EX-99.23(h)(2)
FUND ACCOUNTING AND
ADMINISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of March 1, 2006, by and between The
Xxx Xxxxxxx Trust, a Delaware business trust ("Fund"), and Xxxxxxx Fund
Services, a division of Xxxxxxx National Asset Management, LLC, a limited
liability company organized under the laws of the State of Michigan ("JFS").
WHEREAS, the Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended ("1940 Act");
WHEREAS, the Fund is authorized by its Declaration of Trust to issue separate
series of shares of beneficial interest of the Trust representing separate
investment portfolios, and the Fund has authorized the issuance of shares in one
portfolio, the Growth Fund ("Portfolio"); and
WHEREAS, the Fund desires to retain JFS to provide fund accounting and
administration services to the Fund, on behalf of the Portfolio, and JFS wishes
to furnish such services.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
parties hereto agree as follows:
1. APPOINTMENT
The Fund hereby appoints JFS to serve as fund accountant and administrator to
the Fund in accordance with the terms and conditions set forth in this
Agreement, and JFS hereby accepts such appointment, and agrees to perform the
duties and services set forth herein and in EXHIBIT A of this Agreement, as such
Exhibit may be amended, in writing, as agreed to by the Fund and JFS (such
duties and services are collectively referred to herein as the "Services"), in
consideration of the compensation provided for herein.
2. CHANGES IN ACCOUNTING PROCEDURES
Any changes by the Fund that affect accounting practices and procedures under
this Agreement shall only become effective upon written receipt by JFS.
3. CHANGES IN EQUIPMENT, SYSTEMS, SERVICE, ETC.
JFS reserves the right to make changes from time to time, as it deems advisable,
relating to its services, systems, programs, rules, operating schedules and
equipment, so long as such changes do not adversely affect the services provided
to the Fund under this Agreement.
4. COMPENSATION
JFS shall be compensated for providing the Services in accordance with the "Fee
Schedule," as set forth in a separate Fee Schedule attached hereto as Exhibit B,
and as mutually agreed upon and amended from time to time.
Except as hereinafter set forth, compensation shall be accrued daily and paid
monthly, with a copy of all fees paid to JFS supplied to the Fund (invoice).
Upon termination of this Agreement before the end of any month, the compensation
for such part of a month shall be prorated according to the proportion which
such period bears to the full monthly period and shall be payable upon the
effective date of termination of this Agreement.
The Fund shall notify JFS in writing within thirty (30) calendar days following
receipt of each invoice if the Fund disputes any amounts in good faith. The Fund
shall settle such disputed amounts within ten (10) calendar days of the day on
which the parties agree to the amount to be reimbursed.
5. PERFORMANCE OF SERVICES; LIMITATION OF LIABILITY
A. JFS shall exercise reasonable care in the performance of the Services.
JFS shall not be liable for any error of judgment or mistake of law or
for any loss suffered by the Fund in connection with matters to which
this Agreement relates, including losses resulting from mechanical
breakdowns or the failure of communication or power supplies beyond
JFS' control, except a loss arising out of or relating to JFS' refusal
or failure to comply with the terms of this Agreement or from bad
faith, negligence, or willful misconduct on its part in the
performance of the Services.
B. Notwithstanding any other provision of this Agreement and so long as
JFS has not committed bad faith, negligence or willful misconduct in
the performance of the Services, the Fund shall indemnify and hold
harmless JFS from and against any and all claims, demands, losses,
expenses, and liabilities (whether with or without basis in fact or
law) of any and every nature (including reasonable attorneys' fees)
that JFS may sustain or incur or that may be asserted against JFS by
any person arising out of any action taken or omitted to be taken by
it in performing the Services (i) in accordance with the performance
standards recited in Section 5.A, or (ii) in reliance upon any written
or oral instruction provided to JFS by any duly authorized officer of
the Fund, such duly authorized officer to be included in a list of
authorized officers furnished to JFS and amended from time to time in
writing by the Fund.
