MUTUAL FUND SERVICES AGREEMENT
THIS AGREEMENT is made as of this 26th day of October, 2004, by and between
AGILEX FUNDS (the "Trust"), an unincorporated business trust having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and CITCO MUTUAL FUND SERVICES, INC. ("CMFS"), a
corporation organized under the laws of the State of Delaware and having its
principal place of business at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust is authorized by its Declaration of Trust and by-laws to
issue separate Portfolios of shares representing interests in separate
investment portfolios (the "Portfolios") and to further divide such Portfolios
into separate share classes;
WHEREAS, the Trust has authorized the issuance of shares of beneficial
interest in the Portfolios, and share classes thereof, listed on Schedule A to
this Agreement, attached hereto and made part of this Agreement, as such
Schedule A may be amended in writing from time to time by CMFS and the Trust
(each series individually referred to herein as a "Portfolio" and collectively
as the "Portfolios");
WHEREAS, the Trust desires that CMFS perform certain transfer agency,
accounting, and administrative services for each Portfolio of the Trust listed
on Schedule A, and such Portfolios as may be added to Schedule A from time to
time in accordance with the foregoing recital;
WHEREAS, the Trust has taken all necessary action to appoint CMFS and all
necessary approvals have been obtained; and
WHEREAS, CMFS is willing to perform such services on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF CMFS.
The Trust hereby retains CMFS to provide transfer agency, fund accounting
and fund administration services to each Portfolio of the Trust as set forth in
Schedules B, C and D to this Agreement, attached hereto and made part of this
Agreement, as such schedules may be amended in writing from time to time by CMFS
and the Trust. CMFS hereby accepts such appointment to perform such services in
accordance with the terms of this Agreement and subject to the supervision of
the Trust sponsor (i.e., investment adviser) and Board of Trustees of the Trust.
CMFS shall not be responsible for services that are not explicitly set forth in
this Agreement. Nonetheless, CMFS agrees to negotiate in good faith with the
Trust regarding the provision of any services not set forth herein but desired
by the Trust.
2. SUBCONTRACTING.
CMFS may, at its expense, subcontract with any entity or person concerning
the provision of the services contemplated hereunder; provided, however, that
CMFS shall not be relieved of any of its obligations under this Agreement by the
appointment of such subcontractor and provided further, that CMFS shall be
responsible, to the extent provided in Section 7 hereof, for all acts of such
subcontractor as if such acts were its own.
3. COMPENSATION.
The Trust shall pay for the services to be provided by CMFS under this
Agreement in accordance with, and in the manner set forth in, Schedule E
attached hereto, as such Schedule E may be amended from time to time in writing
by the parties. The Trust shall have no right of set-off.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, CMFS' compensation for that part
of the month in which the Agreement is in effect shall be prorated in a manner
consistent with the calculation of the fees as set forth above. Payment of CMFS'
fees for the preceding month shall be made within ten (10) days of the end of
such month. CMFS shall have the right to assess a late fee up to one-half of one
(1) percent of the fee due in the event the Trust fails to pay any fee due
hereunder in accordance with the terms hereof. The Trust shall pay the foregoing
fees despite the existence of any dispute between the parties. In the event a
court of competent jurisdiction determines that CMFS is not entitled to such
fee, CMFS shall promptly reimburse the Trust the amount of such fee.
4. REIMBURSEMENT OF EXPENSES.
In addition to paying CMFS the fees described in Schedule C attached
hereto, the Trust agrees to reimburse CMFS for its reasonable out-of-pocket
expenses in providing services hereunder, including without limitation the
following:
a) All freight, delivery and bonding charges incurred by CMFS in
delivering materials to and from the Trust;
b) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by CMFS or an affiliate of
CMFS in communications with the Trust, an adviser or sub-adviser to
the Trust, the Trust's custodian, counsel, auditors, dealers or others
as required for CMFS to perform the services to be provided hereunder;
c) The Trust's proportionate costs of obtaining security market quotes.
