Exhibit(h)(1)
ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of the 1st day of July, 2003, by and between MMA
PRAXIS MUTUAL FUNDS, a Delaware business trust (the "Company"), having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and
BISYS FUND SERVICES OHIO, INC. (the "Administrator" or "BISYS"), an Ohio
corporation organized under the laws of the State of Ohio and having its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
WHEREAS, the Company is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), consisting of several series of shares of beneficial interest or common
stock ("Shares");
WHEREAS, the Company and BISYS entered into an Administration Agreement
dated December 31, 1998 (the "1998 Agreement"), whereby BISYS agreed to perform
administration services for the Company, which has continued in effect through
the date hereof; and
WHEREAS, the Company desires the Administrator to continue to provide, and
the Administrator is willing to provide, management and administrative services
to each series of the Company, all as now or hereafter may be established from
time to time ("Portfolios"), on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, the Company and the Administrator hereby agree as
follows:
ARTICLE 1. Retention of the Administrator. The Company hereby retains the
Administrator to act as the administrator of the Portfolios and to furnish the
Portfolios with the management and administrative services as set forth in
Article 2 below. The Administrator hereby accepts such employment to perform the
duties set forth below.
The Administrator shall, for all purposes herein, be deemed to be an
independent contractor and, unless otherwise expressly provided or authorized,
shall have no authority to act for or represent the Company in any way and shall
not be deemed an agent of the Company.
ARTICLE 2. Administrative Services. The Administrator shall perform or
supervise the performance by others of administrative services in connection
with the operations of the Portfolios, and, on behalf of the Company, will
investigate, assist in the selection of and conduct relations with custodians,
depositories, accountants, legal counsel, underwriters, brokers and dealers,
corporate fiduciaries, insurers, banks and persons in any other capacity deemed
to be necessary or desirable for the Portfolios' operations. The Administrator
shall provide the Board of Trustees/Directors of the Company (hereafter referred
to as the "Directors") with such reports regarding investment performance as
they may reasonably request but shall have no responsibility for supervising the
performance by any investment adviser or sub-adviser of its responsibilities.
The Administrator shall provide the Company with regulator reporting, all
necessary office space, equipment, personnel, compensation and facilities
(including facilities for Shareholders' and Directors' meetings) for handling
the affairs of the Portfolios and such other
services as the Administrator shall, from time to time, determine to be
necessary to perform its obligations under this Agreement. In addition, at the
request of the Directors, the Administrator shall make reports to the Company's
Directors concerning the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Administrator shall:
(a) calculate contractual Company expenses and control all
disbursements for the Company, and as appropriate compute the
Company's yields, total return, expense ratios, portfolio turnover
rate and, if required, portfolio average dollar-weighted maturity;
(b) assist Company counsel with the preparation of prospectuses,
statements of additional information, registration statements and
proxy materials, and file the same upon receipt of necessary
authorizations and executions;
(c) prepare such reports, applications and documents (including
reports regarding the sale and redemption of Shares as may be
required in order to comply with Federal and state securities law)
as may be necessary or desirable to register the Company's Shares
with state securities authorities, monitor the sale of Company
Shares for compliance with state securities laws, and file with the
appropriate state securities authorities the registration statements
and reports for the Company and the Company's Shares and all
amendments thereto, as may be necessary or convenient to register
and keep effective the Company and the Company's Shares with state
securities authorities to enable the Company to make a continuous
offering of its Shares and to maintain the Company's existence and
good standing under applicable state law;
(d) develop and prepare, with the assistance of the Company's
investment adviser, communications to Shareholders, including the
annual report to Shareholders, coordinate the mailing of
prospectuses, notices, proxy statements, proxies and other reports
to Company Shareholders, and supervise and facilitate the proxy
solicitation process for all shareholder meetings, including the
tabulation of shareholder votes:
(e) administer contracts on behalf of the Company with, among
others, the Company's investment adviser, distributor, custodian,
transfer agent and fund accountant;
(f) supervise the Company's transfer agent with respect to the
payment of dividends and other distributions to Shareholders;
(g) calculate performance data of the Portfolios for dissemination
to information services covering the investment company industry;
(h) coordinate and supervise the preparation and filing of the
Company's tax returns;
2
(i) examine and review the operations and performance of the various