C. Without limiting the generality of the foregoing and so long as JFS
has not committed bad faith, negligence or willful misconduct in the
performance of the Services, the Fund shall further indemnify JFS
against, and hold JFS harmless from, any loss, damage or expense,
including reasonable attorneys' fees and other costs and expenses of a
defense against any claim or liability, arising from any one or more
of the following:
a. Errors in records or instructions, explanations, information,
specifications or documentation of any kind, as the case may be,
supplied to JFS by or on behalf of the Fund;
b. Action or inaction taken or omitted to be taken by JFS pursuant
to written instructions of the Fund;
c. Any action taken or omitted to be taken by JFS in good faith in
accordance with the advice or opinion of counsel for JFS or the
Fund;
d. Any improper use by the Fund's adviser or subadviser of any
valuations or computations supplied by JFS pursuant to this
Agreement;
e. The method of valuation of the Fund's portfolio securities; or
f. Any valuations of securities, maturity or yield provided by the
Fund.
D. JFS shall indemnify and hold the Fund harmless from and against any
and all claims, demands, losses, expenses, and liabilities (whether
with or without basis in fact or law) of any and every nature
(including reasonable attorneys' fees) that the Fund may sustain or
incur or that may be asserted against the Fund by any person arising
out of any action taken or omitted to be taken by JFS as a result of
JFS' refusal or failure to comply with the terms of this Agreement,
its bad faith, negligence or from willful misconduct.
E. JFS represents that it has in place, and covenants to maintain in
place during the term of this Agreement, a reasonable back-up,
business continuity and disaster recovery plan. In the event of a
mechanical breakdown or failure of communication or power supplies due
to events beyond its control, JFS shall take all reasonable steps to
minimize service interruptions for any period that such interruption
continues. JFS shall have no liability with respect to the loss of
data or service interruptions caused by equipment failure provided
such loss or interruption is not caused by JFS's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties
or obligations under this Agreement, including this Section 5.
In connection with providing the Services, JFS reserves the right to
reprocess and correct administrative errors at its own expense in a
manner acceptable to the Fund and without otherwise limiting any
remedy available to the Fund hereunder.
F. Any person seeking indemnification under this Agreement (the
"Indemnified Party") from or against the assertion of any claim by a
third party will give prompt notice to the party from whom such
indemnification is sought (the "Indemnifying Party"); provided,
however, that failure to give prompt notice will not relieve the
Indemnifying Party of any liability hereunder (except when the
Indemnifying Party suffers actual material prejudice in the defense of
the claim or increased liability for damages by reason of such
failure). The Indemnifying Party and the Indemnified Party will
cooperate in the defense or prosecution of any third party claims. The
Indemnifying Party shall assume and will have control over the defense
and/or settlement of the claim; provided that (i) defense counsel
retained by the Indemnifying Party shall be reasonably satisfactory to
the Indemnified Party, and (ii) subject to such control, the
Indemnified Party may participate in such defense with counsel of its
choosing at its own expense. Neither the Indemnifying Party nor the
Indemnified Party will enter into any settlement of any such claim or
legal proceeding relating thereto without the prior written consent of
the other party, such consent not to be unreasonably withheld or
delayed.
G. The indemnification obligations set out in this Section 5 shall
survive termination of this Agreement.
6. NO AGENCY RELATIONSHIP
Except as otherwise provided herein, nothing herein shall be deemed to
authorize or empower JFS to act as agent for the Fund, or to conduct business in
the name of, or for the account of, the Fund.
7. RECORDS
JFS shall keep records relating to the Services, in the form and manner,
and for such period as it may deem advisable and is agreeable to the Fund but
not inconsistent with the rules and regulations of appropriate government
authorities, in particular, Section 31 of the 1940 Act, and the rules
thereunder. JFS agrees that all such records prepared or maintained by JFS
relating to the Services are the property of the Fund and will be preserved,
maintained, and made available in accordance with such applicable sections and
rules of the 1940 Act and will be promptly surrendered to the Fund on and in
accordance with its request. Upon the reasonable request of the Fund, copies of
any such records in the form reasonably requested (if such form differs from the
form in which JFS has maintained the same, the Fund shall pay any expenses
associated with transferring the same to such form), shall be provided by JFS to
the Fund.
8. DATA NECESSARY TO PERFORM SERVICES
The Fund shall furnish to JFS the data and provide such documentation as is
reasonably necessary to perform the Services at such times and in such form as
mutually agreed upon. If JFS is also acting in another capacity for the Fund,
nothing herein shall be deemed to relieve JFS of any of its obligations in such
capacity.
