AMENDED AND RESTATED
--------------------
FUND SERVICES AGREEMENT
-----------------------
AMENDED AND RESTATED FUND SERVICES AGREEMENT made as of October 7, 2002, by
and between E*TRADE Funds (the "Trust"), on behalf of each series listed on
Exhibit A hereto (each a "Fund"; collectively, the "Funds"), as such Exhibit A
may be amended from time to time, and The Bank of New York, a New York banking
organization ("BNY").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Trust and BNY entered into a Fund Services Agreement on
October 7, 2002, and each party wishes to amend and restate that agreement
herein;
WHEREAS, the Trust is an investment company registered under the Investment
Company Act of 1940, as amended (the "1940 Act") and each Fund is a separate
investment series of the Trust;
WHEREAS, each Fund desires to retain BNY to provide the services identified
in Schedule I of Exhibit A hereto and BNY is willing to provide such services,
all as more fully set forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
------------
The Trust, on behalf of the Funds, hereby appoints BNY as its agent for the
term of this Agreement to perform the services for each Fund, as described in
Schedule I of Exhibit A, herein. BNY hereby accepts such appointment and agrees
to perform these services in accordance with the terms described herein.
2. Representations and Warranties.
-------------------------------
(a) The Trust hereby represents and warrants to BNY, which representations
and warranties shall be deemed to be continuing, that:
(i) it is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business
as now conducted, to enter into this Agreement and to perform its
obligations hereunder;
(ii) this Agreement has been duly authorized, executed and delivered
by the Trust in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Trust, enforceable in
accordance with its terms; and
(iii) it is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all
regulatory licenses, approvals and
consents necessary to carry on its business as now conducted; there is no
statute, regulation, rule, order or judgment binding on it and no provision
of its trust instrument, and all amendments thereto ("Charter") or by-laws,
and all amendments thereto ("Bylaws") nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property
which would prohibit its execution or performance of this Agreement.
(b) BNY hereby represents and warrants to the Trust, which representations
and warranties shall be deemed to be continuing, that:
(i) it is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business
as now conducted, to enter into this Agreement and to perform its
obligations hereunder;
(ii) this Agreement has been duly authorized, executed and delivered
by it in accordance with all requisite action and constitutes a valid and
legally binding obligation, enforceable in accordance with its terms; and
(iii) it is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all
regulatory licenses, approvals and consents necessary to carry on its
business as now conducted; there is no statute, regulation, rule, order or
judgment binding on it and no provision of its organizational documents,
nor of any mortgage, indenture, credit agreement or other contract binding
on it or affecting its property which would prohibit its execution or
performance of this Agreement.
3. Delivery of Documents and Notification of Filing.
-------------------------------------------------
(a) The Trust will promptly deliver to BNY true and correct copies of each
of the Trust's Charter and Bylaws as currently in effect and will promptly
deliver to it all future amendments and supplements thereto, if any, and a
resolution of the Trust's Board authorizing the execution, delivery and
performance of this Agreement.
(b) The Trust shall notify BNY of the date of filing of any amendment or
applicable supplement to its then-current prospectus or statement of additional
information most recently filed with the Securities and Exchange Commission (the
"SEC") relating to the shares of the Fund (the "Prospectus"), and until such
notice is received BNY shall not be deemed to have notice of any information
contained in such supplement or amendment.
4. Duties and Obligations of BNY.
------------------------------
(a) Subject to the direction and control of the Trust's Board and the
provisions of this Agreement, BNY shall provide to each Fund the services set
forth on Schedule I attached hereto.
(b) In performing hereunder, BNY shall provide, at its expense, office
space, facilities, equipment and personnel.
2
(c) In performing hereunder, BNY shall in accordance with its standard of
care endeavor to act in conformity with the Trust's Charter and By-laws last
delivered to BNY; the 1940 Act and the rules thereunder, including but not
limited to Rules 31a-1 to 31a-3, and other applicable laws and regulations, as
the same may be amended from time to time; and each Fund's Prospectus.
(d) BNY shall not provide any services relating to the management,
investment advisory or sub-advisory functions of any Fund, distribution of
shares of any Fund, maintenance of any Fund's financial records or services
normally performed by the Funds' respective counsel or independent auditors,
except as otherwise described in this Agreement.
