Exhibit 24(b)(9)
ADMINISTRATION AGREEMENT
between
BRAZOS MUTUAL FUNDS
and
▇▇▇▇▇▇ SQUARE MANAGEMENT CORPORATION
THIS ADMINISTRATION AGREEMENT is made as of the ___ day of
____________, 1996, between Brazos Mutual Funds, a Delaware business trust (the
"Trust"), having its principal place of business in Wilmington, Delaware, and
▇▇▇▇▇▇ Square Management Corporation, a Delaware corporation ("▇▇▇▇▇▇ Square"),
having its principal place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company and
offers for public sale one or more series of shares of beneficial interest
("Series");
WHEREAS, each share of a Series represents an undivided interest in the
assets, subject to the liabilities, allocated to that Series;
WHEREAS, at the present time, the Trust has established two Series,
each consisting of one class of shares, and the Trust may establish additional
Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of ▇▇▇▇▇▇
Square and to have ▇▇▇▇▇▇ Square provide certain administrative services; and
▇▇▇▇▇▇ Square is willing to furnish such services to the Trust with respect to
each Series listed on Schedule A to this Agreement (each a "Fund" and
collectively the "Funds") on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. Appointment. The Trust hereby appoints and employs ▇▇▇▇▇▇ Square as
agent to perform the services described in this Agreement for the Trust such
appointment to take effect at the close of business on the date first written
above. ▇▇▇▇▇▇ Square shall act under such appointment and perform the
obligations thereof upon the terms and conditions hereinafter set forth and in
accordance with the principles of principal and agent enunciated by applicable
common law.
2. Documents. The Trust has furnished ▇▇▇▇▇▇ Square copies of the
Trust's Agreement and Declaration of Trust, By-Laws, Advisory Agreement,
Distribution Agreement, Accounting Services Agreement, Custody Agreement,
Transfer Agency Agreement, Shareholder Servicing Plan and Agreement, most recent
Registration Statement on Form N-1A, current Prospectus and Statement of
Additional Information (the "SAI") and all forms relating to the plan, program
or service offered by the Trust. The Trust shall furnish promptly to ▇▇▇▇▇▇
Square a copy of any amendment or supplement to the above-mentioned documents.
The Trust shall furnish promptly to ▇▇▇▇▇▇ Square any additional documents
necessary for it to perform its functions hereunder or such other documents as
▇▇▇▇▇▇ Square shall request.
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3. Administrative Services. Subject to the direction and control of the
Board of Trustees of the Trust (the "Trustees") and to the extent not otherwise
the responsibility of, or provided by, the Trust or other supply agents of the
Trust, ▇▇▇▇▇▇ Square shall provide the following administrative services to the
Trust:
a. Supply:
(i) office facilities (which may be in ▇▇▇▇▇▇ Square's or its
affiliates' own offices);
(ii) non-investment related statistical and research data;
(iii) executive and administrative services;
(iv) stationery and office supplies at Trust expense; and
(v) corporate secretarial services, such as the preparation
and distribution of materials at Trust expense for meetings of
the Board of Trustee or shareholders;
b. Prepare, file, coordinate printing and mailing of, if
necessary, reports to shareholders of the Trust and reports
with the Securities and Exchange Commission (the "SEC") and
state securities authorities, including preliminary and
definitive proxy materials, post-effective amendments to the
Trust's registration statement, Rule 24f-2 Notices, Form N-SAR
filings and Prospectus supplements;
c. Monitor each Fund's compliance with the investment
restrictions and limitations imposed by the 1940 Act, state
securities laws and applicable regulations thereunder, the
fundamental and non-fundamental investment policies and
limitations set forth in the Prospectus and SAI, and the
investment restrictions and limitations necessary for each
Fund to qualify as a regulated investment company under
Subchapter M of the Internal Revenue Code of 1986, as amended
(the "Code"), or any successor statute;
d. Monitor sales of each Fund's shares and ensure that such
shares are properly registered, as required, with the SEC and
applicable state authorities;
e. Recommend dividend declarations to the Board, prepare and
distribute to appropriate parties notices announcing the
declaration of dividends and other distributions to
shareholders;
f. Prepare financial statements and footnotes and other
financial information with such frequency and in such format
as are required to be included in reports to shareholders, tax
authorities, the Trust's Board of Trustees, performance
reporting companies, Trust auditors and the SEC;
g. Review sales literature and file such with regulatory
authorities, as necessary;
h. Provide information regarding material developments in
state securities regulation;
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i. Provide personnel to serve as officers of the Trust if so
elected by the Board of Trustees and attend Board meetings to
present materials for Board review.
j. Review the impact of current day's activity on a per share
basis, review the change in market value of securities, and
review yields for reasonableness.
k. Timely follow-up and resolution of all open issues with all
applicable internal units; and
l. Maintain awareness of all applicable regulatory and
operational service issues and recommended dispositions.
4. Expenses of the Trust. The Trust agrees that it will pay all its
expenses, other than those expressly stated to be payable by ▇▇▇▇▇▇ Square
hereunder, which expenses payable by the Trust shall include, without
limitation:
a. Fees payable for investment advisory services provided by
the Trust's Investment Adviser;
b. Fees payable for services provided by the Trust's
independent public accountants;
c. Fees payable for accounting services;
d. Fees payable for transfer agency services;
e. Fees payable for custodial services;
f. The cost of obtaining quotations for calculating the value
of the assets of each Fund;
g. Taxes levied against the Trust or any Fund;
h. Brokerage fees, ▇▇▇▇-ups and commissions in connection with
the purchase and sale of portfolio securities;
i. Costs, including the interest expense of borrowing money;
j. Costs and/or fees incident to holding meetings of the Board
of Trustees and shareholders, preparation (including
typesetting, printing and ▇▇▇▇▇ filing charges) and mailing of
prospectuses, reports and proxy materials to the existing
shareholders of the Trust, filing of reports with regulatory
bodies, maintenance of the Trust's
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corporate existence, and registration of Trust shares with
federal and state securities authorities;
k. Legal fees and expenses;
l. Costs of printing share certificates representing shares of
the Trust;
m. Fees payable to, and expenses of, members of the Board of
Trustees who are not "interested persons" of the Trust;
n. Out-of-pocket expenses incurred in connection with the
provision of administration, accounting, custodial and
transfer agency services;
o. Premiums payable on the fidelity bond required by Section
17(g) of the 1940 Act, and premiums payable on any other
insurance policies related to the Trust's business and the
investment activities of its Funds;
p. Rule 12b-1 fees, if any;
q. Shareholder service fees, if any;
r. Fees, voluntary assessments and other expenses incurred in
connection with the Trust's membership in investment company
organizations; and
s. Such non-recurring expenses as may arise, including
expenses in connection with legal actions, suits or
proceedings to which the Trust is a party, and the legal
obligation which the Trust may have to indemnify its Trustees
and officers with respect thereto.
Except as otherwise agreed by ▇▇▇▇▇▇ Square, ▇▇▇▇▇▇ Square will not
reimburse the Trust for (or have deducted from its fees payable under this
Agreement) any expenses in excess of any expense limitations imposed by state
securities commissions having jurisdiction over the sale of Fund shares.
5. Recordkeeping and Other Information. ▇▇▇▇▇▇ Square shall create and
maintain all necessary records in accordance with all applicable laws, rules and
regulations, including, but not limited to, records required by Section 31(a) of
the 1940 Act and the rules thereunder, as the same may be amended from time to
time, pertaining to the various functions (described above) performed by it and
not otherwise created and maintained by another party pursuant to contract with
the Trust. All records shall be the property of the Trust at all times and shall
be available for inspection and use by the Trust. Where applicable, such records
shall be maintained by ▇▇▇▇▇▇ Square for the periods and in the places required
by Rule 31a-2 under the 1940 Act.
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6. Audit, Inspection and Visitation. ▇▇▇▇▇▇ Square shall make available
during regular business hours all records and other data created and maintained
pursuant to the foregoing provisions of this Agreement for reasonable audit and
inspection by the Trust, any person retained by the Trust or any regulatory
agency having authority over the Trust.
7. Appointment of Agents. ▇▇▇▇▇▇ Square may at any time or times, in
its discretion, appoint (and may at any time remove) other parties as its agent
to carry out such of the provisions of this Agreement as ▇▇▇▇▇▇ Square may from
time to time direct; provided, however, that the appointment of any such agent
shall not relieve ▇▇▇▇▇▇ Square of any of its responsibilities or liabilities
hereunder.
8. Right to Receive Advice.
a. Advice of Trust. If ▇▇▇▇▇▇ Square shall be in doubt as to
any action to be taken or omitted by it, it may request, and
shall receive, from the Trust directions or advice, including
oral or written instructions where appropriate.
b. Advice of Counsel. If ▇▇▇▇▇▇ Square shall be in doubt as to
any question of law involved in any action to be taken or
omitted by ▇▇▇▇▇▇ Square, it may request advice at the Trust's
expense from counsel of its own choosing (who in the first
instance shall be the regularly retained counsel for the Trust
but, as to non-routine matters, may be the regularly retained
counsel of ▇▇▇▇▇▇ Square, at the option of ▇▇▇▇▇▇ Square).
c. Conflicting Advice. In case of conflict between oral and
written instructions received by ▇▇▇▇▇▇ Square, ▇▇▇▇▇▇ Square
shall be entitled to rely on and follow written instructions
alone. In case of conflict between advice received under (a)
and (b) above, ▇▇▇▇▇▇ Square shall be entitled to rely on and
follow advice obtained in accordance with (b) above.
d. Protection of ▇▇▇▇▇▇ Square. ▇▇▇▇▇▇ Square shall be
protected in any action or inaction which it takes in reliance
on any directions, advice or oral or written Instructions
received pursuant to subsections (a) or (b) of this Section
which ▇▇▇▇▇▇ Square, after receipt of any such directions,
advice or oral or written instructions, in good faith believes
to be consistent with such directions, advice or oral or
written instructions, as the case may be. However, nothing in
this Section shall be construed as imposing upon ▇▇▇▇▇▇ Square
any obligation (i) to seek such direction, advice or oral or
written instructions, or (ii) to act in accordance with such
directions, advice or oral or written instructions when
received, unless, under the terms of another provision of this
Agreement, the same is a condition to ▇▇▇▇▇▇ Square's properly
taking or omitting to take such action.