9. INSTRUCTION NECESSARY TO PERFORM SERVICES
JFS may apply to an officer of the Fund for written instructions with
respect to any matter arising in connection with JFS' performance hereunder for
the Fund, and JFS shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with such instructions. Such application
proposed to be taken or omitted to be taken by JFS with respect to its duties or
obligations under this Agreement and the date on and/or after which such action
shall be taken, and JFS shall not be liable for any action taken or omitted to
be taken in accordance with a proposal included in any such application on or
after the date specified therein unless, prior to taking or omitting to take any
such action, JFS has received written instructions in response to such
application specifying the action to be taken or omitted.
10. PROPRIETARY AND CONFIDENTIAL INFORMATION
JFS agrees to treat confidentially and as proprietary information of the
Fund all records and other information relative to the Fund and prior, present,
or potential shareholders of the Fund, 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 the Fund, which approval shall not be unreasonably withheld and may not be
withheld where JFS may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Fund.
JFS acknowledges that the Fund's non-public information, including but not
limited to portfolio holdings information ("Non-public Information") is the
confidential property of the Fund. JFS agrees that during the term of this
Agreement, it shall maintain policies reasonably designed to prohibit the
dissemination or use of the Fund's Non-public Information by JFS or its
employees, affiliates, subsidiaries, parent, officers, directors, advisors and
contractors ("Representatives"), except as provided in this Agreement. In any
event, JFS and its Representatives shall not engage in securities transactions
based on Non-public Information or knowledge of the Fund's trading position or
plans.
Dissemination of Non-public Information may occur only: (i) in connection
with the provision of the Services to the Fund (including for data processing,
statistical and risk analysis purposes); (ii) at the direction of the Fund
pursuant to instructions as provided in this Agreement; or (iii) as requested or
required in any regulatory proceeding, investigation, audit, examination,
subpoena, civil investigative demand or other similar process, or required by
operation of law or regulation. Any disclosure by JFS pursuant to (iii), above,
shall be preceded to the extent reasonably practicable by reasonable notice to
the Fund; provided, however, no such notice is required where the disclosure is
made to any internal or external auditor of JFS or any authorized services
provider or to any examiner or regulator of JFS or any authorized services
provider. Upon written request, JFS agrees to promptly return or destroy, as
directed, any Non-public Information as required to satisfy any regulatory or
other legal obligation applicable to JFS, which retained information shall
continue to be subject to the terms of this Section without regard to any
termination of this Agreement.
11. REPRESENTATIONS OF THE PARTIES
(a) The Fund represents and warrants to JFS that this Agreement has been
duly authorized by the Fund and, when executed and delivered by the
Fund, will constitute a legal, valid and binding obligation of the
Fund, enforceable against the Fund in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting the rights and remedies of
creditors and secured parties.
(b) JFS represents and warrants to the Fund that: (1) it has adopted and
implemented procedures intended to safeguard from loss or damage the
books and records JFS maintains on behalf of the Fund pursuant to the
terms of this Agreement; (2) this Agreement has been duly authorized
by JFS and, when executed and delivered by JFS, will constitute a
legal, valid and binding obligation of JFS, enforceable against JFS in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties;
and (3) it will promptly disclose any material regulatory, civil or
criminal investigation or proceeding during the term of this
Agreement.
12. INSURANCE
JFS shall furnish the Fund with information related to, JFS' errors and
omissions insurance policy annually. Such information shall include the identity
of its insurance carrier(s), coverage levels, and deductible amounts.
13. RULE 38A-1 POLICIES AND PROCEDURES
JFS shall supply the Fund with copies of its policies and procedures
("Policies and Procedures"), including, where applicable, those Policies and
Procedures adopted pursuant to Rule 38a-1 under the 1940 Act, the Securities Act
of 1933, as amended, the Securities Exchange of 1934, as amended, the Investment
Advisers Act of 1940, as amended, the Xxxxxxxx-Xxxxx Act of 2002, as amended,
Title V of the Xxxxx-Xxxxx-Xxxxxx Act (relating to privacy regulations), the
Bank Secrecy Act as it applies to investment company operations (anti-money
laundering), and the rules adopted under the foregoing statutes by the SEC
and/or the U.S. Department of the Treasury (collectively, "Federal Securities
Laws"). Further, JFS shall notify the Fund's Chief Compliance Officer of any
material changes that have been made to JFS's Policies and Procedures.