CMFS will create a single master security file from the portfolio
holdings of each series of the Trust, and the cost of pricing a
security or securities held by multiple series will charged once and
allocated to each series holding that security or securities. The cost
of obtaining securities prices for securities held by a single series
will be borne by that series;
d) All expenses incurred in connection with any custom programming or
systems modifications required to provide any reports or services
requested by the Trust;
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e) Any and all costs associated with the delivery of documents
(including, but not limited to, the printing and postage charges
associated with the printing and mailing of statements and confirms
and any fees charged by Automatic Data Processing, Inc. with respect
to such mailings) to shareholders of the Trust;
f) Any expenses CMFS shall incur at the written direction of an officer
of the Trust's investment adviser or officer of the Trust;
g) Any additional expenses reasonably incurred by CMFS in the performance
of its duties and obligations under this Agreement and approved in
advance by the Trust;
h) Any expense incurred by CMFS to reprint account applications or other
documents identifying CMFS (along with its address and telephone
number) as the Trust's transfer agent;
i) Any expenses relating to routine and non-routine mailings including
but not limited to postage, preparation, photocopying, supplies, and
record storage;
j) Any fees and expenses associated with Blue Sky filings, SEC
registration fees, ▇▇▇▇▇ Filings (if applicable), escheatment,
applicable Imaging fees, VRU services, Citrix Links, internet
architecture and access fees, Web Access for Trust shareholders, DST
FanMail or other similar reporting services, bank service charges,
associated fees of NSCC trading, other industry standard transfer
agency expenses which shall be pre-approved;
k) Fidelity bond insurance premiums;
l) typesetting and printing of the Portfolios' public documents, and fees
and expenses of each Portfolios' other vendors and providers; and
m) Any expenses associated with the implementation and enforcement of
customer identification procedures as required by regulations or rules
adopted pursuant to the USA PATRIOT Act, and any new law, rule or
regulation issued relating to Anti-Money Laundering policies which
require the commitment of CMFS resources which rules are adopted
subsequent to the Effective Date and which expenses are directly
related to Trust operations.
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to the Trust's
Portfolios as of the date first written above or, if the Trust is converting
from a prior service provider, upon completion of the conversion of the records
and services from the Trust's former service provider to CMFS (the "Effective
Date"). The Trust will provide CMFS with reasonable notice, as mutually agreed
upon in writing, of such conversion to allow for an orderly conversion from the
former service provider to CMFS.
If a particular Portfolio is not in existence on the date of this Agreement
or upon completion of the conversion from the former service provider, the
Effective Date of this Agreement (including the fee schedule hereto) with
respect to such Portfolio shall be the date CMFS is provided with written notice
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of the Portfolio's commencement of operations in accordance with the terms of
this Agreement. To assure that CMFS can provide the services hereunder as of the
Portfolio's commencement of operations, the Trust shall give CMFS at least 45
days advance written notice of the inception of such new Portfolio. CMFS also
needs 45 days advance written notice of changes to share class structure (e.g.,
additions or changes of sales loads).
CMFS shall have a right of first refusal to provide transfer agency,
accounting and administration services to any new Portfolio established by the
Trust. CMFS also shall have the right to decline to provide such services to any
new Portfolio established by the Trust.
6. TERM OF THIS AGREEMENT.
The term of this Agreement shall continue in effect, unless earlier
terminated by any party hereto as provided hereunder, for a period of FIVE (5)
years. Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed automatically for additional periods of one year.
This Agreement may be terminated without penalty: (i) by the Trust or CMFS
upon ninety (90) days' written notice; or (ii) by the Trust or CMFS for any
uncured "cause" (as defined below) upon the provision of sixty (60) days'
advance written notice by the party alleging cause.
For purposes of this Agreement, "cause" shall mean:
(i) a material breach of this Agreement that has not been remedied within
thirty (30) days following written notice of such breach from the
non-breaching party;
(ii) an act or omission of a party to this Agreement involving gross
negligence, willful malfeasance or intentional wrongdoing;
(iii)a series of negligent acts, omissions or breaches of this Agreement
which, in the aggregate, constitute in the reasonable judgment of the
Trust, a serious, unremedied and ongoing failure to perform
satisfactorily CMFS' obligations hereunder;
(iv) a final, non-appealable judicial, regulatory or administrative ruling
or order in which the party to be terminated has been found guilty of
criminal or unethical behavior in the conduct of its business; or
(v) financial difficulties on the part of the party to be terminated which
are evidenced by the authorization or commencement of, or involvement
by way of pleading, answer, consent or acquiescence in, a voluntary or
involuntary case under Title 11 of the United States Code, as from
time to time is in effect, or any applicable law other than said Title
11, of any jurisdiction relating to the liquidation or reorganization
of debtors or the modification or alteration of the rights of
creditors.
In the event the Trust notifies CMFS of any foregoing cause in accordance
with the notice requirements of this provision, CMFS shall be given 45 days to
remedy such cause for termination. Upon remedying such cause, the notice of
termination provided by the Trust shall no longer have the effect of terminating
the Agreement. Finding "cause" shall not be determinative of any liability under
this Agreement, which is governed by Paragraph 7 hereof.
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Notwithstanding the foregoing, in the event this Agreement is terminated
and for any reason CMFS, with the written consent of the Trust, in fact
continues to perform any one or more of the services contemplated by this
Agreement or any schedule or exhibit hereto, the then pertinent provisions of
this Agreement, including without limitation the provisions dealing with
indemnification, shall continue in full force and effect. Compensation due CMFS
and unpaid by the Trust upon such termination shall be immediately due and
payable upon and notwithstanding such termination. CMFS shall be entitled to
collect from the Trust, in addition to the compensation described in Schedule E,
the amount of all of CMFS' expenses in connection with CMFS' activities in
effecting such termination, including without limitation, the delivery to the
Trust and/or its designees of the Trust's property, records, instruments and
documents. In the event this Agreement is terminated, CMFS will continue to
provide services to the Trust during the transition period to a successor
service provider and will cooperate with the successor service provider to
assist in as orderly, efficient and cost effective conversion as is reasonably
possible.
