FUND ACCOUNTING AND ADMINISTRATION AGREEMENT Dated: February 18, 2010
Dated:
February 18, 2010
This Fund
Accounting and Administration Agreement (“Agreement”), is entered into as of the
date noted above by and between the Starboard Investment Trust, a Delaware
statutory trust (“Trust”), and The Nottingham Company, a North Carolina
corporation (“Administrator”).
WHEREAS,
the Trust is an open-end management investment company that is registered under
the Investment Company Act of 1940, as amended (the “1940 Act”);
WHEREAS,
the Trust is authorized to create separate series, each with its own separate
investment portfolio (each a “Fund” and collectively the “Funds”);
WHEREAS,
Administrator is, among other things, in the business of providing fund
administration services for the benefit of its customers;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the Trust
and Administrator agree as follows:
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1.
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Engagement. The
Trust, being duly authorized, engages Administrator to perform the
services described in this Agreement. Administrator shall
perform such services upon the terms and conditions hereinafter set
forth. Any services undertaken by Administrator pursuant to
this Agreement, as well as any other activities undertaken by
Administrator on behalf of the Trust pursuant hereto, shall at all times
be subject to any directives of the Board of Trustees of the
Trust.
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Administrator
shall at all times conform to: (i) all applicable provisions of the 1940 Act and
any rules and regulations adopted thereunder; (ii) the provisions of the
Registration Statement of the Trust under the Securities Act of 1933, as amended
(“1933 Act”), and the 1940 Act as amended from time to time; (iii) the
provisions of the Declaration of Trust and By-Laws of the Trust; and (iv) any
other applicable provisions of state and federal law.
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2.
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Administration. Subject
to the direction and control of the Trust, Administrator shall serve as
administrator of each Fund and supervise the Fund’s business
affairs. In addition, to the extent not otherwise provided by
other parties under agreements with the Trust, Administrator shall
supply: (i) non-investment related statistical and research
data; and (ii) executive and administrative
services. Administrator shall prepare or oversee the
preparation by the Trust’s service providers, working with other
professional firms where appropriate, of (i) filings with the Securities
and Exchange Commission, FINRA, state securities commissions and other
applicable agencies and authorities, (ii) financial statements and reports
to shareholders, (iii) tax returns; (iv) proxy materials and
post-effective amendments to the Trust’s registration statement; and (v)
necessary materials for meetings of the Trust’s Board of
Trustees. Administrator shall provide personnel to serve as
officers of the Trust if so elected by the Board of
Trustees.
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Executive
and administrative services include, but are not limited to, the negotiation and
retention of all third parties furnishing services to the Fund, subject to the
input, oversight, and approval of the Board of Trustees; review of the books and
records of the Fund maintained by such third parties, and the review and payment
of invoices or
1
other
requests for payment of Fund expenses; and such other action with respect to the
Fund as may be necessary in the opinion of Administrator to perform its duties
hereunder.
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3.
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Fund
Accounting. Administrator shall maintain and keep
current the general ledger for each Fund, recording all income and
expenses, capital share activity and security transactions of the
Fund. Administrator shall calculate the net asset value of each
Fund and the per share net asset value of each Fund, in accordance with
the Fund’s current prospectus and statement of additional information,
once daily as of the time selected by the Trust’s Board of
Trustees. Administrator shall prepare and maintain a daily
valuation of all securities and other assets of the Fund in accordance
with instructions from a designated officer of the Trust and in the manner
set forth in the Fund’s current prospectus and statement of additional
information. In valuing securities of the Trust, Administrator
may contract with, and rely upon market quotations provided by, outside
services.
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Administrator
shall also perform for each Fund all such fund accounting services and duties as
are customary and necessary in the industry. Without limiting the
preceding sentence, (i) Administrator shall process each request received from
the Trust or its authorized agents for payment of the Fund’s expenses, and (ii)
upon receipt of written instructions signed by an officer or other authorized
agent of the Trust, Administrator shall remit the appropriate amounts which
shall be signed by an authorized signatory on behalf of the Trust and mailed to
the appropriate party.
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4.
