Exhibit (h)(v) under Form N-1A
Exhibit (10) under Item 601/Reg. S-K
AGREEMENT
For
ADMINISTRATIVE SERVICES
AGREEMENT made as of May 18, 2001, by and between ▇▇▇▇▇ Funds, a
Massachusetts business trust having its principal office and place of
business in Pittsburgh, Pennsylvania ("Investment Company"), on behalf of its
portfolios now existing or hereafter created, as identified on Exhibit 1
hereto as the same may be amended from time to time (each a "Fund" and
collectively the "Funds"), and ▇▇▇▇▇ Bank, N.A., a national bank having its
principal place of business in Washington, DC ("▇▇▇▇▇ Bank").
WHEREAS, the Investment Company is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), with authorized and issued shares of capital stock ("Shares");
and
WHEREAS, the Investment Company desires to appoint ▇▇▇▇▇ Bank as its
administrator to provide it with certain Administrative Services (hereinafter
defined) exclusively or in conjunction with one or more co-administrators,
and ▇▇▇▇▇ Bank desires to accept such appointment.
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
Article 1. Appointment.
The Investment Company hereby appoints ▇▇▇▇▇ Bank as administrator for the
period on the terms and conditions set forth in this Agreement. ▇▇▇▇▇ Bank
hereby accepts such appointment and agrees to furnish the services set forth
in Article 2 of this Agreement in return for the compensation set forth in
Article 6 of this Agreement.
Article 2. ▇▇▇▇▇ Bank's Duties.
As administrator, in conjunction with any other administrators, and
subject to the supervision and control of the Board and in accordance with
Proper Instructions (hereinafter defined) from the Investment Company, ▇▇▇▇▇
Bank will provide facilities, equipment, and personnel to carry out the
following administrative services for the operation of the business and
affairs of the Investment Company and each of its Funds:
A. assist in drafting and reviewing the Investment Company's minutes of
meetings of the Board and Shareholders;
B. assist in negotiating contracts on behalf of the Investment Company
with, among others, the Investment Company's distributor, transfer
agent, custodian and fund accountant, subject to any applicable
restrictions of the Board or the 1940 Act;
C. assist in coordinating the layout and printing of publicly
disseminated prospectuses and reports;
D. coordinate and assist with the design, development, and operation of
the Investment Company and the Funds and new product initiatives;
E. provide individuals reasonably acceptable to the Board for nomination,
appointment, or election as officers of the Investment Company, who
will be responsible for the management of certain of the Investment
Company's affairs as determined by the Investment Company's Board;
F. consult with the Investment Company, its Board, and any other
administrators on matters concerning the Investment Company, its
affairs, and operations;
G. assist in the development and preparation of due diligence materials
to assist the Board's consideration and approval of the Investment
Company's fund accountant, custodian, and shareholder servicing agent;
H. assist in coordinating with fund counsel, independent auditors
(including providing records), custodians and sub-custodians, rating
and publication agencies, outside vendors (including printing and
mailing income breakdown data to client services and transfer agent),
and the SEC regarding inspections (including providing records) and
comments on registration statements;
I. assist in coordinating board meeting dates, agendas, responsibilities,
and deadlines;
J. assist in producing operating and compliance reports and in collecting
and assembling reports required by board-adopted procedures;
K. assist in coordinating custodian presentations (including 17f-5
materials);
L. assist in drafting and reviewing shareholder meeting scripts;
M. assist in the drafting and production of account applications and
operational matters relating to establishing new accounts;
N. assist in creating and coordinating strategic and tactical marketing
support to the Funds; and
O. providing additional assistance to the Investment Company's
co-administrator, as ▇▇▇▇▇ Bank may mutually agree from time to time,
and provide general service relating to the Funds' operations.
The foregoing, along with any additional services that ▇▇▇▇▇ Bank shall
agree in writing to perform for the Investment Company hereunder, shall
hereafter be referred to as "Administrative Services."
Article 3. Records.