7. STANDARD OF CARE AND LIABILITY.
The duties of CMFS shall be confined to those expressly set forth herein,
and no implied duties are assumed by or may be asserted against CMFS hereunder.
CMFS shall be liable for any damages arising directly out of CMFS' failure to
perform its duties under this Agreement to the extent such damages arise
directly out of CMFS' willful misfeasance, bad faith, gross negligence in the
performance of its duties, or reckless disregard of it obligations and duties
hereunder. (As used in this paragraph 7, the term "CMFS" shall include
directors, officers, employees and other agents of CMFS as well as CMFS itself).
Without limiting the generality of the foregoing or any other provision of
this Agreement, CMFS shall not be liable for the validity or invalidity or
authority or lack thereof of any instruction, notice or other instrument that
CMFS reasonably believes to be genuine and to have been signed or presented by a
duly authorized representative of the Trust. CMFS shall not be liable for any
pricing error caused by the failure of the Trust's investment adviser or
subadviser to provide a trade ticket or for incorrect information included in
any trade ticket provided.
CMFS may at any time seek instructions from the Trust and may consult with
counsel for the Trust or its own counsel, and with accountants and other experts
with respect to any matter arising in connection with CMFS' duties hereunder,
and CMFS shall not be liable or accountable for any action taken or omitted by
it in good faith in accordance with such instruction or with the reasonable
opinion of such counsel, accountants or other experts qualified to render such
opinion. To the extent CMFS consults with Trust counsel pursuant to this
provision, such expense shall be an expense of the Trust.
In the event the Trust is converting from a prior service provider, CMFS
shall be entitled to rely upon the Trust's books and records provided to CMFS by
the prior service provider and shall have no duty to investigate whether such
books and records are complete or accurate. CMFS shall not be subject to
liability hereunder, to the extent CMFS cannot perform any of its services
hereunder as a result of a failure of the Trust's former service provider.
8. INDEMNIFICATION.
The Trust agrees to indemnify and hold harmless CMFS from and against any
and all actions, suits, claims, losses, damages, costs, charges, reasonable
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counsel fees and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) (collectively, "Losses") to which CMFS may
become liable arising directly or indirectly out of (i) any action or omission
to act which CMFS takes at any request or on the direction of or in reliance on
the reasonable advice of the Trust, the Trust's counsel or the Trust's
investment adviser, (ii) upon any instruction, notice or other instrument that
CMFS reasonably believes to be genuine and to have been signed or presented by a
duly authorized representative of the Trust, its investment adviser or other
duly authorized agent, (iii) any action or omission of CMFS that CMFS on its own
initiative, in good faith and in accordance with the standard of care set forth
in Paragraph 7 above, takes or does not take in connection with the performance
of its duties or obligations hereunder, (iv) any inaccuracy or omission in any
prospectus, registration statement, annual or other periodic report or proxy
statement of the Trust or any advertising, marketing, shareholder communication,
or promotional material generated by the Trust or its investment adviser, or (v)
any breach by the Trust of any representation, warranty or agreement contained
in this Agreement. CMFS shall not be indemnified against or held harmless from
any Losses arising directly or indirectly out of CMFS' own willful misfeasance,
bad faith, gross negligence in the performance of its duties, or reckless
disregard of its obligations and duties hereunder. (As used in this paragraph 8,
the term "CMFS" shall include directors, officers, employees and other agents of
CMFS as well as CMFS itself).
CMFS agrees to indemnify and hold harmless the Trust, its Trustees,
officers, employees and agents, from and against any and all actions, suits,
claims, losses, damages, costs, charges, reasonable counsel fees and
disbursements, payments, expenses and liabilities (including reasonable
investigation expenses) (collectively, "Losses") to which the Trust, its
Trustees, officers, employees and agents, may become liable arising directly or
indirectly out of CMFS' own willful misfeasance, bad faith, gross negligence in
the performance of its duties, or reckless disregard of its obligations and
duties as set forth in this Agreement.
If a claim is made against any party to this Agreement as to which that
party may seek indemnity under this paragraph 8 from the other party, the party
seeking indemnification shall notify the other party within ten (10) days after
receipt of any written assertion of such claim threatening to institute an
action or proceeding or service of summons or other legal process. Failure to
notify a party of a claim for indemnification will relieve the party from whom
indemnification is sought from any liability which it may have on account of the
indemnity provisions set forth under this paragraph 8 unless the party seeking
indemnification can demonstrate to the reasonable satisfaction of the other
party that such party has not been prejudiced in any material respect by such
failure to so notify.
