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AMENDED AND RESTATED
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of November 4, 1997, by and between First Omaha
Funds, Inc., a Nebraska corporation ("First Omaha Funds"), and Sunstone
Financial Group, Inc., a Wisconsin corporation (the "Administrator").
WHEREAS, First Omaha Funds is registered under the Investment Company Act
of 1940, as amended (the "Act"), as an open-end management investment company
and is authorized to issue shares of common stock (the "Shares") in separate
series with each such series representing the interests in a separate portfolio
of securities and other assets; and
WHEREAS, First Omaha Funds and the Administrator desire to enter into an
agreement pursuant to which the Administrator shall provide administration and
fund accounting services to such investment portfolios of First Omaha Funds as
are listed on Schedule A hereto and any additional investment portfolios First
Omaha Funds and Administrator may agree upon and include on Schedule A as such
Schedule may be amended from time to time (such investment portfolios and any
additional investment portfolios are individually referred to as a "Fund" and
collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Appointment
First Omaha Funds hereby appoints the Administrator as administrator and
fund accountant of the Funds for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to render the
services herein set forth, for the compensation herein provided.
2. Services as Administrator
(a) Subject to the direction and control of First Omaha Funds' Board of
Directors and utilizing information provided by First Omaha Funds and its
agents, the Administrator will: (1) provide office space, facilities,
equipment and personnel to carry out its services hereunder; (2) compile data
for and prepare with respect to the Funds timely Notices to the Securities and
Exchange Commission (the "Commission") required pursuant to Rule 24f-2 under
the Act and Semi-Annual Reports on Form N-SAR; (3) prepare for execution by
First Omaha Funds and file all federal income and excise tax returns and state
income tax returns (and such other required tax filings as may be agreed to by
the parties) other than those required to be made by First Omaha Funds'
custodian or transfer agent; (4) prepare compliance filings relating to the
registration of the securities of the Funds pursuant to state securities laws
with the advice of First Omaha Funds' counsel; (5) perform securities
valuations; (6) determine the income and expense accruals of the Funds; (7)
calculate daily net asset values and income factors of the Funds; (8) maintain
all general ledger accounts and related subledgers; (9) prepare financial
statements for the Annual and Semi-Annual Reports required pursuant to Section
30(d) under the Act; (10) review to the extent requested by First Omaha Funds
drafts of the Registration Statement for the Funds (on
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Form N-1A or any replacement therefor) and any amendments thereto, and proxy
materials; (11) prepare and monitor each Fund's expense accruals and cause all
appropriate expenses to be paid from Fund assets on proper authorization from
First Omaha Funds; (12) assist in the acquisition of First Omaha Funds'
fidelity bond required by the Act, monitor the amount of the bond and make the
necessary Commission filings related thereto; (13) from time to time as the
Administrator deems appropriate, check each Fund's compliance with the policies
and limitations relating to portfolio investments as set forth in the
Prospectus, Statement of Additional Information, and Articles of Incorporation
and monitor each Fund's status as a regulated investment company under
Subchapter M of the Internal Revenue Code, as amended (but this function shall
not relieve each Fund's investment adviser of its primary day-to-day
responsibility for assuring such compliance); (14) maintain, and/or coordinate
with the other service providers the maintenance of, the accounts, books and
other documents required pursuant to Rule 31a-1(a) and (b) under the Act; and
(15) generally assist in each Fund's administrative operations. In addition,
the Administrator will monitor First Omaha Funds' arrangements with respect to
services provided pursuant to any plan of distribution including reporting to
the Board of Directors with respect to the amounts paid or payable by the Funds
from time to time under the plan and the nature of the services provided, and
maintaining appropriate records in connection with its monitoring duties. The
duties of the Administrator shall be confined to those expressly set forth
herein, and no implied duties are assumed by or may be asserted against the
Administrator hereunder.
(b) The Directors of First Omaha Funds shall cause the officers and
employees of First Omaha Funds, the adviser, legal counsel, independent
accountants, custodian and transfer agent and other agents and representatives
of the Funds to cooperate with the Administrator and to provide the
Administrator, upon request, with such information, documents and advice
relating to the Funds as is within the possession or knowledge of such persons,
in order to enable the Administrator to perform its duties hereunder. In
connection with its duties hereunder, the Administrator shall be entitled to
rely, shall not be liable or responsible for any losses resulting from its
reliance, and shall be held harmless by the Funds when acting in reliance, upon
the instruction, advice, information or any documents relating to the Funds
provided to the Administrator by any of the aforementioned persons or their
representatives. Fees charged by such persons shall be an expense of the
Funds. The Administrator shall be entitled to rely on any document which it
reasonably believes to be genuine and to have been signed or presented by the
proper party. The Administrator shall not be held to have notice of any change
of authority of any officer, agent or employee of First Omaha Funds until
receipt of written notice thereof from First Omaha Funds.