(e) Upon receipt of the Trust's prior written consent and not otherwise,
BNY may delegate any of its duties and obligations hereunder to any delegee or
agent on such terms and conditions including BNY's liability for the acts or
omissions for such delegee or such agent as BNY and the Trust agree upon in
writing.
(f) The Trust shall cause its officers, advisors, sponsor, distributor,
legal counsel, independent accountants, administrator, and transfer agent
("service providers"), to cooperate with BNY and to provide BNY, upon request,
such information, documents and advice relating to the Funds as is within the
possession or knowledge of such persons and is reasonably believed by BNY to be
necessary or appropriate in order for BNY to perform its duties hereunder. In
connection with its duties hereunder, BNY shall be entitled to rely on any
instructions, advice, information, or documents relating to the Funds provided
to BNY by any of the service providers described in this subsection (f). All
fees or costs charged by such service providers shall be borne by the
appropriate Fund. BNY shall promptly notify the Trust if any requested
information, document, or advice is not promptly received in response to a
request by BNY.
(g) Nothing in this Agreement shall limit or restrict BNY, any affiliate
of BNY or any officer or employee thereof from acting as administrator for or
with any third parties.
(h) BNY may request from the Trust written instructions with respect to
any matter or issue which is not routine and not generally arising in the
ordinary course in connection with BNY's performance hereunder. BNY is entitled
to reasonably rely and act in good faith accordance with such written
instructions given by authorized persons and shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with such
instructions. Such request for instructions may, at the option of BNY, set forth
in writing any action proposed to be taken or omitted to be taken by BNY with
respect to its duties or obligations under this Agreement and the date on and/or
after which such action shall be taken, and BNY shall not be liable for any
action taken or omitted to be taken in accordance with the proposal included in
any such request on or after the date specified therein unless, prior to taking
or omitting to take any such action, BNY has received written instructions in
response to such request specifying the action to be taken or omitted. BNY may
consult with counsel to the Trust, at the Trust's expense or its own counsel, at
BNY's expense, with respect to any matter or issue. Following such consultation,
BNY must promptly notify the Trust of the course of action that BNY intends to
take if written instructions are not received within a stated additional period
of time after such notice. Under these circumstances, BNY shall not be liable
for taking such actions as if written instructions had been provided.
3
(i) BNY shall be responsible for determining and properly reflecting, and
advising or notifying the Trust of: (i) the taxable nature of any distribution
or amount received or deemed received by, or payable to, a Fund, (ii) the
taxable nature or effect on a Fund or its shareholders of any corporate actions,
class actions, tax reclaims, tax refunds or similar events, (iii) the taxable
nature or taxable amount of any distribution or dividend paid, payable or deemed
paid, by a Fund to it shareholders; or (iv) the effect under any federal, state,
or foreign income tax laws of a Fund making or not making any distribution or
dividend payment, or any election with respect thereto.
(j) BNY shall have no duties or responsibilities whatsoever except such
duties and responsibilities as are specifically set forth in this Agreement and
Schedules I or II hereto, and no covenant or obligation shall be implied against
BNY in connection with this Agreement.
5. Allocation of Expenses.
----------------------
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, officers or employees, legal, accounting and audit expenses,
management, advisory, sub-advisory, administration and shareholder servicing
fees, charges of custodians, transfer and dividend disbursing agents, expenses
(including clerical expenses) incident to the issuance, redemption or repurchase
of Fund shares, fees and expenses incident to the registration or qualification
under federal or state securities laws of the costs (including mailing costs) of
printing and distributing Prospectuses, reports, notices and proxy materials to
such Fund's shareholders, all expenses incidental to holding meetings of such
Fund's trustees and shareholders, and extraordinary expenses as may arise,
including litigation affecting such Fund and legal obligations relating thereto
for which the Fund may have to indemnify its trustees and officers.
6. Standard of Care; Indemnification.
----------------------------------
(a) BNY shall at all times act in good faith and agree to fulfill its
obligations under this Agreement, but assumes no responsibility for loss or
damage to the Funds or Trust unless such loss or damage is caused by BNY's own
bad faith, negligence, or willful misconduct or that of its directors, officers
or employees. BNY shall be responsible hereunder for all direct damages
resulting from its own negligence, bad faith or willful misconduct, or that of
its directors, officers or employees, delegees, or agents, provided however that
it shall not be liable to the Funds or Trust or any third party for any special,
indirect, or consequential damages, or for lost profits or lost business arising
under or in connection with this Agreement, even if previously informed of such
possibility and regardless of the form of action.