The parties to this Agreement will cooperate in the control of the defense
of any action, suit or proceeding in which a party is involved and for which
indemnity is being provided by the other party. Any party from whom
indemnification is sought may negotiate the settlement of any action, suit or
proceeding subject to the other party's approval, which approval will not be
unreasonably withheld. The party seeking indemnification reserves the right, but
not the obligation, to participate in the defense or settlement of a claim,
action or proceeding with its own counsel. Costs or expenses incurred by a party
to whom indemnification is being provided in connection with, or as a result of
such participation, will be borne solely by the indemnifying party unless:
|X| the party seeking indemnification has received an opinion of counsel
from counsel to either party stating that the use of common counsel
would present an impermissible conflict of interest;
|X| the defendants in, or targets of, any such action or proceeding
include both CMFS and the Trust, and legal counsel to either party has
reasonably concluded that there are legal defenses available to a
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party which are different from or additional to those available to the
other party or which may be adverse to or inconsistent with defenses
available to a party; or
|X| the party from whom indemnification is sought authorizes the other
party to employ separate counsel at the expense of the indemnifying
party.
|X| The terms of this paragraph 8 will survive the termination of this
Agreement.
9. RECORD RETENTION AND CONFIDENTIALITY.
CMFS shall keep and maintain on behalf of the Trust all books and records
which the Trust and CMFS is, or may be, required to keep and maintain pursuant
to any applicable statutes, rules and regulations, including without limitation
Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance of books
and records in connection with the services to be provided hereunder. CMFS
further agrees that all such books and records maintained by CMFS in connection
with the services hereunder shall be the property of the Trust and to make such
books and records available for inspection by the Trust or by the SEC at
reasonable times and otherwise to keep confidential all books and records and
other information relative to the Trust and its shareholders; except when
requested to divulge such information by duly-constituted authorities or court
process.
10. FORCE MAJEURE.
CMFS assumes no responsibility hereunder, and shall not be liable, for any
damage, loss of data, delay or any other loss whatsoever caused by acts of civil
or military authority, national emergencies, fire, flood, catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
11. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
Except for computer software, programs and procedures, whether or not
customized for the Trust or one of its Portfolios, developed to perform services
required to be provided by CMFS under this Agreement, all books and records
maintained by CMFS in connection with its services under this Agreement are the
exclusive property of the Trust and all such records and data will be furnished
to the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason. CMFS may at its option at any time, and shall
promptly upon the Trust's demand, deliver to the Trust, at the Trust's expense,
and cease to retain CMFS books and records created and maintained by CMFS
pursuant to this Agreement which are no longer needed by CMFS in the performance
of its services or for its legal protection. CMFS shall be entitled to maintain
a copy of the Trust's books and records to the extent necessary for CMFS to
fulfill its regulatory obligations. If such books and records are not delivered
in accordance with this paragraph, CMFS will maintain such books and records in
accordance with applicable record keeping requirements from the date such books
and records were created. At the end of such retention period, such books and
records will be delivered to the Trust at the Trust's expense unless the Trust
instructs CMFS in writing to destroy such books and records. Any such
destruction will be at the Trust's expense. If destruction of books and records
is instructed by the Trust, CMFS shall provide reasonable proof of such
destruction to the Trust. Any such destruction authorization shall be evidenced
by a certified resolution of the Trust's Board of Trustees. The Trust shall
indemnify and hold harmless CMFS in accordance with Paragraph 8 of this
Agreement for any loss, claim or expense (including, but not limited to,
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reasonable attorneys' fees) in connection with CMFS' compliance with an
instruction to destroy any books and records pursuant to this paragraph.
12. REPRESENTATIONS OF THE TRUST.
The Trust certifies to CMFS that: (1) as of the close of business on the
Effective Date, each Portfolio that is in existence as of the Effective Date has
authorized the issuance of an indefinite number of shares and has elected to
register an indefinite number of shares in accordance with Rule 24f-2 under the
1940 Act; (2) this Agreement has been duly authorized by the Trust and, when
executed and delivered by the Trust, will constitute a legal, valid and binding
obligation of the Trust, enforceable against the Trust in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors and
secured parties; (3) if necessary, any shareholder approval of this Agreement
has been obtained; and (4) that it will promptly disclose any material
regulatory, civil or criminal investigation or proceeding during the term of
this Agreement, including any such investigation or proceeding in existence as
of the Effective Date.
13. REPRESENTATIONS OF CMFS.
CMFS represents and warrants that: (1) it has adopted and implemented
procedures intended to safeguard from loss or damage the books and records CMFS
maintains on behalf of the Trust pursuant to the terms of this Agreement; (2)
this Agreement has been duly authorized by CMFS and, when executed and delivered
by CMFS, will constitute a legal, valid and binding obligation of CMFS,
enforceable against CMFS in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties; (3) it is
duly registered with the appropriate regulatory agency as a transfer agent and
such registration will remain in full force and effect for the duration of this
Agreement; and (4) that it will promptly disclose any material regulatory, civil
or criminal investigation or proceeding during the term of this Agreement,
including any such investigation or proceeding in existence as of the Effective
Date.
