ADMINISTRATION AGREEMENT
This amended and restated Agreement dated February 10, 1998 amends and
restates the Agreement dated February 10, 1997 between XXXXX SERIES FUND, INC.,
a Minnesota 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 it duties and obligations hereunder in accordance with
industry practice.
1.04 Administrator agrees that it will perform all of the usual and
ordinary service as Transfer Administrator and Dividend Disbursing Administrator
and as agent for the various shareholder accounts including but not limited to:
issuing, transferring and canceling 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
paragraphs 1.04 and 1.05, the Fund agrees to pay Administrator a monthly fee
based upon the schedule set forth as Exhibit A.
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, blue sky notice filing fees, Securities and Exchange Commission
registration fees, costs related to insurance policies, legal counsel,
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postage, envelopes, checks, drafts, continuous forms, reports and statements,
telephone, telegraph, stationery, supplies, printing, Xxxxx filings, 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:
4.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Minnesota;
4.02 It is, or prior to the public offering of its shares, will become
an open-end diversified management investment company registered under the
Investment Company Act of 1940;
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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 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.
(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.
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(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 Administrotor 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 protec xxx and indemnified in acting upon any paper or 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 fascimile
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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 resuloution 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.
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 accounting
of such certificates, forms and devices.
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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 Administgrator 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 counsel 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 SERIES FUND, INC.
ATTEST: By: /s/ Xxxxxxx X. Xxxxx
------------------------------
/s/ Xxxx X. Xxxxxxxx President
---------------------------
Secretary
XXXXXXX X. XXXXX & COMPANY
ATTEST: By: /s/ Xxxxxxx X. Xxxxx
---------------------------
/s/ Xxxx X. Xxxxxxxx President
----------------------------
Asst. Secretary
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XXXXX SERIES FUND, INC.
Exhibit A
asset break points
--------------------------------
greater than less than % of NAV minimum
------------ ------------- -------- -------
0 25,000,000 0.225% 25,000
25,000,000 100,000,000 0.200%
100,000,000 500,000,000 0.175%
500,000,000 1,000,000,000 0.150%
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