EXHIBIT 23 (h)(5)
AMENDED AND RESTATED
SHAREHOLDER SERVICES AGREEMENT
AGREEMENT dated May 16, 2011, between Xxx Financial
Recordkeeping, Inc. ("LFR"), a Hawaii Corporation and First Pacific Mutual
Fund, Inc. (the "Corporation"), a Maryland Corporation. Hawaii Municipal
Fund series and First Pacific Low Volatility Fund series are series of the
Corporation operated as open-ended, non-diversified management investment
companies. All references to any series of the Corporation will be called
the "Fund" unless expressly noted otherwise.
WITNESSETH:
WHEREAS, each Fund is a non-diversified, open-end management
investment company registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, LFR serves as Transfer Agent to each Fund under a
separate Transfer Agent Agreement and each Fund desires to avail itself of
certain administrative services provided by LFR with regard to personal
services of shareholder accounts which are not covered by the Transfer Agent
Agreement; and
WHEREAS, LFR is willing to furnish such services on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
Section 1. Each Fund hereby appoints LFR to administer
certain of the affairs of each Fund for the period and on the terms set forth
in this Agreement. LFR hereby accepts such appointment and agrees during such
period to render the services herein described and to assume the obligations
set forth herein, for the compensation herein provided.
Section 2. LFR shall provide personal servicing of
shareholder accounts, which may include telephone and written conversations,
assistance in redemptions, exchanges, transfers and opening accounts as may be
required from time to time. LFR shall, in addition, provide such additional
administrative management services as it and each Fund may from time to time
agree.
Section 3. Xxx Financial Group Inc. shall oversee all
relationships between each Fund and its Custodian, Transfer Agent and any
accounting services agents, including the supervision of the performance of
each Fund's agreements with such parties.
Section 4. The accounts and records maintained by LFR shall
be the property of each Fund and shall be made available to each Fund within a
reasonable period of time, upon demand. LFR shall assist each Fund's
independent auditors, or upon approval of each Fund, or upon demand, any
regulatory body, in any requested review of each Fund's accounts and records
but shall be reimbursed for all expenses and employee time invested in any
such review outside of routine and normal periodic reviews. LFR shall supply
the necessary data for each Fund's completion of any necessary tax returns,
questionnaires, periodic reports to shareholders and such other reports and
information requests as each Fund and LFR shall agree upon from time to time.
Section 5. LFR may rely upon the advice of each Fund and
counsel to each Fund and upon statements of each Fund's accountants and other
persons believed by it in good faith to be expert in matters upon which they
are consulted, and LFR shall not be liable for any actions taken in good faith
upon such statements.
Section 6. LFR shall not be liable for any action taken in
good faith reliance upon any authorized Oral Instructions, any Written
Instructions and certified copy of any resolution of the Board of Directors
of each Fund or any other document reasonably believed by LFR to be genuine
and to have been executed or signed by the proper person or persons.
Section 7. Each Fund shall indemnify and hold LFR harmless
from any and all expenses, damages, claims, suits, liabilities, actions,
demands and losses whatsoever arising out of or in connection with any error,
omission, inaccuracy or other deficiency of any information provided to LFR
by each Fund, or the failure of each Fund to provide any information needed
by LFR knowledgeably to perform its functions hereunder. Also, each Fund
shall indemnify and hold harmless LFR from all claims and liabilities
(including reasonable expenses for legal counsel) incurred by or assessed
against LFR in connection with the performance of this Agreement, except such
as may arise from LFR's own negligent action, omission or willful misconduct;
provided, however, that before confessing any claim against it, LFR shall
give each Fund reasonable opportunity to defend against such claim in the
name of each Fund or LFR or both.
Section 8. As full compensation for the services performed
by LFR, each Fund shall pay LFR a fee at the annualized rate of up to .10 of
one percent (.10%) of the average daily net assets of the respective Fund.
This fee will be computed daily and be paid monthly within ten (10) business
days after the last six (6) days of each month. This fee shall be prorated for
any fraction of a month at the commencement or termination of this Agreement.
Section 9. Except as required by laws and regulations
governing investment companies, nothing contained in this Agreement is intended
to or shall require LFR, in any capacity hereunder, to perform any functions or
duties on any holiday or other day of special observance on which LFR is
closed. Functions or duties normally scheduled to be performed on such days
shall be performed on, and as of, the next business day on which both each
Fund and LFR are open.
Section 10. Either each Fund or LFR may give written notice
to the other of the termination of this Agreement, such termination to take
effect at the time specified in the notice, which time shall be not less than
sixty (60) days from the giving of such notice. Such termination shall be
without penalty.
Section 11. This Agreement may be executed in two or more
counterparts, each of which, when so executed, shall be deemed to be an
original, but such counterparts shall together constitute but one and the
same instrument.
Section 12. This Agreement shall extend to and shall be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by LFR without
the approval of each Fund by a resolution of its Board of Directors.
Section 13. This Agreement shall be governed by the laws
of the State of Hawaii.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers as of the day and year first above
written.
XXX FINANCIAL RECORDKEEPING, INC.
By: /s/ Xxxxxxxx X.X. Xxx
======================
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: /s/ Xxxxxx Xxxx Xxx
===================
Xxxxxx Xxxx Xxx, Secretary
FIRST PACIFIC MUTUAL FUND, INC.
By: /s/ Xxxxxxxx X.X. Xxx
=====================
Xxxxxxxx X.X. Xxx, President
[Corporate Seal]
Attest: /s/ Xxxxxx Xxxx Xxx
===================
Xxxxxx Xxxx Xxx, Secretary