9. Compliance with Governmental Rules and Regulations. Except as
otherwise provided herein, the Trust assumes full responsibility for ensuring
that the Trust complies with all applicable requirements of the Securities Act
of 1933, as amended (the "1933 Act"), the Securities Exchange Act of 1934, as
amended (the "1934 Act"), the 1940 Act, the Commodity Exchange Act and any
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laws, rules and regulations of governmental authorities having jurisdiction over
the Trust and its operations.
10. Compensation. For the performance of its obligations under this
Agreement, each Fund shall pay ▇▇▇▇▇▇ Square an administration fee with respect
to each Fund in accordance with the fee arrangements described in Schedule A
attached hereto, as such schedule may be amended from time to time.
11. Use of ▇▇▇▇▇▇ Square's Name. The Trust shall not use the name of
▇▇▇▇▇▇ Square or any of its affiliates in any Prospectus, SAI, sales literature
or other material relating to the Trust in a manner not approved prior thereto
in writing by ▇▇▇▇▇▇ Square; provided, however, that ▇▇▇▇▇▇ Square shall approve
all uses of its and its affiliates' names that merely refer in accurate terms to
their appointments hereunder or that are required by the SEC or a state
securities commission; and further provided, that in no event shall such
approval be unreasonably withheld.
12. Use of Trust's Name. Neither ▇▇▇▇▇▇ Square nor any of its
affiliates shall use the name of the Trust or material relating to the Trust on
any forms (including any checks, bank drafts or bank statements) for other than
internal use in a manner not approved prior thereto by the Trust; provided,
however, that the Trust shall approve all uses of its name that merely refer in
accurate terms to the appointment of ▇▇▇▇▇▇ Square hereunder or that are
required by the SEC or a state securities commission; and further provided, that
in no event shall such approval be unreasonably withheld.
13. Liability of ▇▇▇▇▇▇ Square or Affiliates. Neither ▇▇▇▇▇▇ Square nor
any officer, director, or employee of ▇▇▇▇▇▇ Square, nor any person who controls
▇▇▇▇▇▇ Square within the meaning of Section 15 of the 1933 Act or Section 20(a)
of the 1934 Act (collectively, "▇▇▇▇▇▇ Square Affiliates") shall be liable for
any error of judgment or mistake of law or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates, except to the
extent of a loss resulting from willful misfeasance, bad faith, negligence or
reckless disregard of such person's obligations and duties under this Agreement.
Any person, even though also an officer, director, employee or agent of ▇▇▇▇▇▇
Square or any of its affiliates who may be or become an officer or director of
the Trust, shall be deemed, when rendering services to the Trust as such officer
or acting on any business of the Trust in such capacity (other than services or
business in connection with ▇▇▇▇▇▇ Square's duties under this Agreement), to be
rendering such services to or acting solely for the Trust and not as an officer,
director, employee or agent or one under the control or direction of ▇▇▇▇▇▇
Square or any of its affiliates, even though paid by one of those entities.
14. Indemnification.
a. The Trust agrees to indemnify and hold harmless ▇▇▇▇▇▇
Square and any person who is a ▇▇▇▇▇▇ Square Affiliate from
all taxes, charges, expenses, assessments, claims and
liabilities including, without limitation, liabilities arising
under the 1933 Act, the 1934 Act or the 1940 Act and any
applicable state or foreign securities laws, and amendments
thereto (the "Securities Laws"), and expenses, including
without limitation reasonable attorneys' fees and
disbursements, arising directly or indirectly from any action
or omission to act which ▇▇▇▇▇▇ Square takes (i) at the
request of or on the direction of or in reliance on the advice
of the Trust or
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(ii) upon oral or written instructions. Neither ▇▇▇▇▇▇ Square
nor any ▇▇▇▇▇▇ Square Affiliate shall be indemnified against
any liability (or any expenses incident to such liability)
arising out of ▇▇▇▇▇▇ Square's or any such affiliate's own
willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
b. Rodney Square agrees to indemnify and hold harmless the
Trust from all taxes, charges, expenses, assessments, claims
and liabilities arising from ▇▇▇▇▇▇ Square's obligations
pursuant to this Agreement (including, without limitation,
liabilities arising under the Securities Laws) and expenses,
including (without limitation) reasonable attorneys' fees and
disbursements arising directly or indirectly out of ▇▇▇▇▇▇
Square's or its directors', officers', employees', agents' and
representatives own willful misfeasance, bad faith, negligence
or reckless disregard of its duties and obligations under this
Agreement.
c. In order that the indemnification provisions contained in
this Section 14 shall apply, upon the assertion of a claim for
which either party may be required to indemnify the other, the
party seeking indemnification shall promptly notify the other
party of such assertion, and shall keep the other party
advised with respect to all developments concerning such
claim. The party who may be required to indemnify shall have
the option to participate with the party seeking
indemnification in the defense of such claim. The party
seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may
be required to indemnify it except with the other party's
prior written consent.
15. Responsibility of ▇▇▇▇▇▇ Square. In the performance of its duties
hereunder, ▇▇▇▇▇▇ Square shall be obligated to exercise due care and diligence
and to act in good faith and to use its best efforts within reasonable limits in
performing services provided for under this Agreement. ▇▇▇▇▇▇ Square shall be
under no duty to take any action on behalf of the Trust except as specifically
set forth or as may be specifically agreed to by ▇▇▇▇▇▇ Square in writing.
Without limiting the generality of the foregoing or of any other provision of
this Agreement, ▇▇▇▇▇▇ Square in connection with its duties under this Agreement
shall not be under any duty or obligation to inquire into and shall not be
liable for or in respect of (i) the validity or invalidity or authority or lack
thereof of any oral or written instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which ▇▇▇▇▇▇
Square reasonably believes to be genuine; or (ii) delays or errors or loss of
data occurring by reason of circumstances beyond ▇▇▇▇▇▇ Square's control,
including acts of civil or military authority, national emergencies, fire, flood
or catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply, in which circumstances ▇▇▇▇▇▇
Square shall take reasonable actions to minimize loss of data therefore.
16. Duration, Termination, etc. The provisions of this Agreement may
not be changed, waived, discharged or terminated orally, but only by written
instrument that shall make specific reference to this Agreement and that shall
be signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.
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This Agreement shall become effective as of the day and year first
written above, and unless terminated as therein provided, shall continue in
force for twelve (12) months from the date of its execution and thereafter from
year to year, provided continuance after the initial twelve (12) month period is
approved at least annually by a vote of the Trustees of the Trust. This
Agreement may at any time be terminated on ninety (90) days' advance written
notice given to ▇▇▇▇▇▇ Square or by ▇▇▇▇▇▇ Square on six (6) months' advance
written notice given to the Trust; provided, however, that this Agreement may be
terminated immediately at any time for cause, either by the Trust or by ▇▇▇▇▇▇
Square, in the event that such cause shall have remained unremedied for sixty
(60) days or more after receipt of written specification of such cause. Any such
termination shall not affect the rights and obligations of the parties under
Sections 13 and 14 hereof.
Upon the termination of this Agreement, the Trust shall pay to ▇▇▇▇▇▇
Square such compensation as may be payable for the period prior to the effective
date of such termination, including reimbursement for any out-of-pocket expenses
reasonably incurred by ▇▇▇▇▇▇ Square to such date. In the event that the Trust
designates a successor to any of ▇▇▇▇▇▇ Square's obligations hereunder, ▇▇▇▇▇▇
Square shall, at the expense and direction of the Trust, transfer to such
successor all relevant books, records and other data established or maintained
by ▇▇▇▇▇▇ Square under the foregoing provisions.
17. Amendments. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
▇▇▇▇▇▇ Square and the Trust shall regularly consult with each other
regarding ▇▇▇▇▇▇ Square's performance of its obligations and its compensation
under the foregoing provisions. In connection therewith, the Trust shall submit
to ▇▇▇▇▇▇ Square, at a reasonable time in advance of filing with the SEC, copies
of any amended or supplemented registration statement of the Trust (including
exhibits) under the 1933 Act and the 1940 Act, and, a reasonable time in advance
of their proposed use, copies of any amended or supplemented forms relating to
any plan, program or service offered by the Trust. Any change in such materials
that would require any change in ▇▇▇▇▇▇ Square's obligations under the foregoing
provisions shall be subject to the burdened party's approval, which shall not be
unreasonably withheld. In the event that a change in such documents or in the
procedures contained therein increases the cost to ▇▇▇▇▇▇ Square of performing
its obligations hereunder by more than an insubstantial amount, ▇▇▇▇▇▇ Square
shall be entitled to receive reasonable compensation therefore.
18. Notice. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party to this
Agreement at its principal place of business.
19. Severability. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
20. Governing Law. To the extent that state law has not been preempted
by the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement shall be
administered, construed and enforced according to the laws (without regard,
however, to laws as to conflicts of law) of the State of Delaware.
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21. Shareholder Liability. ▇▇▇▇▇▇ Square is hereby expressly put on
notice of the limitation of shareholder liability as set forth in the Agreement
and Declaration of Trust of the Trust and agree that obligations assumed by the
Trust under this Agreement shall be limited in all cases to the Trust and its
assets, and if the liability relates to one or more Funds, the obligations
hereunder shall be limited to the respective assets of such Fund or Funds.
▇▇▇▇▇▇ Square further agrees that it shall not seek satisfaction of any such
obligations from the shareholders or any individual shareholder of the Funds,
nor from the Trustees or any individual Trustee of the Trust.
22. Arbitration. [TO BE ADDED]
23. Miscellaneous. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof. The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed in two
counterparts, each of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first written above.
