BLUE SKY ADMINISTRATION AGREEMENT
| BLUE SKY ADMINISTRATION AGREEMENT |
THIS AGREEMENT is made as of April 10, 2015, between Walthausen Funds (the “Trust”), an Ohio business trust having its principal place of business at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and Ultimus Fund Solutions, LLC (“Ultimus”), a limited liability company organized under the laws of the State of Ohio and having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Trust is an open-end management investment company registered under the Investment Company Act of 1940, as amended (the “1940 Act”); and
WHEREAS, the Trust desires that Ultimus provide certain Blue Sky administrative services for each series of the Trust, listed on Schedule A attached hereto and made part of this Agreement, as such Schedule A may be amended from time to time (individually referred to herein as a “Fund” and collectively as the “Funds”); and
WHEREAS, Ultimus is willing to perform such services on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants herein set forth, the parties agree as follows:
1. RETENTION OF ULTIMUS
The Trust hereby retains Ultimus to act as the Blue Sky administrator of the Trust on behalf of each Fund listed on Schedule A and to furnish the Trust, on behalf of each Fund, with the services as set forth below (the “Services”). Ultimus hereby accepts such employment to perform such duties.
Ultimus shall provide the Trust the following Blue Sky administrative services:
| (a) | prepare and file all state reports, including: | |
| (1) | initial filings for new funds; | |
| (2) | annual filings of required documents, notices and sales reports; and | |
| (3) | amendments to filings, as necessary; | |
| (b) | monitor sales activity provided by the transfer agent and omnibus accounts; | |
| (c) | prepare and process state filing fees; | |
| (d) | track and monitor pending permits; and | |
| (e) | provide overall management and oversight of all blue sky services. | |
2. SUBCONTRACTING
Ultimus may, at its expense and, upon written approval by the Trust, subcontract with any entity or person concerning the provision of the services contemplated hereunder; provided, however, that Ultimus shall not be relieved of any of its obligations under this Agreement by the appointment of such
subcontractor and provided further, that Ultimus shall be responsible, to the extent provided in Section 7 hereof, for all acts of such subcontractor as if such acts were its own.
3. COMPENSATION OF ULTIMUS
The Trust, on behalf of each Fund, shall pay for the services to be provided by Ultimus under this Agreement in accordance with, and in the manner set forth in, Schedule B attached hereto, as such Schedule may be amended from time to time. Such compensation shall be calculated and accrued daily, and paid to Ultimus monthly. Payment to Ultimus under this Agreement shall begin on the first business day following the end of the calendar month, in which the Trust (for Trust-level expenses) or a Fund (for per Fund expenses) begins receiving the Services from Ultimus.
If this Agreement becomes effective subsequent to the first day of a month or terminates before the last day of a month, Ultimus’ compensation for that part of the month in which this Agreement is in effect shall be prorated in a manner consistent with the calculation of the fees as set forth above. Payment of Ultimus’ compensation for the preceding month shall be made promptly.
In the event that the SEC, Financial Industry Regulatory Authority, Inc., or any other regulator or self-regulatory authority adopts regulations and requirements relating to the payment of fees to service providers, the parties agree to negotiate in good faith amendments to this Agreement in order to comply with such requirements.
4. REIMBURSEMENT OF EXPENSES
In addition to paying Ultimus the fees described in Schedule B attached hereto, the Trust, on behalf of each Fund, agrees to reimburse Ultimus for its reasonable out-of-pocket expenses in providing services hereunder, including without limitation the following:
| (a) | All filing fees and related fees; |
| (b) | All direct telephone, telephone transmission and telecopy or other electronic transmission expenses incurred by Ultimus in communication with the Trust, the Trust’s investment adviser, custodian or independent registered public accounting firm, counsel for the Trust or a Fund, counsel for the Trust’s independent Trustees, dealers or others as required for Ultimus to perform the services to be provided hereunder; |
| (c) | All fees and expenses incurred in connection with any licensing of software, subscriptions to databases, custom programming or systems modifications required to provide any special reports or services requested by the Trust; |
| (d) | Any expenses Ultimus shall incur at the direction of an officer of the Trust thereunto duly authorized other than an employee or other affiliated person of Ultimus who may otherwise be named as an authorized representative of the Trust for certain purposes; |
| (e) | Any additional expenses reasonably incurred by Ultimus in the performance of its duties and obligations under this Agreement. |
In accordance with this Section 4, the Trust or its investment adviser shall promptly pay or reimburse Distributor for any expenses that are incurred by Distributor on behalf of the Trust.