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Allocation of Charges
and Expenses. Except as noted in this section,
Administrator shall assume all operating expenses of each Fund not
specifically assumed by the Fund, including without
limitation:
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a)
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Compensation
and expenses of any employees of the Trust and of any other persons
rendering any services to the Fund;
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b)
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clerical
and shareholder service staff
salaries;
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c)
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office
space and other office expenses;
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d)
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fees
and expenses incurred by the Fund in connection with membership in
investment company organizations;
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e)
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fees
and expenses of counsel to the Trustees who are not interested persons of
the Fund and Trust (subject to the limits and scope of ordinary services
outlined in the operating plans between the Administrator and the
investment advisor of each Fund);
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f)
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fees
and expenses of counsel to the Fund and Trust engaged to assist with
preparation of Fund and Trust documents and filings and provide other
ordinary legal services (subject to the limits and scope of ordinary
services outlined in the operating plans between the Administrator and the
investment advisor of each Fund);
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g)
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fees
and expenses of independent public accountants to each Fund, including
fees and expense for tax preparation (subject to the limits and scope of
ordinary services outlined in the operating plans between the
Administrator and the investment advisor of each
Fund);
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h)
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compensation
for the services of a chief compliance officer for the
Trust;
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i)
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expenses
of registering shares under federal and state securities laws; insurance
expenses;
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2
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j)
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fees
and expenses of the investment advisor (subject to the fee waivers
outlined in the operating plans between the Administrator and the
investment advisor of each Fund); custodian; shareholder servicing,
dividend disbursing and transfer agent; administrator; distributor; and
accounting and pricing services agent(s) of each
Fund;
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k)
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expenses,
including clerical expenses, of issue, sale, redemption, or repurchase of
shares of the Fund;
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l)
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the
cost of preparing and distributing reports and notices to
shareholders;
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m)
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the
cost of printing or preparing prospectuses and statements of additional
information for delivery to the Fund’s current
shareholders;
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n)
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the
cost of printing or preparing documents, statements or reports to
shareholders; and
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o)
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and
all other operating expenses not specifically assumed by the
Fund.
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Administrator
shall not be responsible for:
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a)
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marketing,
distribution, and servicing expenses related to the sale or promotion of
Fund shares;
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b)
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expenses
incurred in connection with the organization and initial registration of
shares of a Fund;
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c)
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expenses
related to shareholder meetings and proxy
solicitations;
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d)
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indirect
expenses of the Fund, such as expenses incurred by other investment
companies in which the Fund
invests;
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e)
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fee
amounts for legal, auditing, and accounting services incurred above the
limits or outside of the scope of ordinary services outlined in the
operating plans between the Administrator and the investment advisor of
each Fund;
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f)
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hiring
employees and retaining advisers and experts as contemplated by Rule
0-1(a)(7)(vii) of the 1940 Act; and
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g)
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expenses
that the Funds are obligated to pay, as described in the following
paragraph.
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The Fund
shall pay all brokerage fees and commissions, taxes, borrowing costs (such as
interest or dividend expenses on securities sold short). The Fund
shall also pay all expenses which it is authorized to pay pursuant to Rule 12b-1
under the 1940 Act. Administrator may obtain reimbursement from the
Fund, at such time or times as Administrator may determine in its sole
discretion, for any of the expenses advanced by Administrator that the Fund is
obligated to pay, and such reimbursement shall not be considered to be part of
Administrator’s compensation pursuant to this Agreement. The Fund
shall also pay for litigation to which the Fund may be a party and
indemnification of the Trust’s trustees and officers with respect
thereto.
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5.
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Compensation. For
the performance of Administrator’s obligations under this Agreement, each
Fund listed on Schedule A shall pay Administrator a monthly fee as set
forth on Schedule A following the end of each
month.
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3
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6.
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Record Keeping and
Other Information. Administrator shall create and
maintain all necessary records in accordance with all applicable laws,
rules and regulations, including but not limited to records required by
Section 31(a) of the 1940 Act and the rules thereunder, as the same may be
amended from time to time, pertaining to the various functions performed
by it and not otherwise created and maintained by another party pursuant
to contract with the Trust. Where applicable, such records
shall be maintained by Administrator for the periods and in the places
required by Rule 31a-2 under the 1940 Act. Administrator
acknowledges that such records are the property of the
Trust.