BRAZOS MUTUAL FUNDS
By: _________________________________
Name, Title
▇▇▇▇▇▇ SQUARE MANAGEMENT
CORPORATION
By: _________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
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ADMINISTRATION AGREEMENT
SCHEDULE A
BRAZOS MUTUAL FUNDS
ANNUAL FEE
For services provided to Brazos Mutual Funds (the "Trust") pursuant to this
Administration Agreement, ▇▇▇▇▇▇ Square Management Corporation ("▇▇▇▇▇▇ Square")
shall receive an annual fee equal to the greater of:
A. A minimum annual fee of $32,500 for each of the first two single-class
portfolios of the Trust, plus $15,000 for any such additional portfolio, or
second or additional class of a portfolio; or
B. an asset-based fee, calculated with reference to the average daily net
assets of the Trust, on a Trust-wide basis, according to the following
schedule:
0.15% of the first $50 million in assets; plus
0.10% of assets between $50 million and $200 million; plus
0.7% of assets in excess of $200 million.
The foregoing fee shall be payable monthly, as soon as practicable after the
last day of each month, based on the Trust's combined average daily net assets
as determined at the close of business on each business day throughout the
month.
OUT-OF-POCKET EXPENSES
In addition to the foregoing fee, ▇▇▇▇▇▇ Square's reasonable out-of-pocket
expenses incurred in the performance of its responsibilities pursuant to this
Administration Agreement shall either be paid and advanced directly by the
Trust, or promptly reimbursed, upon billing, by the Trust.
SEVERANCE AND CONVERSION FEE
Upon the termination, or notice of termination, of the attached Administration
Agreement within the initial twelve (12) month term by the Trust or the Trust's
Board of Trustees, the parties hereby acknowledge and agree that the Trust shall
pay to ▇▇▇▇▇▇ Square, as a fee in consideration of severance and cooperation
toward conversion to a new service provider, and not as a penalty, a sum with
respect to each of the Trust's portfolios equal to the above-stipulated annual
fee as per the schedule, plus out-of-pocket expenses incurred in connection with
cooperating with conversion to a new service provider.
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TRANSFER AGENCY AGREEMENT
between
BRAZOS MUTUAL FUNDS
and
▇▇▇▇▇▇ SQUARE MANAGEMENT CORPORATION
THIS TRANSFER AGENCY AGREEMENT is made as of the ___ day of
_______________, 1996, between Brazos Mutual Funds, a Delaware business trust
(the "Trust"), having its principal place of business in Dallas, Texas, and
▇▇▇▇▇▇ Square Management Corporation, a Delaware corporation ("▇▇▇▇▇▇ Square"),
having its principal place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company and
offers for public sale distinct series of shares of beneficial interest
("Series");
WHEREAS, each share of a Series represents an undivided interest in the
assets, subject to the liabilities, allocated to that Series and each Series has
a separate investment objective and policies;
WHEREAS, at the present time, the Trust has established two Series, each
consisting of one class of shares, and the Trust may establish additional Series
and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of ▇▇▇▇▇▇
Square to serve as the Trust's transfer agent and ▇▇▇▇▇▇ Square is willing to
furnish such services to the Trust with respect to each of the Series listed on
Schedule A to this Agreement (each a "Portfolio" or collectively the
"Portfolios") on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties agree as follows:
1. Appointments. The Trust hereby appoints ▇▇▇▇▇▇ Square as transfer agent,
registrar and dividend disbursing agent for the shares of beneficial
interest (the "Shares") in the Trust and as servicing agent in connection
with the disbursements of dividends and distributions and as
shareholders' servicing agent for the Trust, each such appointment to
take effect at the close of business on the day and year first written
above, and ▇▇▇▇▇▇ Square shall act as such and perform its obligations
thereof upon the terms and conditions hereafter set forth and in
accordance with the principles of principal and agent enunciated by
applicable common law.
2. Documents. The Trust has furnished ▇▇▇▇▇▇ Square with copies of the
Trust's Agreement and Declaration of Trust, By-Laws, Management
Agreement, Custodian Agreement, Distribution Agreement, Accounting
Services Agreement, Shareholder Servicing Agreements, most recent
Registration Statement on Form N-1A, current Prospectus and Statement of
Additional Information (the "SAI"), all forms relating to any plan,
program or service offered by the Trust and a certified copy of the
resolution of its Board of Trustees (the "Trustees") approving ▇▇▇▇▇▇
Square's appointment hereunder and identifying and containing the
signatures of the Trust's officers authorized to issue Oral Instructions
and to sign Written Instructions, as hereinafter defined, on
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behalf of the Portfolio and to execute stock certificates representing
Shares. Subject to the provisions of Section 21 hereof, the Trust shall
furnish promptly to ▇▇▇▇▇▇ Square a copy of any amendment or supplement
to the above-listed documents. The Trust shall furnish to ▇▇▇▇▇▇ Square
any additional documents necessary for it to perform its functions
hereunder.
3. Definitions.
(a) Authorized Person. As used in this Agreement, the term "Authorized
Person" means any officer of the Trust and any other person, whether or
not any such person is an officer or employee of the Trust, duly
authorized by the Trustees of the Trust to give Oral and Written
Instructions on behalf of the Portfolio and certified by the Secretary or
Assistant Secretary of the Trust or any amendment thereto as may be
received by ▇▇▇▇▇▇ Square from time to time.
(b) Oral Instructions. As used in this Agreement, the term "Oral
Instructions" means oral instructions actually received by ▇▇▇▇▇▇ Square
from an Authorized Person or from a person reasonably believed by ▇▇▇▇▇▇
Square to be an Authorized Person. The Trust agrees to deliver to ▇▇▇▇▇▇
Square, at the time and in the manner specified in Section 4(b) of this
Agreement, Written Instructions confirming Oral Instructions.
(c) Written Instructions. As used in this Agreement, the term "Written
Instructions" means written instructions delivered by hand, mail, tested
telegram, cable, telex or facsimile sending device, and received by
▇▇▇▇▇▇ Square and signed by an Authorized Person.
4. Instructions Consistent with Agreement and Declaration of Trust, etc.
(a) Unless otherwise provided in this Agreement, ▇▇▇▇▇▇ Square shall act
only upon Oral or Written Instructions. Although ▇▇▇▇▇▇ Square may know
of the provisions of the Agreement and Declaration of Trust and By-Laws
of the Trust, ▇▇▇▇▇▇ Square may assume that any Oral or Written
Instructions received hereunder are not in any way inconsistent with any
provisions of such Agreement and Declaration of Trust or By-Laws or any
vote, resolution or proceeding of the shareholders, or of the Trustees,
or of any committee thereof.
(b) ▇▇▇▇▇▇ Square shall be entitled to rely upon any Oral Instructions
and any Written Instructions actually received by ▇▇▇▇▇▇ Square pursuant
to this Agreement. The Trust agrees to forward to ▇▇▇▇▇▇ Square Written
Instructions confirming Oral Instructions in such manner that the Written
Instructions are received by ▇▇▇▇▇▇ Square by the close of business of
the same day that such Oral Instructions are given to ▇▇▇▇▇▇ Square. The
Trust agrees that the fact that such confirming Written Instructions are
not received by ▇▇▇▇▇▇ Square shall in no way affect the validity of the
transactions or enforceability of the transactions authorized by such
Oral Instructions. The Trust agrees that ▇▇▇▇▇▇ Square shall incur no
liability to the Trust in acting upon Oral Instructions given to ▇▇▇▇▇▇
Square hereunder concerning such transactions, provided such instructions
reasonably appear to have been received from an Authorized Person.
5. Transactions Not Requiring Instructions. In the absence of contrary
Written Instructions, ▇▇▇▇▇▇ Square is authorized to take the following
actions:
(a) Issuance of Shares. Upon receipt of a purchase order from the
Distributor, as defined in the Distribution Agreement between the Trust
and ▇▇▇▇▇▇ Square Distributors, Inc. or a
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prospective shareholder for the purchase of Shares and sufficient
information to enable ▇▇▇▇▇▇ Square to establish a shareholder account or
to issue Shares to an existing shareholder account, and after
confirmation of receipt or crediting of Federal funds for such order from
▇▇▇▇▇▇ Square's designated bank, ▇▇▇▇▇▇ Square shall issue and credit the
account of the investor or other record holder with Shares in the manner
described in the Prospectus. ▇▇▇▇▇▇ Square shall deposit all checks
received from prospective shareholders into an account on behalf of the
Trust, and shall promptly transfer all Federal funds received from such
checks to the Custodian, as defined in the Custodian Agreement between
the Trust and Wilmington Trust Company. (References herein to "Custodian"
shall also be construed to refer to a "Sub-Custodian" if such appointment
has been made.) If so directed by the Distributor, the confirmation
supplied to the shareholder to ▇▇▇▇ such issuance will be accompanied by
a Prospectus.
(b) Transfer of Shares; Uncertificated Securities. Where a shareholder
does not hold a certificate representing the number of Shares in its
account and does provide ▇▇▇▇▇▇ Square with instructions for the transfer
of such Shares which include a signature guaranteed by a commercial bank,
trust company or member firm of a national securities exchange and such
other appropriate documentation to permit a transfer, then ▇▇▇▇▇▇ Square
shall register such Shares and shall deliver them pursuant to
instructions received from the transferor, pursuant to the rules and
regulations of the Securities and Exchange Commission (the "SEC"), and
the laws of the State of Delaware relating to the transfer of shares of
beneficial interest.
(c) Stock Certificates. If at any time the Portfolio issues stock
certificates, the following provisions will apply:
(i) The Trust will supply ▇▇▇▇▇▇ Square with a sufficient supply
of stock certificates representing Shares, in the form approved from time
to time by the Trustees of the Trust, and, from time to time, shall
replenish such supply upon request of ▇▇▇▇▇▇ Square. Such stock
certificates shall be properly signed, manually or by facsimile
signature, by the duly authorized officers of the Trust, and shall bear
the corporate seal or facsimile thereof of the Trust, and notwithstanding
the death, resignation or removal of any officer of the Trust, such
executed certificates bearing the manual or facsimile signature of such
officer shall remain valid and may be issued to shareholders until ▇▇▇▇▇▇
Square is otherwise directed by Written Instructions.