JFS agrees to cooperate with the Fund in the annual review of JFS's
Policies and Procedures, as conducted by the Fund's Chief Compliance Officer, to
determine the adequacy of JFS' Policies and Procedures and the effectiveness of
their implementation ("Annual Review"). JFS also agrees to cooperate with the
Fund in any interim reviews of JFS's Policies and Procedures to determine their
adequacy and the effectiveness of their implementation in response to
significant compliance events, changes in business arrangements, and/or
regulatory developments ("Interim Review"). Such Interim Review may include,
without limitation, furnishing such certifications, subcertifications, and
documentation within the scope of JFS's functions, as well as, such
certifications, subcertifications, and documentation that the Fund's Chief
Compliance Officer shall reasonably request from time to time, indicating the
implementation of any changes to JFS's Policies and Procedures satisfactory to
both the Fund's Chief Compliance Officer and JFS.
JFS will provide the Fund with ongoing, direct, and prompt access to JFS's
compliance personnel, and shall cooperate with the Fund's Chief Compliance
Officer in order to provide assistance to the Fund in carrying out its
obligations under Rule 38a-1.
JFS will promptly notify the Fund in the event that a "Material Compliance
Matter," as defined in Rule 38a-1 under the 1940 Act, occurs with respect to
JFS's Policies and Procedures and will cooperate with the Fund in providing the
Fund with periodic and special reports in the event any Material Compliance
Matter occurs.
JFS (and anyone acting under the direction of JFS) will refrain from,
directly or indirectly, taking any action to coerce, manipulate, mislead, or
fraudulently influence the Fund's Chief Compliance Officer in the performance of
her or his responsibilities under Rule 38a-1.
14. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof and will
continue in effect for a period of two (2) years. Thereafter, this Agreement
shall continue and remain in effect from year to year. This Agreement may be
terminated by either party at any time upon 60 days' prior written notice to the
other party or such shorter period as is mutually agreed upon by the parties.
15. NOTICES
Notices of any kind to be given by either party to the other party shall be
in writing and shall be deemed to have been given on the date delivered
personally or by courier service, or three (3) days after sent by registered or
certified mail, postage prepaid, return receipt requested, or on the date sent
and confirmed received by facsimile transmission to the other party's address
set forth below:
Notice to JFS shall be sent to:
President
Xxxxxxx Fund Services
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
And notice to the Fund shall be sent to:
Attn:
Xxx Xxxxxxx Growth Fund
Xxx Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
16. ASSIGNMENT
This Agreement may not be assigned by either party without the prior
written consent of the other party.
17. DUTIES IN THE EVENT OF TERMINATION
Upon termination of this Agreement with respect to the Fund, JFS shall, at
the Fund's reasonable prior request and expense, deliver the relevant books,
records, correspondence and other data (or copies thereof) of the Fund that are
in the possession or under control of JFS, to the Fund or any other person
designated by the Fund. If such form differs from the form in which JFS has
maintained the same, the Fund shall pay any expenses associated with
transferring the same to such form. JFS will further cooperate in the transfer
of the duties and responsibilities established hereunder to such successor as
the Fund may appoint, including the provision of assistance from JFS' personnel
in the establishment of books, records and other data by such successor.
18. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State
of Michigan without regard to conflicts of law principles. However, nothing
herein shall be construed in a manner inconsistent with the 1940 Act or any rule
or regulation promulgated by the SEC thereunder.
19. AMENDMENT
This Agreement may not be amended or modified in any manner except by
mutual written consent of the parties.
20. SEVERABILITY
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
21. NO WAIVER
Each and every right granted to JFS hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or equity,
shall be cumulative and may be exercised from time to time. No failure on the
part of JFS to exercise, and no delay in exercising, any right will operate as a
waiver thereof, nor will any single or partial exercise by JFS of any right
preclude any other or future exercise thereof or the exercise of any other
right.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer or one or more counterparts as of the day
and year first written above. If executed in counterpart, such counterparts
together shall constitute only one instrument.
THE XXX XXXXXXX TRUST XXXXXXX FUND SERVICES, A DIVISION OF
XXXXXXX NATIONAL ASSET MANAGEMENT, LLC
By: /S/ XXXXX X. XXXXXXX By: /S/ XXXX X. XXXXX
----------------------------- -----------------
Attest: /S/ XXXXX XXXXXXXXXXX Attest: /S/ XXXXXXX X. XXXXXXXXX
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EXHIBIT A
JFS will provide the following Services to the Portfolio of the Fund:
I. ACCOUNTING SERVICES TO BE PROVIDED BY JFS TO THE PORTFOLIO OF THE FUND
(a) Maintenance of Accounting Books and Records.
