such
opinion is obtained within sixty (60) days after delivery of such notice; and
provided further, if such an opinion is obtained on or before the end of the
60-day period described above, recoverable Damages shall be limited to those
that would be recoverable if such alternative characterization, manner of
treatment, reporting or remediation were implemented. If an opinion described in
the preceding sentence is obtained by the Potentially Responsible Party, the
Damaged Party shall bear the cost of such opinion.
(g) NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT
SHALL ANY UNIFIED PARTY BE LIABLE UNDER ANY THEORY OF TORT, CONTRACT, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT,
EACH OF WHICH DAMAGES IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS
OF WHETHER SUCH DAMAGES WERE FORESEEABLE. NOTWITHSTANDING ANY OTHER PROVISION IN
THIS AGREEMENT, OTHER THAN IN THE CASE OF BAD FAITH, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT ON THE PART OF THE UNIFIED PARTIES, THE CUMULATIVE LIABILITY OF THE
UNIFIED PARTIES FOR DAMAGES THAT ARISE DIRECTLY OR INDIRECTLY IN CONNECTION WITH
THIS AGREEMENT, OR THAT ARISE DIRECTLY OR INDIRECTLY OUT OF A UNIFIED PARTY'S
ACTIONS (OR FAILURE TO ACT) IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE
FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED $2,000,000.00. THE FUND
UNDERSTANDS THIS LIMITATION UPON THE UNIFIED PARTIES' DAMAGES TO BE A REASONABLE
ALLOCATION OF RISKS (BOTH INSURABLE AND OTHER RISKS), AND FUND EXPRESSLY
CONSENTS TO SUCH ALLOCATION OF RISK. THE FUND AND THE UNIFIED PARTIES AGREE THAT
DAMAGES LIMITATIONS AND INDEMNIFICATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY
TO ANY ALTERNATIVE REMEDY ORDERED BY AN ARBITRATION PANEL, COURT OR OTHER TRIER
OF FACT IN THE EVENT ANY TRIER OF FACT DETERMINES THAT THE EXCLUSIVE REMEDIES
PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
(h) Except for remedies that cannot be waived as a matter of law and
injunctive relief, the remedies provided in this Section 8 shall be the Fund's
sole and exclusive remedies for Claims and Damages that arise directly or
indirectly in connection with this Agreement, or directly or indirectly out of a
Unified Party's actions (or failure to act) in connection with this Agreement.
Section 9. Term. This Agreement shall become effective on the date first
herein above written. This Agreement may be modified or amended from time to
time by mutual agreement between the parties hereto. This Agreement shall
continue in effect unless terminated by either party on at least (i) 180 days'
prior written notice, if such notice is given on or prior to the second
anniversary of this Agreement, or (ii) 90 days' prior written notice, if such
notice is given after the second anniversary of this Agreement. With the sole
exception of the 30-day termination described in Section 6(f) and the 180-day
and 90-day terminations provided in this Section 9, no other event (except for
actual breach) shall result in termination of this Agreement, including the
elimination of a Portfolio from the Fund. If terminated by merger, the date of
termination shall be the earlier of the last day of the applicable notice period
and the date of any merger, liquidation of the Fund or other transaction of the
Fund whereunder Unified does not provide services to the surviving entity, if
any, under this Agreement. On the date of termination, the Fund shall pay to
Unified all fees, compensation and other charges as shall be accrued or due (or
would accrue and become due) under the terms of this Agreement through the last
day of the applicable notice period. Unified shall cease providing services upon
the date of termination, except as otherwise provided in this Section 9.
On the date of termination, the Fund agrees to pay termination/conversion
fees simultaneous with the transfer of all Fund records to the Fund or to the
successor Mutual Fund service provider(s), for the expenses incurred in
connection with the retrieval, compilation and movement of books, records and
materials relative to the deconversion or conversion of Fund records to the Fund
or the successor Mutual Fund service provider, the closing of Unified's records
(and/or services related to the liquidation or other transaction), and other
services related to termination of Unified's services; provided, however, that
if an estimate is paid by the Fund to Unified related to such
termination/conversion, the Fund and Unified will thereafter exchange the
difference between the actual costs of such termination/conversion and the
estimate thereof as appropriate. Such fee shall not be subject to any setoffs of
any nature, unless the parties have previously agreed upon a amount owed to the
Fund from Unified. In addition, the Fund agrees to pay for all conversion tape
set-up fees, test conversion preparation and processing fees and final
conversion fees, none of which shall be subject to any setoff, unless the
parties have previously agreed upon a amount owed to the Fund from Unified.