(b) Each Fund shall indemnify and hold harmless BNY from and against any
and all costs, expenses, damages, liabilities and claims (including claims
asserted by a Fund), and reasonable attorneys' and accountants' fees relating
thereto, which are sustained or incurred or which may be asserted against BNY,
by reason of or as a result of any action taken or omitted to be taken by BNY in
good faith hereunder or in reasonable reliance upon (i) any law, act,
4
regulation or interpretation of the same even though the same may thereafter
have been altered, changed, amended or repealed, (ii) the Trust's Prospectus or
Prospectus(es), (iii) any instructions of an officer of the Trust, (iv) any
opinion of legal counsel for the Trust or BNY, or (v) any information described
in Section 4(f); provided, that no Fund shall indemnify BNY for costs, expenses,
damages, liabilities or claims arising out of BNY's own negligence, bad faith or
willful misconduct or that of its directors, officers or employees, delegees, or
agents. This indemnity shall be a continuing obligation of a Fund, its
successors and assigns, notwithstanding the termination of this Agreement.
(c) BNY shall indemnify and hold harmless the Trust and each Fund from and
against any and all costs, expenses, damages, liabilities and claims (including
claims asserted by BNY), and reasonable attorneys' and accountants' fees arising
out of the negligence, bad faith or willful misconduct of BNY or that of its
directors, officers or employees, delegees, or agents, except that in no event
shall the Bank be liable for special, indirect or consequential damages, or for
lost profits or loss of business. This indemnity shall be a continuing
obligation of BNY, its successors and assigns, notwithstanding the termination
of this Agreement.
(d) Actions taken or omitted in reasonable reliance on oral or written
instructions, or upon any information, order, indenture, stock certificate,
power of attorney, assignment, affidavit or other instrument reasonably believed
by BNY to be genuine or bearing the signature of a person or persons reasonably
believed to be authorized to sign, countersign or execute the same, or upon the
opinion of legal counsel for the Trust or BNY's own counsel, shall be
conclusively presumed to have been taken or omitted in good faith, and action
taken or omitted in reliance on information described in Section 4(f) and in
accordance with the standards set forth in Section 4(f), shall be conclusively
presumed to have been taken or omitted in good faith and without negligence.
7. Compensation.
-------------
For the services provided hereunder, the Trust agrees to pay BNY such
compensation as is mutually agreed from time to time and such out-of-pocket
expenses (e.g., telecommunication charges, postage and delivery charges, record
retention costs, reproduction charges and transportation and lodging costs) as
are reasonably incurred by BNY in performing its duties hereunder and as is
mutually agreed from time to time. Except as hereinafter set forth, compensation
shall be calculated and accrued daily and paid monthly. Each Fund authorizes BNY
to debit such Fund's custody account for all amounts due and payable hereunder.
BNY shall deliver to each Fund invoices for services rendered after debiting
such Fund's custody account with an indication that payment has been made. Upon
termination of this Agreement before the end of any month, the compensation for
such part of a month shall be prorated according to the proportion which such
period bears to the full monthly period and shall be payable upon the effective
date of termination of this Agreement. For the purpose of determining
compensation payable to BNY, each Fund's net asset value shall be computed at
the times and in the manner specified in the Fund's then-current Prospectus.
5
8. Recordkeeping.
--------------
BNY shall, as agent for the Trust, and subject to the direction and
approval of the Trust's Board and the provisions of this Agreement, maintain and
keep current the books, accounts and other documents, if any, pursuant to the
services and duties provided by BNY as set forth in Schedules I and II of this
Agreement, and preserve any such books, accounts and other documents in
accordance with the applicable provisions of Section 31 of the 1940 Act, and the
rules and regulations thereunder, and in particular Rule 31a-2, as may be
amended. Such books, accounts and other documents shall be made available upon
reasonable request for inspection by officers, employees, auditors and counsel
of the Trust during BNY's normal business hours. All records maintained and
preserved by BNY pursuant to this Agreement which the Trust is required to
maintain and preserve in accordance with Rule 31a-2 of the 1940 Act, as may be
amended, shall be and remain the property of the Trust and shall be surrendered
to the Trust promptly upon request in the form in which such records have been
maintained and preserved. Upon reasonable request of the Trust, BNY shall
provide in data files or hard copy, whichever the Trust shall reasonably
request, any records included in any such delivery which are maintained by BNY
on a computer disc, or are similarly maintained, and the Trust shall reimburse
BNY for its expenses reasonably incurred in providing such record.
