AMENDED AND RESTATED
OPERATING SERVICES AGREEMENT
THE SHEPHERD STREET FUNDS, INC.
THIS AGREEMENT, originally made and entered into as of the 30th of
September, 1998 and amended and restated as of the 1st day of November, 2000, by
and between The Shepherd Street Funds, Inc., a Maryland corporation (the
"Fund"), and Salem Investment Counselors, Inc., a North Carolina corporation
(hereinafter referred to as "Manager").
WHEREAS, the Fund is a diversified, open-end management investment company,
registered under the Investment Company Act of 1940, as amended (the "Act"), and
authorized to issue shares representing interests in The Shepherd Street Equity
Fund (the "Portfolio"); and
WHEREAS, Manager is registered as an investment advisor under the
Investment Advisors Act of 1940, and engages in the business of asset management
and the provision of certain other administrative and record keeping services in
connection therewith; and
WHEREAS, the Fund wishes to engage Manager, to provide, or arrange for the
provision of, certain operational services which are necessary for the
day-to-day operations of the Portfolio in the manner and on the terms and
conditions hereinafter set forth, and Manager wishes to accept such engagement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Fund and Manager agree as follows:
1. OBLIGATIONS OF MANAGER
(a) SERVICES. The Fund hereby retains Manager to provide, or, upon receipt
of written approval of the Fund arrange for other companies to
provide, the following services to the Portfolio in the manner and to
the extent that such services are reasonably necessary for the
operation of the Portfolio (collectively, the "Services"):
(1) accounting services and functions, including costs and expenses
of any independent public accountants;
(2) non-litigation related legal and compliance services, including
the expenses of maintaining registration and qualification of the
Fund and the Portfolio under federal, state and any other
applicable laws and regulations;
(3) dividend disbursing agent, dividend reinvestment agent, transfer
agent, and registrar services and functions (including answering
inquiries related to shareholder Portfolio accounts);
(4) custodian and depository services and functions;
(5) distribution, marketing, and/or underwriting services;
(6) independent pricing services;
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(7) preparation of reports describing the operations of the
Portfolio, including the costs of providing such reports to
broker-dealers, financial institutions and other organizations
which render services and assistance in connection with the
distribution of shares of the Portfolio;
(8) sub-accounting and recordkeeping services and functions (other
than those books and records required to be maintained by Manager
under the Investment Advisory Agreement between the Fund and
Manager dated August 15, 1998), including maintenance of
shareholder records and shareholder information concerning the
status of their Portfolio accounts by investment advisors,
broker-dealers, financial institutions, and other organizations
on behalf of Manager;
(9) shareholder and board of directors communication services,
including the costs of preparing, printing and distributing
notices of shareholders' meetings, proxy statements,
prospectuses, statements of additional information, Portfolio
reports, and other communications to the Fund's Portfolio
shareholders, as well as all expenses of shareholders' and board
of directors' meetings, including the compensation and
reimbursable expenses of the directors of the Fund;
(10) other day-to-day administrative services, including the costs of
designing, printing, and issuing certificates representing shares
of the Portfolio, and premiums for the fidelity bond maintained
by the Fund pursuant to Section 17(g) of the Act and rules
promulgated thereunder (except for such premiums as may be
allocated to third parties, as insureds thereunder).
(b) EXCLUSIONS FROM SERVICE. Notwithstanding the provisions of Paragraph
1(a) above, the Services shall not include, and Manager will not be
responsible for, any of the following:
(1) all brokers' commissions, issue and transfer taxes, and other
costs chargeable to the Fund or the Portfolio in connection with
securities transactions to which the Fund or the Portfolio is a
party or in connection with securities owned by the Fund or the
Portfolio;
(2) the interest on indebtedness, if any, incurred by the Fund or the
Portfolio;
(3) the taxes, including franchise, income, issue, transfer, business
license, and other corporate fees payable by the Fund or the
Portfolio to federal, state, county, city, or other governmental
agents;
(4) the expenses, including fees and disbursements of counsel, in
connection with litigation by or against the Fund or the
Portfolio; and
(5) any other extraordinary expense of the Fund or Portfolio.