14. INSURANCE.
Upon request, CMFS shall furnish the Trust with pertinent information
concerning the error and omission insurance coverage that it maintains. Such
information shall include the identity of its insurance carrier(s), coverage
levels and deductible amounts. CMFS shall notify the Trust within ten (10) days
should any of its insurance coverage be canceled or reduced. Such notification
shall include the date of change and the reasons therefore. Any failure on the
part of CMFS to notify the Trust of changes to CMFS' insurance coverage as set
forth in this paragraph 14 shall constitute a material breach of this Agreement,
and the Trust shall be entitled to terminate this Agreement immediately in the
event of such a breach.
15. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust has furnished to CMFS, or will furnish prior to the Effective
Date, the following:
(a) Copies of the following documents:
1. Copies of the Trust's current Declaration of Trust and of any
amendments thereto, certified by the proper official of the state
in which such document has been filed.
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2. The Trust's current Bylaws and any amendments thereto; and
3. Copies of resolutions of the Trustees covering the approval of
this Agreement, authorization of a specified officer of the Trust
to execute and deliver this Agreement and authorization for
specified officers of the Trust to instruct CMFS there under.
(b) A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct CMFS in
all matters.
(c) Copies of the current Prospectus and Statement of Additional
Information for each Portfolio.
(d) A list of all issuers the Portfolio's are restricted from purchasing.
(e) A list of all affiliated persons (as such term is defined in the ▇▇▇▇
▇▇▇) of the Trust that are broker-dealers.
(f) The identify of the Trust's auditors along with contact information.
(g) The expense budget for each Portfolio for the current fiscal year.
(h) A list of contact persons (primary, backup and secondary backup) of
the Trust's investment adviser and, if applicable, subadviser who can
be reached until 6:30 p.m. ET with respect to valuation matters.
The Trust shall promptly provide CMFS with written notice of any updates of or
changes to any of the foregoing documents or information, including an updated
written copy of such document or information. Until CMFS receives such updated
information or document, CMFS shall have no obligation to implement or rely upon
such updated information or document.
16. AMENDMENTS TO AGREEMENT.
This Agreement, or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and CMFS may
conclusively assume that any special procedure which has been approved by the
Trust does not conflict with or violate any requirements of any rule, regulation
or requirement of any regulatory body of the Trust's then current prospectuses.
17. COMPLIANCE WITH LAW.
Except for the obligations of CMFS specifically set forth herein, the Trust
assumes full responsibility for the preparation, substance and distribution of
each prospectus of the Trust as well as compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the 1940 Act and any other laws, rules and regulations of governmental
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authorities having jurisdiction. The Trust represents and warrants that no
shares of the Trust will be offered to the public until the Trust's registration
statement under the Securities Act and the 1940 Act has been declared or becomes
effective and currently is effective in accordance with the Securities Act and
the 1940 Act.
18. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to CMFS, at 83 General ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: President and CEO ▇▇▇▇ ▇▇▇▇▇ with
a copy to the attention of General Counsel ▇▇▇▇▇ ▇▇▇▇▇▇▇ and if to the Trust, at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ Attn: Chief
Operating Officer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; or at such other address as such party may
from time to time specify in writing to the other party pursuant to this
paragraph.
19. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by any party hereto except by the specific written consent of the other party.
This Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and permitted assigns.
20. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania and the applicable provisions of the 1940 Act. To
the extent that the applicable laws of the Commonwealth of Pennsylvania, or any
of the provisions herein, conflict with the applicable provisions of the 1940
Act, the provisions of the 1940 Act shall control.
21. MULTIPLE ORIGINALS.
This Agreement may be executed in two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
CITCO MUTUAL FUND SERVICES, INC. AGILEX FUNDS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President President
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SCHEDULE A
TO THE
MUTUAL FUND SERVICES AGREEMENT
BETWEEN
AGILEX FUNDS
AND
CITCO MUTUAL FUND SERVICES, INC.
--------------------------------------------------------------------------------
Dated October 26, 2004
--------------------------------------------------------------------------------
No - Load Load Class
Class
PORTFOLIOS
--------------------------------------------------------------------------------
All current Agilex Series X
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SERIES I (BLUE AND GREEN SHARES)
--------------------------------
(CLOSED TO NEW INVESTMENTS JUNE 30, 2003)
AGILEX Principal Protected 500 Series I
AGILEX Principal Protected 100 Series I
AGILEX Principal Protected 2000 Series I
AGILEX Principal Protected 400 Series I
AGILEX Principal Protected LS Series I*
SERIES II
---------
(CLOSED TO NEW INVESTMENTS DECEMBER 29, 2003)
AGILEX 500 Protected Growth Fund II
AGILEX 100 Protected Growth Fund II
AGILEX 400 Protected Growth Fund II
AGILEX 2000 Protected Growth Fund II
AGILEX Total Index Protected Growth Fund II
AGILEX LS Protected Growth Fund II*
SERIES III
----------
(CLOSED TO NEW INVESTMENTS MAY 31, 2004)
AGILEX Total Index Growth Fund III
*This Fund is only offered to
certain High Net Worth Investors
--------------------------------------------------------------------------------
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SCHEDULE B
TO THE
MUTUAL FUND SERVICES AGREEMENT
BETWEEN AGILEX FUNDS
AND
CITCO MUTUAL FUND SERVICES, INC.
