Exhibit (h2)
ADMINISTRATION AGREEMENT
AGREEMENT made as of 15th day of August, 2003 by and among each of the
entities listed on Appendix A hereto, as such Appendix A may be amended in
writing by the parties from time to time (each a "Fund" and collectively, the
"Funds"), and INVESTORS BANK & TRUST COMPANY, a Massachusetts trust company (the
"Bank").
WHEREAS, each Fund desires to retain the Bank to render certain
administrative services to such Fund and the Bank is willing to render such
services in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
it is agreed between the parties hereto as follows:
1. Appointment. Each Fund hereby appoints the Bank to act as Administrator
of the Fund on the terms set forth in this Agreement. The Bank accepts such
appointment and agrees to render the services herein set forth for fees that
shall be agreed to from time to time in a signed writing between the parties
that is incorporated herein by this reference.
2. Delivery of Documents. Each Fund has furnished the Bank with, or has
caused to be furnished to the Bank, and the Bank acknowledges receipt of, copies
properly certified or authenticated of each of the following:
(a) Resolutions of the Fund's Board or Manager authorizing the
appointment of the Bank to provide certain administrative services to the Fund
and approving this Agreement;
(b) The Fund's incorporating documents and all amendments thereto
(the "Articles");
(c) The Fund's by-laws and all amendments thereto (the "By-Laws");
(d) The Fund's agreements with all service providers, which include
any investment advisory agreements, sub-investment advisory agreements,
operations monitoring agreements, custody agreements, distribution agreements
and transfer agency agreements (collectively, the "Agreements");
(e) The Fund's most recent prospectus or offering documents (the
"Prospectus"); and any Registration Statement on Form N-1A (the "Registration
Statement") filed under the Securities Act of 1933 and under the Investment
Company Act of 1940 (the "1940 Act") and all amendments thereto; and
(f) Such other certificates, documents or opinions as may mutually
be deemed necessary or appropriate for the Bank in the proper performance of its
duties hereunder.
Each Fund will immediately furnish the Bank with copies of all
amendments of or supplements to the foregoing. Furthermore, each Fund will use
its best efforts to notify the Bank as soon as possible of any matter which may
materially affect the performance by the Bank of its services under this
Agreement.
3. Duties of Administrator. Subject to the supervision and direction of
the Board or the Manager, the Bank, as Administrator, will perform the services
described in Appendix B hereto. The Bank may, from time to time, perform
additional duties and functions which shall be set forth in an amendment to such
Appendix B executed by the parties hereto.
In performing all services under this Agreement, the Bank shall act in
conformity with a Fund's formation documents and the Prospectus, as the same may
be amended from time to time. Notwithstanding any item discussed herein, the
Bank has no discretion over a Fund's choice of investments and cannot be held
liable for any problem to the extent relating solely to such choice of
investments.
4. Duties of the Funds.
(a) Each Fund upon reasonable notice from the Bank requesting a
determination with respect to any trade, is solely responsible to inform the
Bank whether such sale of Fund shares are exempt transactions that do not
require any blue sky registration or filings. The Bank shall cooperate with each
Fund in its reasonable requests for assistance and information required in
accomplishing the duties described in this Section 4(a).
(b) With the consent of an officer of a Fund (which consent shall
not be unreasonably withheld), such Fund shall make its legal counsel available
to the Bank for instruction with respect to any matter of law arising in
connection with the Bank's duties hereunder, and the Fund acknowledges that the
Bank shall be entitled to rely in good faith on such instruction without
unreasonable further investigation on the part of the Bank.
5. Fees and Expenses of the Bank. For the services rendered by the Bank
hereunder, the Funds will pay to the Bank such fees that shall be agreed to from
time to time in a signed writing between the parties that is incorporated herein
by this reference. The Funds will also pay or reimburse the Bank from time to
time for all necessary proper disbursements, expenses and charges made or
incurred by the Bank in the performance of this Agreement (including any duties
listed on any Schedule hereto, if any) including any indemnities for any loss,
liabilities or expense to the Bank as provided herein. The Bank will also be
entitled to reimbursement by the Funds for all reasonable expenses incurred in
conjunction with termination of this Agreement and any conversion or transfer
work done in connection therewith.
