ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of April 10, 1995, 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 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.
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. First Omaha
Funds shall also pay Administrator $40,074.61 for organizational services
provided on behalf of the Funds. 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
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 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
----------------------
Xxxxxx X. Xxxxxxx
President
SCHEDULE A
TO THE
ADMINISTRATION AND FUND ACCOUNTING AGREEMENT
BY AND BETWEEN
FIRST OMAHA FUNDS, INC.
AND
SUNSTONE FINANCIAL GROUP, INC.
Name of Fund Effective Date
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
Dated: April 10, 1995
Revised: December 5, 1995 and June 4, 1996
FIRST OMAHA FUNDS, INC. SUNSTONE FINANCIAL GROUP, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxx, President Xxxxxx X. Xxxxxxx, President