DATED OCTOBER 26, 2004
ACCOUNTING SERVICES TO BE PROVIDED BY CITCO MUTUAL FUND SERVICES, INC. FOR THE
PORTFOLIOS OF THE TRUST AS SET FORTH ON SCHEDULE A
(a) Maintenance of Accounting Books And Records.
With respect to the services provided by CMFS under this Agreement, CMFS
shall maintain and keep current the accounts, books, records and other
documents relating to the Trust's financial and portfolio transactions as
may be required by the rules and regulations of the Securities and Exchange
Commission (the "SEC") adopted under Section 31(a) of the 1940 Act. CMFS
shall cause the subject records of the Trust to be maintained and preserved
pursuant to the requirements of the 1940 Act.
(b) Daily Accounting Services.
CMFS shall perform the following accounting services daily for each
Portfolio:
(i) Calculate the net asset value per share utilizing prices obtained
from the sources described in subsection 1(b)(ii) below;
(ii) Obtain security prices from independent pricing services, or if
such quotes are unavailable, then obtain such prices from each
Portfolio's investment adviser or its designee as approved by the
Trust's Board of Trustees (hereafter referred to as "Trustees");
(iii) Verify and reconcile with the Portfolios' custodian all
daily trade activity;
(iv) Compute, as appropriate, each Portfolio's net income and capital
gains, dividend payables, dividend factors, yields, and weighted
average portfolio maturity;
(v) Review daily the net asset value calculation and dividend factor
(if any) for each Portfolio for release to shareholders for
reasonableness and deviations, and distribute net asset values
and yields to NASDAQ or such other exchange or reporting entity
as is approved by the Trustees;
(vi) Determine unrealized appreciation and depreciation on securities
held by the Portfolios;
(vii) Amortize premiums and accrete discounts on securities purchased
at a price other than face value, if requested by the Trust;
(viii) Update accounting system to reflect rate changes, as received
from a Portfolio's investment adviser or designee, on variable
interest rate instruments;
(ix) Post Portfolio transactions to appropriate categories;
(x) Accrue expenses of each Portfolio according to instructions
received from the Trust's treasurer or other authorized
representative (including officers of the Trust's investment
adviser);
12
(xi) Determine the outstanding receivables and payables for all (1)
security trades, (2) portfolio share transactions and (3) income
and expense accounts in accordance with the budgets provided by
the Trust or its investment adviser;
(xii) Provide accounting reports in connection with the Trust's
regular annual audit and other audits and examinations by
regulatory agencies.
(c) Additional Reports and Services.
(i) Upon reasonable notice and as mutually agreed upon, CMFS may
provide additional reports upon the request of the Trust or its
investment adviser, which may result in additional charges, the
amount of which shall be agreed upon between the parties prior to
the provision of such report.
(ii) Upon reasonable notice and as mutually agreed upon, CMFS may
provide such other similar services with respect to a Portfolio,
which may result in an additional charge, the amount of which
shall be agreed upon between the parties prior to the provision
of such service.
(d) Additional Periodic Accounting Services.
CMFS shall also perform the following additional accounting services for
each Portfolio in accordance with such deadlines as the parties mutually agree
upon:
(i) Provide periodic(as may reasonably requested by the Trust or a
Portfolio's investment adviser) a set of financial statements for
each Portfolio as described below, upon request of the Trust: (1)
Statement of Assets and Liabilities (2) Statement of Operations
(3) Statement of Changes in Net Assets (4) Security Purchases and
Sales Journals (5) Portfolio Holdings Reports (6) Weekly
Amortized Cost vs. Market Value Analysis Reports
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise tax
returns, which will be prepared by the Trust's auditor or
tax counsel;
(B) the Trust's semi-annual reports on Form N-SAR;
(C) the Trust's annual, semi-annual and quarterly (if any)
shareholder reports;
(D) registration statements on Form N-1A and other filings
relating to the registration of shares;
(E) CMFS' monitoring of the Trust's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code, as amended;
(F) annual audit by the Trust's auditors; and
(G) examinations performed by the SEC.
13
SCHEDULE C
TO THE
MUTUAL FUND SERVICES AGREEMENT
BETWEEN AGILEX FUNDS
AND
CITCO MUTUAL FUND SERVICES, INC.