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5. EFFECTIVE DATE
This Agreement shall become effective as of the date first written above with respect to each Fund in existence on such date (or, if a particular Fund is not in existence on that date, on the date such Fund commences operation) (the “Effective Date”).
6. TERM OF THIS AGREEMENT
The term of this Agreement shall continue in effect, unless earlier terminated by either party hereto as provided hereunder, for a period of two years from the date first written above (“Initial Term”). Thereafter, unless otherwise terminated as provided herein, this Agreement shall be renewed automatically for successive one-year periods (the “Renewal Term”).
This Agreement may be terminated by either party, with respect to any Fund, without penalty (i) by providing written notice of non-renewal to the other party at least 60 days prior to the end of the Initial Term or any subsequent Renewal Term; (ii) by mutual agreement of the parties; or (iii) for the reasons listed below.
During the Initial Term or a Renewal Term, a party (the “Terminating Party”) may terminate the Agreement against the other party (the “Non-Terminating Party”) with respect to any Fund for good cause. For purposes of this Agreement, “good cause” shall mean: (i) a material breach of this Agreement that has not been remedied within 30 days following written notice of such breach from the non-breaching party, (ii) a series of negligent acts or omissions or breaches of this Agreement which, in the aggregate, constitute in the reasonable judgment of the Trust, a serious failure to perform satisfactorily Ultimus’ obligations hereunder, provided that the Terminating Party provides written notice of the failures and gives the Non-Terminating Party 30 days to cure the failures; (iii) the Non-Terminating Party takes a position regarding compliance with Federal Securities Laws that the Terminating Party reasonably disagrees with, the Terminating Party provides 30 days’ prior written notice of such disagreement, and the parties fail to come to agreement on the position; (iv) a final, unappealable judicial, regulatory or administrative ruling or order in which the party to be terminated has been found guilty of criminal or unethical behavior in the conduct of its business; or (v) financial difficulties on the part of the party to be terminated which are evidenced by the authorization or commencement of, or involvement by way of pleading, answer, consent or acquiescence in, a voluntary or involuntary case under Title 11 of the United States Code, as from time to time is in effect, or any applicable law, other than said Title 11, of any jurisdiction relating to the liquidation or reorganization of debtors or the modification or alteration of the rights of creditors.
If a Trust or Fund demands services that are reasonably beyond the scope of this Agreement and any incorporated Addendum, and the parties cannot agree on appropriate terms relating to such out-of-scope Services, Ultimus may terminate this Agreement upon 60 days’ prior written notice.
Notwithstanding the foregoing, after such termination for so long as Ultimus, with the written consent of the Trust, in fact continues to perform any one or more of the services contemplated by this Agreement or any schedule or exhibit hereto, the provisions of this Agreement, including without limitation the provisions dealing with indemnification, shall continue in full force and effect. Compensation due Ultimus and unpaid by the Trust upon such termination shall be immediately due and payable upon and notwithstanding such termination. Following any such termination, Ultimus agrees to cooperate with any reasonable request of the Trust to effect a prompt transition to a new administrative service provider selected by the Trust. Ultimus shall be entitled to collect from the Trust, in addition to the compensation described in Schedule B, the amount of all of Ultimus’ cash disbursements reasonably made for services in connection with Ultimus’ activities in effecting such termination, including without
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limitation, the delivery to the Trust and/or its designees of the Trust’s property, records, instruments and documents.
Any termination other than termination under this Section 6 is deemed an “Early Termination”. A party that provides a notice of Early Termination is subject to an “Early Termination Fee” equal to the pro rated fee amount left in the then-current term as calculated in this Agreement and the Schedules thereto. However, the “Early Termination Fee” shall not apply to any Fund that is liquidated, replaces its investment adviser, which has net assets of less than $20 million, or is a new Fund that goes effective after the date of this Agreement. Finally, failure by either party to terminate this Agreement for a particular cause shall not constitute a waiver of its right to subsequently terminate this Agreement for the same or any other cause.