On or prior to the date of termination and upon payment of all amounts due
and payable under this Agreement without setoff (excluding any amounts that the
parties have previously agreed upon a amount owed to the Fund from Unified and
those amounts not then due and payable under Section 6(f); provided, however,
that the termination/conversion fees described in this Section 9 shall be paid
without setoff notwithstanding any dispute), Unified agrees to provide the Fund
with the complete transfer agency, fund accounting and administration records
and any other documents related to the Fund's in its possession and to assist
the Fund in the orderly transfer of accounts and records . Without limiting the
generality of the foregoing, subject to the preceding sentence, Unified agrees
that upon or prior to termination of this Agreement if Unified is satisfactory
paid an estimate as described in the preceding paragraph:
(a) to deliver to the Fund or to the successor Mutual Fund service
provider(s), computer media containing the Fund's accounts and records together
with such record layouts and additional information as may reasonably be
necessary to enable the successor Mutual Fund service provider(s) to utilize the
information therein;
(b) to reasonably cooperate with the successor Mutual Fund service
provider(s) in the interpretation of the Fund's account and records;
(c) to forward all shareholder calls, mail and correspondence to the new
Mutual Fund service provider(s) upon de-conversion; and
(d) to act in good faith to make the conversion as smooth as possible for
the successor Mutual Fund service provider(s) and the Fund.
Section 10. Notices. Any notice required or permitted hereunder shall be in
writing and shall be deemed to have been given and effective when delivered in
person or by certified mail, return receipt requested, at the following address
(or such other address as a party may specify by notice to the other):
(a) If to the Fund, to:
Xxxx Family of Funds
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000-0000
Attention: President
(b) If to Unified, to:
Unified Fund Services, Inc.
000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Notice also shall be deemed given and effective upon receipt by any party
or other person at the preceding address (or such other address as a party may
specify by notice to the other) if sent by regular mail, private messenger,
courier service, telex, facsimile, or otherwise, if such notice bears language
that clearly indicates that it is such notice.
Section 11. Assignment; Nonsolicitation; and Other Contracts. This
Agreement may not be assigned or otherwise transferred by either party hereto,
without the prior written consent of the other party, which consent shall not be
unreasonably withheld; provided, however, that Unified may, in its sole
discretion and upon notice to the Fund, assign all its right, title and interest
in this Agreement to an affiliate, parent or subsidiary, or to the purchaser of
substantially all of its business that is able to provide the services described
in this Agreement. Unified may, in its sole discretion, engage subcontractors to
perform any of its duties contained in this Agreement, provided that Unified
shall remain responsible to the Fund for all such delegated duties in accordance
with the terms and conditions of this Agreement, in the same manner and to the
same extent as if Unified were providing such services itself. During the term
of this Agreement and for a period of one (1) year following the termination of
this Agreement, the Fund shall not, and shall not cause, suffer or permit any
affiliate to recruit, solicit, employ or engage, for the Fund or the Fund's
adviser or the adviser's affiliates, any Unified Party, without Unified's
written consent. The Fund shall not require or expect Unified to enter into any
agreements for the Fund's direct or indirect benefit, including any sales,
servicing or other similar agreements, that expose Unified to any liability that
is greater than the liability it is undertaking in this Agreement.