Fees and expenses will be calculated monthly. Fees and expenses owed to
the Bank for any month may be charged against any cash balance held by a Fund
per the payment date listed in Appendix C hereto. Fees charged to an account may
result in an overdraft that will be subject to normal interest charges. A Fund
will have thirty (30) days after the receipt of an invoice to dispute any charge
that appears on such invoice. After such thirty (30) day period, the undisputed
invoice will be deemed to be complete and accurate; provided, however, that each
Fund retains the right to dispute any invoice previously deemed to be complete
and accurate if subsequently arising information indicates that such invoice or
any charge thereon may be inaccurate or improperly or fraudulently claimed or
paid. Any disputed invoice will be deemed to be complete and accurate only upon
satisfactory resolution of the dispute thereto; provided, however, that each
Fund retains the right to dispute further any previously disputed invoice deemed
by resolution to be complete and accurate if subsequently arising information
indicates that such invoice or any charge thereon may be inaccurate or
improperly or fraudulently claimed or paid.
6. Limitation of Liability.
(a) Notwithstanding anything in this Agreement to the contrary, in
no event shall the Bank or any of its officers, directors, employees or agents
(collectively, the "Bank Indemnified Parties") be liable to a Fund or any third
party, and each Fund shall indemnify and hold the Bank and the Bank Indemnified
Parties harmless from and against any and all loss, damage, liability, actions,
suits, claims, costs and expenses, including legal fees (a "Claim"), arising as
a result of any act or omission of the Bank or any Bank Indemnified Party under
this Agreement, except for any Claim resulting from the negligence, willful
misfeasance or bad faith of the Bank or any Bank Indemnified Party. Without
limiting the foregoing, neither the Bank nor the Bank Indemnified Parties shall
be liable for, and the Bank and the Bank Indemnified Parties shall be
indemnified against, any Claim arising as a result of: (i) the actions or
omissions of the Fund or its agents; or (ii) the offer or sale of any securities
of the Fund in violation of (x) any requirement under the federal securities
laws or regulations, or (y) any requirement under the securities laws or
regulations of any state or jurisdiction.
(b) The Bank may apply to a Fund at any time for instructions and
may consult counsel for such Fund, or its own counsel, and with accountants and
other experts with respect to any matter arising in connection with its duties
hereunder, and the Bank shall not be liable or accountable for any action taken
or omitted by it in good faith in accordance with such instruction, or with the
opinion of such counsel, accountants, or other experts. The Bank shall not be
liable for any act or omission taken or not taken in reliance upon any document,
certificate or instrument which it reasonably believes to be genuine and to be
signed or presented by the proper person or persons. The Bank shall not be held
to have notice of any change of authority of any officers, employees, or agents
of the Fund or the Fund until receipt of written notice thereof has been
received by the Bank from the Fund.
(c) In the event the Bank is unable to perform, or is delayed in
performing, its obligations under the terms of this Agreement because of acts of
God, strikes, legal constraint, government actions, war, emergency conditions,
interruption of electrical power or other utilities, equipment or transmission
failure or damage reasonably beyond its control or other causes reasonably
beyond its control, the Bank shall not be liable to a Fund for any damages
resulting from such failure to perform, delay in performance, or otherwise from
such causes.
(d) Notwithstanding anything to the contrary in this Agreement, in
no event shall the Bank be liable for special, incidental or consequential
damages, even if advised of the possibility of such damages.
(e) The Bank shall indemnify and hold the Fund harmless from and
against any Claim to the extent such Claim results from the negligence, willful
misfeasance or bad faith of the Bank or any Bank Indemnified Party
7. Term; Termination of Agreement.
(a) The term of this Agreement shall be three (3) years commencing
upon the date hereof (the "Initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this Agreement
shall automatically renew for successive one-year terms (each a "Renewal Term")
unless written notice of non-renewal is delivered by the non-renewing party to
the other party no later than ninety (90) days prior to the expiration of the
Initial Term or any Renewal Term, as the case may be.
Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term in the event the other party
violates any material provision of this Agreement, provided that the violating
party does not cure such violation within ninety (90) days of receipt of written
notice from the non-violating party of such violation.
This Agreement also may be terminated by the Funds if the Bank
fails to cure, within ninety (90) days of receipt of a written notice from an
officer of the Funds and to such officer's reasonable satisfaction, the Funds'
determination, in the reasonable discretion of the Fund's governing body, that
the services being rendered by the Bank under this Agreement fail in a material
way to meet a standard of quality reasonably expected by a consumer of services
in the fund administration business.
(b) At any time after the termination of this Agreement, a Fund may,
upon written request, have reasonable access to the records of the Bank relating
to its performance of its duties as Administrator.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to a Fund or the Bank shall be sufficiently
given if addressed to that party and received by it at its office set forth
below or at such other place as it may from time to time designate in writing.