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Administrator
shall make available to the Trust during regular business hours all records and
other data created and maintained pursuant to the foregoing provisions of this
Agreement for reasonable audit and inspection by the Trust or any regulatory
agency having authority over the Trust.
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7.
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Equipment
Failure. In the event of a mechanical breakdown or
failure of communication or power supplies beyond its control,
Administrator shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues beyond
Administrator’s control. Administrator shall make every
reasonable effort to restore any lost or damaged data and correct any
errors resulting from such a breakdown at the expense of
Administrator. Administrator agrees that it shall, at all
times, have reasonable contingency plans with appropriate parties, making
reasonable provision for emergency use of electrical data processing
equipment to the extent appropriate equipment is
available. Representatives of the Trust shall be entitled to
inspect Administrator’s premises and operating capabilities at any time
during regular business hours of Administrator, upon reasonable notice to
Administrator.
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8.
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Limitation of
Liability. Administrator may rely on information
reasonably believed by it to be accurate and reliable. Except
as may otherwise be required by the 1940 Act or the rules thereunder,
neither Administrator nor its shareholders, officers, directors,
employees, agents, control persons or affiliates of any thereof
(collectively, the “Administrator Employees”) shall be subject to any
liability for, or any damages, expenses or losses incurred by the Trust in
connection with, any error or judgment, mistake of law, any act or
omission in connection with or arising out of any services rendered under
or payments made pursuant to this Agreement or any other matter to which
this Agreement relates, except by reason of willful misfeasance, bad faith
or gross negligence on the part of any such persons in the performance of
the duties of Administrator under this Agreement or by reason of reckless
disregard by any of such persons of the obligations and duties of
Administrator under this Agreement.
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Further,
in no event shall Administrator be liable under any provision of, or in
connection with, this agreement (regardless of whether a claim is based on
contract, tort, or otherwise) for any damages other than actual and direct
damages, and Administrator shall have no liability for any incidental, indirect,
consequential, special, or exemplary damages or losses which the Fund may incur
or suffer, whether or not the likelihood or possibility of such damages was
known to Administrator in advance.
Any
person, even though also a director, officer, employee, shareholder or agent of
Administrator, who may be or become an officer, trustee, employee or agent of
the Trust, shall be deemed, when rendering services to the Trust or acting on
any business of the Trust (other than services or business in connection with
Administrator’s duties hereunder), to be rendering such services to or acting
solely for the Trust (other than services or business in connection with
Administrator’s duties hereunder) and not as a director, officer, employee,
shareholder or agent, or one under the control or direction of Administrator,
even though paid by it.
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9.
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Indemnification. Subject
to and except as otherwise provided in the 1933 Act and the 1940 Act, the
Trust shall indemnify Administrator and each Administrator Employee
(hereinafter collectively referred to as a “Covered Person”) against all
liabilities, including but not limited to amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and expenses,
including reasonable accountants’ and counsel fees, incurred by any
Covered Person in connection with the defense or disposition of any
action, suit or other proceeding, whether civil or criminal, before any
court or administrative or legislative body, in which such Covered Person
may be or may have been involved as a party or otherwise or with which
such person may be or may have been threatened, while serving as the
administrator for a Fund hereunder or as a Administrator Employee, or,
thereafter, by reason of being or having been the administrator for the
Fund or a Administrator Employee, including but not limited to liabilities
arising due to any misrepresentation or misstatement in the Fund’s
prospectus or statement of additional information, other regulatory
filings, and amendments thereto, or in other documents originating from
the Trust. In no case shall a Covered Person be indemnified
against any liability to which such Covered Person would otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence, or
reckless disregard of the duties of such Covered
Person.
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Administrator
shall indemnify the Trust against all liabilities, including but not limited to
amounts paid in satisfaction of judgments, in compromise or as fines and
penalties, and expenses, including reasonable accountants’ and counsel fees,
that the Trust may sustain or incur arising out of Administrator’s refusal or
failure to comply with the terms of this Agreement, or its bad faith, gross
negligence, or willful misconduct.