Section 12. Intended Beneficiaries. This Agreement shall be binding upon
the Fund, Unified and their respective successors and assigns, and shall inure
to the benefit of the Fund, the Fund's adviser, Unified, the Unified Parties,
their respective heirs, successors and assigns. Nothing herein expressed or
implied is intended to confer upon any person not named or described in the
preceding sentence any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
Section 13. Arbitration. Notwithstanding any provision of this Agreement to
the contrary, any claim or controversy arising out of or in any manner relating
to this Agreement, or breach hereof, which cannot be resolved between the
parties themselves, shall be settled by arbitration administered by the American
Arbitration Association in Indianapolis, Indiana in accordance with its rules
applicable to commercial disputes. The arbitration panel shall consist of three
arbitrators selected from list(s) of candidates provided by the American
Arbitration Association. One party to the dispute shall be entitled to appoint
one arbitrator and the other party to the dispute shall be entitled to appoint
one arbitrator. The third arbitrator, who shall be an attorney in good standing
who is licensed to practice law in the State of Indiana and devotes more than
one-half of his or her professional time to the practice of commercial law in
the area of contracts and/or commercial transactions, shall be chosen by the two
arbitrators so appointed. If any party fails to appoint its arbitrator or to
notify the other party of such appointment within thirty (30) days after the
institution of arbitration proceedings, such other party may request the
President of the American Arbitration Association to appoint such arbitrator on
behalf of the party who so failed. If the two arbitrators appointed by (or on
behalf of) the parties fail to appoint such third arbitrator, or fail to notify
the parties to such proceedings of such appointment, within thirty (30) days
after the appointment of the later of such two arbitrators to be appointed by
(or on behalf of) the parties, any party may request such President to appoint
such third arbitrator. The President of the American Arbitration Association
will be requested to appoint such arbitrator or such third arbitrator, as the
case may be, within thirty (30) days after the making of such request. The
parties hereby agree that judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction. The parties acknowledge and agree
that the performance of the obligations under this Agreement necessitates the
use of instrumentalities of interstate commerce and, notwithstanding other
general choice of law provisions in this Agreement, the parties agree that the
Federal Arbitration Act shall govern and control with respect to the provisions
of this Section 13.
Section 14. Waiver. 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.
Section 15. Force Majeure. Unified 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, acts of God, earthquake, fires, floods,
failure or fluctuations in electrical power, wars, acts of terrorism, acts of
civil or military authorities, governmental actions, nonperformance by a third
party selected by the Fund, failures or fluctuations in telecommunications or
other equipment or any similar cause beyond the reasonable control of Unified,
nor shall any such failure or delay give the Fund the right to terminate this
Agreement provided that the Fund may go to another third party to perform such
obligations under this Agreement and Unified agrees not to be compensated for
performance of such obligations during the period of non-performance.
Section 16. Use of Name. The Fund and Unified agree not to use the other's
name nor the names of such other's affiliates, designees, or assignees in any
prospectus, sales literature, or other printed material written in a manner not
previously, expressly approved in writing by the other or such other's
affiliates, designees, or assignees except where required by the SEC or any
state agency responsible for securities regulation.
Section 17. Amendments. This Agreement may be modified or amended from time
to time by mutual written agreement between the parties. No provision of this
Agreement may be changed, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, discharge or termination is sought.
Section 18. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law to any person or circumstance, such provision
shall be ineffective only to the extent of such prohibition or invalidity. In
the event that any one or more of the provisions contained in this Agreement or
any application thereof shall be invalid, illegal or unenforceable in any
respect or to any extent, the validity, legality or enforceability of the
remaining provisions of this Agreement and any other application of such invalid
provision shall not in any way be affected or impaired thereby.
Section 19. Headings; Pronouns; Certain Phrases; Rules of Construction. The
headings in the sections and subsections of this Agreement are inserted for
convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties. Wherever used in this Agreement,
masculine, feminine and neuter pronouns shall be deemed to include the other
genders. Singular pronouns and nouns (including defined terms) shall be deemed
to include the plural (and vice versa) as the context may require, but shall
have no effect upon the nature of a party's liability as joint or several. The
Exhibits to this Agreement are hereby incorporated by reference as if fully set
forth in this Agreement. Wherever used in this Agreement, the phrase "in
connection with" shall be given the broadest possible interpretation, and shall
include matters (without limitation) that are in whole or part caused by, relate
to, arise out of, are attributable to, or would not have occurred in the absence
of circumstances created by, the referent or object of such phrase. Each party
acknowledges that it was represented by legal counsel in connection with the
review and execution of this Agreement, or that it had an adequate opportunity
to engage counsel for such review and chose not to do so. The sole duties that
Unified is accepting in return for the fees and other remuneration hereunder are
expressly set forth herein. No exoneration of liability for a duty or other
indemnification or limitation shall be construed, by negative implication or
otherwise, to imply the existence of any duty. For example and without
limitation, indemnification of Unified for a failure of an investment advisor to
timely deliver trade tickets (or failure of any other third party to timely
deliver accurate Fund Information) shall not be construed to imply that Unified
has a duty to supervise such service provider or prevent a recurrence of such
failure.