9. Term of Agreement.
------------------
(a) This Agreement shall continue until terminated at any time without
payment of any penalty, by either BNY giving to the Trust, or the Trust giving
to BNY, a notice in writing specifying the date of such termination, which date
shall be not less than 90 days after the date of the giving of such notice. Upon
termination hereof, the Trust shall pay to BNY such compensation as may be due
as of the date of such termination, and shall reimburse BNY for any
disbursements and expenses made or incurred by BNY and payable or reimbursable
hereunder.
(b) Notwithstanding the foregoing, BNY or the Trust may terminate this
Agreement upon 60 days' prior written notice to the other party if the either
party terminates either (i) the custody agreement between the parties or (ii)
fund accounting agreement between the parties, or fails to perform its
obligations hereunder in a material respect.
(c) In accordance with this Section 9, the Trust may terminate this
Agreement with respect to one or more specific Funds without terminating with
respect to other Funds.
10. Confidentiality.
----------------
All books, records, information and data pertaining to the business of the
Funds, or their prior, present or potential shareholders that are exchanged or
received in connection with the performance of BNY's duties under this Agreement
shall remain confidential and shall not be disclosed to any other person, except
as specifically authorized by the Trust or as may be required by law, and shall
not be used for any purpose other than performance of its responsibilities and
duties hereunder, and except that BNY retains the right to disclose matters
subject to confidentiality to its examiners, regulators, internal or external
auditors, its accountants, its internal and external counsel, and to any other
entity whenever it is advised by its internal or external counsel that it is
reasonably likely that BNY would be liable for a failure
6
to do so. BNY will endeavor to provide written notice to the Trust at least five
business days prior to any disclosures pursuant to this Section 10, but,
provided it shall have provided as much notice as is reasonably practicable
under the circumstances, BNY shall have no liability for any failure to do so.
11. Force Majeure.
--------------
BNY shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including without limitation strikes, work stoppages, acts of war or terrorism,
insurrection, revolution, nuclear or natural catastrophes or acts of God, or
interruptions, loss or malfunctions of utilities, non-internal communication
services or, but only to the extent beyond Custodian's reasonable control, and,
but only if BNY is maintaining such back-up system(s) and disaster recovery
plan(s) as are required by its regulators and all laws applicable to BNY,
interruption, loss, or malfunction of internal communication services or of
computer (software or hardware) services; it being understood that BNY shall use
commercially reasonable best efforts to resume performance as soon as
practicable under the circumstances.
12. Amendment.
----------
This Agreement may not be amended or modified in any manner except by a
written agreement executed by BNY and the Trust to be bound thereby.
13. Assignment.
-----------
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of BNY, or by BNY without the written consent of the Trust.
14. Governing Law; Consent to Jurisdiction.
---------------------------------------
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereof. BNY and the
Trust hereby consent to the jurisdiction of a state or federal court situated in
New York City, New York in connection with any dispute arising hereunder. BNY
and the Trust each hereby irrevocably waives any and all rights to trial by jury
in any legal proceeding arising out of or relating to this Agreement. To the
extent that in any jurisdiction BNY or the Trust may now or hereafter be
entitled to claim, for itself or its assets, immunity from suit, execution,
attachment (before or after judgment) or other legal process, each party
irrevocably agrees not to claim, and it hereby waives, such immunity.
15. Severability.
-------------
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any
7
provision is inapplicable to any person or circumstances, it shall nevertheless
remain applicable to all other persons and circumstances.
16. No Waiver.
----------
Each and every right granted to BNY, the Trust and the Funds hereunder or
under any other document delivered hereunder or in connection herewith, or
allowed them by law or equity, shall be cumulative and may be exercised from
time to time. No failure on the part of BNY, the Trust or the Funds to exercise,
and no delay in exercising, any right will operate as a waiver thereof, nor will
any single or partial exercise by BNY, the Trust or the Funds of any right
preclude any other or future exercise thereof or the exercise of any other
right.