(c) In compliance with the requirements of Rule 31a-3 under the Act, the
Administrator hereby agrees that all records which it maintains for the Funds
are the property of the Funds and further agrees to surrender promptly to each
Fund any of such records upon a Fund's request. The Administrator further
agrees to preserve for the periods prescribed by Rule 31a-2 under the Act the
records described in (a) above which are maintained by the Administrator for
the Fund.
(d) The Funds' Board of Directors retains primary oversight responsibility
for all compliance matters relating to the Funds including but not limited to
compliance with the Act, the Internal Revenue Code of 1986, as amended, and the
policies and limitations of each Fund relating to the portfolio investments as
set forth in the Prospectus and Statement of Additional Information.
(e) It is understood that in determining security valuations, the
Administrator may employ one or more pricing services approved by the Funds to
determine valuations of portfolio securities for purposes of calculating net
asset values of the Funds. The Administrator is authorized to rely on the
prices provided by such service(s) or by the Funds' investment adviser or other
authorized representative
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of the Funds, and shall not be liable for losses to the Funds or their
shareholders as a result of its reliance on the valuations provided by the
approved pricing service(s) or the representative.
3. Fees; Delegation; Expenses
(a) In consideration of the services rendered pursuant to this Agreement,
First Omaha Funds will pay the Administrator a fee, computed daily and payable
monthly, at the annual rate of 0.20% of the aggregate average net assets of the
Funds, subject to a minimum fee at the annual rate of $300,000 (plus $50,000
for each Fund in excess of four funds), plus out-of-pocket expenses. Fees shall
be paid at rate that would aggregate at least the applicable minimum fee.
Out-of-pocket expenses include, but are not limited to, travel, lodging and
meals in connection with travel on behalf of First Omaha Funds, security
pricing and corporate action services utilized by the Administrator,
programming and related expenses (previously incurred or to be incurred by
Administrator) in connection with providing electronic transmission of data
between the Administrator and the Funds' other service providers, brokers,
dealers and depositories, and photocopying and overnight delivery expenses.
The Administrator may waive all or a portion of its fee hereunder, from time to
time, in its discretion.
(b) For the purpose of determining fees payable to the Administrator, net
asset value shall be computed in accordance with the Funds' Prospectus and
resolutions of First Omaha Funds' Board of Directors. The fee for the period
from the day of the month this Agreement is effective until the end of that
month shall be pro-rated according to the proportion which such period bears to
the full monthly period. Upon any termination of this Agreement before the end
of any month, the fee for such part of a month shall be pro-rated according to
the proportion which such period bears to the full monthly period and shall be
payable upon the date of termination of this Agreement. Such fee as is
attributable to each Fund shall be a separate charge to such Fund and shall be
the several (and not joint or joint and several) obligation of each such Fund.
(c) The Administrator will bear all expenses in connection with the
performance of its services under this Agreement except as otherwise provided
herein. Costs and expenses to be incurred in the operation of the Funds,
including, but not limited to: taxes; interest; brokerage fees and
commissions, if any; salaries, fees and expenses of officers and Directors;
Commission fees and state Blue Sky fees; advisory and administration fees;
charges of custodians, transfer agents and dividend disbursing agents;
insurance premiums; outside auditing and legal expenses; costs of organization
and maintenance of corporate existence; typesetting, proofing, printing and
mailing of prospectuses, statements of additional information, supplements,
notices and proxy materials for regulatory purposes and for distribution to
current shareholders; typesetting, proofing, printing, mailing and other costs
of shareholder reports; expenses incidental to holding meetings of shareholders
and Directors; and any extraordinary expenses; will be borne by the Funds.
4. Proprietary and Confidential Information
The Administrator agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of First Omaha Funds all records
and other information relative to the Funds and prior, present or potential
shareholders of the Funds (and clients of said shareholders), and not to use
such records and information for any purpose other than the performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by First Omaha Funds, which approval shall not be
unreasonably withheld and may not be withheld where the Administrator may be
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exposed to civil or criminal proceedings for failure to comply, when requested
to divulge such information by duly constituted authorities, or when so
requested by First Omaha Funds.