(ii) In the case of the loss or destruction of any certificate
representing Shares, no new certificate shall be issued in lieu thereof,
unless there shall first have been furnished an appropriate bond of
indemnity issued by the surety company approved by ▇▇▇▇▇▇ Square.
(iii) Upon receipt of signed stock certificates, which shall be in
proper form for transfer, and upon cancellation or destruction thereof,
▇▇▇▇▇▇ Square shall countersign, register and issue new certificates for
the same number of Shares and shall deliver them pursuant to instructions
received from the transferor, the rules and regulations of the SEC, and
the laws of the State of Delaware relating to the transfer of shares of
beneficial interest.
(iv) Upon receipt of the stock certificates, which shall be in
proper form for transfer, together with the shareholder's instructions to
hold such stock certificates for safekeeping, ▇▇▇▇▇▇ Square shall reduce
such Shares to uncertificated status, while
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retaining the appropriate registration in the name of the shareholder
upon the transfer books.
(v) Upon receipt of written instructions from a shareholder of
uncertificated securities for a certificate in the number of shares in
its account, ▇▇▇▇▇▇ Square will issue such stock certificates and deliver
them to the shareholder.
(d) Redemption of Shares. Upon receipt of a redemption order from the
Distributor or a shareholder, ▇▇▇▇▇▇ Square shall redeem the number of
Shares indicated thereon from the redeeming shareholder's account and
receive from the Trust's Custodian and disburse pursuant to the redeeming
shareholder's instructions the redemption proceeds therefor, or arrange
for direct payment of redemption proceeds by the Custodian to the
redeeming shareholder or as instructed by the shareholder, in accordance
with such procedures and controls as are mutually agreed upon from time
to time by and among the Trust, ▇▇▇▇▇▇ Square and the Trust's Custodian.
6. Authorized Issued and Outstanding Shares. The Trust agrees to notify
▇▇▇▇▇▇ Square promptly of any change in the number of authorized Shares
and of any change in the number of Shares registered under the Securities
Act of 1933, as amended (the "1933 Act") or termination of the Trust's
declaration under Rule 24f-2 of the 1940 Act. The Trust has advised
▇▇▇▇▇▇ Square, as of the date hereof, of the number of Shares (a) held in
any redemption or repurchase account, and (b) registered under the 1933
Act, as amended, which are unsold. In the event that the Trust shall
declare a stock dividend or a stock split, the Trust shall deliver to
▇▇▇▇▇▇ Square a certificate, upon which ▇▇▇▇▇▇ Square shall be entitled
to rely for all purposes, certifying (a) the number of Shares involved,
(b) that all appropriate corporate action has been taken, and (c) that
any amendment to the Agreement and Declaration of Trust of the Trust
which may be required has been filed and is effective. Such certificate
shall be accompanied by an opinion of counsel to the Trust relating to
the legal adequacy and effect of the transaction.
7. Dividends and Distributions. The Trust shall ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Square with
appropriate evidence of action by the Trust's Trustees authorizing the
declaration and payment of dividends and distributions as described in
the Prospectus. After deducting any amount required to be withheld by any
applicable tax laws, rules and regulations or other applicable laws,
rules and regulations, ▇▇▇▇▇▇ Square shall in accordance with the
instructions in proper form from a shareholder and the provisions of the
Agreement and Declaration of Trust and Prospectus, issue and credit the
account of the shareholder with Shares, or, if the shareholder so elects,
pay such dividends or distributions in cash to the shareholders in the
manner described in the Prospectus. In lieu of receiving from the Trust's
Custodian and paying to shareholders cash dividends or distributions,
▇▇▇▇▇▇ Square may arrange for the direct payment of cash dividends and
distributions to shareholders by the Custodian, in accordance with such
procedures and controls as are mutually agreed upon from time to time by
and among the Trust, ▇▇▇▇▇▇ Square and the Trust's Custodian.
▇▇▇▇▇▇ Square shall prepare, file with the Internal Revenue Service and
other appropriate taxing authorities, and address and mail to
shareholders such returns and information relating to dividends and
distributions paid by the Trust as are required to be so prepared, filed
and mailed by applicable laws, rules and regulations, or such substitute
form of notice as may from time to time be permitted or required by the
Internal Revenue Service. On behalf of the Portfolio, ▇▇▇▇▇▇ Square shall
mail certain requests for shareholders' certifications under penalties of
perjury and pay on a timely basis
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to the appropriate Federal authorities any taxes to be withheld on
dividends and distributions paid by the Portfolio, all as required by
applicable Federal tax laws and regulation.
In accordance with the Prospectus, resolutions of the Trust's Trustees
that are not inconsistent with this Agreement and are provided to ▇▇▇▇▇▇
Square from time to time, and such procedures and controls as are
mutually agreed upon from time to time by and among the Trust, ▇▇▇▇▇▇
Square and the Trust's Custodian, ▇▇▇▇▇▇ Square shall (a) arrange for
issuance of Shares obtained through transfers of funds from shareholders'
accounts at financial institutions; (b) arrange for the exchange of
Shares for shares of other eligible investment companies, when permitted
by the Prospectus.
8. Communications with Shareholders.
(a) Communications to Shareholders. ▇▇▇▇▇▇ Square will address and mail
all communications by the Portfolio to its shareholders, including
reports to shareholders, confirmations of purchases and sales of Shares,
monthly statements, dividend and distribution notices and proxy material
for its meetings of shareholders. ▇▇▇▇▇▇ Square will receive and tabulate
the proxy cards for the meetings of the shareholders of the Portfolio.
(b) Correspondence. ▇▇▇▇▇▇ Square will answer such correspondence from
shareholders, securities brokers and others relating to its duties
hereunder and such other correspondence as may from time to time be
mutually agreed upon between ▇▇▇▇▇▇ Square and the Trust.
9. Services to be Performed. ▇▇▇▇▇▇ Square shall be responsible for
administering and/or performing transfer agent functions, for acting as
service agent in connection with dividend and distribution functions and
for performing shareholder account administrative agent functions in
connection with the issuance, transfer and redemption or repurchase
(including coordination with the Trust's custodian bank in connection
with shareholder redemption by check) of the Trust's Shares as set forth
in Schedule B. The details of the operating standards and procedures to
be followed shall be determined from time to time by agreement between
▇▇▇▇▇▇ Square and the Trust and may be expressed in written schedules
which shall constitute attachments to this Agreement.
10. Record Keeping and Other Information.
(a) ▇▇▇▇▇▇ Square shall maintain records of the accounts for each
Shareholder showing the items listed in Schedule C.
(b) ▇▇▇▇▇▇ Square shall create and maintain all necessary records in
accordance with all applicable laws, rules and regulations, including but
not limited to records required by Section 31(a) of the 1940 Act and the
rules thereunder, as the same may be amended from time to time, and those
records pertaining to the various functions performed by it hereunder.
All records shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust. Where applicable, such
records shall be maintained by ▇▇▇▇▇▇ Square for the periods and in the
places required by Rule 31a-2 under the 1940 Act.
11. Audit, Inspection and Visitation. ▇▇▇▇▇▇ Square shall make available
during regular business hours all records and other data created and
maintained pursuant to this Agreement for reasonable audit and inspection
by the Trust or any person retained by the Trust. Upon reasonable notice
by the Trust, ▇▇▇▇▇▇ Square shall make available during regular business
hours its facilities and premises
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employed in connection with its performance of this Agreement for
reasonable visitation by the Trust, or any person retained by the Trust.
12. Compensation. Compensation for the transfer agent services and duties
performed pursuant to this Agreement will be paid by the Trust. Certain
other fees due and expenses incurred pursuant to this Agreement are
payable by the Trust or the shareholder on whose behalf the service is
performed and are provided in Schedule D hereto.
The Trust shall reimburse ▇▇▇▇▇▇ Square for all reasonable out-of-pocket
expenses incurred by ▇▇▇▇▇▇ Square or its agents in the performance of
its obligations hereunder. Such reimbursement for expenses incurred in
any calendar month shall be made on or before the tenth day of the next
succeeding month.
The term "out-of-pocket expenses" shall include, but not be limited to,
the following expenses incurred by ▇▇▇▇▇▇ Square in the performance of
its obligations hereunder: the cost of stationery and forms (including
but not limited to checks, proxy cards, and envelopes), the cost of
postage, the cost of insertion of non-standard size materials in mailing
envelopes and other special mailing preparation by outside firms, the
cost of first-class mailing insurance, the cost of external electronic
communications as approved by the Trustees (to include telephone and
telegraph equipment and an allocable portion of the cost of personnel
responsible for the maintenance of such equipment), toll charges, data
communications equipment and line charges and the cost of microfilming of
shareholder records (including both the cost of storage as well as
charges for access to such records). If ▇▇▇▇▇▇ Square shall undertake the
responsibility for microfilming shareholder records, it may be separately
compensated therefor in an amount agreed upon by the principal financial
officer of the Trust and ▇▇▇▇▇▇ Square, such amount not to exceed the
amount which would be paid to an outside firm for providing such
microfilming services.
13. Use of ▇▇▇▇▇▇ Square's Name. The Trust shall not use the name of ▇▇▇▇▇▇
Square in any Prospectus, SAI, sales literature or other material
relating to the Trust in a manner not approved prior thereto, provided,
however, that ▇▇▇▇▇▇ Square shall approve all uses of its name which
merely refer in accurate terms to its appointments hereunder or which are
required by the SEC or a state securities commission and, provided
further, that in no event shall such approval be unreasonably withheld.
14. Use of Trust's Name. ▇▇▇▇▇▇ Square shall not use the name of the Trust or
the Portfolio of the Trust or material relating to the Trust or the
Portfolio on any checks, bank drafts, bank statements or forms for other
than internal use in a manner not approved prior thereto, provided,
however, that the Trust shall approve all uses of its name which merely
refer in accurate terms to the appointment of ▇▇▇▇▇▇ Square hereunder or
which are required by the SEC or a state securities commission, and,
provided, further, that in no event shall such approval be unreasonably
withheld.