organizations providing services to the Company or any Portfolio of
the Company, including, without limitation, the Company's investment
adviser, distributor, custodian, fund accountant, transfer agent,
outside legal counsel and independent public accountants, and at the
request of the Directors, report to the Board on the performance of
organizations;
(j) assist with the layout and printing of publicly disseminated
prospectuses and assist with and coordinate layout and printing of
the Company's semi-annual and annual reports to Shareholders;
(k) assist with the design, development, and operation of the
Portfolios, including new classes, investment objectives, policies
and structure;
(l) provide individuals reasonably acceptable to the Company's
Directors to serve as officers of the Company, who will be
responsible for the management of certain of the Company's affairs
as determined by the Company's Directors;
(m) advise the Company and its Directors on matters concerning the
Company and its affairs;
(n) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Company in
accordance with the requirements of Rules 17g-1 and 17d-1(7) under
the 1940 Act as such bonds and policies are approved by the
Company's Directors;
(o) monitor and advise the Company and its Portfolios on their
registered investment company status under the Internal Revenue Code
of 1986, as amended;
(p) perform all administrative services and functions of the Company
and each Portfolio to the extent administrative services and
functions are not provided to the Company or such Portfolio pursuant
to the Company's or such Portfolio's investment advisory agreement,
distribution agreement, custodian agreement, transfer agent
agreement and fund accounting agreement;
(q) maintain corporate records on behalf of the Company, including,
but not limited to, minute books, Declaration of Trust and By-Laws;
provide appropriate personnel to attend Board meetings, and produce
and distribute materials for Board meetings, including relevant
sections of the Board materials pertaining to the responsibilities
of the Administrator;
(r) furnish advice and recommendations with respect to other aspects
of the business and affairs of the Portfolios as the Company and the
Administrator shall determine desirable;
(s) prepare and file with the SEC the semi-annual report for the
Company on Form N-SAR and Form N-CSR and all required notices
pursuant to Rule 24f-2;
3
(t) assist in developing compliance procedures for each Fund, and
provide compliance monitoring services incorporating certain of
those procedures, which will include, among other matters,
compliance with each Fund's investment objective, defined investment
policies, restrictions, and tax diversification, distribution and
income requirements, as are determinable based upon the Fund's
accounting records;
(u) monitor services provided under any non-12b-1 Shareholder
Service Plans adopted by the Board and financial institutions that
serve, or propose to serve, as shareholder services agents
thereunder ("Shareholder Service Agents"); coordinate the services
to be rendered by Shareholder Service Agents pursuant to Shareholder
Service Agreements under Shareholder Service Plans, and review the
qualifications of Shareholder Service Agents to serve as such under
the relevant Shareholder Service Plan; coordinate and assist in the
Company's execution and delivery of Shareholder Service Agreements;
report to the Board regarding amounts paid under Shareholder Service
Agreements and the nature of Services provided by the Shareholder
Service Agents thereunder; and maintain appropriate records in
connection with the foregoing;
(v) provide assistance and guidance to the Company with respect to
matters governed by or related to regulatory requirements and
developments including: monitoring regulatory and legislative
developments which may effect the Company, and assisting in
strategic planning in response thereto; assisting the Company in
responding to and providing documents for routine regulatory
examinations or investigations; and working closely with counsel to
the Company in response to such routine or non-routine regulatory
matter; and
(w) assist the Company in preparing for Board meetings by (i)
coordinating Board book production and distribution, (ii) subject to
review and approval by the Company and its counsel, preparing Board
agendas and minutes, (iii) preparing the relevant sections of the
Board materials pertaining to the responsibilities of the
Administrator, (iv) assisting and coordinating special materials
related to annual contract approvals and approval of rule 12b-1
plans and related matters, and (v) performing such other Board
meeting functions as agreed by the parties;
(x) prepare materials at the reasonable request of the Board based
on financial and administrative data prepared by or available to
Administrator;
(y) assist each Fund with audits by responding to requests of and
assisting independent auditors; providing information to the
Securities and Exchange Commission (the "Commission") and
facilitating the audit process and providing available office
facilities to independent auditors.
(z) arrange for payment of each Fund's expenses upon written
authorization from such Fund;
4
(aa) file with the SEC the proxy voting record on Form N-PX if
supplied by the Adviser or its agent; and
(bb) subject to the BISYS Policies (as defined below), make a BISYS
employee available to the Company to serve, upon designation as such
by the Board, as its Chief Financial Officer (or under such other
title to perform similar functions).