5. Limitation of Liability
The Administrator shall not be liable for any error of judgment or mistake
of law or for any loss suffered by First Omaha Funds in connection with the
matters to which this Agreement relates, except for a loss resulting from
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or from reckless disregard by it of its obligations
and duties under this Agreement. Notwithstanding any other provision of this
Agreement, and so long as the Administrator acts in good faith and without
gross negligence, First Omaha Funds assumes full responsibility and shall
indemnify and hold harmless the Administrator from and against any and all
actions, suits, claims, demands, losses, expenses and liabilities whether with
or without basis in fact or law (including the costs of investigating or
defending any alleged actions, suits, claims, demands, losses, expenses and
liabilities) of any and every nature which the Administrator may sustain or
incur or which may be asserted against the Administrator by any person arising
directly or indirectly out of any action taken or omitted to be taken by it in
performing the services hereunder, or in reliance upon the instruction, advice,
information or documents provided to the Administrator by any party described
in Section 2(b). (As used in this Section 5 the term "Administrator" shall
include past and present directors, officers, employees and other corporate
agents of the Administrator as well as the corporation itself). The indemnity
and defense provisions set forth herein shall indefinitely survive the
termination of this Agreement.
6. Term
(a) This Agreement shall become effective with respect to each Fund listed
on Schedule A hereof as of the date set forth in Schedule A and, with respect
to each Fund not in existence on that date, on the date an amendment to
Schedule A to this Agreement relating to that Fund is executed. Unless sooner
terminated as provided herein, this Agreement shall continue in effect with
respect to each Fund until April 10, 1999 (the "Initial Term"). Thereafter, if
not terminated, this Agreement shall continue automatically in effect as to
each Fund for successive annual periods unless terminated as provided herein.
(b) This Agreement may be terminated with respect to any one or more
particular Funds without penalty after the Initial Term by either party upon
not less than ninety (90) days written notice to the other party. The terms of
this Agreement shall not be waived, altered, modified, amended or supplemented
in any manner whatsoever except by a written instrument signed by the
Administrator and First Omaha Funds.
7. Non-Exclusivity
The services of the Administrator rendered hereunder are not deemed to be
exclusive. The Administrator may render such services and any other services
to others, including other investment companies. First Omaha Funds recognizes
that from time to time directors, officers and employees of the Administrator
may serve as directors, trustees, officers and employees of other corporations
or trusts (including other investment companies), that such other entities may
include the name of the
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Administrator as part of their name and that the Administrator or its
affiliates may enter into administration, distribution, fund accounting or
other agreements with other corporations or trusts.
8. Governing Law; Invalidity
This Agreement shall be governed by Wisconsin law. To the extent that the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the Act, the latter shall control,
and nothing herein shall be construed in a manner inconsistent with the Act or
any rule or order of the Commission thereunder. Any provision of this
Agreement which may be determined by competent authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9. Notices
Any notice required or permitted to be given by either party to the other
shall be in writing and shall be deemed to have been given when sent by
registered or certified mail, postage prepaid, return receipt requested, as
follows: Notice to the Administrator shall be sent to Sunstone Financial
Group, Inc., 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX, 00000,
Attention: Xxxxxx X. Xxxxxxx, and notice to First Omaha Funds shall be sent to
First Omaha Funds, Inc., Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx,
00000-0000, Attention: Xxxx X. Xxxxx; with a copy to Cline, Williams, Xxxxxx,
Xxxxxxx & Xxxxxxxxx, 0000 XxxxXxxx Xxxx Xxxxxxxx, Xxxxxxx, Xxxxxxxx,
00000-0000, Attention: Xxxxxx X. Xxxx.
10. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original agreement but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer as of the day and year first above
written.
FIRST OMAHA FUNDS, INC.
("First Omaha Funds")
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President
SUNSTONE FINANCIAL GROUP, INC.
("Administrator")
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President
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SCHEDULE A
TO THE
AMENDED AND RESTATED
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
BY AND BETWEEN
FIRST OMAHA FUNDS, INC.
AND
SUNSTONE FINANCIAL GROUP, INC.
Name of Fund Effective Date
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U.S. Government Obligations Fund April 10, 1995
Equity Fund April 10, 1995
Short/Intermediate Fixed Income Fund April 10, 1995
Fixed Income Fund April 10, 1995
Small Cap Value Fund December 5, 1995
Balanced Fund June 4, 1996
Growth Fund March 29, 1998
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