▇▇▇▇▇ Bank shall create and maintain all necessary books and records
required by Section 31(a) of the Investment Company Act of 1940 and the rules
thereunder, as the same may be amended from time to time, pertaining to the
Administrative Services performed by it. Where applicable, such records
shall be maintained by the Administrator for the periods and in the places
required by Rule 31a-2 under the 1940 Act. The books and records pertaining
to the Investment Company which are in the possession of ▇▇▇▇▇ Bank shall be
the property of the Investment Company. The Investment Company, or the
Investment Company's authorized representatives, shall have access to such
books and records at all times during ▇▇▇▇▇ Bank's normal business hours.
Upon the reasonable request of the Investment Company, copies of any such
books and records shall be provided promptly by ▇▇▇▇▇ Bank to the Investment
Company or the Investment Company's authorized representatives.
Article 4. Duties of the Fund.
The Fund assumes full responsibility for the preparation, contents and
distribution of its own offering document and for complying with all
applicable requirements the 1940 Act, the Internal Revenue Code, and any
other laws, rules and regulations of government authorities having
jurisdiction.
Article 5. Expenses.
▇▇▇▇▇ Bank shall be responsible for expenses incurred in providing office
space, equipment, and personnel as may be necessary or convenient to provide
the Administrative Services to the Investment Company, including the
compensation of ▇▇▇▇▇ Bank employees who may serve as trustees or officers of
the Investment Company. The Investment Company shall be responsible for all
other expenses incurred by ▇▇▇▇▇ Bank on behalf of the Investment Company,
including without limitation postage and courier expenses, printing expenses,
travel expenses, registration fees, filing fees, fees of outside counsel and
independent auditors, or other professional services, organizational
expenses, insurance premiums, fees payable to persons who are not ▇▇▇▇▇
Bank's employees, trade association dues, and other expenses properly payable
by the Funds and/or the classes.
Article 6. Compensation.
For the Administrative Services provided, the Investment Company hereby
agrees to pay and ▇▇▇▇▇ Bank hereby agrees to accept as full compensation for
its services rendered hereunder an administrative fee at an annual rate of
..02% of the average daily net asset value of the Funds.
The compensation and out of pocket expenses attributable to the Funds
shall be accrued daily by the Funds and paid to ▇▇▇▇▇ Bank no less frequently
than monthly, and shall be paid daily upon request of ▇▇▇▇▇ Bank. ▇▇▇▇▇ Bank
will maintain detailed information about the compensation and out of pocket
expenses by the Funds.
▇▇▇▇▇ Bank may in its sole discretion waive receipt of all or a part of
the foregoing administrative fee from time to time.
Article 7. Proper Instructions.
As used throughout this Agreement, a "Proper Instruction" means a writing
signed or initialed by one or more person or persons as the Board shall have
from time to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved. Oral instructions will be deemed
to be Proper Instructions if (a) ▇▇▇▇▇ Bank reasonably believes them to have
been given by a person previously authorized in Proper Instructions to give
such instructions with respect to the transaction involved, and (b) the
Investment Company, or the Fund, and ▇▇▇▇▇ Bank promptly cause such oral
instructions to be confirmed in writing. Proper Instructions may include
communications effected directly between electro-mechanical or electronic
devices provided that the Investment Company, or the Fund, and ▇▇▇▇▇ Bank are
satisfied that such procedures afford adequate safeguards for the Fund's
assets. Proper Instructions may only be amended in writing.
Article 8. Assignment.
Except as provided herein, neither this Agreement nor any of the rights or
obligations under this Agreement may be assigned by either party without the
written consent of the other party, except that ▇▇▇▇▇ Bank may, upon prior
written notice but without further consent on the part of the Investment
Company, subcontract for the performance of such services with any subsidiary
commonly owned or controlled by ▇▇▇▇▇ National Corporation, but ▇▇▇▇▇ Bank
will remain fully responsible to the Investment Company for the acts and
omissions of such affiliated subsidiary. This Agreement shall inure to the
benefit of and be binding upon the parties and their respective permitted
successors and assigns.