The Administrator shall perform such other services for the Company that
are mutually agreed upon by the parties from time to time. Such services may
include performing internal audit examinations; mailing the annual reports of
the Portfolios; preparing an annual list of Shareholders; and mailing notices of
Shareholders' meetings, proxies and proxy statements, for all of which the
Company will pay the Administrator's out-of-pocket expenses.
The Company agrees and acknowledges that BISYS' internal policies as
amended from time to time ("BISYS Policies") are applicable to the service of
any BISYS employee serving as a certifying officer or Chief Legal Officer of the
Company (an "Employee/Executive Officer"), and that the service rendered by the
Administrator under sub-section (bb) above is limited to providing an
Employee/Executive Officer who, in the exercise of his or her duties to the
Company, shall act in good faith and in a manner reasonably believed by him or
her to be in the best interests of the Company.
The Company shall assist and cooperate with BISYS (and shall take
reasonable steps to cause its officers, investment adviser(s) and other service
providers to assist and cooperate with BISYS) to facilitate the delivery of
information requested by BISYS in connection with the preparation of drafts of
the Funds' Form N-CSR Reports, including Fund financial statements, so that
BISYS may submit a draft Report to the Funds' Disclosure Controls and Procedures
Committee ("Fund DCP Committee") at least 10 days prior to the date the relevant
Form N-CSR Report is to be filed. The relevant certifying officers ("Certifying
Officers") and the Chief Legal Officer, if any, of the Fund shall be deemed to
constitute the Fund DCP Committee in cases if no other Fund DCP Committee has
been designated or is operative. In connection with its review and evaluations,
the Fund DCP Committee shall establish a schedule to ensure that all required
disclosures in Form N-CSR and in the financial statements for the Fund are
identified and prepared in a timeframe sufficient to allow review by the Fund
DCP Committee.
The Company shall be responsible for, and shall support and facilitate the
role of each Certifying Officer and the Fund DCP Committee in, designing and
maintaining the Fund DCPs, including (a) ensuring that the Fund DCP Committee
and/or Certifying Officers obtain and review sub-certifications and reports on
internal controls from the Fund's investment adviser(s) and other service
providers, if any, sufficiently in advance of the date upon which the relevant
financial statements must be finalized by BISYS (in order to print, distribute
and/or file the same hereunder), and (b) evaluation of the effectiveness of the
design and operation of the Fund DCP, under the supervision, and with the
participation of, the Certifying Officers, within the requisite timeframe prior
to the filing of each Report. Unless otherwise expressly agreed in writing, the
Chief Executive Officer of the Company, or person performing similar functions,
shall not be an employee of BISYS.
5
ARTICLE 3. Allocation of Charges and Expenses.
(a) The Administrator. The Administrator shall furnish at its own expense
the executive, supervisory and clerical personnel necessary to perform its
obligations under this Agreement. The Administrator shall also provide the items
which it is obligated to provide under this Agreement, and shall pay all
compensation, if any, of officers of the Company as well as all Directors of the
Company who are affiliated persons of the Administrator or any affiliated
corporation of the Administrator; provided, however, that unless otherwise
specifically provided, the Administrator shall not be obligated to pay the
compensation of any employee of the Company retained by the Directors of the
Company to perform services on behalf of the Company.
(b) The Company. The Company assumes and shall pay or cause to be paid all
other expenses of the Company not otherwise allocated herein, including, without
limitation, organization costs, taxes, expenses for legal and auditing services,
the expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing Shareholders, all expenses incurred in connection with
issuing and redeeming Shares, the costs of custodial services, the cost of
initial and ongoing registration of the Shares under Federal and state
securities laws, fees and out-of-pocket expenses of Directors who are not
affiliated persons of the Administrator or the Investment Adviser to the Company
or any affiliated corporation of the Administrator or the Investment Adviser,
insurance, interest, brokerage costs, litigation and other extraordinary or
nonrecurring expenses, and all fees and charges of investment advisers of the
Company. Notwithstanding the foregoing, the Company shall not be required to
reimburse any expenses to BISYS that are covered by the omnibus fees payable to
BISYS, as set forth in the Omnibus Fee Agreement being entered into by the
parties hereto as of the date hereof (the "Omnibus Fee Agreement").