7. STANDARD OF CARE AND LIMITATION OF LIABILITY
The duties of Ultimus shall be confined to those expressly set forth herein, and no implied duties are assumed by or may be asserted against Ultimus hereunder. Ultimus shall use its best efforts in the performance of its duties hereunder and act in good faith in performing the services provided for under this Agreement. Ultimus shall be liable for any damages arising directly or indirectly out of Ultimus’ failure to perform its duties under this Agreement to the extent such damages arise directly or indirectly out of Ultimus’ willful misfeasance, bad faith, gross negligence in the performance of its duties, or reckless disregard of its obligations and duties hereunder. (As used in this Section 7, the term “Ultimus” shall include directors, officers, employees and other agents of Ultimus as well as Ultimus itself.)
Without limiting the generality of the foregoing or any other provision of this Agreement, (i) Ultimus shall not be liable for losses incurred beyond its reasonable control, provided that Ultimus has acted in accordance with the standard of care set forth above; (ii) Ultimus shall not be liable for the validity or invalidity or authority or lack thereof of any instruction, notice or other instrument that Ultimus reasonably believes to be genuine and to have been signed or presented by a duly authorized representative of the Trust or any Fund (other than an employee or other affiliated persons of Ultimus who may otherwise be named as an authorized representative of the Trust for certain purposes); and (iii) Ultimus shall not be liable for losses incurred while operating under its own initiative, in good faith and in accordance with the standard of care set forth herein, in performing its duties or the Services.
Ultimus may apply to the Trust at any time for instructions and may consult with its own counsel or with counsel for the Trust or the Trust’s independent trustees and with accountants and other experts with respect to any matter arising in connection with Ultimus’ duties hereunder, and Ultimus shall not be liable or accountable for any action taken or omitted by it in good faith in accordance with such instruction or with the reasonable opinion of such counsel, accountants or other experts qualified to render such opinion.
Notice is hereby given that the Trust’s Declaration of Trust is executed on behalf of the Board of Trustees of the Trust and not individually and that the obligations of this instrument are not binding upon any of the Trustees, officers or shareholders individually but are binding only upon the assets and property of the Trust (or if the matter relates only to a particular Fund, that Fund), and Ultimus shall look only to the assets of the Trust, or the particular Fund, for the satisfaction of such obligations. Without limiting the foregoing, to the extent that Ultimus is engaged to provide services hereunder attributable only to a particular Fund or group of Funds, Ultimus shall look only to the assets of that particular Fund or Funds, as applicable, to satisfy any liability arising in connection therewith, and no other Fund shall incur any liability or obligation in connection therewith.
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8. INDEMNIFICATION OF TRUST
Ultimus agrees to indemnify and hold harmless the Trust, and each person who has been, is or may hereafter be a Trustee or officer of the Trust from and against any and all actions, suits, claims, losses, damages, costs, charges, reasonable counsel fees and disbursements, payments, expenses and liabilities (including reasonable investigation expenses) (collectively, “Losses”) arising directly or indirectly out of the failure of Ultimus, or its directors, officers or employees, to exercise the standard of care set forth with respect to its services under this Agreement;.
The Trust or a Fund shall not be indemnified against or held harmless from any Losses arising directly or indirectly out of the Trust’s or the Fund’s own willful misfeasance, bad faith, or gross negligence. The provisions of this Section 8 shall survive termination of this Agreement.
9. INDEMNIFICATION OF ULTIMUS
The Trust, on behalf of each Fund, agrees to indemnify and hold harmless Ultimus from and against any and all Losses arising directly or indirectly out of any action or omission to act which Ultimus takes (i) at any request or on the direction of or in reliance on the reasonable advice of the Trust or any Fund, (ii) upon any instruction, notice or other instrument that Ultimus reasonably believes to be genuine and to have been signed or presented by a duly authorized representative of the Trust or any Fund (other than an employee or other affiliated person of Ultimus who may otherwise be named as an authorized representative of the Trust for certain purposes) or (iii) on its own initiative, in good faith and in accordance with the standard of care set forth herein, in connection with the performance of its duties or obligations hereunder; provided, however that the Trust shall have no obligation to indemnify or reimburse Ultimus under this Section 9 to the extent that Ultimus is entitled to reimbursement or indemnification for such Losses under any liability insurance policy described in this Agreement or otherwise.
Ultimus shall not be indemnified against or held harmless from any Losses arising directly or indirectly out of Ultimus’ own willful misfeasance, bad faith, gross negligence in the performance of its duties, or reckless disregard of its obligations and duties hereunder. (As used in this Section 9, the term “Ultimus” shall include directors, officers, employees and other agents of Ultimus as well as Ultimus itself.) The provisions of this Section 9 shall survive termination of this Agreement.