DATED OCTOBER 26, 2004
ADMINISTRATIVE SERVICES TO BE PROVIDED BY CITCO MUTUAL FUND SERVICES, INC. FOR
THE PORTFOLIOS OF THE TRUST AS SET FORTH ON SCHEDULE A
CMFS shall provide the Trust with necessary office space, equipment,
personnel and facilities for handling the affairs of the Trust as they relate to
the services provided under this Agreement (including the schedules to the
Agreement). Further, CMFS shall:
(a) calculate expenses and administer all disbursements with respect to
each Portfolio, and as appropriate compute the Portfolios respective
yields, total return, expense ratios and portfolio turnover rate;
(b) prepare such reports, notices and other documents (including reports
regarding the sale and redemption of shares of the Trust) as may be
necessary or desirable to make notice filings relating to the Trust's
shares with federal and state securities authorities to enable the
Trust to make a continuous offering of its shares; provided that CMFS
shall not be required to provide an opinion regarding the valid
issuance of the shares if such an opinion of counsel is required;
(c) Help prepare and coordinate the mailing of prospectuses, proxy
statements, and other reports to Trust shareholders as the Trust may
request upon reasonable notice;
(d) provide a location at which to hold shareholders meetings and
supervise the tabulation of shareholder votes for such meetings;
(e) coordinate obtaining and maintaining the Trust's fidelity bond in
accordance with the requirements of the 1940 Act;
(f) in conjunction with the Trust's tax counsel and auditors, monitor and
advise the Trust and its Portfolios on their registered investment
company status under the Internal Revenue Code of 1986;
(g) on a post-trade basis, monitor the Trust and its Portfolios for
compliance with applicable investment limitations as imposed by the
1940 Act and the rules and regulations there under or set forth in the
Trust's or any Portfolio's then current Prospectus or Statement of
Additional Information;
a. in this regard, the Trust shall promptly provide CMFS with
updated copies of such documents (including restricted issuer or
country lists) as they may be amended from time to time;
14
b. as CMFS' compliance monitoring is on a post-trade basis, the
portfolio managers and their employers must monitor compliance
with prospectus and 1940 Act investment limitations on a
pre-trade basis;
c. in order for CMFS to adequately fulfill its undertaking pursuant
to this provision of the Agreement, the portfolio manager(s) will
need to:
i. provide CMFS with information (e.g., checklists) on a
periodic basis;
ii. identify any cross trades involving a Portfolio;
iii. identify any illiquid securities purchased on behalf of a
Portfolio; and
iv. advise the Portfolio's investment adviser of circumstances
where the price of one of the Portfolio's securities may not
be readily available whether because of the occurrence of a
significant event or for any other reason (e.g., including
but not limited to, trading halts, corporate actions,
illiquidity), therefore requiring the security to be fair
valued by the investment adviser subject to ratification by
the Trust's Board of Trustees.
d. CMFS' undertaking in this provision shall not include the
following types of monitoring: (i) calculating the amount
necessary to cover senior securities as defined under the 1940
Act and the SEC Staff's interpretation thereof; (ii) selecting
liquid assets to cover senior securities; (iii) compliance with
the Trust's proxy voting policy or filing of Form N-PX; (iv)
filing of Form 13F or Schedule 13G; (v) ensuring that the cash
management instructions provided by the portfolio manager(s) is
consistent with applicable regulatory requirements; (vi)
compliance with any applicable repurchase agreement procedures;
(vii) compliance with Rules 17e-1 and 10f-3 of the 1940 Act; or
(viii) compliance with any applicable market timing restriction.
(h) assist in the preparation of, and coordinate the compilation and
complete the mailing of materials for quarterly and special meetings
of the Trustees. To accomplish this, the Trust shall provide CMFS with
notice of regular meetings at least six (6) weeks before such meeting
and as soon as practicable before any special meeting of the Trustees
and otherwise provide access to any persons (including Trust counsel
or auditors) required to assist the Administrator and the Trust;
(i) cooperate with, and take all reasonable actions in the performance of
its duties under this Agreement to ensure that all necessary
information is made available to the Trust's independent public
accountants in connection with the preparation of any audit or report
requested by the Trust, including the provision of a conference room
at CMFS' location if necessary (in this regard, the Trust's
independent auditors shall provide CMFS with reasonable notice of any
such audit so that CMFS will be able to promptly respond to such
information requests without undue disruption of its business); and
(j) prepare and file with the SEC periodic financial reports on form
N-SAR, N-CSR, NQ, Annual Update(N1A) and filings required pursuant to
Rule 24f-2 under the 1940 Act.
Additional Administrative Services. Upon reasonable notice and as mutually
agreed upon, CMFS may provide additional administrative services upon the
request of the Trust or its investment adviser, which may result in additional
charges, the amount of which shall be agreed upon between the parties prior to
the provision of such report.
15
SCHEDULE D
TO THE
MUTUAL FUND SERVICES AGREEMENT
BETWEEN AGILEX FUNDS
AND
CITCO MUTUAL FUND SERVICES, INC.