ARTICLE 4. Compensation of the Administrator.
(a) Administration Fee. For the services to be rendered, the facilities
furnished and the expenses assumed by the Administrator pursuant to this
Agreement, the Company shall pay to the Administrator the compensation set forth
in the Omnibus Fee Agreement. The Company shall also reimburse the Administrator
for its reasonable out-of-pocket expenses, including, but not limited to, the
travel and lodging expenses incurred by officers and employees in connection
with attendance at Board meetings, for which such attendance is requested or
agreed upon by the parties. Notwithstanding the foregoing, the Company shall not
be required to reimburse any expenses to the Administrator that are covered by
the omnibus fees payable to the Administrator, as set forth in the Omnibus Fee
Agreement.
If this Agreement becomes effective subsequent to the first day of a
month or terminates before the last day of a month, the Administrator's
compensation for that part of the month in which this Agreement is in effect
shall be prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of the Administrator's compensation for the preceding month
shall be made promptly.
6
(b) Survival of Compensation Rights. All rights of compensation under this
Agreement for services performed as of the termination date shall survive the
termination of this Agreement.
ARTICLE 5. Standard of Care; Uncontrollable Events; Limitation of
Liability.
(a) The Administrator shall use reasonable professional diligence to
ensure the accuracy of all services performed under this Agreement, but shall
not be liable to the Company for any action taken or omitted by the
Administrator in the absence of bad faith, willful misfeasance, negligence or
reckless disregard by it of its obligations and duties. The duties of
Administrator shall be confined to those expressly set forth herein, and no
implied duties are assumed by or may be asserted against Administrator
hereunder.
(b) The Administrator shall maintain adequate and reliable computer and
other equipment necessary or appropriate to carry out its obligations under this
Agreement. Upon the Company's reasonable request, the Administrator shall
provide supplemental information concerning the aspects of its disaster recovery
and business continuity plan that are relevant to the services provided
hereunder. Notwithstanding the foregoing or any other provision of this
Agreement, the Administrator assumes no responsibility hereunder, and shall not
be liable for, any damage, loss of data, delay or any other loss whatsoever
caused by events beyond its reasonable control. Events beyond the
Administrator's reasonable control include, without limitation, force majeure
events. Force majeure events include natural disasters, actions or decrees of
governmental bodies, and communication lines failures that are not the fault of
either party. In the event of force majeure, computer or other equipment
failures or other events beyond its reasonable control, the Administrator shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption, including by restoring any lost or damaged data.
(c) The Administrator shall provide the Company, at such times as the
Company may reasonably require, copies of the most recent reports rendered by
independent public accountants on the internal controls and procedures of the
Administrator relating to the services provided by the Administrator under this
Agreement.
(d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR SPECULATIVE OR
CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR
WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
ARTICLE 6. Activities of the Administrator. The services of the
Administrator rendered to the Company are not deemed to be exclusive. The
Administrator is free to render such services to others and to have other
businesses and interests. It is understood that directors, officers, employees
and Shareholders of the Company are or may be or become interested in the
Administrator, as officers, employees or otherwise and that partners, officers
and employees of the Administrator and its counsel are or may be or become
similarly interested in the Company,
7
and that the Administrator may be or become interested in the Company as a
Shareholder or otherwise.
ARTICLE 7. Duration of this Agreement. The Term of this Agreement shall be
as specified in Schedule A hereto.
ARTICLE 8. Assignment. This Agreement shall not be assignable by either
party without the written consent of the other party; provided, however, that
the Administrator may utilize agents in connection with its services hereunder
and may, at its expense and with the advance approval of the Board, subcontract
with any entity or person concerning the provision of administration services
contemplated hereunder (a "Sub-Administrator). The Administrator shall not,
however, be relieved of any of its obligations under this Agreement by the
appointment of any agent, Sub-Administrator or other subcontractor and that the
Administrator shall be responsible, to the extent provided in Article 5 hereof,
for all acts of any agent or Sub-Administrator as if such acts were its own.
This Agreement shall be binding upon, and shall inure to the benefit of, the
parties hereto and their respective successors and permitted assigns.