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(c) BOOKS AND RECORDS. All books and records prepared and maintained by
Manager for the Fund under this Agreement shall be the property of the
Fund and, upon request therefor, Manager shall surrender to the Fund
such of the books and records so requested.
(d) STAFF AND FACILITIES. Manager assumes and shall pay for maintaining
the staff, personnel, space, equipment and facilities necessary to
perform its obligations under this Agreement.
2. OBLIGATIONS OF THE FUND
(a) FEE. The Fund will pay to Manager on the last day of each month a fee
at an annual rate equal to 0.50% of average net asset of the
Portfolio, such fee to be computed daily based upon the net asset
value of the Portfolio as determined by a valuation made in accordance
with the Fund's procedure for calculating Portfolio net asset value as
described in the Fund's Prospectus and/or Statement of Additional
Information. During any period when the determination of a Portfolio's
net asset value is suspended by the directors of the Fund, the net
asset value of a share of that Portfolio as of the last business day
prior to such suspension shall, for the purpose of this Paragraph
2(a), be deemed to be the net asset value at the close of each
succeeding business day until it is again determined.
(b) INFORMATION. The Fund will, from time to time, furnish or otherwise
make available to Manager such information relating to the business
and affairs of the Portfolio as Manager may reasonably require in
order to discharge its duties and obligations hereunder.
3. TERM. This Agreement shall remain in effect until no later than September
30, 2000, and from year to year thereafter provided such continuance is approved
at least annually by (1) the vote of a majority of the Board of Directors of the
Fund or (2) a vote of a "majority" (as that term is defined in the Investment
Company Act of 1940) of the Fund's outstanding securities, provided that in
either event the continuance is also approved by the vote of a majority of the
directors of the Fund who are not parties to this Agreement or "interested
persons" (as defined in the Act) of any such party, which vote must be cast in
person at a meeting called for the purpose of voting on such approval; PROVIDED,
HOWEVER, that;
(a) the Fund, at any time and without the payment of any penalty may
terminate this Agreement upon 120 days written notice to Manager;
(b) the Agreement shall immediately terminate in the event of its
assignment (within the meaning of the Act and the Rules thereunder);
and
(c) Manager may terminate this Agreement without payment of penalty on 120
days written notice to the Fund.
4. NOTICES. Except as otherwise provided in this Agreement, any notice or
other communication required by or permitted to be given in connection with this
Agreement will be in writing and will be delivered in person or sent by first
class mail, postage prepaid or by prepaid overnight delivery service to the
respective parties as follows:
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IF TO THE FUND: IF TO THE MANAGER:
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The Shepherd Street Funds, Inc. Salem Investment Counselors, Inc.
480 Shepherd Street 480 Shepherd Street
Winston-Salem, NC 27103 Winston-Salem, NC 27103
ATTENTION: David B. Rea ATTENTION: Jeffrey Howard
President Vice President
5. MISCELLANEOUS
(a) Performance Review. Manager will permit representatives of the Fund,
including the Fund's independent auditors, to have reasonable access
to the personnel and records of Manager in order to enable such
representatives to monitor the quality of services being provided and
the level of fees due Manager pursuant to this Agreement. In addition,
Manager shall promptly deliver to the board of directors of the Fund
such information as may reasonably be requested from time to time to
permit the board of directors to make an informed determination
regarding continuation of this Agreement and the payments contemplated
to be made hereunder.
(b) Choice of Law. This Agreement shall be construed in accordance with
the laws of the State of Maryland and the applicable provisions of the
Act. To the extent the applicable law of the State of Maryland or any
of the provisions herein conflict with the applicable provisions of
the Act, the latter shall control.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the day and year first above written.
THE SHEPHERD STREET FUNDS, INC. SALEM INVESTMENT COUNSELORS, INC.
/s/ David B. Rea /s/ Jeffrey C. Howard
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By: David B. Rea By: Jeffrey Howard
President Vice President
ATTEST: ATTEST:
/s/ Jeffrey C. Howard /s/ William R. Watson
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By: Jeffrey C. Howard By: William R. Watson
Secretary Secretary