15. Security. ▇▇▇▇▇▇ Square represents and warrants that, to the best of its
knowledge, the various procedures and systems which ▇▇▇▇▇▇ Square has
implemented with regard to safeguarding from loss or damage attributable
to fire, theft or any other cause (including provision for twenty-four
hours a day restricted access) the Trust's blank checks, records and
other data and ▇▇▇▇▇▇ Square's records, data, equipment, facilities and
other property used in the performance of its obligations hereunder are
adequate and that it will make such changes therein from time to time as
in its
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judgment are required for the secure performance of its obligations
hereunder. The parties shall review such systems and procedures on a
periodic basis.
16. Insurance. ▇▇▇▇▇▇ Square shall notify the Trust should any of its
insurance coverage be materially changed. Such notification shall include
the date of change and the reason or reasons therefor. ▇▇▇▇▇▇ Square
shall notify the Trust of any material claims against it, 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 ▇▇▇▇▇▇
Square under its insurance coverage.
17. Assignment of Duties to Others. Neither this Agreement nor any rights or
obligations hereunder may be assigned by ▇▇▇▇▇▇ Square without the
written consent of the Trust. ▇▇▇▇▇▇ Square may, however, at any time or
times in its discretion appoint (and may at any time remove) any other
bank or trust company, which is itself qualified under the Securities
Exchange Act of 1934, as amended (the "1934 Act") to act as a transfer
agent, as its agent to carry out such of the services to be performed
under this agreement as ▇▇▇▇▇▇ Square may from time to time direct;
provided, however, that the appointment of any agent shall not relieve
▇▇▇▇▇▇ Square of any of its responsibilities or liabilities hereunder.
18. Indemnification.
(a) The Trust agrees to indemnify and hold harmless ▇▇▇▇▇▇ Square and any
officer, director, or employee of ▇▇▇▇▇▇, nor any person who controls
▇▇▇▇▇▇ Square within the meaning of Section 15 of the 1933 Act or Section
20(a) of the 1934 Act (collectively, "▇▇▇▇▇▇ Square Affiliates") from all
taxes, charges, expenses, assessments, claims and liabilities including,
without limitation, liabilities arising under the 1933 Act, the 1934 Act
and any state and foreign securities laws, and amendments thereto (the
"Securities Laws"), and expenses, including without limitation reasonable
attorneys' fees and disbursements arising directly or indirectly from any
action or omission to act which ▇▇▇▇▇▇ Square takes (i) at the request of
or on the direction of or in reliance on the advice of the Trust or (ii)
upon Oral or Written Instructions. No ▇▇▇▇▇▇ Square Affiliate shall be
indemnified against any liability (or any expenses incident to such
liability) arising out of any such person's own willful misfeasance, bad
faith, negligence or reckless disregard of its duties and obligations
under this Agreement.
(b) ▇▇▇▇▇▇ Square agrees to indemnify and hold harmless the Trust from
all taxes, charges, expenses, assessments, claims and liabilities arising
from ▇▇▇▇▇▇ Square's obligations pursuant to this Agreement (including,
without limitation, liabilities arising under the Securities Laws, and
amendments thereto) and expenses, including (without limitation)
reasonable attorneys' fees and disbursements arising directly or
indirectly out of ▇▇▇▇▇▇ Square's or its nominees' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties
and obligations under this Agreement.
(c) In order that the indemnification provisions contained in this
Section 18 shall apply, upon the assertion of a claim for which either
party may be required to indemnify the other, the party seeking
indemnification shall promptly notify the other party of such assertion,
and shall keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify shall
have the option to participate with the party seeking indemnification in
the defense of such claim. The party seeking indemnification shall in no
case confess any claim
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or make any compromise in any case in which the other party may be
required to indemnify it except with the other party's prior written
consent.
19. Responsibility of ▇▇▇▇▇▇ Square. In the performance of its duties under
this Agreement, ▇▇▇▇▇▇ Square shall be obligated to exercise due care and
diligence in the performance of its duties hereunder, to act in good
faith and to use its best efforts in performing services provided for
under this Agreement. ▇▇▇▇▇▇ Square shall not be under any duty to take
any action on behalf of the Trust except as specifically set forth herein
or as may be specifically agreed to by ▇▇▇▇▇▇ Square in writing. Neither
▇▇▇▇▇▇ Square nor any officer, employees or director of ▇▇▇▇▇▇ Square
shall be liable for any error of judgment or mistake of law, or for any
loss suffered by the Trust in connection with the matters to which this
Agreement relates except to the extent such damages arise out of ▇▇▇▇▇▇
Square's own negligence, bad faith, willful misfeasance, or reckless
disregard of obligations and duties under this Agreement.
Any person, even though also an officer, director, employee or agent of
▇▇▇▇▇▇ Square or any of its affiliates who may be or become an officer or
director of the Trust, shall be deemed, when rendering services to the
Trust as such officer or acting on any business of the Trust in such
capacity (other than services or business in connection with ▇▇▇▇▇▇
Square's duties under this Agreement), to be rendering such services to
or acting solely for the Trust and not as an officer, director, employee
or agent or one under the control or direction of ▇▇▇▇▇▇ Square or any of
its affiliates, even though paid by one of those entities. ▇▇▇▇▇▇ Square
shall not be liable or responsible for any acts or omissions of any
predecessor administrator or any other persons having responsibility for
matters to which this Agreement relates nor shall ▇▇▇▇▇▇ Square be
responsible for reviewing any such act or omissions.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, ▇▇▇▇▇▇ Square, in connection with its duties
under this Agreement, shall not be under any duty or obligation to
inquire into and shall not be liable for (a) the validity or invalidity
or authority or lack thereof of any Oral or Written Instruction, notice
or other instrument which conforms to the applicable requirements of this
Agreement, and which ▇▇▇▇▇▇ Square reasonably believes to be genuine; or
(b) subject to the provisions of Section 20, delays or errors or loss of
data occurring by reason of circumstances beyond ▇▇▇▇▇▇ Square's control,
including acts of civil or military authority, national emergencies,
labor difficulties, fire, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
20. Acts of God, etc. ▇▇▇▇▇▇ Square shall not be liable for delays or errors
occurring by reason of circumstances beyond its control, including but
not limited to acts of civil or military authority, national emergencies,
fire, flood or catastrophe, acts of God, insurrection, war, riots, or
failure of the mails, transportation, communication or power supply. In
the event of equipment breakdowns beyond its control, ▇▇▇▇▇▇ Square
shall, at no additional expense to the Trust, take reasonable steps to
minimize service interruptions. ▇▇▇▇▇▇ Square shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
21. Registration Statement Amendments. ▇▇▇▇▇▇ Square and the Trust shall
regularly consult with each other regarding ▇▇▇▇▇▇ Square's performance
of its obligations and its compensation hereunder. In connection
therewith, the Trust shall submit to ▇▇▇▇▇▇ Square at a reasonable time
in advance of filing with the SEC copies of any amended or supplemented
registration statements
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(including exhibits) under the 1933 Act, as amended, and the 1940 Act,
and a reasonable time in advance of their proposed use, copies of any
amended or supplemented forms relating to any plan, program or service
offered by the Trust. Any change in such material which would require any
change in ▇▇▇▇▇▇ Square's obligations hereunder shall be subject to
▇▇▇▇▇▇ Square's approval, which shall not be unreasonably withheld. In
the event that such change materially increases the cost to ▇▇▇▇▇▇ Square
of performing its obligations hereunder, ▇▇▇▇▇▇ Square shall be entitled
to receive reasonable compensation therefor.
22. Duration, Termination, etc. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated orally, but only
by written instrument which shall make specific reference to this
Agreement and which shall be signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
This Agreement shall become effective on the day and year first written
above, and shall continue in effect for twelve (12) months from the
effective date, and thereafter as the parties may mutually agree;
provided, however, that this Agreement may be terminated at any time by
six (6) months' written notice given by ▇▇▇▇▇▇ Square to the Trust or
ninety (90) days' written notice given by the Trust to ▇▇▇▇▇▇ Square; and
provided further that this Agreement may be terminated immediately at any
time for cause either by the Trust or by ▇▇▇▇▇▇ Square in the event that
such cause remains unremedied for a period of time not to exceed ninety
days after receipt of written specification of such cause. Any such
termination shall not affect the rights and obligations of the parties
under Sections 18 and 19 hereof.
Upon the termination hereof, the Trust shall reimburse ▇▇▇▇▇▇ Square for
any out-of-pocket expenses reasonably incurred by ▇▇▇▇▇▇ Square during
the period prior to the date of such termination. In the event that the
Trust designates a successor to any of ▇▇▇▇▇▇ Square's obligations
hereunder, ▇▇▇▇▇▇ Square shall, at the expense and direction of the
Trust, transfer to such successor a certified list of the shareholders of
the Trust (with name, address, and, if provided, tax identification or
Social Security number), a complete record of the account of each
shareholder, and all other relevant books, records and other data
established or maintained by ▇▇▇▇▇▇ Square hereunder. ▇▇▇▇▇▇ Square shall
be liable for any losses sustained by the Trust as a result of ▇▇▇▇▇▇
Square's failure to accurately and promptly provide these materials.
23. Registration as a Transfer Agent. ▇▇▇▇▇▇ Square represents that it is
currently registered with the appropriate Federal agency for the
registration of transfer agents, and that it will remain so registered
for the duration of this Agreement. ▇▇▇▇▇▇ Square agrees that it will
promptly notify the Trust in the event of any material change in its
status as a registered transfer agent. Should ▇▇▇▇▇▇ Square fail to be
registered with the Federal Deposit Insurance Corporation or any
successor regulatory authority as a transfer agent at any time during
this Agreement, the Trust may, on written notice to ▇▇▇▇▇▇ Square,
immediately terminate this Agreement.