ARTICLE 9. Indemnification. The Company agrees to indemnify, defend and
hold harmless the Administrator, its employees, agents, directors, officers and
nominees from and against any and all claims, demands, actions and suits, and
from and against any and all judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses (including reasonable
investigation expenses) (collectively, "Losses") resulting from the
Administrator's performance of services under this Agreement or based, if
applicable, upon reasonable reliance on information, records, instructions or
requests given or made to the Administrator by the Company, the investment
adviser, fund accountant, transfer agent or custodian thereof; provided that
this indemnification shall not apply to the extent such Losses are caused by the
Administrator's willful misfeasance, bad faith or negligence in the performance
of its duties hereunder, or by reason of reckless disregard of its obligations
and duties hereunder.
The Administrator shall indemnify, defend, and hold harmless the Company
from and against Losses caused by the Administrator's willful misfeasance, bad
faith or negligence in the performance of its duties hereunder, or by reason of
reckless disregard of its obligations and duties hereunder.
If a BISYS employee serves as an Employee/Executive Officer of the
Company, as long as such Employee/Executive Officer acts in good faith and in a
manner reasonably believed to be in the best interests of the Company (and so
long as such Employee/Executive Officer would not otherwise be liable to the
Company by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his or her office),
the Company shall indemnify the Employee/Executive Officer and BISYS and hold
the Employee/Executive Officer and BISYS harmless from any loss, liability,
expenses (including reasonable attorneys fees) and damages incurred by them
arising out of or resulting from the service of such Employee/Executive Officer
in his or her capacity as an Employee/Executive Officer of the Company.
8
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited, provided that any such advanced expenses shall be reimbursed by the
indemnified party if an ultimate determination is made that indemnification is
not merited under the circumstances. If in any case a party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to notify the indemnifying party promptly concerning any
situation which presents or appears likely to present the probability of such a
claim for indemnification against the indemnifying party, but failure to do so
in good faith shall not affect the rights hereunder. except to the extent the
indemnifying party is materially prejudiced thereby. As to any matter eligible
for indemnification, an indemnified party shall act reasonably and in accordance
with good faith business judgment and shall not effect any settlement or confess
judgment without the consent of the indemnifying party, which consent shall not
be unreasonably withheld or delayed.
The indemnifying party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by it and reasonably satisfactory to the indemnified party, whose
approval shall not be unreasonably withheld. In the event that the indemnifying
party elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of a suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
ARTICLE 10. Amendments. For special cases, the parties hereto may amend
such procedures set forth herein as may be appropriate or practical under the
circumstances, and the Administrator may conclusively assume that any special
procedure which has been approved by the Company does not conflict with or
violate any requirements of its Articles of Incorporation or then current
prospectuses, or any rule, regulation or requirement of any regulatory body.
ARTICLE 11. Certain Records and Confidentiality. The Administrator shall
maintain on behalf of the Company all books and records which the Company or the
Administrator is 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 its duties specified in this Agreement. Any records required to
be maintained and preserved pursuant to Rules 31a-1 and 31a-2 under the 1940 Act
which are prepared or maintained by the Administrator on behalf of the Company
shall be prepared and maintained at the expense of the Administrator, but shall
be the property of the Company and will be surrendered promptly to the Company
on request and made available for inspection by the Company, or by the
Commission (the "Commission") at reasonable times.
The Administrator may at its option at any time, and shall promptly upon
the Company's demand, turn over to the Company and cease to retain the
Administrator's files, records and documents created and maintained by the
Administrator pursuant to this Agreement which are no longer
9
needed by the Administrator in the performance of its services or for its legal
protection. If not so turned over to the Company, such documents and records
shall be retained by the Administrator for six years from the year of creation.
At the end of such six-year period, such records and documents shall be turned
over to the Company unless the Company authorizes in writing the destruction of
such records and documents.
In case of any request or demand for the inspection of such records by
another party , the Administrator shall notify the Company and follow the
Company's instructions as to permitting or refusing such inspection; provided
that the Administrator may exhibit such records in any case where (i) disclosure
is required by law, (ii) the Administrator is advised by counsel that it may
incur liability for failure to make a disclosure, (iii) the Administrator is
requested to divulge such information by duly-constituted authorities or court
process, or (iv) the Administrator is requested to make a disclosure by the
Company. The Administrator shall otherwise keep confidential all books and
records relating to the Company. The Administrator shall provide the Company
with reasonable advance notice of disclosure pursuant to items (i) - (iv) of the
previous sentence, to the extent reasonably practicable.