Article 9. Documents.
A. In connection with the appointment of ▇▇▇▇▇ Bank under this
Agreement, the Investment Company shall file with ▇▇▇▇▇ Bank the
following documents:
(1) A copy of the Declaration of Trust and By-Laws of the
Investment Company and all amendments thereto ("Charter
Documents");
(2) A copy of the resolution of the Board of the Investment Company
authorizing this Agreement; and
(3) A copy of the current Prospectus for each Fund.
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B. The Fund will also furnish from time to time the following documents:
(1) Each resolution of the Board of the Investment Company
authorizing the original issuance of each Fund's, and/or
Class's Shares;
(2) Each Registration Statement filed with the SEC and amendments
thereof, including current prospectuses and statements of
additional information as amended from time to time, and orders
relating thereto in effect with respect to the sale of Shares
of any Fund, and/or Class;
(3) A certified copy of each amendment to the governing document
and the By-Laws of the Investment Company;
Certified copies of each vote of the Board authorizing officers to
give Proper Instructions to the administrators, Custodian and
agents for fund accountant and shareholder recordkeeping or
transfer agency services; and
(5) Such other certifications, documents or opinions which ▇▇▇▇▇
Bank may, in its discretion, deem necessary or appropriate in
the proper performance of its duties.
Article 10. Representations and Warranties.
A. Representations and Warranties of ▇▇▇▇▇ Bank
▇▇▇▇▇ Bank represents and warrants to the Fund that:
(1) it is a bank and trust company duly organized and existing and
in good standing under the laws of the State of New York;
(2) it is duly qualified to carry on its business in each
jurisdiction where the nature of its business requires such
qualification;
(3) it is empowered under applicable laws and by its organizational
documents and By-Laws to enter into and perform this Agreement;
(4) all requisite proceedings have been taken to authorize it to
enter into and perform its obligations under this Agreement;
(5) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement; and
(6) it is in compliance with federal securities law and applicable
federal and state banking requirements and in good standing as
an administrator; and
B. Representations and Warranties of the Investment Company
The Investment Company represents and warrants to ▇▇▇▇▇ Bank that:
(1) It is an investment company duly organized and existing and in
good standing under the laws of its state of organization;
(2) It is empowered under applicable laws and by its Charter
Documents to enter into and perform its obligations under this
Agreement;
(3) All corporate proceedings required by said Charter Documents
have been taken to authorize it to enter into and perform its
obligations under this Agreement;
(4) The Investment Company is an open-end investment company
registered under the 1940 Act; and
(5) A registration statement under the 1933 Act will be effective,
and appropriate state securities law filings have been made and
will continue to be made, with respect to all Shares of each
Fund being offered for sale.
Article 11. Indemnification.
▇. ▇▇▇▇▇ Bank shall not be liable for any error of judgment or mistake of
law or for any loss suffered by the Investment Company in connection
with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on
▇▇▇▇▇ Bank's part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement.
B. At any time ▇▇▇▇▇ Bank may apply to any officer of the Investment Company
or Fund for instructions, and may consult with legal counsel
experienced in the 1940 Act (who may be counsel for the Investment
Company) with respect to any matter arising in connection with the
services to be performed by ▇▇▇▇▇ Bank under this Agreement, and ▇▇▇▇▇
Bank and its agents or subcontractors shall not be liable and shall be
indemnified by the Investment Company or the appropriate Fund for any
action reasonably taken or omitted by it in good faith reliance upon
such instructions or upon the opinion of such counsel, provided such
action is not in violation of applicable federal or state laws or
regulations.