10. RECORD RETENTION AND CONFIDENTIALITY
Ultimus shall keep and maintain on behalf of the Trust all books and records which the Trust and Ultimus is, or may be, required to keep and maintain pursuant to any applicable statutes, rules and regulations, including without limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance of books and records in connection with the services to be provided hereunder. Ultimus further agrees that all such books and records shall be the property of the Trust and Fund and agrees to surrender such records upon request from it and to make such books and records available for inspection by the Trust or by the SEC at reasonable times and otherwise to keep confidential all books and records and other information relative to the Trust and its shareholders; except when requested to divulge such information by duly-constituted authorities or court process. If Ultimus is requested or required to disclose any confidential information supplied to it by the Trust, Ultimus shall unless prohibited by law, promptly notify the Trust of such request(s) so that the Trust may seek an appropriate protective order.
Nonpublic personal shareholder information shall remain the sole property of the Trust or Fund. Such information shall not be disclosed or used for any purpose except in connection with the performance of the duties and responsibilities described herein or as required or permitted by law. The provisions of this Section 10 shall survive the termination of this Agreement. The parties agree to comply
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with any and all regulations promulgated by the SEC or other applicable laws regarding the confidentiality of shareholder information.
11. FORCE MAJEURE
Ultimus assumes no responsibility hereunder, and shall not be liable, for any damage, loss of data, delay or any other loss whatsoever caused by events beyond its reasonable control, including acts of civil or military authority, national emergencies, fire, flood, catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply.
12. RIGHTS OF OWNERSHIP; RETURN OF RECORDS
All records and other data except computer programs and procedures developed to perform services required to be provided by Ultimus are the exclusive property of the Trust and all such records and data will be furnished to the Trust in appropriate form as soon as practicable after termination of this Agreement for any reason. Ultimus may at its option, at any time, and shall promptly upon the Trust’s demand, turn over to the Trust and cease to retain Ultimus’ files, records and documents created and maintained by Ultimus pursuant to this Agreement which are no longer needed by Ultimus in the performance of its services or for its legal protection. If not so turned over to the Trust, such documents and records will be (1) copied and made available to the Trust by Ultimus as soon as reasonably practical, and (2) retained by Ultimus for six years from December 31 of the year of creation. At the end of such six-year period, such records and documents will be turned over to the Trust unless the Trust authorizes in writing the destruction of such records and documents.
13. REPRESENTATIONS OF THE TRUST
The Trust certifies to Ultimus that: (1) as of the close of business on the Effective Date, each Fund that is in existence as of the Effective Date has authorized unlimited shares, and (2) this Agreement has been duly authorized by the Trust and, when executed and delivered by the Trust, will constitute a legal, valid and binding obligation of the Trust, enforceable against the Trust 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.
14. REPRESENTATIONS OF ULTIMUS
Ultimus represents and warrants that: (1) it will maintain a disaster recovery plan and procedures including provisions for emergency use of electronic data processing equipment, which is reasonable in light of the services to be provided, and it will, at no additional expense to the Trust, take reasonable steps to minimize service interruptions (Ultimus shall have no liability with respect to the loss of data or service interruptions caused by equipment failure, provided it maintains such plans and procedures), (2) this Agreement has been duly authorized by Ultimus and, when executed and delivered by Ultimus, will constitute a legal, valid and binding obligation of Ultimus, enforceable against Ultimus 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 has and will continue to have access to the necessary facilities, equipment and personnel to perform its duties and obligations under this Agreement. Ultimus further represents that it will inform the Trust immediately in the event there is a material adverse change in its financial condition.
15. INSURANCE
Ultimus agrees to maintain throughout the term of this Agreement professional liability insurance coverage of the type and amount reasonably customary for the services provided hereunder. Upon
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request, Ultimus shall furnish the Trust with pertinent information concerning the professional liability insurance coverage that it maintains. Such information shall include the identity of the insurance carrier(s), coverage levels and deductible amounts. Ultimus shall notify the Trust should any of its insurance coverage be canceled or reduced. Such notification shall include the date of change and the reasons therefor. Ultimus shall notify the Trust of any material claims against it with respect to services performed under this Agreement, whether or not they may be covered by insurance, and shall notify the Trust from time to time as may be appropriate of the total outstanding claims made by Ultimus under its insurance coverage.