17. Notices.
--------
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to the Trust or a Fund, at
E*TRADE Funds
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
President
if to BNY, at
The Bank of New York
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
18. Counterparts.
-------------
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
19. Limitation of Liability of the Trustees and Shareholders.
---------------------------------------------------------
It is expressly agreed that the obligations of the Trust hereunder shall
not bring upon any of the Trustees, Shareholders, nominees, officers, agents or
employees of the Trust personally, but bind only the assets and property of the
Trust, as provided in the Charter. The execution and delivery of this Agreement
has been authorized by the Trustees of the Trust and signed by an authorized
officer of the Trust, acting as such, and neither such authorization by such
Trustees
8
nor such execution and delivery by such officer shall be deemed to have been
made by any of them individually or to impose any liability on any of them
personally, but shall bind only the assets and property of the Fund as provided
in its Charter.
20. Several Obligations of the Funds.
---------------------------------
This Agreement is an agreement entered into between BNY and the Trust with
respect to the Funds listed on Appendix A hereto. With respect to any obligation
of the Trust on behalf of any Fund arising out of this Agreement, BNY shall look
for payment or satisfaction of such obligation solely to the assets of the Fund
to which such obligation relates as though BNY had separately contracted with
the Trust by separate written instrument with respect to each Fund.
21. Persons Authorized to Give Instructions.
----------------------------------------
Attached hereto as Exhibit B is a list of persons duly authorized by the
Board to execute this Agreement and give any written or oral instructions, or
written or oral specifications, by or on behalf of the Trust. From time to time
the Trust may deliver a new Appendix B to add or delete any person and BNY shall
be entitled to rely on the last Appendix B actually received by BNY.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the day and year first above written.
E*TRADE FUNDS, on behalf of the Funds
listed in Exhibit A
By:
------------------------------------
Title:
THE BANK OF NEW YORK
By:
------------------------------------
Title:
9
EXHIBIT A
E*TRADE Money Market Fund
E*TRADE Government Money Market Fund
E*TRADE Municipal Money Market Fund
E*TRADE California Municipal Money Market Fund
E*TRADE New York Municipal Money Market Fund
E*TRADE Asset Allocation Fund
E*TRADE Bond Fund
E*TRADE International Index Fund
E*TRADE ▇▇▇▇▇▇▇ 2000 Index Fund
E*TRADE S&P 500 Index Fund
E*TRADE Technology Index Fund
A-1
SCHEDULE I
Fund Administration Services
----------------------------
Subject to the direction and approval of Trust officers, BNY will provide
the following services to the Funds:
I. Regulatory Reporting and Filing Services
A. Prospectus/SAI updates and Proxy materials. Prepare and subject to the
approval of the Trust and of its legal counsel file all post-effective
amendments and supplements to the Trust's prospectuses and statements
of additional information and proxy materials (including preparation
of all financial highlights and/or financial statements), and, if
requested by Trust officers, assist in the printing and dissemination
to shareholders of the Prospectuses, any supplements thereto and proxy
materials.
B. N-SAR, N-CSR, and Semi-annual and annual reports. Prepare and file all
Forms N-SAR, N-CSR, semi-annual reports, annual reports and, if
requested by Trust officers, assist in the printing and dissemination
to shareholders of such forms or reports.
C. 24f-2 Notices. Prepare and subject to the approval of the Trust file
with the SEC the annual Rule 24f-2 Notice, (and all similar state
filings, if required by the states). BNY shall not be responsible for
preparing any legal opinions required in connection with Rule 24f-2
Notices.
▇. ▇▇▇▇▇ filings. Prepare for review and approval by Trust officers and
Trust legal counsel (with respect to those filings indicated above),
the electronic filing copies (via the SEC's electronic filing system
("▇▇▇▇▇")) of all of the Trust's or Funds' regulatory filing with the
SEC. The Trust will bear the costs of filing and of formatting
("EDGARizing") all such documents for filing.
II. Routine Tax Services
A. Tax filings. Working with the Funds' independent public accountants or
other professionals as appropriate and subject to their approval,
assist with the preparation and filing of federal tax returns, and
such state and local returns as directed by the Trust.
B. 1099-MISC. Provide subject to the approval of the Trust and of its
independent public accountants Form 1099-MISC to persons other than
corporations (i.e., trustees) to whom the Trust paid more than $600
during the year.
C. Supplementary tax information. Prepare subject to the approval of the
Trust and of its independent public accountants for review by the
Trust's officers,
B-1
supplementary information for shareholders' tax purposes as directed
by the Trust.