In order
that the indemnification provisions contained in this section shall apply, it is
understood that if in any case the indemnitor may be asked to indemnify or hold
the indemnitee harmless, the indemnitor shall be fully and promptly advised of
all pertinent facts concerning the situation in question, and it is further
understood that the indemnitee will use all reasonable care to notify the
indemnitor promptly concerning any situation which presents or appears likely to
present the probability of a claim for indemnification. The
indemnitor shall have the option to defend the indemnitee against any claim that
may be the subject of this indemnification. In the event that the
indemnitor so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the indemnitee
shall in such situation initiate no further legal or other expenses for which it
shall seek indemnification under this section. The indemnitee shall
in no case confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor’s prior written consent.
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10.
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Services for
Others. Nothing in this Agreement shall prevent
Administrator or any affiliated person of Administrator from providing
services for any other person, firm, or corporation, including other
investment companies; provided, however, that Administrator expressly
represents that it will undertake no activities that, in its judgment,
will adversely affect the performance of its obligations to the Trust
under this Agreement.
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11.
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Compliance with the
▇▇▇▇ ▇▇▇. The parties hereto acknowledge and agree that
nothing contained herein shall be construed to require Administrator to
perform any services for any Fund that could cause Administrator to be
deemed an “investment advisor” of the Fund within the meaning of Section
2(a)(20) of the 1940 Act or to supersede or contravene the prospectus or
statement of additional information of any Fund or any provisions of the
1940 Act and the rules thereunder.
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12.
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Term of
Agreement. This Agreement shall become effective
immediately and shall continue in full force and effect unless terminated
by either party by giving not less than ninety (90) days’ prior written
notice to the other party. This Agreement may also be
terminated at any time as follows: (i) by mutual written agreement of the
parties; or (ii) for
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5
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cause,
by a party, in the event of willful misconduct, gross negligence, or
breach of this Agreement by the other party, by giving not less than
thirty (30) days’ prior written notice to the other
party.
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13.
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Duties in the Event of
Termination. In the event that, in connection with
termination, a successor to any of Administrator’s duties or
responsibilities hereunder is designated by the Trust by written notice to
Administrator, Administrator shall promptly, upon such termination and at
the expense of the Trust, transfer to such successor all relevant books,
records, correspondence, and other data established or maintained by Administrator
under this Agreement in a form reasonably acceptable to the Trust, and
will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from Administrator’s personnel in the
establishment of books, records, and other data by such
successor.
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Upon
termination of this Agreement, Administrator shall be paid the termination fee
set forth on Schedule A. The termination fee is not a penalty, but a
charge to compensate Administrator for its service in assisting in transferring
records and reports and otherwise wrapping up its services under this
Agreement. Notwithstanding the foregoing, Administrator shall not be
entitled to the termination fee if Administrator elects to terminate this
Agreement or Administrator is terminated due to its willful misconduct, gross
negligence, or breach of this Agreement.
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14.
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The
Trust. The term “Starboard Investment Trust” means and
refers to the Trustees from time to time serving under the Trust’s
Declaration of Trust as the same may subsequently thereto have been, or
subsequently hereto may be, amended. It is expressly agreed
that the obligations of the Trust hereunder shall not be binding upon any
of the Trustees, shareholders, nominees, officers, agent or employees of
the Trust personally, but shall bind only the assets or property of the
Fund or Funds as to which the obligations relate. The execution
and delivery of this Agreement have been authorized by the Trustees of the
Trust and signed by an officer of the Trust, acting as such, and neither
such authorization by such Trustees 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 or property of the Fund or Funds or to which the obligations
relate.
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15.
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Governing
Law. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
the state of North Carolina, without regard to the principles of conflict
of laws; provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation promulgated by
the Securities and Exchange Commission
thereunder.
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16.
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Consent to
Jurisdiction and Venue. The parties hereto submit to the
personal jurisdiction and venue in the Superior Court in ▇▇▇▇ County,
North Carolina or the United States Court for the Eastern District of
North Carolina for any action brought by the parties hereto arising out of
a breach or threatened breach of this
Agreement.
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17.