Section 20. No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
Section 21. Entire Agreement; Survival; Governing Law. This Agreement, the
Exhibits hereto and any subsequent amendments of the foregoing embody the entire
understanding between the parties with respect to the subject matter hereof, and
supersedes all prior negotiations and agreements between the parties relating to
the subject matter hereof; provided, however, that if an agreement between the
parties hereto with respect to the subject matter hereof was in effect
immediately prior to the effective date of this Agreement (the "Predecessor
Agreement"), then the provisions contained in Section 8 of the Predecessor
Agreement (relating to indemnification and other risk allocation matters) shall,
in respect of all periods prior to the effective date of this Agreement ("Prior
Periods"), survive and remain in effect to the same extent and in the same
manner as such provisions would have applied in respect of Prior Periods had the
Predecessor Agreement not been superseded by this Agreement. The provisions of
Sections 6 through 21, inclusive, shall survive any termination of this
Agreement and for a period of two years thereafter. This Agreement shall be
governed by and construed and interpreted according to the internal laws of the
State of Indiana, without reference to conflict of law principles.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Mutual Fund
Services Agreement to be signed by their respective duly authorized officers as
of the day and year first above written.
XXXX FAMILY OF FUNDS
By: Date
Print Name:
Title:
Attest:
UNIFIED FUND SERVICES, INC.
By: Date
Print Name:
Title:
By: Date
Print Name:
Title:
Attest:
With respect to Section 11 of this Mutual Fund Services Agreement only:
XXXX INVESTMENT ASSOCIATES LLC
By: ______________________________________________ Date_____________________
Print Name: ________________________________________
Title: _____________________________________________
Attest: ____________________________________________
EXHIBIT A
to
Mutual Fund Services Agreement
List of Portfolios
Portfolios serviced by Unified are as agreed to from time to time between
Unified and Xxxx Family of Funds.
Xxxx Large Cap Value Fund, Class A
Xxxx Large Cap Value Fund, Class C
Xxxx Small Cap Value Fund, Class A
Xxxx Small Cap Value Fund, Class C
Xxxx Balanced Fund, Class A
Xxxx Balanced Fund, Class C
Xxxx International Fund, Class A
Xxxx International Fund, Class C
EXHIBIT B
to
Mutual Fund Services Agreement
General Description of Fund Administration Services
The following is a general description of the administration services Unified
shall provide or make available to the Fund:
I. Financial and Tax Reporting
A. Prepare agreed upon management reports and Board of Trustees materials
including but not limited to as unaudited financial statements, distribution
summaries, and deviations of xxxx-to-market valuation and the amortized cost for
money market Funds.
B. Calculate and Report Fund performance to outside services as directed by Fund
management.
C. Prepare and file Fund's Form N-SAR with the SEC.
D. Prepare and coordinate the printing of Fund's Semiannual and Annual Reports
to Shareholders.
E. In conjunction with transfer agent, notify shareholders as to what portion,
if any, of the distributions made by the Fund's during the prior fiscal year
were exempt-interest dividends under Section 852(b)(5)(A) of the Code.
F. Prepare and Provide Form 1099-MISC to persons other than corporations (i.e.,
Trustees) to whom the Fund paid during the year.
G. Provide financial information for Fund proxy statements and Prospectuses.
II. Portfolio Compliance
A. Assist with monitoring each portfolio's compliance with investment
restrictions (e.g., issuer or industry diversification, etc.) listed in the
current Prospectus and Statement of Additional Information.
B. Assist with monitoring each portfolio's compliance with the requirements of
Section 851 of the Code for qualification as a RIC (i.e., 90% Income, and
Diversification Tests).
C. Assist with monitoring investment manager's compliance with Board directives
such as "Approved Issuers Listings for Repurchase Agreements", Rule 17a-7, and
Rule 12d-3 procedures.
D. Administer compliance by the Fund's trustees, officers and "access persons"
under the terms of the Fund's Code of Ethics and SEC regulations.
III. Regulatory Affairs and Corporate Governance
A. Assist Fund counsel in the preparation and filing of post-effective
amendments to the Fund's registration statement on Form N-lA and supplements as
needed.
B. Administer shareholder meetings, and assist Fund counsel in the preparation
and filing of proxy materials.