D. Sixty-Day Letters. Provide subject to the approval of the Trust and of
its independent public accountants sixty-day letters, including
dividends received deductions percentage, foreign tax credits,
long-term capital gains, wash loss information, and any exempt
percentages to the Trust and the Adviser within sixty days from the
end of each calendar quarter, if applicable.
E. Sections 851 and 4982 Tax Compliance. Monitor and periodically test,
including on required quarterly testing dates, each Fund's compliance
with the requirements of Section 851 of the Internal Revenue Code
("Code") and applicable Treasury regulations for qualification as a
regulated investment company, and monitor any excise taxes due under
Section 4982 of the Code.
F. Original Issue Discount. Calculate and maintain records pertaining to
original issue discount and premium amortization as required.
G. Wash Sales. Monitor purchases and sales of Fund investments within 30
days of each other to determine compliance with rules governing "wash
sales."
III. Routine Compliance
A. Portfolio compliance. Monitor and periodically test the Funds'
compliance with such investment restrictions and other regulatory
requirements as set forth in each Fund's Prospectus or as may be
agreed to between the BNY and the Trust (e.g., issuer or industry
diversification, etc.).
B. Policies and Procedures Compliance. Assist the Trust's Officers with
monitoring each Fund's compliance with Board directives, such as the
Trust's compliance procedures, including, but not limited to,
guidelines for repurchase agreements and Rule 10f-3, Rule 12d3-1, Rule
17a-7 and Rule 17e-1 policies and procedures.
IV. Regulatory Affairs and Corporate Governance
A. Board materials. Subject to the direction and approval of Trust
officers, for all regular and special Board meetings, including any
committee meetings, prepare agenda, resolutions and minutes; collect
background information; prepare all routine Board or committee
materials; distribute such materials to all necessary parties, and
make such presentations as are requested by Trust officers, as
appropriate.
B. Corporate and Compliance Calendar. Maintain, update and disseminate
general corporate and compliance calendar of Board meetings and
routine SEC filings.
C. Insurance Policies. Assist with the review and monitoring of the
fidelity bond and errors and commissions insurance coverage and the
submission of any related regulatory filings.
B-2
D. Subject to the direction and approval of Trust and of its legal
counsel, prepare and update documents, as requested, including the
Trust Instrument, By-laws, and foreign qualification filings.
E. Examinations. Provide support and counsel with respect to routine
regulatory examinations or investigations of the Funds and work
closely with the Trust's legal counsel in response to any non-routine
regulatory matters. Also, coordinate all communications and data
collection with regard to any regulatory examinations and yearly
audits by independent accountants.
V. General Administration
A. Board Materials. Prepare or compile schedules of investments,
unaudited financial statements, performance and expense information,
financial reports, and compliance data and information for inclusion
in the Trust's regular quarterly and special Board or committee
meeting materials.
B. Dividend distributions. Calculate dividend distributions in accordance
with distribution policies detailed in the Funds' then-current
prospectus or Board minutes. Assist Trust management in making final
determinations of distribution amounts.
C. Expense accruals. Prepare expense projections for each Fund, establish
accruals and review on a periodic basis, including expenses based on a
percentage of average daily net assets (e.g., advisory, sub-advisory
and administrative fees) and expenses based on actual charges
annualized and accrued daily (audit fees, registration fees, trustees'
fees, etc.).
D. Expense payments. Arrange, as directed by the appropriate Trust
officers, for the payment of each Fund's expenses.
E. Reports to statistical service providers. Report performance of the
Funds to outside statistical service providers as directed by Trust
management.
B-3
Exhibit B
I, ▇▇▇ ▇▇▇▇▇, of E*TRADE Funds, a Delaware business trust (the "Trust"), do
hereby certify that:
The following individuals serve in the following positions with the Trust
or its investment adviser, and the signatures set forth opposite their
respective names are their true and correct signatures. Each such person is
authorized to give written or oral instructions or written or oral
specifications by or on behalf of the Trust to The Bank of New York.
Name Position Signature
------------------------- ------------------------- --------------------------
------------------------- ------------------------- --------------------------
------------------------- ------------------------- --------------------------
---------------------------------------
Signature
Name: ▇▇▇ ▇▇▇▇▇
Title: Secretary, E*TRADE Funds
B-4