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Confidentiality. Administrator
agrees on behalf of itself and its employees to treat confidential all
records and other information relative to the Trust and its prior, present
or potential shareholders and not to use such records and information for
any purpose other than performance of its responsibilities and duties
under this Agreement, except after prior notification to and approval in
wiring by the Trust, which approval will not be unreasonably
withheld. Notwithstanding the forgoing, Administrator may
divulge such confidential records and information where Administrator may
be exposed to civil or criminal contempt proceedings for failure to
comply, when requested by duly constituted
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6
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authorities,
when so requested by the Trust’s investment advisor, principal
underwriter, custodian, transfer agent, outside legal counsel or
independent public accountants, or when so requested by the
Trust. For purposes of this section, the following records and
other information shall not be considered confidential: (i) any record or
other information which is or becomes publicly available through no fault
of Administrator; (ii) any record and other information which is released
by the Trust in a public release; (iii) any record or other information
which is lawfully obtained from third parties who are not under an
obligation to keep such information confidential, and (iv) any record or
other information previously known by
Administrator.
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18.
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Independent
Contractor. For purposes stated in this Agreement,
Administrator shall be deemed an independent contractor and, unless
otherwise expressly provided or authorized, shall have no authority to act
or represent the Trust in any way and will not be deemed an agent of the
Trust.
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19.
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Assignment. This
Agreement shall not be assignable by either party without the written
consent of the other party, such consent not to be unreasonably withheld
or delayed. Notwithstanding the foregoing, Administrator may,
at its expense unless provided otherwise in the Agreement, subcontract
with any entity or person concerning the provision of the services
contemplated hereunder. Administrator shall not, however, be
relieved of any of its obligations under this Agreement by the appointment
of such subcontractor. This Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
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20.
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Amendments. This
Agreement or any part hereof may be changed or waived only by an
instrument in writing signed by the party against which enforcement of
such change or waiver is sought.
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21.
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Notices. Any
notice required or permitted to be given by either party to the other
party shall be in writing and will be deemed sufficient if personally
delivered or sent by electronic delivery (followed up by registered or
certified mail, postage prepaid) addressed by the party giving notice to
the other party at the following addresses (or such other address for a
party as shall be specified by like
notice):
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a. If
to Trust, at:
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Post
▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Secretary
With a
copy to:
Wambia
Capital Management, LLC
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
b. If
to Administrator, at:
The
Nottingham Company
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Post
▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Legal
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22.
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Construction. If
any provision of this Agreement, or portion thereof, shall be determined
to be void or unenforceable by any court of competent jurisdiction, then
such determination shall not affect any other provision of this Agreement,
or portion thereof, all of which other provisions and portions thereof
shall remain in full force and effect. If any provision of this
Agreement, or portion thereof, is capable of two interpretations, one of
which would render the provision, or portion thereof, void and the other
which would render the provision, or portion thereof, valid, then the
provision, or portion thereof, shall have the meaning that renders it
valid. In addition, the language used herein shall be deemed to
be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against either
party.
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23.
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Multiple
Originals. This Agreement may be executed in two or more
counterparts, each of which when so executed shall be deemed to be an
original, but such counterparts shall together constitute one and the same
instrument.
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24.
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Entire
Agreement. This Agreement, including all exhibits,
schedules and attachments, comprises the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes
all other prior agreements, understandings and letters related to this
Agreement. The headings in this Agreement have been inserted
solely for ease of reference and shall not be considered in the
interpretation or construction of this
Agreement.
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IN
WITNESS WHEREOF, the parties hereto have caused the Agreement to be duly signed
as of the day and year first above written.
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Chairman
THE
NOTTINGHAM COMPANY
By: /s/
▇▇▇▇▇▇ Lower
Name: ▇▇▇▇▇▇
Lower
Title: Vice President
8
SCHEDULE
A
Covered
Funds and Compensation
The
following Funds are covered by the Agreement:
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·
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GlobalAfrica
Equity Fund
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·
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GlobalAfrica
Infrastructure Fund
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·
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GlobalAfrica
Natural Resources Fund
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·
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GlobalAfrica
Income Fund
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Each Fund
shall pay Administrator a fee at the annual rate of the average daily net assets
of the Fund as set forth in the schedule that follows. Such fee shall
be calculated and accrued daily, and paid to Administrator monthly.