DATED OCTOBER 26, 2004
TRANSFER AGENCY SERVICES TO BE PROVIDED BY CITCO MUTUAL FUND SERVICES, INC. FOR
THE PORTFOLIOS OF THE TRUST AS SET FORTH ON SCHEDULE A
(a) SHAREHOLDER TRANSACTIONS
------------------------
(i) Process shareholder purchase and redemption orders in accordance
with conditions set forth in the Trust's prospectus.
(ii) Set up account information, including address, dividend option,
taxpayer identification numbers and wire instructions (if the
Trust is converting from a former service provider, CMFS shall be
entitled to rely upon the account registration and features
reflected on the records its receives from the former service
provider without an obligation to investigate the accuracy
thereof).
(iii) Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended (the "1934 Act").
(iv) Issue periodic statements for shareholders as required by
applicable law.
(v) Process transfers and exchanges.
(vi) Act as dividend paying agent.
vii) Record the issuance of shares and maintain pursuant to Rule
17Ad-10(e) of the 1934 Act a record of the total number of shares
of each Portfolio which are authorized, based upon data provided
to it by the Trust, and issued and outstanding.
(viii) Perform such services as are required to comply with Rules
17a-24 and 17Ad-17 of the 1934 Act (the "Lost Shareholder
Rules").
(b) SHAREHOLDER INFORMATION SERVICES
--------------------------------
(i) Produce detailed history of transactions through duplicate or
special order statements upon request.
(ii) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to current
shareholders to the Trust's mail house.
16
(iii) Respond as appropriate to all inquiries and communications from
shareholders relating to shareholder accounts.
(c) SHAREHOLDER TAX REPORTING
-------------------------
(i) Prepare and distribute appropriate Internal Revenue Service forms
for shareholder income and capital gains.
(ii) Issue tax withholding reports to the Internal Revenue Service.
(d) DEALER/LOAD PROCESSING (IF APPLICABLE)
--------------------------------------
(i) Provide reports for tracking rights of accumulation and purchases
made under a Letter of Intent.
(ii) Account for separation of shareholder investments from
transaction sale charges for purchase of Portfolio shares.
(iii) Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
(iv) Track sales and commission statistics by dealer and provide for
payment of commissions on direct shareholder purchases in a load
Portfolio.
CMFS shall perform such other services for the Trust that are mutually
agreed upon by the parties from time to time either at such fee as mutually
agreed upon by the parties; provided, however that the Trust or CMFS may retain
third parties to perform such other services in accordance with paragraph 2 of
this Agreement. Such services may include, without limitation, mailing
shareholder reports and mailing notices of shareholders' meetings, proxies and
proxy statements, for which the Trust promptly will reimburse CMFS' for its
out-of-pocket expenses.
Additional Transfer Agency Services. Upon reasonable notice and as mutually
agreed upon, CMFS may provide additional administrative services upon the
request of the Trust or its investment adviser, which may result in additional
charges, the amount of which shall be agreed upon between the parties prior to
the provision of such report.
17
SCHEDULE E
TO THE
MUTUAL FUND SERVICES AGREEMENT
BETWEEN AGILEX FUNDS
AND
CITCO MUTUAL FUND SERVICES, INC.
DATED OCTOBER 26, 2004
FEE SCHEDULE
FOR ADMINISTRATION SERVICES
Citco Mutual Fund Services, Inc. (CMFS) will provide all of the services
described in Schedules B-D of this Agreement for the following fees: either a
$300,000 minimum annual fee or applicable scheduled fees as noted below, which
ever is greater, payable in equal monthly installments and allocated on a pro
rata basis.
--------------------------------------------------------------------------------
Average Daily Net Assets Annualized Fees
--------------------------------------------------------------------------------
Assets up to 200 million 0.25%
--------------------------------------------------------------------------------
200-300 million 0.20%
--------------------------------------------------------------------------------
300-500 million 0.15%
--------------------------------------------------------------------------------
>600 million 0.10%
--------------------------------------------------------------------------------
Portfolios executing more than 100 portfolio trades per month and that cause the
Trust to exceed its aggregate monthly allowable trades will be charged $5 per
trade for each trade in excess of 100. In addition to the above fees, each
Portfolio will reimburse CMFS for the costs of the daily portfolio price
quotation services utilized by the Portfolio(s). CMFS will create a single
master security file from the portfolio holdings of each series of the Trust.
The cost of obtaining securities prices for securities held by a single series
will be borne by that series.
CHANGE OF TERMS:
This schedule is based upon current regulatory requirements and the Trust's
current requirements as set forth in its registration statement, organizational
documents, policies and procedures. Any material change to any of the foregoing,
including but not limited to, a material change in the Trust's assets, or number
of accounts, a significant change in the percentage of transactions in the
Trust's shares via NSCC, the investment objective of a Portfolio or to the
minimum investment amount will constitute a material change to this Agreement.
If such a change occurs, the parties agree to negotiate in good faith to modify
the foregoing fee schedule in accordance with the additional requirements
resulting from such material change(s).
18