16. INFORMATION TO BE FURNISHED BY THE TRUST
The Trust has furnished to Ultimus the following:
(a) Copies of the Agreement and Declaration of Trust (the “Declaration of Trust”) and of any amendments thereto, certified by the proper official of the state in which such document has been filed.
(b) Copies of the following documents:
(1) The Trust’s Bylaws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the approval of this Agreement, authorization of a specified officer of the Trust to execute and deliver this Agreement and authorization for specified officers of the Trust to instruct Ultimus thereunder.
(c) A list of all the officers of the Trust, together with specimen signatures of those officers who are authorized to instruct Ultimus in all matters.
(d) Copies of the Prospectus and Statement of Additional Information for each Fund.
17. PRESS RELEASE
Within the first 120 days of this Agreement’s Effective Date, the Trust agrees to review in good faith a press release (in any format or medium) announcing the Agreement with Ultimus; provided that Ultimus must obtain the Trust’s prior written consent prior to publication of such release, which consent may only be reasonably denied by the Trust.
18. AMENDMENT
This Agreement, or any term thereof, may be changed or waived only by written amendment signed by the party against whom enforcement of such change or waiver is sought.
For special cases, the parties hereto may amend such procedures set forth herein as may be appropriate or practical under the circumstances.
19. COMPLIANCE WITH LAW
Except for the obligations of Ultimus otherwise set forth herein, the Trust assumes full responsibility for the preparation, contents and distribution of each prospectus of the Trust as to compliance with all applicable requirements of the Securities Act of 1933, as amended (the “Securities Act”), the 1940 Act and any other laws, rules and regulations of governmental authorities having
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jurisdiction. The Trust represents and warrants that no shares of the Trust will be offered to the public until the Trust’s registration statement under the Securities Act and the 1940 Act has been declared or becomes effective.
20. NOTICES
Any notice provided hereunder shall be sufficiently given when sent by registered or certified mail to the party required to be served with such notice, at the following address: if to the Trust, at Walthausen Funds, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇; and if to Ultimus, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; or at such other address as such party may from time to time specify in writing to the other party pursuant to this Section 20.
21. ASSIGNMENT
This Agreement and the rights and duties hereunder shall not be assignable by either of the parties hereto except by the specific written consent of the other party; provided however, that the terms and provisions of this Agreement shall become automatically applicable to any investment company which is the successor to the Trust or Fund as a result of its reorganization, recapitalization or change of domicile, unless the contract has otherwise been terminated in accordance with Section 6 of this Agreement, and that Ultimus may, to the extent permitted by law, in its sole discretion and upon prior notice to the Trust, 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; provided that no sooner than 90 days after the assignment, the Trust can terminate the assigned Agreement, without penalty, for any reason. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns.
22. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of the State of Ohio and the applicable provisions of the 1940 Act. To the extent that the applicable laws of the State of Ohio, or any of the provisions herein, conflict with the applicable provisions of the 1940 Act, the latter shall control.
23. MULTIPLE ORIGINALS
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed all as of the day and year first above written.
| WALTHAUSEN FUNDS |
ULTIMUS FUND SOLUTIONS, LLC | ||
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇ | By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ |
| Name: | ▇▇▇▇ ▇▇▇▇▇ | Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ |
| Title: | Managing Director | Title: | Managing Director |
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| SCHEDULE A To the Blue Sky Administration Agreement Between Walthausen Funds and Ultimus Fund Solutions, LLC |
Series of Walthausen Funds (each a “Fund”)
Walthausen Select Value Fund
Walthausen Small Cap Value Fund
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| SCHEDULE B To the Blue Sky Administration Agreement Between Walthausen Funds and Ultimus Fund Solutions, LLC |
| FEES AND EXPENSES |
1. FEES:
Ultimus shall be entitled to receive a fee from the Trust on the first business day following the end of each month, or at such time(s) as Ultimus shall request and the parties hereto shall agree, a fee computed with respect to each Fund as follows:
Blue Sky Administration (per year):
$3,000 per Fund
2. OUT-OF-POCKET EXPENSES:
In addition to the above fees, each Fund will reimburse Ultimus for the following out-of-pocket expenses incurred on the Funds’ behalf, including but not limited to:
- The state filing fees incurred by each Fund.
- Postage, printing and other industry standard expenses.
- Any conversion costs not related to Ultimus professional services.
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