C. Prepare and file Rule 24f-2 notices.
D. Prepare and file all state notifications of intent to sell the Fund's
securities including annual renewals, adding new portfolios, preparing and
filing sales reports, filing copies of the registration statement and final
prospectus and statement of additional information, and increasing registered
amounts of securities in individual states.
E. Prepare Board materials for all Board meetings, including minutes thereof.
F. Assist with the review and monitoring of fidelity bond and errors and
omissions insurance coverage and
make any related regulatory filings.
G. Prepare and update documents such as charter document, By-Laws, foreign
qualification filings.
H. Assist in identifying and monitoring pertinent regulatory and legislative
developments which may affect the Fund and, in response to the results of such
monitoring, coordinate and provide support to the Fund and the Fund's investment
advisor with respect to those developments and results, including support with
respect to routine regulatory examinations or investigations of the Fund, and
with respect to such matters, to work in conjunction with outside counsel,
auditors and other professional organizations engaged by the Fund.
I. File copies of financial reports to shareholders with the SEC under Rule
30b2-1.
IV. General Administration
A. For new portfolios obtain Employer Identification Number and CUSIP numbers.
Estimate organizational costs and expenses and monitor against actual
disbursements.
B. Coordinate all communications and data collection with regard to any
regulatory examinations and yearly audits by independent accountants.
C. Establish and monitor expense budgets and accruals.
EXHIBIT C
to
Mutual Fund Services Agreement
General Description of Fund Accounting Services
The following is a general description of the accounting services Unified shall
provide or make available to the Fund:
I. General Description
A. Maintain the books and records and accounting controls for the Fund's assets,
including records of all securities transactions and payments of Fund expenses.
B. Calculate each Portfolio's net asset value in accordance with the Prospectus
and (once the Portfolio meets eligibility requirements) transmit to NASDAQ and
to such other entities as directed by the Fund.
C. Calculate dividend and capital gain distributions in accordance with
distribution policies detailed in the Fund's prospectus. Assist the Fund
management in making final determinations of distribution amounts.
D. Assist the Fund's public accountants or other professionals in the
preparation and filing of the Fund's Federal tax return on Form 1120-RIC along
with all state and local tax returns where applicable. Assist in the preparation
and filing of the Federal Excise Tax Return (Form 8613).
E. Account for dividends, interest and corporate actions received by the Fund.
F. Assist the Administrator in the preparation of Fund expense projections and
establishing accruals.
G. Produce transaction data, financial reports and such other periodic and
special reports as the Board may reasonably request.
H. Liaison with the Fund's independent auditors.
I. Monitor and administer arrangements with the Fund's custodian and depository
banks.
EXHIBIT D
to
Mutual Fund Services Agreement
General Description of Transfer Agency Services
The following is a general description of the transfer agency services Unified
shall provide or make available to the Fund:
I. General Description
A. Systems: Utilizing PowerAgent by Envision Financial Systems, Windows NT
Servers and Microsoft SQL Databases, we offer a robust yet open architecture for
shareholder data.
B. Interactive Voice Response: Provides Funds with the opportunity to offer
their shareholders 24 hour, 7 day a week access to their account information,
accessing the system either via telephone or computer, subject to normal
interruptions of service.
C. Shareholder Services: Shareholder telephone calls can be answered by
Unified's shareholder services department through 800 numbers that are unique to
each Fund family, during Unified's normal business hours and subject to normal
interruptions of service. Phone volumes and response times are continually
monitored for quality assurance.
D. Shareholder Recordkeeping: Maintains complete shareholder records for each
Fund including the following: (i) name, address and tax identification number;
(ii) number of shares held; (iii) historical information including dividends
paid and individual purchases and redemptions; and (iv) any systematic purchase
or redemption instructions and correspondence relating to the current
maintenance of the account.
E. Purchase and Redemption Orders: Unified will process all purchase and
redemption orders of a Fund's shareholders in accordance with the Fund's current
prospectus. Confirmation statements are produced for each transaction and
promptly mailed to shareholders. Daily transaction reports and share proofs are
made available to all necessary parties via electronic medium.
F. Telephone Orders: Process redemption, exchange and transfer requests upon
telephone instructions from qualified shareholders, subject to normal
interruptions of service. Unified will redeem and/or transfer Fund shares from
any account for which such services have been properly authorized.