To the Fund:
c/o TIFF Advisory Services, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Executive Officer
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇
To the Bank:
Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Senior Director
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
(b) 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 without the written consent of the
other party.
(c) This Agreement shall be construed in accordance with the laws of
the Commonwealth of Massachusetts, without regard to its conflict of laws
provisions.
(d) This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(e) The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
9. Confidentiality. The parties hereto agree than any non-public
information obtained hereunder concerning another party is confidential and may
not be disclosed without the consent of the other party, except as may be
required by applicable law or at the request of a governmental agency or
self-regulatory organization. The parties further agree that a breach of this
provision would irreparably damage a party and accordingly agree that each of
them is entitled, in addition to all other remedies at law or in equity, to an
injunction or injunctions without bond or other security to prevent breaches of
this provision. In addition, the parties further agree that any Nonpublic
Personal Information, as defined under Section 248.3(t) of Regulation S-P
("Regulation S-P"), promulgated under the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the "Act"),
disclosed by a party hereunder is for the specific purpose of permitting the
other party to perform the services set forth in this Agreement. Each party
agrees that, with respect to such information, it will comply with Regulation
S-P and the Act and that it will not disclose any Nonpublic Personal Information
received in connection with this Agreement, to any other party, except as
necessary to carry out the services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the Act.
10. Use of Name. No Fund shall use the name of the Bank or any of its
affiliates in any prospectus, sales literature or other material relating to the
Fund in a manner not approved by the Bank prior thereto in writing; provided
however, that the approval of the Bank shall not be required for any use of its
name which merely refers in accurate and factual terms to its appointment
hereunder or which is required by the Securities and Exchange Commission or any
state securities authority or any other appropriate regulatory, governmental or
judicial authority; provided, further, that in no event shall such approval be
unreasonably withheld or delayed.
11. Cooperation with Consultants. The Bank agrees to cooperate fully with
any consultants or vendor management companies engaged by the Funds. Upon
written request by the Funds, the Bank agrees to provide such consultants or
vendor management companies information concerning the Funds and any information
concerning the Bank's servicing of the Funds as is generally provided to the
Bank's clients. For avoidance of doubt, the parties acknowledge that the Funds
have engaged EOS Fund Services LLC to act as their Operations Monitoring Agent
and that this cooperation agreement applies to all contacts and activities
between the Bank and EOS Fund Services LLC until the Bank may be otherwise
notified by the Funds in writing.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
EACH ENTITY LISTED ON APPENDIX A HERETO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
INVESTORS BANK & TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Appendices
Appendix A................................................ Funds
Appendix B................................................ Services
Appendix C................................................ Fees
APPENDIX A
FUNDS
TIFF INVESTMENT PROGRAM, INC.
TIFF U.S. EQUITY FUND
TIFF INTERNATIONAL EQUITY FUND
TIFF GOVERNMENT BOND FUND
TIFF SHORT-TERM FUND
TIFF MULTI-ASSET FUND
TIFF PARTNERS I, LLC
TIFF PARTNERS II, LLC
TIFF PARTNERS III, LLC
TIFF PARTNERS IV, LLC
TIFF PARTNERS V-US, LLC
TIFF PARTNERS V-INTERNATIONAL, LLC
TIFF REALTY AND RESOURCES I, LLC
TIFF REAL ESTATE PARTNERS I, LLC
TIFF REAL ESTATE PARTNERS II, LLC
TIFF SECONDARY PARTNERS I, LLC
TIFF ABSOLUTE RETURN POOL
TIFF ABSOLUTE RETURN POOL II
APPENDIX C
NAME OF ENTITY PAYMENT DATE
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TIFF Investment Program, Inc. Last business day of the
month, in arrears
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TIFF Partners I, LLC First business day of the
month, in advance
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TIFF Partners II, LLC First business day of the
month, in advance
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TIFF Partners III, LLC First business day of the
month, in advance
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TIFF Partners IV, LLC First business day of the
month, in advance
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TIFF Partners V-US, LLC First business day of the
month, in advance
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TIFF Partners V-International, LLC First business day of the
month, in advance
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TIFF Realty and Resources I, LLC First business day of the
month, in advance
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TIFF Real Estate Partners I, LLC First business day of the
month, in advance
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TIFF Real Estate Partners II, LLC First business day of the
month, in advance
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TIFF Secondary Partners I, LLC First business day of the
month, in advance
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TIFF Absolute Return Pool First business day of the
month, in advance
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TIFF Absolute Return Pool II First business day of the
month, in advance
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