24. Notice. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party to
this Agreement at its principal place of business.
25. Severability. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby.
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26. Governing Law. To the extent that state law has not been preempted by the
provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws of
the State of Delaware.
27. Shareholder Liability. ▇▇▇▇▇▇ Square is hereby expressly put on notice of
the limitation of shareholder liability as set forth in the Agreement and
Declaration of Trust of the Trust and agrees that obligations assumed by
the Trust pursuant to this Agreement shall be limited in all cases to the
Trust and its assets. ▇▇▇▇▇▇ Square agrees that it shall not seek
satisfaction of any such obligation from the shareholders or any
individual shareholder of the Trust, nor from the Trustees or any
individual Trustee of the Trust.
28. Arbitration. [TO BE ADDED]
29. Miscellaneous. Both parties agree to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two counterparts, each of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the day and year first written above.
BRAZOS MUTUAL FUNDS
By: _____________________________
Name, Title
▇▇▇▇▇▇ SQUARE MANAGEMENT
CORPORATION
By: _____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
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SCHEDULE A
BRAZOS MUTUAL FUNDS
FUND LISTING
BRAZOS/JMIC Small/Emerging Growth Portfolio
BRAZOS/JMIC Real Estate Securities Portfolio
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SCHEDULE B
BRAZOS MUTUAL FUNDS
Services to be Performed
▇▇▇▇▇▇ Square Management Corporation ("▇▇▇▇▇▇ Square") will perform the
following functions as transfer agent on an ongoing basis with respect to the
Portfolio:
(a) furnish state-by-state registration reports;
(b) calculate sales load or compensation payment and provide such
information;
(c) calculate dealer commissions;
(d) provide toll-free lines for direct shareholder use, plus customer liaison
staff with on-line inquiry capacity;
(e) mail duplicate confirmations to dealers of their clients' activity,
whether executed through the dealer or directly with ▇▇▇▇▇▇ Square;
(f) provide detail for underwriter or broker confirmations and other
participating dealer shareholder accounting, in accordance with such
procedures as may be agreed upon between the Trust and ▇▇▇▇▇▇ Square;
(g) provide shareholder lists and statistical information concerning accounts
of the Portfolio to the Trust;
(h) provide timely notification of Portfolio activity and such other
information as may be agreed upon from time to time between ▇▇▇▇▇▇ Square
and the Portfolio or the Custodian, to the Trust or the Custodian; and
(i) solicit and tabulate proxies
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SCHEDULE C
BRAZOS MUTUAL FUNDS
Shareholder Records
▇▇▇▇▇▇ Square Management Corporation ("▇▇▇▇▇▇ Square") shall maintain records of
the accounts for each shareholder showing the following information:
(a) name, address and United States Tax Identification or Social Security
number;
(b) number of Shares held and number of Shares for which certificates, if any,
have been issued, including certificate numbers and denominations;
(c) historical information regarding the account of each shareholder, including
dividends and distributions paid and the date and price for all transactions on
a shareholder's account;
(d) any stop or restraining order placed against a shareholder's account;
(e) any correspondence relating to the current maintenance of a shareholder's
account;
(f) information with respect to withholdings; and,
(g) any information required in order for ▇▇▇▇▇▇ Square to perform any
calculations contemplated or required by this Agreement.
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SCHEDULE D
BRAZOS MUTUAL FUNDS
Fee Schedule
For the services ▇▇▇▇▇▇ Square provides under the Transfer Agency Agreement
attached hereto, Brazos Mutual Funds (the "Trust") agrees to pay ▇▇▇▇▇▇ Square a
fee for each class of shares for each portfolio for transfer agency services
equal to the following:
Fee per Annum
Type of Trust/Account per Account
Annual, Semi-Annual or Quarterly Dividend $15.00/year
Monthly Dividend $16.50/year
Daily Accrual Fund $18.00/year
subject to a $30,000 per annum minimum (2,500 per month).
Checkwriting: $2.00 per account with checkwriting, per year
$0.15 per check (non-return)
$15.00 each - stop payment
$25.00 each - non-sufficient funds
$2.50 each check copy
This transfer agency fee shall be pro-rated and payable monthly as soon as
practicable after the last day of each month based on the average of the daily
net assets of each Portfolio, as determined at the close of business on each day
throughout the month.
Out of pocket expenses shall be reimbursed by the Trust to ▇▇▇▇▇▇ Square or paid
directly by the Trust. Such expenses include, but are not limited to, the
following:
Transaction Charges:
12b-1 Calculation - $.25 per account, per run
Exchange Fees - $5.00 per transaction
Wire fee for receipt or disbursement - $7.00 receipt per wire, $12.00
disbursement ACH transaction charges - $0.25 per transaction Lockbox
processing - $0.06 per transaction New Account Opening - $0.40 electronic
interface; paper application $3.50 per account Master/Omnibus Account -
$7.50 per broker call placed transaction
Additional Expenses:
a. Toll-free lines (if required)
b. Forms, envelopes, checks, checkbooks
c. Postage (bulk, pre-sort, first-class at current prevailing rates)
d. Hardware/phone lines for remote terminal(s) (if required)
e. Microfiche/Microfilm
f. Mailing fee - approximately $45.00 per 1,000 items
g. Cost of proxy solicitation, mailing and tabulation (if required)
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h. Certificate issuance - $5.00 per certificate
i. Record retention storage - $3.50 per cubic foot per month
j. Development/programming costs/special projects (i.e. ad hoc reports)
* Ad-hoc report set up $125 plus $0.012 per record passed
k. "B" notice mailing - $5.00 per item
l. Locating lost shareholders in anticipation of escheating - $7.50 per name
m. Labels - $0.12 per label ($75 minimum)
n. Commission Calculation - $0.25 per account
o. Reruns for incorrect NAV's, dividends or mil rates, late NAV's
p. Consolidated Statements - to be determined, time and materials
q. Fulfillment - $2.00 per call plus vendor handling and postage
r. Retroactive Record Dates for Dividends, Proxies, etc.
s. Conversion Expenses - to be determined, time and materials
Additional Expenses (paid by shareholder):
Direct ▇▇▇/▇▇▇▇▇ processing $10.00 per account per annum
$10.00 per transfer out
Fund/SERV/Networking Charges
1. - FUND/SERV
Participation Fee $50.00 per month
CPU Access Fee $40.00 per month
Transaction Fee $ .50 per transaction
NSCC will deduct it's monthly fee on the 15th of each month from ▇▇▇▇▇▇
Square's cash settlement that day. These charges will be included on the
next month's T/A ▇▇▇▇ as out-of-pocket expenses.
2. - Networking
Participation Fee $250.00 per month
CPU Access Fee $ 40.00 per month
Account Fee $ .045 per month on
monthly dividend funds
$ .030 per month on all
other dividend payables
▇▇▇▇▇▇ Square System Access Charges for NSCC
1. - FUND/SERV
Base Facility Use Fee $500.00 per month
Transaction Fee $ .25 per transaction
Plus: out-of-pocket expenses for settlements, wire charges, NSCC pick-up
charges, etc.
2. - Networking
Base Facility Use Fee $500.00 per month
Matrix Level Charges:
Level 1, 2 or 4 $ .30 per account/month
▇▇▇▇▇ ▇ $ .10 per account/month
Payment
The above will be billed within the first five (5) business days of each
month and will be paid by wire within five (5) business days of receipt.
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SEVERANCE AND CONVERSION FEE
Upon the termination, or notice of termination, of the attached Transfer Agency
Agreement within the initial twelve (12) month term by the Trust or the Trust's
Board of Trustees, the parties hereby acknowledge and agree that the Trust shall
pay to ▇▇▇▇▇▇ Square, as a fee in consideration of severance and cooperation
toward conversion to a new service provider, and not as a penalty, a sum with
respect to each class of shares for each Trust portfolio equal to the
above-stipulated per annum fee as per the schedule, plus out-of-pocket expenses
incurred in connection with cooperating with conversion to a new service
provider.
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ACCOUNTING SERVICES AGREEMENT
between
BRAZOS MUTUAL FUNDS
and
▇▇▇▇▇▇ SQUARE MANAGEMENT CORPORATION
THIS ACCOUNTING SERVICES AGREEMENT is made as of the ____ day of
______________, 1996 between Brazos Mutual Funds, a Delaware business trust (the
"Trust") having its principal place of business in Dallas, Texas and ▇▇▇▇▇▇
Square Management Corporation, a Delaware corporation ("▇▇▇▇▇▇ Square") having
its principal place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act") as an open-end, management investment company
and offers for public sale one or more series of shares of beneficial interest,
each of which may offer one or more classes of shares;
WHEREAS, each share of a series represents an undivided interest in the
assets, subject to the liabilities, allocated to that series;
WHEREAS, at the present time, the Trust has established two Series,
each consisting of one class of shares, and the Trust may establish additional
Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services of ▇▇▇▇▇▇
Square to provide certain accounting services; and ▇▇▇▇▇▇ Square is willing to
furnish such services to the Trust with respect to each of the series listed on
Appendix A to this Agreement (each a "Portfolio" or collectively the
"Portfolios") on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties agree as follows:
1. Appointment. The Trust hereby appoints ▇▇▇▇▇▇ Square to provide
certain accounting services to the Trust for the period and on the terms set
forth in this Agreement. ▇▇▇▇▇▇ Square accepts such appointment and agrees to
furnish the services herein set forth in return for the compensation as provided
in Paragraph 12 of this Agreement. ▇▇▇▇▇▇ Square agrees to comply with all
relevant provisions of the 1940 Act and applicable rules and regulations
thereunder, and to remain open for business on any day on which the New York
Stock Exchange, the Federal Reserve Bank of Philadelphia and Wilmington Trust
Company are open for business. The Trust may from time to time issue separate
series or classes or classify and reclassify shares of such series or class.
▇▇▇▇▇▇ Square shall identify to each such series or class property belonging to
such series or class and in such reports, confirmations and notices to the Trust
called for under this Agreement shall identify the series or class to which such
report, confirmation or notice pertains.