G. Shareholder Correspondence: Acknowledge all correspondence from shareholders
relating to their share accounts and undertake such other shareholder
correspondence as may from time to time be mutually agreed upon.
H. NSCC Fund/Serv and Networking: Support of the processing of shareholder
transactions, commissions, and other functionality as may be offered through
NSCC as an optional and additional transfer agency service.
I. Asset Allocation Program Support: Provide rebalancing, asset allocation
models and performance measurement as an optional and additional transfer agency
service, for certain types of asset allocation and/or wrap programs.
EXHIBIT E
to
Mutual Fund Services Agreement
General Description of the Unified AML Program Services
The following is a general description of the Unified AML Program services
Unified shall provide to the Fund:
I. General Description
A. Customer Identification. Verify shareholder identity upon opening new
accounts, consistent with the Unified AML Program, and perform such other checks
and verifications as are specified in Unified's Customer Identification Program
(which is a component of the Unified AML Program).
B. Purchase Transactions. Unified shall reject and return to sender any and all
checks, deposits, and other deliveries of cash or property that do not comply
with the Unified AML Program, subject to the provisions of any additional
agreement between the Fund and Unified regarding special liability checks and
other remittances.
C. Monitoring and Reporting. Monitoring shareholder transactions and identifying
and reporting suspicious activities that are required to be so identified and
reported, including suspicious activity reports or Form 8300 reports, and
provide other reports of shareholder activity to the Securities and Exchange
Commission, the U.S. Treasury Department, the Internal Revenue Service, and
other appropriate authorities, in each case consistent with the Unified AML
Program.
D. Frozen Accounts. Unified shall place holds on transactions in shareholder
accounts or freeze assets in shareholder accounts as provided for in the Unified
AML Program.
E. Maintenance of Records. Maintain all records or other documentation related
to shareholder accounts and transactions therein that are required to be
prepared and maintained pursuant to the Unified AML Program, and make the same
available for inspection by (1) the Funds' compliance officer, (2) any auditor
of the Funds, (3) regulatory or law enforcement authorities, and (4) those other
persons specified in the Unified AML Program.
F. Other Services. Unified shall apply all other policies and procedures of the
Unified AML Program to the Fund.
G. Maintenance of the Unified AML Program. Unified shall maintain and modify the
Unified AML Program from time to time to ensure that it remains reasonably
designed to ensure compliance with the Applicable AML Laws. Upon request by the
Fund, Unified shall make available its compliance personnel to the Fund and the
Fund's counsel to discuss amendments to the Unified AML Program that the Fund or
its counsel believes are necessary to keep such program in compliance with
Applicable AML Laws. Changes to Unified's AML Program or special procedures may
be implemented, at Unified's sole discretion, for an additional fee to be agreed
upon. The Fund may cancel its participation in the Unified AML Program at any
time, and no further fees to Unified in respect of such program shall accrue
after the date of cancellation.
H. Annual Certification. On an annual basis during the term of this Agreement,
Unified will certify to the Fund's Board of Trustees that it has implemented the
Unified AML Program and that it will continue to perform the specific
requirements of the Unified AML Program in accordance with the terms of this
Agreement.
I. Audit. On an annual basis during the term of this Agreement, Unified will
contract with an independent accountant to perform and audit of the AML Program
and issue an opinion on the results of the audit.
EXHIBIT E
to
MUTUAL FUND SERVICES AGREEMENT
TRANSFER AGENCY FEE SCHEDULE
The prices contained herein are effective for twelve months from the execution date of the Transfer Agency
contract.
I Conversion Fee: Manual conversion/new fund establishment - fee not to exceed $1,500 per portfolio.
Electronic
conversions - $1.50 per shareholder account with a $5,000 minimum fee.
II Standard Base Fee for Standard Base Services
The Base Fee1 is $1.40 for money market funds and $1.30 for equity/bond funds per active Shareholder Account
per month with a minimum fee of $1,0002 per portfolio and/or share class per month. An Active Shareholder
Account is any Shareholder Account existing on Transfer Agent's computerized files with a non-zero Share
balance. There is a $.40 per account charge for any account with a zero share balance for the current month,
as determined on the last day of each month.
1The Base Fee does not include: forms design and printing, statement production, envelope design and
printing, postage and handling, shipping, statement microfiche copies and 800 number access to Unified's
shareholder services group.