C. Any person, even though also an officer, director, trustee, partner,
employee or agent of ▇▇▇▇▇ Bank, who may be or become an officer,
trustee, partner, employee or agent of the Investment Company, shall
be deemed, when rendering services to the Investment Company or acting
on any business of the Investment Company (other than services or
business in connection with the duties of ▇▇▇▇▇ Bank hereunder) to be
rendering such services to or acting solely for the Investment Company
and not as an officer, director, trustee, partner, employee or agent
or one under the control or direction of ▇▇▇▇▇ Bank even though paid
by ▇▇▇▇▇ Bank.
D. If at any time another entity performs administrative services to any
Fund, including without limitation those services listed herein or
services similar to those listed herein, ▇▇▇▇▇ Bank and such other
entity shall in no event be liable for the acts or omissions of the
other.
▇. ▇▇▇▇▇ Bank shall be kept indemnified by the Investment Company and be
without liability for any action taken or thing done by it in
performing the Administrative Services in accordance with the above.
▇. ▇▇▇▇▇ Bank shall not be responsible for and the Investment Company or
Fund shall indemnify and hold ▇▇▇▇▇ Bank, including its officers,
directors, shareholders and their agents, employees and affiliates,
harmless against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liabilities arising out of or
attributable to:
(1) The acts or omissions of any Custodian, Adviser, Sub-adviser,
Fund Accountant, Transfer Agent, or other party contracted by
or approved by the Investment Company or Fund,
(2) The reliance on or use by ▇▇▇▇▇ Bank or its agents or
subcontractors of information, records and documents in proper
form which
(a) are received by ▇▇▇▇▇ Bank or its agents or
subcontractors from Advisers, Sub-advisers, or other
third parties contracted by or approved by the Investment
Company or Fund for use in the performance of services
under this Agreement; or
(b) have been prepared and/or maintained by the Fund or its
affiliates or any other person or firm on behalf of the
Investment Company.
(3) The reliance on, or the carrying out by ▇▇▇▇▇ Bank or its
agents or subcontractors of Proper Instructions of the
Investment Company or the Fund.
(4) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities laws
or regulations of any state that such Shares be registered in
such state or in violation of any stop order or other
determination or ruling by any federal agency or any state with
respect to the offer or sale of such Shares in such state.
G. In all cases, ▇▇▇▇▇ Bank shall not be protected by this Article 11 from
liability for any act or omission resulting from ▇▇▇▇▇ Bank's willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties. In addition, ▇▇▇▇▇ Bank shall not be protected from liability
for any act or omission resulting from the willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties of ▇▇▇▇▇
Bank's affiliates, agents or employees, of any subcontractor selected
by ▇▇▇▇▇ Bank, or a subsidiary commonly owned or controlled by ▇▇▇▇▇
National Corporation.
H. In order that the indemnification provisions contained in this Article 11
shall apply, however, it is understood that the party seeking
indemnification ("Claimant") will use all reasonable care to promptly
identify and notify the party against whom indemnification is sought
("Indemnifier") concerning any situation which presents or appears
likely to present the probability of a claim for indemnification, and
shall advise the Indemnifier of all pertinent facts and developments
concerning the situation in question. The Indemnifier shall have the
option to defend the Claimant against any claim which may be the
subject of this indemnification. In the event that the Indemnifier so
elects, it will so notify the Claimant and thereupon the Indemnifier
shall take over complete defense of the claim, and the Claimant shall
in such situation initiate no further legal or other expenses for which
it shall seek indemnification under this Article 11. The Claimant
shall in no case confess any claim or make any compromise in any case
in which the Indemnifier will be asked to indemnify the Claimant except
with the Indemnifier's prior written consent.
Article 12. Term and Termination of Agreement.
This Agreement shall begin as of the date of execution above, and shall
continue in effect with respect to each Fund presently set forth on Exhibit 1
(as it may be amended from time to time) through December 31, 2004, and
thereafter for successive periods of one year, subject to the provisions for
termination and all of the other terms and conditions hereof, if: (a) such
continuation shall be specifically approved at least annually by the vote of
a majority of the Trustees of the Investment Company, including a majority of
the Trustees who are not parties to this Agreement or interested persons of
any such party cast in person at a meeting called for that purpose; and (b)
▇▇▇▇▇ Bank shall not have notified the Investment Company in writing at least
sixty (60) days prior to the anniversary date of this Agreement in any year
thereafter that it does not desire such continuation. The termination date
for all original or after-added Funds which are, or become, a party to this
Agreement shall be coterminous.