2. Documents. The Trust has furnished ▇▇▇▇▇▇ Square copies of the
Trust's Agreement and Declaration of Trust, By-Laws, Advisory Contract,
Distribution Agreement, Administration Agreement, Custody Agreement, Transfer
Agency Agreement, most recent Registration Statement on Form N-1A, current
Prospectus and Statement of Additional Information (the "SAI") and all forms
relating to any plan, program or service offered by the Trust. The Trust shall
furnish promptly to ▇▇▇▇▇▇ Square a copy of any amendment or supplement to the
above-mentioned documents. The Trust shall furnish promptly to
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▇▇▇▇▇▇ ▇▇▇▇▇▇ any additional documents necessary for it to perform its functions
hereunder or such other documents as ▇▇▇▇▇▇ Square shall request.
3. Definitions.
(a) Authorized Person. As used in this Agreement, the term "Authorized
Person" means the President, Treasurer, Secretary and any Vice
President of the Trust and any other person, whether or not any such
person is an officer or employee of the Trust, duly authorized by the
Board of Trustees of the Trust to give Oral and Written Instructions on
behalf of the Trust and listed on Appendix B listing persons duly
authorized to give Oral and Written Instructions on behalf of the Trust
as may be received by ▇▇▇▇▇▇ Square from time to time.
(b) Oral Instructions. As used in this Agreement, the term "Oral
Instructions" means oral instructions actually received by ▇▇▇▇▇▇
Square from an Authorized Person or from a person reasonably believed
by ▇▇▇▇▇▇ Square to be an Authorized Person. The Trust agrees to
deliver to ▇▇▇▇▇▇ Square, at the time and in the manner specified in
Paragraph 4(b) of this Agreement, Written Instructions confirming oral
Instructions.
(c) Written Instructions. As used in this Agreement, the term "Written
Instructions" means written instructions signed by two Authorized
Persons, and delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device, and received by ▇▇▇▇▇▇ Square.
4. Instructions Consistent with Trust Instrument, etc.
(a) Unless otherwise provided in this Agreement, ▇▇▇▇▇▇ Square shall
act only upon Oral and Written Instructions. Although ▇▇▇▇▇▇ Square may
know of the provisions of the Trust Instrument and By-Laws of the
Trust, ▇▇▇▇▇▇ Square may assume that any Oral or Written Instructions
received hereunder are not in any way inconsistent with any provisions
of such Trust Instrument or By-Laws or any vote, resolution or
proceeding of the Shareholders, or of the Board of Trustees, or of any
committee thereof.
(b) ▇▇▇▇▇▇ Square shall be entitled to rely upon any Oral Instructions
and any Written Instructions actually received by ▇▇▇▇▇▇ Square
pursuant to this Agreement. The Trust agrees to forward to ▇▇▇▇▇▇
Square Written Instructions confirming Oral Instructions in such manner
that the Written Instructions are received by ▇▇▇▇▇▇ Square, whether by
hand delivery, telex, facsimile sending device or otherwise, by the
close of business of the same day that such Oral Instructions are given
to ▇▇▇▇▇▇ Square. The Trust agrees that the fact that such confirming
Written Instructions are not received by ▇▇▇▇▇▇ Square shall in no way
affect the validity of the transactions or enforceability of the
transactions authorized by the Trust by giving Oral Instructions.
The Trust agrees that ▇▇▇▇▇▇ Square shall incur no liability to the
Trust in acting upon Oral Instructions given to ▇▇▇▇▇▇ Square hereunder
concerning such transactions, provided such instructions reasonably appear to
have been issued by an Authorized Person.
5. Services on a Continuing Basis.
(a) ▇▇▇▇▇▇ Square will perform the following accounting functions
on a daily basis:
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(i) Journalize each Portfolio's investment, capital share and
income and expense activities;
(ii) Verify investment buy/sell trade tickets when received from
the Trust's Investment Advisor ("Advisor") and transmit trades
to the Trust's custodian for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of each Portfolio with
the Custodian, and provide the Advisor with the beginning cash
balance available for investment purposes;
(vi) Update the cash availability throughout the day as required by
the Advisor;
(vii) Post to and prepare each Portfolio's Statement of Assets and
Liabilities and the Statement of Operations;
(viii) Calculate expenses payable pursuant to the Portfolio's various
contractual obligations;
(ix) Control all disbursements from the Trust on behalf of each
Portfolio and authorize such disbursements upon Written
Instructions;
(x) Calculate capital gains and losses;
(xi) Determine each Portfolio's net income;
(xii) Obtain security market quotes from services approved by the
Advisor, or if such quotes are unavailable, then obtain such
prices from services approved by the Advisor, and in either
case calculate the market or fair value of each Portfolio's
investments;
(xiii) Transmit or mail a copy of the portfolio valuation to the
Advisor;
(xiv) Compute the net asset value per share of each class of each
Portfolio;
(xv) Compute the yield, total return and expense ratio of each
class of each Portfolio, and each Portfolio's portfolio
turnover rate; and
(xvi) Monitor the expense accruals and notify Trust management of
any proposed adjustments.
(b) In addition, ▇▇▇▇▇▇ Square will:
(i) Prepare monthly financial statements, which will include
without limitation the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses;
(ii) Prepare monthly security transactions listings;
(iii) Prepare quarterly broker security transactions summaries;
(iv) Supply various Trust, Portfolio and class statistical data as
requested on an ongoing basis;
(v) Assist in the preparation of support schedules necessary for
completion of Federal and state tax returns; prepare
1099-Misc's for Trustees, as well as other non-corporate
entities providing services to the Portfolios.
(vi) Assist in the preparation and filing of the Trust's
Semi-Annual Reports with the SEC on Form N-SAR;
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(vii) Assist in the preparation and filing of the Trust's annual and
semi- annual shareholder reports and proxy statements;
(viii) Assist with the preparation of and Amendments to the Trust's
registration statements on Form N-1A and other filings
relating to the registration of shares; and
(ix) Monitor each Portfolio's status as a regulated investment
company under Subchapter M of the Internal Revenue Code of
1986, as amended.
(x) Communicate statistical data to the financial media (Donaghue,
Lipper, Morningstar, et al).
6. Records. ▇▇▇▇▇▇ Square shall keep all books and records with respect
to the Trust's books of account and records of the Trust's securities
transactions. The books and records pertaining to the Trust which are in the
possession of ▇▇▇▇▇▇ Square shall be the property of the Trust. Such books and
records shall be prepared and maintained as required by the 1940 Act and other
applicable securities laws and rules and regulations. The Trust, or the Trust's
authorized representatives, shall have access to such books and records at all
times during ▇▇▇▇▇▇ Square's normal business hours. Upon the reasonable request
of the Trust, copies of any such books and records shall be provided by ▇▇▇▇▇▇
Square to the Trust or the Trust's authorized representative at the Trust's
expense.
7. Liaison With Accountants. ▇▇▇▇▇▇ Square shall act as liaison with
the Trust's independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit related schedules. ▇▇▇▇▇▇ Square shall
take all reasonable action in the performance of its obligations under this
Agreement to assure that the necessary information is made available to such
accountants for the expression of their opinion, as such may be required by the
Trust from time to time.
8. Confidentiality. ▇▇▇▇▇▇ Square agrees on behalf of itself and its
employees to treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and its prior, present
or potential Shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except, after prior notification to and approval in writing by the Trust, which
approval shall not be unreasonably withheld and may not be withheld where ▇▇▇▇▇▇
Square 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 Trust.
9. Equipment Failures. In the event of equipment failures beyond ▇▇▇▇▇▇
Square's control, ▇▇▇▇▇▇ Square shall, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions but shall have no
liability with respect thereto. ▇▇▇▇▇▇ Square shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision of emergency use of electronic data processing equipment to
the extent appropriate equipment is available.
10. Right to Receive Advice.
(a) Advice of Trust. If ▇▇▇▇▇▇ Square shall be in doubt as to any
action to be taken or omitted by it, it may request, and shall receive,
from the Trust directions or advice, including Oral or Written
Instructions where appropriate.
(b) Advice of Counsel. If ▇▇▇▇▇▇ Square shall be in doubt as to any
question of law involved in any action to be taken or omitted by ▇▇▇▇▇▇
Square, it may request advice at the Trust's
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expense from counsel of its own choosing (who in the first instance
shall be the regularly retained counsel for the Trust but, as to
non-routine matters may be the regularly retained counsel of ▇▇▇▇▇▇
Square, at the option of ▇▇▇▇▇▇ Square).
(c) Conflicting Advice. In case of conflict between Oral and Written
Instructions received by ▇▇▇▇▇▇ Square, ▇▇▇▇▇▇ Square shall be entitled
to rely on and follow Written Instructions alone. In case of conflict
between advice received from the Trust under (a) and (b) above, ▇▇▇▇▇▇
Square shall be entitled to rely on and follow advice obtained in
accordance with (b) above.
(d) Protection of ▇▇▇▇▇▇ Square. ▇▇▇▇▇▇ Square shall be protected in
any action or inaction which it takes in reliance on any directions,
advice or Oral or Written Instructions received pursuant to subsections
(a) or (b) of this paragraph which ▇▇▇▇▇▇ Square, after receipt of any
such directions, advice or Oral or Written Instructions, in good faith
believes to be consistent with such directions, advice or Oral or
Written Instructions, as the case may be. However, nothing in this
paragraph shall be construed as imposing upon ▇▇▇▇▇▇ Square any
obligation (i) to seek such directions, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions, advice
or Oral or Written Instructions when received, unless, under the terms
of another provision of this Agreement, the same is a condition to
▇▇▇▇▇▇ Square's properly taking or omitting to take such action.
11. Compliance with Governmental Rules and Regulations. The Trust
assumes full responsibility for ensuring that the Trust complies with all
applicable requirements of the Securities Act of 1933 ("1933 Act"), the
Securities Exchange Act of 1934, as amended ("1934 Act"), the 1940 Act, and any
laws, rules and regulations of governmental authorities having jurisdiction,
subject to disclosure of pertinent facts to the Trust by ▇▇▇▇▇▇ Square.