With respect to the Services provided by JFS under this Agreement, JFS
shall maintain and keep current the accounts, books, records and other
documents relating to the Fund's financial and portfolio transactions
as and for the periods that may be required by the rules and
regulations of the SEC adopted under Section 31(a) of the 1940 Act.
JFS shall cause the subject records of the Fund to be maintained and
preserved pursuant to the requirements of the 1940 Act.
(b) Daily Accounting Services.
JFS shall perform the following accounting services with the frequency
provided in the prospectus for the Portfolio:
(i) Calculate the net asset value per share utilizing prices obtained
from the sources described in subsection 1(b)(ii) below;
(ii) Obtain security prices from independent pricing services, or if
such quotes are unavailable, then obtain such prices from the
Portfolio's investment adviser or its designee as approved by the
Fund's Board of Trustees (hereafter referred to as "Trustees");
(iii) Verify and reconcile with the Portfolio's custodian all daily
trade activity on settlement date;
(iv) Compute, as appropriate, and in consultation with the Fund's
auditors and tax advisers, the Portfolio's net income and capital
gains, dividend payables, dividend factors, yields, and weighted
average portfolio maturity; PROVIDED, HOWEVER that JFS shall not
be responsible for tax compliance;
(v) Distribute net asset values and yields to NASDAQ or such other
exchange or reporting entity as is approved by the Trustees;
(vi) Determine unrealized appreciation and depreciation on securities
held by the Portfolio;
(vii) Amortize premiums and accrete discounts on securities purchased
at a price other than face value, if requested by the Fund;
(viii) Update accounting system to reflect rate changes, as received
from the Portfolio's investment adviser or designee, on variable
interest rate instruments;
(ix) Post Portfolio transactions to appropriate categories;
(x) Accrue expenses and monitor the established expense budget of the
Portfolio according to instructions received from the Fund's
treasurer or other authorized representative (including officers
of the Fund's investment adviser) and make such adjustments over
such periods as JFS deems necessary to reflect over-accruals or
under-accruals of estimated expenses or income;
(xi) Determine the outstanding receivables and payables for all (1)
security trades, (2) portfolio share transactions, and (3) income
and expense accounts in accordance with the budgets provided by
the Fund or its investment adviser; and
(xii) Provide accounting reports in connection with the Fund's regular
annual audit and other routine audits and examinations by
regulatory agencies.
(c) Additional Periodic Accounting Services.
JFS shall also perform the following accounting services for the
Portfolio in accordance with such deadlines as the parties mutually
agree upon:
(i) Provide information periodically (as may reasonably be requested
by the Fund or the Portfolio's investment adviser or
sub-adviser(s)) and as required to complete the following
financial statements for the Portfolio: (1) Statement of Assets
and Liabilities; (2) Statement of Operations; (3) Statement of
Changes in Net Assets; (4) Security Purchases and Sales Journals;
and (5) Portfolio Holdings Reports.
(ii) Provide accounting information for the following:
(1) federal and state income tax returns and federal excise tax
returns, which will be prepared by the Fund's auditor or tax
advisers;
(2) the Fund's semi-annual reports on Form N-SAR;
(3) the Fund's annual, semi-annual and quarterly (if any)
shareholder reports;
(4) registration statements on Form N-1A and other filings
relating to the registration of shares;
(5) JFS' monitoring of the Fund's portfolio composition with
respect to its status as a regulated investment company
under Subchapter M of the Internal Revenue Code, as amended;
(6) annual audit by the Fund's auditors; and
(7) routine examinations performed by the SEC.
(iii) Produce no less frequently than quarterly such compliance
reports as may be agreed upon by the parties relating to the
services provided by JFS under this Agreement for the Fund's
investment adviser and the Trustees and provide information to
the Fund's investment adviser and other appropriate persons with
respect to questions of Fund compliance.
(d) Additional Reports and Services.
(i) Upon reasonable notice and as mutually agreed upon, JFS may
provide additional reports upon the request of the Fund or its
investment adviser, or sub-adviser(s), which may result in
additional charges, the amount of which shall be agreed upon
between the parties prior to the provision of such report.
(ii) Upon reasonable notice and as mutually agreed upon, JFS may
provide such other similar services with respect to the
Portfolio, which may result in an additional charge, the amount
of which shall be agreed upon between the parties prior to the
provision of such service.