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Average Daily Net Assets
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Annual Rate
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Less
than $38 million
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2.750%
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|
$38
million but less than $39 million
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2.739%
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|
$39
million but less than $40 million
|
2.723%
|
|
$40
million but less than $45 million
|
2.708%
|
|
$45
million but less than $50 million
|
2.643%
|
|
$50
million but less than $55 million
|
2.590%
|
|
$55
million but less than $60 million
|
2.546%
|
|
$60
million but less than $65 million
|
2.508%
|
|
$65
million but less than $70 million
|
2.476%
|
|
$70
million but less than $75 million
|
2.448%
|
|
$75
million but less than $80 million
|
2.423%
|
|
$80
million but less than $85 million
|
2.401%
|
|
$85
million but less than $90 million
|
2.381%
|
|
$90
million but less than $95 million
|
2.363%
|
|
$95
million but less than $100 million
|
2.347%
|
|
$100
million but less than $105 million
|
2.332%
|
|
$105
million but less than $110 million
|
2.318%
|
|
$110
million but less than $115 million
|
2.305%
|
|
$115
million but less than $120 million
|
2.294%
|
|
$120
million but less than $125 million
|
2.283%
|
|
$125
million but less than $130 million
|
2.272%
|
|
$130
million but less than $135 million
|
2.263%
|
|
$135
million but less than $140 million
|
2.254%
|
|
$140
million but less than $145 million
|
2.245%
|
|
$145
million but less than $150 million
|
2.237%
|
|
$150
million but less than $155 million
|
2.229%
|
|
$155
million but less than $160 million
|
2.222%
|
|
$160
million but less than $165 million
|
2.215%
|
|
$165
million but less than $170 million
|
2.209%
|
|
$170
million but less than $175 million
|
2.202%
|
|
$175
million but less than $180 million
|
2.197%
|
|
$180
million but less than $185 million
|
2.191%
|
|
$185
million but less than $190 million
|
2.185%
|
|
$190
million but less than $195 million
|
2.180%
|
A-1
|
$195
million but less than $200 million
|
2.175%
|
|
$200
million but less than $205 million
|
2.171%
|
|
$205
million but less than $210 million
|
2.166%
|
|
$210
million but less than $215 million
|
2.162%
|
|
$215
million but less than $220 million
|
2.157%
|
|
$220
million but less than $225 million
|
2.153%
|
|
$225
million but less than $230 million
|
2.149%
|
|
$230
million but less than $235 million
|
2.146%
|
|
$235
million but less than $240 million
|
2.142%
|
|
$240
million but less than $245 million
|
2.138%
|
|
$245
million but less than $250 million
|
2.135%
|
|
$250
million but less than $255 million
|
2.132%
|
|
$255
million but less than $260 million
|
2.129%
|
|
$260
million but less than $265 million
|
2.126%
|
|
$265
million or more
|
2.125%
|
The
average value of the daily net assets of each Fund shall be determined pursuant
to the applicable provisions of the Trust’s Declaration of Trust or a resolution
of the Board, if required. If, pursuant to such provisions, the
determination of net asset value of a Fund is suspended for any particular
business day, then for the purposes of this paragraph, the value of the net
assets of a Fund as last determined shall be deemed to be the value of the net
assets as of the close of the business day, or as of such other time as the
value of a Fund’s net assets may lawfully be determined, on that
day. If the determination of the net asset value of a Fund has been
suspended for a period including such month, Administrator’s compensation
payable at the end of such month shall be computed on the basis of the value of
the net assets of that Fund as last determined (whether during or prior to such
month).
If the
compensation received by Administrator from each Fund under this Agreement is
less than the minimum operating cost outlined in the operating plans between the
Administrator and the investment advisor of each Fund, then the Fund shall remit
or cause to be remitted to Administrator an amount that is sufficient to
reimburse Administrator for the difference. Such amount shall be
calculated and paid on a monthly basis.
If this
Agreement becomes effective subsequent to the first day of the month or
terminates before the last day of the month, Administrator’s compensation for
that part of the month in which this Agreement is in effect will be prorated in
a manner consistent with the calculation of the fees as set forth
above.
In
accordance with Section 13 of this Agreement, Administrator shall be entitled to
be paid a fee upon termination of this Agreement with respect to any
Fund. The termination fee shall be equal to one-sixth (1/6) of the
annual minimum operating cost outlined in the operating plans between the
Administrator and the investment advisor of each Fund. As stated in
Section 13 of this Agreement, Administrator shall not be entitled to the
termination fee if Administrator elects to terminate this Agreement or
Administrator is terminated due to its willful misconduct, gross negligence, or
breach of this Agreement.
A-2