ARTICLE 12. Insurance. The Administrator shall maintain a fidelity bond
covering larceny and embezzlement and an insurance policy with respect to
directors and officers errors and omissions coverage in amounts that are
appropriate in light of its duties and responsibilities hereunder. Upon the
request of the Company, the Administrator shall provide evidence that coverage
is in place. The Administrator shall notify the Company should its insurance
coverage with respect to professional liability or errors and omissions coverage
be canceled. Such notification shall include the date of cancellation and the
reasons therefore. The Administrator shall notify the Company of any material
claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Company
should the total outstanding claims made by the Administrator under its
insurance coverage materially impair, or threaten to materially impair, the
adequacy of its coverage.
ARTICLE 13. Legal Advice; Reliance on Instructions. The Administrator may
apply to the Company at any time for instructions and may consult with counsel
for the Company and with accountants and other experts with respect to any
matter arising in connection with The Administrator's duties, and the
Administrator shall not be liable nor accountable for any action taken or
omitted by it in good faith in accordance with such instruction or with the
opinion of such counsel, accountants or other experts. The Administrator shall
notify the Company at any time the Administrator believes that it is in need of
the advice of counsel (other than counsel in the regular employ of the
Administrator or any affiliated companies) with regard to the Administrator's
responsibilities and duties pursuant to this Agreement. After so notifying the
Company, the Administrator, at its discretion, shall be entitled to seek,
receive and act upon advice of the Company's legal counsel, such advice to be at
the expense of the Company unless relating to a matter involving BISYS' willful
misfeasance, bad faith, negligence or reckless disregard of BISYS'
responsibilities and duties.
Also, the Administrator shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or presented
by the proper person or persons. The Administrator will not be held to have
notice of any change of authority of any
10
officers, employees or agents of the Company until receipt of written notice
thereof from the Company.
ARTICLE 14. Notice. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by registered or certified
mail, postage prepaid, addressed by the party giving notice to the other party
at the following address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at such
other address as such party may from time to time specify in writing to the
other party pursuant to this Section.
ARTICLE 15. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of Ohio and the applicable provisions of the 1940
Act. To the extent that the applicable laws of the State of Ohio, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
ARTICLE 16. Representations and Warranties. The Company represents and
warrants to the Administrator that this Agreement has been duly authorized by
the Company and, when executed and delivered by the Company, will constitute a
legal, valid and binding obligation of the Company, enforceable against the
Company 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.
The Administrator represents and warrants that: (a) the various procedures
and systems which the Administrator has implemented with regard to safekeeping
from loss or damage attributable to fire, theft or any other cause of the blank
checks, records, and other data of the Company and the Administrator's records,
data, equipment, facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as are reasonably required for the secure performance of its
obligations hereunder; and (b) this Agreement has been duly authorized by the
Administrator and, when executed and delivered by the Administrator, will
constitute a legal, valid and binding obligation of the Administrator,
enforceable against the Administrator in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the right and remedies of creditors and secured parties.
ARTICLE 17. Privacy. Nonpublic personal financial information relating to
consumers or customers of the Company provided by, or at the direction of the
Company to the Administrator, or collected or retained by the Administrator in
the course of performing its duties shall be considered confidential
information. The Administrator shall not give, sell or in any way transfer such
confidential information to any person or entity, other than affiliates of the
Administrator except at the direction of the Company or as required or permitted
by law, including, without limitation, Regulation S-P. The Administrator
represents, warrants and agrees that it has in place and will maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of records and information relating to consumers or customers of the
Company, consistent with Regulation S-P. The Company represents to the
Administrator that it has adopted a Statement of its privacy policies and
practices as required by the Commission's Regulation S-P and agrees to provide
the Administrator with a copy of that statement annually.
11
ARTICLE 18. Reports. The Administrator shall furnish to the Company and to
its properly authorized auditors, investment advisers, examiners, distributors,
dealers, underwriters, salesmen, insurance companies and others designated by
the Company in writing, such reports and at such times as are prescribed
pursuant to the terms and the conditions of this Agreement to be provided or
completed by the Administrator, or as subsequently agreed upon by the parties
pursuant to an amendment hereto.
ARTICLE 19. Miscellaneous.
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and supercedes all
prior negotiations, understandings and agreements bearing upon the subject
matter covered herein including but not limited to the 1998 Agreement.