II. ADMINISTRATIVE SERVICES TO BE PROVIDED BY JFS TO THE PORTFOLIO OF THE FUND
JFS shall assure that it maintains the necessary office space, equipment,
personnel and facilities for handling the affairs of the Fund as they relate to
the services provided under this Agreement (including the schedules to this
Agreement). Further, JFS shall:
(a) record expenses and administer all disbursements with respect to the
Portfolio, and, as appropriate, compute the Portfolio's respective
yields, total returns, expense ratios and portfolio turnover rates;
(b) prepare such reports, notices and other documents as may be necessary
or desirable to make notice filings relating to the Fund's shares with
federal and state securities authorities to enable the Fund to make a
continuous offering of its shares; provided that JFS shall not be
required to provide an opinion regarding the valid issuance of the
shares if such an opinion of counsel is required;
(c) coordinate the mailing of prospectuses, prospectus supplements, proxy
statements, and other reports to Fund shareholders as the Fund may
request upon reasonable notice;
(d) arrange for a location at which to hold shareholders meetings and for
the tabulation of shareholder votes for such meetings;
(e) coordinate the filing of the Fund's fidelity bond, as approved by the
Fund's Board of Trustees, in accordance with the requirements of the
1940 Act;
(f) on a post-trade basis, perform a secondary check of portfolio holdings
to assist the Fund in ensuring portfolio adherence with the
requirements and limitations set forth by the 1940 Act, the Fund's
prospectus and SAI, and other applicable regulatory requirements.
a. in this regard, the Fund shall promptly provide JFS with updated
copies of such documents (including, but not limited to,
restricted issuer or country lists) as they may be amended from
time to time;
b. as JFS' compliance monitoring is on a post-trade basis, the
portfolio managers and their employers must monitor compliance
with prospectus, 1940 Act, and other regulatory or investment
limitations on a primary, pre-trade basis;
c. in order for JFS to adequately fulfill its undertaking pursuant
to this provision of the Agreement, the portfolio manager(s) will
need to promptly provide JFS with information on a periodic
basis, as may be requested by JFS from time to time; and
d. except as otherwise provided in this Agreement, JFS' undertaking
in this provision shall not include the following types of
monitoring-related activities: (i) calculating the amount
necessary to cover senior securities as defined under the 1940
Act and the SEC Staff's interpretation thereof; (ii) selecting
liquid assets to cover senior securities; (iii) ensuring that the
cash management instructions provided by the portfolio manager(s)
is consistent with applicable regulatory requirements; (iv)
issuing cash management instructions on behalf of portfolio
manager(s); (v) compliance with any applicable repurchase
agreement procedures; or (vi) compliance with Rules 17a-7, 17e-1
and 10f-3 of the 1940 Act.
(g) coordinate the compilation and mailing of materials for quarterly and
special meetings of the Trustees (in this regard, the Fund shall
provide JFS with notice of regular meetings at least six (6) weeks
before such meeting and as soon as practicable before any special
meeting of the Trustees);
(h) cooperate with, and take all reasonable actions in the performance of
its duties under this Agreement to ensure that all necessary
information is made available to the Fund's independent public
accountants in connection with the preparation of any audit or report
requested by the Fund, including the provision of a conference room at
JFS' location if necessary (in this regard, the Fund's independent
accountants shall provide JFS with reasonable notice of any such audit
so that JFS will be able to promptly respond to such information
requests without undue disruption of its business); and
(i) prepare and file with the SEC periodic financial reports on Form
N-SAR, N-CSR, N-Q and filings required pursuant to Rules 17g-1 and
24f-2 under the 1940 Act. File Form N-PX containing the information
provided by the Fund or its advisers. JFS will not make Form 13F or
Schedule 13G filings. Coordinate and assist the Fund with such other
filings as may be required by law or regulation as the parties may
agree.
ADDITIONAL ADMINISTRATIVE SERVICES. Upon reasonable notice and as mutually
agreed upon, JFS may provide additional administrative services upon the request
of the Fund or its investment adviser or sub-adviser, which may result in
additional charges, the amount of which shall be agreed upon between the parties
prior to the provision of such report.
EXHIBIT B
FEE SCHEDULE
THE XXX XXXXXXX TRUST
PORTFOLIO: GROWTH FUND FEES
Fund Accounting:
Annual Fee $48,000
Fund Administration:
Annual Fee 0.05% of net assets
The fees consist of a fixed annual fee plus an asset-based fee. The fee includes
any multi-class accounting and pricing services.