In the event, however, of willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties by ▇▇▇▇▇ Bank, the Investment Company has
the right to terminate the Agreement upon 60 days written notice, if ▇▇▇▇▇
Bank has not cured such willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties within 60 days.
Should the Investment Company exercise its rights to terminate, all
reasonable out-of-pocket expenses associated with the movement of records and
materials will be borne by the Investment Company or the appropriate Fund.
The provisions of Article 11 shall survive the termination of this Agreement.
In addition, each party reserves the right to immediately terminate this
Agreement upon the giving of written notice in the event of: the dissolution
or liquidation of either party or other cessation of business other than a
reorganization or recapitalization of such party as an ongoing business;
financial difficulties on the part of either party which is 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 to the modification or alteration
of the rights of creditors; or a final, unappealable judicial, regulatory or
administrative ruling or order in which either party has been found guilty of
criminal behavior in the conduct of its business.
Article 13. Amendment.
This Agreement may be amended or modified only by a written agreement
executed by both parties.
Article 14. Interpretive and Additional Provisions.
In connection with the operation of this Agreement, ▇▇▇▇▇ Bank and the
Investment Company may from time to time agree on such provisions
interpretive of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement.
Any such interpretive or additional provisions shall be in a writing signed
by both parties and shall be annexed hereto, provided that no such
interpretive or additional provisions shall contravene any applicable federal
or state regulations or any provision of the Charter Documents. No
interpretive or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
Article 15. Governing Law.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the Commonwealth of Pennsylvania.
Article 16. Notices.
Except as otherwise specifically provided herein, notices and other
writings delivered or mailed postage prepaid to the Investment Company at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Secretary, or to
▇▇▇▇▇ Bank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
__________________________ or to such other address as the Investment Company
or ▇▇▇▇▇ Bank may hereafter specify, shall be deemed to have been properly
delivered or given hereunder to the respective address.
Article 17. Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original.
Article 18. Merger of Agreement.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject hereof whether
oral or written.
Article 19. Successor Agent.
If the Investment Company shall appoint a successor agent for the
Investment Company, ▇▇▇▇▇ Bank shall upon termination of this Agreement
deliver to such successor agent at the office of ▇▇▇▇▇ Bank all properties of
the Investment Company held by ▇▇▇▇▇ Bank hereunder. If no such successor
agent shall be appointed, ▇▇▇▇▇ Bank shall deliver such properties to the
Investment Company.
Article 20. Force Majeure.
▇▇▇▇▇ Bank shall have no liability for cessation of services hereunder or
any damages resulting there from to the Fund as a result of work stoppage,
power or other mechanical failure, natural disaster, governmental action,
communication disruption or other impossibility of performance.
Article 21. Severability.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
▇▇▇▇▇ FUNDS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Managing Director
EXHIBIT 1
CONTRACT
DATE ▇▇▇▇▇ Funds
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May 18, 2001 ▇▇▇▇▇ Stock Fund
May 18, 2001 ▇▇▇▇▇ Small Company Stock Fund
May 18, 2001 ▇▇▇▇▇ Large Cap Growth Fund
May 18, 2001 ▇▇▇▇▇ U.S. Government Securities Fund
May 18, 2001 ▇▇▇▇▇ Bond Fund
May 18, 2001 ▇▇▇▇▇ Intermediate Tax Free Bond Fund
May 18, 2001 ▇▇▇▇▇ Long Term Tax Free Bond Fund
May 18, 2001 ▇▇▇▇▇ Prime Money Market Fund
May 18, 2001 ▇▇▇▇▇ U.S. Treasury Money Market Fund