(c) This Agreement may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and the same
agreement.
(d) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto.
(e) The terms "interested person" and "affiliated person," when used in
this Agreement, shall have the respective meanings specified in the 1940 Act and
the rules and regulations thereunder, subject to such exemptions as may be
granted by the Commission.
(f) The provisions of articles 4(b), 9, and the relevant provisions of
Schedule A shall survive the termination of this Agreement.
(g) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Company are separate
and distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising out of this Agreement or otherwise.
12
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
MMA PRAXIS MUTUAL FUNDS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President- Fund Services
13
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT
DATED AS OF JULY 1, 2003
BETWEEN
MMA PRAXIS MUTUAL FUNDS
AND
BISYS FUND SERVICES OHIO, INC.
Portfolios: This Agreement shall apply to all Portfolios of MMA PRAXIS MUTUAL
FUNDS, either nor or hereafter created (individually, the
"Portfolio" and collectively, the "Portfolios"). The current
Portfolios of the Company are set forth below:
MMA Praxis Intermediate Income Fund
MMA Praxis Growth Fund
MMA Praxis International Fund
MMA Value Index Fund
Term: Pursuant to Article 7, the term of this Agreement shall commence
on July 1, 2003 and shall remain in effect through June 30, 2005
(the "Term"). During the Term, this Agreement may be terminated
without penalty (i) by mutual agreement of the parties or (ii)
for "cause," as defined below, upon the provision of 60 days
advance written notice by the party alleging cause.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty
(30) days following written notice of such breach from the
non-breaching party; (b) a final, unappealable 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 (c) 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 to the modification
or alteration of the rights of creditors. The Administrator shall
not terminate this Agreement pursuant to clause (a) above based
solely upon the Company's failure to pay an amount to the
Administrator which is subject of a good faith dispute, if (i)
the Company is attempting in good faith to resolve such dispute
with as much expediency as may be possible under the
circumstances, and (ii) the Company continues to perform its
obligations hereunder in all material respects (including paying
all fees and expenses not subject to reasonable dispute
hereunder).
14
Notwithstanding the foregoing, after such termination for so long
as the Administrator, with the written consent of the Company, in
fact continues to perform any one or more of the services
contemplated by this Agreement or any schedule or exhibit hereto,
the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in
full force and effect. Compensation due the Administrator and
unpaid by the Company upon such termination shall be immediately
due and payable upon and notwithstanding such termination. The
Administrator shall be entitled to collect from the Company, in
addition to the compensation described in this Schedule A, the
amount of all of the Administrator's reasonable cash
disbursements for services in connection with the Administrator's
activities in effecting such termination, including without
limitation, the delivery to the Company and/or its designees of
the Company's property, records, instruments and documents.
If, for any reason other than (i) expiration of the Term, (ii)
mutual agreement of the parties, (iii) "cause," as defined above,
or (iv) the termination of a Portfolio's operations for
legitimate economic reasons (e.g. diminished asset size), the
Administrator is replaced as administrator, or if a third party
is added to perform all or a part of the services provided by the
Administrator under this Agreement (excluding any
sub-administrator appointed by the Administrator as provided in
Article 7 hereof), then the Company shall make a one-time cash
payment, in consideration of the fee structure and services to be
provided under this Agreement, and not as a penalty, to the
Administrator equal to the balance due the Administrator for the
remainder of the then-current term of this Agreement, assuming
for purposes of calculation of the payment that such balance
shall be based upon the average amount of the Company's assets
for the twelve months prior to the date the Administrator is
replaced or a third party is added.
In the event the Company is merged into another legal entity in
part or in whole pursuant to any form of business reorganization
or is liquidated in part or in whole prior to the expiration of
the then-current term of this Agreement, the parties acknowledge
and agree that the liquidated damages provision set forth above
shall be applicable in those instances in which the Administrator
is not retained to provide administration services consistent
with this Agreement. The one-time cash payment referenced above
shall be due and payable on the day prior to the first day in
which the Administrator is replaced or a third party is added.
The parties further acknowledge and agree that, in the event the
Administrator is replaced, or a third party is added, as set
forth above, (i) a determination of actual damages incurred by
the Administrator would be extremely difficult, and (ii) the
liquidated damages provision contained herein is intended to
adequately compensate the Administrator for damages incurred and
is not intended to constitute any form of penalty.
15