2 Discount based on assets per portfolio and/or share class:
$0 - 2 Million 50%
$2 - 5 Million 25%
$5 Plus Million 0%
Unified supports for an additional monthly fee of $0.05 per account per service: receivables accounting,
12b-1 fund reporting, back-end sales load recapture accounting, and/or detailed dealer and representative
load commission accounting and reporting. Funds paying dividends more frequently than once per quarter
(generally, money market funds) are charged an additional $0.30 per month per account.
Unified will provide lost account search services in connection of SEC Rules 17Ad-17 and 17a-24 at a cost of
$2.50 per account searched. These "Electronic Data Search Services" will be performed on a semi-annual
basis. This service will apply to only Active Shareholder Accounts maintained on the transfer agency system
coded as RPO accounts.
In addition to the above fees, there will be a $500.00 minimum fee/rerun charge when the nightly processing
has be repeated due to incorrect NAV or dividend information received from the Fund Accountant/Portfolio
Pricing Agent.
III Standard Services Provided
-Open new accounts
-Maintain Shareholder accounts
Including:
-Maintain certificate records
-Change addresses
-Prepare daily reports on number of Shares, accounts
-Prepare Shareholder federal tax information
-Withhold taxes on U.S. resident and non-resident alien accounts
-Reply to Shareholder calls and correspondence other than that for Fund information and related inquiries
-Process purchase of Shares
-Issue/Cancel certificates (Excessive use may be subject to additional charges)
-Process partial and complete redemptions
-Process regular and legal transfer of accounts
-Mail semi-annual and annual reports
-Process dividends and distributions
-Prepare Shareholder meeting lists
-Process one proxy per year per fund. Tabulation is limited to three.
-Receive and tabulate proxies
-Confirm all transactions as provided by the terms of each Shareholder's account
-Provide a system which will enable Fund to monitor the total number of Shares sold in each
state. System has capability to halt sales and warn of potential oversell. (Blue Sky Reports)
-Determine/Identify lost Shareholder accounts
IV Standard Reports Available
-12b-1 Disbursement Report
-12b-1 Disbursement Summary
-Dealer Commission Report
-Dealer Commission Summary Report
-Exchange Activity Report
-Fees Paid Summary Report
-Fund Accrual Details
-Holdings by Account Type
-Posting Details
-Posting Summary
-Settlement Summary
-Tax Register
-Transactions Journal
Unified Fund Services, Inc. 5/27/05 Xxxx Family of Funds - 20
V NSCC Interfaces
-Fund/Serv and/or Networking set-up $1,000
-Fund/Serv processing $150 per month
-Networking processing $250 per month
-Fund/Serv transactions $0.35 per trade
-Direct Networking expenses
Per item $0.025 Monthly dividend fund
Per item $0.015 Non-monthly dividend fund
VI Additional Fees for Services Outside the Standard Base
-Interactive Voice Response System Set-up Pass through
-Archiving of old records/storage of aged records Pass through
-Off-line Shareholder research $25/hour (Billed to customer account)
-Check copies $3/each (Billed to customer account)
-Statement copies $5/each (Billed to customer account)
-Mutual Fund fulfillment/prospect file maintenance $1.00/item
-Shareholder communications charges (Faxes) Pass through
-Leased line/equipment on TA's computer system Pass through
-Dial-up access to TA's computer system Pass through
-Labels $.05 ea/$100 minimum
-Electronic filings of approved forms $75/transmission
-Monthly Director's Reports $25/mo/portfolio
-AD-HOC REPORTWRITER Report Generation $50.00 per report
-Bank Reconciliation Service $50.00 monthly maintenance fee per bank
account $1.50 per bank item
-Systems Programming Labor Charges:
Programmers or Consultants $125.00/hour
Officers $150.00/hour
-Additional Proxy Processing:
Each processing $225.00 fixed charge per processing
Preparation and Tabulation $0.145/proxy issued
(includes 3 tabulations, sixteen propositions)
Each Extra Tabulation $23.00 fixed charge per processing
$0.02 per proxy tabulated
FUND ACCOUNTING FEE SCHEDULE
The prices contained herein are effective for twelve months from the execution date of the Fund Accounting
contract.