12. Compensation. For the performance of its obligations under this
Agreement, the Trust on behalf of each Portfolio, shall pay ▇▇▇▇▇▇ Square in
accordance with the fee arrangements described in Schedule A attached hereto, as
such schedule may be amended from time to time.
13. Indemnification. The Trust agrees to indemnify and hold harmless
▇▇▇▇▇▇ Square and any officer, director, or employee of ▇▇▇▇▇▇ Square and any
person who controls ▇▇▇▇▇▇ Square within the meaning of Section 15 of the 1933
Act or Section 20(a) of the 1934 Act (collectively, "▇▇▇▇▇▇ Square Affiliates")
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the 1933 Act, the 1934
Act, the 1940 Act, and any other laws, rules and regulations of any governmental
authorities, all as or to be amended from time to time) and expenses, including
(without limitation) attorneys' fees and disbursements, arising directly or
indirectly from any action or thing which ▇▇▇▇▇▇ Square takes or does or omits
to take or do (i) at the request or on the direction of or in reliance on the
written advice of the Trust or (ii) upon Oral or Written Instructions, provided
that neither ▇▇▇▇▇▇ Square nor any of its nominees shall be indemnified against
any liability to the Trust or to its Shareholders (or any expenses incident to
such liability) arising out of ▇▇▇▇▇▇ Square's own willful misfeasance, bad
faith, negligence or reckless disregard of its duties and obligations
specifically described in this Agreement.
14. Responsibility of ▇▇▇▇▇▇ Square. In the performance of its duties
hereunder, ▇▇▇▇▇▇ Square shall be obligated to exercise due care and diligence
and to act in good faith and to use its best efforts within reasonable limits in
performing services provided for under this Agreement. ▇▇▇▇▇▇ Square shall be
under no duty to take any action on behalf of the Trust except as specifically
set herein or as may be specifically agreed to by ▇▇▇▇▇▇ Square in writing.
Neither ▇▇▇▇▇▇ Square nor any ▇▇▇▇▇▇ Square
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Affiliate shall be liable for any error of judgment or mistake of law, or for
any loss suffered by the Trust in connection with the matters to which this
Agreement relates except to the extent that such loss. arise out of ▇▇▇▇▇▇
Square's own negligence, bad faith, willful misfeasance, or reckless disregard
of obligations and duties under this Agreement. Any person, even though also an
officer, director, employee or agent of ▇▇▇▇▇▇ Square or any of its affiliates
who may be or become an officer or director of the Trust, shall be deemed, when
rendering services to the Trust as such officer or acting on any business of the
Trust in such capacity (other than services or business in connection with
▇▇▇▇▇▇ Square's duties under this Agreement), to be rendering such services to
or acting solely for the Trust and not as an officer, director, employee or
agent or one under the control or direction of ▇▇▇▇▇▇ Square or any of its
affiliates, even though paid by one of those entities. ▇▇▇▇▇▇ Square shall not
be liable or responsible for any acts or omissions of any predecessor
administrator or any other persons having responsibility for matters to which
this Agreement relates nor shall ▇▇▇▇▇▇ Square be responsible for reviewing any
such act or omissions.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, ▇▇▇▇▇▇ Square in connection with its duties under
this Agreement shall not be under any duty or obligation to inquire into and
shall not be liable for or in respect of (i) the validity or invalidity or
authority or lack thereof of any Oral or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this Agreement, and
which ▇▇▇▇▇▇ Square reasonably believes to be genuine; or (ii) delays or errors
or loss of data occurring by reason of circumstances beyond ▇▇▇▇▇▇ Square's
control, including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown (except as provided in paragraph
9), flood or catastrophe, acts of God, insurrection, war, riots or failure of
the mails, transportation, communication or power supply.
15. Waiver, Discharge, Duration and Termination. The provisions of this
Agreement may not be waived, discharged or terminated orally, but only by
written instrument that shall make specific reference to this Agreement and that
shall be signed by the party against which enforcement of such change, waiver,
discharge or termination is sought.
This Agreement shall become effective as of the day and year first
written above, and unless terminated as herein provided, shall continue in force
for twelve (12) months from the date of its execution and thereafter, from year
to year, provided continuance after the twelve (12) month period is approved at
least annually by a vote of the Trustees of the Trust. This Agreement may at any
time be terminated on ninety (90) days' written notice given to ▇▇▇▇▇▇ Square or
by ▇▇▇▇▇▇ Square by six (6) months' written notice given to the Trust; provided,
however, that the foregoing provisions of this Agreement may be terminated
immediately at any time for cause either by the Trust or by ▇▇▇▇▇▇ Square in the
event that such cause shall have remained unremedied for sixty (60) days or more
after receipt of written specification of such cause. Any such termination shall
not affect the rights and obligations of the parties under Sections 13 and 14
hereof.
Upon the termination of this Agreement, the Trust shall pay to ▇▇▇▇▇▇
Square such compensation as may be payable for the period prior to the effective
date of such termination, including reimbursement for any out-of-pocket expenses
reasonably incurred by ▇▇▇▇▇▇ Square to such date. In the event that the Trust
designates a successor to any of ▇▇▇▇▇▇ Square's obligations hereunder, ▇▇▇▇▇▇
Square shall, at the expense and direction of the Trust, transfer to such
successor all relevant books, records and other data established or maintained
by ▇▇▇▇▇▇ Square under the foregoing provisions.
16. Notices. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party to this
Agreement at its principal place of business.
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17. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
18. Amendments. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
19. Delegation. On thirty (30) days' prior written notice to the Trust,
▇▇▇▇▇▇ Square may assign all its rights and delegate its duties hereunder to any
wholly-owned direct or indirect subsidiary of Wilmington Trust Company, provided
that (i) the delegate agrees with ▇▇▇▇▇▇ Square to comply with all relevant
provisions of the 1940 Act and applicable rules and regulations; (ii) ▇▇▇▇▇▇
Square shall remain responsible for the performance of all of its duties under
this Agreement; (iii) ▇▇▇▇▇▇ Square and such delegate shall promptly provide
such information as the Trust may request; and (iv) ▇▇▇▇▇▇ Square shall respond
to such questions as the Trust may ask, relative to the delegation, including
(without limitation) the capabilities of the delegate.
20. Arbitration. [TO BE ADDED]
21. Miscellaneous.
(a) Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect. This Agreement
may be executed in two counterparts, each of which, taken together,
shall constitute one and the same instrument.
(b) This Agreement embodies the entire agreement and understanding
between the parties thereto, and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the
parties hereto may embody in one or more separate documents their
agreement, if any, with respect to Oral and/or Written Instructions.
This Agreement shall be deemed to be a contract made in Delaware and
shall be administered, construed and enforced according to the laws
(without regard, however, to laws as to conflicts of law) of the State
of Delaware. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. This Agreement shall
be binding and shall inure to the benefits of the parties hereto and
their respective successors.
(c) ▇▇▇▇▇▇ Square is hereby expressly put on notice of the limitation
of shareholder liability as set forth in the Trust Instrument of the
Trust and agree that obligations assumed by the Trust under this
Agreement shall be limited in all cases to the Trust and its assets,
and if the liability relates to one or more Portfolios, the obligations
hereunder shall be limited to the respective assets of such Portfolio
or Portfolios. ▇▇▇▇▇▇ Square further agrees that it shall not seek
satisfaction of any such obligations from the shareholders or any
individual shareholder of the Portfolios, nor from the Trustees or any
individual Trustee of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first written
above.
BRAZOS MUTUAL FUNDS
By: ______________________________
▇▇▇▇▇▇ SQUARE MANAGEMENT
CORPORATION
By: ______________________________
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APPENDIX A
ACCOUNTING SERVICES AGREEMENT
BRAZOS MUTUAL FUNDS
PORTFOLIO LISTINGS AND FEE SCHEDULE
ANNUAL FEE
For services provided to Brazos Mutual Funds (the "Trust") pursuant to this
Accounting Services Agreement, ▇▇▇▇▇▇ Square Management Corporation ("▇▇▇▇▇▇
Square") shall receive an annual fee equal to the following:
A. For each domestic, single-class portfolio of the Trust, a $45,000
minimum annual fee for up to the first $50 million in assets, plus an
asset-based fee calculated, with reference to the average daily net
assets of each such portfolio, according to the following schedule:
0.03% of assets between $50 million and $100 million; plus
0.02% of assets in excess of $100 million.
B. For the second and each additional class of any domestic portfolio, a
$15,000 minimum annual fee for up to the first $50 million in assets
generated by the class, plus an asset-based fee calculated, with
reference to the average daily net assets generated by each such class,
according to the same schedule as in A. above.
The foregoing fee shall be payable monthly, as soon as practicable after the
last day of the month, based on the average daily net assets of each of the
Trust's portfolios as determined at the close of business on each business day
throughout the month.
OUT-OF-POCKET EXPENSES
In addition to the foregoing fee, ▇▇▇▇▇▇ Square's reasonable out-of-pocket
expenses incurred in the performance of its responsibilities pursuant to this
Accounting Services Agreement shall either be paid and advanced directly by the
Trust, or promptly reimbursed, upon billing, by the Trust.
SEVERANCE AND CONVERSION FEE
Upon the termination, or notice of termination, of the attached Accounting
Services Agreement within the initial twelve (12) month term by the Trust or the
Trust's Board of Trustees, the parties hereby acknowledge and agree that the
Trust shall pay to ▇▇▇▇▇▇ Square, as a fee in consideration of severance and
cooperation toward conversion to a new service provider, and not as a penalty, a
sum with respect to each of the Trust's portfolios equal to the above-stipulated
annual fees as per the schedule, plus out-of-pocket expenses incurred in
connection with cooperating with conversion to a new service provider.
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ACCOUNTING SERVICES AGREEMENT
BRAZOS MUTUAL FUNDS
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board of Trustees to give
Oral and Written Instructions on behalf of the Portfolios:
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