Standard Fee
0.05% for the first $100 million on each Fund's average daily net assets;
0.04% from $100 million to $250 million of such net assets; and
0.03% over $250 million of such net assets.
Out of Pocket Fees: Fees charged for outside pricing services and all accompanying
administrative expenditures.
Subject to a $20,0001 annual minimum per portfolio (one share class) plus $6,0001 per additional share class.
Fees are billed on a monthly basis.
1 Discount based on total fund assets:
$0 - 2 Million 50%
$2 - 5 Million 25%
$5 Million Plus 0%
Standard Services Provided
-Daily processing of Fund transactions
-Ability to specify and execute partial sales on FIFO, LIFO, high cost, low cost and
specifically identified lots
-"As-of" reporting, as far back as transactions are maintained
-Monitoring and communication to management and adviser(s) on cash activity
-General ledger processing
-Calculations of Net Asset Value
-Calculations of Money Market Daily Dividend Factor
-Reporting of NAV to NASDAQ and Fund management
-Reporting of NAV to principal reporting services (Lipper, etc.)
-Daily portfolio valuation
-Estimation of semi-annual income and capital gain distributions
-Provide information to complete semi-annual and annual financial statements and Director's reports
-Coordination with auditors
-Coordination and communication with investment advisers
-Payables processing
-Full bond accrual, accretion, amortization, including variable rates
-Daily accrual and amortization of income and expense
-Full accounting for all securities transactions
-Complete audit trail
-Automated securities and income records
-Fiscal year-end processing
-Load funds processing
Standard Reports Provided
-Daily cash reports
-Daily portfolio valuations
-Daily Pricing Sheets
-Weekly accruals transactions listing
-Standard monthly Closing Packages
-Monthly general ledger activity report as requested
- Reports to assist in the preparation of semi-annual and annual financial statements
-Dividend estimations worksheet
-Pre-approved audit schedules
-Broker commissions report for N-SAR filings
-Financial schedules for proxy statements and prospectuses
*Requests for Unified to provide standard reports with increased frequency
may be subject to additional service fees.
Optional Services Available - Initial (for desired services)
-Additional portfolio sub-adviser fee $10,000/portfolio
-Multiple custodian fee $5,000/fund group
-GNMA securities fee $2,500/portfolio
_______ -Quarterly financial statement preparation fee $5,000/portfolio
-Creation of semi-annual and annual reports $3,000/fund group
-Statistical reporting fee (ICI, Lipper, Donoghue, etc.) $100/report
_______ -S.E.C. audit requirements pass through
-Processing of backup withholding $1,500/portfolio
Special Report Generation Fees
AD-HOC Report Generation $75.00 per report
Reruns $75.00 per run
Extract Tapes $110.00 plus
Systems Programming Labor Charges
System Support Repesentatives $100.00/hour
Programmers,Consultants or
Department Heads $125.00/hour
Officers $150.00/hour
De-Conversion Fees
De-Conversion fees will be subject to additional charges commensurate with particular
circumstances and dependent upon scope of problems.
ADMINISTRATIVE SERVICES FEE SCHEDULE
Standard Fee
0.09% for the first $100 million on each Fund's average daily net assets;
0.06% from $100 million to $250 million of such net assets; and
0.03% over $250 million of such net assets.
Subject to a $10,0001 annual minimum per portfolio (one share class) plus $5,0001 per additional share class.
Fees are billed on a monthly basis.
1 Discount based on total fund assets:
$0 - 2 Million 50%
$2 - 5 Million 25%
$5 Million Plus 0%
Additional Services and Fees
1. Initial State Blue-Sky Registration $75 per state
2. Assistance in preparation and filing for an exemptive order
or no action letter from the Securities and Exchange Commission $1,500 minimum
3. Assist in the preparation of additional Fund's Registration
Statement on Form N1-A or any replacement thereof $500 minimum
4. Assistance in preparation, filing and vote compilation of
Proxy Statement for Special Shareholders Meeting. $10,000 minimum per
Special Meeting
5. Assistance in Dissolution and Deregistration of the Fund
(including related Proxy Statement) $15,000 minimum
6. Reorganization/Merger of the Fund or portfolios (including
proxy statement and excluding tax opinion) $17,000 minimum
7. Assist in the review of sales literature. $35 per piece minimum
8. Such other duties related to the administration of the
Fund as agreed to by Unified Advisers Negotiable
